Non-Banking Financial Companies (NBFCs) are an indispensable part of the Indian financial market and play a considerable role in the Indian economy. As their name suggests, their nature of operations is altogether different from that of banks. They provide services to mainly rural and semi-urban sectors. Through this article, we will try to gain a basic understanding of NBFCs under the headings below
What are NBFCs
A Non-Banking Financial Company (NBFC) is a company registered under the Companies Act, 1956 or the Companies Act, 2013, NBFCs, or non-banking financial companies, are financial institutions that provide a wide range of banking services and financial products, similar to traditional banks, but they do not hold a banking licence. These companies are an integral part of the financial system and play a crucial role in providing credit and financial services to various sectors of the economy.
NBFCs are financial institutions engaged in providing various financial services and products, with the principal business of receiving deposits under an arrangement in one lump sum, in instalments by way of contributions or in any other manner. But unlike banks, they cannot accept deposits from the general public and are not involved in the general banking business. These institutions provide varied services to their customers.
How is it different from banks
NBFCs perform normal lending and investment business like banks; however, there are three major differences between banks and NBFCs, as follows:
NBFC cannot accept demand deposits,
NBFCs are not allowed to issue cheques drawn facility and also cannot follow regular payment and settlement system,
NBFC depositors cannot avail themselves of the facility of deposit insurance,
Diverse financial services provided by NBFCs,
Loans under different categories, such as personal, home, vehicle, and gold,
Microfinance for small industries,
Leasing and hire-purchase services,
Credit cards and services,
Insurance services,
Investment services, and
Asset management services.
Governance authority and registration requirements
The Reserve Bank of India (RBI) is the governing authority that issues licences to NBFCs, regulates their operations and ensures that they comply with laws and regulations while doing business. A company registered under the Companies Act, 1956, that wishes to commence its business as an NBFC specified under Section 45-I(A) of the Reserve Bank of India Act, 1934, should satisfy the following two conditions:
Minimum Net Owned Fund (NOF) requirement of INR 200 lacs. There is a separate NOF requirement for specialised NBFCs such as NBFC-MFIs and CICs.
Different types of NBFCs
The different types of NBFCs are:
Asset Finance Company (AFC)- These provide finance to purchase physical assets such as automobiles, vehicles, lathe machinery, generator sets, earthmoving and material handling equipment, etc. to support productive and economic activities.
Investment Company (IC)- They invest in various securities such as stocks,bonds and debentures.
Loan Company (LC)- These NBFCs provide loans or advances to individuals and businesses.
Infrastructure Finance Company (IFC)- These companies provide long term finance to infrastructure schemes and satisfy the following criteria:
Utilise at least 75% of its total assets in infrastructure loans.
The minimum NOF required is Rs. 300 crore.
The credit rating should be at least an A or equivalent.
Capital-to-risk weighted assets ratio (CRAR) of 15%.
Infrastructure Debt Fund- Non- Banking Financial Company (IDF-NBFC)- These NBFCs provide long term debt financing for infrastructure projects. IDF-NBFC raises resources through the issuance of Rupee or Dollar denominated bonds of a minimum 5 year maturity. Only Infrastructure Finance Companies (IFC) can sponsor IDF-NBFCs.
Non-Banking Financial Company- Micro Finance Institution (NBFC-MFI)- These NBFCs are non deposit taking finance companies with at least 85% of their assets in the nature of qualifying assets and the minimum NOF is 5 crores.
Non-Banking Financial Company-Factors (NBFC-Factors)- Their main line of business is factoring, which refers to financial transactions in which the company sells its bill receivables to third parties at a discounted rate.
Mortgage Guarantee Companies (MGC)- This is another kind of NBFC where minimum 90% of the business turnover or minimum 90% of the gross income pertains to mortgage guarantee business with NOF Rs. 100 crores.
NBFC- Non-Operative Financial Holding Company (NOFHC)- The promoter or promoter group will hold the bank as well as all other financial services companies that are regulated by the RBI or other financial sector regulators, to the extent permissible under the applicable regulatory prescriptions.
Functions of NBFCs
The functions of NBFCs are:
The majority of NBFCs provide funds for infrastructure projects, including Railways, metro construction, Flyovers, Airports, Real estate, etc., which are considered the backbone of every developing country like India.
Another major role is played in Hire Purchase services, through which the seller only delivers goods to the buyer and transfers ownership of the goods later, once full payment is made for the goods.
They deal with Retail funding for many companies, which includes a variety of short-term loans against movable properties such as shares, gold, and property for various business purposes.
They are also involved in the asset management function, where fund managers invest in the share market through pooling of funds from small investors and manage them to provide high rates of return.
They fulfil the working capital requirements of companies for operating day to day business.
Venture Capital funding is one of the major functions where they invest in small businesses at their initial stages to act as guarantors and help earn high profits from these projects.
They provide finance and support Micro Small Medium Enterprises (MSME) registered under various schemes run by the Government to promote social and economic welfare for the country.
Key regulations for acceptance of deposits by the NBFCs
To accept or renew public deposits for a minimum of 12 months and a maximum of 60 months.
They are not allowed to accept deposits that are repayable on demand.
They cannot charge interest rates higher than the ceiling rate prescribed by the RBI.
They are not allowed to offer gifts or other benefits to the depositors.
They should achieve a minimum investment grade credit rating.
Their deposits are not insured.
Conclusion
In conclusion, NBFCs provide financial support for the expanding needs of both corporate and unorganised sectors, and they are rapidly expanding despite the global economy’s slowdown. They have become more popular in recent years due to their flexible lending policies and focus on customer service.
Given that NBFCs have become increasingly important to the growth of the economy and financial sector over the past few years, our Indian government has been concentrating on their development constantly. They receive a variety of forms of assistance in order to develop and broaden their presence in the expanding economy. These programmes include tax breaks, easier access to funding, and regulatory changes aimed at fostering an environment that is more favourable for NBFCs to operate in. Due to the fierce competition they face from banks, they must constantly find new sources of funding. Since they are unable to use low-cost deposits, they must obtain funding from debt and equity sources. To address these challenges, the RBI has implemented several measures to regulate NBFCs in India. These measures include stricter capital adequacy requirements, a more comprehensive regulatory framework, and increased disclosure requirements. The RBI has also introduced a mechanism for monitoring systemic risks associated with NBFCs.
India has been known as the “sone ki chidhiya”, but later or sooner, India started to lack backwards. We all know the grand history of the country. There was colonisation and then the urge to be free from those colonies for which many leaders took “the” initiative but in between, people started discriminating against other people. The discrimination was not only on the basis of caste, sex and religion; it also extended to some of the professions. In fact, some professions were chosen to be done by people of a lower caste than you and that practise is still followed in some parts.
A woman’s respect and dignity were considered unharmed till the time she was not involved with any other person; she was considered to be pure but being a sex worker also does not make any woman impure; it does not give any other person the right to treat them in a less dignified manner or in any manner that harms her reputation. The profession of sex workers is considered to be one that should be kept low profile. There are red light areas in cities where people go but never want to disclose that fact, as this might harm their reputation. At some point in time, this is valid as this is there personal choice but it cannot be a personal choice to worsen the condition of their life or forcefully get involved (sexually) with someone.
This is discussed in the case of Budhadev Karmaskar vs. State of West Bengal (2011), which is a landmark judgement given by the Hon’ble Supreme Court and comprises judges L. Nageswara Rao, B. R. Gavai and A. S. Bopanna.
Facts of the case
This is a case of the murder of Shrimati Chayay Rani Pal alias Buri (aged 45), who was a sex worker, by the appellant, Budhadev Karmaskar.
The incident occurred on September 17, 1999, around 9:00 p.m. in a three-story building on Jogen Duta Lane, which is the red light area of Kolkata. Buri was a resident of the building.
Prior to the incident, the deceased was sleeping outside her room, which was near the staircase on the second floor. The accused went to her with a wish for sexual intercourse, which the deceased, i.e., Buri, denied.
In a fit of anger, the accused assaulted the deceased by banging her head several times, kicking, thrashing and smashing her hands and legs. The deceased fell down to the first floor; this was not enough for the accused, so he dragged her by her hair and banged her head against the wall.
The incident was eye-witnessed by Asha Khatun, who was present on the second floor. A protest was raised against him, and as this happened, he ran away in order to save himself.
Buri was immediately taken to the Medical College Hospital, but she lost her life on the way. The incident led to bleeding from the head, nose and ear, and as a result, she had 11 injuries to the face.
Within 5 hours of the incident, i.e., around 2:15 a.m., the accused was arrested by the police in Jogen Duta Lane itself.
This is the case of one sex worker that got highlighted but there are many more cases that do not come up. But it opened the eyes of many people to the conditions of people living in these kinds of areas, how they live, what lifestyle they adopt or the treatment they get from people. There might be workers who cannot even acquire the basic necessities of life or maybe they are not even aware of the medical conditions that may arise. They may also have a wish to start a family or may want a better life for their children.
Arguments of prosecution
The prosecution narrated the facts of the case as to what they believed they saw.
They had the support of the post- mortem report, which told about the nature of injuries and how they must have been caused.
The reports mentioned that the injuries are caused by beating through legs and fists and that eight injuries out of eleven were sufficient to cause “the” death of any human.
Arguments of the defendant
The defence counsel defended by saying that the injuries can be the result of continuous falling from the stairs and not the assault committed by the accused.
The defence created doubt about the facts stated by the respondent by saying that there was no testimony or shreds of evidence by the residents.
Issues involved in the case
Now the issue was not only about the murder but also about the lifestyle of the people in this profession. A constitutional panel was also formed in 2011 to discuss the issues. The panel consisted of Mr. Pradip Ghosh as the chairman, Mr. Jayant Bhushan senior counsel, etc. Some of the issues include:-
Human trafficking must be prevented.
Steps must be taken to rehabilitate the sex workers who wish to leave the profession.
Steps must be taken to develop “the” dignity, lifestyle and conditions of the people who wish to continue or want to join this profession. This must be done in accordance with Article 21 of the Constitution of India.
The right to life is considered a “heart of fundamental rights”. The right to life enjoys a wider ambit, covering the right to live properly and the right to health to live with dignity. A person deserves respect in society that should not be hampered by his choices in life, profession, gender, caste, religion, etc.
Judgement of the Court
The case was passed through the High Court of Calcutta, where the accused was convicted of life imprisonment. The accused then filed an appeal against the High Court’s decision, which was dismissed by the Supreme Court by order in 2011 and converted the High Court’s order to a public interest litigation, suggesting taking steps considering the sex workers. A constitutional panel has also been made for the recommendations.
A bill was passed by the Union of India in 2016 but there have been no further steps taken on the panel recommendations by the legislation, so the SC issued an order of implementation of six recommendations, ensuring that there is the objection of the central government.
Analysis of the judgement
The judgement is a landmark judgement for sure, as this does not happen every day that people gather enough courage to proceed with the case and that the legislation also makes new bills or amends any of its already existing laws. The case showed us a new aspect of Article 21 of the Constitution of India. Justice was delivered to those who were not even recognised by society. It was clear that every person deserves to live with dignity unless he is restricted by law and the judiciary recognised the right to life for sex workers
The case was a murder case but in the process, the reality was shown to the Court that even after years of independence, some women are still suffering and staying in conditions that are beyond their imagination and how they could still stand equal to other people. The profession of sex worker that they exercise is not the choice of most of the women but the result of trafficking and the conditions that forced them to do so and now it has become their means to earn a livelihood. The means to earn a livelihood do not give another person the authority to make you work forcefully.
In the present case, the deceased was exploited and beaten to death, which shows how cruel one person can be to another. This is one case that came up in history and there might exist similar cases, which we do not know because of the fear among the sex workers that they won’t be listened to. But society must not see them as inferior but should accept them as a part of society.
The Supreme Court accepted that sex workers must also be provided with rights and duties to exercise. SC has asked to provide them with the basic necessities of life but still, their profession has not been fully recognised. Some amendments need to be made to the Immoral Traffic (Prevention) Act, 1956, that restrict the profession, using any property as brothels, the income of sex workers, and making contacts.
‘Sex work’ was made legal but certain provisions must also be laid to support the fact.
Conclusion
Above mentioned case provided rights and dignity to the sex workers; they have been recognised in the law, but it took around a decade to recognise them in the law and it might take a decade to settle provisions in their favour, and it might take another decade for society to accept them. It also gives an example of how a certain population is still deprived and just a mere community, but a voice raised will also be a voice heard. It is a landmark judgement for the protection of sex workers by the Apex Court by means of Article 21 of the Constitution of India.
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This article has been written by Vishwendra Prashant, a law student at ICFAI University, Dehradun. This article discusses important case laws relating to Section 409 of IPC. However, most of these case laws are recent ones.
It has been published by Rachit Garg.
Table of Contents
Introduction
Section 409 of the Indian Penal Code, 1860 deals with criminal breach of trust by public servants, bankers, merchants, factors, brokers, attorneys, or agents. However, the duties of such persons are highly confidential, involving great powers of control over the properties entrusted to them. So, a breach of trust by such persons is punishable under this Section.
Now coming to the punishment for the offence under Section 409 IPC, the offenders are punishable with imprisonment for life, or with imprisonment of up to 10 years along with a fine.
Sardar Singh v. State of Haryana (1976)
Facts
In this case, the appellant was a patwari in Revenue Circle Raisina, Gurgaon.
When he took charge of the post, a memo was prepared by setting out various books and documents that he had received at the time of taking charge.
He was suspended based on a departmental inquiry.
He was directed to hand over the charge of his post, but he failed to do so.
The Revenue Assistant, Gurgaon ordered to break open the lock of his room.
His successor took charge of the post, and a list was prepared by setting out the books and documents that were found in the room and of which possession was taken by the successor.
Another list was prepared to show the books and documents missing from the room.
As per the list, three documents, namely roznamcha waqiati (a diary of daily transactions which is maintained by the Patwari), copying fee register, and receipt book were missing from the room.
The case of the prosecution was that the appellant had committed a criminal breach of trust regarding three documents and an amount of Rs. 26.50 p. that he had received for issuing certified copies in his capacity as Patwari.
The Judicial Magistrate First Class acquitted the appellant and held that there was no proof of entrustment of the said amount to the appellant, and he had no charge on the roznamcha waqlati and copying fee register. Regarding the receipt book, the Magistrate found that the appellant had entrustment
of the same in his capacity as Patwari, and it was not found in his room.
The Magistrate convicted the appellant under Section 409 IPC and sentenced him to imprisonment till rising of the Court along with a fine of Rs 100.
The appellant filed an appeal before the Sessions Judge. The Sessions Judge considered the order of the Judicial Magistrate First Class and dismissed the appeal.
The appellant filed a revision petition before the Punjab & Haryana High Court. This Court dismissed the petition.
Being aggrieved by the dismissal of the revision petition by the High Court, the appellant filed an appeal before the Hon’ble Apex Court.
Issue
Whether the appellant is liable for criminal breach of trust regarding the receipt book under Section 409?
Judgment
The Hon’ble Apex Court (Supreme Court) said that there was no receipt book in the room, and he did not return the same to his successor. However, he was not liable for criminal breach of trust due to the absence of evidence regarding the misappropriation of the receipt book. Hence, he was wrongly convicted under Section 409 of the IPC. The Supreme Court allowed the appeal and set aside the order of conviction. Thus, the sentence recorded against the appellant was set aside, and he was acquitted of the offence under the said Section.
The Supreme Court held that mere failure or omission to return properties is not enough to prove the commission of the offence under Section 409.
L. Chandraiah v. State of AP (2003)
Facts
In this case, there were six accused persons named A1, A2, A3, A4, A5, and A6.
A1 worked as a Sub-Postmaster at a Sub-Post Office from April 1986 to May 8, 1987. A2 was a successor of A1 and worked from May 8, 1987, to November 16, 1987. A3 was a Postal Assistant in the same Sub-Post Office. A4 was a postman in the same office. A5, an employee of the Postal Department, had resigned in 1987. A6 was a student living with A3 as a tenant.
The workers of a company opened several recurring deposit accounts in that Sub-Post Office.
The management of the company deducted the amount contributed in those accounts from the wages of the workers and directly remitted to the Post Office.
The management remitted a single cheque for the total sum, and the Postal Authorities made the required entries in each account.
The procedure for withdrawal of the amount from the recurring deposit account was that the management, after fixing its seal on the withdrawal voucher, would send the same to the Postmaster, and the workman would sign the said voucher for withdrawal in the presence of the Postmaster.
The prosecution case was that the accused persons were involved in a conspiracy to make a huge number of withdrawals from those accounts. They withdrew a sum of Rs 91,280 from those accounts through fabricated vouchers with forged signatures.
The workers stated that they had never withdrawn those amounts from their accounts.
The Trial Court convicted A1, A2, and A3 under Sections 409, 467, and 471 IPC and Sections 5(1)(c) and (d) read with Section 5(2) of the Prevention of Corruption Act 1947. Moreover, this Court acquitted A4, A5, and A6.
The Trial Court sentenced A1 to undergo rigorous imprisonment of one year under Section 409 IPC. Further, this Court sentenced A2 to undergo rigorous imprisonment of two years under Section 409 IPC.
A1 and A2 filed appeals before the High Court of Judicature, Andhra Pradesh at Hyderabad to challenge the conviction. The High Court dismissed the appeals and upheld the conviction.
Both the accused filed appeals before the Supreme Court.
Issues
Whether the conviction of the appellants (A1 and A2) was correct in the eyes of the law?
Whether the appellants knew that the vouchers were forged by A3?
Judgment
The Supreme Court observed that A1 and A2 did not know that vouchers were fabricated by A3 dishonestly and fraudulently. There was no evidence to prove that A1 and A2 knew about the fraud, so A1 and A2 had no criminal intent. Therefore, the said conviction of the appellants was not maintainable. This Court acquitted them. Moreover, the Supreme Court held that the offence under the Section requires criminal intent or mens rea.
N. Bhargavan Pillai v. State of Kerala (2004)
Facts
In this case, the accused was an Assistant Taluk Supply Officer.
He was working as a Junior Manager on deputation in the Kerala State Civil Supplies Corporation at Kowdiar.
Based on the order (dated April 14, 1983) of the Regional Manager of a Corporation, he took charge as Unit Manager in the Punalur Unit. His term of deputation to the Corporation was 5 years i.e., till June 30, 1986.
The Corporation requested the Civil Supplies Department to extend the term by one year.
Later, the Managing Director of the Corporation limited the request for an extension of the term up to Nov 30, 1986, by a request letter. He sent that letter to the Director of Civil Supplies, Board of Revenue.
The Regional Manager of the Corporation issued an order to relieve the accused effective from Nov 29, 1986.
However, the accused did not attend the office after Nov 27, 1986, and did not hand over the charge on Nov 29, 1986. He applied for leave. Moreover, he neither handed over the keys of the Punalur godown nor verified the stock.
He reported to the godown on Dec 13, 1986, and brought the keys.
He opened the godown in the presence of the then Assistant Manager. He also undertook in writing to hand over charge on the 13th, 15th, and 16th Dec 1986.
In his presence, the verification of items found in the godown took place. Only a stock of 21.875 quintals of M.P. boiled rice and 84 kg of tamarind was found in the godown.
The stock should be 123.65 quintals of boiled rice, so there was a shortage of 102 quintals. Moreover, there were no stocks of Palmolein and free-sale sugar as per the stock verification report.
The total value of the shortage is shown in the table:
Shortage
Value (in Rs.)
Rice (102 quintals)
Rs. 33,150
Palmolein (72 quintals)
Rs. 1,08,000
Free-sale sugar (30 quintals)
Rs. 22,620
The accused had also withdrawn loading and transporting charges for these items.
Later, he undertook to remit Rs 1,63,770 the value of a shortage of 72 quintals of palmolein, 102 quintals of rice, and 39 quintals of sugar.
In part payment, he deposited Rs. 50,000 in the Punalur Depot.
The Board of Revenue suspended him from the service. He retired from the service on Feb 28, 1992.
A case was registered against him.
The Trial Court held that he was guilty under Section 5(2) of the Prevention of Corruption Act and Section 409 IPC.
As far as Section 409 is concerned, this Court convicted him with a sentence of one year for the offence.
The accused filed an appeal before the Kerala High Court. This Court confirmed his conviction.
He filed an appeal before the Supreme Court.
The Defence Counsel contended that no sanction was present in the said conviction in terms of Section 19 of the Prevention of Corruption Act and Section 197 of the Code of Criminal Procedure, 1973 (hereinafter referred to as CrPC). He also submitted that the prosecution did not establish any misappropriation and/or mens rea of the alleged crime. Therefore, the conviction was contrary to the law.
The prosecution Counsel contended that the Courts have acted in accordance with the law. Misappropriation is not a part of an employee’s official duty, hence, the question of any sanction under Section 197 CrPC does not arise. In a corruption case, it would be against the public interest not to prosecute the accused who is guilty of misappropriating huge stock meant for people.
Issues
Whether the conviction of the appellant (accused) was proper?
Whether there was a need for sanction to prosecute him?
Judgment
The Supreme Court observed that the Trial Court and the Kerala High Court were correct in holding that the prosecution was able to prove the entrustment of the said items (as mentioned in the table). Thus, the said conviction under the Prevention of Corruption Act and Section 409 of IPC was proper. The Supreme Court also observed that sanction under Section 197 of CrPC is not a condition precedent for prosecuting the accused under Section 409 IPC.
Further, it was held that the prosecution has to prove that the property in question is entrusted to the accused. It is then for the accused to show how he dealt with that property.
Sushil Kumar Singhal v. Regional Manager, Punjab National Bank (2010)
He was handed over cash of Rs 5,000 to deposit the same as dues, for the Telephone Bill, in the Post Office. He did not deposit it and the Bank lodged an FIR against him under Section 409 IPC.
The Trial Court convicted him under this Section. Moreover, the Bank dismissed him from the service.
He raised an industrial dispute under the Industrial Dispute Act 1947 and the matter was referred to the Central Government Industrial Tribunal-cum-Labour Court-II (hereinafter referred to as “Tribunal”).
In the meanwhile, he filed an appeal before the Appellate Court. This Court upheld the conviction but granted him the benefit of probation under the Probation of Offenders Act 1958. This Court released him on probation.
Moreover, the Tribunal made the award rejecting his claim and holding his dismissal from service to be justified and in accordance with the law.
The accused filed a writ petition before the Punjab & Haryana High Court to challenge the award. The High Court dismissed the petition.
The accused (appellant) filed an appeal before the Supreme Court.
The Counsel appearing for the appellant submitted that the Judgment and Order of the High Court as well as the Award of the Tribunal are liable to be set aside as per the benefit of the Act of 1958.
The Counsel appearing for the Bank (respondent) contended that such benefit under the said Act takes away only punishment (sentence) and not the factum of conviction. Therefore, the employee of the Bank stands convicted of an offence involving moral turpitude. Moreover, it is permissible for the said Bank to dismiss him from service. This appeal is liable to be dismissed.
Issues
Whether the act of the appellant involved moral turpitude?
Whether the benefit granted to the appellant under the Act of 1958 entitles him to reinstatement in service?
Judgment
Referring to various leading judgments and evidence, the Supreme Court held that the appellant had committed an offence involving moral turpitude. This Court also held that a conviction for an offence involving moral turpitude disqualifies an employee from continuing the employment. Therefore, this Court dismissed the appeal.
Sunil Dahiya v. State (NCT of Delhi) (2016)
Facts
In this case, Sunil Dahiya was the Managing Director of Vigneshwara Group of Companies (VGC). Moreover, his brother was the Finance Head and his father was the Chairman.
Sunil Dahiya was involved in two projects for the construction of IT parks in Gurgaon and Manesar. He along with his brother and father had incorporated the following companies in this regard:
M/s Vigneshwara Developers Pvt. Ltd.;
Vigneshwara Developwell Pvt. Ltd.; and
M/s Aquarious Buildcon Pvt. Ltd.
(Apart from the above-mentioned companies, they had incorporated 15 other companies as well. Together, all these companies were referred to as VGC.)
Thereafter, he invited applications from the general public to invest in the projects. He invited such applications through advertisements in print media, TV, and FM Radio.
The Punjab National Bank (PNB) invested in the said projects.
Sunil Dahiya executed agreements with the investors somewhere between the years 2006-2008. He executed these agreements on behalf of the above-mentioned companies.
He assured the investors that the construction would be completed within 60 months from the date of the agreement and after receipt of the completion certificate from the government authority.
Moreover, he gave the investors a guarantee of assured return at the rate of 9% to 12% per month.
The investors filed complaints on the following grounds:
Despite a lapse of 60 months, Sunil Dahiya and his family (accused) did not complete the construction at the project sites;
Despite demands, they (the accused) had not paid the assured returns since February 2014;
They misappropriated more than Rs 600 Crores by colluding, conspiring, and illegally benefitting from the investors’ money;
They purchased various properties owned by the investors (complainants) on the assurance that the accused would allot them a property equivalent to the value of the purchased property as compensation. But, the accused did not allow such property to the complainants;
The accused invested the amount paid to the complainants (i.e., the amount that the complainants received after selling their properties to the accused) in their projects;
The accused had forged the said agreements by changing the main clause dealing with a refund of the invested amount;
The accused stated in an advertisement that PNB and Bank of India (BOI) had rated their projects, which was false;
Sunil Dahiya and his family members were habitual offenders and had been accused of cheating several investors in several FIRs;
They had committed criminal breach of trust, cheating, and fraud which are punishable under Sections 406, 420, 467, 468, and 471 read with Section 34 IPC.
FIRs were lodged based on the above-mentioned grounds under Sections 409/ 420/ 423/ 467/ 471/ 120B IPC.
The charge sheets revealed that there were more than 1,500 investors. Moreover, the charge sheets state that Sunil Dahiya (Managing Director) was not only acting as an agent of the said company but also was a trustee of the assets of the company. He along with his brother and father were carrying out day to day affairs of the company as well as planning the long-term policies.
The Trial Court convicted Sunil Dahiya and his family members under the said Sections and sentenced them to life imprisonment.
Sunil Dahiya filed three bail applications before the Additional Sessions Judge under Section 439 of the CrPC. The Additional Sessions Judge rejected these bail applications (1212/2016, 1221/2016 and 1222/2016).
Thereafter, Sunil Dahiya filed three bail applications before the Delhi High Court under Section 439 CrPC.
The Senior Counsel appearing for the applicant (Sunil Dahiya i.e., accused) submitted that the applicant had no dishonest intention regarding the implementation of the said projects. The project at Manesar is on the verge of completion. As far as the project at Gurgaon is concerned, the company could not proceed further for want of relevant sanctions and approvals from the government authorities. However, the applicant had been in judicial custody for over 21 months.
The Additional Public Prosecutor (APP) submitted that only one out of six towers was constructed regarding the project at Manesar. No construction activity had taken place since long as the iron rod was found rusting. The intention of the directors of the company (VGC) was not to complete the projects on time.
The APP further submitted that the construction could not be started at the Gurgaon Project site because the applicant had no licence. It was found that there had been no construction activity on this site except for digging a ditch.
The APP also submitted that instead of repaying the investors their invested amounts, the applicant misappropriated crores of rupees for his luxuries and comforts.
Issues
Whether the order of conviction against the applicant (accused) under Section 409 IPC was proper?
Whether the Additional Sessions Judge was right in rejecting the bail applications?
Judgment
The Delhi High Court observed that Sunil Dahiya and his family members had a common object and common intentions to act collusively. However, the applicant was accused of economic offences involving cheating and misappropriation of huge amounts of public funds. Hence, such offences are serious in nature. Therefore, the said order of conviction was proper.
This High Court held that granting regular bail in cases of criminal breach of trust by agents, etc. would harm the criminal justice system. It is possible in the following situations:
If such offences affect a large number of individuals; and
if there is a massive loss of public funds.
The Court also observed that economic offences are grave as these are serious threats to the financial health of the country.
Moreover, the Delhi High Court observed that the Additional Sessions Judge was right in rejecting bail applications. This Court rejected all three bail applications filed by the applicant (accused).
Lalita Saini v. State (2019)
Facts
In this case, the accused (Respondent No. 2) along with other co-accused persons was a member of the governing body/ managing committee of one Vedanta Welfare Society.
They misrepresented to the victims (Lalita Saini and his family members) that the Society, after allotting membership to 700 members, was in the process of acquiring more land to increase the membership of the Society to 850 members.
The new members had to deposit the full value of the land which was approximately Rs. 11 Lakhs for a three-bedroom flat.
The victims paid the demanded amounts (about Rs 33,95,000) but, the accused neither allotted any share certificate to the victims nor did they provide any membership. They did not refund the amount either.
The victims lodged an FIR against the accused persons at Police Station Subhash Place, New Delhi. The registered FIR was under Sections 506/ 409/ 420/ 120B IPC. However, the Police arrested respondent No. 2.
As per the report of the Investigating Officer, no property was registered in the name of the said Society. Moreover, no authority letter was ever issued to the said Society and the Society had no authority to collect public funds for purchasing the land.
As per the status report filed on behalf of the State, apart from Lalita Saini, 47 more victims had filed their complaints against the accused persons.
Respondent No. 2 filed a bail application before the Chief Metropolitan Magistrate (CMM) for seeking a “default bail” under Section 167(2) of the CrPC. Respondent No. 2 claimed that the prosecution failed to file the charge sheet within 60 days from the date of the first remand. However, the CMM rejected the bail application.
Respondent No. 2 filed a revision petition before the Sessions Court to challenge the order of the CMM. The District and Sessions Judge (North-West), Rohini, Delhi granted a default bail (statutory bail) to the respondent and held that the stipulated period for filing the charge sheet was 60 days as per Section 167(2)(a)(ii) CrPC.
Lalita Saini filed a petition before the Delhi High Court under Section 482 CrPC read with Section 439(2) CrPC. This petition was for challenging the order passed by the District and Sessions Judge.
The petitioner contended that the stipulated period for filing the charge sheet is 90 days.
The Learned Counsel for Lalita Saini (petitioner) submitted that the petitioner had deposited around Rs 12 Lakhs by way of banking channels only.
The Learned Counsel for respondent No. 2 submitted that the stipulated period for filing the charge is 60 days.
Issues
Whether the stipulated period for filing a charge sheet for an offence punishable under Section 409 IPC is 60 days or 90 days.
Whether the order passed by the District and Sessions Judge was proper?
Judgment
The Delhi High Court observed that the stipulated period for filing a charge sheet would be 60 days as per Section 167(2)(a)(ii) CrPC when an offence is punishable with the following:
Minimum sentence: Less than 10 years;
Maximum sentence: Neither death nor life imprisonment.
In the above situation, the accused is eligible for default bail after 60 days in case the charge sheet is not filed.
Moreover, the stipulated period for filing a charge sheet would be 90 days as per Section 167(2)(a)(i) CrPC when an offence is punishable with the following:
Minimum sentence: Imprisonment up to 10 years or more;
Maximum sentence: Death or life imprisonment.
In the above situation, the accused is eligible for default bail after 90 days in case the charge sheet is not filed.
The Delhi High Court also observed that the offence under Section 409 IPC is punishable with imprisonment for life or imprisonment up to 10 years along with a fine. Such an offence is serious in nature and extended time to file the charge sheet is required.
However, this Court held that the prosecution must file the chargesheet for the offence under Section 409 within 90 days. The Court also held that respondent No. 2 was not eligible for the default bail under Section 167 CrPC because the charge sheet had been filed within 90 days. Therefore, the order passed by the District and Sessions Judge was not proper.
The Court allowed the petition filed by Lalita Saini and set aside the above-mentioned order.
N. Raghavender v. State of Andhra Pradesh, CBI (2021)
Facts
In this case, N. Raghavender (Accused No. 1; A1) worked as a Branch Manager in Sri Rama Grameena Bank, Nizamabad Branch from May 1990 to September 1995.
A. Sandhya Rani (Accused No. 2; A2) worked as a Clerk-cum-Cashier in the same Bank from 1991-1996 and she also attended day-to-day transactions in current and saving accounts relating to preparation of credit and debit vouchers.
C. Vinay Kumar (Accused No.3; A3) was treasurer of the Nishita Educational Academy and is the brother-in-law of A1.
A3 opened Current Account No. 282 in the aforesaid Bank in his capacity as an authorised signatory of the said Academy. The account was opened with an initial deposit of Rs. 5,00,000.
The prosecution case was that A1 and A2 abused their respective position in the Bank and conspired with A3 by allowing withdrawal of amounts up to Rs. 10,00,000 from the account of the Academy. The account had requisite funds for such withdrawal.
Moreover, the allegations were that A1, in his capacity as a Branch Manager, issued loose-leaf cheques on 23rd April 1994. Thereafter, a sum of Rs. 2,50,000 was withdrawn and the debit was deliberately not entered in the ledger book. Another such transaction took place on 30th June 1994 for a sum of Rs. 4,00,000 but the debit was not entered in the ledger sheet of the Bank. A1 issued another cheque on 30th July 1994 of a closed account and Rs. 3,50,000 was withdrawn. This payment was in favour of A3 and the signature on the cheque was not matching with that of A3.
A1 was also accused of prematurely closing two FDRs on 24th February 1995 and 25th February 1995, which were for a sum of Rs. 10,00,000 and Rs. 4,00,000 respectively. These FDRs were in the name of B. Satyajit Reddy.
As per the vouchers issued by the Bank, a total of Rs. 14,00,000 were credited to account No. 282 but only Rs. 4,00,000 were shown in the ledger. The remaining Rs. 10,00,000 was secretly withdrawn from the said account during the year 1994.
The prosecution case was also that A1, A2, and A3 were working together to carry out such transactions, which resulted in a wrongful loss to the Bank and its Depositors.
The Chairman of the Bank filed a written complaint to the Superintendent of Police, Central Bureau of Investigation at Hyderabad (CBI).
The CBI registered a case against A1, A2, and A3 under Sections 409, 477(A), and 120B IPC, and Section 13(2) read with 13(1)(c) & (d) of the Prevention of Corruption Act.
In the Trial Court, a total of 11 witnesses (P.W.1 to P.W. 11) were examined by the Prosecution, and documentary evidence was also put forth. The Trial Court held that the Prosecution had adequately proved its case against A1.
However, the Learned Special Judge held that A1 was guilty of offences under Sections 409, 420, and 477A IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (PC Act). The Judge sentenced him to a rigorous imprisonment of five years along with various fines for each offence. However, the Judge acquitted A2 and A3 of all the charges.
A1 challenged his conviction and sentence before the High Court of Judicature, Andhra Pradesh at Hyderabad by filing a criminal appeal. This High Court agreed with the findings of the Trial Court and dismissed the appeal.
Being aggrieved with the judgment of the aforesaid High Court, A1 filed a criminal appeal before the Supreme Court.
The Learned Senior Counsel appearing for A1 (appellant) contended that there was no mens rea in the present case as no benefit was drawn by the appellant even if the cash was handed over to A3. The findings of the aforesaid High Court were self-contradictory.
The Senior Counsel also contended that the appellant is not punishable under Sections 420, 409, and 477A IPC or under the provisions of the PC Act based on these grounds:
That the appellant used loose cheques; and
He had an allegation of omission to record relevant entries in the ledger of the current account No. 282.
The Senior Counsel further contended that it was a case of gross administration misconduct for which the appellant had been dismissed from service and denied his pensionary benefits. This Court should mirror the aforesaid allegations in the light of the fact that the Bank had not suffered any losses.
The Learned Additional Solicitor General (ASG) appearing for the Prosecution, CBI contended that to establish mens rea or criminality under the aforesaid Sections, it was necessary to prove that the appellant had derived benefit or caused any loss to the Bank. The appellant had to take the entire responsibility for the duties he had failed to discharge. Moreover, he had to show that he had complied with all transactions genuinely and that all the requirements or conditions were adhered to.
Issues
Whether the conviction and sentence against the appellant were proper?
Whether the criminal appeal filed by the appellant before the Court (i.e., Supreme Court) was sustainable?
Judgment
The Supreme Court observed that neither the Trial Court nor the Andhra Pradesh High Court had discussed the ingredients of Sections 409, 420, and 477A IPC. Moreover, the Courts failed to make any effort to refer to the specific evidence that might satisfy such ingredients.
The Supreme Court also observed that no pecuniary loss was caused to the Bank or B. Satyajit Reddy or to any customer of the Bank. The evidence before this Court did not disclose any conspiracy between the accused persons. Despite misconduct in duties on the part of the appellant, none of his acts proved that he had committed offences under Sections 409, 420, 477A IPC, and provisions of the PC Act.
This Court pronounced the judgment regarding Section 409 of IPC. These are the observations given in the decision:
The accused must be public servants, bankers, merchants, or agents;
entrustment of public properties is mandatory; and
there must be dishonest misappropriation or use of the same in the manner given under Section 405.
Further, the Court also held that the customers are lenders and the banks are borrowers. The banks do not hold money deposited by the customers on trust. That money becomes part of bankers’ funds. Banks are liable to pay that money to their customers if they demand the same. Until the customers demand that money, the banks may use it to earn profits. However, there must be strong evidence of misappropriation of funds. It is unsafe to prosecute the offender without such evidence.
Therefore, the Supreme Court held that the said conviction and sentence against the appellant were not proper. This Court allowed the aforesaid appeal as it was sustainable.
Brij Nandan And Anr v. State of Punjab (2022)
Facts
In this case, there were five accused persons namely Rakesh Kumar Malhotra (Arakshn Supervisor), Parvesh Walia (Ticket Supervisor), Brij Nandan, Anwar Ansari, and Jarnail Singh.
They were indulged in corruption in the Railway Department. Together, they conspired against one Ram Singh Meena as he lodged a complaint against them.
On account of the aforesaid fact, they had got one Sohan Lal a teacher at DAV, School, Khanna and other employees of the Railway Department to make a complaint against Ram Singh Meena.
Based on the aforesaid complaint, Ram Singh Meena was transferred from District Sirhind to District Ropar. After the transfer, the accused persons namely Brij Nandan, Rakesh Malhotra, and Anwar Ansari inspected his record from time to time but found everything in order.
Brij Nandan and Rakesh Kumar Malhotra were continuously lodging various complaints against Ram Singh Meena.
On 4th August 2018, the accused persons took away the relevant record regarding Ram Singh Meena’s service period from one Smt. Chanchal Bala. Moreover, the accused persons tampered with the said record, the details of which are as follows:
LC No. 370416 record file, forwarding note, and ID proof were misplaced;
LC No. 370431, ID proof changed; and
LC No. 370448 to 49, all forwarding notes and ID proof were removed.
The accused persons did aforesaid acts to involve Ram Singh Meena in a case and the same resulted in the filing of a charge sheet against him.
The complaint, filed by Ram Singh Meena against the accused persons, stated that they had committed various offences.
An FIR was lodged against all the five above-mentioned accused persons based on the aforesaid complaint and subsequent inquiry. The FIR was regarding Sections 409 and 120B IPC.
The Investigating Agency conducted a detailed investigation. The Officer in charge of the Police Station GRP, Srihind District Fatehgarh Sahib submitted a report under Section 173 CrPC against Brij Nandan, Anwar Ansari, and Jarnail Singh.
The Court of Additional Civil Judge (Senior Division) Cum Chief Judicial Magistrate, Fatehgarh Sahib charged Brij Nandan and Anwar Ansari under Sections 409/120B IPC. But, this Court discharged Jarnail Singh.
Brij Nandan and Anwar Ansari filed two Criminal Revision Petitions before the Additional Sessions Judge, Fatehgarh Sahib. Moreover, Ram Singh Meena along with the State filed a Criminal Revision Petition before the Additional Sessions Judge, Fatehgarh Sahib. This petition was for challenging the order of the said Chief Judicial Magistrate as Jarnail Singh was discharged.
The Additional Sessions Judge, Fatehgarh Sahib decided the aforesaid three petitions. The Judge dismissed the petitions of the two accused persons and considered Ram Singh Meena’s petition. The Judge remanded the case of Jarnail Singh for fresh consideration.
Brij Nandan and Anwar Ansari (petitioners) filed a Criminal Miscellaneous Petition before the Punjab & Haryana High Court. This petition was for quashing the said orders of the Chief Judicial Magistrate and the Additional Sessions Judge.
The Learned Counsel for the petitioners argued that the Railway Department refused sanction (under Section 197 CrPC) for prosecuting the petitioners, the Trial Court could not frame charges against them. Moreover, the Railway Department did not lodge any complaint for taking away or tampering with the said documents. So, the FIR and the subsequent proceedings must be quashed.
Issues
Whether the said FIR and the subsequent proceedings against the petitioners (Brij Nandan and Anwar Ansari) were proper?
Whether the petitioners were liable under Sections 409/120B IPC?
Whether the Criminal Miscellaneous Petition filed by the petitioners was sustainable?
Judgment
Punjab and Haryana High Court observed that the petitioners had taken away the said documents (i.e., forwarding notes, ID proof, etc.). They had committed an offence under Section 409 IPC as they had allegedly misappropriated those documents.
The High Court also observed that there was no illegality in the following:
Registration of the FIR;
Framing of the said charges; and
Dismissal of the said Criminal Revision Petitions by the Additional Sessions Judge.
Therefore, the High Court dismissed the said Criminal Miscellaneous Petition as the same was not sustainable.
The High Court held that the commission of an offence under Section 409 IPC is not regarding official duty. The Court also held that previous sanction is not required to prosecute the accused under the Section.
Yogesh Jagia v. Jindl Biochem Pvt. Ltd. (2022)
Facts
In this case, there was a real estate development company named Jindl Biochem Pvt. Ltd. (hereinafter “private company”). The said company had four promoters, namely, Rajinder Kumar Jindal, Attar Singh, Kartar Singh, and A.P. Singh.
In 2005, they jointly promoted V4 Infrastructure Pvt. Ltd. (hereinafter “V4”). Before the incorporation of V4, they contributed funds to a private company and acquired a commercial plot of land at Karkardooma Community Center, Delhi from the Delhi Development Authority. V4 had developed the said plot of land in terms of a development agreement dated 24 February 2005. However, the promoters wanted to bid on the said plot of land.
In 2008, certain disputes arose among the promoters. Two of the promoters exited the V4 and sold their equity shares to the remaining promoters i.e., Rajinder Kumar Jindal and Attar Singh. Thereafter, Rajinder Kumar Jindal exited V4 and sold his shares to Attar Singh.
The share purchase agreements were prepared. For the settlement of the said disputes, part of commercial property located at Plot No. 228, Sector-9, Dwarka (developed by V4) was agreed to be sold to the private company for an agreed consideration. For this purpose, two separate space buyer agreements were executed between the private company and V4 (both dated 7th October 2009).
For the execution of the aforesaid agreements, Yogesh Jagia (a practising Advocate enrolled with the Bar Council of Delhi since 1991) was appointed.
For the settlement of disputes, two conveyance deeds were executed as given below:
In favour of V4 for the property at Karkardooma, as per the development agreement dated 24th February 2005; and
In favour of the private company for part of Dwarka property as per space buyer agreements dated 7th October 2009 by V4.
On verbal request, both the entities (V4 and private company) created an escrow account with Yogesh Jagia.
V4 agreed to hand over possession letters for Dwarka property in an escrow account. However, the possession letters were not deposited due to non-compliance by the private company with the agreed terms. However, the private company alleged that the possession letters were handed over but illegally released by Yogesh Jagia herein to Sanjay Pal and Attar Singh.
In 2010, the private company confirmed the creation of an escrow account vide letter dated 23rd July 2010 and Yogesh Jagia admitted the documents mentioned in the said letter except the possession letters. The private company reconfirmed the documents kept in the escrow account in the letter dated 21st May 2011.
The private company alleged that Yogesh Jagia (Accused No.1; A1), Sanjay Pal (Accused No.2; A2) and Attar Singh (Accused No.3; A3) conspired together to make alterations to the space buyer agreements. A1 committed a criminal breach of trust and made improvements in the documents handed over to deter the private company.
The private company filed a police complaint against A1 on 5th January 2011 with Police Station Safdarjung Enclave and before the Economic Offence Wing (EOW), Delhi. The allegations were as follows:
Despite receiving the entire agreed sale consideration, A2 and A3, being directors of V4, failed to execute the sale deed; and
A1 in connivance released documents out of the escrow account to A2 and A3. So, A1 committed a criminal breach of trust under Section 409 IPC.
Further, the private company (complainant/ respondent) filed an application under Section 156(3) CrPC which was dismissed. The complainant challenged such dismissal before the Additional Sessions Judge and the application was again dismissed.
After examination of evidence, and consideration of other material on record, A1 was summoned by the Metropolitan Magistrate, South Saket, New Delhi (i.e. Trial Court). As per the order of the Trial Court, A1 was liable under Section 409 IPC while A2 and A3 were liable under Section 420/34 IPC.
Thereafter, A1 filed a petition under Section 482 CrPC before the Delhi High Court. This petition was for quashing the aforesaid summoning order.
The Learned Senior Counsel for A1 (petitioner) submitted that:
The respondent failed to make out a prima facie case of commission of any offence under Section 409 IPC;
The respondent and its director (Rajinder Kumar Jindal) filed numerous complaints against the petitioner containing contradictory statements. They deliberately concealed material facts;
The Police, in the status reports, had noted that the respondent had no documentary evidence to prove the allegations. So, the summoning order passed by the Trial Court was impugned in nature;
The Trial Court did not assign any reason or basis while observing that the petitioner had committed an offence under Section 409 IPC;
The respondent and other promoters deposited the documents with the petitioner in the escrow account. The joint consent of both parties was mandatory to release the documents;
The disputes between the respondent and V4 were purely civil, wherein the petitioner had been intentionally dragged; and
The impugned summoning order was liable to be set aside.
The Learned Senior Counsel for the respondents (Jindl Biochem Pvt. Ltd. & Rajinder Kumar Jindal) submitted that:
The summoning order had been passed upon finding sufficient grounds for proceeding against the petitioner under Section 409 IPC;
All the evidence, as well as the other material on record, supported the case of the complainant;
The petitioner (A1), A2 and A3 conspired together to hand over the complainant’s documents to V4 without ensuring compliance by them;
The petitioner altered the terms and conditions of the space buyer agreements; and
The petitioner did not hand over the following documents to the complainants:
Original space buyer agreement (value of Rs. 7.75 Crores),
Possession letters relating to 2nd floor and ground floor (3 shops) of the Dwarka property, and
Settlement document (Brief history) dated 22nd August 2009 depriving the respondent/complainant of Rs. 1 Crore towards their goodwill share.
Issues
Whether the said summoning order maintainable?
Whether the petitioner was liable under Section 409 IPC?
Whether the petition filed by the petitioner was maintainable?
Judgment
The Delhi High Court observed the following:
The Trial Court did not consider the facts of the case properly. Moreover, the Trial Court did not assign any reason for summoning the petitioner. So, the summoning order was liable to be set aside; and
The petitioner had not misappropriated the documents and money deposited in the escrow account as per the material on record. So, he was not liable under Section 409 IPC.
Accordingly, the High Court allowed the said petition and set aside the following:
The impugned order passed by the Metropolitan Magistrate; and
Complaint filed by Jindl Biochem Pvt. Ltd. (Complainant/ Respondent).
However, the High Court held that the Magistrates can acquit the offenders at any stage of the trial. It is possible only if the Magistrates consider that the charges are unjustified.
CH K.S. Prasad @ K.S. Prasad v. State of Karnataka (2023)
Facts
In this case, CH K.S. Prasad was an employee of M/s Vasan Healthcare Private Limited from 2012 to 13 September 2017.
He donned multiple roles in the said company. He was Senior Vice-President, Human Resources for some time. He had the authority to sign certain forms related to the business of the company including the forms of the Employees Provident Fund (EPF).
During the period from August 2014 to May 2015, the company deducted the EPF from the employees’ wages. But, the company had not deposited the said amount (Rs. 95,58,104) with the Employees Provident Fund Organization (EPFO).
On 6th August 2015, a complaint was registered before the IV Additional Chief Metropolitan Magistrate, Bengaluru against CH K.S. Prasad (accused). The complaint was regarding offences under Sections 406 and 409 IPC. The Police had filed a charge sheet.
The criminal proceedings (i.e., for the offences under Sections 406 and 409 IPC) were pending before the IV Additional Chief Metropolitan Magistrate, Bengaluru (Respondent 1).
On securing all the documents, the accused filed a criminal petition under Section 482 CrPC before the Karnataka High Court. This petition was for quashing the said criminal proceedings against the accused.
The Counsel appearing for the accused (petitioner) contended that on 15th September 2016, the Enforcement Officer, EPFO (Respondent 2) had registered about 21 complaints against the said company and its Chairman A.M. Arun before the Special Court for Economic Offences alleging non-payment of aforesaid amount. However, the said Chairman is acquitted in all the cases and the petitioner is replaced in his place according to an order passed by this Court. The petitioner was also acquitted before the Special Court for Economic Offences. The present case is against the petitioner alone without making the company an accused in the proceedings. The offences alleged can never be laid against the petitioner.
The Counsel appearing for respondent 2 contended that the petitioner was liable for the non-deposit of the funds to the EPFO. Mere discharge in the proceedings for economic offences would not absolve the petitioner of the offences under IPC. Therefore, the aforesaid petition was liable to be dismissed.
Issues
Whether the petitioner (accused) was liable under Section 409 IPC?
Whether the said petition under Section 482 CrPC was sustainable?
Judgment
The Karnataka High Court observed that there were sufficient funds in the accounts of the petitioner and he had the intention of paying the said funds. There was no wilful default on the part of the company. However, the properties of the company were attached by the Income Tax Department authorities, which was beyond the control of the company. The petitioner was not liable under Section 409 IPC due to the absence of mens rea in the facts and circumstances of this case.
This Court held that there must be any willful default on the part of the company. Otherwise, the vice president of the company is not liable under Section 409 IPC. Moreover, the Court allowed the petition under Section 482 CrPC and quashed the pending proceedings before the IV Additional Chief Metropolitan Magistrate, Bengaluru.
Chanda Kochhar v. ICICI Bank Ltd. (2022) & Chanda Kochhar v. Central Bureau of Investigation (2023)
Facts
In the case of 2022, Mrs. Chanda Kochhar (Mrs. Kochhar) was recruited as a Trainee Officer in the ICICI Bank on 17th April 1984. She was eventually promoted from time to time. On 1st May 2009, she was recruited as Managing Director and Chief Executive Officer of ICICI Bank. Thereafter, she was reappointed from time to time for a term ending on 31st March 2019.
During her employment, she had signed and accepted various policies of ICICI Bank which included a Code of Conduct, a Framework for dealing with conflict of interest, Deeds for Covenants, and a Clawback agreement.
She was granted Employee Stock Ownership Plans (ESOPs) between April 2007 to March 2017 with each grant being made under the terms of an Award Confirmation Letter read with the Employee Stock Options (ESOs) formulated by the ICICI Bank following SEBI guidelines. Each grant was based on performance, continued good conduct, and the representations/ disclosures made by her to ICICI Bank.
In July 2016, there were allegations of nepotism against her as per news articles. Such allegations were regarding the approval of loans to companies affiliated with Videocon Group/ Mr. Venugopal Dhoot. The purpose of these loans was to invest by Mr. Venugopal Dhoot or his affiliates in NuPower Renewables Pvt. Ltd. (NRPL), a company promoted by Mrs. Kochhar’s husband (Mr. Deepak Kochhar).
On 26th December 2016, ICICI Bank appointed a reputed law firm to conduct an independent inquiry into the aforementioned allegations.
Mrs. Kochhar and her husband in the said inquiry provided information and documents indicating that there were no investments made by Mr. Venugopal Dhoot and his affiliates in NRPL. Thereafter, the law firm submitted its report to ICICI Bank stating that the allegations had no merit.
In April 2018, ICICI Bank received letters alleging abuse of position by Mrs. Kochhar and the business dealings between Videocon Group and Mr. Deepak Kocchar.
However, Mr. Deepak Kocchar disclosed his business dealings with Mr. Venugopal Dhoot/ Videocon Group through a letter dated 30th April 2018.
On 29 May 2018, the Board of Directors of ICICI Bank decided to conduct an inquiry into allegations against Mrs. Kochhar. On 30 May 2018, ICICI Bank informed the Stock Exchange, of its decision to conduct an inquiry into the said allegations.
On 6th June 2018, the Audit Committee of ICICI Bank appointed Mr. Justice B.N. Srikrishna (Retired Judge of the Supreme Court) to conduct the aforesaid inquiry.
On 18th June 2018, a Board meeting of ICICI Bank was held in which Mrs. Kochhar stated that she had decided to go on leave till the completion of the inquiry. The Board accepted her decision and made necessary disclosures to the Stock Exchange.
On 3rd October 2018, Mrs. Kochhar requested the Board of Directors of ICICI Bank to grant her early retirement. For this purpose, she had sent a letter during the pendency of the inquiry.
ICICI Bank by its letter dated 4th October 2018, intimidated the Board’s approval and referred to benefits under the Early Retirement Scheme (ERS). The ICICI Bank enclosed an Undertaking dated 19th July 2016 (regarding Mrs. Kochhar’s contract for employment) signed by Mrs. Kochhar.
Between October 2018 and January 2019, Mrs. Kochhar exercised 6,90,000 ESOPs and received other benefits as per the letter dated 4th October 2018. It occurred during the pendency of inquiry.
Mrs. Kochhar participated in the aforesaid inquiry. In December 2018, she submitted oral and written submissions.
Justice Srikrishna (Retired) submitted an Inquiry Report on 27th January 2019 to ICICI Bank. The Inquiry Report held that Mrs. Kochhar had committed gross/ serious violations of the Code of Conduct for an extended period.
On 30th January 2019, ICICI Bank sent an email to Mrs. Kochhar informing her about the decision taken by the Board of Directors of ICICI Bank. The email stated that communication regarding early retirement benefits to Mrs. Kochhar dated 4th October 2018 stands revoked with effect from the close of business hours on 30 January 2019. Moreover, the vested and unvested ESOPs allotted to her were revoked and returned to the IA-1014-2022-307-2020.DOC common pool of ESOPs as per various policies of ICICI Bank.
On 1st February 2019, the Group Chief Human Resources Officer of ICICI Bank sent a letter to Mrs. Kochhar to reiterate that her separation from ICICI Bank would be treated as ‘termination for cause’. The bonuses paid by ICICI Bank to Mrs. Kochhar between April 2009 and March 2018 were INR 7,41, 36, 777. This amount was recovered from her due to said termination for cause.
Mrs. Kochhar responded to the email dated 30th January 2019 and the letter dated 1st February 2019 through a letter dated 4th February 2019. The letter contended that the relationship of employer and employee between ICICI Bank and Mrs. Kochhar ended as the Board had accepted her early retirement in October 2018.
On 13th March 2019, RBI approved the request of ICICI Bank for “Termination of Appointment” under Section 35B(1)(b) of the Banking Regulation Act, 1949.
However, ICICI Bank sent letters to Mrs. Kochhar stating that she would have to pay back bonuses paid to her between April 2009 and March 2018. In response to such letters, she sought restoration of all benefits allegedly granted to her as per a letter dated 4th October 2018.
On 20th November 2019, Mrs. Kochhar filed a Writ Petition No. 33151 of 2019 against ICICI Bank and RBI. She declared that the letter dated 4th October 2018 sent by ICICI Bank was valid, subsisting, and binding on ICICI Bank. The email dated 30th January 2019 and the letter dated 1st February 2019 were illegal, non est (missing), void ab initio (void from the beginning). The communication dated 13th March 2019 was non est, illegal, and void ab initio. She sought consequential relief in the Writ Petition.
During the pendency of the aforesaid petition, ICICI Bank filed a suit (Suit No. 313 of 2020) against Mrs. Kochhar. On 5th March 2020, the Division Bench of the Bombay High Court dismissed the said Writ Petition.
Mrs. Kochhar filed a Special Leave Petition to challenge the aforesaid dismissal. The same was also dismissed. Thereafter, she filed a suit (Suit No. 114 of 2022). The Bombay High Court dismissed this suit as well.
In the case of 2023, an FIR was registered against Mr. Deepak Kochhar and Mrs. Chanda Kochhar under Sections 420 and 120B IPC, and Sections 7, 13(2) read with 13(1)(d) of the Prevention of Corruption Act 1988. On 23rd December 2922, the CBI arrested them. So they sought release from custody through interim relief.
On 9th January 2023, the Bombay High Court released them on interim bail.
On 24th December 2022, the CBI approached the Special CBI Court seeking to add Section 409 IPC against Mrs. Kuchhar. On 14th January 2023, Justice MR Purwar allowed the CBI to add the said Section. Moreover, the Judge said that an Investigating Officer (IO) is free to add or delete Sections based on the materials collected by him. No Court permission is required for the same.
Thereafter, CBI added a charge of criminal breach of trust (Section 409 IPC) in the aforesaid FIR against Mrs. Kochhar.
Issues
Whether Mrs. Kochhar had misappropriated the funds of ICICI Bank by approving the loans to the Videocon Group.
Whether Mrs. Kochhar was liable under Section 409 IPC?
Judgment
The Chanda Kochhar Case has not been decided yet and is still pending before the Bombay High Court. The final judgment of this case is yet to come.
As far as my opinion is concerned, Mrs. Chanda Kochhar had approved loans of Rs. 3,250 Crores to the Videocon Group. Her act violated the regulations of the ICICI Bank and RBI guidelines. She was entrusted with the power of approval of loans to the ICICI Bank’s customers.
She contended that the Videocon group had repaid the loans on time. Thus, it caused the bank ‘zero ultimate loss’. However, it is a well-settled law that the ‘zero ultimate loss’ does not absolve a person from liability under Section 409 IPC.
Moreover, it is clear from the facts of this case that Mrs. Chanda Kochhar concealed her husband’s involvement in the Videocon Groups and his relationship with Mr. Venugopal Dhoot. Such concealment violated RBI’s Master Circular guidelines and the “direction of law” as given under Section 405.
Therefore, the judgment of the Court would likely be that Mrs. Kochhar is liable under Section 409 IPC.
References
Ratanlal & Dhirajlal, The Indian Penal Code, 36th Edition, 2020.
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This article has been written by Hritwik Chaudhary and edited by Shashwat Kaushik.
Introduction
In addition to being a global public health disaster, the COVID-19 pandemic has had a substantial influence on most global industries. The effects of the mitigation measures that have been put in place in many nations include an increase in unemployment and disruptions in the transportation services and manufacturing industries. Indian businesses suffered the consequences of supply fluctuations and meeting project deadlines because of the lockdown restrictions imposed, which are necessary measures a government has to take in such situations. Since pandemic outbreaks are unlikely to be predicted, it is essential to adopt preventive measures to preserve lives as well as safeguard enterprises that are unable to fulfil their contractual responsibilities amid this crisis.
Consequently, some contracts contain “force majeure” clauses that shield the signatories from being held liable for compensation or other financial repercussions if they are unable to fulfil their obligations due to reasons beyond their control.
What is force majeure
Force majeure is a term that everybody who wants to enter into a contract should know after going through an unprecedented pandemic crisis.
According to the Cambridge Dictionary, a “force majeure” is an unanticipated occurrence, such as war, criminal activity, or earthquake, that stops someone from acting in accordance with a legal agreement.
Whenever a party declares force majeure, it essentially means that the party was unable to fulfil a contractual obligation due to factors beyond its control. Force majeure comes out as an essential element of a contract after the occurrence of COVID-19, Force majeure clauses are now being drafted more often by parties in their agreements to set aside themselves from their contractual obligations during any future pandemic-like situations.
Understanding the force majeure clause
The “force majeure” clause exempts the parties from carrying out their contractual obligations. However, without a force majeure clause, the parties run the risk of being in breach of the agreement and being forced to compensate the other party for damages even though the situation was beyond their control.
In the event of the occurrence of an unforeseen event, an impossibility occurs on the part of the parties’ contractual responsibilities. Although the parties can include a list of events that are not in their control, if they are not pre-decided by the parties, it can be understood by the below statements held in Satyabrat Ghosh vs. Mugnareem Bangur & Co. And…(1953).
Impossibility does not mean a literal interpretation, but it implies two elements
The supervening event should destroy the foundation/ subject matter of the contract and
Therefore, continuing a former contract is impractical and unreasonable because the object or purpose of the contract is already frustrated and cannot be achieved further.
It is impossible to downplay the significance of the force majeure clause in business contracts. In pandemic situations where all projects are at a halt after incurring significant costs already, it is necessary to concentrate on the legal perspective and to take into account potential legal ways by invoking force majeure conditions regarding the factors that will give a hand in the competition of the project, such as seeking an extension for the necessary amount of time for the full completion, commensurate the losses incurred, seeking compensation for the operational cost, capital expenditure incurred, and other unrecovered losses to restore the situation to its pre-pandemic condition. Therefore, nowadays it has become a customary practise for advocates to incorporate force majeure clauses in contracts.
If a force majeure provision is used and the occurrence of a pandemic lasts longer than the contract’s specified timeframe, the parties are not only entitled to postpone their contractual duties but also to terminate the agreement. After the COVID-19 pandemic, parties are now starting to update their force majeure clauses so that they can account for possible future pandemics.
Necessary components for enforcement of the force majeure clause
The parties to the agreement thought that such an occurrence would not occur; yet, an unplanned or unexpected intervening event occurred. For instance, Plague, Spanish Flu, COVID-19 etc.
The burden of establishing that the force majeure event has interfered with the affected party’s ability to perform the contract rests with the party looking to get away under force majeure.
The parties have taken all appropriate measures to carry out their contractual duties or at the very least to minimise the harm.
Such an occurrence has rendered the fulfilment of the contract’s duties impossible or impractical. Such as obligations that can’t be performed from home and having to get away from home to complete them.
Some examples of causes that can make work impossible or impracticable
Destruction of subject matter.
Incapacity for personal service.
Non- occurrence of a particular state of things.
Intervention by legislative or executive authority.
Intervention in war.
Not to confuse it with the Doctrine of Frustration
In Indian law, the doctrines of frustration and force majeure are two distinct concepts that deal with unforeseen events that may impact the performance of a contract. While they both address similar situations, there are some differences between the two doctrines.
The doctrine of frustration is governed by Section 56 of the Indian Contract Act, 1872. This doctrine states that a contract may be judged frustrated when an unanticipated event takes place after its creation and either makes it impossible to execute or significantly alters the nature of the duties under the contract. For instance, the defaulting party may be exempt from fulfilling the frustrated contract if COVID-19 profoundly alters the primary reason for the parties to enter into it, making it impossible for it to be performed as originally intended. Whereas force majeure is not outlined in the Indian Contract Act and is normally incorporated as a clause in a contract that has been approved by all parties.
In accordance with the doctrine of frustration, the contract is declared unlawful and each party is exempted from their individual contractual responsibilities; however, force majeure provisions have the potential to delay or extend the fulfilment of contractual commitments. The affected party is permitted to temporarily stop or postpone the fulfilment of its duties until the situation has passed or its effects have lessened. The parties do not acquire a right to nullify an agreement just by relying on the force majeure clause of the agreement. Therefore, a party cannot benefit from this condition if it can fulfil its obligations and has access to all of its resources once the lockdown time has ended. Although, during the lockdown period, the delay is such that it disrupts the fundamental foundation of the agreement, then the parties must go one step further and prove that time was of the essence of the agreement and that any delay would render it invalid, which may also result in the contract or agreement being concluded.
Relevant cases for a deeper understanding
The Naihati Jute Mills Ltd. vs. Hyaliram Jagannath (1967)
In this case, it was observed here that, although there was a change of policy and the government in the lockdown period had decided to place an embargo on imports, the question would still be whether the appellants were relieved from liability for their failure to deliver the licence. A contract is not frustrated merely because the circumstances in which it was made are altered.
Therefore, just because there is a simple turn of events on the occurrence of a pandemic, the turn of events will not terminate the party’s obligations; however, it may postpone the obligations of the parties. What will be considered is whether the best endeavour was made to fulfil the contractual obligations by the parties.
M/s. Haliburton Offshore Services… vs. Vedanta Limited & Anr. (2020)
In this case, it was noted here that COVID-19 is without a doubt a force majeure occurrence but was the non-performance caused by this incident? If the contractor’s performance is “prevented, hampered, or delayed by any natural disaster, including a pandemic or disease,” the issue that will be raised is whether COVID-19 delayed the contractor from performing its commitments on time. Any violation or failure to perform cannot be justified or excused simply by citing COVID-19 as a case of force majeure.
This ruling makes it quite apparent that COVID-19, in general, would not be considered a force majeure occurrence and that it will depend on the circumstances, such as whether certain steps were taken to complete the tasks entered in the contract or whether the party was genuinely prevented by the circumstances from fulfilling the obligations.
Energy Watchdog vs. Central Electricity Regulatory Commission and Ors., Etc. (2017)
The Supreme Court in this case declared that the notion of frustration must only ever be used within specific parameters. Although the Suez Canal was closed and the usual route for shipping the goods was only through the Suez Canal, it was held that the contract for the sale of groundnuts, in that case, was not frustrated.
Therefore, Section 56 will not apply if the epidemic does not significantly affect the party and the party can still carry out the contract by another means. It is also clear that where performance is otherwise practicable, a simple increase in the freight price will not render the contract null and void.
Conclusion
COVID-19 can be included in the scope of the “Act of God” clause, which is the most general force majeure provision. But if we keep in mind the above-stated judgements, one cannot be sure of the termination of their obligations after adding a force majeure clause. The impact of the pandemic like situations on the overall contract is to be determined and subjective standards on a case-by-case basis can be used. The way the clause(s) are worded also becomes crucial. Some contracts allow for its suspension until the force majeure situation has passed. Certain contracts stipulate time frames after which any party may end the arrangement by giving the other party written notice. Others want the contract to continue in force while the force majeure issue is being addressed. The party seeking to rely on the force majeure clauses bears the burden of proof to show the impossibility of continuing the assigned project and that the essence of the decided time period has now terminated.
It can be said that in circumstances where there is just minor hardship and not an impossibility of the event, the court may choose not to grant relief under the doctrine of force majeure.
Although a pandemic might not be a strong enough defence against all contract breaches, a force majeure provision that expressly releases the parties from their duties for a certain period of time and even releases the parties of their duties if the event was not fulfilled within the stipulated time and time was an essence to the agreement, in the event of circumstances beyond their reasonable control, should be included in any well-drafted contract. To protect the interests of parties, advocates should have it included in the agreements.
This article has been written by Suphia Haque pursuing Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution and edited by Shashwat Kaushik.
Introduction
The TMT practise of a law firm is common now-a-days but back then, in the 20th century, it was a totally new concept for the lawyers. With the passage of time, every lawyer has now understood the use and importance of TMT practise and its benefits in the legal world. Even the legislature has given importance to it by enacting several laws from time to time for its proper implementation.
Evolution of TMT practise of Indian law firms
Imagine that you are about to substantiate your argument with a document that you left at your office. What would happen? If this were the situation back in the 19th century, then you would have rushed back to your office to get the document. However, in today’s scenario, you could have easily gotten that document on the cloud through your phone or laptop or if you are stuck somewhere, you can attend the court proceedings through VC as well.
Though the lawyers have progressed in using the online platforms but they are still somewhere stuck to the method of printing the provisions and case laws for there reference, but with the help of TMT practice, it is easy for the lawyers in doing research from these platforms by using so many tools and functions given there like search tool will help them scan and get the required data from a thousand page judgement in just a lapse of seconds, and to send and receive data from anywhere in the world in real time, able to maintain legal title management and calendaring applications giving them quick insight of what all work must be done on that day, also provides you the platform where you maintain your relationship with your client etc.
Brings transparency to your work
As we all have in some way or another come into contact with a lawyer, we know how they work,their management techniques and all that, but earlier people were clueless about what a lawyer was doing and this was often used by lawyers to showcase there cases as very complicated ones that required more time and hence more money and they also didn’t have the option to consult with another lawyer so easily. But due to the TMT practise, law firms could attain transparency in their work and also in their relationships with their clients. It can create a platform where clients can look across the profiles of the best legal professionals either through their website or through their social media platforms. The clients can even chat with different lawyers and remain in touch in real time.
Inspire collaboration
TMT practise is very important for the company when it comes to performing cross-cultural communication within the company. Employees of different organisations can communicate easily by way of video calling, video conferencing, or telepresence video streaming, Lawyers can work together with the help of tools like Google Docs, Microsoft Teams, etc. Employees could get to know more about the firm through its website or through its social media, thereby increasing the chances of knowing different companies and their work, increasing the chances of collaboration, and very much leaving behind the barrier of geographical location, which is also enabling the culture of remote law firms.
Some disadvantages of TMT practise
Increase the expense of the firm
Using TMT is very convenient but setting up the atmosphere for its use is a bit expensive for the firms at times, such as setting up webcams to huge LCD screens through sophisticated video conferencing software, making a dedicated website of the firm, developing legal software, etc. Even maintaining it costs the firm, as you must hire a few employees for the sole purpose of handling social media posts, website maintenance and the webcams and LCD screens in the long run. That is why many lawyers hesitate to use these advancements, as they will ultimately shoot up their expenses.
It takes up valuable time
Initially, a TMT practise can be very time taking for a law firm since it must understand how technology, media and telecommunication are being used by the firm, and after understanding, it must also give training to every employee for the same. And the firms must be upgraded with every update in the TMT sector.
Management issue
This practise has completely changed the approach and attitude of the lawyers and clients towards the law firms, which is a marked transformation in the field of law. This practise has no doubt increased your reach to your clients very much, but it has also opened a pandora’s box of problems for the firms to maintain and make it work effectively, be it use of technology and software for daily tasks, ease of determining the scope of varied types of legal technology, regularly updating social media, etc.
Future scope of TMT practise in Indian law firms
In-House counsels
The work of In-House counsel, also known as legal counsel, is to advise, identify the issues involved in the matter, manage and study the legal risk, thereby providing concise and helpful recommendations to tackle the issue. Lawyers who want to work as in-house counsel for companies working in the TMT space such as movie production houses, record labels, technology apps, FMCG, Google, Unilever, Mercedes-Benz, Red Hat Software, Jio, Airtel, etc. In-house counsel salaries in India range from 2 lakhs to 22.4 lakhs, with an average annual salary of 6 lakhs.
Independent practitioners
Lawyers also have the opportunity to start their own practise in the field of TMT laws, as it is an emerging law with a bright future. An independent legal practise gives the lawyer a lot of opportunities. It allows the lawyer to be his own boss by taking his own decisions on any case without any influence or interruption. This makes the practitioner independent in handling his cases according to his own rules and regulations
Legal advisor/ counsellor
One can also become a lawyer who wants to work in the Technology, Media and Telecom (TMT) practise of a law firm or a boutique media and entertainment firm, etc. Legal advisor salaries in India range from 1.2 lakh to 14 lakh, with an average annual salary of 4.2 lakh.
Internship in TMT firms
There are many firms that offer internships to law students. They can do internships in TMT law firms such as movie production houses, record labels, technology apps, FMCG, Google, Unilever, Mercedes-Benz, Red Hat Software, Jio, Airtel, etc. based on their point of interest or the field in which they want to pursue their career. If you get an opportunity to work with a Tier 1 law firm, then they will also give you a decent amount of stipend, which can be around 15-20K. A few Tier 2 firms also give stipends.
Boutique law firms
A boutique law firm is a smaller legal organisation that concentrates on a few specified areas related to intellectual property, tax law,etc. and selects clients for the specified problems only. It works on a smaller scale. One can think of working here if they have the same interests as the firm, as the firm has a very niche area of interest in which they want to specialise themselves and take clients revolving around that niche only. If a lawyer has a related specialisation, he can surely look for it
Examples of successful TMT practice in law firms
Cyril Amarchand Mangaldas
The firm was established in 2015 due to the separation of Amarchand Mangaldas & Suresh & Shroff Company. It has over 1000+ lawyers and over 170 partners, and its offices are in Mumbai, Delhi-NCR, Bengaluru, Ahmedabad, Hyderabad, Chennai, GIFT City and Singapore. It is India’s first legal tech incubator at a law firm.
It started in the year 2015 and by the year 2023, its estimated annual revenue will be $227.2 million per year and Mangaldas’s estimated revenue per employee will be $222,942.
Cases handled by the firm
Client: A leading management consultancy
On an urgent and diligent basis, the firm must review and compare 215 documents for the 5 clauses within 2 days. The firm, with the help of Kira, reviewed and extracted the relevant clause that the client needed within 24 hours. Hence, both time and money.
Client: One of India’s largest port development and management companies
In this case, the client asked them to review several thousand emails to ascertain data theft, which involved sieving through voluminous records to identify potential data theft within a short span of 2 days. Within 2 days, over 4,500 emails were reviewed and the relevant emails were identified by the firm, which was beneficial for the client either in terms of time or money.
The firm was established in 2000 by Anand Prasad, Akshay Jaitly, Karan Singh, Rahul Matthan and Sridhar Gorthi. It has over 1000+ lawyers and 93 partners, and its offices are in Delhi, Mumbai, Bangalore and Gurgaon.
Its estimated annual revenue is currently $232.1 million per year and its estimated revenue per employee is $222,951.
Trilegal advised all three companies collectively, the “Book Running Lead Managers”, on the IPO of SBFC Finance Ltd. (Company), aggregating approximately INR 10,250 million.
Trilegal represented Apax in securing unconditional approval from the Competition Commission of India (“CCI”) pertaining to its acquisition of an approximately 30% shareholding in IBS Software Pte Ltd (Singapore) (“IBS”) from Blackstone Inc. (“Proposed Transaction”).
The firm was established in 1911 in Kolkata by the late Debi Prasad Khaitan. It has over 1000+ lawyers and 220 partners, and its offices are in Kolkata (1911), New Delhi (1970), Bangalore (1994), Mumbai (2001), Chennai (2021) and Singapore (2021).
Total Revenue and Earnings for Khaitan (India) for the year ending 2023-03-31 were Rs 65.09 crore and Rs 0.68 crore on Standalone basis. Last quarter, on March 31, 2023-03-31, Khaitan (India) reported an income of Rs 16.86 crore and a profit of Rs 0.94 crore.
Khaitan & Co. advised Aakash and its founders on the sale of their shares in Aakash to Think & Learn Private Limited (Byju’s) through a combination of cash and stock that will result in Aakash’s business consolidation with Byju’s. Effected by way of a strategic merger, the deal was made for a consideration of USD 1 Billion.
Client: Rakesh Gangwal and Shobha Gangwal
Khaitan & Co. advised Rakesh Gangwal and Shobha Gangwal in the sale of their 4.5% stake, valued at approximately USD 500 million, held in Indigo (InterGlobe Aviation Ltd.), through open market transactions.
Indian law firms have made significant progress throughout the years by practising in the fields of technology, media or telecommunication, which has enhanced their position in the market. With the right approach to TMT practise, law firms can gain a strong grip on the market. As discussed above, it will face many challenges, but as i have mentioned above, these problems will be initially faced by the firms. Only slowly and gradually will the firms overcome the drawbacks and flourish in the market for TMT law firms.
If we choose an average college or university in the United States or elsewhere, there will be specific educational policies and legal rules that can result in significant implications when violated. Now, it must be mentioned that the use of educational laws and policies will vary from situation to situation as federal and state laws must be involved to speak of consequences. Nevertheless, most educational policies will relate to racial issues, special education, academic honesty, charter schools, and the basic disciplinary processes. Therefore, it is essential to take time and study educational policies to follow socio-cultural, moral, and behavioral standards.
Table of Contents
Educational policies and their implications for students
– No student left behind
As the main set of legal rules and policies for the K-12 sector, it has been valid from 2002 to 2015. It is an interesting example that shows us how the schools had all the responsibility for how the youngsters performed. Speaking of legal implications, the schools were always to blame for poor achievements, which became quite controversial. Now, performing better could be achieved in many different ways, yet technology has not been as advanced as it is today. For example, approaching writemyessays.ai was not an option to consider, yet now it is possible to get in touch with an expert as it does not violate school policies if all the rules are followed. It is safe to say that many students fail to read the rules of an educational institution as teachers do not have time or resources to promote the policies unless some issue occurs.
– Local, state, and federal education policies
Regarding legal implications, one should remember that education is compulsory and accessible if the talk goes about the public education sector. At the same time, depending on location, we know that one can discontinue schooling from 14 to 18 years old. The legal implications will include careful monitoring in states like New York or California, while others will be less strict and provide more freedom. As we have different state laws, legal implications will vary as well. Things become even more complex when it comes to private colleges and universities. If we take an average Christian university, there will be policies that introduce certain limitations of the moral type. These also constitute educational policies that one should not violate. If we turn to institutions like MIT or Harvard, we shall see that educational policies always come down to academic integrity and students’ dedication to research work.
– First educational laws
As we travel back in time, we can spot the first educational law policy that dates back to 1642. It shows clearly that parents and legal guardians had to ensure that learners could read and understand the basic principles of religion and the laws of the Commonwealth. These were the times of homeschooling, which became popular once again these days, thus blurring the legal implications. For example, homeschooling does not cover legal considerations regarding part-time jobs or students’ mental health. They do not have sufficient social interaction and cannot be supervised during short visits to complete examinations in class with other students.
Every Student Succeeds Act (ESSA)
Some famous educational laws have proved to be efficient and successful. Every Student Succeeds Act is one of those prominent plans that addressed policies on a federal level. The Every Student Succeeds Act (ESSA) became a US law in 2015. It guides public schooling for kids in the US. This law took the place of the older “No Child Left Behind Act.” It changed some rules but kept the regular tests for students. Both these laws are updated versions of a 1965 law about public education. Therefore, legal implications will vary on every institution’s legal voluntarism and personal rules.
The Indian Constitution, though the backbone of the working democracy of this country, has been put to the test many times. The imposition of these challenges on the constitutional provisions, being an inherent facet of this democracy, is indispensable due to the constant evolution of our society. However, it is of significant worth to know that it is one thing to face the challenges in the applicability of laws due to the development and evolution of society, where the needs of the society demand different sets of governing rules and regulations, and it is a completely different thing to witness the questioning of these rules and regulations on account of abuse and misuse of law. It is not that the intentions behind framing these regulations fundamentally called for their misuse, but rather the political framework that allowed the scope for abuse of law. Article 356 of the Indian Constitution is one such provision where we face this challenge, which was implemented and adopted after heavy debates and discussions by the members of the Constituent Assembly. The legislative intent behind the implementation of this provision provided for a certain set of limitations and their corresponding intentions. However, the lack of political will, the abusive tendencies of the ruling governments and the arbitrary application of this provision have urged the need to contemplate its meaning and interpretation once again.
Federalism in India
The Indian Constitution, in Article 1, declares India a “Union of States”. This essentially implies two broad aspects, firstly, that the Union of India is not a result of a mutual agreement among its states, and secondly, that states are not entitled to secede from the Union. This forms the basis of the idea of Federalism in India. After numerous accounts of debates and theories given by eminent scholars and jurists, it can be said that the Constitution of India is neither purely federal nor purely unitary, but a combination of both. It rather has federal characteristics with a strong Union, thereby establishing the fact that the Indian Constitution is so exclusively designed that it takes note of certain contingencies where the Union would have a supervening power over the states while equally maintaining the autonomy of states in other aspects. This is to strengthen the principle behind the notion of the Union of India.
Historical background and purpose of Article 356
Amongst others, one such aspect that corroborates the unitary features of the Constitution is the provision of President’s Rule, also known as State Emergency or Constitutional Emergency, which comes under the broader head of Emergency powers. It is enshrined in Article 356 and has been a topic of discussion since its inception. The Article fundamentally provides for the imposition of an emergency in a state by the President when he thinks that the government of that state cannot be carried on in accordance with the provisions of the Constitution, thereby giving the executive and legislative powers to the Union. Initially, it was enshrined in the Government of India Act, 1935, under Section 93, when limited powers were awarded to the provinces to govern themselves, whereby the governor of a province, if he felt that the government of that province could not be carried on in accordance with the Act, could withdraw all or any of the powers of the government and discharge them himself. In a way, the British authorities kept open an opportunity for themselves to govern a province whenever needed. This became subject to criticism by Indian leaders and, as a result, could never be implemented.
Ironically, the same provision was taken into consideration by the Constituent Assembly in the making of the Constitution, which implemented it in the form of Article 278. During the debates and discussions while framing the Constitution by the Constituent Assembly, many leaders came out and voiced their disagreements on the adoption of this provision. Inhibitions were stated that a misuse of this provision could result in giving way to an imperialistic character to the Union Government, one which the British authorities were criticised for. However, B.R. Ambedkar, the chairman of the Drafting Committee, and some others supported the adoption of this provision. The rationale, as stated, behind adopting and implementing the same provision as promoted by the British authorities in the post-independence age was to preserve the basic tenets of democracy and federalism. The understanding of the Constituent Assembly was that this provision would be used in the rarest of rare cases and that would mostly be a dead letter provision of the Constitution, which would be taken into use only in situations that require measures for the sustenance of cooperative federalism.
Significance and role of Article 356 in the Indian political scenario
Though the rationale behind the implementation of Article 356 was based on the fact that it would be put to use only on a rare occasion, little did the constitution makers know that the political system of the coming age could have the potential for its blatant misuse. Since independence, Article 356 has been used by the ruling Central Governments and political parties as an instrument to indirectly usurp the powers of the state governments. It has time and again been stated that the discretion of the President in using this power is merely at the disposal of the ruling Central Government. The sanctity of the intentions behind implementing this provision has been sidestepped by the corrupt political practices of modern times. Whether it would ever be considered for amendments to its misuse, which is a question of the moral, ethical and social obligations of a government to its society.
Understanding the concept of Article 356
Nature, scope and explanation
The Constitution provides for different categories of situations in which there can be a departure from the usual constitutional mechanisms. These categories formulate the category of emergency provisions under Part XVIII of the Constitution. Apart from a national emergency under Article 352 and a financial emergency under Article 360, there is a Constitutional or state emergency, popularly termed the President’s Rule, enshrined in Article 356. Since our Constitution has federal characteristics with a strong inclination towards the Union and that this federal character has been held to be a basic structure of the constitution in the landmark judgement of Kesavananda Bharati… vs. State of Kerala and Anr. (1973), it is only reasonable to derive that it is the Union that has an obligation to protect and uphold the constitutional spirit of a State by preventing a failure of its constitutional machinery in certain situations that may arise. Moreover, Article 355 of the Constitution imposes a duty on the Union to protect every state against external aggression and internal disturbance and ensure that the government of every state is carried on in accordance with the provisions of the Constitution.
Article 356 empowers the President to withdraw the executive and legislative powers of a state when he feels that the government of the state cannot continue as per the provisions of the constitution. Article 356 clearly lays down the conditions under which a president’s rule can be imposed. It is subject to the satisfaction of the President that the government of the state cannot function in accordance with the constitutional provisions, firstly on receipt of a report from the governor of the concerned state, or secondly “otherwise”, meaning the President on its own or in consultation with the Union may also use this power. The term satisfaction is not to be interpreted as the personal satisfaction of the president. Rather, it is the satisfaction of the union that plays an important role. This satisfaction can be challenged in court on the ground of mala fide intentions or irrelevant grounds.
Conditions under which the proclamation can be issued
The proclamation of a state of emergency by the president can be done in two cases:
As stated under Article 356, when the President is satisfied that the state is unable to govern itself as per the constitutional provisions
As stated under Article 365, when a state has failed to comply with or give effect to any directions given by the Union in the exercise of its executive power as provided by the Constitution, this would ultimately become grounds for the President to affirm that the state cannot be governed in accordance with the constitutional provisions.
Powers of the President vis a vis Article 356
The President, by such proclamation, will have the following powers:
He is empowered to withdraw the powers vested in all the constitutional machinery of the state and perform them himself. That is to say, the President can perform any function of the state government, the powers and functions of the governor, or of any body or authority of the state.
Since the President will not be vested with the powers of the state legislature, the President may declare that such functions of the legislature of the state shall be exercised by the Union Parliament or any other authority under it.
The President is given wide powers to make any incidental or consequential provisions in furtherance of giving way to the proclamation.
Effect of proclamation
After a proclamation under Article 356, the State Legislative Assembly is suspended or dissolved and as stated in Article 357, where a proclamation is issued under Article 356, the Parliament shall be competent to make laws for the state or confer the state’s power of legislating laws to the President, who can delegate the same to other authorities as he may deem fit. The law so made in the exercise of powers under Article 356 by the competent authorities would continue to operate after the cessation of the proclamation until it is specifically altered, amended or repealed by the state legislature. Also, when Parliament is not in session, the President’s power to promulgate ordinances can also be exercised by him. Moreover, during a state emergency, it is the governor who usually holds the administration of the state in the name of the President.
Duration, expiration and revocation
The duration of a proclamation is two months. However, if such a proclamation was issued when the Lok Sabha was dissolved or if its dissolution takes place during the two months period when the proclamation was in force, said proclamation will cease to exist within a period of 30 days from the day when the Lok Sabha reconstitutes. It may also remain in operation if the reconstituted house approves the same.
It has been provided in the Constitution that an extension may be given to the said proclamation for a period of no more than six months by way of passing a resolution by the two houses of the Union Parliament stating so. The maximum period for which the President’s Rule can be extended is three years, but as per the 44th Amendment Act of 1978, to extend it beyond a total period of one year, two conditions must be fulfilled:
a. A national emergency is in force under Article 352.
b. The Election Commission certifies the extension of the proclamation.
The revocation of the said proclamation can be done by the President passing a subsequent resolution to the same effect.
Abuse of law and criticism
It was not in jest that the learned members of our Constituent Assembly debated, discussed, and put forth their concerns while adopting and implementing Article 356 of the Indian Constitution. They understood the fact that it had the potential to impose a manifold impediment to the strong federal character of the Indian democracy they had envisioned. Though hesitant, the Constituent Assembly implemented the provision, keeping it as a last resort.
The misuse of this provision is not novel; rather, it started as early as independence itself. Instances can be seen when this provision is used to topple an established state government or prevent one from being established. The whims and caprices of the political parties have now made this provision a means of imposing the Central Government’s authority over the state governments. This is used mostly in cases where the established or about to be established state government constitutes the majority from the opposite political party to one that governs at the centre. This overuse and abuse of power by politically driven Central Governments time and again is indirectly sabotaging the federal structure of Indian Democracy by thwarting the state governments on unreasonable grounds.
In the case of the State of Rajasthan and Ors. Etc. Etc. vs. Union of India Etc. Etc. (1977), the Supreme Court’s rationale can be read in terms of the fact that the proclamation under Article 356 was subject to satisfaction of the two conditions, i.e., failure of constitutional machinery or disobeying the directions of the Union government. Beyond this, the Court could not question the reasoning behind implementing the said article in any state. Moreover, the court clearly stated that the satisfaction of the President was a subjective one that could not be questioned on objective grounds unless it fell under the exception of being unreasonable and based on irrelevant grounds.
The 1983 report of the Sarkaria Commission, under the chairmanship of retired Supreme Court Judge R.S. Sarkaria, recommended that the provision be implemented as a measure of last resort. It stated that all efforts should be made to resolve the crisis in the state before invoking this provision. Various considerations were provided in the report that were to be kept in mind before applying the President’s Rule. The report suggested the state first be warned about not abiding by the constitutional provisions, giving it an opportunity for an explanation. In severe situations where there is a paucity of time and urgency, it is recommended that the union first use the other alternatives.
In 2007, the Punchhi Commission was set up under the chairmanship of former Chief Justice of India M.M. Punchhi. While giving its observation on interstate relations in terms of Article 356, it recommended amending the provision as the need of the hour. It also stated that rather than proclaiming an emergency in an entire state, it could be taken into consideration by the Central Government only to limit and control the particular area concerned. The recommendations were made to prevent misuse of power under this provision.
In the case of S.R. Bommai vs.Union of India (1994), the Supreme Court proposed guidelines for the imposition of Article 356. While summarising its view, the Court stated that the power in reality exists with the Union Council of Ministers with the Prime Minister as its head, and the President is only enforcing their decision. It stated that the power under Article 356 is a conditional power and not an absolute one. One of the primary observations that the Court made was that the power under Article 356 was not exempted from judicial review. The Court further in this case has laid down when and when this provision can be invoked to proclaim a state emergency.
Conclusion
The very fact that there have been multiple instances of enforcing the President’s Rule in a state due to political reasons, and now that the inhibitions of the Constituent Assembly members as voiced by them earlier regarding the same are apparently proving to be true, it is for the existing government and those to come at the Centre to maintain the constitutional sanctity of the provision before subjecting it to blatant misuse. In the spirit of cooperative federalism, it is necessary for the cessation of such misuse of a constitutional provision. Since the law on point has evolved owing to the Supreme Court’s interpretation in cases like S.R. Bommai vs. Union of India and State of Rajasthan vs. Union of India and the report of the Sarkaria Commission, it is for the Central Governments to make sure to prevent the violation of the same. It is idealistic for the political parties to make sure that they do not give in to the whims and caprices for political benefits.
Since the proclamation under Article 356 is made by the President, it is advisable that presidential activism could prevent the misuse of this power. The president can exercise the option of issuing a warning to the state before imposing the President’s Rule. Certain measures, like re-election in the state on failure to act on the said warning, could also enable him to defend the federal character of the Constitution. An amendment to the Constitution can also be proposed to empower the President, along the lines of requesting the Council of Ministers headed by the Prime Minister for reconsideration. Moreover, defining what the failure of constitutional machinery would precisely mean would further enable the lawmakers to uphold the true intentions behind the adoption of this provision. It is to be understood that giving such wide scope for the application of this Article would subject it to additional misuse by the ruling government. There is no such provision in any democratic country that enables the Central Government to curb the freedom of states on frivolous grounds. Therefore, it is implicit that the understanding of the members of the Constituent Assembly was to put this provision in the Constitution only to be used in the rarest of the rare cases as a shield to protect the integrity of the nation and not as a weapon to ambush the federal character and sanctity of the Constitution.
This article is written by Prithviraj Dutta, a student at Amity University Kolkata. This article aims to understand the difference between PILs and Writs by understanding the conceptual difference between the two, their origins, the process of filing, their applicability, and their significance. Furthermore, this article also discusses some Landmark Judgments related to PILs and Writs and some recent case laws.
It is essential for every nation to protect the interests of its citizens. Writ petitions and Public Interest Litigation are two essential remedies that are available in India to enforce the fundamental rights of the citizens in order to seek justice from the Courts. The Supreme Court and the High Courts of India are the protectors of the rights that have been granted by the Indian Constitution. The Constitution of India provides for writ petitions that give every citizen the right to seek constitutional remedies from the Supreme Court and High Courts of India under Article 32 and Article 226 of the Constitution- respectively. It is an instrument or an order through which the Supreme Court and the High Courts direct or abstain from directing an individual or an authority from performing a certain act. Both the Supreme Court and the High Courts have numerous powers for issuing the writs of Habeas Corpus, Mandamus, Prohibition, Quo Warranto, and Certiorari for enforcing the rights granted by the Constitution. If it deems it essential, the Court can even proceed suo moto based on information received from sources like the media. Public Interest Litigation, also known as PIL, is another mechanism through which citizens can seek justice on behalf of a particular group or section of society by filing a petition before the Supreme Court or High Court. The main purpose of PILs is to ensure the protection of the fundamental rights of every citizen, irrespective of socio-economic status.
Meaning
PIL
PIL Litigation or legal action that is filed before a court of law for the protection of “public interest” is known as Public Interest Litigation. Public Interest Litigation has not been defined in an act or statute. It is left to the judges to interpret a situation as a matter of public interest or an issue that affects the public at large. Situations where the common public interest is harmed or affected in some way can be recovered by filing a PIL in any court of law. The meaning of Public Interest Litigation is quite large, encompassing numerous issues including corruption, human rights violations, protection of the environment, consumer protection, public health, terrorism, road safety, etc. PIL today has weakened the concept of locus standi, which implies that only a person or party whose rights have been violated can file a petition for enforcement of their rights.
Objective of PIL
The main objective of PIL is to make justice easily accessible to the marginalised sections of society. PILs are for people who are not in a financial situation to hire a lawyer or approach a court of law to seek justice.
Another objective of PIL is to provide a platform for citizens to engage in issues important to them and to be more included in our legal system. PILs help to create awareness among the public about their rights.
The legislature and the executive find it useful to impose legal obligations.
Types of PIL
Representative Social Action
Representative Social Action is a form of Public Interest Litigation in which any person in the public seeks judicial redress for a legal wrong committed to a person or a group of people who are unable to approach the judicial system due to being in a socially or economically disadvantageous position. In these kinds of cases, the petitioner is accorded locus standi to seek judicial remedy on behalf of another person or class.
1. Sunil Batra who was the prisoner and convicted of death sentence living in the Tihar Jail, filed a letter to the Supreme Court judge in relation to the treatment he was subjected to by the jail authorities
2. He stated that he was tortured and assaulted by the jail authorities, as a result of which he suffered a serious anal injury. He stated that all of these were done in order to extract money from his relatives.
3. This letter was revised into a Habeas Corpus petition and later refined into a Public Interest Litigation.
4. The Supreme Court appointed DR YS Chintal and Shri Mukul Mudgai as Amicus Curiae, who, after visiting the prison, stated that the petitioner had sustained serious anal injury because of a rod.
Issues
Whether the Supreme Court could entertain a petition by a convict.
Whether the convicted person enjoyed fundamental rights under Articles 14, 19, and 21 of the Constitution.
Questions related to amendments in the Prisons Act of 1984.
Judgment
The Supreme Court held that the jail authorities did not have any authority to torture the prisoners without the Court’s permission.
The Fundamental Rights of the petitioner were infringed in this case.
Whenever the fundamental rights of an individual were violated, they could approach the Supreme Court and the High Court under Articles 32 and 226 of the Constitution, respectively.
The Court held that Section 30(2) of the Prisoners Act contained of no provision for torturing prisoners.
The Court held that even convicted people had the Right to Life and Personal Liberty.
The Court held that Section 30(2) of the Prisoners Act was not violative of Article 14 of the Constitution
With the order of the court, the Supreme Court could take necessary actions in relation to Section 56 of the Prisoners Act of 1894.
Citizen Social Action
A Public Interest Litigation falls under this category when it is filed by a person as a member of the public rather than as a class representative. This category of PIL aims not to make justice more accessible, like Representative Social Action, but to liberate those rights that are diffused among the public to be enforced. This is notwithstanding the absence of traditional human rights. This is notwithstanding the absence of traditional human rights.
When a matchstick was thrown in a river in 1985 in Haridwar, it caused havoc, causing the river to catch fire for more than 30 hours. Many reports refer to this case as the “Ganga Pollution Case”.
The fire resulted from the release of toxic chemicals from a pharmaceutical firm into the river.
M.C. Mehta filed a PIL in the Supreme Court of India as a response to this incident.
The PIL had named around 89 respondents. He stated that more steps had to be taken to protect the River Ganga from environmental pollution despite advancements in environmental law. He narrowed down his focus to Kanpur, although he was not a citizen of Kanpur.
M.C Mehta called upon the state agencies to prevent tanneries and the Municipal Corporation of Kanpur from dumping affluents into the river. This was until they implemented treatment plants to address pollution, especially cyanogenic effluents.
He also requested the court to order leather tanneries to stop releasing effluents into the river.
Issues
Whether the authorities recognised the deteriorating condition of the river, and conductedt an investigation into the matter.
What was the course of action that needed to be taken by the state in response to the situation.
Whether the smaller industries should receive help in order to successfully implement effluent plants.
Judgment
The Court, in its Judgment, highlighted the need to protect the environment as enshrined in the Indian Constitution. They put special emphasis on Article 48A and Article 51A .
The Court recognised and put focus on The Water (Prevention and Control of Pollution) Act, (1974), which aims to maintain the quality of water and prevent pollution. Section 24 of this Act prevents the disposal of polluting matter into streams that also include watercourses.
Tanneries were required to establish primary or secondary treatment plants as minimum requirements
The financial capacity of the tanneries was considered insignificant with respect to their obligations.
The State Boards were also criticised for not taking effective measures to prevent the release of effluents into the Ganga river and for the Central government not addressing the nuances.
Article 52A(g) imposes a fundamental duty to protect the environment.
The Central Government was made to mandate environmental education. Education should focus on environmental protection.
Writ
A Writ is defined as a formal, legal document that orders or ceases a person or an authority from performing a certain action or deed. Writs are written orders given by either the Supreme Court or the High Court as constitutional remedies for citizens against violations of their fundamental rights. The Supreme Court, under Article 32, and the High Court under Article 226 grants the power to issue writs.
Types of writs
Habeas Corpus
The writ of Habeas Corpus provides protection against unlawful detention by the state or private authority. The Court cannot issue the writ of Habeas Corpus in two particular cases-:
When the court itself orders the detention
Detention is lawful.
Mandamus
The writ of Mandamus is an order given by the courts to various executive authorities, directing them to perform actions to safeguard and protect the people’s fundamental rights.. A writ of Mandamus can be issued against a tribunal, corporation, public body, or lower court. In certain situations, the writ of Mandamus cannot be applied. These are:
Against any private individual or a private organisation.
To enforce departmental instructions not backed by statutes.
Against the constitutional office of the President or Governor.
Prohibition
The writ of prohibition is used by a higher court to order a lower court or tribunal not to do an act that does not fall within its jurisdiction. The important thing to note here is that a writ of prohibition can only be passed against a lower court or a tribunal.
Certiorari
The writ of certiorari is an order by a higher court to a lower court or tribunal to transfer matters pending before them. It can also be used to quash orders in certain cases when a lower court has issued them.
The important scenarios in which a writ of Certiorari can be granted by the Higher Courts are cases against administrative authorities affecting the fundamental rights of the people. It however, cannot be issued against law-making bodies, private organisations, or individuals.
Quo-Warranto
The writ of Quo-Warranto is used by the higher courts to ensure that no person can hold a public office to which he is not entitled. Writs of Quo-Warranto are issued by the higher courts to prevent violations of the fundamental rights of the people against people who usurp public offices illegally. The important scenarios to keep in mind while issuing a writ of Quo-Warranto are-
It can only be issued when a body is created by a statute or under the Indian Constitution
A writ of Quo-Warranto cannot be issued against a ministerial office.
Origin
PIL
The seeds of Public Interest Litigation were sown for the first time in Mumbai Kamgar Sabha, Bombay vs M/S Abdulbhai Faizullabhai, (1976), and were initiated in Railway. A group of unregistered associations of workers successfully issued a writ petition under Article 32 of the Constitution.
The concept of Public Interest Litigation was introduced for the first time in India through the Hussainara Khatoon Case
Hussainara Katoon And Others V Home Secretary, State of Bihar, (1979)
Facts
In Hussainara Khatoon & Ors v. Home Secretary, State Of Bihar, (1979) The Indian Express published an article in 1979 stating the situation of the under-trial prisoners in Bihar Jail. Many of these prisoners were kept in jails for a very long time, even longer than what the courts had ordered.
Advocate Pushpa Kapila Hingorani filed a case of Public Interest Litigation before the Supreme Court. She is known as the “Mother of Public Interest Litigation in India,” as this is the first documented case of Public Interest Litigation in India
A writ of Habeas Corpus was brought by Kapil Hingoani before the Supreme Court under Article 32 of the Constitution. This was for the purpose of the release of 17 under-trial prisoners after separating them into two categories:
Minor offences
Serious Offences
Issues
Whether the right to speedy trial be included under Article 21 of the Constitution.
Whether the law could compel the provision of free legal assistance.
Arguments
Many of the under-trial prisoners who were presented before the Magistrate were constantly sent to judicial custody.
However, these allegations were acceptable by the Court. This is because there was a failure to comply with the requirements of showing on which dates the under-trial prisoners were detained.
In order to excuse the pending cases, in almost 10 percent of the cases, the detention was due to the absence of expert opinions.
Judgment
The Supreme Court ordered that all those under-trial prisoners who were a part of Advocate Kapil Hingorani’s list were to be released because they had already served sentences that were more than the maximum punishment for the crimes for which they were accused.
The Court also stated that under-trial prisoners for bailable offences, when brought before the magistrate, will be appointed with a Lawyer by the State Government at its own expense in order to file a bail application. This was to allow a speedy trial to begin and limit remand.
The State Governments and High Courts were required to provide information on the locations of the Magistrate and Sessions Courts in Bihar. They were also to submit the number of pending cases in each court. This was to be done before December 31, 1978.
After this case, Public Interest Litigation became a very powerful tool. It helped citizens directly address their grievances by approaching the Court. The filing of a PIL case has been made easier by the Supreme Court. It has made justice more accessible to the people, as even the people whose rights have not been directly affected can approach the Court on behalf of an individual or a party, keeping in mind the “public interest” at large.
Writ
Prerogative Writs in India owe their origins to the English Common Law. In England, they are called “fountains of justice” because they were issued as an exercise of the King’s prerogative as the “foundations of justice”. The High Court later started issuing these to protect the liberties and rights of the British People.
Writs in India owe their origin to the Regulating Act of 1773. Under this Act, the Supreme Court was established in Calcutta. The High Court, coming under the Supreme Court, was also given the authority to issue writs. The writ jurisdiction of both the Supreme Court and the High Court was limited to their original civil jurisdiction, which was granted to them by Sections 45 Specific Relief Act, (1877)
Articles 32 and 226 of the Constitution ensure the enforcement of fundamental rights and also subject administrative actions to judicial review. This is a constitutional remedy available to a person in the event that his fundamental rights have been violated by any administrative action. The Supreme Court and the High Court can only exercise their jurisdiction by issuing writs. The Supreme Court has been granted this power under Article 32 of the Constitution, and the High Courts have been granted this power under Article 226 of the Constitution.
There is a difference between a writ and order. Writs are used to provide extraordinary remedy, usually against administrative action, while an order can be passed in any matter.
Applicability
Who can file a PIL?
Any citizen under Article 32, Article 226 or Section 133 in The Code Of Criminal Procedure, (1973) (in cases where public nuisance harms public interest) can file a PIL in the Supreme Court, High Court, or Magistrates Court, respectively.
As the letter is addressed by a person in the interest of the public, an aggrieved party, a social action group for enforcement of legal or constitutional rights, or a person who is unable to approach Congress for redress, it is necessary that the court be satisfied that the writ petition fulfils certain basic requirements for the filing of a PIL.
A Public Interest lawsuit can only be brought against the central government, state government, or municipal authority. It cannot be brought against any individual. The Parliament, the Government of India, and the Government and legislature of each state are included in the definition of “State” under Article 12.
The matters in which a PIL can be filed are as follows-
Violation of fundamental rights
Violation of human rights of the poor and marginalised sections of society
In order to force the municipal authorities to perform a particular duty
Execution of Central and State Government policies.
The matters in which a PIL cannot be filed are as follows-
Matters between Landlords and Tenants
Service Matters
Pension and Gratuity Matters
Complaints against the central and state governments and also local bodies except those relating to 1-10 mentioned in the list of guidelines
Admissions related to medical as well as other educational institutions
Petitions that are pending before the High Court and Subordinate Courts.
Who can file a Writ?
Who can file an application seeking remedy through the writ of Habeas Corpus?
An application for issuing a writ of Habeas Corpus can be issued by any person who has been detained or by any other person, like parents, spouses, or even close friends, on his behalf. This is subject to the rules as laid down by the different High Courts.
In Chiranjit Lal Chowdhuri v. The Union Of India And Others, (1950) the Supreme Court stated that any person who has been illegally detained can file a writ of habeas corpus, or it can also be filed by any other person provided that the person is not a total stranger to the person who has been detained.
Who can file an application seeking remedy through the Writ of Mandamus?
In a writ of Mandamus, a person has to prove that he has a legal right so as to overpower the opposite party against whom the writ has been issued to perform or not to perform a certain act. A prerequisite for issuing the writ of Mandamus is the existence of a legal right of the petitioner. The legal right must be enforceable and protected before a claim for Mandamus can be made. The existence of this legal right gives the foundation for a writ of Mandamus.
In Dr. Umakant Saran v. State Of Bihar, (1972)., Dr. Saran challenged the decision of the High Court through a special leave appeal before the Supreme Court of India. After determining the facts of the case, the Supreme Court observed that Dr. Saran was not eligible for appointment at the time the High Court announced its decision. Two other respondents (5 and 6) in this particular case were eligible for the appointment. The Court stated that the writ of Mandamus can only be granted when the authorities are at fault for committing a particular wrong. It is necessary to prove that the statute provided some legal right to the person that had not been enforced. Thus, a petition for the writ of Mandamus was rejected in this case.
Who can file an application seeking remedy through the Writ of Prohibition?
The grounds on which a writ of prohibition can be issued are as follows –
When there is a lack or excess of jurisdiction
In cases where the principles of Natural Justice have not been adhered to or have been violated
Whenever a court or a tribunal proceeds to do an act under a law or a statute that is unconstitutional or ultra-vires.
Where an impugned action violates the fundamental right of an individual.
In Shewpujanrai Indrasanrai Ltd v. The Collector Of Customs & Others, (1985), it was stated in the Judgment that from time to time by notification in the official gazette, restrict the import or the import of certain goods by land or sea across any customs frontier which had been declared by the Central Government. The High Court could use the writ of prohibition, prohibiting the customs authorities from giving invalid conditions without consultation with the central government.
Who can file an application seeking remedy through the Writ of Certiorari?
The grounds on which a writ of Prohibition can be issued are as follows-
When there is a lack or excess of jurisdiction
In cases where the principles of Natural Justice have not been adhered to or have been violated
When there is an evident ignorance of the provisions of the law or the law has been interpreted in the wrong way..
The technicalities of prerogative writs in English Law have no role to play in Indian Constitutional Law.
A writ of Certiorari can only be passed by a superior authority against an inferior authority to certify its record for examination.
A High Court cannot pass a writ of Certiorari against another High Court, or one bench of a High Court cannot pass a writ of Certiorari against another bench of the same court.
Judicial orders given by a civil court cannot be amended or reversed under Article 226 of the Constitution.
Jurisdiction under Article 226 of the Constitution is different from jurisdiction under Article 227 of the Constitution.
Who can file an application seeking remedy through the Writ of Quo-Warranto?
The grounds on which a writ of Quo-Warranto can be issued are as follows
Only if the office in question is a public office can any person who claims a remedy through this writ establish this first.
The office in question must be substantive
A contravention of the Constitution or statutory provision has been made while appointing such a person to office
In The University Of Mysore v. C. D. Govinda Rao And Anr, (1963), The respondent argued that the appointment of Appellant number 2 was illegal as he failed to fulfil the first condition as specified in the advertised inviting application. The High Court issued a writ of Quo-Warranto against Anniah Gowda, stating that his appointment was illegal.
However, the Supreme Court stated that the High Court was incorrect in its Judgment because it did not take into consideration the alternative qualifications that Anniah Gowda possessed.
Laws governing
PIL – PILs can be filed before the Supreme Court under Article 32 of the Constitution or before the High Court under Article 226 of the Constitution. In addition to this, a letter or a postcard can be written to the Chief Justice of India or the Chief Justice of any High Court, and this letter or postcard can be converted into a PIL, as was done in the case of Rural Litigation And Entitlement v. State Of U.P. & Ors, (1985) .
Laws Governing PILs in India
Relaxed Rule of Locus Standi
PILs can be filed by another person for safeguarding and protecting the interests of the disadvantaged sections of society. Thus the relaxed Rule of Locus Standi is followed here since a person whose legal rights have not directly been affected can also file a PIL to protect the interest of the poor and marginalised sections of society.
Relaxed Procedural Rules
A letter or a postcard sent to either the Chief Justice of India or to the Chief Justice of any of the High Courts can be converted into a PIL. This was done in the case of Rural Litigation and Entitlement Kendra V State of U.P and Others, 1985, where the Court converted a letter into a PIL related to illegal mining in Mussoorie Hills.
Intervention by the Courts
Article 14 and Article 19 of the Constitution provide for a reasonable trial for all. Thus, the Courts can intervene in cases where injustice is done to a large number of people.
Question of Maintainability
The Government cannot raise questions related to the maintainability of a PIL when the Court is prima facie satisfied that there has been a violation of the fundamental rights of a disadvantaged group of society.
Principle of Res Judicata
The principle of Res Judicatacan be applied depending on the circumstances of the case and the nature of the PIL.
Appointment of a Commission
In certain cases, the Courts can appoint a Commission or other bodies to investigate a particular case. In such a case, the Court takes over the Public Institution and manages it.
PILs related to the constitutional validity of a statute
In normal circumstances, the High Courts do not entertain such a petition through PILs.
Complete Justice
The Supreme Court, under Article 142 of the Constitution, has the discretionary power to pass an order or a decree that might be necessary to give complete justice between the parties where the law or statute involved does not provide a remedy. The Court can make decisions to end the dispute between the parties in relation to the facts of the case.
Misuse of PILs
The Courts have to be extremely cautious to ensure that PILs are not misused. The courts have from time to time put emphasis on this fact, as stated inKushum Lata v. Union Of India And Ors, (2006). The Court, however, also states that if a person files a PIL for the protection of his own private interests, the court can, if it finds it necessary, treat the matter as one of public interest.
Formulation and Evolution of various concepts
In many environmental cases, the Court has come up with and evolved various concepts such as the Polluter Pays Principle, the Public Trust Doctrine, and Sustainable Development.
Laws governing Writs
Article 32 of the Indian Constitution
Article 32 of the Constitution states that any individual whose fundamental rights have been violated can approach the Supreme Court to seek a constitutional remedy. Article 32 is the “heart and soul” of the Constitution of India.
Article 32(1) of the Indian Constitution states that any person whose fundamental rights have been violated under Part-III of the Constitution can move the court through appropriate proceedings for the enforcement of the Fundamental Rights.
Article 32(2) states that the Supreme Court has the power to issue the five writs of Habeas Corpus, Mandamus, Prohibition, Certiorari, and Quo-Warranto depending on the particular case and whichever might be required for the enforcement of fundamental rights.
Article 32(3) states that the Supreme Court, through its above-mentioned powers, can empower any court to exercise the power to issue writs within its local jurisdiction.
Article 32(4) states that the rights that have been guaranteed by this Article cannot be suspended except when stated by the Constitution.
Nature and Scope of Article 32 of the Constitution
The jurisdiction of the Supreme Court under Article 32 of the Constitution is mandatory and not discretionary. The Scope of Article 32 of the Constitution is limited in comparison to Article 226 of the Constitution. This is because the Supreme Court cannot be approached for any other legal right except fundamental rights. A noteworthy feature of Article 32 of the Constitution is that the powers of the Supreme Court under this Article are mentioned separately from the articles that cover the Supreme Court’s general jurisdiction – Articles 124-147. However, during a National Emergency when the Fundamental Rights are suspended, Article 32 remains suspended as well.
When can the Supreme Court refuse a remedy?
The cases in which the Supreme Court can refuse remedy under Article 32 of the Constitution are as follows-
Res Judicata – Res Judicata is applicable to a writ petition under Article 32 of the Constitution. The writ of Habeas Corpus is an exception to that principle; however, a writ of petition cannot be filed with the same facts more than once. Habeas Corpus as an expedition to this principle was mentioned in the case of Ghulam Sarwar v. Union of India, (1961).
An Inordinate delay in filing the petition – The Supreme Court can refuse to grant relief when there is an inordinate delay in filing the writ petition. This was stated in the case of D. Gopinathan Pillai v. State Of Kerala, (2007).
Malicious Petition – If a petition is found to be malicious and ill-intentioned, then the Supreme Court can refuse remedy. The Supreme Court, due to the absence of rational grounds, rejected the writ petition inShoukat Hussain Guru v. State (Nct) Delhi & Anr on 14 May,( 2008).
Misrepresentation of facts – If the petitioner has been found to have committed a substantial misrepresentation of facts, then the Supreme Court can reject the writ petition at any stage.
In the case ofShri K. Jayaram v. Bangalore Development Authority, (2021), the Supreme Court stated that the concealment of key information falls under misuse of the legal process, preventing the appellant from getting relief from the Writ Courts.
Article 226 of the Indian Constitution
Article 226 of the Constitution states that any individual whose fundamental rights have been violated can approach the High Court to seek a constitutional remedy. Article 32 is the “heart and soul” of the Constitution of India.
Article 226(1) states that the High Court has the power to issue writs notwithstanding anything in Article 32 throughout the area where they are allowed to exercise their jurisdiction over any person or authority, and they can also direct the Government to issue writs or orders. This includes the power to issue the 5 writs of Habeas Corpus, Mandamus, Prohibition, Certiorari, and Quo-Warranto for the enforcement of the fundamental rights under Part III of the Constitution or for any other purpose.
Article 226(2) states that the powers stated above can be used by the High Court for exercising powers in their areas of jurisdiction in relation to the territories within which the cause of action wholly or partly arises, notwithstanding that the seat of the government or authority or the residence of the person does not fall in those territories.
Article 226(3) states that in cases where an interim order is passed against the respondent under Article 226 without
Providing the respondent a copy of the petition
The respondent has to be given an opportunity to be heard
The High Court shall decide within two weeks of getting the application or within two weeks from when the other party received the application, whichever is later. In a situation where the application is not disposed of, the interim order has to be vacated on the expiration of that period. If the High Court is closed on the last day of this period, then before the expiration of the last date on which the High Court is open, the interim order will have to be vacated.
Article 226(4) states that the powers given to the High Court under this Article shall not prevent the Supreme Court from exercising its powers under Article 32(2) of the Constitution.
Scope of Article 226 of the Constitution
The High Court under Article 226 of the Constitution has a much broader scope as it gives the High Court the power to issue orders, directions, and writs not only for the enforcement of fundamental rights but for the enforcement of legal rights as well. This was stated inBandhua Mukti Morcha v. Union Of India & Others, (1983).
Writs under Article 226 of the Constitution enable the High Courts to issue writs in cases where a subordinate body or an officer acts without jurisdiction or in excess of jurisdiction, in cases where they violate the principles of Natural Justice, or when they don’t exercise jurisdiction in cases where they are supposed to. This also applies where there is an omission related to an act, omission, or error that has resulted in an absence or an excess of jurisdiction that leads to injustice. The High Court cannot turn itself into a Court of Appeal, evaluate the accuracy of its contested decisions, and determine what order to issue. This was stated in the case ofVeerappa Pillai v. Raman & Raman Ltd. And Others, (1952).
The High Court cannot sit or function as an appellate authority under Article 226. The authority of the High Court is supervisory. The key goal of this jurisdiction is to keep the government, as well as some courts and agencies, under the supervision of the High Courts. The High Court also has to ensure that it does not go beyond its own jurisdiction. This was stated in the case ofChandigarh Administration v. Jagjit Singh, (1995).
If the High Court finds out that there are facts in the case that are not relevant to a high prerogative writ, it can refuse to entertain certain matters and shift it to the normal litigation process. This was stated in Jagdish Prasad Shastri v. State Of U.P. & Ors, (1970).
The Supreme Court inCommon Cause (A Regd. Society) v. Union Of India, (2018), the Supreme Court stated that the High Court can issue relief both for the enforcement of fundamental rights and also for other reasons that might include enforcement of public responsibilities by the public authorities.
Process of filing
PIL
Documents required to file a PIL
A list of the names and addresses of the aggrieved parties.
A list of names and addresses of the respondents or the government agencies from whom relief is sought by the petitioner.
The facts of the case or the violation of fundamental rights of the people concerned.
The nature of the violation of the injury
Any personal interest that the petitioner might have.
The petitioner also has to inform the court if they are in a position to pay the court fees if the court requires them to do so.
The Process of Filing a PIL
The Petitioner needs to do complete research on the issue before filing a PIL. In a case where the PIL is related to a large number of individuals or a group, the petitioner has to consult all the individuals and the group concerned.
A person can argue or appoint a lawyer on his behalf to argue his case.
If a person wants to file a PIL in the High Court, he has to submit two copies of his petition to the High Court. Along with this, a copy of his petition has to be sent in advance to the respondent. The proof of serving a copy of the writ needs to be affixed to the petition
If a person wants to file a PIL before the Supreme Court, he has to send five copies of it. The respondent is served with a copy only when it is issued by the Court.
The Cost incurred to file a PIL
A Public Interest Litigation is cheaper in comparison to other cases. A person has to pay a court fee of Rs. 50 for each respondent and affix it to the petition.
How often do judges admit a PIL?
It varies from Judge to Judge. PILs are looked into by the Chief Justice of the Courts; therefore, it depends on the sitting judge in the matter. The average admission rate varies from 30 to 60 percent. If the judges are convinced that the matter is of significant public interest, then they admit the PIL.
Writ
The process of filing a writ petition before the High Court
It is essential that a writ petition must contain a supporting affidavit, the facts of the case, and the question of law. The documents on which the petitioner relies to substantiate his case have to be present as well. A notice of motion has to be sent to the other party along with the Prayer.
The Petition has to be filed at a filing counter in the High Court
Usually, before issuing a notice to the other party, the Court first hears the petitioner’s side of the case in a preliminary hearing.
If the Court finds that there is no relevant ground for the petitioner to seek the writ, they can reject the petition at the first hearing itself.
However, if the case is admitted by the Court, then a notice is sent to the other party based on the motion for notice specified in the petition. The notice also mentions the date on which the other party has to appear for the hearing. Admission of a petition does not mean that relief will be paid. It just means that the Court finds sufficient grounds for hearing the case. The petition even after admission can be rejected at any time by the Court.
The Court fees are subjective and alternative forms of dispute redressal are always available in case the Petitioner is unable to appoint a lawyer
In the final stage, the Court hears the arguments of both parties. After this, the Court comes up with a decision that it deems fit.
The process of filing a writ petition before the Supreme Court
Under Article 32 of the Constitution, every citizen has the right to file a writ petition before the Supreme Court for protection of their fundamental rights. This petition shall be in writing.
If the petition involves a substantial question of law, then it will not be heard by a Division Bench of less than five Judges. If, however, a substantial question of law is absent, then the petition can be heard by a bench of less than five judges.
All the interlocutory and miscellaneous applications that are filed along with the writ petition can be heard and decided by a Division Bench of less than five Judges.
No Court fees are imposed when the writ petition is for Habeas Corpus or any other petition that arises out of criminal proceedings.
Procedure to file a writ of Habeas Corpus
A writ petition of Habeas Corpus needs to be accompanied by an affidavit of the person stating that the petition has been made at his instance, and it also needs to state the reason for restraint. If the person is unable to make an affidavit, then the affidavit is made on behalf of another person who is acquainted with the facts of the case, stating the reasons why the person detained was unable to file the petition.
The Petitioner also needs to state whether he had applied for the same relief before the High Court and, if so, what the result of the High Court hearings was.
During preliminary hearings, the petitioner needs to be present before the court, and if the court makes a prima facie case for granting the petition, then the Court has to issue a rule NISI, ordering the opposite party to be present on the next date of hearing. The opposite party also has to state why an order should not be passed against them, and the person detained also needs to be present before the court of law.
If no cause is shown by the opposite party on the set date, then the court must pass an order for the release of the petitioner.
Procedure for filing the other four writs or any order of direction
The writs have to be set out, stating the name and description of the petitioner, the nature of the fundamental rights that have been infringed, and the relief sought, along with an affidavit of the petitioner verifying the facts of the case.
A minimum of three copies of this must be filed in the registry.
The Petitioner also has to state whether he moved to the concerned High Court for a grant of relief before approaching the Supreme Court and what the result was.
The Petitioner must be present before the court on the date of the petition for a preliminary hearing and also send a notice to the opposite party. If the court finds that there is no infringement of any fundamental rights or reasonable grounds for rejection of the petition, the court shall reject the petition. If any reasonable ground is found, however, the court may issue the rule of NISI calling the respondent to appear on the next date.
The respondent must reply to this within 30 days of getting the receipt or before 2 weeks of the next date appointed for the hearing,whichever is earlier, or at any time specified by the Court.
Through issuing the Rule of NISI, the Court has the power to grant ad-interim relief to the petitioner in order to grant him justice if it seems fit.
Significance
PIL
Significance of PIL
The mechanism of PIL helps and empowers every citizen to exercise their rights and obtain justice in case any of their rights have been violated.
India follows the concept of participatory democracy. By filing petitions before the courts, citizens take part in the administration of justice. Also, the filing of a PIL costs much less than the standard process.
PIL supports the protection of rights of a section, community, or group of people in comparable situations. In the case ofSamatha v. State Of Andhra Pradesh And Ors, (1997), the Supreme Court prohibited private corporations from leasing tribal and forest lands to others.
The process of administering justice becomes more democratic by allowing any person or group with the necessary resources to file a PIL on behalf of those who lack the means or are unable to do so. In the case of Pt. Parmanand Katara v. Union Of India & Ors, (1989), a citizen named Parmanand Katara brought up the case where a hospital refused to treat victims of an accident.
PIL helps in creating a check and balance to prevent any legislative or executive authority from misusing their powers and creating accountability, and it can be used to enforce a wrongdoer’s legal responsibility.
Litigants can concentrate and get results in matters related to societal issues.
It helps the Judiciary keep an eye on institutions for the elderly, orphanages, and prisons.
Writ
Significance of Writs
Writs play an extremely crucial role in protecting the fundamental rights of an individual. Without writs, Part III of the Constitution would be meaningless.
The Indian Constitution’s Articles 32 and 226 guarantee the basic rights of an individual by giving the Supreme Court and the High Courts of India the power to issue writs in cases where the fundamental rights of an individual have been violated.
Today, writ jurisdiction has established itself in the Common Law to keep a check on administrative operations and actions. It ensures that people are treated fairly in the justice system and that the entire administration is free of bias.
Writs help in establishing areas for the Judiciary to exercise its power, authority, and jurisdiction over the State’s Administrative acts.
Writs provide the individuals with an opportunity to challenge government actions and seek relief in cases where there has been a violation of their fundamental rights. They promote the principles of justice, fairness, and accountability.
“Social and Economic Justice” form the hallmark of the Indian Constitution. Writs protect the basic rights of an individual, which cannot be violated in ordinary circumstances.
Differences between PIL and Writs
PIL
WRITS
PIL is an application filed by a citizen for protection of the rights of the public at large or where “public interests” are concerned.
Writs are always filed by an individual or an organisation for their own benefit
The process of filing a PIL is simplified and inexpensive.
The process of filing a writ is expensive, time-consuming, and complicated as well.
Rule of Locus Standi is relaxed.
Rule of Locus Standi is followed.
Examining evidence is narrow and does not involve as many technicalities as writs.
Evidence is strictly examined.
The Judgments given in cases of PIL are extremely crucial as the matters involve the interest of the public at large and concern matters of national welfare.
The Judgments are related to matters of private interest.
PILs are not governed by any statute. It is an application filed by a citizen for protection of the rights of the public at large or where “public interests” are concerned.
Writs have been specifically mentioned in the Constitution under Articles 32 (Power of Supreme Court to issue writs) and 226 (Power of the High Courts to issue writs) of the Constitution.
Landmark Judgments
PIL
Rural Litigation and Entitlement Kendra v. State of UP And Others, (1985)
Rural Litigation And Entitlement v. State Of U.P. & Ors, (1985) was the first case of environmental PIL in India. In this case, a fierce legal battle was fought between the residents who were affected on one side and some rich limestone contractors, powerful individuals, and even the government on the other. This case brought into focus the contrast between development and conservation. Numerous issues were raised before the Court.
Facts
The Doon Valley is included in the Mussoorie Hill Chain. The Doon Valley consisted of a lot of resources. The region’s natural flourishing was completed by the numerous rivers that originated in the Mussoorie Hills. In 1950, limestone mining here resulted in degradation. This was due to use of resources like tree cutting and severe mining.
Between 1955-1965 the Doon Valley’s limestone mining methods continued to grow. Detonation was used as a method to remove minerals, which resulted in the loss of flora in the country. Water Shortages, mudslides, flooding, extreme heat, and dissemination had resulted in severe degradation of the valley.
Mining was outlawed in the state by the Uttar Pradesh State Department of Mines. In 1962, however, the state legislature approved mining operations for a period of 20 years. The contracts were available for restoration in 1982, but the state banned them. The mining firms filed a petition in the Supreme Court to get the government’s decision overturned. The Allahabad High Court approved mining operations, and favoured economic gains rather than environmental concerns.
In 1923, a regional Dehradun NGO, Rural Litigation and Entitlement Kendra, filed a letter of protest to the Supreme Court against India’s environmental poverty. The Supreme Court then ordered an evaluation of all mining operations in the valley.
Issues
Whether the mining operations violate the Forest Conservation Act of 1980.
Whether there any evidence of the mining operations damaging the ecosystem in the area.
Whether it is true that these queries resulted in permanent water springs?
Judgment
The Supreme Court ordered the closure of all the polluting units. The Supreme Court also set a precedent in this particular case by allowing residents to file a case against polluting units irrespective of whether it was complying with or violating provisions of the Air (Prevention and Control of Pollution) Act, (1981).
The Mine Lesses, whose operations were halted were to be given first preference in mining regions.
The Environmental Eco-Task force was ordered to recover the areas that were damaged by the mines and the employers whose work was shut down due to mining being stopped were to be given first preference in employment choices
In this case, the Supreme Court had acted immediately by prohibiting mining operations with a view of determining if the mining operations were going on taking safety standards into consideration. The Bhargava Committee was appointed in order to assess the area’s ecology. On receiving certain recommendations from the Bhargava Committee, the mining operations were stopped in ecologically sensitive areas. Importantly, the Court also noted that citizens have a responsibility to protect the environment.
Vishaka And Others v. State of Rajasthan (1997)
Facts
In Vishaka & Ors v. State Of Rajasthan, (1997) Bhanwari Devi from Bhateri, Rajasthan, started working under the Women’s Development Project run by the Rajasthan Government in 1985.
In 1992, Bhanwari took up the government’s campaign against child marriage. Ram Gujar had decided to conduct the marriage of his infant daughter. Bhanwari Devi attempted to convince the family to stop the marriage. However, the marriage took place.
The sub-divisional officer and the Superintendent of Police were successful in stopping the marriage. The marriage, however, was conducted the next day. Bhanwari Devi was considered responsible for the police actions.
On September 22, 1992, in order to seek revenge, four men from the Gujjar family attacked Bhanwari Devi’s husband and brutally gang raped her.
The police had used unconstitutional methods to prevent her from filing the complaint as well as to delay the medical examination, which was deferred for 52 hours, and as a result, no evidence of rape was mentioned in the report.
After facing taunts and having to leave her lehenga as evidence, Bhanwari Devi was forced to leave the police station, only having her husband’s dhoti to cover her body
‘Vishaka’ a women’s rights organisation, filed a PIL focusing on enforcing fundamental rights of women in the workplace under Articles 14, 15, 19, and 21 of the Constitution.
Issues
Whether formal guidelines are required to deal with the incidents involving sexual harassment at the workplace.
Whether sexual harassment at the workplace amount to violating fundamental rights of a woman at the workplace.
Whether the employer has any responsibility in case there is a sexual harassment of its employee at the workplace.
Judgment
Sexual Harassment at the workplace was considered as a clear violation of the fundamental rights guaranteed under Articles 14, 15, 19(1)(g) and 21 of the Constitution.
Guidelines were directed towards employees
A definition of sexual harassment was provided.
List of steps was given for preventing harassment.
and a clear description of procedures was given that were to be strictly followed in all workplaces to ensure gender equality.
This case promoted women’s rights in a broader sense and applied international laws at the High Court Level.
Writ
A.K. Gopalan v. The State of Madras, (1950).
Facts
A.K. Gopalan v. The State Of Madras, (1950) is a case about AK Gopalan, a communist leader, was subjected to illegal detention several times since 1947, and even after the court let him go, he was kept under detention by the government under the Preventive Detention Act of 1950. Therefore, he filed a writ under Article 32 of the Constitution seeking the writ of Habeas Corpus. His main argument was that the Preventive Detention Act curtailed his liberty under Article 21 of the Constitution. His contention was that Article 21 included the principles of natural justice in addition to being an enacted law.
Issues
Whether the Preventive Detention Act of 1950 violate Articles 19 and 21 of the Constitution.
Whether the procedure established by law under Article 21 of the Constitution is same as due process of law.
Judgment
The Judgment in this case was given by six judges with a 5:1 majority. The court rejected AK Gopalan’s arguments. The Court stated that personal liberty means freedom from the physical body and nothing beyond that. The Court, therefore, restricted the meaning of Article 21 of the Constitution.
The Supreme Court restricted the meaning of Article 19 of the Constitution as well. The court stated that only a free man could enjoy freedom under Article 19 of the Constitution.
The Court stated that Articles 19 and 21 of the Constitution are not related to each other. Article 21 provides protection against loss of personal liberty, while Article 19 provides protection against unreasonable restrictions. The Court, in its Judgment, made it clear that the “procedure established by the law” and the “due process of law” are different.
Only Justice Faizal did not favour this Judgment. He was of the opinion that detaining someone without valid reasons was illegal
After many years, in the case of Maneka Gandhi vs Union Of India, (1978), the Supreme Court overruled the Judgment given in this case and deemed Justice Faizal’s opinion to be correct. The Supreme Court also widened the scope of Article 21 of the Constitution.
S.P. Gupta v. President of India, (1981).
Facts
In S.P. Gupta v. President Of India, (1981), the petitioner challenged the circular letter that had been addressed by the Law Minister of the Government of India to all States except North-East States. This letter stated that the Chief Ministers had to obtain consent before the Additional Judges in the High Court could be appointed as Permanent Judges in the High Court of another state.
The petitioner here contended that this was a direct attack on the independence of the Judiciary and therefore challenged the constitutional validity of this letter. Two groups of petitions were filed.
A petition using writ of Mandamus was filed to move against the state
Issues
Whether the petitioner had locus standi in the matter though his legal rights had been violated.
As to had the final say in the appointment of judges.
Whether the independence of the Judiciary was affected by this circular letter.
Whether the non-extension of Additional Judge Mr S.N Kumar was considered valid.
Judgment
The non-extension of the additional judge, SN. Kumar, was considered valid.
Justice Bhagwati recommended a Collegium that would recommend the names of the candidates to the President for appointment as Judges in the High Court and Supreme Court.
Justices Pathak and Tulzapukar stated that the opinion of the Chief Justice of India was to be given validity over anyone else’s.
T.C. Basappa v. T.Nagappa And Another (1954)
In T. C. Basappa v. T. Nagappa And Another, (1954), the Supreme Court iexamined the writ of Certiorari in the Indian context. The Court, in this case, stated that it does not substitute the Judgment of a lower court by the use of this writ but rather examines the jurisdiction of the tribunal below as well as observes the qualifying conditions in the course of such a Judgment being issued. The scope and all the limitations of the writ were formulated in this Judgment.
University of Mysore v. C.D. Govind Rao (1965)
In University of Mysore v. C.D. Govinda Rao,(1965), the Supreme Court stated that the writ of Quo-Warranto can only be issued against an office of substantive nature. The petition in this case was against the appointment of a Research Reader in English by the University of Madras. The court stated that while filing such a petition, the Court has to be convinced that the office in question is in all cases a public office and that it is held by a person who does not have the legal authority to do so. In such cases, a person can file for the writ of Quo-Warranto
S. Govinda Menon v. The Union of India (1967)
In S. Govinda Menon v. The Union Of India, (1967), the Supreme Court stated that the writ of Prohibition can be filed when there is both the presence and absence of jurisdiction by a lower court. The High Court stated that this writ is mainly used by the Higher Courts to keep the lower courts within their jurisdiction.
The Petitioner prayed the High Court to apply its power under Article 226 of the Constitution to issue a writ of Mandamus. This was to direct a writ of Mandamus to conduct compulsory tests of the candidates contesting the Tamil Nadu Legislative Assembly Elections that were in process at that time.
This was in order to protect 6,29,43,512 voters from being infected with COVID-19
The court held that there were no grounds to file a PIL in this case and that it was Frivolous. The petitioner was asked to be more alert while filing such a petition. The suit was dismissed and the petitioner was barred from filing a PIL for a period of one year without taking prior leave of the Bench.
Lalit Valecha v. Union Of India And Others (2021)
In Lalit Valecha v. Union Of India & Ors, (2021), a PIL was filed in the Delhi High Court directing TV and New Channels to follow the code and ethics while they report content that is sensitive matters in funding those which are related to mass deaths and sufferings. The reason given was to curb the spread of negativity by restraining news channels from broadcasting such news. The petitioner argued that the freedom of speech and expression under Article 19 of the Constitution was not absolute.
The petition was dismissed on the grounds that reporting the number of deaths was not spreading negativity.
Rajeev Suri v. Delhi Development Authority (2021)
InRajeev Suri v. Delhi Development Authority, (2021), a petition was originally filed before the Delhi Court and was later transferred by the Supreme Court to itself. A challenge to the possibility of the Central Vista Project and the methods by which clearances were obtained for the use of the environment, heritage, and land was petitioned in this case.
The Supreme Court stated that this petition was a misuse of a PIL. The Court stated that it was not responsible for everyday governance but to ensure that the public interests of the people were not violated in any way, and in cases of violation, justice was given.
Writ
T. Venugopal v. The Assistant Commissioner (2014)
The petitioner in TVenugopal v. The Assistant Commissioner, (2014), sought a writ of Mandamus wanting to become the Poojari of Shri Chelliam cum Ayyanar Temple that was situated in Koonacherri Village. He stated that his ancestors had served as Poojaris in the Temple for the last 300 years.
The Madras High Court in this case stated that the writ of Mandamus couldn’t have been issued in this particular case because the Temple was under the authority of Tamil Nadu Hindu Religious and Charitable Endowment and the petitioner did not make a demand to the appropriate authority. The petitioner was asked to make an appropriate application before the appropriate authority.
The Court to which the writ of Mandamus was sought should not consider itself a court of appeal for deciding matters in relation to an administrative authority. Not only this, but the Court also cannot question the discretion of administrative authorities unless they are in violation of the law.
The Court in this case, stated that when there is a correction or interference with judicial orders of the Civil Court, under Article 227 of the Constitution, the High Court cannot issue a writ of Certiorari. Article 227 of the Constitution is rarely exercised by the High Court. The High Court only uses this Article to keep Courts and Tribunals within the limits of their authority.
Both civil and criminal courts can be examined under this Article only in exceptional cases where there has been a miscarriage of justice. This Article cannot be used to correct a mistake of fact and law.
In this case, a distinction has been made between Article 226 and Article 227 of the Constitution
The statement made in the Surya case was that the judicial order passed by the civil courts cannot be reversed or amended by the writ of Article 226 exercising power under the writ of Certiorari. Thus, the appellant moved before the High Court under Article 226, reasoning that a writ petition under Article 226 of the Constitution against a civil court is not maintainable.
Along with all the contentions of the Surya Case and the arguments of the petitioner, the court observed that-
The principles of prerogative writs used in English Law has no role to play in Indian Constitutional Law.
A writ of Certiorari can be issued by a higher Court to an inferior court in order for it to certify its record of examination.
A High Court cannot pass a writ to another High Court or a bench of the same High Court.
Due to the High Courts being constituted as inferior courts in our constitutional framework along with all the evidence presented before it, the High Court stated that
Judicial Orders of the High Court cannot be amended under Article 226 of the Constitution.
The decision given in this case was in contrast to the Surya case; hence, the decision given in that case was overruled.
Sarvepali Ramiah (D) Tr.Lrs. v. District Collector Chittor (2019)
On the grounds of illegality, rationality, the want of power, or irregularity in procedure, administrative actions are subject to Judicial Review under Article 226.
If there is an illegality or an error of law in the decision of an administrative authority, then the High Court can quash it.
The power of judicial review granted under Article 226 of the Constitution was directed both towards an order or a decision as well as against a decision-making process.
The power of a further appeal does not lie with the Court under Article 226.
The particular remedy that is available under Article 226 of the Constitution is only available when there is violation of a statutory duty by a statutory authority.
When the High Court exercises its power under Article 226 of the Constitution, it can only annul or quash the decision, but in Article 227 apart from these two powers, the High Court can substitute the impugned order/decision that has been passed.
When the cases are only related to contractual rights, writs cannot be filed under Article 226 of the Constitution.
The power of Judicial Review under Article 226 of the Constitution is a basic and essential feature of the Constitution.
Conclusion
In today’s times, every individual requires basic knowledge of some legal terms. Both PILs and writ petitions are useful mechanisms that help an individual or a group of people enforce their rights against any wrongdoing. At the same time, it is also essential to understand the difference between the two, as PILs are a form of writ and can be confused with a writ petition. Therefore, it becomes essential to understand the differences between the two, understanding the difference in the rule of locus standi in a PIL and a writ, the process of filing the two, the costs involved in filing a PIL and a Writ, and the situations in which he can opt for either a PIL or a Writ petition. Once a person understands that, it becomes easy for him to know whether he wants to file a PIL or a Writ Petition, what the nuances are involved, and when he might be required to do so.
Frequently Asked Questions (FAQs)
Is the mechanism of Public Interest Litigation and writ Petition the same?
The mechanism of a PIL is different from writ Petitions. The main point of difference between PILs and writs is that while in PILs the requirement of Locus Standi is waived, this is not the case when it comes to writ petitions. Also, filing a PIL is much cheaper than filing writ petitions. PILs are considered more important because they deal with matters of public interest, while writs are filed against violations of the fundamental rights of an individual, i.e., private interests. A command given by a Court is a writ. PIL is a form of writ, the only difference being that PIL is filed in matters related to “public interest”.
What is considered “public interest” in a PIL?
“Public Interest” is considered as practices that are used to protect the weak and marginalised sections of the society. These are affected to make a change in the present social policies in a way that would benefit the weaker sections of society and look after their interests.
Who can file a Public Interest Litigation?
Any person can file a Public Interest Litigation. The person’s private rights need not have been imputed or violated. A person can file a PIL in relation to any matter concerning “public interest”. Not only a person but even an organisation can file a PIL.
Which laws govern a PIL?
The process of filing a PIL is different in different High Courts.
A Public Interest Litigation can be filed in any High Court or the Supreme Court of India.
Is it possible for a writ to be issued against a private person?
Usually the issuing of writs falls under a public remedy and can only be issued against public bodies. A writ of Habeas Corpus can also be issued against a private body. Writs can also be issued against a private person if they are imposed by a private duty.
Can Courts entertain writ petitions when the contractual disputes in spite of an arbitration clause being present?
Courts in India have stated that they entertain writ petitions in exceptional circumstances although the parties might have an alternative remedy like arbitration. A few of these circumstances are as follows:
When the writ petition is for enforcing a fundamental right.
When the principles of natural justice are violated.
When a party commits an act where it exercises excess power
Against whom can a writ petition be filed?
Writ petitions are usually filed against the government or a body which exercises judicial or quasi-judicial functions, and public authorities which discharge some public function
Who can file a Writ Petition?
Any individual whose rights have been violated by some action or inaction of a public body carrying out functions of the state can file for a writ petition.
Is there any time limit prescribed for filing a writ petition?
There is no time limit that has been prescribed for filing a writ petition. However the Courts have stated in various Judgments that the filing of writ petitions should be filed within a reasonable time. If there is any delay then the parties concerned must show reason for such delay
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The concept of local self-government (LSG) first came during the time (1880-84) of Lord Ripon, the then viceroy of British-ruled India, in line with a resolved Magna-Carta. That was one of his acts of reform and so he was called the father of LSG. Independent India brought LSG into its ambit in a new version, so to speak. LSG covers both urban and rural organisations currently and the state has all exclusive roles on LSGs being covered in our Constitution under state subject. The Central Government has no role in the way these organisations run and function. For a long time, since 1947, the central government had direct control over LSGs and it was felt that the transfer of funds, function and functionaries directly to the LSGs would perhaps allow them to function transparently with independence and ease without any interference from the state government. The Constitution was thus amended for this purpose. Under the 73rdand 74thConstitutional Amendments, states are to take steps to organise village panchayats or urban bodies and endow them with such powers and authorities as may be necessary to enable them to function as units of self-government. In spite of these amendments, in most of the states, LSGs are not provided with the requisite power to function as independent bodies. They are facing a multiplicity of problems and factual analysis of the cause and effect appropriately by any facet of audit may rectify the difficulties and deficiencies as discussed below.
Fund crunch
LSGs need to manage their finances so that outside funds in the form of grants and assistance are needed the least. That was the motto of the 73rd and 74th Constitutional Amendments. The resource is thus to be generated. Sources of fund generation need to be tapped in time so that revenue from those sources may be generated.
In urban organisations such as Municipalities NACs, or commissionerate zones, the main problem is non-assessment of holdings, trades, etc. Statistics indicate that in more than 60 percent of cases, assessments have not been commenced. Internal or external audits in all such cases ponder over why the assessments have not been done and what the lacunae are. At times, internal audits never attempt to find the real fault with a real official who has neglected making an assessment. But an external audit examines all pros and cons to opine on a better option to proceed with the assessment. Cross-verification of the allotment of houses by various government agencies with the units assessed in the urban bodies can detect how many were left un-assessed. Other constructions directly undertaken by individuals may be monitored by agencies approving plan estimates for the construction of the houses. So auditing can better address the cause of the pendency of the assessments and with the rectification of all these issues, revenue in terms of holding tax with a larger number of fresh assessments will naturally increase. Therefore, the fund crunch may go away. But it may be noticed that the LSGs very much neglect this area. A good number of officials function in such a manner that assessment of fresh cases gets either delayed or not commenced.
Unplanned urbanisation
Rome is not built in a day. Urban development that was planned in 1950 is naturally far deficient compared with the needed development in 2023. So it can be termed unplanned now. Vision documents not prepared initially may be the cause. The audit on this front needs to check the available vision documents to suggest certain issues that need to be covered. A vision document should cover a minimum 20 years period. The document is definitely not rigid, as it needs revamping at every moment as per the need. The migration of rural masses to cities or towns to earn a livelihood is at its peak now, which was not so in 1950. With a heavily rising population, the government finds difficulty tackling unemployment. At the village level, no adequate provision of work is there for which people are being forced to migrate to cities. So there should be constant, flexible planning to avert such issues to the best possible extent. LSGs should see that sufficient scope is there for the local mass to get awareness timely to have employment and in this context, allotments given by the Government of India under the Mahatma Gandhi National Rural Employment Guarantee Scheme (MGNREGS) are noteworthy. Unemployment allowance is there under the Act in case a job applicant with an assigned job card is not provided work in a specified time frame. Thus, awareness of government schemes for the rural or urban masses may partially succeed in curbing the migration of rural masses to urban areas.
Excessive state control
Under the 73rd and 74th Constitutional Amendments, states are to take steps to organise village panchayats or urban bodies and endow them with such powers and authorities as may be necessary to enable them to function as units of self-government. States are therefore mandated to transfer all controls to the LSGs. An audit in such matters is to see the way the administration is affected. In planning, organising, directing, staffing, co-ordinating, reporting and budgeting, audit has its own say. Any deficiency at any point will result in management failure. An audit is supposed to find remedies, not exclusively fault-finding modalities. Something is not happening; the why concept here is most important and that part should be scrutinised with sincerity in the audit. An audit is to see and analyse the effects and prescribe ways of combating the bad causes. This can be achieved if communications from all fronts are kept open at all times. That means the auditee should be open to auditors. A patient should talk openly with the physician to get the best diagnostic treatment. A meagre failure may cause excessive drug abuse through excessive control for which LSGs, of course, have no possible remedy from their side. It is only government machinery that can address the cause. In any case, balanced control should be there—no excess or no less.
Multiplicity of agencies
Multiple agencies are working under LSG. Drainage, sewerage and sanitation are the agencies to work together for the effective functioning of the LSG. These three are there to perform in a manner to combat the health hazards of the people. Any deficiency with any agency affects the other. Similarly, the finance wing is linked with taxation covering assessment, tax demand realisation, etc. To make all linked agencies function efficiently, audits must adhere to the requisite knowledge. Generally, comments on delayed tender, tender fixing, delayed execution, improper estimation, delayed execution and revision of estimation during execution, employing the right manpower for sanitation, taxation or alike, help LSGs find their weak zone to be checked in detail for taking adequate measures for protection/precaution. Various yojanas form the burning point in the workings of LSG. We can take the case of Pradan Mantri Awas Yojana (PMAY). Under PMAY, one has to locate the eligibility first and then, based on the eligibility factors, beneficiaries are to be identified. Any deficiency in identifying beneficiaries will result in the greatest failure of the scheme. Often, it is noticed that political people get weighted in getting identified for their own benefit. This is highly irregular and against the spirit of the scheme. These points are to be kept in consideration.
Substandard personnel
LSGs are manned by substandard people who are mostly computer illiterate. In the present context, it is almost impossible to do work without a computer and these computer illiterates who were there in regular service can’t just be fired out. That is the greatest hurdle. They have to be trained in the best interest of the LSGs to cope with the work as per the needs of the moment. The same applies to audit mass. Audit people also can’t work without knowing the computer. Therefore, strengthening the internal audit of LSGs needs to train audit people on computers to manage their audit work efficiently.
Low level of people’s participation
LSGs can function satisfactorily with people’s participation and that is the requirement. But due to a lack of awareness or illiteracy, people fear participating. We can take a small example. Under the flagship programme of MGNREGA, job holders get paid by direct bank transfer (DBT). One can fairly argue that because of DBT, the payment is transparent. But this is not the reality. Middlemen do everything on behalf of the jobholder. The pass books are kept with them from the date of account opening, as are the withdrawal forms. Money can be drawn at the sweet will of the middlemen without the knowledge of the job-holder. So, to conclude, transparency is a myth. Audit people must have a basic idea of field facts.
Lack of conceptual clarity
It is a sorry state of affairs in many offices under LSGs that officers posted there lack conceptual clarity. An audit may find that in the execution of a work, the estimated cost and quantity of items tally with the execution pie to pie, even with the same record in the measurement book. An audit of the check may not find a single line objection. But the fact is that such works are just executed on paper and the entire fund has been misappropriated. To comment on this type of work, audits need to apply some other bent of mind as to when tendered, when estimated and awarded, how executed and in what period. When the work was measured, whether the estimate has been made in duplicate, etc. By linking all these points, an audit may possibly find some deviation to comment that the work has not been actually executed. To comment on a case like this audit really needs certain expertise.
Unscientific distribution of function
It may be seen that duty assignments are not present in many offices. Someone is flooded with work and others are having idle times. The auditor should insist on the duty charts. This may locate some idle manpower and the audit may observe them utilising them in some other offices where their job can most profitably be utilised.
Conclusion
The success of LSGs’ functioning depends upon generating revenues at their level with the least dependence on grants and government assistance. They can function effectively with functionaries at their level with little or no intervention from government machinery. The government should not utilise the services of the LSG personnel for purposes other than those for which they are meant. To use the personnel in an election or enumeration, much of the manpower is there without any LSG function. This very much affects the management of the LSGs. Strengthening LSGs will lead to a flourishing economy since LSGs function at the grass root level.
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Talent development is improving and upgrading the employee’s skills and proficiency to generate the proper goal or plan for personal development. Talent development is also important to organisations strategic planning for new recruitment and helps recruit highly knowledgeable employees. Nowadays, employees are also searching for a job where they can learn and develop their skills. The organisation trains programmers to choose the right candidates for the right training. Identity skill gap and help give the proper development pattern to the employees to achieve the organisation’s goal. Analysing the needs and essential configuration training. Targeted learning will be the method of increasing the employee’s working abilities and production.
Through targeted learning, employees will better understand their roles and responsibilities. Talent development is a two-way process between employees and the organisation. To develop learning, make employees professional and give leadership qualities for self-esteem.
Still, current organisations don’t have a talent development programme. The organisation won’t have the proper data or method to arrange the development learning programme. The employee has not been satisfied and has not completed daily routine responsibilities. The organisation will be investing in a learning programme that doesn’t have a proper format.
The organisation finds out what kind of skill training is required when employees do not meet their tasks. Identify the current skill situation of the employees and the ideal skill set based on the conduct of the training. The skill gap survey identified the type of training to provide in the long and short term. The skills gap survey recognises individuals with different backgrounds, capabilities and certain conditions.
Design the training topic in a very simple way to understand every employee and make it easy to implement in the job role. to make the necessary arrangements to smoothly go through the training session. Accordingly, design the training in such a way as to meet the employee’s and organization’s goals completely. The trainer is also supportive and a motivator to make employees and the organisation grow, and vice versa. If the training session is comfortable for the employee’s location-wise, mainly related material, take the feedback of the same accordingly.
Importance of talent development
The importance of telent development is explained below:
Motivate the employee
Talent development motivates employees to concentrate on their work and increase their production skills. They can request to upgrade the knowledge and tools to motivate employees to put in their new efforts, do the work and be satisfied.
Employee empowerment
Motivated employees build their confidence level and approach senior management to give them additional responsibility or authority to do the new role. Also, based learning development generates trust between organisations and opens up new opportunities for self-growth. Employees give guidance related to the job role’s technique.
Improved productivity
The employees can participate and show the output in minimum time or in other ways to create their own afford to improve the system or method of working. They manage the skill and use the tool to increase and improve the ability with productivity.
Growth
When doing multiple sets of sessions, the employees can complete the task faster and develop time management skills. This training also shows the current status of existing employees. Based on that, the employee and organisation are both growing and making profits. The training session makes an employee more efficient and upgrades their learning skills.
Help to retain employees
The employee gets motivated, which makes them feel satisfied with the organisation. They feel that learning or updating the skill makes the job easier. Also, new hires understand the process and existing employees improve the speed of work done.
Positive way
To keep an employee in the organisation long term save on recruitment costs and time. The employees become self-motivated so they consume or utilise the time. Learning session changes the desires of the employee’s attitude and makes confident behaviour. Targeted learning enabled the employees to meet their goals and achieve visible organisational performance. Handle the challenge of the job individually and be excited to learn new skills.
Feedback
Take the feedback from the employee based on that evaluation. To conduct the programme. The feedback also helps the organisation understand the employee’s skill needs and the organisation’s growth hindrances. To recognise employee growth towards job responsibility and boost employees’ engagement. While you measure the employee’s effectiveness and new learning ability. Overall, the organisation also set goals and reached higher levels of employee growth.
Role of targeted learning in talent development
Targeted learning plays a crucial role in talent development by providing a structured and focused approach to help individuals acquire the skills, knowledge, and competencies necessary to excel in their careers. Here’s how targeted learning contributes to talent development:
Customisation: Targeted learning allows organisations to tailor training and development programmes to the specific needs and goals of each employee. This personalisation ensures that individuals receive the resources and support they require to maximise their potential.
Efficiency: Instead of generic training programmes, targeted learning focuses on the most relevant and essential skills for a particular role or career path. This efficiency saves time and resources, allowing employees to develop expertise more quickly.
Skill enhancement: Talent development through targeted learning helps employees build and enhance critical skills directly related to their job roles. This can include technical skills, soft skills, leadership abilities, and industry-specific knowledge.
Career progression: By aligning learning initiatives with career paths, targeted learning helps employees prepare for advancement within the organisation. This can involve the development of leadership skills, project management abilities, and other competencies necessary for higher-level roles.
Retention and engagement: Employees who receive targeted learning opportunities are more likely to feel engaged and valued by their organisations. This can lead to increased job satisfaction and higher retention rates, reducing turnover costs.
Competitive advantage: Organisations that invest in targeted learning gain a competitive advantage in the marketplace. Well-trained employees are better equipped to adapt to industry changes, drive innovation, and deliver exceptional performance.
Adaptability: In rapidly changing industries, talent development through targeted learning helps employees stay up-to-date with the latest trends, technologies, and best practices. This adaptability is crucial for long-term success.
Metrics and Evaluation: Targeted learning allows organisations to measure the effectiveness of their talent development more accurately. By assessing specific competencies and skills, they can track progress and make data-driven decisions for improvement.
Conclusion
The study said that targeted learning always keeps employees more efficient and confident. Make them self-motivated to represent their related job skills in different ways. The purpose of the learning session is to boost productivity and knowledge. Targeted Learning sessions strengthen the bond between employees and the organisation. The employee feels comfortable and honest with the employer. To take the initiative to take on more responsibility and build career growth. While often employees improve their listening skills. Also, create a comfortable environment for new hires to learn new job responsibilities and introduce a new work culture.
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