What the Legalization of Same-Sex Marriages in the United States Means for India

July 6, 2015

This article is written by Rahul Bajaj, a student of Nagpur University.

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.” – Justice Anthony Kennedy in Obergefell v. Hodges

While the world is celebrating the U.S. Supreme Court’s historic ruling in Obergefell v. Hodges which recognized the fundamental right of same-sex individuals to marry each other, there are many who argue that the decision has no significance or relevance outside the United States and that it would be foolhardy to expect this landmark judgment to suddenly effectuate a paradigmatic shift in the societal conception of homosexuality. This judgment, they argue, was crafted in response to a specific set of circumstances by a handful of liberal-minded judges who arrogated to themselves the task of reinterpreting and reconceptualising certain facets of the American constitution to provide same-sex couples the kind of legal security and protection that no other organ of the government has hitherto been able to provide. It is submitted that this argument not only fails to recognize or appreciate the incremental sociolegal changes in the American society that laid the groundwork for this historic ruling, but, by extension, also fails to take cognizance of the fundamental insight that this decision reveals about how law is shaped by, and in turn shapes, social phenomena. While it may be true that the decision does not have binding legal force in countries like India, it would be very disingenuous to ignore the decision’s potential to positively shape social conversations, change minds, shed light on the constant struggles and challenges faced by this oppressed minority and ultimately restructure societies in ways that no one could have predicted a few years ago.

In order to better appreciate the positive impact that this decision is likely to have, it would be instructive to examine the principal arguments for the ostracization and invisibilization of homosexuals. While there are some who still believe that homosexuality is a disease which must be cured; a vice which must be curbed, the number of people who subscribe to this absurd conceptualization of homosexuality has decreased steadily over the years, to the point that hardly any well-informed critics of pro-gay policies or movements make this argument today. The main argument that is commonly made by anti-gay activists is that homosexuals cannot be fully integrated into extant social institutions and societal structures because to do so would be to change the very meaning, definition and nature of those social institutions. In other words, even if they recognize that homosexuality is an innate trait and is a facet of one’s personality and not something that one voluntarily chooses, the challenges associated with restructuring existing institutions that give meaning and purpose to our lives are considered so insurmountable that they effectively keep homosexuals beyond the scope of their purview. Further, those who subscribe to this viewpoint often rely upon the way in which these heteronormative institutions have functioned since times immemorial to argue that it would be undesirable and infeasible to immediately change their core features at this late stage. Indeed, this argument finds eloquent expression in Chief Justice John Roberts’ dissent in Obergefell, where he states: “The Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?”

The Court counters this argument at multiple levels. It explains how our understanding of social institutions and structures is informed by prevailing societal norms; how the abhorrent practices of racial segregation and coverture, which were once a central feature of American society, were later recognized as being incompatible and inconsistent with the values of a free democratic order predicated upon the principle of universal equality and how law must keep pace with changing needs and demands. In so doing, the Court arms pro-gay activists across the globe, especially in societies like India whose belief systems closely mirror those of the United States, with a robust precedent to substantiate the argument that a sizable portion of the population cannot be deprived of the opportunity to meaningfully participate in institutions of paramount importance only on the ground that they have historically not been a part of such institutions. Similarly, the decision offers thinkers an unparalleled opportunity to analyse and question the history of social institutions to better understand if such institutions have always been as guided by homophobic beliefs as most people would have us believe. Take, for example, Ishaan Tharoor’s analysis of Chief Justice Roberts’ assertion mentioned earlier, in which he comes to the conclusion that, contrary to what Roberts states, same-sex relations were, in fact, deeply embedded within the social fabric of the 4 tribes that Justice Roberts refers to.

Those who argue against judicial intervention for the vindication of the rights of homosexuals often state that unelected judges lack the legitimacy and popular support that is a sine qua non for bringing about such bold structural changes within the society. As a matter of fact, this is the principal ground upon which Justice Singhvi reversed the decision of the Delhi High Court in Naz Foundation v. NCT of Delhi, 160 (2009) DLT 277 and left it up to the legislature to decide, in its collective wisdom, whether Sec. 377 ought to be removed from the statute book. One finds this argument in Justice Scalia’s scathing dissent in Obergefell as well where he states: “to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.”

Justice Kennedy articulates the need for the Court to intervene for upholding the rights of gay people by relying on the due process clause of the 14^th Amendment which has had a formative influence on Article 21 of the Indian Constitution and has profoundly shaped its content and structure. More specifically, he explains how, judicial restraint, instead of allowing this issue to be resolved through the democratic process, would, in fact, merely perpetuate the ostracization of homosexuals and would ensure that they continue to be deprived of the opportunity to participate in the dignity-bestowing institution of marriage which provides a stabilizing structure to every family and forms the foundation upon which the edifice of larger social units rests. It would be apposite at this juncture to remember that the evolution of Article 21 has closely mirrored that of the 14^th Amendment and the expansive interpretation of Article 21 of the Indian Constitution that was adopted by the Indian Supreme Court in the case of Maneka Gandhi v. Union of India, AIR 1978 SC 597, to infuse within Article 21 a requirement of due process, was based on a number of formative decisions of the American Supreme Court. Therefore, the rejection of the judicial restraint argument by Justice Kennedy has a twofold significance. First, it clearly demonstrates how the failure of the judiciary to act decisively in such circumstances is not a virtue entailing no consequences, but in actuality merely provides legal legitimacy to actions that are discriminatory, unjust and inconsistent with constitutional values. Second, it brings into clear focus the need for courts across the globe to make important policy choices in cases of legislative inaction for the protection of historically marginalized minorities. Above all, it clearly shows how the law can be used as an emancipatory and equalizing force within the confines of widely accepted constitutional imperatives and interpretations. As Suirith Parthasarathi has eloquently argued in this piece, the decision brings into clear focus the need for the Indian Supreme Court to deeply reflect on its retrograde stance on this issue which has robbed a sizable portion of our population of the opportunity to freely exercise the liberties that our Constitution guarantees to every individual and has significantly undermined the strength of the Indian judiciary’s promise of structuring a legal regime that respects individual autonomy and dignity.

Finally, through his rhetorical flourishes, Justice Kennedy eloquently summarizes the centrality of the institution of marriage in the lives of most individuals and puts forth a set of cogent arguments for providing homosexuals the right to espouse its transcendental values. In so doing, he places marriage on a different footing than most other social institutions and helps emphasize the urgency of providing legal recognition to efforts aimed at securing marriage equality.

If there is one lesson that cuts across all social movements – from the struggle against racism in the United States to the anti-apartheid movement in South Africa; from the battle for the equality of the sexes to the movement against castism in India – it is this: Progress typically takes place in fits and starts; in short bursts and small steps; in changing public perceptions and societal conceptions. And then there comes a time when the movement reaches its crescendo – a time when, after long last, decisive electoral or legal victories overhaul and revamp existing institutions and pave the way for unprecedented integration and inclusion. I would argue that the decision in Obergefell v. Hodges was precisely that decisive moment in the fight for ending discrimination against homosexuals. To be sure, there is only so much that the stroke of a pen can achieve on its own, but it is not hard to predict the wider ramifications that this decision is likely to have when one analyzes it by situating it in its proper social context. By embracing the values of diversity and inclusion, this decision will go a long way in promoting unconstrained social conversations and creating secure free spaces for homosexuals to fully express themselves which, in the final analysis, are as important, if not more, than favourable legal codes.

Same sex marriage: should it be legalized in India?

Guest Post

July 5, 2015

This article is written by Divya Kathuria, a student of Raffles University

Introduction

“But the fact that same-sex marriage is still an issue is insane. Thinking love knows a sex is ridiculous.”- Garret Dillahunt (American actor)

“We will see a breakdown of the family and family values if we decide to approve same-sex marriage, and if we decide to establish homosexuality as an acceptable alternative lifestyle with all the benefits that go with equating it with the heterosexual lifestyle.“-Jerry Falwell

“I don’t think that a same-sex marriage is the way God intended it to be.“-Joel Osteen

The statements written above by various renowned people mentioned here at the beginning of the article do not intent to establish any opinion but, instead, these contradicting opinions are evident of the fact as to how debatable the issue has always been and how debatable it has now become all over the world when USA has legalized same-sex marriage on 27^th June, 2015 in Obergefell v Hodges.[1] Through this article, I intend to discuss if it should be legalized in India or not?

The discussion on this point would definitely have infinite opinions clubbed with variety of arguments ranging from scientific facts to mythological traditions. We here need to analyze as to which argument or opinion is important for society’s development.

I am at liberty to decide whom I would marry!

Isn’t it as simple as that? As long as I am not harming anybody, I am at liberty to do whatever I want to do. This is the simple form of JS Mill’s Harm Principle that actions of individuals should only be limited to prevent harm to other individuals. So, when I marry the person of same sex to me and it neither harms anybody nor the other person then, I am at absolute liberty to practice it.

Concept of self ownership

Idea of self ownership was given by Robert Nozick. As the nomenclature itself suggests, it means I am the owner of my own self. When I own myself, it is only I who will decide whom I should marry. State has no right to intervene in between because is State does this; it would mean that my ‘person’ belongs to State, not to my own self. If you own yourself, it follows that you have a right to determine whether and how you will use your self-owned body and its powers, e.g. either to work or to refrain from working. However, I do not support Nozick’s idea of minimal state but, the idea of self ownership is quite helpful in determining the rights of LGBT community.

Homosexuality in Hindu mythology

The main argument generally given against homosexuality is that it is against Indian Culture and moral values. It is similar to a situation when a butcher claims he is vegetarian. How can we say that homosexuality has been adapted from west when it is deeply imbibed in our ancient culture and mythology? It is pointless to argue against same-sex marriage on moral and cultural grounds because they undoubtedly permit it.

Homosexuality in the Vedas

The Vedas are the source Scriptures of Hinduism and are considered to be timeless and not composed by any author (not even by God Himself). Dating by modern scholars of these ancient Sanskrit texts range from 4000 BCE to 1000 BCE. Whatever be the case for the literary antiquity of these texts it is more important to consider their meaning and function in the Hindu world view. The Vedas are considered to be the source of, and infallible authority regarding knowledge of the Absolute (Brahman) and in all matters pertaining to Right Ethical Living (Dharma).
But the Vedas deal with Dharma in its pure abstract form — the function of the latter sages and law-givers was to interpret this usage of Dharma in the context of society and social dynamics of thetime.
Homosexuality is not mentioned per se in the Vedas but there are some interesting references to homo-eroticism. One is from the Kaushitaki Brahmana Upanishad 2:4 of the Rig Veda:—

“Now then the intense longing of love stimulated by the gods. When one (m) desires to be loved (priya) by a man or a woman or by men and women, he shall offer to the above mentioned gods oblations in the sacred fire”.

This is followed by the description of the ceremony to be performed. Another casual reference is from the Shatapatha Brahmana (2:4:4: 19): in which Mitra — the god of the day is said to implant his seed in Varuna the god of the night on the New Moon day.[2]

2. Homosexuality in Kamasutra

The famous Kama Sutra was a text considered as supplementary to the sacred law which deals in great detail with eroticism, sex and its various manifestations. It was written around the 4th century AD and describes customs and social conditions prevalent from about the 4th century BCE. It inspired many of the erotic sculptures found on temple facades. In this text lesbianism is described in detail, as well as the swapping of male female roles with the female being the dominant one and using accessories to penetrate the male. From the text we discover that male homosexuality formed an integral part of Indian sexual life and various homosexual practices are described in detail. We also learn that transvestite prostitutes as well as courtesans played an important role in public life and were considered harbingers of good fortune at weddings and religious ceremonies — a belief which is also prevalent in present day India. In his introduction the author sage Vatsyayana discusses categories of sexual partners in a quite non-judgmental way concludes the discussion with:- “To these must be added the third nature (tritiya prakrti), the inverts or the homosexuals who have particular practices and constitute a fifth category of sexual partners.” 1:27 Chapter 9 of the Kama Sutra is dedicated to oral sex in general with the major part dealing with this particular activity between men. Interestingly enough Vatsyayana also mentions that some people “marry” (parigraha) members of their own sex and live together either openly or in secret.[3]

3. The tantric tradition and homosexuality

Within Hinduism there are two principle paths to achieve liberation from the cycle of births and deaths and be re-united in the Divine from whence all beings have emerged. One is the exoteric path of the householder following social rules and regulations in accordance with the sacred canon law, and the other is the esoteric path of the monastic or renunciate who has rejected all of society’s arrangements and has retired to a monastery to spend the rest of the time on earth in contemplation of the Divine. There is a third path known as Tantra which reconciles these two extremes. It is known as the Path of ecstasy because it incorporates all aspects of the human nature and harnesses of one’s drives to achieve spiritual enlightenment. The principle axiom in Tantra is that every aspect of being can be useful in spiritual practice — including sexuality — as long as no one is harmed thereby. The overriding principle of Hinduism is that any act which intentionally causes suffering to another is sin. So in Tantra one is free to use one’s sexuality in a spiritual context as long no one is hurt thereby.[4]

The Tantra posits the idea that God is androgynous and that one who is in touch with both the male and female sides of their being are closer to the divine than others who are polarised in their sexual orientation. Although Tantra is overwhelmingly heterosexual in its methodology; the homosexual is by no means excluded, condemned or marginalized. Those practitioners of Tantra who are of the homosexual persuasion need to fill in the gaps themselves![5]

All these are certain instances which are a proof of the fact that homosexuality is nowhere ruled out by our culture while there are many more of such instances which ensure the presence of homosexuality in Indian culture.

Homosexuality is logically no offence

We punish a thief for stealing, a rapist for raping, a murderer for murdering. But, can we punish a girl for being a girl or a boy for being a boy? Obviously, No! So, why does our country punish homosexuals for being so? Although the cause of homosexuality has still not been determined exactly but, it depends somewhere on biology of the person that is, genes and somewhere on his personality that is, the social conditions and environment in which he has been brought up. Some scientists have intently tried to discover scientific proof that same-sex attraction is genetic. Some studies hint at a biological component, but have not proven that same-sex attraction is simply an inborn or biologically-determined characteristic.

Biology may play some small role in influencing behavior or feelings. Some people seem susceptible to particular actions and may be drawn toward them or become addicted to them more easily than other people. One person may be able to dabble with gambling, while another becomes a compulsive gambler. Some may drink only socially, while others have an unusual attraction to alcohol. Studies indicate that genetics may be a factor in susceptibilities to some behavior-related disorders, such as aggression, obesity, or alcoholism. Likewise, there are theories that claim biological predispositions influence the development of homosexual attractions when other life experiences are also present.[6]

Every person has a unique personality. We have different likes, desires, dreams, and moods. We see ourselves and the world in different ways and each of us hopes for something a little different from life. One child may be content with the affection he receives from his parents, while his sibling who receives the same attention feels a deficit and requires more. Some children seem content to play by themselves, while others who have many friends seem to need even more.

Many men with same-sex attractions have a heightened sense of emotional sensitivity which can make them vulnerable to emotional hurt when their high expectations are not met. Since we all have different needs and perspectives on life, it is easy to see why two people in the same situation will react differently. For one person, a negative situation may be manageable, while for another it is a devastating crisis.[7]

Professionals agree that environment influences a child in significant ways. Your family, friends, society, and experiences influence how you feel, how you view life, and how you act. Dr. William Consiglio refers to this myriad of social and psychological factors as a “conspiracy of factors,” meaning that many factors “conspired” or came together in the right amounts at the right time to divert sexual desires in you as a developing child toward other children. Some of these factors include your relationship with your family and peers, your ability to identify with masculinity or femininity, the degree to which your emotional needs are fulfilled, your feelings of self-worth, and early sexual experiences.[8]

However, homosexual character of a person is the net result of his personality, genes and developmental process and he cannot be blamed for any of these. One can say that a thief might also be a thief because he has been brought up that way but, there is a difference of night and day in the situation of an offender and a homosexual. An offender otherwise harms the society, but, a homosexual is not at all harming anybody in the society but, are just practicing their freedom and liberty. So, it is logically absolutely senseless to criminalize homosexuality.

Criminalizing homosexuality under Section 377 of IPC, 1860 is unconstitutional

It violates right to liberty conferred on us by Article 21 of the Constitution.

The fundamental right to liberty definitely includes right to private space. Jeevan Reddy, J in R. Rajagopal v. State Of T.N[9] held that right to privacy is implicit under Article 21. Any consensual sexual act between two individuals is their personal affair and any intervention in it by State would lead to disturbance in their privacy and thus, under Article 21 as well. In National Coalition for Gay and Lesbian equality v. Ministry of Justice[10], South African court held that, Privacy recognizes that we all have a right to a sphere of private intimacy and autonomy which allows us to establish and nurture human relationships without interference from the outside community. Even at the international level, the right to privacy has been recognized in the favor of lesbians and gay man.

2. It is unreasonable and arbitrary and thus is violative of Article 14 of Constitution.

Article 14 provides for equal protection of laws for all the people. However it permits classified legislation which in turn in tested upon two factors that is, the classification must be reasonable and there should be a direct nexus between the classification and object sought to be achieved by the legislation.[11] First of all, the classification under Section 377 is not reasonable because it has classified the people on the basis of their sexuality which is prohibited under Article 15 that is, one cannot be discriminated on the basis of sex. By prohibiting discrimination on the basis of sex, article 15 means that there are no standard behavioral patterns related to the gender. The prohibition on non-procreative sexual acts imposed by section 377 prescribes traditional sexual relations upon men and women and classifying them on the basis of their sexual orientation is thus arbitrary on the face of it.Secondly, the object of this provision is to criminalize all the sexual activities which are against the very order of nature. This means, according to legislature any kind of non-procreative sex is unnatural. The nexus between the act and the object is quite vague because it is based on the typical stereotyped notion that sex is only for procreation. Even if we accept the presumption that sex has to be only for procreative purposes then, what will justify the policy of family planning and contraceptive measures? It would then mean that one statute is clearly in contradiction with another.

Conclusion

However, despite all the arguments in the favor of homosexuality, we know that there will definitely be certain problems that might be faced by the country if homosexuality is legalized but, this does not mean that the minority rights of LGBT community should be suppressed. We obviously can’t make an omelet without breaking a few eggs. Every law when freshly introduced brings with itself various controversies and issues which can be easily tackled with the passage of time as law on any point would never stand still and will keep on evolving. So, there is no harm in legalizing the same-sex marriage in India as it will not only develop the society by recognizing the rights of minority but also, will be in accordance with the ancient culture of our country too.

[1] http://www.theguardian.com/society/2015/jun/26/gay-marriage-legal-supreme-court last visited on 2nd July, 2015

[2] http://history-of-hinduism.blogspot.in/p/homosexuality-and-hinduism.html

[3] Ibid

[4] Id

[5] Id

[6] http://www.samesexattraction.org/What-causes-same-sex-attraction.htm last visited on 2nd July, 2015

[7] Ibid

[8] Id

[9] 1994 SCC (6) 632

[10] 1999 (1) SA 6

[11] Chiranjit Lal v. Union Of India AIR 1981 SC 41

Jurisdiction of Courts in ecommerce transactions in India: where to decide the conflict of space

Guest Post

July 4, 2015

This article is written by Divya Kathuria, a student of Raffles University, Nimrana.

Introduction

No doubt can be posed to the fact that technology has helped our world grow but, it is even more clear that it has even created more chaos in our lives. One such chaotic facility today we have is of e-commerce transactions. Electronic commerce or e-commerce is a term for any type of business, or commercial transaction that involves the transfer of information across the Internet.

E-commerce is the trend today and many business transactions are going online. Individuals and business houses now do not deal directly with other business houses or individuals. Industrial revolution began with the end of 18^th century but, it does not seem that it has ended till now because industries of all kind are undergoing a revolution these days- the revolution of internet and computers. Business communities as well as individuals are increasingly using computers to create, transmit and store information in the electronic form instead of the traditional paper documents. Information stored in electronic form is very cheap, easier to store and retrieve, speedier, and long lasting, unlike paper documents. Now, business people have realized the advantages of business transaction in electronic form.

Another thing to be noted here is that whenever something new is introduced in society, it brings with itself its proc as well as cons. So, this age of internet revolution too has it’s proc and cons. To regulate these cons, our society needs law related to cyber space. One such law is IT Act, 2000 but, it is not at all enough. For the first time, a model law on e-commerce was adopted in 1996 by United Nations Commission on International Trade and Law (UNCITRAL). It was further adopted by General Assembly of United Nations by passing a resolution on 31st January, 1997. Further, India was also a signatory to this model law, and had to revise its national laws as per the said model law. Therefore, India also enacted the Information Technology Act, 2000.[1]

We need more regulations so that e-commerce transactions can work effectively and any dispute regarding these can be solved without any ambiguity. Through this article, I don’t want to highlight what problems the new technology of e-commerce has created for us but, what I want to highlight is the first step while deciding any dispute that needs to be taken effectively, that is, Jurisdiction. Before solving a dispute, it is very important to determine as to which court is competent to solve the particular problem.

Usually, in civil cases, the jurisdiction of the court is determined by various provisions of CPC, 1908. It is either where the defendant resides or where the cause of action lies. But, that is the exact impediment we face while deciding the cyber jurisdiction. The term ‘cyber-jurisdiction’ refers to the jurisdiction of those matters which were in conflict while parties contacted with each other through cyber space.

It is worth to be noted that cyber space is not a physical world that its place of jurisdiction can be easily decided. Instead, it’s a virtual world and that is why its jurisdiction too lies in space and thus, becomes too difficult to be determined. There is no street address and can’t be seen by eyes.

What till now has been decided regarding jurisdiction of ecommerce disputes?

Delhi High Court has many times tried to determine the jurisdiction of any disputes on the virtual space of World Wide Web. One such endeavor was done by the Hon’ble court in Banyan Tree Case[2] in 2009. The preliminary objection in the present case is the jurisdiction of the Delhi High Court. Interestingly, the Plaintiffs here did not rely on Section 134 of the Trademark Act to establish the jurisdiction of the Courts, but instead used Section 20[3] of the Code of Civil Procedure. The Plaintiffs averred in the plaint that the Court possessed the requisite jurisdiction since the services of the Defendants were being offered to residents of Delhi through brochures. Secondly, that the defendants’ website is interactive and is accessible from anywhere in India, and that “universality, ubiquity, and utility” of the Internet and the World Wide Web, all are indicative that the High Court possessed the jurisdiction to hear the matter. However, the court held that For the purposes of a passing off action, or an infringement action where the Plaintiff is not carrying on business within the jurisdiction of a court, and in the absence of a long-arm statute, in order to satisfy the forum court that it has jurisdiction to entertain the suit, the Plaintiff would have to show that the defendant “purposefully availed” itself of the jurisdiction of the forum court. For this it would have to be prima facie shown that the nature of the activity indulged in by the Defendant by the use of the website was with an intention to conclude a commercial transaction with the website user and that the specific targeting of the forum state by the Defendant resulted in an injury or harm to the Plaintiff within the forum state. Mere hosting of a website which can be accessible from anyone from within the jurisdiction of the court is not sufficient… Also a mere posting of an advertisement by the Defendant depicting its mark on a passive website which does not enable the Defendant to enter into any commercial transaction with the viewer in the forum state cannot satisfy the requirement of giving rise to a cause of action in the forum state.[4]

Another judgment regarding jurisdiction of ecommerce transactions came in 2014 from Delhi HC only. It was in WWE v. M/S Reshma Collections[5]. The Division Bench at the very outset agreed with the WWE that the issue of territorial jurisdiction is a mixed question of fact and law, and therefore, ought to be adjudicated at the final stage of the suit, and not at a preliminary stage of admission. Adding to this, the Division Bench held that the learned single Judge erred in returning the Plaint, as at the preliminary stage, only the averments of the Plaint should be seen, and if, on a demurrer, a case for territorial jurisdiction is made out, the plaint ought not to be returned.[6] In my opinion, the judgment of division bench had fundamental and basic errors. It is as simple as that we cannot climb the cliff with our first step directly on its peak. Similarly, when any case is decide, we need to go step by step and the first step. How can we first let the court solve decide the dispute and then determine if it was competent to do so or not? If it was incompetent then, what was the need to waste the court’s as well as parties’ time in arguing the case before a court which the court was not even eligible to hear. This is nothing but, logically senseless.

The Division Bench further clarified the law in relation to territorial jurisdiction by pointing out that in the Dhodha House v. S.K. Maingi[7], case itself, the Supreme Court had clearly observed that for the purpose of carrying on business, the presence of the person concerned at a particular place is not necessary, and must only conform with the three conditions to be fulfilled, namely that the agent must be a special agent who attends exclusively to the business of the principal; that the person acting as agent must be an agent in the strict sense of the term; and that to constitute ‘carrying on business’ at a certain place, the essential part of the business must be performed at that place. Acknowledging the growing concept of e-commerce models and the possibility of an entity conducting business only through a virtual presence rather than brick and mortar sales through a physical presence in a place, the Division Bench refined the applicability of this judgment, with emphasis on how to interpret what is actually meant by “carrying on business”.

The Division Bench, while extending the principles with respect to conclusion of contracts over the telephone to the facts of the case at hand, stated just how the Supreme Court in the Bhagwan Goverdhandas Kedia v. Girdharilal Parshottamdas & Co[8]. held that as the draftsman of the Indian Contract Act had not envisaged the use of the telephone as a means of personal conversation between parties, they had not intended to make any rule on those grounds. Similarly, “This applies with greater vigour insofar as commerce and business over the internet is concerned”. In deciding this, the Division Bench held that a contract formed over the Internet, just like a telephonically concluded contract, would not have been envisaged by the legislature. Thus, the legislature could not have intended to make any rule in that regard. The Division Bench accordingly interpreted the interactive website of WWE to constitute“invitation to an offer” for the sale of the Appellant/Plaintiff’s goods. The acceptance of this invitation by a customer in Delhi becomes an ‘offer’ made by the customer.

It is only when the transaction is confirmed and the payment is made to WWE through its website that WWE accepts the offer. Thus, under the provisions of the Indian Contract Act, 1872 read with the principles expounded in the Bhagwan Goverdhandas case[9], since the transaction between the two parties takes place instantaneously, the acceptance of the offer by WWE is communicated to the customer in Delhi, meaning that the contract is concluded in Delhi.

Consequently, the Division Bench found that since the offer is made in Delhi, the contract is concluded in Delhi and the money would emanate from Delhi, WWE is carrying on business within Delhi as the essential part of the transaction takes place there. Accordingly, the Division Bench held that “When the shop in the physical sense is replaced by the virtual shop because of the advancement in technology, in our view, it cannot be said that the appellant/plaintiff would not carry on business in India”, and therefore found that territorial jurisdiction may still be invoked by the Delhi High Court.

As per this decision (WWE v. Reshma Collections), the Plaintiff can institute the case where sales are made by it. Hence, the choice of forum is now as per the choosing of the Plaintiff if it makes sales across India. It means that it can now institute a suit in a civil court or a high court having original jurisdiction in such matters across India which is quite absurd because filing a suit anywhere in India might trouble the defendant and would defeat the very purpose of CPC. Also, this decision is limited to cases of copyright and trademark infringement and does not extent to passing off matters. For passing off matters (in which the trademark is not registered but has acquired secondary meaning), the High Court decision in Banyan Tree still holds the field.

Another point is that the number of available forums for the Plaintiff, especially an ecommerce retailer is large. The criticism by the Single Judge of this indicating the possibility of forum shopping by the Plaintiff seems credible. Many ecommerce and online retailers have forum selection clauses with customers. Usually they will be inapplicable to such cases since an alleged infringer is usually a third party and not a customer bound by the contract and hence the clause. However, if given a peculiar fact situation where this does occur, there is uncertainty how the Division Bench’s decision in WWE v. Reshma Collections will be applicable.

In the same year, there came an another case- Christian Louboutin v Nakul Bajaj[10] where the defendant sold the plaintiff’s products without permission through its website www.darveys.com, thus creating doubts as to the quality of those products in the minds of consumers. The plaintiff alleged that the defendant’s activities also affected the reputation of its brand and consumer goodwill towards it, and that continued use of its name would cause its luxury brand irreparable harm. The court granted an interim injunction restraining the defendant from selling unauthorized products.[11]

The Delhi High Court recently restrained online retailer Brandworld from using the brand name L’Oreal to sell or supply any goods, on any website or in any other manner, after the cosmetics company alleged that counterfeit products bearing its trademark were being sold by the merchant on its shopping website www.ShopClues.com.[12]

Solution and conclusion

As the present field we talked about is an emerging field in itself and so, it is quite obvious that the law related to it will also take some time to emerge and develop. Though India has started dealing with it by enacting IT Act, 2000 but, it still lacks a lot as no specific legislation governs online transactions and IP issues in India. The Information Technology Act, 2000 provides for the admissibility of electronic records and sets out offences and penalties for cybercrimes, etc. But, this is just an enabling statute to facilitate online transactions and thus has to be read in conjunction with the Contract Act in order to determine whether an online transaction constitutes a valid contract or not. the present Act too is not complete in itself and indicates that our legislature still requires to work a lot on this.

Further, when ecommerce takes place as B2C that is, business to consumer, then Consumer Protection Act, 1986 obviously has its role to play but, alas! It too does not talk about online transactions and on account of jurisdiction of various consumer forums, it gives only the brief account of pecuniary jurisdiction of the forums. There is a dire need for specific provisions for online transactions where directly consumer is involved. All businesses engaged in e-commerce should ensure that they take account of consumer protection issues.

Despite all the discussions, the gist of the article is that our country needs a specific law to decide the jurisdiction of Courts where dispute related to ecommerce transaction arises. This is so because a website can be accessed anywhere in India and thus, according to the precedents till now, plaintiff can institute the suit anywhere he wants without taking into account any of the defendants’ convenience thus infringing his right to fair, convenient and speedy justice.

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

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References:

[1] CYBERSPACE: JURISDICTIONAL ISSUES OF ECOMMERCE AND CONSUMER PROTECTION, Abhinav National Monthly Refereed Journal of Research in Commerce & Management(Volume 3, Issue 7 (July, 2014)) ‘Chetan Karnatak’

[2] Banyan Tree Holding (P) Limited vs A. Murali Krishna Reddy & Anr. on 23 November, 2009 by HON’BLE THE CHIEF JUSTICE and HON’BLE DR. JUSTICE S. MURALIDHAR

[3] 20. Other suits to be instituted where defendants reside or cause of action arises.

Subject to the limitations aforesaid, every suit shall be instituted in Court within the local limits of whose jurisdiction-(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or(b) any of the defendants, where there are more than one, at the time of the commencement of the suit actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or(c) the cause of action, wholly or in part, arises.¹[* * *][Explanation].-A corporation shall be deemed to carry on business at its sole or principal office in³[India] or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place.

[4] Supra 2

[5] On 15 October, 2014 by HON’BLE MR JUSTICE BADAR DURREZ AHMED and HON’BLE MR JUSTICE VIBHU BAKHRU

[6] Ibid

[7] 2006 (9) SCC 41

[8] AIR 1966 SC 543

[9] Ibid

[10] on 26 September, 2014 in the High Court of Delhi by HON’BLE MR. JUSTICE MANMOHAN SINGH

[11] http://www.worldtrademarkreview.com/Intelligence/IP-Lifecycle-India/2015/Articles/Protecting-brands-in-the-digital-space last accessed on 2nd July, 2015

[12] Ibid

Is stun gun legal in India?

Guest Post

July 3, 2015

This article is written by Rimjhim Vaishnavi, a student of NUSRL, Ranchi.

What are stun guns?

Stun gun is a device basically being used by police and by public in form of self- defence. It is used to temporarily injure a person through electric shock, with high voltage and low amperage. It basically makes the person disable for 20-30 minutes, as the electric shock disrupt the voluntary control of muscles through electric shock and does not cause any serious injury.

With increasing rate of crimes day by day, in order to protect oneself different mode of self-defence are being used one of it is use of stun gun.in many countries the use of stun guns are banned but in some countries like Australia, Japan, Italy, Canada, U.K. and India its use is not totally banned but is subject to tight restriction. Many states though provide ownership of stun guns but restrict o prohibits the person from carrying it to a public place.

Advantages of Stun Gun

Not only in India but all over world different countries have recognized the importance of stun gun. Some have legalised its use with proper restriction and some are about to legalise. It provides a new mean towards public security at the same time a peaceful method of prohibiting crime as it does not inflict severe injuries. Stun gun can be used both as a mean of security and as a mean of self-defence.

Advantages to police

As stun guns are looked upon as a low risk weapon it is being used by police officers in situations where the general public or the officers themselves face a severe threat or actual violence upon which no rigours action could be taken.

Also the Indian government is of the view to substitute the use of firearms by stun guns in controlling mob violence.

In Jammu and Kashmir stun guns are being remarkably helpful to the Indian Police and Central reserved Police Force personnel in controlling the aggressive protesters. Also in different states where the police and central security force are conducting joint anti-Maoist operation, stun guns are being used by them in their missions. Also stun guns are being used by National Security guards of India.

Apart from self -defence many law enforcement agencies of different countries have encountered that due to the use of stun gun to an extend there is decrease in use of rigorous and deadly force which has decreased the rate of injury to both public and the officials.

Advantages to general public

Increasing rate of crime against women and children resulted in a demand of new mode of self-defence, to which the use of stun gun satisfies. As being it less harmful one can use it as a mean of protecting oneself, if is legalised for public use.

It can decrease the rate of crime against women at the same time will not severely injure the person. Also it is seen that many time people commit crime and run away and hence it is difficult for police to catch them. As stun gun immobilises a person for 20-30 minutes one can use it against those offender and can help the police as well as can prohibit the commencement of crime.

Disadvantages of stun gun

Everything has its pros and cons, where on one hand stun gun are a mean of self -defence on the other hand the use of stun guns by Indian police has raised different issues relating to medico legal, social and ethical issues with regards to the use of it.

At the same time it can be used as an instrument of torture or a device used for illegally confining a person. Though the magnitude of injury which it inflicts is low but it if misused can mentally harm a person and if it is used upon an unhealthy person or is used recklessly it can cause death, hence there capacity should not be treated lightly.

Also there have been cases were stun guns have been used as a medium of child abuse and in some cases the children have died or have suffered trauma.

It can also be used as a medium to commit crimes like rape, abduction or human trafficking as it immobilises a person for about 20-30 minutes.

Also the use of stun guns by different countries and its recent introduction in Indian Law enforcement system is being protested by Human Rights Activists on the basis of social aspect where it agrees that it provides police official extra security but it has a dual impact on society. Where in one hand it helps the police to control the aggressive mobs, there have been cases in Kashmir where the police have misused stun guns by using it to injure peaceful protesters and other civilians.

Also Amnesty International considers it a high mean of torture by both police officials as well as by civilian if is being misused by them, and hence protest its use.

Apart from it use of stun gun on ill people, unhealthy people, children and pregnant women can result into negative cardiac and physiological effects.

Stun guns under Indian Arms Act

In India the use of stun guns are subject to legal restriction. Under the Indian Arms Act only a licensed police officials, NSGs can use it also under the situation where its use is found reasonable from the perspective of a reasonable officer who at the time was present in the scene. The law also limits the use to any dangerous individual and not on them who passively resist arrest.

Under Indian Arms Act, 1956 prohibits the possession of those arms which could be a threat to public peace or public safety which were of much greater magnitude compared to law and order. Hence on the basis of it, the concerned act prohibits a civilian in possessing a stun gun.

The use of stun gun in India is restricted to the police officials only. No person other than police officer can use it as it can be highly misuse, as has been mentioned above.

Possession, sale or use of stun guns in area where it is ban or by person who is not authorised by law to acquire it, can result into heavy fines or imprisonment or both.

Under law use of stun gun without authorization can lead to assault and one could be punished for this crime.

Conclusion

Therefore in India use of stun gun is restricted to the police officials, no civilian can possess it due to its high probability of being misused. The police officers also use it under some limitations and are used to subdue violence rather than inflicting punishment or pain. Also there is a need of proper training as how it should be used and upon whom it should not be used. Even though stun guns are considered to be safe, some incidents of injury and deaths have come up. Hence, more restriction should be imposed in the use of stun gun by police officials also, so that it could limit the misuse of stun gun by the.

Research shows that should not be used on children, pregnant women, heart patients and ill people as it can result into death. Also if it is being used recklessly by a person or without the knowledge about the proper working of it can also lead to the death of a person.

Hence, after determining the pros and cons of stun guns, it is observed that it can inflict more harm to people than helping them, keeping this in consideration the use of stun gun by public has not been legalised by the Indian Arms Act.

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

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References

J, “Injury patterns related to use of less-lethal weapons”
Sodhi, Prerna, “Self-defence:a double edged sword”, The Times of India, 2013

Puneet Bhasin, Cyber lawyer and consultant, GLC Mumbai alumnus on how the NUJS Business Law Diploma course helped her in advising startup clients

Guest Post

July 2, 2015

Puneet Bhasin is a practicing cyber lawyer in Mumbai. She has a flourishing practice before the Adjudicating Officer (under Information Technology Act) and has also advised several e-commerce businesses. She is a graduate of Government Law College, Mumbai and also has a LLM in Business Laws from Mumbai University.

Recently we talked with Puneet, when she told us how the NUJS Business Law Diploma course helped her in advising startup clients.

Over to Puneet.

I started practicing in 2011 and founded Cyberjure Legal Consulting. I specialize in E-commerce Laws, Cyber Crime litigation matters and Intellectual Property Rights in Cyber Space. I completed by B.L.S.LL.B. (5 years law course) from Government Law College, Mumbai. I have recently completed by LL.M.(Business Laws) from Mumbai University. Additionally, hold a Post Graduate Diploma in Cyber Laws and am a Certified Cyber Crime Investigator. For two years after passing out of law college, along with practicing I used to teach Cyber laws to lawyers and IT professionals in the Post Graduate Diploma in Cyber Laws at Asian School of Cyber Laws, however, I discontinued teaching there in 2014 due to increased work load and rise of cyber crime cases which demanded more time.

My work involves a lot of variety. There are different types of cyber crime cases like email scams, internet banking frauds, online matrimonial frauds. Also, there are mainstream civil and criminal cases involving digital evidence. I have represented major nationalized banks and E-commerce companies in cyber crime cases filed against them.

Cyber Laws has two sides to it, both litigation and corporate law related work. I work with a large number of e-commerce start-ups and most of them simply come with a business idea, so we invariably start with the co-founders agreement or MOU when the business is in the planning stage, then get them incorporated and get all the legal compliances in place. Thereafter, we handle all the cyber law compliances, Intellectual property rights registrations draft the terms of use, vendor agreements and privacy policy and cyber security of the portal. In most cases my association with the E-commerce companies continues on a retainership model.

Cyber laws is a very new field and that is why it offers a variety of cases. It is very dynamic because the types of cases and the modus operandi changes in short periods of times with advancement of technology and new hacking techniques.

I read about the NUJS Business Law diploma course on Facebook and I checked the curriculum and realized that the content could help me understand and work with start-ups. As at that point of time e-commerce was a nascent field and most players in it were start-ups, so being a cyber law consultant for them meant advising them right from scratch about how they should structure their company, keeping in mind an exit strategy.

I wanted to learn the practical aspects involved in structuring start-ups along with understanding investor trends and FDI concepts as there have been a lot of foreign investments in the e-commerce sector, so an understanding of the same was necessary for me to be able to advice my clients well.

The course was brilliant and was value for money from my perspective as it enabled me to provide niche advice to my e-commerce start-up clients. I wanted to learn the practical concepts of taxation and investment laws, and I learnt more than I expected. I definitely think legal practitioners practicing in courts can benefit from this course, because today lawyers are performing multiple roles of litigators, consultants and social services. I am a litigator and a consultant, and the course equipped me with the knowledge of business functioning in order to enable me to advise my clients well.

The modules on taxation, investment law, financial laws, structuring companies were very much relevant for me and my practice. These modules equipped me with information I needed to advise clients (especially e-commerce startups). Although I specialize as a cyber lawyer, I realized that as a retainer with companies, legal queries that I handle are not restricted to only cyber laws, and cover the broad spectrum of business laws too. Hence, even if one intends to specialize in cyber laws, it is important that one has a strong understanding of business laws in general, for success.

I have already recommended this course to many fellow lawyers. Specialization in one field is good but additional knowledge of allied fields opens up new avenues, as in my case it opened up the new avenue of not just cyber law compliances for E-commerce start-ups, but also handling all the legalities of their project from inception.

Whether a new owner of a building is required to pay the pending bills of the old owner?

Guest Post

July 1, 2015

This article is written by Lakshyajit Singh Bagdwal, a student of UPES, Dehradun.

Nicola Tesla once said “Invention is the most important product of man’s creative brain. The ultimate purpose is the complete mastery of mind over the material world, the harnessing of human nature to human needs.” One of the Inventions of man was Electricity which in today’s world is one of the most important source of power. Be it any form of economy or business i.e Primary, Secondary or Tertiary, everyone require electricity.

Because of the importance of this source, in today’s scenario we see a lot of disputes regarding electricity. One of the issues that have come up by analysing and referring to various cases is whether a new owner of a building is required to pay the pending bills of the old owner. When purchasing a property, no one generally bothers to find out about the status of the dues pertaining to electricity, water and property taxes etc. When such a deed is made for transfer of property, the new owner becomes the transferee and the old owner is the transferor and as per the general rule of law, a transferee is not liable for the dues of the Transferor. A particular clause has to be made in order to assure the payment of all the dues and liabilities attached to the transferor before the sale of the property was made. This could only be done by making a sale agreement after the sale deed is made. It is always advisable to have an agreement to sell in writing. It precedes the execution of a sale deed. This agreement is signed and executed by the seller and buyer on a non-judicial stamp paper. This proves as relevant evidence in the court of law in case of any dispute arising in the future. The Sale Agreement would act as a security to both the Buyer and the Seller of the property. Non-compliance of the sale agreement would lead to the Breach of Contract and will lead either of the parties to pay compensation for the damages caused to the other party to the Agreement. Generally the Sale Agreement contains a term clause saying “free from all types of encumbrances” which means that the new owner shall not be liable and is free from all the dues that are to be paid by the old owner. Thus, it would be advisable to have such term in the sale certificate of the premises as it would then restrict the Electricity Regulatory commission from not accepting the application for new connection of Electricity or from disconnecting the supply of electricity.

Another aspect that has to be kept in mind is that Electricity which has become a commodity now comes under the State list. Every State has its own State Electricity Regulatory Commission which looks after the terms and policies of the State’s Electricity affairs. These State Regulatory Commission are not only established for the administration and regulation of Electricity and Power industry in order to set tariff but are also there to protect the interest of the buyer and the seller of the electricity. Every State Regulatory Commission has to set its norms and policies in accordance with the guidelines set by the Central Electricity Regulatory Commission of India. This issue has been taken into consideration by few of the State Electricity Regulatory Commission. The case of Seema B .Kumar v. Assistant Executive Engineer, Kerala State Regulatory Commission and others,[1] disputed with a similar issue where the Petitioner’s bid for the purchase of the industrial premises of the seller was confirmed. Later when the Petitioner applied for the connection of Electricity to the Kerala State Electricity Board, her application was rejected on the grounds that the previous owner failed to pay the Electricity Bills and the application could not be accepted until the previous dues are paid. The matter later when to the Kerala High Court where the court dismissed the appeal on the ground of clause 15(e) of the regulations relating to Condition of Supply of Electricity Energy. Clause 15(e) stated “reconnection or new connection shall not be given to any premises where there are arrears on any account due to the Board pending payment, unless the arrears including penalty, if any, are cleared in advance. If the new owner, occupier or allottee remits the amount due from the previous consumer, the Board shall provide recommendation or a new connection depending on whether the service remains disconnected/dismantled, as the case may be.”

Thus it could be clearly seen and determined that the rules and regulation of State Electricity Regulatory Commission have to be complied with and should be adhered to.

The Apex Court of India i.e. The Supreme Court has also came up with a Judgement regarding this issue[2]. In this case the Transferee purchased the premises of transferor for Rs15, 25,000. The Haryana State Regulatory Commission granted a fresh electricity supply to the new owner of the premises but later issued a notice demanding Rs2, 39,251 towards arrears of electricity charges due by the previous owner. The supply was cut as the new owner did not pay the dues. The matter went to Haryana and Punjab High Court. The court held that the liability of the previous owner cannot be imposed on the subsequent owner. After the judgement was announced, the State Electricity Board took the matter to the Supreme Court. The Apex Court dismissed the appeal saying that the Board could not seek enforcement from the present owner for the liabilities of the previous owner since the present owner was the third party vis-à-vis the contract between the State Electricity Board and the previous occupant. The bench then laid certain guidelines for determining such disputes.

“The position therefore can be summarized as :-

Electricity arrears do not constitute a charge over the property. Therefore in general law, a transferee of premises cannot be made liable for the dues of the previous owner/occupier.
Where the statutory rules or terms and conditions of supply which are statutory in character, authorize the supplier of electricity, to demand from the purchaser of a property claiming re-connection or fresh connection of electricity, the arrears due by the previous owner/occupier in regard to supply of electricity to such premises, the supplier can recover the arrears from a purchaser.“

From the above guidelines of the Supreme Court we can clearly understand that as per the general rule of law, the transferee is not liable for the dues of the previous/old owner until and unless there is a statute that governs the interest of the parties. If there is a statutory provision which imposes the liability of the previous owner on the subsequent owner as we saw in the above case of Seema B .Kumar v. Assistant Executive Engineer, Kerala State Regulatory Commission and others, the new owner of the premises will be held liable for the payment of Electricity bills that are pending of the previous owner.

Similarly the Bihar Electricity Regulatory Commission has also declared that new Electricity connection would not be denied to the subsequent owners if the previous owner failed to pay the electricity dues. This was said by the bench comprising of chairman, U.N. Panjiar, and its member S.C. Jha, in an order. The order further said that the dues which are to be paid by the old owner would be recovered under the provisions of Bihar and Orissa Public Demand Recovery Act,1914. However, the State Electricity Regulatory Commission said that if the new owner is an associate or relative of the previous owner, as defined under section 2 and 6 respectively, of the Companies Act,1956, then such an applicant can be refused for new connection. The Bihar Electricity Regulatory Commission further states that the licensees would not refuse electricity connection to anyone on this ground, unless an opportunity to present their case is provided to the applicant and reasoned order is passed by an officer designated by the licensee for the purpose. The order of refusal shall be communicated within one month of receipt of the application.

The Uttar Pradesh Electricity Regulatory Commission has also clearly stated in there supply code under clause 4.3 (f) that it is the duty of the new owner or the new applicant for the fresh connection of electricity supply to verify that all the dues have been paid by the previous owner and has obtained no-dues certificate from the licensee. In case the no-dues certificate has not been obtained by the previous owner, the new owner may before the purchase of the property approach the Licensee for the no-dues certificate.

The Tamil Nadu Electricity Board has also in its supply code mentioned in clause 17(3) that in case the present owner of the premises intends to sell his property/building, then he has to a give a 3 months’ notice for the same to the licensee and clear all the dues up to the date of sale/disposal/lease. When such a notice is presented, the contract between the old owner and the Licensee will cease to operate from the date specified in the notice and the connection of electricity supply will be cut so that the new owner of the premises could apply for the fresh connection. [3]

A good part about the supply code of Tamil Nadu Electricity Board is that it has protected the interest of the new owner of the premises in case the old owner fails to comply with the above clause. Another clause i.e. 17(4) says that in case the old owner of the premises fails to give a notice for the sale or intension for sale of the premises as mentioned in clause 17(3), the Licensee shall have the right to claim for the consumption and dues that are to be paid by the old owner even after the sale/disposal/lease has taken place of the premises. In this way it has given a protection to the new owner from any dues that are to be paid by the old owner.

Even the supply code of Delhi Electricity Regulatory Commission (DERC) is similar to that of Tamil Nadu Electricity Board as it also mentions the same in clause 15(ii) as what is mentioned in the supply code of Tamil Nadu Electricity Board in clause 17(4).[4]

Thus by looking at the supply code of these State’s Electricity Regulatory Commissions, it could be clearly established that the State has assured to protect the interest of the new owner of the premises by creating a statutory authority for the governance of such issue so that the old owner can be held liable for such encumbrance. Also, the Supreme Court by passing several judgements has cleared this issue in the eyes of the law that in case of non-existence of a statutory authority, a new owner of the premises shall not be held liable for the dues of the previous owner as per the general rule of law but, if there is a statutory authority governing the same and according to that statutory norm, the new owner is bound to pay for the pending bills/dues of the previous owner, it becomes ultra vires of the court and if such issue goes to the court of law, then the court would be bound to pass a judgement in favour of the old owner and the new owner would then have to pay the dues of the previous owner.

[1] http://www.rediff.com/money/2004/jul/17spec5.htm

[2] Haryana State Electricity Board v. Hanuman Rice Mills, Dhanauri, (2010) 9 SCC 145 = AIR 2010 SC 3835

[3] http://tnerc.tn.nic.in/regulation/S%20Code/Supply%20Code%20Amendments%20upto%2031-12-2009.pdf

[4] http://www.delhisldc.org/Resources%5CSupplyCode.pdf

5 Challenges Young Real Estate Lawyers Face

Guest Post

June 30, 2015

This article is written by Anirudh Hariani, Hariani & Co.

Real estate law practice is a niche area of law practice, that most law students aren’t even aware of, which involves nuance, skill, diligence and creativity. Conveyance of property is one of the oldest legal art forms. Real estate law involves not only transactions but also practice in court – a large number of matters heard by superior courts are real estate disputes. While real estate practice is intrinsically fun, a young lawyer planning a career in real estate law needs to be aware of the basic day to day challenges she or he will face from the get go:

‘Title’ is a mess!

The very first step in a real estate transaction is to understand the flow of title (in loose terms, ownership) to the property. For this, we go through, with a fine-toothed comb, all the documents transferring title for at least the last 40 years.

The reason for this comes from Article 61 of Schedule I to the Limitation Act, 1963 which limits the period for a mortgagor to redeem or recover possession of immovable property mortgaged to 30 years from the date the right to redeem or recover accrues. Normally, in a Deed of Mortgage, the time prescribed for redemption is 3-5 years, therefore a period of 35-40 years usually suffices to obtain a safe opinion of the title to a property.

The title documents can be complicated and incomplete. Worse still, they can be lost or mutilated! The purchaser’s lawyer ought to be especially concerned if the original documents are missing as they may have been mortgaged or given as security to someone. In such cases, a revenue search in the government records can help, but this too is sometimes unreliable – government records are a jumble.

Negotiation is a game of chess

Negotiation in a real estate transaction can involve sitting across the table from the counterparty for days in a row to negotiate a single document. It’s tedious, but hey, real estate is so expensive, it’s worth fighting over! And there’s real strategy involved.

In new projects, the developer may not negotiate beyond a point with an individual purchaser of a flat, as he represents only a drop in the ocean of his total sales. However, if the purchaser is buying in bulk, or buying land – the developer or seller will be happy to negotiate with the purchaser. On the other hand, in the real estate flat resale market, it is more of a buyer’s market. There are fewer potential brides for a single groom. So, there is more scope for negotiation.

It’s raining suits!

No, not the Armani kind. Real estate is heavily litigated due to the high stakes involved. In real estate litigation, the interim stage is the most important. If a plaintiff succeeds in convincing a court that there is a prima facie case in his favour, and he obtains a stay, the property in question can be locked up for the next decade!

Document formalities

Documents transferring title to property from one person to another need to be registered in India. They are also required to bear stamp duty. In Maharashtra, stamp duty equivalent to 5% of the transaction value is required to be paid on the instrument of transfer of immoveable property. That’s huge!

A young real estate lawyer may come across cases where prior title documents are not properly stamped or registered. In such cases, broadly, those documents cannot be admitted as evidence in a dispute. Some documents need to be attested by witnesses, otherwise they are incomplete in law. Therefore, one needs to be careful while executing or verifying real estate documents, lest one is left with a paper which has no better use than to contain bhel.

Red tape

For builders, there is a never ending amount of red tape under various regulation and laws that they need to sift their way through. In Mumbai, for example, prior to commencement of construction, an Intimation of Disapproval and a Commencement Certificate is required. Several other approvals need to be obtained for construction depending on variables. A developer can’t give the purchaser of a flat possession unless he has obtained an Occupation Certificate for the building, otherwise the building may be condemned to be demolished, as in the famous Campa Cola case.

So, real estate due diligence can be tedious and frustrating, but once you get past these basic hurdles, real estate practice is actually quite satisfying, remunerative and exciting.

In order to boost and develop the real estate law practice in Maharashtra and to bring the best practices to the forefront, Hariani & Co., as part of its Silver Jubilee Celebrations, is organizing an Advanced 5 Lecture series on “Real Estate Laws”, in August 2015. The Lecture Series, supported by iPleaders and Government Law College, is to be held at Indian Merchants’ Chamber, Churchgate and will provide a hands-on, practical and exclusive peep into real estate law practice, and will be especially useful for young lawyers, real estate professionals, and final year law students. Watch this space for more details.

Disclaimer: This article is for informational purposes only, and not intended to be an advertisement or solicitation. This article is not a substitute for professional advice. Hariani & Co. disclaim all responsibility and accept no liability for consequences of any person acting or refraining from acting on the basis of any information contained herein.

Procedure To Change The Name Of A Company

Guest Post

June 29, 2015

This article is written by Ria Dalwani, a student of Symbiosis Law School, Pune

You’re 6 Steps away from a new name!

The company is an artificial person created by the procedures of law. Upon registration of a company under the Companies Act, 2013 (or the previous Act) , the corporate personality of the company comes into existence. A company has its own name and seal. The assets and liabilities of a company are distinct from that of its members, they belong to the company and not to the members of the company. The members of the company are the representatives of the company.

A public limited company must have a name wherein the word ‘Limited’ is the last word and a private limited company must have a name wherein the last words are ‘Private Limited’. The first clause of the Memorandum of Association of a company mentions the registered name of the company. In the event that the name of an existing company is changed, the name clause of the Memorandum of Association will have to be amended^{^[1]}.

When an incorporated company, proposes to change its existing name to a new name, the members of the company will have to follow the procedure prescribed under the Companies Act, 2013 and the Companies (Incorporation) Rules, 2014. The procedure to change the name of a company is methodical and procedural. Following the red tape will ensure a smooth transition from the existing name to the newly proposed name without any major hiccups. The new name can include addition of new words or deletion existing words. The newly proposed name should not fall under the ambit of ‘undesirable names’ as provided elaborately under Rule 8 of the Companies (Incorporation) Rules, 2014.

A company can change its name with the approval of the Central Government^{^[2]} (Presently, these powers have been delegated to the Registrar of Companies). The name of an incorporated company can be changed to a new name upon conversion from public to private, private to public or merely changing the existing name of a limited company to a new name. Nevertheless, the company does not require approval of the Registrar of Companies if the change involves the insertion or deletion of the word “private” in the new name.

STEP 1- Meeting of the Board of Directors

(a) Send a Notice to convene the Board Meeting
7 Days’ Notice
A Notice has to be sent to all the directors of the company to convene the Board Meeting. This notice must be sent not less than seven days prior to the date of the meeting. The notice should be given in writing to each director at his registered address by hand delivery, post or electronic means. The agenda of the board meeting should be attached to the notice.

Provision for Shorter Notice
The Board Meeting to change the name of a company can be convened at a shorter notice to “transact urgent business”. However, to transact urgent business at a shorter notice, at least one independent director has to be present in the meeting. In the event that an independent director is absent, the decisions taken at the meeting will be circulated amongst all the directors but can only be finalized upon ratification of at least one independent director, if any.

(b) Pass Resolutions at the Board Meeting

The quorum for a Board Meeting is one-third of the total strength of the directors or two directors, whichever is higher^{^[3]}. Participation of directors by video-conference and audio visual means is permissible.

At the Board Meeting, the proposal for the change of the name of the company and suggestions for the new name must be put forth.

Subsequently, two resolutions have to be passed.
Firstly, the Board has to pass a Resolution authorizing the Board of Directors of the Company to make an application to the Registrar of Companies for the reservation of the new name.
Secondly, the Board has to pass a No Objection Resolution approving the newly proposed name.

STEP 2- File form INC-1 (Application for reservation of name )

Make an application to reserve the proposed name with the Registrar of Companies

Thereafter, the company has to file Form INC-1 along with the application fee as prescribed in the Companies (Registration offices and fees ) Rules, 2014, with the Registrar of Companies to make an application for reserving the name^{^[4]}.

Form INC-1 is available on the website of the Ministry of Corporate affairs in an electronic form. The instruction kit provided with the form is helpful and self-explanatory. The form can be filled in English or Hindi Language with the assistance of a Company Secretary. The details for changing the name of an existing company are to be filled in Part B, Part C and Part D of Form INC-1. A copy of the Board Resolutions should be attached to the form in addition to the other requisite documents as directed in the form.

On reviewing the application, if the Registrar of Companies finds the newly proposed name eligible and in compliance with the law then it may reserve the available name for a period of sixty days from the date of the application^{^[5]}.

STEP 3 – Extraordinary General Meeting

(a) The Board has to call for an extraordinary general meeting of the company

The company will have to call for a Board Meeting. At the board meeting, the directors have to be informed that the Registrar of Companies has considered the application and the proposed name has been made available to the company.

The name clause of the Memorandum of Association can be amended with the approval of the Registrar of Companies as per Section 13(5) of the Companies Act, 2013. However, the Registrar of Companies will pass the order only on being satisfied that the creditors, debenture holders and and other persons connected with the company have consented to the alteration of the Memorandum of Association or that adequate provision has been made by the company either for the due discharge of its debts and obligations or that adequate security has been provided for such discharge^{^[6]}.

At this juncture, the Board has call for an extraordinary general meeting^{^[7]} to confirm the approval and consent of the members of the company.

Firstly, The Board must decide and fix a date, time and place to hold the Extraordinary General Meeting.
Secondly, The Board must approve the notice , agenda and explanatory statement that needs to be sent in accordance with the below mentioned specifications-

Notice to convene the Extraordinary General Meeting

21 Days’ Notice
The Board has to call for an extraordinary general meeting of the company.This notice must be sent not less than twenty-one days prior to the date of the meeting^{^[8]}. The notice should be given in writing or through electronic mode to every member of the company, the auditor or auditors of the company and every director of the company at their registered address by hand delivery, post or electronic means.

The Notice calling the extraordinary general meeting must specifically mention the intention to pass a special resolution.

The notice has to include the date, time and place of the meeting.

An explanatory statement^{^[9]} specifying the business to be transacted at the meeting has to be annexed to the notice. The explanatory statement specifies the nature of concern and interest, financial or otherwise, of the director, manager, key managerial personnel and their relatives. Further, the statement encompasses any informations and facts which will allow members to understand the meaning, scope and implications of changing the name of the company. It is advised to seek assistance of a Company Secretary while drafting the notice calling an extraordinary general meeting.

Provision for Shorter Notice
The extraordinary general meeting can be called at shorter notice if the consent of not less than ninety-five percent members eligible to vote at the meeting is given in writing or through electronic mode.

Thirdly, the board must authorize a Director or Company Secretary to sign and send the approved notice of the extraordinary general meeting to all the concerned parties.

(b) Pass Special Resolutions at the Extraordinary General Meeting

The quorum for a public company is five members personally present if the number of members as on the date of meeting is not more than one thousand; fifteen members personally present if the number of members as on the date of meeting is more than one thousand but up to five thousand and thirty members personally present if the number of members as on the date of the meeting exceeds five thousand. The quorum required for a private company, two members personally present, shall be the quorum for a meeting of the company. However if the Articles of Association provide for any other quorum, then the quorum requirements mentioned in the Articles of Association will prevail.

To pass a special resolution, the votes cast in favor of the resolution should be 3 times the number of votes cast against the resolution^{^[10]}.

At the extraordinary general meeting, pass a special resolution approving the change of name of the company and approving the alterations to the Memorandum of Association and Articles of Association wherever the name clause appears.

Additionally, it is essential to note that in order to constitute a valid meeting-

A proper notice must be served in the prescribed manner.
A quorum must be present and it must be properly constituted.
Proper authority must duly convene the meeting.
A chairman must preside.
It must be properly conducted.
Minutes must be kept of the proceedings.

STEP 4- File Form MGT-14 (Filings of Resolutions and Agreements to the Registrar)

The special resolution passed at the extraordinary general meeting has to be intimated to the Registrar of Companies [read with STEP 3(a) and Section 13(6)(a) of the Companies Act, 2013]. Resolutions are filed with the Registrar in Form MGT-14 .

Form MGT-14 is available on the website of the Ministry of Corporate affairs in an electronic form. The instruction kit provided with the form is helpful and self-explanatory. The form can be filled in English or Hindi Language with the assistance of a Company Secretary. A copy of the special resolution should be attached to the form in addition to the other requisite documents as directed in the form. The form has to be certified and digitally signed by a whole-time practicing Chartered Account or Company Secretary or Cost Accountant.

It is imperative to note that Form MGT-14 has to be filed along with the fee as prescribed in the Companies (Registration offices and fees ) Rules, 2014 within thirty days of the date on which the special resolution was passed at extraordinary general meeting.

STEP 5- File Form INC-24 (Application for approval of Central Government for change of name)

Rule 29 of the Companies (Incorporation) Rules, 2014 deals with alteration of the memorandum of association by change of name. Form INC-24 has to be filed with the requisite fee. Consequently, a new certificate of incorporation will be issued to the company in Form INC-25 once the change of name has successfully been processed.

However, a company which has defaulted in filing its annual returns or financial statements or any document due for filing with the Registrar or which has defaulted in repayment of matured deposits or debentures will not be allowed to proceed with the change of name.

Form INC-24 is available on the website of the Ministry of Corporate affairs in an electronic form. The instruction kit provided with the form is helpful and self-explanatory. The form can be filled in English or Hindi Language. A copy of the minutes of the extraordinary general meeting should be attached to the form in addition to the other requisite documents as directed in the form.

It is imperative to note that Form INC-24 also has to be filed along with the fee as prescribed in the Companies (Registration offices and fees) Rules, 2014 within thirty days of the date on which the special resolution was passed at extraordinary general meeting.

STEP 6- Wait till you Receive Form INC-25 from the Registrar of Companies and VOILA! The name of your company has changed to the new name.

^{^[1]} Section 13(2) and 13(3) of the Companies Act, 2013

^{^[2]} Section 13 of the Companies Act, 2013

^{^[3]} Section 173 (1) of the Companies Act, 2013

^{^[4]} Section(4) of the Companies Act, 2013 and Rules 8,9 of the Companies (Incorporation) Rules, 2014

^{^[5]} Section 4 (5) (i) of the Companies Act, 2013

^{^[6]} Section 13 (5) of the Companies Act, 2013

^{^[7]} The Board has the powers to call for an extraordinary general meeting under Section 100(1) of the Companies Act, 2013

^{^[8]} Section 101 of the Companies Act, 2013

^{^[9]} Section 102 of the Companies Act, 2013

^{^[10]} Section 114 (2) of the Companies Act, 2013

Analyzing Magna Carta: Then and Now

Guest Post

June 27, 2015

This article is written by Rahul Bajaj, a student of Nagpur University

At a time when democracies across the globe constantly pride themselves on being societies governed by laws and not men, there can be no better occasion than the 800th anniversary of the signing of Magna Carta to remember the foundational role played by this historic document in establishing the supremacy of laws over men. This document, whose creation was actuated by the desire of curbing and confining King John’s power of oppressing his people, especially the barons, through the imposition of unreasonably high taxes, improper seizure of lands, forest produce and raw material needed for growing crops without fair compensation, has come to be known as the foundation of liberty as it was the first document to embody Thomas Fuller’s famous cry: “Be ye ever so high, still the Law is above Thee.” Although only 4 copies of the document signed in 1215 are in existence today, its fundamental tenets have played an unparalleled role in positively restructuring societies characterized by unbridled autocratic rule by providing a legal and moral foundation for the creation of processes and institutions to hold those in power accountable and answerable to the masses; indeed, the origin of several fundamental concepts such as judicial review, separation of powers, collective responsibility and regular elections, sans which modern democratic societies would be nothing more than empty shells, can be traced back to the Great Charter. Above all, this document, which King John was forced to sign in light of mounting pressure by the Barons, is testament to the fact that collective citizen action has the power to institutionalize durable and transformational social change.

Key Provisions of the Charter and Short-term Impact

This 63-clause Charter, signed by King John at Runnymede Meadow in 1215, was not only designed to place the king under law, but also to put in place clear and definite principles to guide the actions of the King in his dealings with the Barons. Clauses 39 and 40 of the Charter, which, without doubt, have emerged as the most transformational and impactful provisions of this Charter in the last 8 centuries, read as follows: “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land. To no one will we sell, to no one deny or delay right or justice.” These provisions not only singlehandedly laid the groundwork for the creation of concepts such as trial by jury, procedural and substantive due process and habeas corpus whose importance cannot be overemphasized, but also gave expression to man’s hitherto ignored yearning of being allowed to structure his life within his private sphere in consonance with a set of definite and predictable rules; of being given a fair and impartial hearing before being convicted and, above all, of being judged by his own peers who are uniquely situated to understand his flaws and foibles and the unique set of circumstances which may have prompted his actions.

Most of the other provisions of the Charter dealt with the specific circumstances that were responsible for the political crisis of 1215, such as regulation and streamlining of taxes known as scutage and socage, removal of fish weirs from the Thames and other parts of England (clause 33), linkage of fines with the severity of the offence committed (clause 20), appointment of qualified and fair judges (clause 45), prohibition of forced widow remarriage (clause 8) and provision to make the marriages of noble heiresses more fair and transparent (clause 6). Significantly, it stated that no taxes could be levied without the ‘general consent of the realm’, thereby paving the way for a more participative and transparent tax structure, albeit one dominated entirely by barons and churchmen.

It is pertinent to note that the Charter was largely unsuccessful in attaining its short-term goal of structuring a more equitable and amiable relationship between the King and barons, because after the King expressed his dismay to the Pope about the manner in which the Charter was to be implemented and the barons refused to surrender control over London to the King due to non-implementation of the Charter, Pope Innocent 3 issued an order, known as a papal bull, on 24th August, 1215, calling the Charter ‘illegal, unjust, harmful to royal rights and shameful to the English people’ and declaring it ‘null and void of all validity for ever’. John’s successor, Henry 3, re-issued the Charter in 1216 and 1217 and finally in a heavily revised form in 1225 in return for a tax from the realm, and it was finally put on the statute book in 1297.

Long-term Impact in England

In a country lacking a written constitution, Magna Carta played a transformative role in the middle ages in shaping and influencing laws aimed at securing individual rights and liberties and curbing the use of arbitrary power. A clear manifestation of the Charter’s transcendental importance can be found in a statute enacted in 1369 under the reign of Edward 3 which unequivocally stated “If any Statute be made to the contrary, it shall be holden for none.” Furthermore, a number of substantive steps, later known as the six statutes, were taken by Edward 3 to flesh out the contours of the due process guarantee embodied in Clause 39 of the Charter and to broaden the scope of said Clause to include all men of every estate and condition within its ambit.

Magna Carta emerged as a powerful weapon against the royal absolutism practiced by James I and Charles I in the 17th century and formed the most integral pillar upon which the edifice of the theory of ancient constitution, most famously championed by Sir Edward Coke, was based. The bulwark of the ancient constitution theory rested on the belief that the English Constitution consists of a set of royal reaffirmations of English law, whose genesis can be traced back to Edward the Confessor, and Magna Carta was another such reaffirmation of the fundamental rights and liberties enjoyed by all men on account of the very fact of being human. The idea of a legal code circumscribing the power of the king acted as a powerful galvanizing force and eventually culminated in the Glorious Revolution of 1688 and the enactment of the Declaration of Rights which gave concrete shape to the principles that Magna Carta espoused.

In subsequent centuries, with the creation of new governmental structures and a more pragmatic and critical appraisal of history, Magna Carta came to be viewed as nothing more than an obsolete legal document whose only purpose was to create a modus operandi for grappling with a political crisis of limited significance. Further, the Statute Laws Revision Act of 1856, followed by the acts of 1861 and 1863 repealed large portions of Magna Carta which had become obsolete, as a result of which, despite its historical importance, the document is of very little, if any, practical significance today. The insignificant position of the document in British society is best epitomized by the fact that British Prime Minister David Cameron was unable to give the literal English translation for ‘Magna Carta’ or fully state the location of its signing when quizzed by an American talk show host in 2012. Indeed, a recent survey found that more Brits i.e. 90% have heard of the American Declaration of Independence than have heard of Magna Carta i.e. 85%.

International Impact

It would not be unfair to state that Magna Carta has had a far greater impact at the international level, especially and ironically in erstwhile British colonies, than in Britain itself for 2 important reasons. First, the circumstances leading to the creation of Magna Carta i.e. oppressive autocratic policies, public demand for greater liberty and autonomy and sustained collective action resulting in a favourable result, have deeply resonated with the masses fighting for independence from oppressive colonial rule over the ages and have emerged as an unparalleled beacon of hope and inspiration for the use of legal documents as instruments of political transformation. Second, countries that do not have a long legal history and codified robust protections for individual liberties have naturally been drawn to the ideals and principles espoused by the Great Charter which, naturally, have guided and informed their constitutions and founding declarations. America’s founding fathers often invoked Magna Carta in the course of their struggle against their colonial masters; when asked to justify the reason for Pennsylvania’s refusal to pay stamp tax in 1766 by the House of Commons, Benjamin Franklin principally cited Magna Carta to put forth the argument that the tax was not in consonance with the principles set forth in the Charter. The critical role played by Magna Carta in the formulation of the American Declaration of Independence of 1776 and the American Constitution of 1787, which for the first time explicitly recognize the need for the power of government to be predicated upon the consent of the governed, is best evidenced by the fact that the only monument in memory of the Great Charter at Runnymede was erected by the American Bar Association in 1957 in recognition of the inextricable linkage between the Charter and America’s founding documents. Realizing the venerated status of Magna Carta in American society, Winston Churchill took active steps for gifting one of its copies to the United States during World War 2, as the “only really adequate gesture which it is in our power to make in return for the means to preserve our country.” The Charter was first cited in an American Supreme Court decision in 1819 and has subsequently been cited in more than 100 decisions; Justice Breyer of the U.S. Supreme Court rightly noted recently that the Charter has been cited more by American courts than by British courts. Justice Anthony Kennedy recently remarked that the Charter is in his mind every single day as he begins his work and emphasized the importance of continuing the struggle for freedom that started in 1215.

Even in India, the Constitution, which, at root, is a social document, gives expression to the principles enshrined in the Great Charter 8 centuries ago in the form of fundamental rights embodied in Part 3 of the Constitution. Indeed, the Indian Supreme Court has traced the origin of Article 21 of the Constitution to Magna Carta. At the international level, the Universal Declaration of Human Rights was described by the chairperson of its drafting committee, Eleanor Roosevelt, as the “International Magna Carta of all men everywhere.”

Actual Importance: Separating Myth from Reality

While it is true that Magna Carta played an instrumental role in developing new principles that have emerged as the bedrock of modern democratic societies, it was by no means the first document to enunciate those principles. In eleventh-century Germany, King Conrad II agreed not to take the land of his knights away “save according to the constitution of our ancestors and the judgment of their peers.” Similarly, King Henry I of England issued the Charter of Liberties in 1100 in which he resolved to “abolish all the evil customs by which the Kingdom of England has been unjustly oppressed,” which essentially included the same practices that were addressed by Magna Carta 115 years later.

Many thinkers have argued that Magna Carta has been reinterpreted to read within it principles establishing the supremacy of law and free and fair trials which it was never designed to promote; it is nothing more than”an abandoned castle and a romantic ruin.”

While distortions of history, coupled with unwarranted rhetorical flourishes, have certainly glorified Magna Carta in ways that are difficult to reconcile with the practical purposes which the document was designed to serve, its importance in giving a concrete form and shape to the idea of creating a society governed by uniform and definite laws can hardly be overemphasized. Although it would be unwise to overlook the fact that Magna Carta was, in its most rudimentary sense, a pact between British elites to put an end to their constant squabbles and skirmishes, we would be well served to remember that the document does not claim to comprehensively and exhaustively delineate a set of principles that must lie at the heart of the concept of rule of law; instead, its importance lies in the fact that it was the first legal instrument to set forth the proposition that monarchical power must be subservient to a higher law, albeit in a specific context to deal with a specific problem at a particular point in history.

Challenges Faced By A Law Student While Preparing For CS Executive Exam

Guest Post

June 26, 2015

Exam — Hand completing a multiple choice exam.

This article is written by Ruchi Jain, a student of MATS Law School, Raipur.

Introduction

This article will enumerate the major challenges that are faced by a law student in preparing for the CS Executive level, according to the personal experience of the author. Well, to speak the truth, the major challenge I am facing is time management. Being a fourth-year student of law, I have to give more time to my semester subjects as all the subjects are now a bit technical. On top of that, preparing for the CS Executive level is not an easy task, even though 5 out of 7 subjects of Executive level are law subjects.

With the help of this article, the author will enumerate the challenges faced by the law student in preparing for the CS Executive level and will provide some possible solutions.

Challenges faced by law student while preparing for CS executive examination

CS executive is the intermediate level of the Company Secretaries course. The students after passing the CS Foundation exam can register for this level. The exams for the CS Executive level are held in the month of June and December. The students have to register 9 months prior to the examination. The most interesting thing about CS Examination is that a student can also complete his/her graduation and post-graduation with this course, except if you are a student of Delhi University (as they don’t allow students to do CA/CS while pursuing a course in their University). The CS Executive level is divided into two modules, first module consists of the subjects of Company law, economic and commercial law, labour laws, and cost and management accounting. Whereas the second module consists of subjects of company accounts, securities law, and taxation law.

Most of the subjects are of law. So one must think that it is very good opportunity for a law student to enrol into this programme. But to speak of truth, it is not so easy. The major challenge faced by a law student while preparing for a CS Executive level is time management. Being a law student, I hardly get time for my own. And on top of that preparation for the CS Executive examination gets really tough.

Another challenge that a law student face is to study all the law subjects in CS Executive programme along with the law subjects in his/her college. So this gets really complex. Another challenge is that the law students who do not have commerce background may face difficulty in studying the accountancy, auditing and management subjects.

Another challenge is that the law school examinations are also held in the month of June and December, so it will be difficult for a law student to manage these hurdles. The pattern of the examination paper of the CS Executive is both objective as well as subjective. Two subjects of Module I are objective and remaining two subjective. Similarly, one subject of Module II is objective and the remaining two are subjective. The objective papers are cost and management accounting, labour laws, and tax law. All these subjects are bit technical and to solve questions based on these subjects, you need to study in depth and you need to have practical knowledge as well. So this is also a challenge the students face while preparing.

Suggestions/Conclusions

Well wherever there is a problem there is a solution. There are some shortcuts the law students can apply while preparing for CS Executive level. First of all, one only needs 40 marks out of 100 in each subject to pass the examination. To make it simpler, the Institute of Company Secretaries of India has divided the subjects of CS Executive into 2 parts. 70marks questions come from one part and remaining 30marks question from second part. So all you need to do is study the second part at first thoroughly and have a read of first part, this will help you secure a minimum of 40% marks in the examination.

There is also one more provision provided by the Institute of Company Secretaries of India that, if a student has passed in 3 subjects out of four in Module I and if he has secured 60% from these 3subjects, then he need to give examination for the one subject only.

It is best to apply for the Company Secretaries foundation Course in the second year of your law school and after clearing it register for CS Executive Course in your third year, so that you can sit for CS Executive Examination in the first half of your fourth year. Till your third year, you will get the basic idea of all the subjects relating to law in the CS Executive syllabus. This will make things easier to clear the CS Executive examination in your first attempt.

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Challenges Faced By A Law Student While Preparing For CS Executive Exam

Introduction

Challenges faced by law student while preparing for CS executive examination

Suggestions/Conclusions

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