In this blogpost, Sudhi Ranajn Bagri, Student, National Law Institute University, Bhopal, critically analysis the guidelines issued by the Indian Patent Office in 2015.
Introduction
A Patent is a statutory right, granted to the patentee by the government, for an invention and is granted for a limited period of time. Although the situation regarding patents, in most areas of technology, have significantly changed over years in India, there exists a segment of ‘software inventions’ wherein no significant developments has been noticed, neither by patent office nor by the judiciary.
Legal History of Section 3(k)
To understand this situation more clearly, the history of the provisions governing the patentability of software under the Patents Act needs to be looked into:
There was no provision in the Patents Act, 1970, to govern the patentability of software; it was in the year 2002, that provision to govern such a situation was inserted.
June 25, 2002: Section 3(k) was introduced in the Patents Act,1970. It provided for excluding mathematical, business methods, computer program per se or algorithms from getting patented.
December 26, 2004: Patent (Amendment) Ordinance 2004, was promulgated to amend Section 3(k) with intent to extend patentability to “Computer programmes having technical application to industry or in combination with hardware”. The Ordinance came into force on January 1, 2005.
April 4, 2005: The Patents (Amendment) Act, 2005 repeals the 2004 Ordinance. Patents Act 1970 restored to its original form.
August 21, 2015: Guidelines for Examination of Computer Related Inventions released by Indian Patent Office. The guidelines provides that:
Mere use of mathematical formula in a claim to clearly specify the scope of protection being sought would not render the claim a mathematical method. Eg. Method of encoding, decoding, encryption
While business methods are non-patentable, if the claimed matter specifies an apparatus or technical process for carrying out invention even in part, the claims to be examined as whole
So long as a computer programme is not claimed in itself, but in a manner so as to establish industrial applicability and fulfils all other criteria of patentability, the patent should not be denied.[1]
General rule regarding patentability
The Patents Act provides that an invention could be patented. However, for an invention to become patentable, the subject-matter of the invention must meet the following criteria-
It should be novel in nature.
It must not be obvious or should have inventive
It should be capable of Industrial application.
It should not fall within the provisions of section 3 and 4 of the Patents Act, 1970.
However, the matter with which we are concerned here is covered under Section 3 of the Act. When the concerned provision was enacted, it was in the nature of providing a blanket ban for patentability of the computer programs. In other words, it intended that no computer program, whatsoever, must be allowed to get patented.[2]
Guidelines issued in 2015
The Guidelines provide that the claim can be considered an invention if it specifies equipment or a technical process for carrying out a business method or demonstrates a practical application of a mathematical method. This violates the true intent of Section 3(k) of the Patents Act as it means that such process/application could be the subject of patenting if it meets the other tests of patentability.
The Guidelines also lay down that a patent should not be denied on the ground that the claim is regarding patenting of software if it is established that such invention has some industrial applicability of the invention.
The Guidelines further states that permit patents may be granted where a claim shows novel software with known hardware, which goes beyond the normal interaction with that hardware and that affects a change in functionality of the hardware.
Criticising points in the Guidelines
The new Guidelines which have been issued directly go against the previous statutory provision, and hence can be termed as ‘ultra vires’.
The guidelines can be said to be against the globally accepted principles of patenting law, according to which the abstract ideas, mathematical models occur naturally/are found in nature and as such are not ‘invented’, but merely ‘discovered’.
Some are of the view that if software patents are allowed in our IT industry, it would do more harm than good, and can be seen as a “plague” to the Indian software industry.
Problems with the guidelines
Carefully examining the guidelines, it can be interpreted that the guidelines which have been issued in relation to software patents, have misinterpreted the earlier suggestions given by Joint Parliamentary Commission, and have also ignored the various critical changes which were brought about by the Patents (Amendment) Act of 2005.[3]
In 2005, an amendment was proposed to amend Section 3(k), which was introduced in the year 2002. The amendment which was sought to be made would have further narrowed the exception created by the section, and hence, would have increased the scope of the patenting software. The Parliament specifically rejected the proposed amendments in Section 3(k).[4]
Parliament also specifically rejected proposals to permit software to be patented when the industrial or technical application was demonstrated or when in a combination with hardware.
Reasons as to why software patents should not be encouraged
Following are the reasons as to why the patenting of software should not be allowed, and the problems attached therewith if such patenting is granted.
Software patents restrict technological progress and thus would encourage monopolisation.
They also massively enhance costs through the creation of patent bulk and through the diversion of funds from productive Research and Development towards litigation and discovery/licenses, and thus substantially hamper the productivity of the industry.
Allowing software patenting would lead to hampering technical progress and innovation capability of the software industry of the country.[5]
Conclusion
On reading Indian Patent Act, it can be observed that it does not specifically exclude software inventions, and as enumerated in Joint Committee Report, inventions that are ancillary to or are developed using computer programmes are patentable. So it is clear that software inventions are patentable subject matter in India.[6]
However this is not the situation in other countries, like New Zealand and Germany have already taken steps to abolish software patenting. In a recent case of Alice Corporation v. CLS Bank[7] decided by the U.S. Supreme Court, it has been reaffirmed that software patenting would lead to monopolisation and such situation might come up as a hindrance in innovation rather than promoting it, thereby defeating the primary object of intellectual property law.
Following the guidelines which have been issued by the IPO, high chances are there that the patent examiners might take such steps which might contravene the basic purpose of the Act. Implementation of these guidelines will lead to patent examiners issuing patents which the Act does not allow for.[8]
Thus, in my opinion, the guidelines issued by the Patent Office are ‘ultra vires’ the Act, and must be called off as soon as possible.
[4] R. Bailey, Tying up innovation in legal knots, available at http://www.thehindu.com/opinion/op-ed/rishab-bailey-writes-about-software-patents-tying-up-innovation-in-legal-knots/article7766959.ece
In this blogpost, Sonal Srivastava, Student, Amity Law School, Lucknow, writes about what is honour killing, its meaning, the possible reasons for honour killing and recent cases.
Introduction
Killing a member of the family to restore the so-called honour of the family but are these killings actually honourable. There is a pertinent question attached to honour killings that by what right does the person ends the life of another to protect the so-called honour of the family and who is supposed to decide that a particular situation has brought dishonour to the family- the society or the family? So let’s have a look at what are honour killings and various instances of the same.
Meaning of Honour Killings
An honour killing is the homicide of a member of a family or social group by other members, due to the belief the victim has brought dishonour upon the family or community. The death of the victim is viewed as a way to restore the reputation and honour of the family.
Situations that are perceived to be dishonourable to family–
The situations that lead to honour killings are the most shocking and inhuman. There is no rationality in the decision of the family or society to kill a particular member of the family. The most common situations that have come to front from the past incidents of honour killing are-
Falling in love with the person of another caste or religion– One of the most common reason for honour killing is the falling in love with the person of another caste, similar gotra or different religion. Can love be a reason for killing someone? Love is considered to be one of the most sacred feelings which are propagated by all religions and when this same feeling becomes a reason for killing someone, it becomes heinous.
Dressing in a manner unacceptable to the family or community- What could be the rationality behind this cheap thought. Is the life of a person so futile that it could be snatched away merely for a reason that individual desires to dress of his/ her own choice.
Engaging in heterosexual or homosexual acts– Girls and women are killed at much higher rates than men in this kind of situations.
These are a few conditions mentioned; the list is endless and people have no reasonability or rationality behind honour killings.
The famous Manoj- Babli Honour Killing case
Manoj and Babli’s families lived in Karoran Village of Kaithal. Manoj was the only earning member of his family. Manoj and Babli fell in love and decided to marry but they were restricted by the members of the village on the ground that they belonged to the same clan and marrying in the same clan is considered to be incest in the village. Manoj and Babli flew from the village and did court marriage and when the news broke out to the people in the village, the leader of the Khap panchayat who was the relative of Babli, murdered both of them in June 2007.
In March 2010 a Karnal district court sentenced the five perpetrators to be executed, the first time an Indian court had done so in an honour killing case. The khap head who ordered but did not take part in the killings received a life sentence, and the driver involved in the abduction a seven-year prison term. According to then Home Minister P. Chidambaram, the UPA-led central government was to propose an amendment to the Indian Penal Code (IPC) in response to the deaths of Manoj and Babli, making honour killings a “distinct offence”.
Few recent events on honour killing
June 1, Bulandshaher: Mother arrested for killing her daughter[1]
Afroz, 20, from Abda village in Bulandshaher was killed by her own mother Rubina after she refused to give up her relationship with a boy. Afroz had been working for the Pulse Polio drive when the incident took place. On a fateful day, Rubina, alias Bano, got into an argument with Afroz regarding her romantic alliance with a boy. The argument led to Rubina slitting Afroz’s throat with a knife. After receiving information in a police control room about murder, police raided Rubina’s house where they found Afroz’s body.
April 10, New Delhi: 20-year-old youth crushed to death for loving a 16-year-old girl[2]
Sagar’s rotting body was recovered by police from an isolated place in Sahibabad, after it was dumped there by the relatives of a minor girl with whom the victim had been having an affair for the past one year. Sagar had been beaten mercilessly by the girl’s relative after her brother-in-law spotted them together. They then confined Sagar for some hours and took him to Sahibabad in their car where they crushed him under the wheels of the car while the girl kept pleading for mercy. All the accused have been arrested.
April 7, Chandigarh: Bodies of couple dumped in suitcases[3]
Bahalgarh police received a call regarding two unclaimed suitcases lying in a park, located on the GT road in Sonipat district. When the suitcases were opened, police recovered the naked bodies of a man and woman dumped separately in the two suitcases. While the woman’s body was intact and she wore glass bangles similar to those of a newlywed bride, the man’s limbs had been chopped and disposed of in the suitcase. The police probing the crime suspected it to be a case of honour killing.
February 15, Lucknow: 16-year-old girl sexually assaulted and murdered[4]
The police are looking into the possibility of honour killing in the murder case of a minor girl in Kotwali area of Gonda district. The fact that the girl’s family did not inform the police about the murder made the police suspicious. The girl, who had left home to relieve herself, was found dead after half an hour. The girl’s body was intact with no injury mark but tests confirmed sexual assault.
February 13, Mathura: Girl burnt to death by mother and brother[5]
Neeraj Kumari’s family was against her relationship with a youth from the same village, Ajay, and fixed her marriage with another person. As complications cropped up for the marriage, the mother and the brother first strangulated Kumari and then set her body on fire. The accused first tried to dissuade the police by saying that the girl had committed suicide. However, the girl’s boyfriend told the police that he suspected the victim was first mercilessly beaten up and then set ablaze.
Conclusion
Honour killing is the most inhuman and irrational crime. Laws cannot do much to prevent it but it can only be prevented when there is a change in the mentality and mindset of the people and that is a difficult thing in a country like India where the caste, religion, gotra, clan, etc. matter more than the life. Laws can only punish the criminal but they cannot prevent the crime to happen, so it is very necessary for people to rise above the clouds of caste, religion, clan, etc. The real honour is in protecting the family members and being liberal and open minded in the approach towards life and not by being stringent in thoughts and attitude.
The Vishakha judgment was crucial in forming the sexual harassment laws in India. Its a landmark case. What really led to the judicial activism that this decision represents and how did the law come to be like this? Read on to understand.
In this blogpost, Shubham Kumar, Law Student, writes about the role of International Conventions in vishaka guidelines stating the facts, law, issues and analysing the case.
General Details of the Case
Name- Vishaka and Ors. vs. State of Rajasthan and Ors.
Citation-1997 (6) SCC 241
Bench- Justice JS Verma(CJ), Justice Sujata V Manohar and Justice BN Kirpal.
Facts of the Case
The writ petition in the present case was filed by Vishaka, a women’s rights group for the enforcement of Fundamental rights of working women under Article 14, 19, 21 of the Constitution of India. The immediate reason for filing this writ petition is an incident during 1990s wherein Bhanwri Devi, a social worker (State Government employee) was brutally gang raped when she tried to prevent a child marriage which was a part of her duty as a worker of Women Development Programme. The feudal patriarchs who were enraged by her ‘guts’ decided to teach her a lesson and raped her repeatedly, to show their superiority over a woman of low caste. The Rajasthan High Court acquitted the accused rapists who belonged to rich, affluent and powerful upper caste families. This incident led to a nationwide protest specifically from women’s rights group called Vishaka, who ultimately filed a PIL in the Supreme Court to address the issues related to the sexual harassment to which a working woman may be exposed to.
Law
Constitution of India
Article 14 (the right to equality)
Article 15 (the right to non discrimination)
Article 19(1)(g) (the right to practise one’s profession)
Article 21 (the right to life)
Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
Article 11 ([State] takes all appropriate measures to eliminate discrimination against women in the field of employment)
Article 24 ([State shall] undertake to adopt all necessary measures at the national level aimed at achieving the full realization)
Major Issues in Contention
Whether cases of harassment violate the fundamental rights of women under Article 14, 15, 19(1)(g) and 21?
To provide safeguards against the hazards to which working women may be exposed to.
Whether in the absence of legislative measure the court could apply the international laws to fulfil this felt and urgent societal need
Analysis of the Case
The main aim of this petition was to focus our attention towards such a societal aberration, wherein the women are subjected to sexual harassment at workplace and assisting in finding the suitable methods for realisation of true concept of ‘gender equality’ and to fill the grey area in law, wherein no such legislation exists that addresses the above mentioned concerns. The Supreme Court iterated that each such incidents of harassment at the workplace to women violated the Fundamental Rights of women i.e. “Right to Gender Equality” and “Right to Life and Personal Liberty”. Incidents like these are not only against the Fundamental Rights guaranteed under Article 14, 15, 21 rather they also violate the victim’s fundamental right under Art. 19 (1)(g) i.e Right to practice any profession or to carry out any occupation, trade or business. These fundamental rights depend on the availability of safe and secure working environment for women.
Role of International Conventions in “Vishaka Guidelines”
The Supreme Court held that violation of the abovementioned Fundamental Rights attracted remedy under Article 32. Supreme Court further said that an effective redressal requires some interim guidelines be laid down for the protection of these rights, to fill the legislative vacuum, till the legislatures come up with a comprehensive legislation to deal with the same.
One of the major contentions involved in this case was related to the ambiguous definition of “Sexual Harassment”. Since there existed no domestic law to check and provide remedial measures against such draconian act of sexual harassment of working women at all workplaces, the Supreme Court entered into the realm of contents of International Conventions and norms for the purpose of clear and unambiguous interpretation of gender justice, gender equality, gender discrimination and gender-based sexual harassment.
As per the provisions of Article 51 and Article 253 read with Entry 14 of the Union List in Seventh Schedule of the Indian Constitution, any International Convention not inconsistent with the Part III of the Indian Constitution must be read to enlarge the meaning and content thereof, to promote the object of Constitutional guarantee. Governance of the society by the rule of law mandates this requirement as logical concomitant of the constitutional scheme.
The Court iterated that as per universal acceptance ‘Gender equality’ construes protection from sexual harassment and right to work with dignity. The court referred to the role of judiciary envisaged in the Beijing Statement of Principles of the Independence of the judiciary in the LAWASIA region. These principles were accepted by the Chief Justices of the Asia and the Pacific at Beijing in 1995 as those representing the minimum standards necessary to be observed in order to maintain the independence and effective functioning of the judiciary.
Since there existed no domestic law to check and provide remedial measures against Harassment of women at workplace hence Judiciary laid down certain rules and guidelines, known as Vishaka Guidelines, these guidelines were in consonance with the International conventions and treaties regarding gender equality. One such convention was ‘Convention on the Elimination of All Forms of Discrimination against Women’, whereby every signatory to it has to take steps in order to eradicate discrimination against women. Supreme Court emphasised on Article 11 – Article 24 of the convention in order to frame the guidelines. Article 11, states that the State Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular –
right to work
right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction
The general recommendations of Article 11 are that equality in employment can be seriously impaired when women are subjected to gender specific violence, such as sexual harassment at work place; hence, States should take all the necessary measures to protect women from sexual harassment and other forms of violence of coercion in the workplace.
Article 24 states that “State Parties undertake to adopt all necessary measures at the national level aimed at achieving the full realization of the rights recognised in the present Convention.”
India ratified this resolution with some reservations in 1993, whereby India made official commitment, inter alia, to formulate and operationalize a national policy on women which will continuously guide and inform action at every level and in every sector:
To set up a Commission for Women’s to act as a public defender of women’s human rights;
To institutionalise a national level mechanism to monitor the implementation of the Platform
SC relied upon these commitments for the purpose of construing the nature and ambit of the constitutional guarantee of gender equality in our Constitution. SC further said that the content of Fundamental Right is such that it can encompass all the facets of gender equality including prevention of sexual harassment or abuse. The international conventions and norms are to be read into them in the absence of enacted domestic law occupying the field when there is no inconsistency between them.
The doctrine of Legitimate expectation[1] was applied in the case of Nilabati Behera v. State of Orissa[2], a provision in the ICCPR was referred to support the view taken that ‘an enforceable right to compensation is not alien to the concept of enforcement of a guaranteed right’, as a public law remedy under Art. 32, distinct from the private law remedy in torts. Hence, SC had no reason not to accept the international conventions and norms cannot, therefore, be used for construing the fundamental rights expressly guaranteed in the Constitution of India which embody the basic concept of gender equality in all spheres of human activity.
Conclusion
In view of the absence of enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at workplaces, SC laid down the guidelines and stated that the guidelines are to be treated as a declaration of law in accordance with Article 141 of the Constitution until the enactment of appropriate legislation and that the guidelines do not prejudice any rights available under the Protection of Human Rights Act 1993. This was done in exercise of the power available under Art.32 of the Constitution for enforcement of the fundamental rights. These guidelines are now known as Vishaka Guidelines and this landmark judgment delivered by Justice JS Verma-led the legislatures to enact a new legislation known as Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 in order to guarantee protection to all women from sexual harassment at workplaces.
References
Beijing Statement of Principles of the Independence of the judiciary in the LAWASIA region
Convention on the Elimination of All Forms of Discrimination against Women,1981
Protection of Human Rights Act 1993
Malcolm N. Shaw – International Law, Oxford UK, 6th edition 2008,
[1] The High Court of Australia in Minister for Immigration and Ethnic Affairs V. Teoh, 128 ALR 353.
In this blogpost, Diksha Trivedi, Student, NIRMA University, writes about the new Bankruptcy Bill, 2015, its key features and the need for introducing the bill.
The Bankruptcy Laws Reforms Committee (“BLRC”) lead by Dr. T. K. Viswanathan recently submitted its final report (“Final Report”) to the Finance Ministry. Before this, in February 2015, an interim report was submitted by the committee. Interim report recommended certain amendments to the existing provision in the Companies Act, 2013 including various additional recommendation that later came up in the Final Report with suggestions on institutional framework, moratorium provisions, eligibility for applying for resolution, interim and final administration of companies during administration, liquidation, priorities, and were thereby added in Insolvency and Bankruptcy Bill, 2015. These amendments are likely to affect various acts particularly the SICA and the SARFAESI Act. The new bankruptcy code is made with an objective of creating an overreaching framework for sick companies to either wind up or revive such companies while dealing with creditors and investors in those companies.
Sick Companies then
The suggestion made by committee on comprehensive, self-contained bankruptcy code for India is a significant step towards clearing the clutter with which the bankruptcy and resolution laws in India are bulked with. Before this amendment in India, there was the absence of a comprehensive code for handling such business in India. The Sick Industrial Companies Act, 1985 (“SICA”) made spasmodically attempt for the revival of industries from sickness and also granted special rights to banks for debt recovery through the Recovery of Debts Due to Banks or Financial Institutions Act, 1993. In the case of non-judicial recovery of assets and repayment of debentures, the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (“SARFAESI Act”) was enacted. But notable part is, in the meantime, the basic system for the bankruptcy of companies corresponding to winding up provisions under the Companies Act, 1956 remained unchanged lastly over nearly six decades, and the provision for personal insolvency for nearly a century.
Sick companies now
Certain new and certain old laws have made a picture of the unsolved puzzle. Though winding up of a company is a holistic remedy if such a company cannot be revived, the liquidation of the asset and equities need to be done on an equitable basis. Apparently, security interest enforcement by creditors is based on the principle of “might is right”. Obviously, a creditor is more interested with own dues rather than stake holder’s interest or other people who are attached to business and livelihood attached to it. Recommendations made by Viswanathan Committee on SICA, is taken from Chapter 11 of the US Bankruptcy Code, to revive the business if viable. The moratorium provision of SICA is in practice to prolong defaults without appealing any creditor’s action. Although revival of business is the key objective of SICA, it created a safe harbour for defaulters, thus creating a path for the SARFAESI Act. The SARFAESI Act, aiming to link itself to Article 9 of the Uniform Commercial Code (“UCC”) of US is entirely on creditor-driven enforcement of security interests. This amendment made to prevent defaulters from using SICA, as shield ward off creditors action, has become a complete contrast to the revival of sick industries because if assets are repossessed by lenders, then nothing is left in the core of industry to revive. The Arc business, in a broader sense is a by-product of the SARFASI Act and is a model plan to India. This is also based on the principle of might is right.
The legal framework on which governance or failure of big business is managed in India is informal, i.e., the Corporate Debt Restructuring (“CDR”), the Strategic Debt Restructuring (“SDR”) and the Joint Lenders Forum (“JLF). These are based on guidelines made by the Reserve Bank of India (“RBI). SARFAESI has the provision for setting defaulter and default right; for big business houses are chugged on by CDR arrangements, and allowing bankers to convert the loan into equity. As the sporadic and uncoordinated forays of law continued to act, committees were recommending for making bankruptcy laws in India. The Tiwari Committee’s report was one through which SICA has been drafted, and Viswanathan committee brought changes to the application of the provision in SICA.
The National Company Law Tribunal (“NCLT”) NCLT
In 1999, the Government established V B Eradi Committee which disclosed some startling fact on the bankruptcy of business such as, the average time taken in winding up is 11 years for pan-India and in the Eastern Region, it is approximately 25 years to resolve bankruptcy of Company. The idea of the National Company Law Tribunal (“NCLT”) was one of the recommendations of the Eradi Committee. Accordingly, the Companies Act was amended by the Parliament in 2002 shifting winding up to NCLT, but has not been enforced and lived in an incubator for 13 years, and now BLRC recommendation acceptance replaced recommendation of 2002. In 2001, the N L Mitra Committee report suggested a comprehensive bankruptcy code which was not considered until Companies Act, 2013 was enacted which is based on the recommendation of J J Irani Committee, which adopted recommendation of the Mitra Committee suggested “inability to pay” or “failure to pay” as a way to tackle insolvency of business. Of course, new insolvency provision is not so much in practise and the NCLT is yet to be constituted.
Fast Track Resolution
The bill provides for 90 days limit to complete the resolution process as opposed to 180 days period provided earlier. The bill recommended the fast track for a particular class of corporate debtors, based on certain asset holding or income to a certain level as may be decided by the Central Government. However, the Central Government is making it for small companies as well.
Fast Track Voluntary Liquidation
If the dissolution of defaulting companies would have been focused, then it would have been injustice on the part of the voluntary dissolution of the healthy companies which usually takes a longer time then defaulted company while winding up. Surprisingly, this bill is for winding up time for any incorporating company rather than the process of winding up of the companies. Any healthy company may by special resolution be able to be declared insolvent. But such a resolution must be supported by 2/3rd of the total creditors.
Fast Track NCLT
Timeline completion of the liquidation process is the highlighting feature of the bill. If NCLT fails to comply with the timeline then the reason has to be recorded in writing by the superior of NCLT. This timeline rule is provided in Clause 64 of the act. The NCLT is made to deal with the case of companies and limited liabilities partnership.
Conclusion
The Insolvency and Bankruptcy Bill, 2015, made for Institutional creditors like banks requires private trustees to administer bankruptcies. The main motive behind this bankruptcy code is to devise a special class of insolvency professional for assisting institutional creditors in the bankruptcy process. Bankruptcy information utilities will collate, attest and disperse financial information collected from creditors of financial and listed companies. A central database will be created to provide information about the insolvency status of the companies. The bankruptcy code of US has played a key role in creating a face of new bankruptcy code of India which was awaited for so long in the corporate world. This code is expected to assure better utilization of public economical resources as in past the cost for dissolving debt between companies, and creditors have been on the shoulder of the state.
In this blogpost, Abhishek Sood, writes about the process which the manufacturing industries are adopting to create a monopoly in their trade. The author also writes about the scenario in other countries and then analyzes the present situation in our country, and also mentions the procedure that has to be followed to file a complaint, who can complain and fees to be paid.
Introduction
The evolution of E-commerce with the prolog of Big Billion Day or the Great Indian Diwali Sale by Flipkart and Amazon respectively has changed the buying behavior of the consumers. Anything ranging from car to bike to camera to washing machine etc. can be purchased online with an ease of a click. Whenever a buyer buys a product, it is bought with a perceptive that once the money for the product is paid, the seller or manufacturer should not be able to dictate how to use it. The buyer gets an exclusive right to improve the thing, slice it, get it repaired or upgrade.
But now manufacturers tend to refuse to make parts, tools, and repairing information available to consumers and small repair shops. Manufacturers are trying to create a monopoly on repair, and it is against the basic spirit of competition. Many companies, including Apple, refused to sell replacement parts to independent shops. It took a lawsuit to force Apple to offer a battery replacement program for the iPod. In 2012, Nikon sent a letter to their independent service network, stating that they will no longer supply repair parts to anyone except 23 Nikon authorized repair facilities, in order to have an absolute monopoly over the repair of their products.
Position abroad
The Motor Vehicle Owners’ Right to Repair Act, sometimes also known as Right to Repair, is a name for several related proposed bills in the US congress, which would require automobile manufacturers to provide the same information to independent repair shops as they provide to their authorized dealer shops. A version of the bill have generally been supported by independent repair and aftermarket associations and opposed by auto manufacturers and those having an authorized dealership. It was first passed by Massachusetts’s legislature on 31st July, 2012.
Position in India
Desolately, such legislations do not exist in our country. However, The Competition Commission of India (CCI) in Shri. Shamsheer Kataria v. Honda Siel Car India Ltd. in August 2014, announced a path-breaking judgment, holding 14 automobile manufacturing companies liable for anti-competitive practices and abusing their dominant position, by not making the spare parts available in the independent repair shops. Thus, the customers have no other option but to use the services of the authorized dealers. The CCI ordered Original Equipment Suppliers (OESs) to formulate an effective system to sell genuine spare auto parts in the open market and to formulate an effective system to ensure availability of aftermarket spare parts, diagnostic tools and other relevant information in the public domain. The CCI order, enabled consumers to make a choice between independent mechanics and authorized dealers and to help independent mechanics to provide aftermarket services and ensure healthy competition in the market. Thus, it can be seen that the judgment of the court to some extent was at par with the ‘Right to Repair’ Act.
Who Can File a Complaint under The Competition Act of India
Any person, consumer or their association or trade association or a statutory authority can file a complaint before the commission, Central Govt. or a State Govt. Person includes an individual, HUF, firm, company, local authority, cooperative or any artificial juridical person.
Procedure for filing complaint
The complaint should be in the form of a statement of facts, containing details of the alleged contraventions accompanied by all documents, affidavits and evidence as the case may be.
The information must contain the legal name and address(es) of the enterprise(s) against whom the complaint is being filed, also the legal name and address of the counsel or other authorized representative, if any.
Narratives in support of above-alleged contravention, which can help Commission, in an adjudication on the matter for granting interim relief which is being sought.
The information should be duly signed by the informant. The counsel of the informant can also apprehend his or her signature. It must contain informant’s complete postal address with PIN code, telephone, fax number and also e-mail id. The preferred mode of receiving the reply from the Commission should also be mentioned.
The above information should be addressed to the Secretary in person or by registered post or courier or fax.
Only neat photocopies or scanned documents duly certified as true copies may be filed as exhibits or annexure.
For further details on filling the information and the format to be used refer the link
Kindly note: The E-Filling system is under process.
Fees to Be Paid
The complaint must be accompanied by a document which can be used as a proof of payment of the fee:
5,000/- for individual or HUF or NGO or Consumer Association or Co-operative Society, or Trust, duly registered under the respective Acts.
20,000/- for firms and companies having turnover in the preceding year up to Rs. 1 crore.
50,000/- for any other category.
The above fee is to be paid either by tendering demand draft or pay order or cheque, payable in favour of Competition Commission of India (Competition Fund), New Delhi or through Electronic Clearance Service (ECS) by direct remittance to the Competition Commission of India (Competition Fund) Account in:-
Either
Account No. 1988002100187687 with Punjab National Bank, Bhikaji Cama Place, New Delhi- 110066
Or
Account No. CLCA01100002 with Corporation Bank, Bhikaji Cama Place, New Delhi- 110066
For Assistance: In the case of any doubt or need or any help, one can approach Secretariat of the Commission on 011- 23704651.
Conclusion
Thus next time if you want to get your car or bike repaired, and an independent mechanic shows an inability to do it, because of unavailability of spare parts or technological knowhow. The remedy is to approach the CCI following the above procedure. Also, customers can approach appropriate Consumer Forums in order to get the desired relief. Delhi District Forum in one of its order directed HCL to make sure spare parts of laptop model sold should be readily available during expected lifespan of the product and directed it to refund Rs. 28,000/- (after deducting depreciation for 18 months) and pay Rs. 15,000/- as compensation and costs to the consumer.
In this blogpost, Diksha Trivedi, student, NIRMA University, writes on the Key To Right To Service Act and its characterstics.
The government does not enjoy a groovy reputation in the role of service providing agency among citizens. The government delivery mechanism failed in quick delivery of services, transparency and accountability grading whole plan to useless. Union Law Minister D.V. Sadananda Gowda requested through a written application to the Prime Minister Narendra Modi on June 10 advising for devising a Bill at the Central level. He based his recommendation on Sakala, service delivery program of Karnataka launched while he was the CM and it covers 11 departments in all providing 151 services routinely from a single portal. The Union government considered a Bill called the Right to Services Act that guarantees time-bound delivery of services. The UPA government too made a bill called as The Right of Citizens for Time-Bound Delivery of Goods and Services and Redressal of Grievance Bill, 2011, introduced by Loksabha though it lapsed.
While the name of all the rules differ but its essence remains the same, providing the citizens with time bound delivery of specific departments services as adverted in the provisions and notification made after the bill has been passed. This bill has penal provision for the service provider if he failed to comply with his duty as per the rules made for catering efficient and effective delivery of services to a large public mass.
Main characterstics of this legislation
Departments and Services
The list of the departments and services that are to be covered under this act will be provided through notification which will be updated from time to time. The current list of services includes water connections, issuing ration cards, death certificates, electricity connections, driving licenses, attestations, mark sheets, etc. The services covered depends on several factors such as demand from the citizens, the willingness of the departments or even their current efficiency. The department covered under this act include Revenue Department, Human Resource Development, Transport Department, Police, Labour Department and Administration Department.
Time Period
Time period assigned for providing services depends on state to state. Different stipulated time period depends on several factors such as the volume of application and departmental complexity in that state etc. For measuring the time period, criteria decided is, the time taken for submitting an application to designated officer or to any authorized or responsible officer to the time taken for providing the applicant with an acknowledgment receipt. Like in Rajasthan under Janani Shishu Suraksha Yojana (JSSY), the birth certificate is made immediately after the woman gave delivery but in the case of Punjab, it took around 7 days for granting a birth certificate.
Nodal Departments
The nodal department made under authority of government has the main role in assisting the government in providing efficient services to the public and decreasing the burden of the department. These nodal departments differed as per specific state and are decided as per the number of applications and demand of services from such departments in that state. Some of them include Administrative Reforms Department, General Administration Department, Department of Home, Department of Revenue or Department of Information Technology.
Appeals
Every state has its own rules to appeal on bad services, unreasonable ground or non-complied services are provided by the department. For instance, in the State of Bihar, Uttar Pradesh and Madhya Pradesh two-tier appeal system is in practice, that means if the application is rejected by designated officer, the applicant can file an appeal with First Appellant Officer (FAO) within 30 days from rejection or if prescribed limit expires. If the application is rejected by the FAO, the applicant can appeal for the second time with the Second Appellant Authority (SAT) within 60 days of rejection. In the case of Punjab, Haryana and Uttrakhand there is a three appeal system where a final appeal is made to the special commission set up by the state whose decision will be considered final. On the other hand, FAO or designated officer can also file the revision to the nominated officer as provided in the legislation.
Initial Application: Application received by Designated Officers (DO) and DO are provided with two options either to accept the application and provide service or to reject the application and intimidate reason for same in the prescribed time limit.
First appeal: Citizens must contact the First Appellant Officers (FAO) within 30 days from the day of rejection intimidation to file the first appeal. The FAO may confirm the DO’s rejection or order to extend the service.
Second appeal: A second appeal is made with the Second Appellant Authority (SAT) within sixty days from the date of the FAO’s decision. The Second Appellant Authority holds the power to punish any officer who fails to comply with services without sufficient cause.
Penal provision
Every government officer who does not comply with the rules mentioned will be liable to be penalized. In major states like UP, Bihar, Orissa etc the penalty is of Rs. 250 per day with the total amount not exceeding Rs. 5000. While in Delhi, the penalty is Rs. 10 per day with total amount not exceeding Rs. 200. In Karnataka it is Rs. 20 per day with a total not exceeding Rs. 500. In Himachal Pradesh, there is no per day penalty but the total amount of fine ranges between Rs. 1000 to Rs. 5000.
Knowledge Gateway
Information concerning to any services or any departments of any state under this act will be published through an online notification on the official website of Ministry of State. This provision has been made to reduce the gap between public and private departments with regard to any information from that department or for any new service if launched by the ministry. The information will be routinely updated on the website.
Although by this act monetary penalizing to officials, for wrong delivery of services, has been considered as a great mechanism for stopping a conventional cycle of impunity and unaccountability, but it is still unsure how effective this mechanism would be. If we look at State of Maharashtra or Madhya Pradesh, there were same service programs having a monetary penal theory in place by different names were running, but the strategy failed. This does not mean that monetary penalizing against bureaucrats is ineffective, but it is also not a surety, that it will be a successful delivery system. The success of this act depends not only on penalty provisions, but it also involves political and administrative accountability. Broadly speaking, reforms are needed to improve structures of department, control and re-sourcing. Political reformation should be made so that local politician gets power to hold local officials accountable. Penal provision will restrict the officials from doing their duty of providing service. We need reforms that direct institution and officials to provide public service in a responsible manner, not in fear. The check holding is implemented where the relation of right and duty could breathe.
Deepal Thakkar is currently practicing as a criminal lawyer at Bombay High Court. She has done her LLB from Mumbai University and has interned with many prestigious law firms.
I joined the NUJS diploma in Entrepreneurship Administration and Business Laws while I was in the final year of my law school. I found this course while searching the internet for a diploma course to strengthen my hold on business and corporate laws.
I was very impressed by the course syllabus; it was very extensive and covered almost everything I wanted. I decided to take up this course because along with the syllabus I liked the course duration too. It was neither long nor too short. A one year diploma course looked just perfect to me.
It provided the in-depth practical knowledge of different laws which I was looking for and I strongly feel that this course has added value to my profile. This has helped me in gaining knowledge about sections I was not much aware of, sections which I hardly used in my day to day work.
I especially found the modules on arbitration to be very informative. I benefitted the most from the drafting exercises. I’m unable to apply much of my learning from this diploma course as I’m into criminal law, but this course has certainly enhanced my knowledge and skills.
I have mentioned the NUJS diploma in Entrepreneurship Administration and Business Laws in my CV and my LinkedIn profile and have I had discussions about this diploma course with my colleagues and seniors.
In future, I plan to continue my criminal law practice but I might go for arbitration. If that happens, the knowledge gained through this diploma course would be very helpful. Even in the criminal law practice the drafting skills acquired through this course would be very useful.
I would absolutely recommend this course to other people. Anyone who wants to have a hang of law should do this diploma course. This is especially beneficial to people from accounts and finance backgrounds, people interested in stock market, MBAs, entrepreneurs etc.
In this blogpost, Nimisha Srivastava, IIIrd year, Law student, Gujarat National Law University, writes about what is mediation, how effective is it, difference between mediation and conciliation, procedure for mediation and how is mediation useful for matrimonial disputes
Introduction
India is a common law country that follows an adversarial system of justice. In recent years, the role of the judiciary has expanded and has become more complex in nature. The increasing role of the judiciary has resulted in huge expenditures and undue delays in delivering justice to the seeker of justice. The number of courts has increased the recent years, but the problem still exists because of the likewise increase in the number of cases.
One of the methods to deal with the problem of increasing number of cases is, resolving disputes through the method of arbitration. Alternative dispute resolution shows the importance of Article 21, which stands for right to life, includes right to have a speedy trial. By adopting arbitration methods, one can have an efficient and timely disposal of his dispute.
Effectiveness of mediation proceedings
The growing cost of civil litigation and the excessive delays in dispensing judgments is causing a huge backlog of cases in courts. Mediation, as an alternative remedy has proven to be successful and effective in many situations. Currently, mediation has grown up to be the most preferred way of alternative dispute resolution, especially amongst foreign entities. The reasons include less expenditure and informal and flexible rules. Mediation is often used as the first step to resolve any dispute and failing any resolution under mediation, parties agree that disputes will be referred to arbitration.[1] Now most commercial contracts first refer the dispute to mediation, and if the proceedings are not successful, then the matter is referred to arbitration.
The numerous advantages of mediation, which are beneficial in cases involving divorce disputes, real estate, and labor bargaining etc to settle the case outside court are discussed below:
Cost- effective: Mediation takes much less time compared to litigation. Therefore, the fee charged by mediator may be same as that of the attorney but the lower amount of time spent in proceedings means one has to pay lesser than as compared to litigation proceedings.
Confidentiality: The mediation proceedings are strictly confidential in nature, unlike the courts where public can visit anytime and be a spectator to someone else’s tragedy. Justice Markanday Katju in the case of Moti Ram Tr.Lrs.& Anr. vs. Ashok Kumar & Anr.[2], held that, “mediation proceedings are totally confidential proceedings. When the mediator is required to send the report of successful proceedings to the court, he doesn’t require sending what transpired during the proceedings. In case the mediation was unsuccessful, he only needs to send the report stating ‘Mediation has been ‘”
The judgment enforces the faith in mediation proceedings in the absence of a statutory provision guaranteeing the same. The only exceptions to this rule usually involves child abuse or actual or threatened.
Control: Mediation is an enabling provision which enables the parties to exercise some control over the resolution. In litigation, judges or jury exercise the ultimate control. This helps in arriving at a mutually agreeable solution between parties.
Compliance: Mediation proceedings are carried out to obtain consensus amongst parties regarding a solution that may be either proposed by the mediator or by either of the parties. Therefore, the result of mediation is generally complied with by the parties. According to the Arbitration & Conciliation Act, 1996, the mediated agreement is fully enforceable in a court of law. This also reduces expenses as there is the elimination of the need to employ a lawyer for enforcement of the decree.
Mutuality: There is a mutual agreement between parties to work towards reaching a solution that is acceptable to both. They are ready to make some adjustments towards their interests and claims. This preserves the relationship between parties.
Support: Mediators are trained in working with difficult situations. The mediator acts as a neutral facilitator and guides the parties through the process.
Mediation and Conciliation
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These are often used interchangeably, but their procedure is same. The difference between conciliation and mediation as given by International Labor Organization which is adopted by the Advisory, Conciliation and Arbitration Service reads as follows:- “Mediation may be regarded as a half way house between conciliation and arbitration. The role of the conciliator is to assist the parties to reach their own negotiated settlement and he may make suggestions as appropriate. The mediator proceeds by way of conciliation but, in addition, is prepared and expected to make his own formal proposals or recommendations which may be accepted.”[3]
Generally, a subject matter of mediation includes suits for injunction, specific performance, suit for recovery, labour management disputes; motor accident claims cases and matrimonial disputes.
The judiciary is currently inclining more towards mediation as the most viable option for dispute settlement. For instance, on August 22, 2010, the Supreme Court passed an interim order on a suit filed by Assam in 1988 against Nagaland on a border dispute that they should attempt to resolve this dispute through mediation. It is the first time a border dispute in the country has been referred to mediation. This has led to validating mediation as a form of grievance redressal. Also in criminal law, cases which are a subject matter on account of dowry and cruelty under section 406/498-A IPC and under section 138 of Negotiable Instruments Act are suitable for mediation.[4]
In words of Justice Markanday Katju[5], ‘In our opinion, the lawyers should advise their clients to try for mediation for resolving the disputes, especially where relationships, like family, business, are involved. Otherwise, the litigation drags on for years and decades often ruining both the parties. Hence, the lawyers as well as litigants should follow Mahatma Gandhi’s advice in the matter and try for arbitration/mediation. This is also the purpose of Section 89 of the Code of Civil Procedure.’ The dispute in the case was between brothers, and they were directed to appear before Bangalore Mediation Centre for resolution of the dispute. In a very recent case titled Aviral Bhatla vs Bhavana Bhatla[6], the Supreme Court has upheld the settlement of the case through the Delhi mediation centre, appreciating the effective manner in which the mediation centre of the Delhi High Court helped the parties to arrive at a settlement.
Matrimonial mediation
With the changing scenario, a number of cases involving matrimonial disputes are coming forward. The number of petitions involving such disputes leads to a judicial backlog. Alternative dispute resolution provides for a legal structure for resolving issues involving private parties. Matrimonial litigation is disproportionately burdensome to our courts. Marriage in India is considered as a sacrament and not a contract. Mediation is a mere a facilitator that helps the parties to reach for a settlement in dispute. Here parties get more flexible because of the friendly environment unlike courts, which are not so friendly in nature, it is free from complex procedures, easy to understand and, therefore, parties cooperate pleasantly. Mediation serves as very helpful dispute mechanism in the case where, divorce are due to cruelty, unsound mind, some communicable or dangerous diseases etc. in cases like these, such matter can be communicated and confessed easily and effectively because their confessions will not go outside the room. It is a private and confidential mechanism, unlike courts which are open to the public. Mediation provides the best platform in divorce cases as it helps parties in arriving at a settlement peacefully.
When we are referring a matrimonial dispute to mediation, it is different from the normal commercial and property matter disputes. The presence of factors like sentiments, emotions, social factors, responsibilities, personal duties, the mindset of the parties regarding the marriage and life in general etc makes the matrimonial disputes distinct and different from others.
As opposed to mediation, emotional and irrational factors play an important role in matrimonial mediation. The considerations have to be weighed beyond the technical aspects. It is the job of the mediator to consider the emotional aspect as well. Unlike in litigation, the mediator who is the facilitator here is concerned with the happiness of the parties. Rather than reason, sentiments play an important role here. The role of the mediator is to arrive at a peaceful settlement that is not detrimental to the interests of either party. His job is not to reinforce his analysis on the parties but rather to prepare the parties to arrive at a solution. Mediator also has to act as a counselor and a conciliator to help the parties go beyond their personal vendetta against each other. The goal of meditation is to achieve lasting peace. The purpose of matrimonial mediation is to reach a consensus between parties towards a solution that is proposed by the mediator or by either of the parties themselves. The mediator is not a judge or an arbitrator here.
As we know that mediation is a voluntary process, parties can simultaneously resort to litigation of civil or criminal nature. Why is the option more preferred by people?
(1) it promotes the interest of the entire family including those of the children
(2) it reduces economic and emotional cost associated with the resolution of the family disputes.
The professional mediator, not attached to the court does not enjoy the power of commanding a party to his presence. The essential requirement here is that the mediator has to solicit cooperation from the parties. Parties can voluntarily terminate the mediation proceedings also. The neutrality, impartiality of mediator plays a key role in the process. As we know the nature of marriages in the Indian context, so every attempt at reconciliation has to be carried out before granting a final decree of divorce.
In the case of Gaurav Nagpal vs Sumedha Nagpal[7], the Supreme Court observed: ‘It is a very disturbing phenomenon that large numbers of cases are flooding the courts relating to divorce or judicial separation. The provisions relating to divorce in HMA categorise situations in which a decree for divorce can be sought for. Merely because such a course is available to be adopted, should not normally provide incentive to persons to seek divorce, unless the marriage has irretrievably broken. Efforts should be to bring about conciliation to bridge the communication gap which lead to such undesirable proceedings. People rushing to courts for breaking up of marriages should come as a last resort, and unless it has an inevitable result, courts should try to bring about conciliation. The emphasis should be on saving of marriage and not breaking it. As noted above it is more important in cases where the children bear the brunt of dissolution of marriage.’
Though it is on the discretion of court to refer the parties for mediation or conciliation, pre-litigation counseling has been seen to be more successful. The parties have yet not polarized; therefore, they have a mindset to arrive at a solution. They are ready to make some sacrifices and adjustments with regards to their demands. Litigation of divorce cases began with parties mounting claims on each other, which are often exaggerated and based on false facts. Either side is focused on winning the suit. The strategy to be adopted here should focus on the counseling or mediation proceedings before the litigation begins. In a recent judgment by Supreme Court[8], K. Srinivas Rao vs D.A. Deepa, it was held that pre-litigation mediation should be promoted. In words of the court ‘If all mediation centres set up pre-litigation desks/clinics by giving sufficient publicity and matrimonial disputes are taken up for pre-litigation settlement, many families will be saved of hardship if, at least, some of them are settled.’ Also, the court said that ‘at the earliest stage i.e. when the dispute is taken up by the Family Court or by the court of first instance for hearing, it must be referred to mediation centres. Matrimonial disputes particularly those relating to custody of child, maintenance, etc. are preeminently fit for mediation.’ In this particular case court also asked for referring the disputes filed under section 498 A for mediation with the consent of parties. Directions were issued to courts for implementation of the same. The facts of the case were that the day after marriage, disputes arose between elders of families of the husband and wife. The couple started to live separately. The tension and aggression between families led to the filing of false complaints by wife including that of dowry under section 498 A. In this case, the court considered the importance of matrimonial institution and noted it cannot be said that one spouse is entirely at fault. If parties were sent to mediation at an early stage, the tensions between the two might not have escalated beyond the point of repair. A proper strategy is required to promote pre-litigation mediation. Police complaints filed for maintenance or matrimonial disputes are to be handled with sensitivity, wisdom and patience. The handling of the matrimonial disputes in the form of offence under Section 498 A of the Indian Penal Code, 1860 have necessarily to be handled differently. The accused are not guilty of a criminal offence and are not within the ambit of traditional definition of a criminal. It is the job of the investigating officer to see through frivolous complaints.
The basic difference among the police, the judge and the mediator is that, the police is trained to frame or prove a charge, a judge is to focus his attention on right or wrong doing but a mediator/ counselor is to focus on restoration of equilibrium and remain non-judgmental all through. The mediator remains on guard against his temptation to belittle or give lift to one or other party.
In the case of Jagraj Vs Bir Pal Kaur,[9] it was held by the Supreme Court that the intention of the parliament behind enacting section 23 of HMA was to preserve the sanctity of marriage. Therefore, every step towards the reconciliation of parties has to be carried out by the courts.
In a Madras High Court judgment, it was held’ that under the Quran the marriage status is to be maintained as far as possible, and there should be conciliation before divorce, and, therefore, the Quran discourages divorce, and it permits only after pre-divorce conference.’ The attempt of reconciliation should be made with the help of two mediators, even if a reasonable cause exist, there should be an attempt to arrive at a settlement by the mediators. In a judgment by Madhya Pradesh High Court, the ruling in the above case was made a base to find out the validity of divorce held without conciliation proceedings.
Procedure of mediation
Unlike the arbitration and conciliation act which deals with arbitration procedure and technicalities, no statute of the same nature exists for mediation. There are two ways for initiation of mediation proceedings:
Parties refer to mediation voluntarily i.e. private mediation
Court refers the parties to mediation under Section 89 of Civil Procedure Code
In the case of M/S. Afcons Infra. Ltd. & Anr vs M/S Cherian Varkey Construction[10], the Supreme Court has said that while referring to Section 89 by the Court, the court has the discretion to opt for any of the five methods. However, the practical application of the rule says that ‘after the pleadings are complete and after seeking admission/denials wherever required, and before framing issues, the court will have recourse to section 89 of the Code.’ Court will consider the nature of the dispute and refer the parties to five options available and according to the preferences of the parties refer the party to mode.
‘In case where the questions are complicated or cases which may require several rounds of negotiations, the court may refer the matter to mediation.Though the process under Section 89 appears to be lengthy and complicated, in practice the process is simple: know the dispute; exclude `unfit’ cases; ascertain consent for arbitration or conciliation; if there is no consent, select Lok Adalat for simple cases and mediation for all other cases, reserving reference to a Judge assisted settlement only in exceptional or special cases. ‘
Under Hindu Marriage Act, Section 23 and Special Marriage Act, reconciliation proceedings are mandatory for parties. Section 23 (2) HMA states that before proceeding to grant any relief under it, there shall be a duty of the court in the first instance, in every case to make every endeavor to bring about reconciliation between parties where relief is sought on most of the fault grounds for divorce specified in Section 13. Here the court may refer the party to mediation to for counseling. If the attempt at reconcilement fails then, parties may arrive at a peaceful settlement. The nature of Hindu marriage is that of a sacrament and not a contract. Therefore, every attempt of reconciliation has to be made to avoid divorces that are carried out in haste.
The functional stages involved in mediation are listed below[11]:
Introduction and Opening statement
joint session
separate session
closing
The mediation proceedings start with an introduction by the mediator wherein he outlines the process, the issues, the rules of mediation, etc. The statements are made by each party after the introduction. The parties are given an opportunity to present their viewpoint. Questions may be asked by the mediator to clear certain doubts at this stage for a clearer understanding between both the parties. Mediator holds separate sessions with both the parties trying to solve issues, proposing solutions, basically making every effort to have peace between parties. The mediator goes back and forth between the parties during this time, clearing up misunderstandings, and carrying information, proposals, and points of agreement.
Coming to the strategies to be adopted by the counselor, the following stages can be suggested
Probing of facts;
Identifying the real cause of dispute;
iii. Exploration of possibilities of reconciliation or divorce;
Bring the parties to an agreed solution; and
Shaping the solution in the legal formats.
Since there is no statute regulating mediation process, the mediation centers have come up with their own rules regarding qualification of mediators. IIAM Accredited Mediators are trained and accredited under the International Mediation Institute (IMI – The Hague) norms. They are bound by the Code of Conduct and Ethical Standards prescribed by IMI. According to their website, IIAM is the only institution in India approved by the IMI to certify mediators at global standards.
As per Rule 3 of the Mediation and Conciliation Rules, 2004 the High Court and the District & Sessions Judge can prepare panels for appointment of mediator. The qualifications of the mediators / conciliators given in Rule 4 are :-
(a) (i)Retired Judges of the Supreme Court of India;
(ii)Retired Judges of the High Courts;
(iii)Retired District & Sessions Judges or retired officers of Delhi Higher Judicial Service;
(iv)District & Sessions Judges or Officer of Higher Judicial Service.
(b) Legal practitioners with at least ten years standing at the Bar at the level of Supreme Court or the High Court or the District Courts.
(c) Experts or other professionals with at least fifteen years standing.
(d) Persons who are themselves experts in mediation / conciliation.
The Hon’ble Supreme Court of India has in the landmark decision Salem Advocate Bar Association, Tamil Nadu v. Union of India[12] directed that all courts shall direct parties to alternative dispute resolution methods like arbitration, conciliation, judicial settlement or mediation. The draft “Civil Procedure Alternative Dispute Resolution and Mediation Rules 2003” was also considered by the Supreme Court, for enactment by respective High Courts. Direction was issued to all High Courts, Central Government and State Governments for expeditious follow-up action. The draft rules contained the provision that court is referring the matter to mediation is not disqualified from trying the suit later if no settlement is arrived at between the parties. There are provisions in draft rules for appointment of mediator and fees of mediator. But the same is yet to be adopted by the courts.
Conclusion
Abraham Lincoln said ‘discourage litigation, persuade your neighbours to compromise whenever you can. Point out to them how the normal winner is often a loser in fees, expense, cost and time.’ Mediation as a mechanism of alternative dispute resolution can be very effectively used. The litigation proceedings in respect of matters like family, divorce, maintenance and alimony or custody, the trial of juvenile offenders or any other matrimonial cause are seen in legal terms. They need to be viewed as a social issue requiring therapeutic approach. Winning or losing is not the prima facie concern in these cases. The important part here is an amicable settlement between people who are/were bound by family. Professional assistance in this area will help them to deal with their issues and resolve their differences. Family disputes need to be seen with a humanitarian approach and hence attempts should be made to reconcile the differences so as to not disrupt the family structure. The matrimonial disputes are not per se criminal in nature; they are not causing harm to public at large. So such disputes and specifically divorce cases need to be dealt separately through mediation. The disturbance in the family affects the society at large.
Mediation as a method to resolve disputes is gaining importance in the current scenario. It has been used effectively to resolve disputes particularly related to divorce. In the absence of a law regulating the same, there is a wide scope of misuse. There already exist some provisions for conduct of arbitration, conciliation and Lok Adalat in different statutes, there is a need for a framework mediation. The step has been taken by the Supreme Court in a few cases discussed above. The Model Rules drafted by the Law Commission need to be brought into force as soon as possible to streamline the whole process of mediation.
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[3] Justice Dr. M. K. Sharma, Conciliation and Mediation, Delhi Mediation Centre http://delhimediationcentre.gov.in/articles.htm#partI (last updated: September 25, 2015)
[4] Nilofer D’souza, Mediation in Indian Courts, Forbes, September 28 2010.
[5]B.S.Krishna Murthy & Anr vs B.S.Nagaraj & Ors, S.L.P. Civil) No (s).2896 OF 2010
[9] Justice Manju Goel, Successful mediation in Matrimonial Disputes – Part I, Delhi Mediation Centre http://delhimediationcentre.gov.in/articles.htm#partI (last updated: September 25, 2015)
[11]Concept and Processes of Mediation, Mediation and Conciliation Project Committee, Supreme Court of India http://mediationbhc.gov.in/PDF/concept_and_process.pdf (last update: September 25, 2015)
In this blogpost, Sonal Srivastava, Student, Amity Law School, Lucknow, writes about the reservation policy in India in the pre-independence era, post independence era and all other laws relation to reservation. It has been further updated byNeelabh Keshav Sinha, a first-year student from Symbiosis Law School, Noida who is pursuing BBA LLB.
Introduction
Reservation Policy in India is a process of reserving certain percentage of seats (maximum 50%) for a certain class such as Scheduled Castes, Scheduled Tribes, Backward classes, etc. in Government educational institutions, government jobs, etc.
The reservation policy is an age old policy being practiced in India. Its origin has its roots scattered from the ancient times when the practice of ‘untouchability’, caste system and Varna system was dominant in the society. In ancient times, the Hindu society was divided on the basis of Varna, Jatis or classes and they were as follows in the descending order of their social hierarchy- the Brahmans, the Kshatriyas, the Vaisyas and the Shudras. There was another class of people or rather no class people known as “untouchables” or “avarna” that is who has no class. These untouchables were considered to be impure for society and were excluded from the social system. They had to reside outside the village and had no social rights. In some parts of the country such as Southern India, if even their shadow was casted on the upper-class people then it was considered that the person has got impure. There were strict restrictions on them for social gatherings and social life and if they violated any social norm, they were severely punished and in some cases were even killed. The division of society on the norms of purity and impurity was a very cruel system, and it had adverse effects on the development and growth of these lower class people where the skill and labor of an individual were recognized merely on the ground of him being a member of a lower caste. The epics like Mahabharata also quote of many instances wherein a warrior like Karna was not allowed to showcase his talent merely on the ground of him being a Shudra. He was often referred to as ‘Shudra Putra’ and humiliated because of his caste. The then prevalent caste system was a major reason for the advent and advancement of the Reservation Policy in India. The idea of giving reservations to a certain class of people originated because of the prevalent atrocities being done on the certain class of people. To give them an equal opportunity, an equal status in society, to uplift them socially, to bring them at par with other sections of society and moreover to bring development in the lower strata of society, were the reasons for the adoption of Reservation Policy in India.
So let us have a look at the various aspects of Reservation Policy in India.
Reservation Policy in Pre- Independence Era
The legal origin of Reservation Policy in India began with lying down of the Government of India Act, 1919 which came during the turbulent period of World War I. During this period, the British were more focussed on Europe rather than on India yet they passed much important and significant legislation that aimed at the development of the Indian Territory. This Act of 1919 not only introduced several reforms for the Indian Governmental institutions but also addressed many issues of minorities including the formation of communal electorates. Though the system was criticized firmly by Montague-Chelmsford as a system that could be a hindrance to the self-development policy but because Muslims already had a communal electorate through the Minto- Morley reform of 1909 and, therefore, they found it unfeasible to take away the separate electorates of Muslims.
After the Act of 1919, the controversial Simon Commission came up in 1927 to scrutinize the Montague- Chelmsford reforms. After touring the entire Indian provinces, their representatives proposed for combining separate electorates and reserving seats for depressed classes and demand for the wider franchise was there as the economic, educational and social position of these depressed classes did not allow them to vote properly. To stamp and scrutinize the report of Simon Commission and the reforms proposed by them and how to incorporate them into new Constitution, a Round Table Conference was convened in London in 1931. There were many Indian delegates from various interests groups. The conference was chaired by Prime Minister Ramsay Macdonald. There were appeals for separate electorate from B.R Ambedkar but Mahatma Gandhi strongly opposed the appeal for separate electorate for depressed classes and because of this strong opposition from Mahatma Gandhi and Congress the issue of minority remained unresolved in the Conference.
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After this the Communal Award and the Poona Pact of 1932 came into force wherein the Prime Minister Macdonald announced the communal award where the separate representations were to be provided to Muslims, Sikhs, Indian Christians, Anglo- Indians, Europeans and Dalits Depressed classes’ were assigned a number of seats that were to be filled by election from special constituencies in which voters belonging to the depressed classes could only vote
The award brought in criticism from Mahatma Gandhi but was strongly supported by Dr. BR Ambedkar and other minority groups. As a result, of the hunger strike by Mahatma Gandhi and widespread revolt against the award, the Poona Pact of 1932 came into being which brought in a single general electorate for each of the seats of British India and new Central Legislatures. The stamping of the provisions of Poona Pact, 1932 were done in The Government of India Act of 1935 where reservation of seats for depressed classes was allotted. This was the scenario before the independence of India.
Post- Independence Era
Post- Independence the scenario changed and the reservation policy gained even more momentum than the pre-independence era. The Constituent assembly chaired by Dr. B.R Ambedkar framed the reservation policy and many Articles in the Indian Constitution were dedicated for the same.
Article 15(4) – Special Provision for Advancement of Backward Classes-
Article 15(4) is an exception to clauses 1 and 2 of Article 15, and it was added by the Constitution (1st Amendment) Act, 1951, as a result of the decision in State of Madras v. Champakam Dorairajan[1]. In this case, the Madras Government had reserved seats in State Medical and Engineering colleges for different communities in various proportions on the basis of religion, caste and race. The state defended the law on the ground that it was enacted with a view to promote the social justice for all the sections of the people as required by Article 46 of the Directive Principles of State Policy. The Supreme Court held the law void because it classified students on the basis of caste and religion irrespective of merit. To modify the effect of the decisions, Article 15 was amended by the Constitution (1st Amendment) Act, 1951. Under this clause, the state is empowered to make provisions for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes. After the amendment, it became possible for the state to put up a Harijan Colony in order to advance the interest of the backward classes.
Constitution (93rd amendment) Act, 2006: Provision for Reservation of Backward, SC and ST classes in private educational institutions (article 15(5))
The new clause 5 provides that nothing in Article 15 or in sub- clause (g) of Clause 1 of Article 19 shall prevent the state from making any special provisions, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in Clause (1) of Article 30..
The above-mentioned amendment has been enacted to nullify the effect of three decisions of the Supreme Court in TM Pai Foundation v. State of Karnataka[2], Islamic Academy v. State of Karnataka[3] and P.A Inamdar v. State of Maharashtra[4]. In T.M Pai and P.A. Inamdar case, it had been held that the state cannot make reservations of seats in admissions in privately run educational institutions. In Islamic Academy case, it had been held that the state can fix quota for admissions to these educational institutions but it cannot fix fee, and also admission can be done on the basis of common admission test and on the basis of merit. This Amendment enables the state to make provisions for reservation for the above categories of classes in admission to private educational institutions. The Amendment, however, keeps the minority educational institutions out of its purview. Article 15 prohibits discrimination on the ground of religion. The evil effect of reservation is well known. The politicians who claim to take the country to the 21st century for which higher education is based on merit is essential, is taking a retroactive step in providing reservation to less meritorious students to private educational institutions. This appeasement policy of the government may get them some benefit in elections, but it would be harmful to the Nation.[5]
Reservation of posts in public employment on the basis of residence (Article 16(3))[6]
Article 16(3) is an exception to clause 2 of Article 16 which forbids discrimination on the ground of residence. However, there may be good reasons for reserving certain posts in State for residents only. This article empowers Parliament to regulate by law the extent to which it would be permissible for a state to depart from the above principle.
Reservation for backward classes in public employment (Article 16(4))[7]
Article 16(4) is the second exception to the general rule embodied in Articles 16(1) and (2). It empowers the state to make special provision for the reservation in appointments of posts in favor of any backward class of citizens which in the opinion of the State are not adequately represented in the services under the State.
Other Articles of Indian Constitution covering the Reservation Policy
Article 17 talks about the abolition of untouchability and declares its practice in any form to be an offense punishable under law.
The Social Security Charter of Directive Principles of State Policy under Article 39-A directs the State to ensure equal justice and free legal aid to Economically Backward Classes and under Article 45 imposes a duty on the state to raise the standards of living and health of backward classes.
Articles 330-342 talk about the special provisions for the certain class of people such as Scheduled Castes, Scheduled Tribes, Anglo –Indians, Linguistic minorities and OBC.
The relevance of Article 335
Article 335 plays a highly relevant role as a balancing act in the process of allotting seats on the basis of reservation. The Article in and of itself states that the State shall take into account the claims of members of Scheduled Castes and Scheduled Tribes to any seats in administrative positions, but only if appointing the said members will improve the administrative efficiency. At no point is the State absolutely required to grant the members these seats solely on the basis of their social standing.
The article serves as a guiding principle to the State in performing its duties under it without restricting the claims of the SCs and STs.
Landmark judgments regarding reservation
Indra Sawhney V. Union of India [8]– The Mandal Case
The 9 Judge Constitution Bench of the Supreme Court by 6:3 majority held that the decision of the Union Government to reserve 27% Government jobs for backward classes provided socially advanced persons- Creamy Layer among them are eliminated, is constitutionally valid. The reservation of seats shall only confine to initial appointments and not to promotions, and the total reservations shall not exceed 50 per cent. The court accordingly partially held the two impugned notifications (OM) dated August 13, 1990, and September 25, 1991, as valid and enforceable but subject to the conditions indicated in the decision that socially advanced persons- Creamy layer among Backward Classes are excluded. However, the court struck down the Congress Governments OM reserving 10% Government jobs for economically backward classes among higher classes.
After the landmark Mandal case, Article 16(4-A) (through 77th Amendment) and 16(4-B) (through 81st Amendment) were added. According to clause 4-A, nothing in this Article shall prevent the state from making any provision for reservation in matters of promotion to any class or classes of posts in the service of state in favour of the Scheduled Castes and Scheduled Tribes which in the opinion of the State, are not adequately represented in the services under the State.”
Clause 4-B seeks to end the 50% ceiling on the reservation for SCs/STs and BCs in backlog vacancies which could not be filled up in the previous years due to the non- availability of eligible candidates.
85th Amendment Act replaces the words “in matters of promotion to any class” in clause 4- A of Article 16 with words “in matters of promotion, with consequential seniority, to any class.”
M.R. Balaji and Ors. v. State of Mysore AIR 1963 SC 649
The State of Mysore issued an order declaring all communities except the Brahmin community as socially and educationally backward under Article 15(4) of the Constitution and reserving a total of 75 per cent seats in Educational Institutions in favor of SEBCs and SCs/STs. Such orders were repetitive in nature. They were being issued every year, with little to no variation in the reservations being allotted.
When this order was challenged in the Supreme Court under Article 32 of the Constitution, the 5-judge bench struck it down claiming that backwardness is a social and educational factor, both. Though caste in relation to Hindus may be a relevant factor to consider, in determining the social backwardness of a class of citizens, it cannot be made the sole and dominant test.
It was also stated that while there is no definite spectrum for granting reservation, it should still be defined in a broad way, and must be less than 50 per cent.
State of UP v. Pradeep Tandon AIR 1975 SC 563.
The State Government had issued an order which called for reservation of seats for students in medical institutions. This reservation was extended to candidates from –
Rural areas
Hill areas
Uttarakhand area
This order was challenged in the Supreme Court. The classification on geographical and territorial areas which was observed by the Court was made so due to the candidates from these areas being regarded as socially and culturally backward classes.
That being said, the court termed the reservation for the candidates from hill areas and Uttarakhand valid, as the absence of means of communication, technical processes, and educational facilities kept the poor and illiterate people in the remote and sparsely populated areas backward.
However, the same comfort of reservation was not extended to candidates hailing from rural areas. It was held invalid that the division of the people on the ground that the people in the rural areas were poor and those in the urban areas were not, as the same was not supported by the facts.
State of Madras v. Smt. Champakan Dorairajan [1951] S.C.R. 525
This case was the result of the Madras government issuing an order enforcing communal G.O.s with respect to medical colleges. The order specified proportions for reservation of seats in medical colleges with respect to the caste one belonged to.
While the objective of the order was to help the backward classes, the special bench of seven judges struck down the order, claiming it to be unconstitutional towards of Articles 15(1) and 29(2) of the Constitution.
Why is reservation important in India?
The concept of reservation was introduced to combat a long-existing practice of discrimination and stereotyping within the rural Hindu communities, which were divided into castes. Some castes were ranked as higher up, and the others were low-tier, with the former often discriminating against the latter.
In terms of its importance, the need for reservation can be looked at from one of two perspectives, those being a legal perspective and a socio-cultural perspective.
Legal Sense
The discrimination faced by these marginalized groups was indicative of the constant oppression faced by them, dealt out by those considered to be of a ‘higher’ class than them.
The makers of the Constitution felt that these classes needed to be a part of the law-making procedure, and special provisions had to be granted to them to incorporate them into the process.
This incorporation was meant as an upheaval process for said backward classes in order to mitigate most of the oppression faced by them during the casteist era. This was done by granting them equal rights, opportunities, and special reservations to ensure their participation in the legal framework of the country.
Socio-Cultural Sense
To delve further into the social and cultural background of casteism and reservation, we have to clearly establish the varna system in the Hindu religion, consisting of the Brahmins, the Kshatriyas, and Vaishyas originally. A fourth sect by the name of Shudras also developed who existed as cleaners, meant to serve the three ‘higher’ sects.
Apart from these four sects, people who were not classified under the varna system were regarded as ‘Dalits’ or untouchables. Their existence and touch were believed to pollute everything near them. They were relegated to perform tasks which were considered ‘impure’ such as cremation, etc. Over time, this practice has also bled into other religions like Christianity and Islam, who discriminate against those who are considered to be of a ‘lowly birth’.
This created a pertinent reservation in the Indian society and culture to save these persecuted communities from further oppression and to promote their development and education, thus leading to the formation of the reservation system.
Debate on Reservation
While reservation has been an integral part of the Indian legal system for a long time, in recent times, its necessity has come under scrutiny. While people are not against the idea of reservation, it is the prevalence of caste-based reservation that stirs up controversy.
It is often argued that after more than 70 years of enjoying reservation, the backward classes have been empowered, both economically and socially, to a large extent. As such, the reservation of seats is not a necessity for them, and such seats should instead be reserved for economically weaker sections of people. Their argument is further strengthened due to the existence of the creamy layer system, in which even well-off members of backward classes are entitled to the same amount of reserved seats that other members of their class hold. However, this issue is also looked at through another perspective, and that is not by blaming the reservations for minorities, but the lack of job opportunities generated for the people.
Suggestions and Solutions
When considering a solution to the above debate, it is acknowledged that the problems cited by those against reservation are true. Reservation through a caste-based system has become redundant in the modern age and is taking away opportunities from those who are actually underprivileged in economical terms.
Moreover, the reservation system only divides the society leading to discrimination and conflicts between different sections since it is oppressive and does not find its basis in casteism. It is actually the converse of communal living.
Reservation benefits, if provided, should be restricted to a maximum of two children per family, regardless of the number of children they may have, which would help in regulating the population of OBCs which will eventually result in a decrease in their representation, giving way to the principle of equality.
If we take situations in rural areas as precedence, economically, a person of the general category may suffer economically just as much as a member of an OBC, however, under the reservation criteria, only the person belonging to the OBC will get a reservation in an educational institution or government job.
The Road Ahead
Difference between quota and reservation – what is the need of the hour?
Reservation and quotas are interrelated mechanisms. Without assigned reservations, a quota cannot exist. Reservation is the act of setting a part of something aside for a specific purpose. A quota for a reservation dictates how much of that particular thing will be set aside in accordance with the reservation.
In India’s case, the act of reservation is reserving seats in educational institutions, and certain places of employment, for certain castes and classes of society which are considered ‘backward’, those being the Scheduled Castes, Scheduled Tribes, Other Backward Castes, etc. Quotas for the same define how much percentage of total seats will be assigned to each individual minority group.
As such, the need of the hour falls less on quotas themselves but on reservation as a practice. Reservation is the need of the hour, but not in its current state.
Reservation needs to be altered in a manner wherein it provides seats for sections of society who are economically weak, instead of reservations on the basis of societal differences.
If such a change, while drastic, was to be implemented, it would lead to the dissolution of a lot of communal strife that exists due to caste-based reservations, while also guaranteeing reserved seats for those who are in actual need of it.
Is reservation alone enough to ensure community development?
When it comes to community development, reservation is a double-edged sword, and the two edges are the different types of reservations offered.
When a reservation is referred to in its traditional sense, it actually causes more harm than good. When society and opportunities for the people are divided on the basis of caste and class, it creates a division between said classes which hampers communal harmony and growth.
However, if the reservation policy was reversed to guarantee seats to sections of society which were weaker economically, it would create a sense of common upbringing which the people who were economically well-off would feel towards the economic minorities.
Conclusion
The reservation policy in India was adopted with a reason to uplift certain castes who were subjugated to atrocities, social and economic backwardness due to the prevalent dominance of caste system in Hindu Society.
This reason has somewhere lost its essence in the modern era, and the castes that should be actually benefitted are not being benefitted, and the others are reaping the benefits of the reservation system that is actually not meant for it. Today, the reservation system has just become a tool for politicians to gain vote banks. The recent agitation from the Patels of Gujarat to include them in the category of OBC was shocking for the entire nation, as the people who were agitating to get reservations in the state of Gujarat were in no ways socially and economically backwards.
In the State of Tamil Nadu, the reservation system proved to be a havoc for the society wherein the Brahmans had very cleverly churned themselves down in the league of the backward bandwagon and had gained enormously from the reservation system.
For these possible reasons, the Creamy Layer has been excluded from the list of Scheduled Castes, Scheduled Tribes and OBC after the landmark Mandal Case.
In one of the landmark decisions of Ashok Kumar Thakur v. Union of India, Justice Ravindran smelling the dangers from the present trend on the reservation had rightly opined that when more people aspire for backwardness instead of forwardness, the Country itself stagnates.
It is quite impossible to declare Reservation policy as good or bad as those benefitting from it would always support it and declare it to be good while those who are being at a loss because of the system would always curse it and declare it to be bad. But what matters the most is not that whether the reservation policy is good or bad instead what matters is the idea and the reason behind its adoption. If that reason is losing its essence, then, of course, the reservation policy would gradually turn out to be bad.
The political indulgence in the process of reservation has merely reduced from a noble idea to a strategy to increase the vote bank. Moreover, a lot of criticism has been made on the criteria of reservations. The socially and economically backward classes are not actually in practical and real sense socially and economically backward, the only stamp of being from a backward caste is enough to gain profits in the name of reservations.
The reservation policy is good till the point some deserving candidate is not missing upon his opportunity because of the prevalent reservation system. I find no reason for giving admissions to undeserving students over deserving students. If these classes of people have been denied opportunities in past, then the scenario is being repeated with the general class in the present. The undeserving should not reap the fruits of the labor of the deserving.
We also need to understand that when we talk about development then simultaneously we cannot talk about backwardness. If we would demand more and more backwardness, then it is obvious we cannot move forward, and we will not be able to move forward, our progress would ultimately get stagnant.
It is also important that the essence of the idea of the adoption of reservation policy should be maintained, and the actual backward classes who are in real and not fiction denied access to education, job opportunities etc be benefitted.
This reservation policy should not become a ladder to climb on the stairs of profit, money and other related interests for those who are just roaming with the stamp of being a backward class and are actually socially and economically much more stable than the general class.
“The urge to be one among the backward will gradually lead towards the stagnation in the development of the country.
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In this blogpost, Sudhi Ranjan Bagri, student, National Law Institute University, Bhopal, writes about what is admission, persons whose admission are relevant and party to the proccedings.
Introduction
Admission means stating something which is against the interest of the person making such admission. Hence, the general rule is, that admission must be self-harming; and because any person would refrain from making such statements which are self-harming unless it is true, hence such admissions are received as evidence in a court of law.
Admissions as defined in Section 17.
Section 17 says…
“An admission is a statement[1], oral or documentary (or contained in electronic form) which suggests any interference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned.”
An admission is a statement of facts which is of such a nature that it waives the necessity of producing evidence and that the fact asserted by the opponent is true. Admissions are admitted because the conduct of a party to a proceeding, in respect to the matter in dispute, whether by acts, speech, or writing, which is clearly inconsistent with the truth of his contention, is a fact relevant to the issue. The admissions are very weak kind of evidence, and thus, the court may out rightly reject them if it is satisfied that they are untrue.
The Supreme Court has observed: Admissions which are defined in Sections 17 and 20 and which fulfill the mandatory requirements of Section 21 of the Indian Evidence Act, are substantive evidence. The Court has in various cases held that an admission is the best evidence against the party making it and though not conclusive, shifts the onus to the maker. This shift in onus is due to the principle that what a party himself admits to be true may be reasonably presumed to be true and therefore unless the presumption is rebutted the admission must be taken to be true.
There is this observation in Phipson on evidence “Subject to certain exceptions, the general rule, that both in civil and criminal cases, is that any relevant statement made by a party is evidence against him. R. v. Erdheim[2]. The weight of the declaration is, of course, a totally different matter; this may vary with the circumstances and will not doubt, be greater if against interest at the time, than the contrary.”
In E.C.T. Farming Society Case[3], Beg, J. of the Supreme Court observed: It is well settled that the effect of an admission depends upon the circumstances in which it was made.
A statement to be used as an admission must be clear, specific and unambiguous and in the own words of the person making it and has to be proved to be so. It is not an interference drawn by anybody which should be taken as an admission. An admission to be worthy of being received in evidence, considered and relied upon, it should firstly be the clear-cut and accurate statement of that very person in his own works. It has to be proved to be the statement of the person who made it[4].
An admission must be examined as a whole and not in parts[5]. Statements in pleadings are admissions against the party making them. He cannot be allowed to rely upon favourable parts and throw the rest by oral evidence. In Union of India v. Moksh Builders etc.[6], Court stated that an admission is substantive evidence of the fact admitted and when properly proved is relevant irrespective of the fact whether the person making such admission made it in witness-box or not and whether he was confronted with those statements or not in case he made a statement contrary to his admissions. The court cited a statement from WIGMORE ON EVIDENCE to the effect that an admission need not be contrary to the maker’s interest. Thus it is not necessary before admitting the evidence of an admission that it should be brought to the notice of the party who made it.
It is immaterial to whom an admission is made. An admission made to a stranger is relevant. In English law, the term admission and confession are used distinctly to cover different situations. The term ‘admission’ is used while dealing with civil cases, whereas the term ‘confession’ is used while dealing with criminal cases so as to mean ‘the acknowledgement of guilt’. This distinction is not maintained in the Indian Evidence Act, and Sections 17 to 22 are applicable to civil as well as criminal cases. Statements by the accused are admissions under ss. 17 and 18, and prima facie evidence against the maker, but not in his favour[7]. The word ‘confession’ has not been defined anywhere. The statement is a genus; admission is the species and confession is the sub-species. A confession, therefore, is a statement made by an accused admitting his guilt[8]. When a party accepts his statement made in earlier proceedings, it amounts to an admission.
Persons whose admissions are relevant
List of persons whose admissions are relevant is to be found in the provisions of sections 18 to 20. Admissions made by any other persons are not receivable in evidence. Thus, the statements of some officers admitting their guilt that lesser number of persons were shown on records of the factory so as to keep it out of the application of the Central Excise was held to be not an admission against the owner.
There are seven classes of persons who can make admissions-
Party to the proceeding (Section 18)
Agent authorized by such party (Section 18)
Party suing or sued in a representative character (Section 18)
Person who has any proprietary or pecuniary interest (Section 18)
Persons from whom the parties to the suit have derived their interest in the subject-matter of the suit. (Section 18)
A person whose position is in issue or is relevant. (Section 19)
Persons expressly referred by the party to suit. (Section 20)
Party to the proceeding
What is admitted by a party to be true must be presumed to be true unless the contrary is shown; but before this proposition can be invoked, it must be shown that there is a clear and unambiguous statement by the party such as will be conclusive unless explained. Irrespective of the nature of the proceedings (i.e. could be either civil or criminal) any statement which was made by a party in a former suit is admissible irrespective of the fact that the opposite parties were same or different. However, any statement which is made by a party in a pleading cannot be used as evidence in subsequent proceedings before a court of law unless it amounts to an admission[9].
“When several persons are jointly interested in the subject -matter of the suit, the general rule is that the admissions of any one of these persons are receivable against himself and fellows, whether they be all jointly suing or sued, or whether an action be brought in favour of or against one or more of them separately, provided the admissions relate to the subject- matter in dispute, and be made by the declaring in his character of a person jointly interested with the party against whom the evidence is tendered.”[10] Admissions made by a party’s witness cannot be treated as admissions made by the party. Such admissions do not bind the party.
Agent authorized by such party
The admissions of an agent are admissible because the principal is bound by the acts of his agent done in the course of business and within the scope of his authority. A statement made by an agent whom the court regards, under the circumstances of the case, as expressly or impliedly authorized to make it, is admissible though not on oath[11], e.g., a statement by an agent before a settlement officer that his principal was a bastard. Before the statements of an agent can be relevant as admissions, the facts of the agency must be proved. Where there is no such relationship, the statement in question would not qualify for relevancy. Thus, where over a matter of sub-letting, the tenant’s brother stated on affidavit before Income-tax Authorities that he was the tenant, there being no agency relationship between the two brothers, nor there being the signature of the tenant, the Supreme Court held that the statement was not admissible against the tenant[12].
Party suing or sued in a representative character
This means trustees, executors, administrators, managers in the character of an executor or administrator, or the assignee of a bankrupt.
It is important that such persons must make ‘the statement in their character of persons so interested’. A statement made by a trustee, executor or administrator, is not admissible against him when sued as trustee, etc., if it was made before he became trustee, etc. this principle is grounded on the fact that a statement against the interest of a person making it will not be made unless truth compelled it. But the fact that two persons have a common interest in the subject –matter does not entitle them to make admissions, respecting it, as against each other[13].
Person who has any proprietary or pecuniary interest
In cases where several persons are jointly interested in the subject matter of a suit, an admission by any of those persons is receivable not only against himself but also against the other defendants. However, before taking such admission as evidence, it is required to be proved that the admission relates to the subject-matter which is in dispute in the suit, and that such admission has been made by the person while he was in his character of a person jointly interested with the person against whom such admission is being tendered as an evidence. In a suit for declaration of title, a statement by the suitor’s father that the defendant was in possession was admitted. Admissions made by a person about his ownership of the property after he had transferred it are not relevant to the prejudice of the buyer’s interest. After transfer, he no longer had any interest in the property. In a tenancy matter, an admission made by the tenant’s brother was not relevant because he had no pecuniary or proprietary interest in the matter of the tenancy. Admission by a party is not possible after parting with his interest in the property[14].
Persons from whom the parties to the suit have derived their interest in the subject-matter of the suit.
Statements made either by parties interested or by persons from whom the parties to the suit have derived their interest are admissions only if they are made during the continuance of the interest of the persons making the statements. The admissions of a former owner of the property after he has ceased to have any interest in it are not evidence against the party in possession. Z, a landowner, filed a suit for ejectment against B, a tenant. B alleged he was a permanent tenant at a fixed rent under an agreement with the original owner of the land, who was dead, and put in evidence statements made by the original owner of the land, who was dead. It was held that the statements were inadmissible. Where the deceased father of the plaintiff admitted that the defendant was his second legally wedded wife and her children were his legitimate children, the admission was binding on the plaintiff[15].
Person whose position is in issue or is relevant
The admission of a third person against his own interest when it affects his position or liability and when that position or liability has to be proved as against a party to the suit is relevant against the party. Ordinary statements by strangers to a proceeding are not relevant as against the parties. This section is in a way an exception to the general rule that statements which are made by strangers to a proceeding are not admissible as against the parties.[16]
Persons expressly referred by the party to suit.
This section forms another exception to the rule that admissions by strangers to a suit are not relevant. Under it, the admissions of a third person is also receivable in evidence against, and have frequently been held to be in fact binding upon, the party who has expressly referred another to him for information in regard to an uncertain or disputed matter[17]. If a reference is made over a disputed matter to a third person, not in the nature of a submission to arbitration, but rather as an aid to the settlement of the differences existing between the parties and to enable the parties themselves to effect a settlement on the information, in such cases the party is bound by the declaration of the person referred to in the same manner and to the same extent as if it was made by himself[18]
[1]Abdul Shakur Khan v. R. D. Tyagi, 1999 Cr LJ 1524 (Bom)
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