The term double jeopardy essentially means “the putting of a person on trial for an offence for which he or she has previously been put on trial under a valid charge”. The concept of double jeopardy is a protection to an accused who has already been tried and either convicted or acquitted of an offence from being tried again for the same offence. It served both individual interest as well as societal interest. As it is in the interest of all that judicial proceedings have a certain degree of definiteness attached to them. Under the Indian legal system this concept finds a place in the Indian Constitution as well as the Code of Criminal Procedure, 1973 (CrPC). Article 20(2) of the Constitution provides that no person shall be prosecuted and punished for the same offence more than once. Whereas Section 300 of the Code of Criminal Procedure, 1973 provides that a person once acquitted or convicted not to be tried for the same offence. Both the provisions are essentially addressing the same principle but there is a slight difference. Article 20(2) provides protection from retrial only in case of conviction whereas Section 300 of CrPC is available in case of conviction as well as acquittal. Both these provisions will be dealt with separately. Apart from them this principle has also been incorporated in Section 26 of General Clauses Act. The maxim nemo debet bis puniri pro uno delicto incorporates the essence of double jeopardy and means that no one ought to be punished twice for the same offence. This article delves into the concept of double jeopardy highlighting its constitutionality.
Section 300 CrPC : an insight
It provides that once an accused is tried by a competent court for an offence and whether he is acquitted or convicted he will not be liable to be tried again for the same offence or any other offence for which a charge might have been created under Section 221(1) of CrPC i.e doubtful offences which might arise from the same set of facts or under Section 221(2) of CrPC i.e offences which are discovered to have been committed during the investigation of the first mentioned offence.This is the general principle of Section 300 of CrPC.
Further we see that the section itself provides for exceptions to the said principle. The exceptions are five in number:
Section 220 (1) of CrPC – An accused can be tried afterwards for an offence for which a separate charge might have been made under Section 220 (1) of CrPC i.e an offence which was committed in the same transaction as that of first mentioned offence. It is immaterial here whether he was acquitted or convicted in the initial trial. The only restriction here is that it can only happen with the consent of the state government.
Offence constituted by acts causing consequences – The accused is convicted of offence constituted by act causing consequences and the act together with the consequences constitute a different offence. The accused in such a case may be tried for such last mentioned offence only if such consequences had not happened or were not known to the court to have happened at the time when he was initially convicted. The thing to be seen here is that this clause will not operate in case of acquittals.
Incompetency of court – An offence which is constituted by the same facts and may have been committed by the accused but the court trying is not competent to try such offence. Such offences can be tried later.
Discharge under Section 258 of CrPC – If an accused is discharged under Section 258 of CrPC then he cannot be tried again for the same offence except with the consent of the discharging court.
Section 188 of CrPC – If a person is liable under Section 188 of CrPC for an offence committed outside India then he will not be protected under Section 300 of CrPC i.e he can be tried again if the same offence has been committed again outside India.
Section 300 CrPC further states that it will not affect the provisions of Section 26 of General Clauses Act, 1897. Section 26 provides that if an act or omission is an offence under two or more enactments then the offender is liable to be prosecuted and punished under either or any of those enactments. Meaning thereby that if he is prosecuted and punished for an offence under one act then he cannot be prosecuted and punished for that offence under the other act which also provides for its punishment.
Article 20(2) of the Constitution of India
Article 20(2) prohibits prosecution for an offence more than once only in case prosecution followed by conviction i.e the accused has been both prosecuted as well as punished for the same offence previously. It is also necessary that the first prosecution must be valid and not null and void. Also the second punishment must be awarded in a fresh proceeding and such proceeding cannot be a continuation of the previous prosecution like in cases of appeal or retrial on appeal. The clause also does not prohibit two penalties for the same offence in the same proceeding as long as it does not entail multiplicity of prosecution.
The term prosecution is an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the punishment. So the following cannot be said to be prosecution within meaning of Article 20(2) :
Proceedings before an administrative or departmental tribunal.
Punishment under this clause includes only the ones granted by a criminal court and not by any statutory authority. Also that this clause has no application in cases of different offences though arising out of the same facts.
Landmark judgements
Maqbool Hussain. v State of Bombay (1950)
The facts of the case were such that the accused had brought undeclared gold into India from another country. Concerned authorities confiscated the gold under the Sea Customs Act VIII, 1878. Later charges were framed against the same person under Section 8 of the Foreign Exchange Regulation Act VII of 1947. Mr. Hussain claimed protection of Article 20 (2) of the Indian Constitution. No protection was granted to him as it was held that the Sea Customs authorities are not a court or tribunal for the application of Article 20(2).
Kalawati and Anr. v. State of Himachal Pradesh (1953)
In this case the accused was charged of murder under Section 114 and Section 302 of the IPC. The accused was acquitted and the state went on appeal. Appeal was challenged on ground of Article 20 (2). It was held in this case that Article 20(2) has no application if the subsequent proceeding is a mere continuation of the previous proceeding as in case of appeal against acquittal. Appeal from acquittal is a continuation of the original prosecution.
Thomas Dana v. State of Punjab (1958)
This case was concerned with smuggling of currency coins and other artefacts out of India. The currency and the goods were first confiscated by the concerned authorities and after that they also faced prosecution and were punished for the same. The plea of double jeopardy was brought before the Supreme Court of India. The Supreme Court held the following points for the applicability of double jeopardy:
There has to be a previous prosecution.
There has to be conviction in such prosecution
The offence involved must be the same.
Conclusion
The role of law in society is irrefutable and thereby the proper functioning of the legal machinery is a sine qua non for the effective disposal of the prescribed functions of the law in maintaining order in the society. The principle of double jeopardy is somewhat at the core of this thought. As multiple prosecution for the same offence will not only affect the litigant/accused adversely rather it will also hamper the definite value that judicial decisions have in our legal system. Not only is it a violation of the legal rights of an individual, it is also a violation of his/her human right. No person should be subjected to the harassment of facing multiple proceedings for the same offence as it will create unimaginable hardships for the litigant. The tool of legal proceedings will no longer be used to serve justice rather only to harass the other party. The Indian legal system has addressed such a scenario by means of Article 20(2) of the Indian Constitution and Section 300 of the CrPC. The Supreme Court has also dealt with the possibilities and intricacies of the same in various judgements clarifying the scope and ambit of the principle of double jeopardy as applicable in the Indian legal context. In this article the author has tried to clarify upon the provisions on double jeopardy in India and also various landmark judgements dealing with the issue. On a bare understanding, double jeopardy can be misunderstood to be only meaning multiple prosecution for an offence but a deeper analysis and study revealed as to how its application will vary depending upon particular fact and case scenario.
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Order 22 of CPC,1908 talks about the provision related to death, marriage and insolvency of parties. Under this order of CPC, in case of death marriage and insolvency of parties, what will happen to the suit of parties, what are the remedies available and what is the procedure to continue the suits, are discussed in this article. There are 12 rules under this Order .Rule 1 to 6,9 and 10A talks about the death of parties, Rule 7 talks about marriage and Rule 8 about the insolvency of parties.
Death of parties
Under Rules 1 to 6, 9 and Rule 10A , the concept related to death of parties are mentioned and discussed. When one of the parties to a suit dies, either the defendant or the plaintiff, the first question to arise is whether the right to sue survives or not. If the right to sue does not survive then the suit will be disposed of but in case it does survive then the suit will continue (Rule 1).
A brief discussion on death of parties
In cases where the only plaintiff in a suit dies and the right to sue survives to the legal heirs or representatives of the deceased plaintiff, then the suit can be continued by his legal representatives and heirs after filling an application before the court.
But if the right to sue does not survive then the suit can be dismissed by the court’s order. In case where the prescribed application is not filed within the period defined in the Limitation Act, 1963 (90 days), the matter shall be over. However, one can file an application for setting aside the order within prescribed limitations.
Where there are more than one plaintiffs and one of them dies and the right to sue survives to the surviving plaintiff or plaintiffs alone then the court will make a statement regarding the death of the plaintiff and proceed with the suit.
Where within the time prescribed or limited by law, no application is made then the suit shall abate as far as the right of the deceased plaintiff relates.
Where the death of the plaintiff takes place before the judgement and after the trial of the suit, the suit shall not abate and the judgement shall have the same force and effect as if it had been pronounced before the death took place.
No suit shall be filed against a dead person. Such suit shall have non legal effect, and such type of suit is non est means absent or a defence by way denial of a deed. But in cases where the plaintiff was unaware of the death of the defendant then he may file an application to make the legal heirs or defendant party to the suit, the court may permit to call upon the legal heirs or defendant as a party on record. After that the suit shall be deemed as having been filed on the day the plaint was presented . The court’s satisfaction breathes life into the suit. The same has been opined in the case of Karuppaswamy vs. C. Ramamurthy (1993).
Death of defendant
Where there are more than one defendants in a suit and one of them dies, the right to sue survives to the surviving defendants only. The court shall proceed with the suit to the effect of the surviving defendant.
In cases where only one defendant is in suit and he dies and the right to sue survives, then it can be continued against the legal heirs or legal representative of the deceased defendant. Where the plaintiff in the suit ignorant of the death of defendant and unable to make an application for the amendments in the legal heirs of deceased defendant within prescribed time and suit dismissed by the order of court, in this case the plaintiff may make an application to setting aside the order of abatement within the time prescribed under Limitation Act, 1963.
Legal representatives of deceased defendants may make any defence appropriate to his character as legal representative of the deceased. Where there is no application made within the time prescribed under the Limitation Act,1963 (90 days), the suit shall abate against the deceased defendant. Where the defendant dies before judgement and after the trial of the suit there shall be no abatement by reason of the death of the defendant and the judgement shall have the same force and effect as if it had been pronounced before the death took place.
In the case of Balwant singh(dead) vs. Jagdish Singh ( 2010), the court of law had read down the principal for not filing the application within prescribed time. If the sufficient cause for not making an application is not proved then the application for setting aside the order has to be dismissed on that ground. If the sufficient is shown then the court has discretionary power which indicates that a court may agree to accept a late appeal or application. The word sufficient cause is defined under Section 5 of Limitation Act, 1963 .
Duty of pleader : Rule 10A
The term “pleader” signifies a lawyer who pleads cases before the court. Order 22 Rule 10A inserted by the Amendment Act of 1976 defined the obligation of the pleader towards his client. In cases where the client dies, it is the duty of the pleader to convey the message of the death of his client to the court. Upon the death of a client, the contract between the pleader and client comes to an end. This provision is made therefore to impose an obligation on the pleader to inform the court about the death of his client. The court therefore gives notice of such death to the other party.
Provision related to marriage of party
The marriage of a female plaintiff or defendant shall not cause the suit to dismiss. The suit may proceed with judgement and when a decree is passed against a female defendant, then it may be executed against her only. In cases where the husband of a female defendant is liable for her wife’s debts then in this case the decree can be executed against him, with the permission of court. The rule related to marriage of the party defined under Rule 7.
Provisions related to insolvency of party
Insolvency of the party, defined under Rule 8 of Order 22 of CPC. According to this Rule, where the plaintiff becomes insolvent, the suit shall not abate and can be continued by his receiver or assignee for the benefit of his creditors.
But in case where the assignee and receiver declined to continue the suit or failed to pay the security cost, as ordered by the court, the court may on the application of defendant may dismiss the suit on the ground of plaintiff insolvency and awarding to the defendant the costs which he has incurred in defending the same to be proved as a debt against the plaintiff’s estate.
Rule 8, doesn’t apply in case of insolvency of the defendant; where the defendant becomes insolvent, the court may stay the suit or proceeding pending against the defendant.
Effect of abatement or dismissal
Under Rule 9 of CPC, where the plaintiff/defendant suit is abated or dismissed due to non-appearance of legal representative or heirs of the deceased parties, no fresh suit can be filed on the same cause of action. The only remedy available to the parties or person claiming to be legal representative of the parties is to file an application for setting aside the dismissed order under the prescribed time period. If it is proven that he was prevented by any sufficient cause from continuing the suit, the court shall set aside the abatement or dismissal upon such terms as to cost or without cost.
Assignment procedure before final order in suit
Under Rule 10 of Order 22 of CPC, the procedure related to assignment of interest is discussed. According to this Rule, when either of the parties to the suit transfer his or her interest to another, then the suit may with the permission of the court be continued against that person. According to this the trial of suit cannot come to end only by way of transfer of interest of the parties to another, but the suit may continue against that person in whose favour assignment or interest is made with the order of court.
Rule 11 and 12 CPC
Rule 11 talks about the application of order to appeals, according to this the word ‘plaintiff’ shall be held to include an appellant and the word ‘defendant’ a respondent, the suit an appeal.
Rule 12 about the application of order to proceed according to these rules 3, 4 and 8 shall not be applicable to proceedings in execution of a decree or order. Rule 3 & 4 Talks about procedure of death of plaintiff or defendant and Rule 8 insolvency of party.
According to Melepurath vs. Evelyn Sequeira (1986), on the death of parties where the right to sue is survived then the suit shall not abate. Whenever a party to suit dies the first issue which arises is that if the right to sue is survive or not. If the right to sue survives against the legal representative then the suit can continue.
In cases where the right to sue is held to be personal right which comes to end with the death of the parties to the suit and does not transfer to the legal representative then the suit shall abate.
Conclusion
The provision of death marriage and insolvency of parties are defined under Order 22 of CPC; it contains 12 rules. According to this order, when the parties to the suit, and/or one of them dies then the question arises whether the right to sue survives or not. If the right to sue survives then the court shall on the application made by the defendant’s or plaintiff’s legal representative or heirs on behalf of deceased parties to be made a party and shall proceed with the suit. The determination of question as to the legal representative of a deceased defendant or a deceased plaintiff such question shall be determined by the court. In case of marriage of a female party the suit shall not abate and may proceed with judgement and where the decree is passed against the female defendant it may be executed only against her. Where the husband of the defendant is by law liable for the debts of his wife then decree may, with the permission of the court, be executed against the husband also. In case of insolvency of the plaintiff, the suit may not abate but if the assignee or receiver might maintain it for the benefit of the creditors. In cases where assignee or receiver failed to continue the suit or give security within the time period, the defendant may apply for dismissal of suit on the ground of the plaintiff’s insolvency.
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Indian legal, socio-political, and socio-economic stratification, followed by the differential treatment meted out to the women and sheer biases in the garb of protection to them, isn’t new to us. We have seen a plethora of cases brought before the Hon’ble Supreme Court time and again that echoed the gender inequality deeply embedded in our society, which tells us the colonial hangover of gender discrimination is still not over. Cases like C.B Muthamma, Nargesh Mirza are some cruel reminders of the invisible intangible “Glass ceiling” that obstructs women from their daily avocations and pursuits by paving the way of intersectional divisions. The blatant violation of fundamental rights in the name of reasonable classification has indeed become commonplace in India. Hotel Priya vs. State of Maharashtra (2022) is one of those important cases which, despite the ambiguities in its judgement, stands out for its indisputable significance. This article discusses the same through the lenses of legal analysis.
Primary details of the case
Case No.
W.P. No. 7962/2010 and connected cases
Jurisdiction
SUPREME COURT OF INDIA
Case decided on
February 18, 2022
Judges
K.M. JOSEPH; S. RAVINDRA BHAT, JJ.
Legal provisions involved
Constitution of India, 1950 – Article 15 (1) and Article 19 (1) (g) , Licensing and Performance for Public Amusement including Cabaret Performance, Melas and Tamashas Rule, 1960
Facts of the case
The case revolves around the issue of imposition of a gender cap on a number of performers in Orchestra Bars. The appeal of this case stems from a judgement of the High Court of Bombay (and an order which followed it subsequently), which upheld the conditions imposed under the order dated 12.09.2009.
The material facts of the case were as follows:
The appellants, with the requisite licences and permissions, were either owning or operating the restaurants and bars in Mumbai. Orchestra performances were a common feature on these premises. Hence, they go by the appellation “Orchestra Bars”.
To run an orchestra bar, the owners of the bars were required to obtain the license and permission for the same under Licencing and Performance for Public Amusement, including Cabaret Performance, Melas and Tamashas Rule, 1960. (hereafter “Rules, 1960”). The police commissioner has the discretion to exercise his powers and to impose conditions under this rule. Petitioners challenged two of these conditions, which are:
The licensee is permitted to keep only four female singers or artists, and four male singers or artists present on the permitted stage.
A maximum of eight artists are permitted to be present on the stage.
Prior to the appeal, when the case was presented before the Bombay High Court, contentions were made against the arbitrary imposition of discriminatory conditions violative of Articles 14 and 19 (1)(g) of the Constitution of India under the Mumbai Police Act, 1951. But these contentions were rejected, and the challenge against the draconian principles of the said Act was also discarded by the Hon’ble High Court, and it was held that the Commissioner was at liberty to issue such conditions as were essential for the operation of the orchestra bars and he acted well within the scope of his powers.
After the rejection of the writ petition, the appellants brought the case before the Hon’ble Supreme Court with the same contentions of unconstitutionality of the conditions imposed under the Mumbai Police Act. Although the alarming questions involved in this case weren’t addressed by the Bombay High Court, the Supreme Court took an unprecedented stand on it and reversed the order of the Bombay High Court.
Contention of the parties
Arguments by the appellants
Pleas submitted by Mr Prasenjit Keswani and Mr Manoj K. Mishra, the learned counsels appearing on behalf of the appellants, questioned the legality of the conditions laid out in the Mumbai Police Act, 1951. The imposition of restraints and restricting the number of performers coupled with the restriction on the gender of the performers in the orchestra bars is violative of the basic fundamental rights. The permutation and combinations of bands differ from place to place. There are all male bands, and then there are all female bands too. This numerical restriction put forth by the Mumbai police and limiting it to four males and four females will have the impact of altogether prohibiting the participation of such bands.
The diversification in the composition of the orchestra bands is dependent upon the wishes of the organisers themselves. They are at liberty to form their bands as per the convenience of the business. There’s no rationale in the rigid numerical division of equal gender participation as it abridges the rights and liberty of the performers. Counsels further extended their argument by the inclusion of transgender people in their pleas, as these conditions are discriminatory towards transgender performers as well. However, restricting the overall number of performers to eight might be left indisputable. Further, the imposition of a gender cap is a sheer violation of fundamental rights, and neither can be called a reasonable classification.
The appellants further submitted that these arbitrary conditions, notwithstanding the fact that it got upheld by the High Court, continue to pose a serious threat to the larger interests of public mortality and are, therefore, unreasonable in every aspect.
Arguments by the respondents
The arguments presented by the learned counsels from the respondents’ sides reflect a different perspective altogether. Mr Sachin Patil, learned counsel appearing on behalf of the respondents, stated that the history of the legislation establishes the fact that orchestra bars are no different from dance bars. The same women who were employed in these dance bars got employed in the orchestra bars as well. These bars are exploitative in nature as they merely exploit, humiliate and objectify women by making them perform obscene dance moves and, at times, engage in sexual activities with their customers. The condition of restricting the number of women performers to four is in accordance with Article 15 (3) and has been stipulated for the protection of women employees/artists.
It was further submitted by the respondents that out of 254 establishments where orchestra shows were held, only three of them raised objections against the conditions, and they already have some criminal records in their names as well. It was also stated that not a single performer/artist challenged these conditions.
Counsels also stated that the impugned conditions aren’t violative of Article 14 as it’s clearly based on the intelligible differentia. The contentions of the appellants that these conditions failed the test of reasonable classification were also denied by the respondents. They stated that to violate Article 14, two conditions must be satisfied:
That the aggrieved person has been treated differently from others and also from similarly situated persons and
Such treatment has to be meted out without any rational basis or justification
The impugned conditions were already applicable to all 254 establishments, and equal numerical divisions were laid down for every one of them. It is not the case that fewer women have been permitted or vice versa. Hence, it’s not against the reasonable classification.
It was contended by the respondents that the impugned conditions aren’t violative of Article 19 either, as the conditions imposed are reasonable restrictions which intend to protect the dignity of women and prevent their exploitation.
Observation of the Court
While passing the verdict on this case, the Apex Court heavily relied on the precedents. The Hon’ble Bench also took earlier litigation involving women’s participation in Mumbai institutions into consideration prior to diving into the current dispute.
“This court is no new to problems involving bans and restrictions on women’s participation in performances in Maharashtra establishments,” it noted.
The Court quashed all the arguments put forth by the respondents and also remarked that the gender cap imposed arbitrarily in the name of reasonable classification and protection of women appeared to be the outcome of a stereotyped preconceived perception that women who performed in bars and institutions belonged to a “particular class of society,”.
The Hon’ble Court also made an important observation that these impugned guidelines/conditions aren’t aiming to protect the women from exploitation rather, it’s exploiting the women more by unreasonably making these numerical restrictions.
“We do not intend to further the rhetoric of empty rights. Women would be as vulnerable without State protection as by the loss of freedom because of the impugned Act. The present law ends up victimising its subject in the name of protection. In that regard, the interference prescribed by the State for pursuing the ends of protection should be proportionate to the legitimate aims. The standard for judging proportionality should be a standard capable of being called reasonable in a modern democratic society.” SC remarked.
The Court also held that the conditions which impose a gender cap as to the number of women or men who can perform in orchestras and bands under the Rules, 1960 provision, is null and void. While the overall limit of performers, i.e. eight, was held as valid.
The Court further clarified that if any performance was of a vulgar nature that promotes obscenity, it would be punishable under Section 294 of the Indian Penal Code, 1860, and the bar which permitted the obscene will lose the licence.
As a result, the Court granted the appeal and overturned the Bombay High Court’s decision.
Critical analysis of the case
Nobody is entitled to absolute freedom. In fact, all of our fundamental rights are subject to certain restrictions. Freedom of profession, trade or business is undoubtedly the right guaranteed by Article 19(1(g) of the Constitution of India, but again, it comes with certain “reasonable restrictions”. We tend to neglect the term reasonable while imposing restrictions, which eventually jeopardises our rights and leads to arbitrariness. It mostly happens when the people having the power to exercise their authority misuse that power and take undue advantage of it.
In this case, the Apex Court addressed the unreasonable restrictions of the Mumbai Police, which is indeed a salutary decision, yet the verdict gives rise to some ambiguities and questions as far as the transgression of Article 15(1) is concerned. Undoubtedly the gender cap is discriminatory in nature and as stated by the Court “Practices or rules or norms are rooted in historical prejudice, gender stereotypes and paternalism have no place in our society”
Although the restriction is imposed on the basis of gender, but it isn’t indeed a direct discrimination on the basis of gender since what it prescribes is an equal number of men and women in the context of an overall cap of eight performers. The Hon’ble Supreme Court could have clarified those instances where the all-female bands of all male bands perform in these orchestra bars.
The Supreme Court was required to demonstrate the clear cut demarcation between direct and intersectional discrimination. On the face of it, the division of performers is symmetrical but indeed it’ll have an asymmetrical impact on women which will be an indirect discrimination. The judgement is indeed correct and applaudable but in my view, it suffers from a conceptual confusion for not defining the fine line that exists between the direct and indirect discrimination. Had it been articulated in the verdict, it would’ve indeed opened a new door to the still-nascent Indian Jurisprudence on Indirect discrimination.
Conclusion
The glass ceiling and all the silent battles women fight every day to secure the opportunities which they’re entitled to aren’t easy to overcome. Time and again, they fall prey to such inequalities because no matter what we have in our Constitution or in the Statutory provisions, people will continue to neglect it by putting up the wall that separates women from their freedom, especially in employment opportunities.
The judiciary has brought a lot of radical changes in the Indian legal system through historic cases and judgements. Cases like Sakshi vs Union of India (2004) ( which focused on the violence and sexual assault against women) and Joseph Shine vs Union of India (2018)(which dealt with the decriminalisation of adultery) have had a deep impact by making society reevaluate their norms and values which have always been parochial and regressive towards women. Yet, we can’t absolutely deny the fact that there’s still much left to do. Through the dynamic evolution of Jurisprudence and salutary verdicts like this, the Judiciary can restore our faith in poetic justice only if we can strive to bring the required changes in the social mindset, with the aim to achieve the ends and to see systemic improvements.
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This article has been written by Aarushi Mittal, a student of National Law University Odisha, Cuttack. This article delves into the doctrine of waiver, exploring its evolution, features, and all the important landmark judgements and decisions concerning it in India.
Citizens of a country are entitled to a number of rights, including statutory rights, fundamental rights, contractual rights, and legal rights. These rights are extended to all individuals equally, without any discrimination or bias. They are extremely important for the citizens of a country, and it is the duty of the State to recognise and protect these rights.
The Indian Constitution provides for the doctrine of waiver, which deals with the exercise of these rights. The doctrine of waiver is an important constitutional principle that allows a person to voluntarily give up or surrender their rights under certain circumstances. It allows or gives an individual the choice to relinquish or waive certain rights that they are entitled to. This article takes a look at the doctrine of waiver, shedding light on its features and evolution. It also covers the important judgments in India relating to the doctrine and examples of situations where the same has been exercised by citizens.
What is the doctrine of waiver
A waiver is the act of voluntarily surrendering, relinquishing, or abandoning a right or claim. It is an intentional and informed decision made by an individual. The doctrine of waiver is the power of a person to willingly (by one’s own choice), give up or forgo some rights or certain privileges that are available to them. In India, this doctrine allows for the waiver of those rights and privileges that are guaranteed by the Constitution of India.
To put it simply, the doctrine of waiver is the right of a citizen to give up certain rights. By doing so, these individuals free the other party from the responsibility of not violating their rights. The basic premise of this doctrine is that a person has the independence and right to make their own choices, and this choice could extend to abandoning their own rights consciously and willingly. Under certain circumstances, such as business dealings, contracts, disputes, property sales, legal proceedings, etc., an individual can choose to voluntarily waive the rights guaranteed to them under law.
This doctrine, however, does not extend to the fundamental rights of an individual. These fundamental rights, namely, the Right to Equality, the right to Freedom, the right against Exploitation, the right to Freedom of Religion, Cultural and Educational rights, and the right to Constitutional remedies, are essential as they protect the liberty and freedom of an individual and cannot be waived.
Additionally, the doctrine of waiver encourages flexibility in legal proceedings by making sure that the parties are not bound to strictly stick to their rights. It recognises the fact that in certain cases, it is more favourable to the person to abandon their rights. There are, however, limitations and conditions to the doctrine of waiver. The fundamental rights of a person must be waived willfully, with full knowledge and understanding of the outcome of such a decision. A person can not be forced or coerced into surrendering their rights. Waiving a right means that such a right cannot be claimed by that individual, and they cannot approach the court to challenge its violation. To put it simply, the individual can no longer enjoy any of the benefits under the said right.
Throughout the course of this article, we will take a deeper look into the doctrine of waiver in India by examining its nature, features, and significance within the legal framework of our country.
Features of the doctrine of waiver
The following are the essential features of the doctrine of waiver:
Knowledge
It is absolutely essential for the individual waiving or giving up their rights to know about the basic inherent features of this doctrine as well as the outcome of exercising this waiver. It is not necessary for the person to have absolute and complete knowledge of the exact purview of the waiver but they must have at least a basic and broad understanding of the same.
Intention
Intention is a vital component of the doctrine of waiver. Without the presence of intention, the rights of an individual cannot be waived. This intention may be express or implied. In an express waiver of rights, the intention is inferred from the statement of waiver or through writing, while in an implied waiver, the intention is inferred from the act or conduct of the individual wanting to waive off their rights.
Voluntary
A person must waive off their rights wilfully, i.e., entirely by choice. There should be no coercion or force involved in the waiver.
Existence
It is only when a certain right or privilege exists, that it can be waived.
Relevance
The doctrine of waiver is an extremely important right, and its non-applicability to certain rights of a citizen (constitutional rights) makes it exceedingly relevant. Due to this limitation, it successfully restricts the authority of the legislature. If the doctrine was applicable in India, a person could give up their rights in exchange for some benefits offered by the State.
The doctrine of waiver is a very significant legal principle. In India, the various court decisions and judgements make sure that their applicability and constitutionality are clear to the people.
Limitations of the doctrine of waiver
As discussed above, the doctrine of waiver is an important legal principle. Since the doctrine involves relinquishing the rights of an individual, it is restricted by certain conditions or limitations to prevent misuse and protect the interests of citizens. Firstly, it is necessary that the waiver be exercised wilfully or voluntarily. There should be no coercion, force, duress, undue influence, etc. involved in the decision-making. If the decision is not made voluntarily, the waiver will be invalid. Secondly, the individual must have complete knowledge of the consequences of the waiver. Finally, the doctrine of waiver does not extend to fundamental rights. To put it simply, an individual cannot give up or waive the fundamental rights guaranteed to them under Part III of the Constitution.
Evolution of the doctrine of waiver in India
The doctrine of waiver has existed in India since time immemorial. It is considered to have been prevalent even before the judiciary was instituted in independent India. Before independence (in 1945), the Bombay High Court, in the case of Phoenix Mills Ltd. v. M.H. Dinshaw, ruled that India’s doctrine of waiver was different from the doctrine of waiver found under English law. It further stated that this doctrine could be found in Section 63 of the Indian Contract Act, 1872.
Since then, there has been considerable progress in the interpretation of the doctrine of waiver through many court judgments. This has extended way beyond the limits of contractual rights. In India, an individual can give up the rights given to them by statutes or the rights arising out of contracts. However, they cannot waive or forgo any rights guaranteed by the Constitution, i.e., constitutional rights.
In the case of Fundamental Rights, it is a widely accepted concept that these are a part of the Constitution, not only for the individual’s benefit but also because they are also an element of public policy (as held in Behram Khurshed Pesikaka v. the State of Bombay (1954)). It was further held that such rights, which are part of public policy, cannot be relinquished. The Constitution ensures that the State protects these rights. It is important to note that although the concept of Fundamental Rights was borrowed from the United States of America, where these rights can be waived, the same is not followed in India. The same was established in the case of Bashehar Nath v. Income Tax Commissioner (1959). It decided on the applicability of the doctrine of waiver to fundamental rights and ruled that fundamental rights in India could not be waived. These important judgements are discussed below in more detail.
Landmark judgments relating to the doctrine of waiver
Phoenix Mills Ltd. v. M.H. Dinshaw and Co (1945)
Brief facts of the case
In the case of Phoenix Mills Ltd. v. M.H. Dinshaw and Co. (1945), the parties had entered into a contract wherein the defendants were to supply certain dyeing and bleaching supplies at a fixed rate to the plaintiff, subject to certain terms and conditions. The agreement was a CIF (Cost, Insurance and Freight) contract. The plaintiffs paid one-third of the amount to the defendants before the goods were delivered. They wrote multiple letters to the defendant, inquiring about the arrival of the goods. The defendants responded, asking for the remaining amount, after which they would transfer the bill of lading and enclose with the letter a bill (containing a description of the goods and details of the total amount, balance, and amount paid). However, the plaintiffs pointed out that, as per the terms of the contract, the balance amount was to be paid only once the bank confirmed receipt of the shipping documents. Since the defendants assured them of the arrival of the shipping documents, they went on to pay the remaining amount. However, the only document given to them following the transfer of the balance was the bill of lading. The plaintiffs filed a suit for the return of the entire amount paid by them as the defendants failed to perform their obligations under the contract. They contended that the defendants only gave them the bill of lading and failed to deliver the other documents, such as the original invoice and the proper insurance policy. However, the defendants argued that the plaintiffs had waived their right to the original invoice and policy of insurance when they paid the remaining amount.
Issues involved
The main issue was whether the rights of the plaintiffs had been waived since they had accepted the bill, which included a certificate of insurance, and proceeded to pay the remaining amount. It was argued by the defendants that since the plaintiffs had accepted the certificate of insurance as a proper document under the contract, they were not entitled to claim that the defendants did not fulfil their obligations. The court also looked into whether the bill sent by the defendants constituted a proper invoice under a CIF contract and asked questions regarding the policy of insurance.
Judgement and observations made by the court
This was one of the earliest cases in India where the courts ruled on the doctrine of waiver. The Bombay High Court held that the laws concerning the doctrine of waiver in India were not similar to those in England. The court stated that the doctrine of waiver laws in England was contractual in nature and was either supported by a seal or involved some consideration. In India, however, the doctrine of waiver could be found in Section 63 of the Indian Contract Act, 1872, and had more to do with waiving entirely or partially the performance of a contract or allowing the acceptance of any other satisfaction (except the promise). The court ruled that there was no waiver under Section 63 as the mere omission or negligence on the part of the plaintiff could not be inferred as him giving up such a valuable and important right.
Behram Khurshed Pesikaka v. The State of Bombay (1954)
Brief facts of the case
The case of Behram Khurshed Pesikaka v. The State of Bombay (1954), was a special leave petition that appealed the decision of the High Court of Judicature in Bombay. The appellant, who was the Regional Transport Officer in Bombay, was driving towards a bus stand when his vehicle knocked down three people. The appellant was arrested by the police. He was then taken to the hospital to check whether he had been consuming liquor. Although his breath smelled like alcohol, his speech was coherent, he could walk in a straight line, and his pupils were semi-dilated and reacting to light. The doctor concluded that he wasn’t under the influence of alcohol but had consumed it in some form or another. The appellant was tried before the Presidency Magistrate for causing grievous harm to three individuals by his rash and negligent acts (Section 338 of the Indian Penal Code) and under Section 66(b) of the Bombay Prohibition Act. During the trial, he stated that he had not consumed liquor but had taken the medicine prescribed to him, which contained a small percentage of alcohol. The Presidency Magistrate acquitted him of both offences. The respondents filed two appeals before the High Court (HC) against both of these cases. The HC confirmed the acquittal under Section 338 but reversed the order under Section 66(b). The same was appealed before the Supreme Court.
Issues involved
The offence under Section 66(b) with which the appellant was charged was alleged to have occurred four days after the judgement in the case State of Bombay v. F.N. Balsara(1951). The Balsara case challenged the constitutionality of certain provisions of the Bombay Prohibition Act. This Act came into force in 1949 and was found to impose unreasonable restrictions on the rights guaranteed under Article 19(1)(f) of the Constitution. The court, therefore, declared certain provisions of the Act invalid. While delivering the judgement in the case of Behram Khurshed, neither the Presidency Magistrate nor the High Court bench mentioned the Balsara judgement. The Supreme Court, on hearing the appeal in this case, made its decision after accepting the position of the court in the Balsara case.
Judgement and observations by the court
It was in this case that the Supreme Court held that the concept of doctrine of waiver that was borrowed from the American Constitution could not be replicated blindly in the Indian Constitution, i.e., without proper thought. The bench quashed the conviction of the appellant. The court believed that the fundamental rights mentioned in Part III of the Constitution are an essential part of the Constitution since India is a sovereign democratic republic. It was also observed by the court that these rights were based on fundamental principles specified in the Preamble. Further, apart from guaranteeing privileges and rights to an individual, since these rights played an important role in public policy, the Court reasoned that they could not be waived. Thus, the Supreme Court ruled that the doctrine of waiver did not apply to all those laws that have been established on the basis of constitutional policy.
Manak Lal v. Dr. Prem Chand (1957)
Brief facts of the case
In the case of Manak Lal v. Dr. Prem Chand (1957), the appellant, Manak Lal, was an advocate practising at the Rajasthan High Court. A complaint was filed against him under Section 13 of The Legal Practitioners Act (1879) by Dr. Prem Chand Singhvi. It was alleged that he was guilty of professional misconduct and that appropriate action be taken against him. An enquiry was held by a Tribunal nominated by the Chief Justice of the High Court of Rajasthan. The Tribunal found the appellant “guilty” of the charges. The High Court, on receiving the findings of the tribunal, ruled that the appellant be removed from practice. On this High Court order, the appellant filed an appeal before the Supreme Court.
Issues involved
It was contended that the Tribunal appointed by the learned Chief Justice of the Rajasthan High Court was improperly constituted, and therefore the findings of the Tribunal, the report submitted, and the order of the court were all invalid. Another issue pertaining to this case was whether the appellant could take this case for the first time before the High Court. To put it simply, had he not waived his right to object in this court since he had failed to object before the Tribunal.
Judgement and observations by the court
This case established what constitutes a waiver. The court observed that the failure of a party to object (once it is established that the party was aware of their right to protest), amounts to a waiver of said right. However, the court agreed that a waiver could not be inferred in every case where the party failed to take up their objections.
Basheshar Nath v. Income Tax Commissioner (1959)
Brief facts of the case
In the case of Basheshar Nath v. Income Tax Commissioner (1959), the appellant had filed a special leave petition challenging the validity of the agreement made by him under Section 8A of the Taxation of Income Act. He contended that Section 5(1) of the Taxation of Income Tax Act (on which Section 8A of the same Act had been founded) was declared void by the court and hence his property should be released. However, he was informed by the Commissioner of Income Tax (CIT) that the agreement was in fact valid and he was required to pay the money due by him. The respondents argued that the appellant had waived off his fundamental rights by willingly entering into the agreement, and therefore its validity could not be challenged by him.
Issues involved
The Supreme Court, in this case, ruled on the constitutional validity of the waiver of fundamental rights. It also looked into whether the settlement made under Section 8A of the Taxation of Income Act was valid. However, this judgement was the landmark decision where the court ruled on whether a fundamental right guaranteed by the Constitution could be waived or not.
Judgement and observations made by the court
The majority decision, in this case, stated that Article 14 of the Constitution seemed to be a direction to the State to ensure equality rather than the right of an individual. Therefore, it was held by the court that no citizen can waive or give up the fundamental rights mentioned under Article 14.
The Court further held that it was not just Article 14, but this extended to all the fundamental rights granted by the Constitution, and none of them could be waived by an individual. The judges observed that the Indian Constitution did not discriminate between fundamental rights passed in the individual’s interest and those passed for the public’s benefit. It was thus reasoned that there was no basis for us to blindly copy the American laws and its interpretation of the doctrine of waiver.
Justice S.K. Das delivered the dissenting judgement in this case. Since the preambles of the Indian and American Constitutions contained nothing to make the doctrine of waiver applicable to one and not the other, he was of the opinion that fundamental rights could be subject to waiver by an individual. He stated that as the doctrine of waiver applied to constitutional rights in America, there was no reason it shouldn’t apply to the fundamental rights of India.
Jaswant Singh Mathura Singh and Anr v. Ahmedabad Municipal Corporation and Ors (1991)
Brief facts of the case
In the case of Jaswant Singh Mathura Singh v. Ahmedabad Municipal Corporation and Ors (1991), the appellant was in possession of a plot. Following the Town Planning Scheme framed by the respondent, the plot was altered and re-constituted. The appellant claimed to have suffered damages as the scheme had the effect of terminating his possession and also adversely affecting his business. He filed a suit in the Trial Court challenging the action as the respondent (Municipal corporation) had not sent him a notice as required by the law (Rule 21(3) of the Bombay Town Planning Rules 1955). The Trial Court issued a permanent injunction, restraining the corporation from altering the plot until due process was followed. The corporation filed an appeal in front of the High Court, which set aside the decision of the Trial Court and dismissed the suit. The tenant then approached the Supreme Court, which allowed the appeal and decided to hear the case.
Issues involved
The court looked into whether compliance with sub-rule 21(3) was mandatory or not. Since sub-rule 21(3) was just an additional advantage, the main question before the court was whether it was dispensable and could be waived.
Judgement and observations made by the court
The Supreme Court of India held that an individual has the right to waive an advantage or a privilege that is guaranteed to them by law that might benefit them. The Court observed that this waiver could be exercised by the issuance of a notice to a party, and their non-response to the same. For instance, in the case of a dispute between the tenant and owner, when a notice is issued by the court and both parties (tenant and owner) fail to reply, it would amount to a waiver. The parties would not be entitled to turn around at a later stage.
Waiver of contractual rights in India
Section 63 of The Indian Contract Act, 1872 covers the waiver of an individual’s (specifically the promisee’s) contractual rights. Even though it does not explicitly mention the term waiver, the same has been interpreted by the courts in multiple cases. In certain scenarios, such as when a contract is defaulted, the affected party may voluntarily (or willingly) give up the right or privilege they were entitled to. Under this Section, parties to a contract are statutorily allowed to abandon any contractual obligations or performance arising from the same before or after the breach of the contract.
As per the provisions concerning waiver of contractual rights, the promisee can:
forgo the complete performance of the contract, which results in the promisor having no responsibility relating to the contract, or,
forgo only a specific part of the contract. In such a case, the promisor is responsible to the promisee for those parts of the contract that are not waived, or,
grant an extension in the time for performing the obligations under the contract. In such a case, the original decided time period is considered invalid. However, this extension must be given voluntarily and be mutually consented to by the parties, or,
accept a reduced performance from the promisor, by waiving off the original obligation required under the contract. This reduced amount or performance can also be made by a third party on behalf of the promisor to the promisee. (Illustrations (b) and (c) in Section 63)
An important aspect of waiver under contracts is that it neither leads to nor requires any amendment to the original contract, nor is any consideration involved or needed to attain the waiver (as held in the case of Jagad Bandhu Chatterjee v. Nilima Rani and Ors 1969). Further, such a waiver can be revoked by giving fair notice of such withdrawal. As per the courts, such notice must be reasonable and within a justifiable time period; otherwise, the waiver cannot be revoked.
Waiver of statutory rights in India
The doctrine of waiver in India also includes the abandoning of those rights and privileges that are granted to citizens by statutes or legislation. However, there exists an exception to the same, which has been established by multiple court judgements and their interpretations. In the case of All India Power Engineer Federation v. Sasan Power (2016), the court held that an individual cannot waive statutory rights relating to public policy or that have been passed in the interest of the public. The same was held in a number of older cases, such as Lachoo Mal v. Radhey Shyam (1971) and Krishna Bahadur v. Purna Theatre (2004) This rule is based on the legal maxim quilibet potest renuntiare juri pro se introducto, which means that all the conditions laid down by a statute are dispensable only if the statutory conditions were not added to the legislature in the public interest. The same was referred to by the Supreme Court in Murlidhar Agarwal and Anr v. State of U.P. and Ors (1974).
Furthermore, in the case of Shalimar Tar Products Ltd. v. H.C. Sharma and Ors (1987), the Supreme Court held that the waiver of an individual’s rights is decided based on the facts and circumstances of the case. It may vary depending on the nature and circumstances surrounding a case. Essentially, the following conditions must be met if a statutory right is to be waived (as held in the Lachoo Mal case):
The individual or party must directly benefit from the right that is subject to the waiver. For example, statutes on gratuity (Payment of Gratuity Act, 1972), maternity benefits (The Maternity Benefit Act, 1961) etc. are some such rights that benefit the individual directly.
The right in question should not relate to any matter of public policy or public interest. This can be determined by examining the legislative intent behind enacting a statute.
Waiver of fundamental rights in India
As mentioned earlier, India borrowed the principle of waiver from America. However, there is a huge difference in its application in both countries. Fundamental rights are also known as the Magna Carta of India. Under Indian law, these rights cannot be waived, as was held by the five-judge bench of the Supreme Court in the landmark Basheshar Nath case. The courts have repeatedly stated that the fundamental rights found in Part III of the Constitution benefit not only the individual but are also an integral part of public policy and hence cannot be subject to the doctrine of waiver. Such rights exist for the welfare and good of society and cannot be abandoned. On the other hand, the fundamental rights in the American Constitution are intended to benefit individuals’ rights in particular as opposed to society at large. The case also established that the basis for granting a waiver should not be the source of the right, i.e., whether it is a statutory, constitutional, or contractual right. Instead, it was held that the basis of deciding should be in whose interest was the right accorded (public or the individual).
In the case of Trilokchand Motichand and Ors v. H.B. Munshi and Anr (1968), the court decided on the question of whether a person could lose his fundamental rights by his conduct, particularly a delay. Here, the petitioner filed the case after ten years, which was then dismissed on the grounds of delay. However, the bench disagreed on what the reasonable time period to dismiss a case would be. It was held that since the subject in question was the fundamental right (Article 32) of an individual guaranteed by the Constitution, the matter was to be dealt with sensitivity and care. The bench decided that such a time period should be determined on a case to case basis after looking into the facts and circumstances specific to that situation.
Waiver of the right to object under arbitration
Parties in arbitration have to meet certain requirements and comply with particular provisions of the arbitration agreement. In the event that a party fails to do so, the other party has the right to object within a specific time period without any delay. However, if they voluntarily choose not to and continue with the proceedings, they are considered to have waived their right to object. This waiver of the right to object is laid out in Section 4 of The Arbitration and Conciliation Act (1996). Here, the mere silence of the party amounts to a waiver of their rights.
This concept is based on the principle of good faith. It requires that as soon as the party learns about non-compliance, they must object without any unreasonable delay. This also prevents multiple interruptions and objections at different stages in the arbitration proceedings. If the objection is not raised at an appropriate time, it will not be considered at a later stage. However, a party objecting after a delay must provide a reasonable justification for the same (as held in Narayan Prasad Lohia v. Nilkunj Kumar Lohia and Ors (2002)).
Examples of waivers in real life
Many sports persons and athletes sign waivers before they can play for the team. Since their profession involves high risks and injuries, their employers provide them with waivers to sign off on. These waivers are a kind of exempt from liability form that states that a person chooses out of their own free will to engage in a potentially dangerous or risky activity, and that any accident or harm suffered by them in the course of the same activity will not be the employer’s or management’s responsibility (as the case might be). Similar waivers are signed by people wishing to engage in skydiving, scuba diving, parasailing, skiing, surfing, etc. Even parents sending their children on school trips or summer camps sign waivers.
Similarly, when a person is arrested, under Article 20(3) of the Constitution, they have the right to remain silent (they cannot be forced to be a witness against themselves). However, if a person voluntarily chooses to speak and incriminate themselves, they have waived their right against self-incrimination.
Difference between estoppel and a waiver
Both a waiver and estoppel prevent an individual from challenging the constitutionality of a law. However, there are several important differences between the two. A waiver is the voluntary abandonment or giving up of a right by an individual. On the other hand, an estoppel is a barrier or hindrance to a person, preventing them from going back or denying a statement previously made in court. A waiver can be a cause of action used to claim damages, whereas an estoppel is not a cause of action, but assists in carrying out a cause of action. It is used as a defence (as evidence) in court. The courts have laid out the differences between estoppels and waivers in the below-mentioned cases.
Municipal Corporation of Greater Bombay v. Dr. Hakimwadi Tenants’ Association and ors (1987)
Brief facts of the case
In the case of Municipal Corporation of Greater Bombay v. Dr. Hakimwadi Tenants’ Association and Ors (1987), the Municipal Corporation published a draft Development plan that reserved the land in a dispute for a recreation ground. The plan was finalised and approved by the government. There was no action taken to acquire the land, so the trustees of the land served a notice to the Commissioner to either acquire the land or release it from acquisition. The government issued a notification for the acquisition of the land, however, the same was quashed by the High Court since the Corporation had not followed due process of law. They had not made the application for the acquisition of the land within the stipulated time period (six months) from the date of the purchase notice being served.
Issues involved
The court looked into whether the respondents had waived their right to challenge the acquisition proceedings since there was an unreasonable delay on their part. However, the court found that there was no such waiver or forgoing of rights by the respondents.
Judgement and observations made by the court
The Supreme Court held that the essence of waiver is estoppel, and where there is no estoppel, there is no waiver. It was further observed that both waiver and estoppel depended on the facts and circumstances surrounding the case.
Olga Tellis and Ors v. Bombay Municipal Corporation and Ors (1985)
Brief facts of the case
In the case ofOlga Tellis and Ors v. Bombay Municipal Corporation and Ors (1985), the petitioners were the slum dwellers in Bombay. They lived on the sidewalk and footpaths near their place of work to save money and time. The petition was in the nature of a public interest litigation challenging the forceful eviction of the slum dwellers and the demolition of the pavement. The petitioners claimed it to be violative of the fundamental rights prescribed under Articles 14, 19 and 21 of the Constitution and that the court must direct the respondents to stop the demolition and restore the possession of the sites to its original occupants.
Issues involved
It was found that the eviction of the slum dwellers would lead to the deprivation of their livelihood thereby violating Article 21 of the Constitution. However, as per the procedure prescribed under Section 314 of the Bombay Municipal Corporation Act, the removal of encroachments on pavements, footpaths, or any other place meant for public purposes is not unreasonable. The court, despite upholding the validity of Section 314, gave the pavement dwellers alternate pitches at some other convenient place which was deemed reasonable by the government but of similar distance to the previous dwelling.
Judgement and observations made by the court
It established that there could be no estoppel against the fundamental rights laid down in the Constitution. Since the Constitution is the supreme law of the land and protects the rights of the public it could not be subject to the doctrine of estoppel. It further held that the appeal for estoppel was closely related to the plea for a waiver.
Krishna Bahadur v. M/s Purna Theatre and Ors (2004)
Brief facts of the case
In the case of Krishna Bahadur v. M/s Purna Theatre and Ors (2004), the workman was appointed as the messenger in the Cinema house (respondent). Disciplinary proceedings were initiated against him, and he was found to be ‘guilty’. Subsequently, he was removed from services. The Tribunal hearing his case, set aside the dismissal and ordered full back wages and compensation. He rejoined the services but was not paid the back wages. Furthermore, within one month of his rejoining, he was retrenched from services. A suit was filed against the respondent on grounds of insufficient compensation and illegal retrenchment. The tribunal, after granting him additional compensation, deemed his retrenchment as illegal and directed that he continue in service with all benefits. The respondent filed a writ petition before the Calcutta High Court which was dismissed. The respondent then proceeded to file an appeal before the Supreme Court.
Issues involved
The court looked into whether the act of the workman accepting the compensation in addition to the notice of retrenchment without any objection amounted to a waiver. The court observed that since the employer bonafidely paid the compensation along with the notice of retrenchment which was accepted by the workmen, the workman had waived his rights to challenge the retrenchment. Additionally, a major part of the compensation was paid and went unopposed until it was objected to before the tribunal.
Judgement and observations made by the court
The Supreme Court of India held that although the doctrines of waiver and estoppel were similar in principle, they differed on the basis of cause of action. The court observed that estoppel was not a cause of action but, in fact, a rule of evidence. On the other hand, a waiver may constitute a cause of action. Additionally, it was held that the statutory rights of a person can be waived subject to the condition that there is no public interest involved.
Conclusion
According to the courts, a waiver has been established to be the intentional abandonment of a right, either express or implied. An individual possesses the right to abandon any right, statutory or contractual, granted to him or her. However, the fundamental rights of a person are not subject to this doctrine. There are also limitations on the waiver of contractual and statutory rights, as discussed in the article. In this way, the doctrine of waiver manages to check the power of the individual. It protects the interests of both the individual and society as a whole. Through the various judgements and judicial interpretations of the doctrine of waiver, the courts have struck a balance between social control and personal liberty.
No, a waiver cannot be used to enforce an illegality, as was held in the case of Waman Shriniwas Kini v. Ratilal Bhagwandas and Co (1959). In this case, a plea of waiver was taken for the first time in court arguments. The court found that such a plea could not be raised because giving effect to it would result in the enforcement of an illegal agreement.
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The term “biotechnology” was first coined by a Hungarian engineer named Karl Ereky. It was used to describe the science and processes that enable things to be made from raw materials with the help of living organisms. In a 1917 German paper detailing his pig fattening facility, he coined the word “biotechnology” for the first time. He proposed the term “biotechnology” to describe the branch of technology related to living things, using the analogy of “chemical technology.”
Biotechnology is the use of biological processes for commercial, scientific, industrial, and other purposes. This includes genetically engineering microbes to produce drugs like antibiotics and hormones. Biotechnology is a cross-disciplinary science, and it intersects lives at multiple points, be it agriculture, industrial biotechnology, clean energy, biopharmaceuticals, or health care. Biotechnology is the genus, while modern biotechnology is the species or a subset.
The ability of a nation to innovate new technologies that compete at the cutting edge of the global market is largely correlated with that nation’s economic performance. It is commonly known that patents are crucial to the development of the biotechnology industry.
Because patent law was created to address the needs of industrial technology, there is an oddity when it comes to patenting biological products. The emergence of biotechnology demanded that patent rules be appropriately adjusted to meet the requirements of science and technology. To accommodate biotechnological innovation, the conventional idea of sufficient disclosure at the time of filing for a patent had to be modified.
Biotech bodies in India, including the Department of Biotechnology (DBT), the Indian Council of Medical Research (ICMR), and the Council for Scientific and Industrial Research (CSIR), are among the largest bodies. The Biotechnology Regulatory Authority of India (BRAI) is a planned regulatory organisation to control the use of genetically modified organisms (GMOs).
The Office of the Controller General of Patents, Designs and Trademarks (CGPDTM), generally known as the Indian Patent Office, is an agency under the Department for Promotion of Industry and Internal Trade that administers the Indian Law of Patents, Designs and Trademarks.
General rules for patent
The Indian Patent Act of 1970 established the following criteria for a technique or product to qualify for a patent:
Inventive step- For a product or technique to qualify for a patent in India, it must be novel and involve an inventive step.
Capable of industrial application- It is possible to patent an innovation in India that relates to a good or a method that is applicable to the industry.
Novelty- This means that prior to the date of the application, the invention must not have been disclosed to the public, not even by the inventor.
The patent must not, however, come under the definition of an invention that is not patentable, as stated in Chapter 2 (Inventions Not Patentable) of the Indian Patents Act, 1970.
Inventions that are not patentable
Section 3 and 4 of the Indian Patent Act, 1970, deal with inventions which are non-patentable
Section-3: What are not inventions
The following are not inventions within the meaning of this Act:
An invention which is in contrast to the accepted natural laws
An invention intended for exploitation in commercial form that is opposed to public morality and causes significant damage to life forms.
The basic scientific principle is the discovery of natural occurrences of living or non-living things.
The newly discovered form of known substance or new usage of a known substance, except if such process adds to the creation of a new product
A substance acquired by a process of aggregation of components into a mixture
The duplication of familiar tools or devices that function independently of each other is already known.
Process which is used for treatment of human beings such as medicine, surgery, cure, etc. incorporated in Page 9 of the Patents Act, 1970 or treatment alike for animals for the purpose of increasing their economic value along with their products.
Parts of plants and animals in their entirety, except for microorganisms, which include species, varieties and seeds, most importantly, include the biological processes for producing plants and animals.
Computer programmes, algorithms, mathematical methods or business practises.
Any literary and aesthetic creation that includes drama, music, cinematography, television or artistic work.
Method of carrying out or performing mental acts or playing games.
Presentation of information.
Integrated circuit topography.
An invention of traditional knowledge, which in effect is made from duplication of components of properties known to all.
Biotechnology has a vital role in covering and touching lives in various aspects. Biotechnology in recent years has created unprecedented opportunities not only for humankind but also for industrial development. It has become the world’s fastest growing technology. The pharmaceutical and agricultural sectors in India, a developing nation, are built in part on advanced biotechnology.
History of indian patent laws
The first piece of legislation related to Indian patents was Act VI of 1856. The Indian Patent and Design Act, 1911 repealed the earlier acts of 1872 and 1883. The 1911 Act was revised later, after independence in 1950. Legislation related to patents was established in the year 1970 and came into effect on April 20, 1972. The modification to the 1970 Act was the Patents (Modification) Amendment Act of 2002, which came into effect on May 20, 2003 and was later revised in 2005 and 2006.
Working of patent industry in India
India is among the top 12 destinations for biotechnology globally. The biotech industry in India comprises over 5000 companies. Today, a number of research institutes (public and private) are working in the area of modern biotechnology, with a strong scientific research system in the country. But one of the most important issues raised is with respect to legal characterization and Intellectual Property Protection (IPP).
It is an intellectual property right given for inventions. Granting a patent in India is for a particular period of 20 years (known as the protective period). After the end of the protective period, the patent becomes off-patent making the product patent open to use by anybody who wishes to produce it. After the patent period expires, anyone can create the product and enjoy the revenue generated from it.
The time and money required for biotechnology research are enormous. The grant of intellectual property rights (IPR) is a powerful instrument for safeguarding biotechnological inventions.
Given the division of the subject of biotechnology into numerous sub-disciplines, the process of establishing common law or guidelines for patents is complicated. Those subfields with distinct characteristics include genetics and tissue culture in plants and animals.
The strongest form of intellectual property protection is a patent, since it gives the owner of the rights the most control over how the content is used.
In India, patents are granted to enable patentees to enjoy their inventions and also to secure their inventions’ commercial potential.
India in relation with TRIPS
In reference to the patentability of biotechnological inventions, the Patents (Amendment) Act, 2002, provided substantial changes to Indian patent law. The law met the requirement of Article 27.3(b) of the TRIPS Agreement by specifically providing for the patentability of microorganisms.
India joined the World Trade Organisation (WTO) in 1995. Under the WTO, member countries had to comply with the TRIPS (Trade Related Aspects of Intellectual Property Rights) Agreement. It is a multilateral agreement of the World Trade Organisation in relation to intellectual property rights (IPR). Under the TRIPS Agreement, every member country had to shift from process patents to product patents.
India formally became a signatory member of the TRIPS Agreement in 1995 when it joined the World Trade Organisation (WTO) (Trade-Related Aspects of International Property Rights). India needed to change its current patent system to comply with TRIPS, subject to a few transitory provisions allowed for developing nations in Article 65 of TRIPS.
The TRIPS Agreement, to which India is a party as a member of the World Trade Organisation (WTO), mandates that biotechnological inventions, including plant varieties, receive some level of protection.
For different member countries, different time periods were given in order to comply with this agreement. The developed countries had to comply within a period of one year. For developing countries like India, the time period was 5 years. Within 5 years, they had to comply with this agreement. In case of any emergency, the developing countries can extend the time period to another 5 years along with the existing 5 years, making it 10 years. For least developed countries (LDC), the time period given was 11 years.
According to the TRIPS Agreement, every member country has to shift from process patents to product patents. The TRIPS-mandated process of extending the term of Indian chemical (including biotechnological) patents from seven to twenty years from filing, along with a shifted burden of proof for alleged infringement of process patents, will cooperate with the country’s biotechnology industry’s goal of setting the global standard for the production of generic biologics.
Vision set out
India’s biotech industry will reach US$80 billion by 2021, as per Dr. Jitendra Singh (Minister, Ministry of Science and Technology), by releasing India’s Biotechnology Report 2022. The goal of the government is to attain self sufficiency in the country in this sector. So the role of patents becomes extremely crucial to protecting the creation and efforts of the inventor as well as the biotechnology industry. The country strives to achieve excellence in research and as a means of income generation with the help of biotechnology and to promote innovation with respect to intellectual property rights, including biotechnological innovation, which is beneficial to all its people and contributes to social and economic welfare.
Patent trend and patenting of biotechnology invention in the USA
History of US Patent Laws
Since the country’s founding, the preservation of intellectual property rights (IPRs) has been essential to American economic strength. The U.S. Constitution’s Article 1 gave Congress the authority to advance the progress of science and useful arts by securing writers and inventors the exclusive right to their respective writings and discoveries for a certain period of time. The four types of intellectual property that the US acknowledges are copyrights, trademarks, trade secrets, and patents.
The workings of the patent industry in the US
Firms in developing countries have dominated innovation in biotechnology with extensive patenting, but the US has clearly dominated patenting, covering different application areas of biotechnology. These innovations have a high degree of scientific linkage and joint partnerships between industry and universities.
A patent is a limited monopoly that the US Federal Government grants. Notably, a patent only grants the right to prevent others from creating, using, or selling the claimed invention in the United States, as well as from bringing the invention into the country. It does not grant the right to practise an invention.
An inventor must submit a patent application, including one or more “claims,” to the United States Patent and Trademark Office (USPTO) in order to be granted a U.S. patent. A claim delineates the bounds of an inventor’s intellectual property in a manner similar to how a fence delineates a person’s real property.
Three standard categories of patents are issued by the USPTO:
New and valuable processes, machines, manufactures, or compositions of materials, or any new and useful improvements covered under utility patents
Patents for “any unique and novel kind of plant” covered under plant patents
Designs that are “novel, unique, and decorative” for manufactured goods are covered by design patents.
Persons eligible for a patent in the US: Section 101 only permits “invention” or “discovery” as criteria for obtaining a patent. An inventor can therefore apply for a patent in the US. A patent may also be obtained by an inventor’s assignee for patent applications submitted after September 15, 2012. In either situation, the patent application must name the actual and first inventor(s), and those inventors must give an affidavit attesting to their authentic inventorship.
Biotechnology inventions must adhere to the same patent requirements as do all other sectors, and system administration presents the same difficulties. Obtaining a patent for a “finding” or “invention” requires the claimant to pass a four-part exam, regardless of the industry. It must be a novel discovery or invention, useful, non obviousness and sufficiently described.
USA in relation with TRIPS
The developed nations, along with the USA, estimated TRIPS to be advantageous for the developing nations because it would help the nations thrive with respect to competing with other nations in terms of innovation and technology and attract investment and trade with other nations.
The TRIPS in all its member states aims to harmonise intellectual property (IP) legislation with domestic legislation. Regarding this, the promoters, mainly the USA, have known to adapt their laws in accordance with gaining maximum protection and advantage over gaining benefits of resources related to patents.
Foreign investors led by the USA own a major part of the patents filed in India, which reflects the fact that TRIPS has contributed to the profits of the USA and the rest of the developed nations.
Vision set out
According to the U.S. Constitution, the goal of the patent system is “to advance the progress of science and useful arts by securing for a limited time to authors and inventors the exclusive right to their individual works and discoveries” (U.S. Constitution, Article 1, Section 8, Clause 8). Providing innovators with this privilege encourages innovation effectively.
An innovation is granted a patent in exchange for the disclosure of the creation and use processes. The healthcare industry in the US is anticipated to be the one where biotechnology will have the most impact. According to estimations, genetically based diagnostics and preventative care could help stop health care expenses in their tracks, an economic necessity for a nation that is reeling from the highest health care prices in the world, improving human abilities to forecast, prevent, diagnose, and cure illnesses and disorders in an effective manner.
The biotech industry in the US will play a significant role in ensuring global food, water, and energy security. Agricultural biotechnology is used by more than 13.3 million farmers worldwide to boost yields, stop insect and pest damage, and lessen the environmental effects of farming. In the energy sector, genetic expertise is being used to modify how plants convert solar energy into chemical energy, opening the door to new, more affordable, and ecologically acceptable types of biofuel.
Judgements on biotechnology patent innovations
Diamond vs. Chakrabarty (USA, 1980)
In this case, this verdict permitted microorganisms to be patented in the US. The decision to grant a patent for a bacterium that can break down crude oil was upheld by the Court of Customs and Patent Appeals on March 17, 1980, according to the Supreme Court of the United States (Pseudomonas putida). As a result, the Supreme Court acknowledged that the question of a patent’s eligibility has nothing to do with whether or not an invention is a living thing.
Association for Molecular Pathology vs. Myriad Genetics, Inc. (USA, 2013)
In this case, according to the U.S. Supreme Court, simply finding a specific DNA gene sequence is insufficient to justify granting the person who did so a complete and exclusive patent on that sequence. A gene sequence cannot be patented simply by being isolated and identified, as nothing was “made” in doing so (which patent law requires).
Conclusion
The strongest form of intellectual property protection is a patent, since it gives the owner of the rights the most control over how the content is used. Patenting in biotechnology is a crucial issue because it involves life forms. The potential for mankind to investigate and utilise biological resources is greatly anticipated by the use of current biotechnology in the agricultural, ecological, pharmaceutical and other sectors.
The biotechnology industry has contributed significantly to developments in patent laws. Because it involves the patenting of living things, biotechnology patenting raises complex concerns. Indian patent laws address this issue of patentability in this field without breaching the TRIPS Agreement.
The developed nations, along with the USA, estimated TRIPS to be advantageous for the developing nations because it would help the nations thrive with respect to competing with other nations in terms of innovation and technology and attract investment and trade with other nations.
The US can grant licences for plants that have had a specific quality advancement added using biotechnology methods for which it has laid out certain standards. Likewise, healthcare and agriculture are major areas where biotechnology has a major role to play in the present scenario to help reduce healthcare expenses and ensure global food security
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
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This article has been written by Divyani Newar, pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolutionfrom LawSikho and edited by Shashwat Kaushik.
A contract, in simple terms, is a written agreement between two parties with respect to areas covering employment, business, and property related matters that are mostly enforceable in a court of law. It acts as a shield to protect one’s legal rights.
A contract may be defined as an agreement that creates a mutual obligation between the parties to the contract that is enforceable by law. The primary components of a valid contract include: offer and acceptance; mutual assent; sufficient consideration, which may not always be in monetary value; and the legality of the document.
Contracts can be executed on paper or online. Drafting contracts is not a child’s play. It requires proficiency, in-depth knowledge of the subject, practice and persistence. Skill in this particular section of legal practise can prove to be very rewarding for legal professionals.
Understanding the concept of a contract
What is a contract
The term ‘contract’ has been derived from the Latin words ‘con’, which means ‘together’ and ‘trahere’, which means ‘to draw’.
A contract denotes a legally binding document in writing between two consenting parties. It highlights the terms and conditions set out and the obligations of the parties to be performed after executing the contract. Before drafting a contract, there is negotiation between the parties, which is important in order to incorporate their views and opinions. This is followed by preparing a number of drafts before making a final copy of the agreement.
All agreements are not contracts. Agreements give rise to a contract, provided they include a legal obligation, consideration of some form and parties competent to contract. Examples of agreements that are not contracts are privacy policies and terms and conditions agreements.
In the end, parties sign the agreement to validate the contract, which depicts the proof of approval set out by both parties.
Contracts hold primary importance for any business deal. As per the reports of IACCM, contracts carry out varied business functions that are pivotal in such transactions, which makes them valuable documents for such corporations or organisations.
Contracts can be unilateral, in which one party commits in exchange for another party’s performance, or bilateral, in which both parties have made commitments to one another.
Elements of a valid contract
Contents that make a contract valid are:
Intention to enter into a legal relationship- Both parties must genuinely intend to conduct business in an honest and sincere way. The commitment must be made with the goal of establishing a legal relationship, and there must be a shared interest between the parties.
Offer- Contracts are initiated with an offer made by an offeror to an offeree. The offer should be clear and properly communicated to the other party.
Acceptance- After the offer is made, the offeree has to decide whether to accept or reject it. The offeree has the option to accept the offer orally or in writing, which includes electronic mediums such as email.
The offer must be accepted in order for a contract to be legally binding. Similar to an offer, an acceptance must be clear and properly presented to the other party.
Consideration- A contract is made for parties to receive something in return that is of value. Without consideration, a contract cannot be considered valid. It can be monetary in nature or something valuable, such as terms and conditions, promises, services, goods, assets, etc.
Legal capacity- The legal capacity to enter into a contract requires the parties to understand and abide by the terms, obligations and consequences of the contract. Each of the parties must demonstrate their legal capacity to validate a contract.
A person who is disqualified from contracting by any law.
Free consent- Contracts must be entered into voluntarily and without any form of force, fraud, mistake, misrepresentation or undue influence from the parties involved.
Registration of a contract
Registration may be defined as the procedure where original copies of a document are produced before a recognised officer in order to record and safeguard the original copies along with other important information.
The rules and guidelines for registering a legal document are provided by the Registration Act of 1908.
After a contract is prepared, agreed upon and signed by both parties, it proceeds to the next phase, which is registration. It makes a contract valid and enforceable in a court of law. It is not a compulsion to register a contract, though it is advisable to authenticate it as a legal document to protect the parties from unwanted trouble in the future.
As per Section 23 of the Registration Act, 1908, for the object of registration, all documents, with the exception of wills, are required to be presented before an officer within a period of four months after the date of execution.
Review of contract
Contract review is the process of going through the contract thoroughly before agreeing to and signing the terms and conditions. The piece of documentation will be examined and analysed to ensure that none of the elements or clauses are missing and that it is free of any kind of error or discrepancy to help the parties have a satisfactory experience after executing the contract.
What is an E-contract
In the present scenario, we have encountered every transaction taking place online, including shopping, online banking and the signing of business and government deals on the internet. All these constitute an electronic or e-contract. E-contracts take place online, where the parties don’t meet in real life in most cases. E-contracts take place or are executed online, with the parties rarely meeting in person. They resemble paper-based commercial contracts to a great extent.
These are of various types, such as browse wrap, click wrap and shrink wrap.
What is contract drafting
It is a skill that has been traditionally mastered by legal professionals, such as lawyers. Regardless of the area of specialisation, all lawyers are expected to know the basics of contract drafting, which has proven to be exceedingly beneficial.
Contract drafting requires a great deal of analytical skill, quick thinking, and attention to detail. One has to acquire skills in terms of being mindful of the minute details and able to comprehend and interpret difficult legal concepts with ease.
Legal documents set forth both the facts and the law relevant to and potentially affecting the parties to the document. The accomplishment of the client’s objectives and goals is a lawyer’s first priority. Here, legal documents play a crucial role because they clearly and explicitly describe and explain how to accomplish the client’s objectives.
In today’s contemporary world, most contracts take place mostly between businesses. Contracts that take place between individuals are basic in nature, such as while accepting a job offer or selling a property. Legal agreements that take place between business bodies are on a large scale with clients, partners, and other persons associated with them. Thus, contracts form the pillars of commercial transactions.
Basic principles to be followed while drafting a contract
Basic principles to be followed while drafting a contract:
Identification of purpose: The object for which the contract is drafted needs to be prioritised, the client needs to be heard and every detail of the conversation needs to be noted down.
Having clarity regarding the legal provisions in relation to the object: A contract should be drafted to perfection and error free to be enforceable in a court of law. Clauses need to be incorporated with precision; they are incorporated keeping in mind how high the stakes of an individual or an organisation are. The law of the land needs to be kept in mind while drafting; as the saying goes “ignorance of law is no excuse” as expressed in the Latin maxim “ignorantia juris non excusat”.
Precise and to the point: The language of the contract should be simple and concise
Inclusion of payment clause: When the payment has to be made, whether be it pre or post payment, full amount or in parts, mode of payment, etc., such details according to the negotiation between the parties to the contract are to be incorporated without any ambiguity.
Description of the parties involved and their roles and responsibilities: Defining who the parties are to the contract, their description, which includes their name, address, and other details necessary to be incorporated in the contract. The roles and responsibilities of the parties need to be clearly specified and the parties must be made to be obligated by them so as to avoid disputes in the future.
To cover up all the unforeseeable future circumstances: In order to protect the client from any future mis-happenings, insertion of this clause becomes very important in order to safeguard the interests of the client.
What are “clauses” in a contract?
A contract is a legal document that has clauses for specific purposes. Clauses are the segments of a contract that state the conditions, requirements and legal provisions with respect to the contract. They help to keep the documents consistent throughout. Contracts consist of different types of clauses with distinct purposes, which together make up a legally binding agreement for the parties to agree to and finalise by signing it. Additionally, they can provide guidance with regard to the enforceability of the contract in different situations.
Important clauses to be kept in mind while drafting a contract
Some of the important clauses of a contract are discussed below:
Definition clause: Definition clauses contain definitions as per the necessity of the contract. It is used to explain the words that are used in the agreement to avoid misinterpretation of any terms used in the contract.
Parties to the contract: Information such as persons involved in the contract is covered under this clause and is referred to throughout the contract using the same name stated in this clause to avoid ambiguity about people’s identities.
Term: It specifies how long the contract will be in effect. The commencement and termination of the contract’s legal effect.
Representations and warranties: The assertion of facts by one party to the other is covered under representation clause. Indemnity if the fact turns out to be false or in breach of the fact is covered under the warranty clause. Representation and warranties are distinct terms, as they each have their own specific remedy for infringement.
Payment: One of the important clauses that need to be incorporated is the payment clause. It directs how to make and receive payments, modes, types of payment methods and all the details related to payment.
Confidentiality: These are also known by the name of non-disclosure agreements. Parties are barred from disclosing sensitive information to third parties under this clause.
Indemnification: When there is loss to one party because of breach by the other party to the contract, the party at fault has to compensate the former or the party suffering loss is covered under this clause. The mode of indemnification has to be stated clearly under this clause.
Governing law and jurisdiction: It covers the law that will be used for the interpretation of the contract if there is a dispute between the parties. This often specifies which state law will be applicable to resolve disputes.
Termination clause: It outlines the circumstances under which the contract can come to an end by the parties involved, which include the obligations pre and post termination such as notice period, payment, and other rights and duties of the parties.
Dispute resolution: Modes of resolving disputes amicably outside the court, which is much more feasible in terms of money, time and energy as compared to the courtroom process. There are several modes, such as arbitration, conciliation, negotiation, etc.
Areas of opportunities for legal professionals with respect to drafting contracts
Contract drafting is a highly rewarding part of legal practise. It accounts for a notable and profitable share of income for lawyers individually as well as reputed organised law firms. Negotiation and contract drafting, as compared to other areas of work in the legal field, are foreseeable or predictable with high and satisfactory margins. It can even prove to aid in providing a good source of income for fresh young lawyers who are struggling in courtrooms as litigators.
The legal profession has had an increasing expansion in recent years in terms of job prospects, revenue generation, and profits. Large scale law firms generally generate high revenue from contract drafting from different branches, such as banking, mergers and acquisitions, and corporate finance, with respect to such deals. Many experienced lawyers also hire junior lawyers based on their contract drafting skills.
One can opt for a diverse range of jobs if one has a good grasp on this skill, ranging from being an advocate to working as a legal advisor or a legal analyst and other positions in private companies or organisations. Advocacy is one of the primary professions for a fresh law graduate. In addition to litigation, a significant portion of the practise involves reviewing and drafting various cases and documents. For law graduates, working as an in-house counsel or legal advisor for multinational corporations (MNCs), corporate organisations, non-governmental organisations (NGO), and governmental entities is another alternative.
Legal analysts have a specialisation in law and work for lawyers both individually and in teams to conduct research on the subject and analyse related documents. Private companies provide a great deal of opportunities in terms of career growth for law graduates. They hire them as legal counsel to deal with their legal matters.
Contract lawyers assist their clients with contract negotiation and drafting, protecting their clients from fraud. They assist the client in understanding the technical or legal jargon that a layperson could find challenging to understand in a contract. They assist the client with the contract’s enforceability.
Common contracts for legal professionals to draft
Employment agreement
It outlines the guidelines that must be followed by both employers and employees at their place of employment.
Contract of sale
It is an agreement wherein the buyer and seller accept each other’s terms and conditions for the seller to sell his goods to the buyer and the seller to get payment for those goods. Ownership is handed over from the seller to the buyer.
Lease deed
This contract covers the leasing of immovable property, such as commercial real estate, as well as the terms set forth while renting out the property.
Memorandum of understanding
It is an agreement that conveys the aligned will between the parties. It can be in between two parties (bilateral) or between many parties (multilateral)
Confidentiality and non-disclosure agreement
This agreement states that sensitive information shall not be shared with any third party, thereby establishing a confidential relationship between the parties.
Leave and license
It is an agreement with respect to immovable property where the licensor grants permission to use the property for a short period of time, generally for a period of 11 months, to the licensee before renewal of the agreement.
Conclusion
Contracts act as a shield for the parties against any unforeseeable future circumstances. Clauses are the heart of a contract. It should be incorporated according to the demands of the case and the parties involved. Along with it, the language, elements, and basic principles need to be followed. Before the parties have signed a contract, it is advisable to have it reviewed. After executing the contract, it can be registered to make it more enforceable and legally binding. Mastering the skill of contract drafting takes time. It is not a skill that can be picked up in a day or two. This is why legal professionals draft with such perfection and receive generous payment.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
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This article has been written by Aarushi Mittal, student of National Law University, Odisha, Cuttack. This article dives deep into the varying ages of consent across the different states in the United States of America and the laws governing them.
Consent is an essential component in achieving healthy interactions and relationships. The age of consent is an important part of the legal framework of a place. It acts as a shield to protect minors from abusive, or harmful interactions and relationships. It manages to define and maintain boundaries within relationships so that all parties feel safe and secure. It basically promotes and encourages healthy relationships based on mutual respect and consideration. It is necessary for such harsh and stringent laws to exist, as the punishments for violating these laws act as a deterrent against future offences.
The age of consent is the minimum age under law, at which an individual can consent to engaging in sexual activities, entering into a contract, getting married or starting a buisness. This is the case since minors, due to their age and limited life experience, are considered to be unable to fully understand the consequences of their actions or what they are agreeing to. Thus, the law prescribes an age which acts as a benchmark for when an individual is considered to be mature and capable of giving informed consent to engage in such acts.
Further, the age of consent intends to protect young people from abuse and exploitation and prevent them from being taken advantage of in any way. Through this article, we will take a look at the age of consent in America, and the differences that exist across its various states. In addition, we will examine the important laws in the US that establish the age of consent.
What is age of consent for sexual activities
The age of consent is the lowest age, as defined by the law, above which a person is recognised to be capable of consenting to any sexual activity. It is against the law for an individual to be a part of any form of sexual activity with another person below this specified age of consent. When these age of consent laws are violated, the individual is liable to be punished under the statutory rape laws of that territory. As per this law, the individual whose age is above the age of consent is termed to be the offender, and their sexual partner whose age is below that of the age of consent is the victim. For example, two people, Tyler and Sarah, live in a state where the law prescribes the age of consent to be 17 years for both boys and girls. Tyler is 21 years old, and Sarah is 16. Any sexual act between the two of them will be considered to be statutory rape, irrespective of whether there was any consent between them. In such a situation, Tyler is labelled as the offender and will be punished as per the laws of the state he lives in.
The age of consent differs across the world but usually ranges from 13-18 in most places. However, this isn’t the case everywhere. Nigeria, a country in Africa, has the lowest age of consent at 11 years. Some other countries, which are conservative in matters relating to sexuality and gender, don’t have a specific age of consent but require individuals to be married before they can legally have sex. These include countries like Pakistan, Qatar, Iran, and Afghanistan. It is also pertinent to note that the intention of age of consent laws, which curb sexual exploitation of minors, is not the same as the laws pertaining to minimum age for marriage, which are designed to discourage child marriages.
The history of age of consent
Laws dealing with age of consent have been in place since time immemorial. From the point it was first introduced, these laws have undergone a significant change in the way they have been defined and used. They have always been an important part of conversations and debates on ending child marriages, achieving gender equality, and reducing teenage pregnancies. Since the time they came about, there has also been a noticeable shift in their aims and objectives. In today’s time, these laws aim to protect children from coercive or exploitative sexual relationships, while, back when they originated, their primary goal was to preserve the chastity of young women.
Age of consent was first observed in the middle ages in England, around the 12th century, as a part of rape law. Under these laws, it was a crime to violate a young woman, not of age, with or without her consent. This age was 12 years, at which a girl was considered to be mature enough to give her consent. The offender was punished for this crime but the punishments were more severe in cases where the girl was under the age of 10 years. Similar laws were present everywhere around the world. For instance, in the USA, each of its states formulated their own laws on this matter and the age of consent ranged somewhere between 10-12 years.
Moreover, the emergence of feminism greatly shaped the evolution of age of consent. Until the end of the 19th century, these laws remained mostly unchanged. Feminists sought to raise this age of consent and their efforts were successful, with the age of consent being increased in many countries around the world. This movement pushed England to raise the age of consent to 16 years and a similar change was seen in America. By the time of the second wave of feminism in the 1970s, the need for these laws to protect young women from possible coercive relationships was widely accepted. However, there was also a fresh call to make sure that the laws did not unreasonably restrict a young woman’s sexual autonomy. Furthermore, there was an added pressure to make the laws gender-neutral by clarifying that they applied to all youths, irrespective of their gender. As a result, the USA’s age of consent laws expanded to include both boys and girls.
Age of consent in different states
The age of consent differs from country to country. Every country has its own separate laws relating to consent. In the United States of America, the age of consent changes across its different states, but usually ranges from 16-18 years. Majority of states have the age of consent as 16 years. The presence of varying laws and statutes dealing with the age of consent in different jurisdictions may cause confusion. Even the violation of these laws has consequences of varying degrees of seriousness depending on the location. However, they are all designed to safeguard children from sexual exploitation and stop adults from engaging in sexual activities with minors.
Out of the 50 American states, 31 states have the age of consent set at 16 years, 8 of them have it at 17 years, and the remaining 11 have it at 18 years. Overall only 26 states have Romeo and Juliet laws (also known as close-in-age exceptions), which allow sexual activity between underage individuals if they are close enough in age.
Maximum age difference
Apart from setting an age of consent, several states have laws governing the maximum age difference permissible between individuals engaging in sexual activities. These laws aspire to prevent adults from exploiting and taking advantage of young people who might not have the emotional maturity to understand the consequences of their actions. The maximum age difference rules ordinarily set down the highest number of years that can exist between the two partners. For example, Arizona has a maximum age difference of 2 years while in Utah it is as high as 10 years.
The table below lists the different states of America with their age of consent and maximum age differences.
Sr. No
State Name
Age of Consent
Has Romeo-Juliet Laws/ Close-in-age exemption
Maximum Age Difference
Minimum age of defendant, in order to prosecute.
1
Alabama
16
Yes
2
16
2
Alaska
16
Yes
3
N/A
3
Arizona
18
Yes
2
N/A
4
Arkansas
16
Yes
3
20
5
California
18
No
–
N/A
6
Colorado
17
Yes
4
N/A
7
Connecticut
16
Yes
2
N/A
8
Delaware
18
Yes
–
N/A
9
District of Columbia
16
Yes
4
N/A
10
Florida
18
Yes
–
24 (if victim is 16)
11
Georgia
16
No
–
N/A
12
Hawaii
16
Yes
5
N/A
13
Idaho
18
No
–
N/A
14
Illinois
17
No
–
N/A
15
Indiana
16
Yes
–
18 (if victim is 14)
16
Iowa
16
Yes
4
N/A
17
Kansas
16
No
–
N/A
18
Kentucky
16
No
–
N/A
19
Louisiana
17
No
3
N/A
20
Maine
16
Yes
5
N/A
21
Maryland
16
No
4
N/A
22
Massachusetts
16
No
–
N/A
23
Michigan
16
No
–
N/A
24
Minnesota
16
No
3
N/A
25
Mississippi
16
Yes
2
N/A
26
Missouri
17
No
–
21 (if victim is 14)
27
Montana
16
No
–
N/A
28
Nebraska
16
No
–
19
29
Nevada
16
No
–
18
30
New Hampshire
16
Yes
–
N/A
31
New Jersey
16
Yes
4
N/A
32
New Mexico
17
Yes
4
18 (if victim is 13)
33
New York
17
No
–
N/A
34
North Carolina
16
Yes
4
12
35
North Dakota
18
No
–
18
36
Ohio
16
Yes
–
18
37
Oklahoma
16
Yes
–
18 (if victim is >14)
38
Oregon
18
No
3
N/A
39
Pennsylvania
16
Yes
4
N/A
40
Rhode Island
16
Yes
–
18
41
South Carolina
16
No
–
N/A
42
South Dakota
16
No
3
N/A
43
Tennessee
18
Yes
4
N/A
44
Texas
17
No
3
N/A
45
Utah
18
Yes
10
N/A
46
Vermont
16
Yes
–
16
47
Virginia
18
Yes
–
18
48
Washington
16
No
2
N/A
49
West Virginia
16
No
4
16, 14(if victim is <11)
50
Wisconsin
18
No
–
N/A
51
Wyoming
17
No
4
N/A
Laws regarding the age of consent : statutory rape
Several states do not actually use the term statutory rape in their statutes, rather, they mention a variety of offences involving consensual sexual activity among minors. The ages of the victim and offender, along with the nature of the sexual activity, determine which offence the crime falls under. Statutory rape laws are distinct from most rape laws, where force plays a key role in the crime. Statutory rape laws are formulated on the belief that every sexual act involving a person under a specific age prescribed by law (age of consent) is a crime, irrespective of whether both parties consent to such acts. It prohibits all sexual acts with a minor, who is considered to be incapable of granting informed consent to such sexual activity. It is a crime when an individual engages in any form of consensual or non-consensual sexual conduct with a minor. Under this code, consent is immaterial. Most of these cases involve a male and a female, where the man is charged with the offence. Even if both parties are under the age of consent, they can be charged under statutory rape laws.
Statutory rape in most places is a serious crime, and individuals prosecuted under it are charged with considerable jail time (ranging anywhere between 1-15 years) in addition to large fines up to $100,000 and more. A common misbelief regarding statutory rape is that different state laws specify a single age at which a person can give consent to any form of sexual conduct. However, there are only 12 states that have a single age of consent, under which a person cannot consent to sex in any circumstance. In the remaining states, various other elements are involved, such as the close-in-age exemption, the minimum age of the defendant, and the minimum age of the victim. The above table can be referred to for statutory rape laws in different Amercian states.
Exception in marriage
The age of consent has a major loophole, i.e., child marriage. The United States of America has no federal law banning child marriage, and only ten out of 50 states have passed laws forbidding child marriage under their jurisdiction. These states include Delaware, New Jersey, Pennsylvania, Minnesota, Rhode Island, Massachusetts, New York, Vermont, Connecticut and Michigan. The remaining 40 states continue to allow marriages between, or with minors, including those below the age of consent. Out of these 40 states, seven of them don’t even have a minimum age cap on marriage, as long as they have the permission of the parent or guardian.
This is a key exception to the age of consent law and is subject to wide misuse. The bulk of these marriages take place between an adult man and a girl under the age of 18. In most American states, to this day, marriage is a valid legal defence to statutory rape. It used to be permitted as a defence under federal law but was struck down by a recent amendment. This exception allows an adult to engage in sexual activity with a minor if they are married. It acts as a ‘get out of jail free card’ for sexual predators or rapists. There are countless stories of underage marriages taking place involving abuse. Young girls are forced to marry their adult abuser, or they are pressured by their parents to get married if they are pregnant.
Romeo and Juliet laws
Romeo and Juliet laws, also known as close-in-age exemptions, are another exemption to the age of consent laws. Some states in the U.S.A. have these Romeo and Juliet laws which do not punish sexual activity between individuals if there is a close age gap between them, typically around 3-4 years (varies according to jurisdiction). These laws get rid of legal culpability in cases where both partners consent and are close in age. These laws intend to protect young lovers by permitting them to consent to each other, without the fear of violating the law but at the same time preserving the stringent restrictions on the age of consent. The law is named after Romeo and Juliet, teenage lovers aged 14 and 16. They were characters in William Shakespeare’s famous play, “Romeo and Juliet”, who were deeply in love with each other. In the present day, their relationship would be found to violate age of consent laws.
I provide these close-in-age exemptions with the sole purpose of safeguarding young people from the somewhat drastic repercussions of violating age of consent laws. Consensual sex with a person’s boyfriend or girlfriend could have the potential of labelling them as sex offenders for the rest of their life. Thus, such cases are provided legal protection and exemption under these laws. For example, if the age of consent in an area is set at 17 years with the close-in-age exemption being four years, sexual activity between a 35-year-old man and a 15-year-old girl is considered illegal but the same girl may engage in consensual sexual activity with a partner up to the age of 19. These laws recognise that consensual sexual activity between minors close in age does not exhibit the same degree of threat to minors as sexual activity between an adult and an underage individual. The permitted age gap under this law varies from state to state but the overall concept remains the same, they provide exemptions for minors, close in age, who engage in consensual sexual activity from being prosecuted for statutory rape. However, these laws do not grant protection for other offences like sexual assault and sexual abuse. Not every state in America has this exemption.
Age of consent in contracts
As per the laws in the United States of America, the age of majority is the age at which a child is considered to have become an adult. Essentially, it is the legal contract age. Contracts are legally enforceable, binding agreements between two parties who are competent to enter into a contract. A person below the age of majority is considered to be a minor and cannot enter into a valid contract without the consent of a parent or guardian. Minors are assumed to not be mature enough to understand the terms and implications of a contract.
This legal age to contract (age of majority), varies across the different states in America. In the U.S.A., the age of majority is 18 years everywhere except in Alabama and Nebraska where it is 19 years. Depending on the type of contract, there can also be different ages of majority. For example, rental agreements usually require you to be 21 years of age. It is also important to note that even if an individual has reached the legal age to contract, does not mean that there is a valid contract. Competency to contract (age) is only one factor and there are several other essential elements for a contract to be valid.
This age should not be confused with the drinking age, age of consent, voting age, driving age, and marriage age. Depending on the state and federal laws applicable to an area these ages can vary. Individuals cannot access their inheritance until they attain the age of majority.
Minimum age to start a business
Many American states permit a minor to set up their own business, simply because their respective laws do not provide a minimum age requirement to start a business. However, this is not the case in every state, and some states prescribe an age and explicitly prohibit an individual who is under that age from legally owning a business. States like Minnesota, Colorado, and Illinois are some of those states that explicitly forbid minors from starting their own businesses. As per the laws in these places, a person must be over the age of 18 to legally form a Limited Liability Company (LLC). In such states, the parents or guardians of the minor can legally own or set up the business on their behalf until the child attains the age of majority.
States like Nevada, Delaware, Texas, Montana, California, and Wyoming allow minors to start and own businesses, subject to certain restrictions. Minors are not allowed to obtain tobacco and liquor licences and may be unable to enter into contracts with suppliers, employees, and other parties (depending on the specific federal or state laws applicable in that area). Since the laws of these states do not prescribe a minimum age, by theory, if a thirteen-year-old wanted to start a business, he/she could do so. Essentially, what that means is that even though these states allow minors to form businesses, they do not have the same abilities as adults (those individuals above the age of majority). In such situations, an adult signs or enters into contracts on behalf of the child. To put it simply, businesses can be formed and started by any person at any age unless the law of that area specifically prohibits it.
Age of criminal responsibility under criminal law
The minimum age of criminal liability is the age boundary at which a child is considered to be an adult and is responsible under criminal law. To put it simply, it is the youngest age at which a child can be held criminally responsible for an offence. It determines whether a young person in breach or violation of the law is tried as an adult or a juvenile. Depending on the specific laws governing the area, the youth may be tried under the jurisdiction of a criminal court, a juvenile court, or a municipal court. This age not only varies across the different countries of the world but also throughout the various states of America.
Internationally, the minimum age for prosecuting young children for crimes is set at 14 years old internationally as per the standards of the United Nations Convention on the Rights of a Child (CRC). According to the Child Rights International Network, almost every country in the world forbids prosecuting a child under the age of seven years. However, interestingly, 24 U.S. states do not have a minimum age to prosecute children, i.e., a minimum age of criminal responsibility. In theory, this means that a child at any age can be sentenced to criminal penalties and is punished as an adult. It is deeply concerning that several states in the country have yet to set a base age limit at which a child can be tried in a juvenile court. This lack of a fundamental baseline age has resulted in numerous instances of ill-treatment of young children.
Out of the remaining (26) states that do prescribe a minimum age of criminal responsibility, the boundary is set at younger ages. North Carolina recently (2019) passed a bill to increase the prescribed age from six years to eight years. In Wisconsin, the minimum age of criminal responsibility is 10 years, and ten-year-olds can not only be prosecuted but are also automatically considered to be adults while they are tried for some crimes. The age is set at 13 years In Maryland and New Hampshire, and at 12 years in at least five states including Delaware and New York. The age is set at 10 years in 16 of the 26 states, including Arizona, Colorado, Kansas, Arkansas, and Connecticut . In Nebraska, it is 11 and in Washington, it is 8 years.
Conclusion
No universally accepted international standard exists to determine the appropriate age of consent. As a result, the age of consent in the United States of America is a consequence of societal beliefs, standards, cultural factors, evolving views and the history of the place. This age can neither be too low nor too stringent. It must avoid the over-criminalisation of teenage relationships and behaviour but also be able to protect children from exploitative relationships. The laws must aim to maintain a perfect balance, by fulfilling their duty to safeguard the interest of minors, while also respecting their sexual autonomy. Each state has its separate laws and specific variations concerning the age of consent.
Frequently Asked Questions (FAQs)
Is it illegal to date a minor?
No, as a general rule, it is not illegal to date a minor. However, if there is any sexual activity involved in the relationship, it can be considered illegal, depending on the laws in place in that area. If the minor falls under the age of consent, it may be an offence of statutory rape or any other type of sexual offence. Moreover, even if the minor gives consent, it is still a punishable offence. Some states even have laws that forbid adults from being in romantic relationships with a person under the age of consent, regardless of whether any sexual activity is involved.
What are the legal consequences of violating age of consent laws?
The legal consequences of violating age of consent laws are extremely serious and include imprisonment, fines, probation, a permanent criminal record, and registration as a sex offender. It is advised to consult a lawyer regarding any questions concerning the legality of relationships with minors.
Does the age of consent remain the same for both males and females?
In the United States of America, the age of consent stays unchanged for both males and females, it is a gender-neutral law. Nevertheless, in some areas across the globe, males and females have completely different ages of consent. Moreover, some places have different ages of consent for same-sex activities between women and same-sex activities between men. However, in the majority of countries, the age of consent remains the same for all.
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Corporate governance is the combination of rules, processes, or laws by which enterprises are operated, regulated, or controlled. It refers to the set of policies created to direct a company on the principles of accountability, transparency, and ethical practises. There is no legislation or statute by which corporate governance is regulated; rather, there are rules, guidelines or reports by various authorities by which it is regulated or operated. Some are mandatory, some are Voluntary and some are recommendatory. An example of good corporate governance is a well-defined and enforced structure that works to benefit everyone concerned by ensuring that the enterprise adheres to accepted ethical standards, best practises, and formal laws. Alternatively, bad corporate governance is seen as poorly structured, ambiguous, and non-compliance, which damages the image or financial health of the business.
Importance of corporate governance
Corporate governance is important because it provides management accountability to shareholders and other stakeholders (both inside and outside investors). Further, it provides transparency in the basic operations of the company and integrity in financial reports generated by the company. Checks and balances through auditing committees are an integral part of good corporate governance. Open communication between the organisation and the stakeholders of the company is also necessary to boost their confidence in the company. Investor loyalty is a guarantee of the best corporate governance practises.
Evolution of corporate governance in india
Before liberalisation, the operation of the business was run on British rules. Policies and rules were amended or altered as per the desire of British employers. Later, the Companies Act of 1866 and 1956 were enacted but until 1991, there was no corporate governance. After the globalisation of the Indian industry, foreign investors park their money and it is essential that services other than their investment interest be given to them. Indian companies felt the need for corporate governance. After this, all the authorities hereinafter referred to have given their contributions, through which the rights of stakeholders (shareholders, creditors, consumers, employees, etc.) have been protected through a set of policies and measures that need to be adopted by companies for good corporate governance. Some of the benefits of adopting corporate governance are Lower cost of capital, Higher share prices, financial stability as a company gains shareholder trust, etc.
The cooperation of some of the authorities through which the concept of corporate governance has evolved:
PHASE 1 (1996–2008)
CII (Confederation of Indian Industry) 1998,
SEBI set up a committee (KMBC) in 1999,
MCA (Ministry of corporate affairs) in 2000,
NCC (Naresh Chandra Committee, 2002),
Six principles by the Organisation for Economic Co-operation and Development:
The basis for an effective corporate governance framework.
The right of shareholders.
Equitable treatment of shareholders.
The role of stakeholders in corporate governance.
Disclosure and transparency.
The responsibilities of the board
These principles have formed the basis for corporate governance initiatives in OECD countries and non-OECD countries. They represent the minimum standard that countries with different traditions have agreed on.
Phase 2 after 2008
In 2008, a scam happened, due to which the Indian corporate community experienced a significant shock with damaging revelations about board failure. This was also called a Satyam Scam. In its report, the CII emphasised the unique nature of the Satyam scandal, noting that Satyam is a one-off incident. In addition to the CII, the National Association of Software and Services Companies also formed a Corporate Governance and Ethics Committee, chaired by N.R. Narayana Murthy, one of the founders of Infosys and a leading figure in Indian corporate governance reforms.
Impact of COVID-19 on the stock market
At the beginning of 2020, COVID-19 caused huge destruction to the economy. As per the report of the WHO for 2020, more than 18 million people got positive and 6,90,257 died. Unprecedented fluctuations are seen in the stock market; despite best efforts, it has been difficult to predict market trends. Due to that, there is a huge impact on share returns and trade volume. The only mitigating factor left to overcome the pandemic was good governance. In March 2020, the US stock market fluctuated four times in ten days. Since its inception in 1987, that fluctuation has only ever been triggered once, in 1997.
Together with the US crash, stock markets in Europe and Asia have also plunged. The S&P 500 fell 9.5% and the Nasdaq ended 9.4% lower, while losses on the UK’s FTSE 100 wiped some £160.4bn off the market. In France and Germany, indexes cratered by more than 12%. “Markets are at a breaking point,” said Neil Wilson, chief market analyst at Markets.com. “No one knows what a total economic shutdown, however temporary, looks like.”
How should directors and in particular independent directors remain fully engaged in company matters and committed to company governance? How should the directors balance business realities?
We have never experienced such uncertainty and never faced any such type of global lockdown in the past. There was a truly unprecedented and extremely difficult challenge. COVID-19 has tested the true ability of directors across the globe, irrespective of the size or nature of the business. For any business, that was the time for taking instant decisions and building confidence in people.
The steps towards corporate governance that most directors must take to balance business realities are as follows:
Real-time data
In such a situation, the board needs to stay connected with key management to understand the detailed internal and external data on a daily basis. At such a time, the board should support management and look for a remedy. There is no scope for hearsay information. The information should be real and trustworthy.
Direct communication
The Board of Directors should have direct communication with all the stakeholders. It has to be simple and accurate and it should be from the right person in whom every stakeholder has trust. Such a person can be an executive director.
Empower people
The board must work collaboratively with the management to empower them to make swift decisions. The management should be given some independence to take decisions, along with accountability and responsibility. The focus must be only on reducing process timelines without compromising corporate governance. The company must have preestablished protocols for fighting COVID-19, if they do not have any protocols, then the board associated with the managing director has to make such policies as soon as possible.
Analysis risk factors
The Board of Directors, along with the risk analysis committee, should consider whether the impact of COVID-19 is prolonged. the feasibility of implementing these steps under different scenarios given the possibility of fewer resources being available, increased health and safety regulations, supply chain issues, availability of financing sources, customer situations, etc. All the situations have to be analysed. The additional steps that might be required are creditor liquidation, contractual defaults, and violations of licences or other compliances. These are some of the critical aspects that have to be evaluated by the board along with the management.
Steps companies can take to prepare for stakeholder activism
After taking all such measures, there might still be a situation where the shareholder is not able to understand the position of the company and think about their interests. During the pandemic, it was obvious or pre-anticipated that the shareholder may be anxious as of now. This time, the market has been very volatile; business were under stress, contracts were getting renegotiated, etc. In this situation, stakeholders were bound to ask questions.
In such a situation, the following measures are necessary to be taken:
Direct communication with the stakeholder through general meetings or special meetings is mandatory whenever deemed necessary. Make him believe that his money is safe. Make a different committee for any query. During the pandemic, SEBI also directed the company to hold a meeting through video conferencing with their shareholders regularly.
The company should not conceal information until it is necessary and disclose true statements to build the continuous trust of their stakeholders.
True reports should be provided to them by the audit committee and management directly. They should also know about measures that companies should take to fight the pandemic.
Does the board have a plan in case one or more directors and key managerial personnel suffer from COVID-19? Should the company form a special committee to monitor developments?
As COVID-19 caused huge destruction, this was a very probable situation for the company under these circumstances. In this situation, the Board of Directors, along with the nomination and remuneration committee, have to play a very important role. Along with this, they should also delegate some power to special committees specially formed for the evaluation of COVID contingencies.
They should make a succession plan in case any director or KMP suffers from COVID
They should also make emergency protocols because if any of the KMPs or directors get positive, that would cause a huge loss to the company. Its share value tremendously goes down, and only good governance in such a situation can save it.
They should also evaluate the performance of each member of the board or KMP. In the event of death, if any KMP or director died, then it became very difficult for the company to find a good talent in such a short period of time. The company has to pre-plan such types of contingencies and make a list of people who can replace them.
Planning is the only way a company can save itself from such contingencies.
The Board of Directors can also delegate such tasks to a special committee that can make sound judgements on data provided by the board and make sound policies to preserve short-term and long-term objectives. The board can also involve KMP in this special committee to speed up decision-making and information flow.
The plans should be practical and real, not hypothetical. They should be simple and easy to perform. There must be an efficient use of business resources, and this special committee should be regularly updated according to evolving risks and needs.
Conclusion
During the COVID pandemic, good corporate governance played a very important role to mitigating share volatility or uncertainty. The directors get the opportunity to take decisions and learn to tackle such unprecedented situations. The dramatic corporate shift caused by the pandemic presents various unique challenges for directors. Still, it also sheds light on their ever-evolving role as leaders and decision-makers. It motivates them to work with their full efficiency and makes them ready to fight this kind of pandemic if it comes in the future. In these types of adversity and uncertainty, it’s clear that modern governance matters more than ever.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
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A shareholder is a person or any legal entity that has held ownership of any preferable shares, debentures, or equity in a company. The number of shares held by the shareholder makes him entitled to the company’s profit and loss in the quantum of the value of his shares. Shareholder activism highlights various rights and insights. In this article, there are some insights about shareholder activism. Basically, shareholder activism is the action taken by shareholders to influence the management of a company. Sometimes this can also include proposals for amendments to corporate policies, proposing resolutions for shareholder votes to the board of directors, and so on. This article discusses how shareholder activism has become an increasingly important tool for investors to promote financial growth and hold companies accountable for their actions and responsibilities towards shareholders. By leveraging their ownership stake, shareholders can push for improved transparency and a clear focus on long-term sustainability rather than short-term profits.
Definition of share and shareholder
Basically, the word shareholder is an insightful combination of two important words (share and holder).
Share means a partial percentage or a unit of debenture, preferred share or equity. In simple terms, a percentage of legal ownership within the company and the owner of the debenture, preferred share or equity that enable a person’s share of the profit and loss of the company.
A shareholder is a person who has authority over the shares given by the company. Shareholder means the natural or legal entity that holds the share and is authorised by the company is known as the holder of the particular share, equity or debenture. We can say in simple terms that such natural or legal entities have partly ownership according to their shares and also an entitled share from the company’s profits and losses.
Shareholder’s right’s and responsibilities in corporate governance
Shareholders are not only the owners of their held shares; they have responsibilities and duties towards the company, and they have to fulfil rights and responsibilities both in corporate governance. Here are some of the key shareholder rights and responsibilities
Shareholders play a very important part in the company’s growth and have some insightful responsibilities, likewise passing ordinary and special resolutions in the general meeting of the company by exercising their powers of voting under Section 47 and Section 48 of the Companies Act, 2013. A shareholder can help in various ways to manage the company. Section 139(6) of the Companies Act, 2013 says that an auditor must be appointed by the board of directors within 30 days of the company’s registration. Section 2(34) of the Companies Act, 2013 gives the board of the company the power to appoint a director with the help of passing an ordinary resolution by the shareholder to appoint a director or additional director who will hold office until the next general meeting. Shareholders not only have the power to pass the resolution but also have the power to change it, and if it is necessary, shareholders can also take legal action against the passing resolution or against the director.
Responsibilities of shareholder
The shareholder has several responsibilities, like attending the annual general meetings and casting their vote on resolutions and important financial matters of the company. Duty to oversee the management to ensure that it acts in the best interest of the shareholders. Shareholders are responsible for conducting their own research and due diligence to make informed decisions when voting or buying and selling shares. Shareholders have always complied with all laws and regulations related to investing and corporate governance.
Winding up
According to Section 270 of the Companies Act 2013, winding up can be initiated in 2 ways by the tribunal and by the voluntary. Winding up form is filed in the prescribed form numbers 1, 2, or 3 under Section 272 and submitted in 3 sets.
Shareholders have the right to receive all information about the winding up and their credits from the company.
Types of shareholders
There are a few basic types of shareholders under the company, and those are: –
Classification of Shareholders
Preference Shareholders
Debenture Shareholders
Equity Shareholders
Shareholder activism
The term activist shareholder means a person who is investing his money, is more aware of his rights and power over the company and is also a great player in the share market with updated knowledge. Basically, if we discuss the current scenario, the activist, who is well aware of how to secure his interest and rights over the company or we can say that the shareholder, has the power to bring about changes in companies and also has the power to influence the company’s management to safeguard their interest in the company.
The necessity of activism
The term shareholder activism began in 1980, as a new rise in corporate governance became a hot topic in the 1980s, when investors were more conscious of their rights and interests. It was the beginning of a new era of activism where the shareholders were more participative towards the companies’ management and started to make an impact on the market. It is necessary to make shareholders aware of their rights so they can fight against any mismanagement or malice intention of the company’s director or, I can say, after that, they have a voice to raise against unfair participation and the right to sue the company’s director. Now shareholders have various types of legal and regulatory tools so they can control and influence those tools.
Insights of activism
In the new era of activism, there is a rise in the rights and awareness of shareholders:
Right to vote
On behalf of ownership over their share, a shareholder has the right to vote in the interest of their share ownership. For example, if a company splits some share or stock for any specific purpose, then the shareholders have the right to vote to pass or against it, and it also recognises various ways of voting for a general shareholder in the interest of protecting their rights under Section 43(2) and Section 50(1) of the Companies Act, 2013. Every member of the company who holds share capital or equity also has the right to vote to pass or fail any resolution in board meetings. Let’s see how it works, as we can see in the case of Eicher motors Limited and Royal Enfield, a subsidiary company of Eicher motors, During the 39th annual general meeting, there was a proposal for the re-appointment of the previous managing director for the next five years but the shareholders rejected that proposal in the interest of increasing the remuneration of the M.D., and the latter board clarified that according to Companies Act Section 198, the remuneration of the M.D. is not more than the cap of profit of 1.5%. This amendment in the proposal was passed by the voting and re-appointment the M.D
Right to receive information
Every shareholder has the right to inspect the annual reports of the company or any other records like the employee’s salary and insurance policy, personal details of the employees and their skills and academic record, any current machinery or property, the company’s trademarks, any 3rd party vendors, etc., the term and remuneration of the company’s directors and any information related to tax or any disclosure.
Dividends
Shareholders have the right to get their share of the company’s profits and losses in the form of dividends in the equivalent of the number of shares held by the shareholder, which makes them entitled to the company’s profit and loss in the quantum of the value of there shares.
Right to sue
Shareholders have the right to sue for any wrongful act, fraud or any act that is against securing the interest of their investment and done by directors of the company. According to the Companies Act 2013, shareholders have the right to take legal action against the company. For example, if the company transfers shares under the law at a higher price than the actual price with some mala fide intentions to secure their own interest and avoid the interest of shareholders, such an act is known as fraud, and shareholders can take legal action against the director of the company.
Foss vs. Harbottle (1843)
From this famous case few principles are laid down in said judgement passed first principle of “non-interference” and stated that courts will not intervene in those cases where the majority of the shareholders can ratify the irregular conduct but if we can see from the other side of the coin it was not in favour of the minorities shareholders that principle create a barred to taking any legal action against any misconduct that need to be ratification, and the other principle laid down “Proper plaintiff rule’’ if company face any loss due to fraudulent or negligent of the company director or any outsider in such situation only company can sue as a “separate legal entity” or a member of the company can take legal action who authorised to do in companies annual meeting through the resolution passed in the annual meeting
In addition to the above said principles, there are some exceptions as well:
If the act is ultra-vire,
The act is violative in nature of the article passed by some members of the special majority,
Invasion of claimant’s personal and individual right, and
Fraud on minority committed by majority.
Some recent insights
E- voting
Casting votes in annual general meetings is an inevitable right of shareholders. but since then, the pandemic world has changed with an upgrade in casting a vote of shareholders through the E-Voting. All listed companies must offer e-voting to shareholders at the annual general meeting.
Why E-voting
Minority shareholders who are far from the location and unable to attend annual general meetings can easily cast their vote irrespective through the E-voting mechanism. because a majority of the shares held by the shareholders have the right to vote on offered proposals and any important financial decisions. According to SEBI market regulators, all listed companies hold annual general meetings a period of 5 months before the closing date of the financial year. And offer e-voting to shareholders at the AGM.
Insights of E voting
It is easy to use, with a simple login mechanism.
Save time and money on travel.
Have sufficient time to cast vote.
The vote is recognised by board and easy to track in future.
Paperless.
Activism is either good or bad
Nowadays, it is a very general question is activism good or bad? so it is totally dependent on the agenda behind it. Activism only highlights the opportunity for an upgrade in management, company policies, etc. It depends on the circumstances; sometimes it includes lawsuits or any settlements, making amendments to company policies, improving the functionality of management, etc.
Conclusion
The shareholders are an integral part of a company. Shareholders have certain rights and responsibilities that enable them to participate in the decision-making process of the company, like the right to cast their vote in the annual general meeting and call the annual general meeting and interfere in the mismanagement of the company’s directors the appointment and re-appointment of the company’s directors and so on, to safeguard their interests. With the rise of shareholder activism, shareholders are becoming more aware of their rights. They are using various legal and regulatory tools to control and influence the management and board of the company. The importance of shareholder activism lies in its ability to hold companies accountable for their responsibilities and actions towards shareholders and their interests, improve corporate governance and promote transparency. Moreover, shareholder activism can be a positive force for change in the corporate world if it is done responsibly and with the company’s best interests in mind. Shareholder activism is an important tool for investors to promote financial growth and hold companies accountable for their actions and responsibilities towards shareholders. By leveraging their ownership stake, shareholders can push for improved transparency and a clear focus on long-term sustainability rather than short-term profits.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
This article is written by Tinkle Chawla, a graduate from Panjab University, Chandigarh and edited by Satyaki Deb (Associate, iPleaders) and Vanshika Kapoor (Senior Managing Editor, Blog iPleaders). This article will provide information relating to the important facts and details of the California Bar Exam. It will cover the details relating to important dates, steps to fill in the application fees, eligibility criteria, syllabus, career options after passing the exam, exam results and all the necessary guidelines in an exhaustive manner for the convenience of the concerned applicants.
Introduction
Preparing for the bar exam is one of the most important steps you will take in your career as an aspiring lawyer. It’s a nerve-wracking process, yet rewarding if you prepare thoroughly. You will need plenty of time to study and review both national and California laws before taking the exam.
Undoubtedly, passing this exam is a herculean task, but with the right guidance, perseverance and hard work you can pass the exam with excellent results. This exam will get you one step closer towards achieving your goal and becoming a part of the prestigious legal fraternity. Thus, proper strategy with proper planning is the key to success in the exam.
Let us learn more about the California bar exam in detail. Also this article will help you to know the career opportunities available after acing the exam.
What is the California Bar Exam
The California Bar Exam is considered to be one of the toughest and most challenging Bar exams in comparison with the other States’ Bar exam. According to the National Conference for Bar Examiners, the average pass rate for the February 2022 Bar exam was 45%, which in general reaches about 70% in other less populous states. The reason behind such a low pass rate could be the high cut-off mark which is 1390, which is above the national median cut score of 1350. However, prior to 2020, this cut-off was even higher reaching 1440. So, if you are preparing for the California Bar exam, you must be well prepared and this article will help you learn everything you need to know about this exam. It provides an insight into all the important facts pertaining to the exam such as the important dates, deadlines, the eligibility criteria, the syllabus, the pattern of the exam, the application procedure and the payment policy.
You may check the previous year’s bar exam marks, i.e., of February 2022 and July 2022 for a better understanding of the statistics of the passing rate.
Pattern of the California Bar Exam
The California Bar Exam is for those candidates who want to become a lawyer and practice in California. This exam assesses if a candidate is competent to practise law in California.
The exam consists of three unique parts:
Multistate Bar Exam (MBE)
Essay questions
Multistate Performance Test (MPT)
The MBE consists of 200 MCQs which are related to various subjects of law such as criminal law, torts, contracts, constitutional law, civil procedure and so on, as given in the syllabus portion below.
The essay portion consists of 5 essays of one hour each.
The Multistate Performance Test (MPT) is a 90-minute performance test that requires examinees to:
Sort detailed factual materials and separate relevant from irrelevant facts,
Analyse statutory, case, and administrative materials for applicable principles of law,
And the other areas, as discussed in the later part of the article in detail.
The Indian lawyers who take the California Bar Exam and clear it can get access to a wide range of opportunities and benefits that the legal industry of California has to offer. Passing the exam provides Indian lawyers with the golden opportunity to practise in one of the most diverse and dynamic states in the United States.
Reciprocity
Acceptance of MBE Score
California does not accept an MBE score from an exam taken in another jurisdiction.
In this exam, all the parts of the exam have to be taken up together, therefore, taking up the parts of the exam separately is not an option.
Admission on Motion
California does not provide for admission on motion. Examination is required of all applicants. Attorneys who have been licensed in another jurisdiction for four years may be eligible to sit for the attorney exam (written exam only).
Particulars of the California Bar Exam
The table below clearly states the various particulars of the California Bar Exam.
Mentioned below is a table which shows the parts of the California Bar Exam along with the duration and the number of questions asked for each exam.
Parts
No. of questions
Time duration
Performance Test
Two separate sets of materials, with instructions on the tasks to be performed
90 minutes
Essay Questions
5
One hour each
Multistate Bar Examination
200
Two 3-hour sessions
Details of the California Bar Exam
How the exam takes place:
The California Bar exam takes place over a span of two days.
Day 1
Three 60-minute essay questions (in the AM)
Two 60-minute essay questions (in the PM)
One 90-minute Performance Test (in the PM)
Day 2
Multistate Bar Exam (MBE), a 200-question, multiple-choice exam (100 questions in the AM, 100 questions in the PM)
California Bar Exam for Indian lawyers
For foreign-trained lawyers who wish to pursue a legal career, California is one of the most favourable places to practise law. An Indian lawyer with a licence to practise in India can take the California Bar Exam in the United States of America. Law is one of the most competitive career options in California and also one of the most difficult exams to clear for most foreign-trained lawyers.
The California Bar Exam is the gateway to managing the admission of lawyers to practise law, keep in check any kind of professional misconduct, perform investigation, if needed, adapt appropriate discipline and accept fees of the attorney.
Even though the exam is one of the most challenging exams in the United States of America, it is still very rewarding.
The exam happens twice each year in the months of February and July. It is conducted within the span of two days.
Important dates and deadlines, 2023
Exam Name
Exam Date/s
Availability for Application
Deadline
Final Deadline
July 2023 CBX
July 25-26, 2023
March 01, 2023
April 03, 2023
June 01, 2023
October 2023 FYLSX
October 24, 2023
July 07, 2023
Aug 01, 2023
Sept 15, 2023
October 2023 CLSX
October 24, 2023
Aug 01, 2023
Aug 15, 2023
Sept 15, 2023
The full form of the terms used in the above table is mentioned below:
CBX stands for California Bar Examination:
The California Bar Exam is for those candidates who want to become a lawyer in California. This exam assesses if a candidate is competent to practise law in California.
CLSX stands for Certified Legal Specialist Exam:
It is a one-day test given remotely in October every odd-numbered year. An applicant seeking State Bar legal specialisation certification must first take this exam.
FYLSX stands for First Year Law Students’ Exam:
FYLSX or “baby bar” is a one-day test that is offered twice a year, in June and October. Law students completing their first year of law study in a juris doctor degree at a State Bar registered law school or through the Law Office Study Program must take this exam after completing their first year of law study.
Expected date for the California Bar Exam, 2024
Most probably, the chances are that the application for the February 2024 Bar Exam will begin on “October 01, 2023”, and the fee as prescribed by the National Conference for Bar Examiners will be assessed from that period.
There is a reduction in the number of testing locations for the February 2024 exam as stated by the Board, through its Executive Committee, held on August 10, 2023. The testing centre locations will be posted when the application for the February Bar Exam opens on October 01, 2023.
Important notice if you are planning to appear for the California Bar Exam in 2024
The State Bar has decided on an increase in the fee structure which will be adopted by the State Bar Board of Trustees during its September 21-22 meeting. The proposal that was circulated for public comment through July 31, 2023, proposed to increase the exam fee for non-attorneys from $677 to $850. For attorneys, the proposal is to increase the exam fee from $983 to $1,500. However, these fee amounts do not include the laptop fee or any late fees, the amounts of which remain unchanged. The application for the February 2024 bar exam is expected to open on October 1, 2023. The fee adopted by the Board will be assessed as of that date.
On August 10, 2023, the Board, through its Executive Committee, approved reducing the number of testing locations for the February 2024 bar exam. The testing centre locations will be posted when the application for the February 2024 bar exam opens on October 1.
Eligibility criteria for the California Bar Exam
There are certain criteria for the eligibility to sit in the California Bar Examination, which are as follows:
If the candidate is a qualified lawyer in their home country, then they can sit for the California Bar Exam.
If the candidates have a law degree but it is not licensed, then they can also sit for the California Bar Exam.
If the candidate has completed their LLM with at least 20 credits at an American Bar Association (ABA) or California-accredited school, they are eligible for this exam.
As a part of the 20 credits, the candidates must take a professional responsibility class that covers professional conduct as per the ABA Model Rules and federal and state case law on the subject.
The student must have taken at least 3 classes in subjects that appear on the bar exam.
Syllabus for the California Bar Exam
The Indian students who want to make their career as a lawyer and are going to take the California Bar Exam must be aware of the entire syllabus of the exam. The syllabus will give an idea of the subjects to be prepared for the California Bar Exam. The syllabus of the exam is mentioned below:
Civil Procedure (Federal* and California)
Constitutional Law*
Criminal Law and Procedure*
Professional Responsibility
Remedies
Trusts
Business Associations (including Agency, Partnership, LLCs and Corporations)
Community Property (Real Property*)
Contracts*
Evidence (Federal* and California)
Real Property*
Torts*
Wills and Succession
Note: Subjects with an asterisk (*) are tested on both the essay and multiple-choice portions of the California Bar Exam. All other subjects are tested only on the essay portion of the exam.
The detailed syllabus of each subject is discussed below:
Civil Procedure
This law is related to how the cases get into the court and how they work through trials and appeals. The candidates need to be well versed with both federal and Californian laws surrounding the civil procedure and be able to talk about the differences between them.
Few previous years’ essay questions:
Here are a few essay questions with student answers that is recommended that you practise to get exposed to some highly tested topics in Civil Procedure:
July 2017 Civil Procedure essay: this essay applies federal law and covers the joinder of claims, pleadings, subject-matter jurisdiction, and the Erie doctrine (see essay # 4 on the exam).
Constitutional Law
In this, the candidates will be tested on their knowledge of the U.S. Constitution and how it is executed and applied to real-world situations.
Few previous years’ essay questions:
Here are a few essay questions with student answers that are recommended that you practise to get exposure to some highly tested topics in Constitutional Law essay questions:
July 2019 Constitutional Law essay (combined with Remedies): This essay covers the standing of an organisation, ripeness, mootness, the Free Exercise Clause, the Establishment Clause, and free speech (see essay question #2 on the exam).
July 2018 Constitutional Law essay: This essay covers the Dormant Commerce Clause, the Privileges and Immunities Clause of Article IV, the Equal Protection Clause, the substantive Due Process Clause, and the Contracts Clause (see essay question #5 on the exam).
February 2018 Constitutional Law essay: This essay covers the Establishment Clause, the Free Exercise Clause, the Equal Protection Clause, and the substantive Due Process Clause (see essay question #2 on the exam).
Criminal Law and Procedure
It covers all the details of criminal law and procedure from trial to appeal. The student has to understand the implications of charges and police conduct and how it may affect admission of evidence, criminal convictions and release, and sentencing.
Few previous years’ essay questions:
Here are a few essay questions with student answers that are recommended that you practise to get exposure to some highly tested topics in Criminal Law and Procedure essay questions:
October 2020 Criminal Law and Procedure essay: This essay covers Criminal Law, Criminal Procedure, accomplice liability, burglary, larceny, conspiracy, duress, lineups, and the Fourteenth Amendment Due Process Clause (see essay question #4 on the exam).
February 2018 Criminal Law and Procedure essay: This essay covers Criminal Law, Criminal Procedure, the Fourth Amendment, plain-view exception, exclusionary rule, inevitable discovery, attempt, and kidnapping (see essay question #4 on the exam).
Professional Responsibility
Professional Responsibility is one of the most daunting subjects on the California Bar Exam. Not only is it always tested in some form on the exam (either on the essay portion or the performance test), but it sometimes shows up more than once on a given exam and is often combined with other subjects.
Additionally, examinees are expected to know both the California ethics rules (found in the Rules of Professional Conduct of the State Bar and in the State Bar Act, which is found in the California Business and Professions Code) and the American Bar Association (ABA) Model Rules of Professional Conduct (MRPC). (This guide will refer to the California ethics rules as the “California rules” and the ABA MRPC as the “ABA rules.”)
Few previous years’ essay questions
Here are a few essay questions with student answers that are recommended that you practise to get exposure to some highly tested topics in Professional Responsibility essay questions:
February 2021 Professional Responsibility exam: This essay applies the ABA and California rules and covers payment for recommending a lawyer’s services, solicitation, sharing fees with a nonlawyer, forming a partnership with a nonlawyer, concurrent conflicts of interest, sexual relationship with the client, duty of competence, diligence, fee agreements, duty to report another lawyer, and California rule concerning threats to an attorney (see essay question #4 on the exam).
October 2020 Professional Responsibility essay: This essay applies the ABA and California rules and covers concurrent conflicts of interest, fairness to opposing counsel, decisions to be made by lawyer and client, the duty of competence, diligence, the duty of candour, and mandatory vs. permissive withdrawal (see essay question #1 on the exam).
February 2020 Professional Responsibility essay: This essay applies the ABA and California rules and covers fee agreements, concurrent conflict of interests, the duty of loyalty to an organisation, communication with unrepresented persons, and truthfulness in statements to others (see exam question #2 on the exam).
Remedies
Tort, Contract, and other legal areas allow the person who has been mistreated, a chance to get a remedy through the judicial process and the California Bar Exam tests whether a candidate is well-versed in such matters. The tested remedies include injunctions, compensatory damages, restitution, and punitive damages. Hence, the candidates must be aware of the aforesaid remedies.
Few previous years’ essay questions:
Here are a few essay questions with student answers that are recommended that you practise to get exposure to some highly tested topics in Remedies essay questions:
February 2021 Remedies essay (combined with Contracts): This essay applies the UCC and covers contract formation, the Statute of Frauds, the perfect-tender rule, warranties, revocation of acceptance, expectations, compensatory damages, and rescission (see essay question #2 on the exam).
July 2017 Remedies essay: This essay applies general law and covers TROs, preliminary injunctions, specific performance, unclean hands, misrepresentation, and unilateral and mutual mistakes (see essay question #3 on the exam).
Business Associations
The lawyers must prepare to give answers about the issues regarding the Business Associations, including Corporations, Partnerships including General Partnerships, Limited Partnerships and Limited Liability Partnerships, Joint Ventures, Sole Proprietorships Limited Liability Companies, and the concept of Agency.
Few previous years’ essay questions:
Here are a few essays to practise:
February 2020 Agency and Partnership essay: This essay applies general law and covers the formation of a general partnership, actual authority, and apparent authority (see essay #5 under Business Associations).
February 2015 Agency and Partnership essay (combined with Torts): This essay applies general law and covers the formation of a general partnership, vicarious liability, partnership liability, actual authority, and apparent authority (see essay #5 under Business Associations).
Community Property
Community property on the California Bar Exam is generally tested under a number of different circumstances. Here’s what you should look out for:
Identifying the end of the marital community
Drawing the line between separate and community property
Quasi-community property is often tested by the examiners and you should be aware of fact patterns that include this concept.
Test-takers should be on the lookout for these types of facts.
For instance, most essays have a “Husband” and “Wife” character beginning with the letters “H” and “W” (e.g., Herb and Wanda, Henry and Wilma, etc.). So, if you see “H” and “W” characters on a California Bar Exam essay, that should be your cue that you are reading a Community Property question.
Community Property generally is tested on its own rather than with another subject. However, Community Property has been combined with Trusts, Wills, and Professional Responsibility.
Contracts
Contracts are regularly tested on the California Bar Exam. Given below are a few of the highly tested contract topics
a. Contract formation (Offer, Acceptance and Consideration)
b. the parol evidence rule: The parol evidence rule is an issue when a party is trying to add a term from preliminary negotiations (or a contemporaneous oral term) to a final (integrated) written agreement. If the writing is a complete integration, no terms will be admitted. If it is a partial integration, consistent terms will be admitted.
c. performance duties under Common law
Few previous years’ essay questions:
Some of the highly tested essay topics on contracts are as follows:
February 2020 Contracts essay: This essay covers common law, contract formation, consideration, the parol evidence rule, and specific performance (see essay question #3 on the exam).
July 2018 Contracts essay: This essay covers the UCC, anticipatory repudiation vs. prospective inability to perform, waiver of a condition, contract modification, demand for adequate assurances, and damages.
Evidence
The candidates must know the difference between federal and state laws surrounding the discovery and use of evidence.
Few previous years’ essay questions:
Here are a few essay questions with student answers that we recommend you practise to get exposed to some highly tested topics in Evidence essay questions:
February 2021 Evidence essay: This essay applies the CEC and covers relevance, lay witness testimony, examination at trial, impeachment, policy exclusions, bias, character evidence, MIMIC, privileges, hearsay, hearsay exclusions, and hearsay exceptions (see essay question #1 on the exam).
February 2020 Evidence essay: This essay applies the CEC and covers Proposition 8, relevance, hearsay, hearsay exclusions, hearsay exceptions, authentication, privileges, lay witness testimony, and impeachment (see essay question #4 on the exam).
February 2019 Evidence essay (combined with Civil Procedure): This essay applies the FRE and covers relevance, policy exclusions, hearsay, hearsay exclusions, hearsay exceptions, expert witness testimony, and impeachment (see essay question #4 on the exam).
Real Property
Real property comprises people’s right to interests in land or real property and tangible personal property which also includes leases, mortgages, easements, liens, and foreclosure processes. The applicant must be aware of these concepts and prepare thoroughly.
Few previous years’ essay questions:
Here are a few essay questions with student answers that are recommended that you practise to get exposure to some highly tested topics in Real Property essay questions:
February 2021 Real Property essay: This essay covers easements, real covenants, and equitable servitudes (see essay question #5 on the exam).
October 2020 Real Property essay: This essay covers fee simple absolutes, joint tenancies, adverse possession, sharing rent received from tenants, and paying taxes (see essay question #3 on the exam).
February 2019 Real Property essay: This essay covers a tenancy for years, the effect of the tenant’s failure to pay rent, the covenant of quiet enjoyment, breach of the implied warranty of habitability, surrender, waiver, and the landlord’s duty to make repairs (see essay question #3 on the exam).
Torts
In torts, it includes carelessness and other types of private harm, such as animal attacks, auto accidents, nuisances etc. The lawyers will need to know both California and national principals.
Few previous years’ essay questions:
Here are a few essay questions with student answers that are recommended that you practise to get exposure to some highly tested topics in Torts essay questions:
February 2019 Torts essay: this essay covers strict liability, negligence, premises liability, contributory negligence, comparative negligence, and assumption of the risk (see essay question #2 on the exam).
July 2017 Torts essay: this essay covers negligence, negligence per se, defences to negligence, strict liability, and joint and several liability (see essay question #5 on the exam).
Wills and Succession and Trust
The applicants must understand the workings of the wills and trusts, how they are created and used and how the probate code of California works.
The complete syllabus is as follows:
Division 6 Wills and Intestate Succession
Part 1. Will
Chapter 1. General Provisions, Sections 6100, 6101, 6104, 6105
Chapter 2. Execution of Wills, Sections 6110-6114
Chapter 3. Revocation and Revival, Sections 6120, 6120, 6123
Part 2. Intestate Succession, Sections 6400-6402
Division 11. Construction of Wills, Trusts and Other Instruments
Part 1. Rules of Interpretation of Instruments, Sections 21106, 21109, 21110
Part 6. Family Protection: Omitted Spouses and Children [for decedents dying on or after January 1, 1998]
Chapter 2. Omitted Spouses, Sections 21610-21613
Chapter 3. Omitted Children, Sections 21620-2162
Few previous years’ essay questions on Wills:
Here are a few essay questions with student answers that are recommended that you practise to get exposure to some highly tested topics in Wills essay questions:
February 2018 Wills essay (combined with Community Property): this essay applies California law and covers facts of independent significance, a pretermitted spouse, intestacy, an omitted child, and antilapse statutes (see essay question #5 on the exam).
Few previous years’ essay questions on Trusts:
Here are a few essay questions with student answers that are recommended that you practise to get exposed to some highly tested topics in Trusts essay questions:
February 2019 Trusts essay (combined with Wills and Community Property): This essay applies general law and covers revocable trusts and a creditor’s ability to reach trust property (see essay question #1 on the exam)
February 2016 Trusts essay (combined with Wills although not classified as such): This essay applies general law and covers the creation of trusts, pour over wills, A trustee’s refusal to serve, revocation of trusts, the duty of loyalty, the duty of care, the duty of prudence, the duty to account, the duty of impartiality, the Uniform Prudent Investor Act (UPIA), co-trustee standing, and when a beneficiary violates terms of a trust (see essay question #1 on the exam).
Parts of the California Bar Exam in detail
By now, we know that the California Bar Exam consists of three parts:
Performance Test
Essay Questions
Multistate Bar Examination
Performance Test
The duration of the Performance test is 90 minutes. In this test, a factual problem that involves a client is given and the ability of the candidate to handle such a situation is evaluated.
Few tips to study for the Performance Test:
Read the Task Memo first.
Keep in mind the jurisdiction in the Performance Test is based.
First master the highly tested tasks and prioritise your views.
You must know how to format highly tested tasks.
Practise using a timer
Tally your score and self-grade yourself.
Essay Questions
The section consists of five easy questions. The purpose of testing these questions is to evaluate the ability of the applicant to analyse the legal issues which arise from the facts given or the patterns stated.
Few tips while writing an essay:
One should not forget the IRAC technique, i.e., Issue, Rule, Analysis and Conclusion
The best way to use IRAC on an essay exam is as follows:
By creating a heading that is underlined and briefly identifies the issues, e.g., Battery.
State the applicable rule(s).
Apply the law to the facts and analyse arguments on both sides (when appropriate).
Arrive at and state a conclusion to the issue. Even if there are valid arguments on both sides, you should still try to arrive at a conclusion.
Multistate Bar Examination (MBE)
The MBE is conducted by the National Conference of Bar Examiners (NCBE). The Exam consists of 200 MCQs which will be conducted in two three-hour sessions for a total of six hours. The candidates will be tested on the following seven subjects which are:-
Constitutional Law
Criminal Law
Real Property
Civil Procedure
Contracts
Evidence
Torts
Few tips to study for Multistate Bar Examination:
Learn and memorise the law.
Focus on the highly tested topics.
Answer questions one by one when you are trying to improve your MBE score.
Practice answering MBE questions using a timer.
Use released bar exam questions.
Write down whenever you forget the law.
Know your weaknesses.
Never ignore the written portion of the exam.
Don’t try to complete 100 questions in a hurry in order to increase your MBE score.
Multistate Professional Responsibility Exam (MRPE)
To practise law in California, the candidate must not only pass the California Bar Exam but they have to pass the Multistate Professional Responsibility Exam (MPRE) also.
This is a two-hour, 60-question multiple-choice examination that is held three times a year. It was developed by the National Conference of Bar Examiners (NCBE).
The MRPE is required for admissions to the bars of all but two US jurisdictions (Wisconsin and Puerto Rico).
After the registration is complete, applicants can choose to take the MPRE anytime after the completion of their first year of law school. For this, they can register with the State Bar.
The Indian Lawyers who want to take the California Bar Exam have to fill out the application form for the examination. Below are the steps to fill out the application form:
After that, select the ‘California Bar Examination Application’ under the ‘Examinations’ menu.
To start the filling process, click ‘Launch Application.’
Fill in all the required details.
Once all the details are filled, a verification tick box will appear.
Click on the submit button.
Then the declaration form will appear on the screen.
After signing the declaration form, make the payment.
Then, you will receive the confirmation mail once the application form has been submitted.
Payment Policies
Payments via cards:
Payments can be made via cards such as credit cards or debit cards and a processing fee of 2.5 percent will be added to all charges. In case of any failure, you will have to provide another Mastercard, Visa, American Express or Discover card for successful submission.
Payment by other methods:
You may also make payments by a method in which there is no processing fee associated with payment by ACH.
To do so, you will need your Bank Routing Number and Bank Account Number.
However, a period of approximately seven days, i.e., a week, is taken to process such payments.
And if within those seven days, the payment is returned, your application will be considered incomplete. The reasons could be any, such as insufficient funds or any other valid reason. But it can be completed by making replacement payments along with service charges.
However, a $20 service charge will be applicable for all the declined payments, which will be given priority at the time of resubmission. The application deadline will be enforced if the payment is not made within the given deadlines.
Refund of Fees policy
As per the State Bar policies, refunds will only be provided for the withdrawal of any of the following applications:
If you are filing a registration form
If you are applying to take the California Bar Examination
If you are applying to take the First-Year Law Students’ Examination
If you are applying for a Determination of Moral Character
If you are applying to get the determination of Moral Character extended
However, prior registration is mandatory. The registration form may be filed simultaneously at the time of application.
If there is no approval within 10 days of receipt, then the application and fees will be returned.
Also, there will be no transfer of fees from one examination to another.
Withdrawal Request
In order to process a refund according to the schedule, you must send in a withdrawal request to the State Bar’s Office of Admissions through the Admissions Cal. Bar Admissions. All this must be done within the established deadlines.
However, stopping payment on a check, dishonouring a check, or disputing a credit card charge does not constitute withdrawing from an exam.
Withdrawal Request or Refund for the California Bar Exam/First-Year Law Students’ (FYLS) Exam
A 30-days time period, after the last date of filing, is given to the applicants who applied for the first time and even the repeater applicants to request for withdrawal and any refund. However, a 60 percent refund of all fees paid in consonance with the subject exam will be honoured.
If there is any delay made by the first-time applicants for withdrawal of applications and refunds, say 45 days after the last date of filing, then there will be a 30 percent refund of all fees paid in consonance with the subject exam.
This criterion is applicable to all the applicants, be they the ones who have previously taken an exam recently or any time prior.
For the repeater applicants, if any requests for withdrawal of applications and refunds are received within 35 days after the last date of filing, then there will be a 30 percent refund of all fees paid in consonance with the subject exam.
However, refunds will not be considered for:
Requests for refunds filed in excess of 35 days after the last date of filing, by applicants seeking to repeat the exam, having been unsuccessful on the exam immediately preceding the exam into which current admission was sought.
Requests for refunds are filed more than 45 days after the last date of filing, by first-time applicants and applicants who have previously taken an exam but not a recent one.
Withdrawal of applications for the determination of Moral Character
Any requests for withdrawal of applications for the determination of Moral Character, if received within 30 days of the last submission date, will be entertained with a 60 percent refund of all fees paid in consonance with the aforesaid application.
After 30 days, no request for a refund will be entertained.
Ineligibility in case of registration/examination
The applicants must check all the eligibility criteria before applying. In case, they lack in criteria, say the pre-legal education, which is the top criterion, then they will be qualified for a 100 percent refund of all fees paid.
Attorneys’ exam
In order to process an Attorney’s Exam refund due to ineligibility and also as per the schedule, there must be submission of certified transcripts or certificate(s) of good standing with the State Bar’s Office of Admissions. It must be done within the established deadlines published to avoid any hassle or rejections.
Whereas the applicants who applied to take the Attorneys’ Exam, if they are found to be ineligible due to paucity of any requisite qualifications, then they will receive a 60 percent refund of the fees paid.
General Bar Exam
Applicants who apply for the General Bar Exam and are found to be ineligible due to paucity of any requisite legal education may also apply for a refund. But, they will receive a 60 percent refund of the qualifying fees paid.
First-Year Law Students’ Exam
If there is any ineligibility found due to a lack of the requisite legal education in the applicants who want to take the First-Year Law Students’ Exam, then they will receive a 60 percent refund of qualifying fees paid.
Death or physical incapacity
In the case of any death or physical incapacity, if any refund is claimed, then an amount of 95 percent of all fees paid in conjunction with the subject exam will be made. This will be done according to the schedule.
The refunds, in the case of physical incapacity, will only be made in cases of severe unavoidable and incapacitating circumstances.
Any request for a refund must be accompanied by the relevant documents for quick approval.
The conditions that may prevent an applicant from taking the First-Year Law Students’ Exam or the Bar Exam are listed in the schedule below:
In the situation of any Death, or injury (either serious or disabling injury) that takes place of a member of the applicant’s immediate family after the submittal of an application for the exam but before the administration of the exam and also that information about death, illness, or injury is certified on the Committee’s Request for Refund of Fees Form or verified through the provision of a copy of the death certificate;
If the applicant is inflicted with any serious illness, or injury, or weakening condition that occurred after the submittal of an application for the exam but before the exam is administered and that illness, or injury, or condition is certified on the refund form under penalty of perjury; and
Occurrences that are calamitous in nature that happen with the applicant such as loss of freedom due to terrorist acts or disorientation due to fire, flood, or other severe disaster, over which the applicant had no control, and the existence of which had not terminated 30 days or less before the administration of the subject exam.
If an applicant belongs to the armed forces, there might be situations when he/ she would find it impossible to either take the exam or prepare for it. The situation might be as follows:
If the applicant is called for active duty in the armed forces in case of any emergency; or
There is an unanticipated change in military orders.
To avoid any kind of unfairness with these applicants, there will be a good refund made in the amount of 95 percent of all fees paid in conjunction with the subject exam so that they do not get demotivated to apply again in future.
Application abandonment
In general, registration will be considered approved when all the requisite formalities are fulfilled such as the appropriate fees, properly sized signature, duly executed declaration, and all documentation.
Whereas, if the status of the registrations is not brought to approval within 60 days of receipt then that registration will be considered as abandoned.
The conditions under which the First-Year Law Students’ Exam and Bar Exam applications will be deemed abandoned are as follows:
(1) signature not provided,
(2) due declarations not received,
(3) fees not received or incomplete,
(4) incomplete applications, and
(5) registrations that are approved are not mentioned in the record.
(6) any fee payments made after the last date of filing will render those applications to be abandoned.
Thus, the applications will not be brought to a complete and filed status by the final filing deadline.
(7) if the eligibility determinations are not met.
(8) Moral character determination applications that are not brought to a complete status within 60 days of the last date of filing will be deemed abandoned.
This includes the improper fees, signature, or any requisite documentation.
Once the moral character determination application is in submitted status, if the applicant receives notice to provide information, but does not provide such information within 90 days of the request, the application will be abandoned.
In all such situations, there will be no refund of fees.
However, If the registration or application has an outstanding balance at the time of the abandonment, the outstanding balance must be paid before any future registration or application is processed.
Net refund amount
In accordance with the Refund of Fees Policy, if an applicant becomes eligible for a refund and has an outstanding balance due for subject registration, application, or other transactions, then there will be a set-off between the qualifying refund amount and the corresponding portion of the fees owed or balance due for other transactions. That is, the refund amount will be deducted from that portion of the fees corresponding to it.
Exam results
The results of the California Bar Exam are released about 12 to 14 weeks after the February exam takes place and 16 to 18 weeks after the July exam happens. Candidates can check the results through the Applicant portal by visiting the official website which is https://apps.calbar.ca.gov/exam/default.aspx.
There is a difference in the presentation of the results when the applicants fail or pass. For instance, when the applicants fail the exam, they receive the grades mentioned with the written answers as well as their MBE-scaled score.
Also, their answer files are posted in the Applicant Portal. It is done as soon as the exam results are posted. However, successful applicants do not receive their grades mentioned along with the written answers. Just the MBE score will be mentioned.
How to prepare for the California Bar Exam
The preparation may take months. Therefore, you must start looking at various factors which surround the exam, such as
What legal topics does the bar exam cover?
The syllabus has been discussed in detail above.
How is the exam graded?
Look for previous year’s questions and answers
What is scaling?
How is the exam graded
There are two exams namely,
General Bar Examination, and
Attorneys’ Examination.
Which comprises the California Bar Examination.
The General Bar Exam is divided into parts as follows:
five essay questions,
the Multistate Bar Exam (MBE), and
one performance test (PT).
The parts of the exam may not be taken separately, and California does not accept the transfer of MBE scores from other jurisdictions.
Whereas the Attorneys’ Exam consists of essay questions and performance tests.
Essay questions
The motive behind the essay questions is to evaluate the legal analysis aptitude of the candidate, under a given situation. Each essay question is required to be completed in one hour.
The expectation is that the applicant is able to analyse the facts in the question, point out the material facts and immaterial facts separately, and mention the law points and factual data separately.
The answer must show the expertise, skill, knowledge and understanding of the particular principles and theories of law and their relationships to each other. They must also understand the limitations and mention them accordingly.
The answer should be in such a way that it represents the applicant’s capability to apply the law to the given facts and to reason in a logical and professional manner from the methodology adopted and come to a sound conclusion.
Merely showing how well the legal principles are remembered will not be enough. Rather how well the demonstration of those principles is done will be checked.
Performance Test
The time duration of the Performance Test (PT) questions is 90 minutes.
PT is designed to judge an applicant’s ability to handle a selected number of legal authorities in the context of a factual problem that involves a client.
It consists of two separate sets of materials:
a document and
A collection,
These materials act as a manual advising the applicant on the task(s) to be performed. In addition to this, PT questions require applicants to:
Go through the detailed factual material and separate relevant from irrelevant facts, assess the consistency and reliability of facts, and determine the need for and source of additional facts;
Analyse the legal rules and principles applicable to a problem and formulate legal theories from facts that may be only partly known and are being developed;
Recognize and resolve ethical issues arising in practical situations;
Apply problem-solving skills to diagnose a problem, generate alternative solutions, and develop a plan of action; and
Communicate effectively, whether advocating, advising a client, eliciting information, or effectuating a legal transaction.
The result of the applicant’s performance test (PT) is graded on its compliance with the rules and instructions given and on its content, thoroughness, and presentation.
There is a Committee of Bar Examiners that comprises approximately 150 experienced attorneys from which graders are selected for the purpose of each grading cycle.
These graders are well-experienced and have an evaluation experience of at least five years. Few of them even have an experience of more than 10 years. Thus these graders are well-read and knowledgeable people who assess the answer sheets and grade them accordingly.
Six groups are selected to grade the essay and PT answers. These groups consist of experienced graders and up to four apprentice graders. For the purpose of calibration, the groups convene at least three times early in the grading cycle.
A member of the Examination Development and Grading Team and a member of the Committee supervise each group of graders.
The grading takes place in three sessions by the graders in order to reach a final and correct score, which is discussed in detail below;
1. At the first session, the graders discuss what answers to accept for the questions i.e. go through a set of sample answers and have an intense discussion on it to maintain parallelism. These sample answers are written by a sample of the applicant pool which they receive prior to the session.
After this discussion, each grader is allotted 15 copies of answers submitted for the current exam. They begin assessing it by reading and then assigning a grade to the first answer in the set. The group then discusses the same before arriving at a consensus, and the process is repeated for each answer in the set.
After reaching a consensus on the set of 15 books, the graders independently read a new set of 25 answers. This time there is no further group discussion. They assess and submit grades for analysis and review at the second calibration session.
2. At the second session, there is a discussion about the first meeting regarding the results. Whenever there is disagreement on any of the answers, they re-read it and resolve the differences through further discussion.
With this, an additional set of 10 answer books are read and marked. Also, discussion takes place in order to reach a consensus. The groups are then given their first grading assignments.
3. During the third calibration session, there is a review of the grading standards and 15 additional answer books are given. They read them as a group to ensure that they are still grading to the same standards.
Solely on the basis of the content of the response, the graders evaluate answers and assign the grades.
However, certain additional factors such as handwriting or the accuracy of spelling and grammar are totally irrelevant while grading an answer.
A specific code number is assigned to each answer. The graders know nothing about an individual, which ensures transparency and an unbiased nature of the grading procedure
Based on the discussions of the panel and the set standards, graders assign rough scores to essay and performance test (PT) answers in five-point increments on a scale of 40 to 100.
To earn a grade of 40, if the applicant is able to identify the subject of the question and apply the law to the facts of the question, then it fetches him a grade of 40.
Otherwise, the answer is assigned a zero, if these criteria are not met.
Phased grading
All the applicants who have completed the entire exam, all of their answers are read at least once before reaching a conclusion.
After one reading, scores are already established as per the empirical studies to declare the result as either pass or fail.
The applicants’ whose scores after the first read are near the required passing score, all answer books are read a second time, and scores of the first and second readings are averaged. Now this averaged score is used to make a second set of pass/fail decisions.
There is a minimum score required to pass the exam, as follows:
In the first phase of grading, if an applicant has a total scale score (after one reading) of at least 1390 out of 2000 possible points, then the applicant is considered to have passed the exam.
Any total scale score after one reading below 1350 is considered a failure.
If the applicant’s total scale score is somewhere between 1350 and 1390 after one reading, that means there is scope for a second reading, but this time by a different set of graders.
If after two readings, the averaged total scale score is 1390 or higher, the applicant passes the exam. Applicants with averaged total scale scores of less than 1390 fail the exam.
Reconsideration of grade
The Committee of Bar Examiners believes strongly in its grading methodology and administrative systems. By this system, the applicants can get a careful and detailed consideration of their answers which ensures a fair opportunity for each applicant and removes any kind of bias.
All scores are checked for any mathematical errors. This is done on its own as there is no such long procedure for this. All answers with scores after one reading are re-checked by a different set of graders. Also, a double check is done before the final release of grades, to avoid any mathematical errors. Thus, for these reasons, any kind of reconsideration is accepted only when it is accompanied by relevant documents as evidence, in case some clerical error resulted in failure or prevented the exam from being properly graded.
All requests for reconsideration of grades must be received by the Office of Admissions within two weeks after the release of exam results.
Previous years’ question papers for the California Bar Exam
To prepare well, you should go through the previous years’ question papers to study thoroughly. This way, you will know where you lack in your preparation and what you need to study more.
You may find the previous years’ question papers on the official website as mentioned below:
Career options after passing the California Bar Exam for Indian lawyers
The candidates who are appearing for the California Bar exams have various career options after clearing the examination which are as follows:
The candidates can find employment at In House Counsel with a corporation as an attorney for the company.
After passing the exam the candidates can work as an Arbitrator or Mediator in any state.
Candidates can choose to become Law school professors, University or College professors for Law or even a paralegal.
Top 10 legal careers for Indian lawyers in California
The legal profession is one of the highest-paying jobs in California. Therefore, the legal profession attracts a lot of people in California as well as in the USA. Below are the top 10 legal careers for Indian Lawyers:
General Counsels
Mediators, Arbitrators or Conciliators
Litigation Support Roles
Legal Specialist Roles
International Organizations
Litigation and Trial Lawyers
Academia
Judge
Law Firm Consultant/ Legal Recruiter
Law Firm Administration
Words of motivation
The California Bar Exam, while challenging, is not impossible to pass. Making a feasible and practical timetable, to which you can stick, following the right approach and doing periodic revisions, can help you in getting through the first attempt itself.
Apart from this, consistency and perseverance are the key factors which will ultimately help you in reaching your goal.
It doesn’t matter even if you have been average in your studies, all you need is to trust yourself and start your preparation and keep following the strategy till the end. And yes, don’t forget the revisions.
Good Luck!
Frequently Asked Questions (FAQs)
What subjects are tested in the California Bar Exam?
The subjects tested on the California Bar exam are Federal Rules of Civil Procedure, California Professional Responsibility, Agency, California Civil Procedure, Partnership, California Community Property, Corporations, California Wills and Succession, California Evidence, Contracts, Remedies, Trusts, Criminal Law and Procedure, Constitutional Law, Evidence, Real Property, and Torts.
When are the California Bar Exam results released?
For the February session, results are released about 12-14 weeks after the session and 16-18 weeks after the July session.
How many times can anyone take the bar exam in California?
There is no limit to the number of times that a person can appear for the bar exam.
What is the passing score for the California Bar Exam?
If the score is over 1440, you automatically pass the California Bar Exam. If after one reading of your answers, your score is below 1390, you fail the exam and if it is above 1390 but less than 1440, you will get a “second read” by a different set of graders.
How long does it take to prepare for the California Bar Exam?
It varies from person to person, but you should give yourself around 6 months to go over everything you need to know.
How to pass the California Bar Exam in first attempt?
There is no shortcut to clear any exam but with a few points in mind, clearing the exam on the first attempt is not impossible. The guidelines one should follow while preparing are given below:
Understand what the California bar is testing and what is needed to pass.
Understand the issues being tested for each topic.
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