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Rajnigandha v. Rajnipaan : case analysis

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This article is written by Manya Sikka, pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho. This article deals with one of the most famous cases of trademark infringement. 

It has been published by Rachit Garg.

Introduction

A trademark aims to increase consumer welfare and captures attention to make the product stand out. They ensure the consistent level of quality of the product, which builds consumer’s trust in the product.

The doctrine of initial interest confusion is a deceptive method to deceive the buyer into buying the product and cause confusion among the population. They use the dilution theory to confuse or diminish the public’s perception of the famous mark. They use a trademark or trade name in commerce that is sufficiently similar to the famous mark of that association. In this case, “Rajnipaan” misled the buyers to turn “Rajnigandha” customers towards their product.

Facts of the case

Dharmapal Satyapal Limited was founded in 1929. It’s a multi-diversified corporation that commenced in the industries of food and beverage, confectionery, hospitality, mouth fresheners, pan masala, tobacco, agroforestry, rubber thread, and infrastructure. Primarily, they received a trademark for the mark “Rajni” in 1980 and later obtained a trademark under the name “Rajnigandha” in 1983.

In the case of Darmapal Satyapal Limited vs. Sunil Kumar Rajput, the court declared the mark “Rajnigandha” as a well-known trademark under Section 2(1)(zg) of the Trademark Act, 1999.

The defendant, Youssef Anis Mehio, launched a product of paan masala under the name “Rajnipaan” with deceptively similar packaging, color scheme, and font, which make it difficult for consumers to differentiate between the products. The defendant only replaced “Gandha” with “Paan” with the intention to ride upon the goodwill and reputation of “Rajnigandha”. The defendant is selling a product that is much inferior in quality to the product of the plaintiff.

In respect to their unique design, effect, sign, graphics, and style. The logos are artistic works under the definition of copyright, and the plaintiff’s company has owned the copyright over their logos since 1980. 

This is a known fact that many purchasers in India do not know the English language or the language in which trademarks are written, and many of them are illiterate, They cannot tell a difference between these products, which is causing the plaintiff to suffer irreplaceable losses in business as well as injury to the goodwill of their trademark and the reputation of their product.

Issues

  1. Whether the defendant is liable for trademark infringement
  2. Whether the doctrine of initial interest applies here
  3. Whether the defendant’s action amounts to passing off

Arguments

The party became liable when they in any way became part of the infringement, and all the defendants became liable when they infringed on the trademark of Rajnigandha by using likely packaging for their product.

Initial interest confusion is a legal doctrine under the Trademark Act of 1999 that permits the finding of infringement when there is temporary confusion that is dispelled before the purchase is made and the likelihood between the two goods makes it challenging for the consumer to distinguish amongst the products.

Passing off is defined under Section 27 of the Trademark Act of 1999, which refers to passing off goods or services provided by another person. They make a false representation and trick customers into believing that the goods or service are from another person. As in this case, the defendant also depends on the reputation of Rajnigandha to sell his own products.

Judgement

In the Delhi High Court, a suit was filed seeking a permanent injunction to restrain the defendants and all the others connected to them on this behalf, from manufacturing, selling, advertising, or dealing in this product in any manner. The plaintiff also prohibits “Rajnipaan” from using any word, including “Rajni” or “Rajnigandha” the color scheme, or any other mark that is deceptively similar to the product of “Rajnigandha”.

The plaintiff has been able to show that the defendant infringed the registered trademark by selling similar products with the identical trademark.   

The Delhi High Court judge, Jyoti Singh J., held the defendant guilty of infringement by dishonestly adopting a similar trademark and intentionally taking advantage of the prominence of the plaintiff goods.

The defendants chose to deliberately stay away from the proceeding despite various legal notifications. The court ordered ex-parte and interim injunction in favor of the plaintiff on November 29, 2018.

The court awarded 3 lakh rupees in damages to the plaintiff for the dishonest adoption of their trademark by the defendant. The case rests on the principle of initial interest confusion and the assumption that the infringement may be based upon confusion as no actual sale is made.

The order also states that the prayer for damages could not be entertained as no stocks were recovered or seized from the premises of the defendant by the local commission, which was appointed by the court to look into that matter.

Similar Cases

Marico Limited vs Agro Tech food limited (1st November, 2010)

The appellant filed a suit against the defendant, accusing him of using a similar trademark. The plaintiff claimed that they have registered the trademark under the name of LOSORB or LO-SORB, and the respondent has an unregistered trademark under the name of LOW ABSORB.

Plaintiff claimed that the terms LOSORB or LO-SORB are used for eligible oil, which is the technology for low oil consumption. The defendant is also selling the same product with a similar trademark, which causes initial interest confusion in this case.

The court ordered an ex-parte interim order in this case.

Dhunseri Tea & Industries Limited vs Dhunsiri Plantation Private Limited 

The plaintiff filed a suit for declaration and permanent injunction against the defendant. 

The plaintiff company exists within the limits of the Company Act, 1959. The petitioner has had a high reputation for selling and manufacturing tea since 1916, and the petitioner has been using the mark “Dhunseri” since then. They provide a high and non-compromising standard of quality to their customers. It is highly demanded and reputed in India because of the quality of the product. 

The plaintiff argued that the defendant adopted this trademark wrongfully and with an ill motive to ruin the reputation of the petitioner and trick customers into buying their product.

Both parties had applied to register the trade under Section 21(3) of the Trade and Merchandise Mark Act, 1958

The plaintiff was granted a temporary injunction and directed the defendant to file an objection to the application within a week of the temporary injunction.

Armour vs. Avengers (December 14, 2020) 

A suit was filed by the owner of the company “UNDER ARMOUR”, which is located at 102, Hull Street, Baltine, MD 2123, US. It is a registered company under the laws of Maryland, United States of America. The plaintiff has offices in many parts of the world, and he runs his business in India through the medium of the Internet. They deal in the manufacturing, selling, and distribution of various products related to sports like footwear, t-shirts, caps, jackets, and other accessories. The plaintiff has authorized Mr. Narender Singh to institute, verify, and pursue the present suit.  

They have a wide market in India and their growing popularity over the years makes them most popular and prestigious marks in India because they provide the best quality of products to their customers

In the month of June 2018, it came to the knowledge of the plaintiff that the defendants were dealing in manufacturing and selling the products of similar trade to the plaintiff. The plaintiff himself went to the defendant’s premises and bought a t-shirt from him that bears the identical trademark; the defendant’s fabric appears to be of average quality. They did not issue any receipts or invoices for the product’s sale to the customer. They have a huge stock of different categories that all bear the identical trademark.  

The huge loss to the business is also an injury to their goodwill and reputation, and if the defendants keep continuing their business, it will cause more harm to their upcoming business opportunities. 

Thus, the plaintiff claims relief pertaining to the infringement of copyright in logos under the Copyright Act, 1975. The plaintiff pleaded for an immediate order of injunction as well as damages in the suit. 

The plaintiff was awarded one lakh and eighty-five thousand rupees (1,85,000/-) damages. The plaintiff failed to provide any evidence regarding the loss of their business through sale infringement by the defendant; therefore, relief cannot be granted to the plaintiff for the same. 

Conclusion

The defendant dishonestly adopts a similar mark to “Rajnigandha” and just swaps “Gandha” for “Paan”. The plaintiff filed a suit seeking a permanent injunction to prohibit the defendant and all the others connected to them from communicating in this matter through any medium. The court ordered an ex-parte and interim injunction in favor of the plaintiff. The court awarded 3 lakh rupees in damages to the plaintiff for using deceptively similar marks.

There are many issues like this where people dishonestly or unknowingly infringe on the trademark of another person. For example, in the cases of Marico Limited vs. Agro Tech Food Limited (1 November 2010), Dhunseri Tea vs. Dhunseri Plantation Private, Under Armour vs. Avengers (December 14, 2020), and so on. 


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All about Tamil Nadu Judicial Service exam

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Judiciary

This article is written by Nishka Kamath, (team iPleaders) and edited by Vanshika Kapoor (Senior Managing Editor, Blog iPleaders). This article covers a plethora of information ranging from the important dates of the TNPSC Exam, the application process, the eligibility criteria, the age bar, the relaxations provided to several candidates, the process of selection, the exam pattern, the syllabus, tips and tricks for all the rounds, and the FAQs on the TNPSC Judiciary Exam, inter alia. 

Table of Contents

Tamil Nadu Judicial Service Exam 2023-24

Hello there! The gleaming star of the Tamil Nadu Judicial Service! I hope your preparation is going well. I am sure you all are aware that the Madras High Court issued a Notification in June 2023 on the recruitment process for the vacancies for civil judges in Tamil Nadu. I am sure you all must be fully prepared for the Prelims Exam to be conducted on 19 August! I am also sure that you all will be a little nervous at this time and will be pondering on questions like:

  1. How exactly will the Exam go? 
  2. What would be the outcome of the exams? 
  3. What sort of preparation should one do a month before the exam?

But worry not! This article is here for your rescue! Through this article, an attempt is made to enlighten you all on all the necessary information related to the environment, the syllabus, the books to refer to, the fees, and most importantly, the bifurcation of marks for all three stages, along with the marking scheme! 

So without further ado, let us dive straight into the Tamil Nadu Judicial Service Exam.

Tamil Nadu Judicial Service Exam : an insight

The Tamil Nadu Judiciary Exam is a prestigious exam conducted and administered by the Tamil Nadu Public Service Commission (TNPSC) for the role of judges in the Tamil Nadu Judicial Service department. This exam is highly competitive and follows a comprehensive selection pattern. The candidates are selected based on their performance in the TNPSC Civil Judge Exam, which has three rounds, namely, the Prelims, the Mains, and the viva voce round. The selection process may, at times, last more than a year. This exam checks a candidate’s knowledge of several legal aspects, along with their ability to understand and interpret a problem, their problem-solving skills, and their skillset to apply laws efficiently in such a situation. 

In order to ace the exam, it is essential to be eligible to appear for it, first. Secondly, it is crucial that one understands the pattern and the different modules of the Exam. Thirdly, it is also necessary to follow some tips and tricks to clear this exam, which is why the author has made an attempt to cover all the vital information, including the ones mentioned above, for a Tamil Nadu Judiciary aspirant.

Please note

All the candidates can edit and submit their online applications on or before 30th June 2023 (until 11:59 p.m.). After the date has been surpassed, the link will be disabled. However, it is noteworthy that the correction period will remain open from 05.07.2023 (12.01 A.M. to 07.07.2023 11.59 P.M). The applicants are permitted to upload/ re-upload the documents up to 24.07.2023 till 11.59 P.M, after which the link will be disabled.

Tamil Nadu Judicial Service Exam : warning

The official Notification has mentioned some pointers to warn the aspirants. They are as follows:

  1. All the candidates will be selected on merit-basis only. 
  2. Candidates should be cautious against touts and agents who may defraud them by claiming they will help them secure a job through unfair means.
  3. The Notification also mentioned that the TNPSC won’t be responsible or liable for any loss that an applicant may incur if they indulge in or resort to such unfair means with such unethical elements.
  4. It also states that the applicants are themselves responsible for their claims in the online application form. The service providers, like internet, cafes, browsing centres, and common service centres for internet, shall not be blamed for any mistake thus made by the candidate while filling out the online application. The candidates have to be alert and recheck the filled form before submitting it along with the necessary documents. The candidate may check Annexure E of the official Notification before submission. 
  5. Further, it also states that it is mandatory for the candidates to upload all the certificates or documents  (in support of all the claims made / details furnished in the online application) while submitting the online application itself. The candidates must ensure that they do not submit the online application form without uploading the requisite documents and certifications. 

Tabular representation of details of Tamil Nadu Judicial Service exam

Name of the Organisation conducting the examTamil Nadu Public Service Commission (TNPSC)
Official website of TNPSChttp://www.tnpsc.gov.in/ 
Minimum qualification Bachelor’s Degree in Law
Stages in examPrelims, Mains, Viva voce
Recruitment notice for post ofCivil Judge
Total no. of vacancies245
Date of Notification issued 1 June 2023
Last date to apply as per the Notification 30 June 2023
Online application correction window period 05.07.2023 12.01 A.M to 07.07.2023 11.59 P.M
Admit card release dateYet to be declared
Date of Prelims exam 19 August 2023
Date of issuing the Prelims exam results29 September 2023
Date of Mains Exam28 and 29 October 2023
Date of issuing the final result Yet to be updated 
Registration fees General category : 150/-
Prelims exam feesGeneral category : 100/-
Mains Exam feesGeneral category :  200/-
Mode of application Online
Mode of examOffline 
State Tamil Nadu Government Job
Credentials of the job Tamil Nadu Government Job (Judiciary Department)

Recruitment notice for Tamil Nadu Judicial Service exam 2023-24

The Tamil Nadu Public Service Commission (TNPSC) Recruitment 2023 Notification is out, and a whopping 245 vacancies are released for the post of a Civil Judge in the judiciary department of Tamil Nadu state. 

No. of vacancies

The Tamil Nadu Public Service Commission (TNPSC) Recruitment Department has issued 245 vacancies for the post of a Civil Judge in the judiciary department of Tamil Nadu state, taking into consideration the guidelines set forth by the Hon’ble Supreme Court in the case of Malik Mazhar Sultan vs. U.P. Public Service Commission [(2008)17 SCC 703], for the cadre of Civil Judge.

Tabular representation of the number of vacancies

PostNo. of vacancies 
Civil Judge245 (including 92 carried forward vacancies)

Eligibility criteria for Tamil Nadu Judicial Service exam

Before one decides to apply for the Tamil Nadu Judicial Service Exam, it is essential to know about the eligibility criteria of that Exam.  The TNPSC eligibility criteria are discussed below. 

TNPSC Civil Judge :  nationality

Candidates who are Indian nationals and possess India’s citizenship are eligible to apply for the TNPSC Civil Judge exam. 

TNPSC Civil Judge :  age criteria

There is a minimum and maximum age limit for candidates applying for the TNPSC Civil Judge exam. Below is a tabular representation of the same.

Category Minimum age limit (in years)Upper age limit (in years)
Fresh Law Graduates 2229
For Practising Advocates/ Pleaders and Assistant Public Prosecutors belonging to the SCs, SC(A)s, STs, MBCs/DCs, BCs, BCMs, and Destitute Widows of all categories.2542
For others, i.e., Practising Advocates/ Pleaders and Assistant Public Prosecutors belonging to the general category2537

Please note, under Section 64 of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016, for persons with disabilities, an age concession of up to 10 years is applicable. 

TNPSC Civil Judge :  educational qualifications

To appear for the TNPSC Civil Judge Exam in 2023, it is vital for the candidates to possess the minimum educational qualifications. The same has been discussed in a tabular format below:

Sr. no. CategoryQualifications 
1.For Practising Advocates/ Pleaders and Assistant Public Prosecutors1. Practising Advocates/ Pleaders, and Assistant Public Prosecutors in order to be successfully eligible to give the exam, must have a Bachelor’s degree in Law from an established University in India (the University must be incorporated by or under a Central or State Act) or from an Institution recognised by the University Grants Commission (UGC), or any such equivalent qualification. Further, the Practising Advocates/ Pleaders and Assistant Public Prosecutors must also be enrolled in the Bar Council of Tamil Nadu or in the Bar Council of any other State in India

and

2.1 Must be practising as an Advocate or Pleader in any Court when the Notification for recruitment was released. They must be practising for a period of 3 years at least on the date the Notification was released (in 2023, as of 1st June 2023) or
2.2 Must be an Assistant Public Prosecutor with an experience of 3 years at least either as an Advocate and/or Assistant Public Prosecutor.
2. For Recent Law Graduates 1. Must be a recent law Graduate with a degree in law from a recognised University, as mentioned in Clause-1 (above). 

2. Must be qualified to be enrolled as an Advocate

3. Must have secured an overall percentage of marks in getting the Bachelor’s Degree in Law as under: 
3.1 For Reserved Category [i.e., for the candidates belonging to SCs, SC(A)s, STs, MBCs/DCs, BCs
(OBCMs), and BCMs], a score of at least 45% marks is a must. 
3.2 For General Category/Others (i.e., for candidates from open category), a score of at least 50%
marks is a must.

4. The candidate must have obtained a Bachelor’s Degree in Law within a span of 3 years before the date of releasing the Notification.

Before applying for the TNPSC Civil Judge Exam, one must necessarily have a look at the above pointers and ensure all the necessary requirements are met for completion of a successful application.

Pointers to note as per the official notification

The 2023 Notification has also mentioned some noteworthy pointers for the candidates applying for the 2023 TNPSC Civil Judge exam, which are as follows:

Three year criteria 

Applicants who have enrolled as an Advocate but do not fulfil the three years criteria of practise under the Bar Council would be eligible to appear in the exams for recruitment of a Civil Judge, under the ‘Fresh Law Graduate‘ category, provided all the other criteria are met.

Educational qualification

The educational qualification prescribed for the post (i.e., the Bachelor’s degree in Law should be obtained by passing the requisite qualifications in the following order of studies:

  1. 10th+HSC or its equivalent, plus
  2. Bachelor’s degree as needed (the same is stated under Section 25 of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016.

Further, under Section 20(4)(iv) of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016, the results of the Exam should be declared on or before the date of releasing the Notification.

Submission of evidence

Candidates claiming possession of their qualification should upload and submit proof equivalent to the qualification as prescribed in the form of the Government Order, which will be published along with the Notification for the vacancy or before its release. A failure to submit the evidence may lead to the rejection of a candidate’s application, which is why it is advised to carefully read the instructions in the Notification. 

Further, as per the official Notification, applicants have to compulsorily upload their certificates/documents thus supporting all the claims made and/or details furnished in the online application, at the time of submission of the online application itself. The candidates should ensure that they do not submit the online application form without uploading the requisite documents. 

For candidates under the category of Practising Advocate 

In case the candidate is applying under the category of Practising Advocate, he/she must be practising as an Advocate in 

  1. Civil, and/or
  2. Criminal Jurisdiction

on the date of the Notification being released and must continue to be a Practising Advocate until the date of selection and appointment. Similarly, if the candidate is applying under the category of Assistant Public Prosecutor, he/she must be a Practising Advocate/ working as an Assistant Public Prosecutor until the date of selection and appointment. 

For candidates passed in 2009-2010 and thereafter to pass the AIBE Exam

All the candidates who have obtained a Degree in Law from the academic year 2009-2010, to be precise, after 1st June, 2010, and thereafter, have to pass the AIBE (All India Bar Exam) that is conducted by the Bar Council of India. However, this is not applicable for candidates who are applying under the ‘Fresh Law Graduate’ category. 

TNPSC Civil Judge : direct recruitment

A candidate, in order to be eligible for direct recruitment, must fulfil the following conditions:

  1. Must be a citizen of India and have its citizenship;
  2. Should have the knowledge to speak, read, and write in English and Tamil.

Please note : Applicants who do not have proper knowledge of Tamil language can also apply. Further, if they pass all the rounds and are selected, they should pass the Second Class Language Test in Tamil within the prescribed time period.

TNPSC Civil Judge : character and conduct

To be eligible for becoming a TNPSC Civil Judge, a candidate has to make himself/herself suitable in all respects for successful appointment to such an esteemed Service. A certificate of character and conduct that is to be given after the date of Notification from three responsible individuals that are not related to the applicant in the format prescribed under Annexure-A (a specimen of the same is mentioned below).

Please note: The English and Tamil original versions of the specimen can be referred to Tamil Nadu Public Service Commission (TNPSC) official circular.

ANNEXURE – A 

(Either in English or Tamil) 

CHARACTER AND CONDUCT CERTIFICATE (model) 

This is to certify that Mr./Mrs./Ms. ________________________, Son/Daughter/Wife of_________________________________, residing at _____________________________ ___________________ , who is applying for Civil Judge Recruitment 2023 (Notification No. ), is well known to me for the past _________ years, and his/her character and conduct are good. 

Date : / /                                                                              Signature of the person issuing this certificate                                                                                                                          

Place: 

Details of the person certifying 

Name: 

Address: 

Mobile/Land Line (with STD Code) No. 

Please note: If the information furnished in the Character and Conduct Certificate is found to be false, the certifying authority / person as well as the candidate are liable for penal action, besides disqualification of the candidate.

Some noteworthy pointers on TNPSC Civil Judge under the character and conduct category

  1. Out of the three individuals mentioned above-
  1. One must be a Senior Advocate or a Senior Counsel, or an Advocate who has been practising for not less than ten years at the Bar, 
  2. And the other two shall be responsible individuals, who are not relatives of the applicants, but are well acquainted with the applicant in the candidate’s personal life.
  3. Please note, in context to point c, stated above, that it is not necessary that the individuals thus certifying have to be a Gazetted Officer or a Government Servant, or even a Judicial Officer, for that matter. 
  4. No candidate shall be appointed for the post of judicial officer unless he/she has:
  1. Good mental health,
  2. Is physically fit,
  3. Is free from any disability (except a person who is claiming reservation under Rule 10).
  1. Further, before appointment, a candidate with a disability (who has enrolled under the PwD category) shall have to appear before a Medical Board constituted for assessment. This Board will examine the candidates to clarify if they are fit for appointment to the service and that their disability in no way hampers their performance of duty as a member of the service. 
  2. Further, it is crucial that the candidates satisfy other conditions prescribed for the appointment of the post of a civil judge.

TNPSC Civil Judge : disqualification for appointment

We have discussed all the specifications needed for being qualified as a Civil Judge under the TNPSC, now, let us have a look at some pointers for the disqualifications for non-appointment of the Service or being in service:

  1. All the candidates from the below category shall be disqualified from being appointed a judicial officer:
  1. Any candidate who has entered into, or contracted marriage or living in relationship with a person having a spouse living, or who, having a spouse living, has entered into or contracted marriage or living in relationship with, any person; or 
  2. Any candidate who has been debarred or had any sort of stigmatic termination from being a servant of the Central or State Government, High Court, Statutory or Local authority or from any employment, or
  3. Any candidate who, after being selected for the post of an Assistant Public Prosecutor, Judicial Officer, Government Servant, has been out of service or convicted, acquitted, discharged of any offence; or 
  4. Any candidate who has been temporarily or permanently banned by the High Court, the Union Public Service Commission, any State Public Service Commission or any other Recruitment Agency, Board or Commission, from giving any exam or interview for any selection procedure carried out by the above authorities; or
  5. Any candidate who has been dismissed, suspended or removed from their respective roll by any Bar Council; or
  6. Any candidate against whom any disciplinary proceeding has been initiated or any sort of penalty or punishment is levied or charged by the Bar Council or any Disciplinary Authority or Court, which, in the opinion of the Hon’ble High Court, considers the candidate unfit for being appointed as a Judicial Service Officer; or 
  7. Any candidate from the following positions- Assistant Public Prosecutor/Government Pleader/Judicial Officer, has been placed under suspension or against whom disciplinary proceedings have been initiated/contemplated, or pending either under Rule 17(a) or 17(b) of the Tamil Nadu Civil Service (Discipline and Appeal) Rules, 1973, or any other Rules.
  1. Further, if any candidate who, in spite of being an Advocate, was found guilty of professional misconduct by the Bar Council under the provisions stated under the Advocates Act, 1961 (Central Act 25 of 1961) or via any orders given by the Court or a judicial forum. 
  2. Furthermore, any candidate who is not successful in fulfilling the conditions prescribed in the “Rules” or any candidate who influences, tries to influence, or makes an attempt to take favour in any form at any stage of the selection process from a renowned personality or from a person with authority will also be disqualified from being appointed as a judicial officer:
  3. Moreover, any individual who impersonates himself/herself and does impersonation of a candidate, furnishes any forged documents, conceals or hides any material information, gives false statements or information, or makes any wrong claims at any stage of the selection process, or uses or attempts to use improper or illegitimate means either to be allowed to appear for the exam or at any stage of the Exam process or in the Exam room/hall will also be disqualified from appearing for the Exam. 
  4. Additionally, any individual who, while writing the exam (during the written Exam), harasses, threatens, uses ill-language, uses un-parliamentary words, causes physical harm to, or misbehaves with, any officer or employee who is engaged in conducting the exam, shall also be disqualified from appearing for the exam.
  5. Also, any candidate who disobeys the instructions related to the exam, including the oral directions given by the invigilator or observer or any other officer or employee who is engaged in conducting the exam, shall also be disqualified from appearing for the exam.
  6. Lastly, any candidate who makes an attempt to enlist support or canvasses in any form for his/her candidature, selection, or appointment, through persons of influence or officers of Government/High Court shall also be disqualified from appearing for the exam.

Tamil Nadu District Judge Eligibility : next steps

In order to understand the position and selection process, it is necessary that the candidates review the pointers related to the TNPSC Civil Judge exam eligibility, which are discussed below: 

  1. Once a candidate clears the three stages of the Exam, they must bring their original documents. 
  2. If the candidate does not successfully show confirmation of birth, he/she must create a birth certificate for the proper title of their age limit. 
  3. Further, a candidate needs to have expertise in Tamil and Telugu language. 
  4. A candidate has to promise they are in good mental health and are physically sound, only then will they be appointed. 
  5. It is important that a candidate’s character and conduct be pertinent to the position. Furthermore, it is crucial that they provide three-three character certificates from people unrelated to them, like that of an Advocate or a senior Advocate. 

TNPSC Civil Judge : self-declaration form

A candidate has to produce a practise /self-declaration/no objection certificate/service certificate in original-

For practising advocates

In case a candidate is applying under the category of Practising Advocate, he/she has to submit-

  1. The degree certificate,
  2. The Enrollment Certificate that is issued by the Bar Council, along with
  3. A self-declaration form that he/she has enrolled in the Bar Council and continues to be a practising advocate for three years or more.

The candidate has to attach the details of cases, conducted by him/her preferably for the last three years to fortify his/her claim of having been in active practice) to be uploaded along with the online application in the format prescribed in Annexure-D. 

For Assistant Public Prosecutors or Government Pleaders

In case a candidate is applying under the category of Assistant Public Prosecutor or a Government Pleader, he/she has to submit-

  1. The appointment order as Assistant Public Prosecutor or Government Pleader, 
  2. No Objection/Service Certificate from the Head of Department specifying the length of qualifying service of the candidates in the Format prescribed in Annexure-B.

Please note : Candidates who are appearing for the exam under the ‘Fresh Law Graduate’ category do not have to submit the Self Declaration prescribed in Annexure – D.

Specimen of Annexure D

Mentioned below is a copy of Annexure D taken from the official Madras High Court Recruitment Notification

ANNEXURE -D 

SELF DECLARATION 

I, hereby declare that I have enrolled in the Bar Council of ______________ vide Enrolment No.______________ and that I am continuing as a practising Advocate. I have completed _______years of practice as such as on the date of this Notification.

SIGNATURE OF APPLICANT 

DATE: 

PLACE:

TNPSC Civil Judge : certification of physical fitness

All the applicants that are selected for the appointment of the post of judicial officer will have to produce a certificate of Physical Fitness in the Form mentioned below:

Name of the postStandard of Vision Form of Certificateof Physical Fitness
Civil Judge Standard-III, or aboveFor posts other thanExecutive and Ministerialposts

Please note : The applicants with a defective vision should produce an Eye Fitness Certificate from a qualified Eye Specialist, before appointment.

Tamil Nadu Judicial Service exam

The selection process has three successive stages, namely:

  1. Preliminary Exam,
  2. Mains Exam s, and 
  3. Viva voce test.

Tamil Nadu Judiciary Preliminary Exam (100 marks)

To check previous years’ Preliminary Tamil Nadu Judicial Service exam question papers, click here.

The Preliminary Exam will be an objective-based, OMR (Optical Mark Recognition). The duration of the Exam will be 3 hours and will consist of 100 marks, 1 mark each. The passing works depend on the category a candidate is in. Candidates belonging to the SCs, SC(A)s and STs category have to score a minimum score of 30 marks to pass the Prelims Exam. For candidates belonging to the BC (OBCM)s, BC(M)s and MBCs/DCs, the category has to score a minimum score of 30 marks to pass the Prelims Exam. Candidates belonging to the category not stated above and fall in the ‘other’ category have to score a minimum score of 40 marks to pass the Prelims Exam. 

Procedure

The first stage, i.e., the Preliminary Exam, will be an objective-based Exam, and there will be a negative marking of 0.10 mark for every wrong answer thus marked. The Exam will be held for a duration of 3 hours and will consist of 100 questions for 1 mark each. The language of the Exam will be English and Tamil, both. The Preliminary Exam is conducted for shortlisting candidates for the next stages of the exam. Further, the marks scored by the candidate in the Preliminary Exam shall not be considered for determining the final order of merit of the candidates. 

To qualify for this Exam, a candidate has to score at least 40% in the exam if he/she is from the General Category and 30% and 35% if he/she is from any of the Reserved Categories (i.e., Scheduled Caste, Scheduled Tribe or BC (OBCM)s, BC(M)s and MBCs/DCs). All the candidates who successfully pass this Exam will be qualified for the next stage- the Mains Exam.

Word of caution

  1. Candidates who have not scored the aforementioned minimum passing marks as prescribed for the Prelims paper will be declared ineligible to participate in the next stage, i.e., the Mains Exam.
  2. The admission for the next stage, i.e., the Mains Exam, will be selected in a ratio not exceeding 10 times the number of vacancies, considering the rule of reservation. However, in each reservation group, all the applicants, who secure the same marks as that of the cut-off marks of their reservation groups, shall also be admitted to the Main Exam, even though the number of applicants to be admitted to the Main Exam may exceed the 1:10 ratio.

Tabular representation of the duration and passing marks of the Preliminary Exam

Duration and total marks of the Preliminary Exam
Subject Duration Maximum marks
Preliminary Exam 3 hours100 
Minimum passing marks of the Preliminary Exam
SCs, SC(A)s, STsBC(OBCM)s, BC(M)s and MBCs/DCsOthers 
30 marks35 marks40 marks

Syllabus for Tamil Nadu Judiciary Prelims Exam

The Preliminary exam is divided into three parts. The syllabus for the same is categorised as:

Part A

  1. The Code of Civil Procedure, 1908;
  2. The Negotiable Instruments Act, 1881;
  3. The Transfer of Property Act, 1882;
  4. The Indian Contract Act, 1872;
  5. The Specific Relief Act, 1963;
  6. The Constitution of India;
  7. The Tamil Nadu Buildings (Lease and Rent Control) Act, 1960; and 
  8. Tamil Nadu Regulation of Rights and Responsibilities of Landlords and Tenants Act, 2017 (Tamil Nadu Act 42 of 2017).

Part B

  1. The Code of Criminal Procedure, 1973;
  2. The Indian Penal Code, 1860;
  3. The Indian Evidence Act, 1872;
  4. The Criminal Law (Amendment) Acts;
  5. The Criminal Minor Acts (including Information Technology Act, 2000); 
  6. The Protection of Children from Sexual Offences Act, 2012.

Part C

  1. General Knowledge (Degree standard), and
  2. Test of Reasoning and Mental Ability (S.S.L.C. standard).

Word of caution for the Preliminary Exam

The minor Acts mentioned in the syllabus of the Preliminary Exam are only illustrative and not exhaustive.

For more information and relevant facts about the Tamil Nadu Judiciary Prelims Exam, kindly check the Prelims FAQs section.

Mains Exam (400 marks)

The Mains Exam is conducted via four papers

  • Translation paper,
  • Law Paper-I 
  • Law Paper-II 
  • Paper-III.

The duration for each paper is 3 hours, and the passing percentage is between 30 and 40 percent depending on the category a candidate belongs to. Everything is discussed in the upcoming paragraphs. 

Syllabus for Tamil Nadu Judiciary Mains Exam 

Tabular representation of the Tamil Nadu Judiciary Mains Exam

Paper Syllabus 
Translation Paper1. There will be passages for translation from Tamil to English language and English to Tamil.

2. Such passages are usually taken from pleadings, depositions, orders, judgements and documents.
Law Paper-IFor Law Paper-I, the syllabus will be mainly from:
– The Code of Civil Procedure, 1908; 
– The Code of Criminal Procedure, 1973; 
– The Indian Evidence Act, 1872;
– Principles of Pleading and
– The Constitution of India (as Amended), amongst other Acts.
Law Paper-IIFor Law Paper-II, the syllabus will be mainly from:
– Framing of Issues, and 
– Writing of Judgments in Civil Cases.
Law Paper-IIIFor Law Paper-III, the syllabus will be mainly from:
– Framing of charges, and 
– Writing of Judgments in Criminal Cases.

Now, let us have a look at each paper in detail.

Translation Paper

The translation paper will consist of 100 marks. The duration of Paper 1 would be 3 hours. 

For preparing for the Main Exams, namely the Translation Paper, for Tamil Nadu Judiciary, it is advised that one goes through  passages from the following documents, inter alia:

  1. Pleadings, 
  2. Depositions, 
  3. Orders, 
  4. Judgements and 
  5. Legal Documents.

Law Paper-I

Law Paper-I will consist of 100 marks. The duration of Paper-I would be 3 hours. 

For preparing for the Main Exams, namely Paper-I, for Tamil Nadu Judiciary, it is advised that one goes through the following subjects, inter alia:

  1. The Code of Civil Procedure, 1908; 
  2. The Code of Criminal Procedure, 1973; 
  3. The Indian Evidence Act, 1872;
  4. Principles of Pleading and
  5. The Constitution of India (as Amended), amongst other Acts.

Law Paper-II

Law Paper-II will consist of 100 marks. The duration of Paper-II would be 3 hours. 

For preparing for the Main Exams, namely Paper-II, for Tamil Nadu Judiciary, it is advised that one goes through the following subjects, inter alia:

  1. Framing of Issues, and 
  2. Writing of Judgments in Civil Cases.

Law Paper-III

Law Paper-III will consist of 100 marks. The duration of Paper-III would be 3 hours. 

For preparing for the Main Exams, namely Paper-III, for Tamil Nadu Judiciary, it is advised that one goes through the following subjects, inter alia:

  1. Framing of charges, and 
  2. Writing of Judgments in Criminal Cases.

Tabular representation of the subjects, duration and passing marks of the Preliminary Exam

Duration and total marks of the Mains Exam
SubjectDuration Maximum marks
Mains Exam12 hours in total(3 hours for each paper)400 
Subjects, duration and marks of each paper in the Mains Exam
Subject Duration Maximum marks 
Translation Paper3 hours100
Law Paper-I3 hours100
Law Paper-II3 hours100
Law Paper-III3 hours100
Total 12 hours400
Minimum passing marks of the Preliminary Exam
SCs, SC(A)s, STsBC (OBCM)s, BC(M)s and MBCs/DCsOthers 
30% in each paper35% in each paper40% in each paper

Points to remember for Tamil Nadu Judiciary Mains exam

  1. The question papers for Law Papers I, II, and III will be in both Tamil and English. All the papers except the translation paper can be answered either in English or Tamil, but not partly in Tamil or in any other language. Answer sheets written partly in Tamil or any other language will not be checked and will be considered invalid.
  2. All the candidates must appear for all four papers (the translation paper, Law Paper-I, Law Paper-II, Law Paper-III) of the Mains Exam in order to have their answer sheets evaluated. However, if the candidate(s) miss or are absent for any of the papers, all the other papers attended by them will not be evaluated.
  3. Those candidates who successfully secure the minimum marks for the Main Exam in each paper shall only be eligible for the next round, i.e., the viva voce round. 
  4. All the candidates have to compulsorily adhere to the instructions given by the TNPSC for the Preliminary and Mains Exam . In case if the candidate fails to follow them, the answer sheets of the candidate will be declared to be invalid.
  5. All the candidates must note that quoting the principle laid down or reiterated in any citation would be enough, and details of citation shall not carry any extra weightage; however, behind every wrongly quoted citation, the consequences could be detrimental to candidates. 
  6. Any representation of the candidates to change dates of the exams or the selection process, or for changing the Exam centre, or relaxation of conditions stated in the circular or guidelines on the Exam, or minimum marks to be qualified for the next stage, or requests for revaluations, etc., will not be entertained.
  7. All the directions/instructions/guidelines and formats issued regarding Exam should be treated as part of the advertisement or the circular by the candidates.
  8. Candidates for Viva-Voce test will be shortlisted from the successful candidates in the Main Exam in the ratio of 1:2 or 1:3 with reference to the number of vacancies as specified in “Instructions to Applicants” under the heading “Selection Procedure” .

For more information and relevant facts about the Tamil Nadu Judiciary Mains Exam, kindly check the FAQs section about the Mains exam.

Tamil Nadu Judiciary viva voce (60 marks)

The viva voce or interview round, will be 60 marks, and all the candidates (including that of the reserved categories) have to score at least 18 marks to pass this stage. Please note the following pointers for the viva voce round as stated in the Notification

1. The object of the viva-voce test is to assess the suitability of the candidate for the cadre by judging his or her mental alertness, general knowledge, knowledge of law, grasp of procedural laws and principles of law, clear and logical exposition, balance of judgement, skills, attitude, ethics, power of assimilation, power of communication, character, suitability, intellectual depth, the like of the candidate, his/her tact and ability to handle various situations in the Court, Administrative and Management Skills. 

2. Candidates of all categories who have obtained the minimum passing mark of 18 in the viva-voce test alone are eligible to be considered for the selection. 

3. The marks secured by a candidate in the Viva Voce Test shall be added to the total marks secured by him/her in the Main Exam. 

4. Since ‘Character’ and ‘Suitability’ of a Candidate are of utmost importance for being considered, for appointment to the Tamil Nadu Judicial Service as Civil Judge, the character and suitability of the candidate would be inquired into and verified by the Competent Authority.

For more information and relevant facts about the Tamil Nadu Judiciary viva voce stage, kindly check the FAQs section about the same.

Tamil Nadu Judicial Service : books to refer

Books to refer for Tamil Nadu Judiciary Prelims exam

Subject Name of the bookAuthor/Publisher of the book
General Preliminary Exam (all subjects)Ultimate Guide to the Judicial Service Exam 2018, by LexisNexis- for all statesM A Rashid
General Preliminary Exam (all subjects)A Compendium of Multiple Choice Questions for Judicial Service Exams Samarth AgrawalSamarth Agrawal
General Preliminary Exam (all subjects)Ready Reckoner for Judicial Service Preliminary ExamsSamarth Agarwal
General knowledge Upkar, Lucent’s General KnowledgeArihant’s General SciencePratiyogita Darpan– Lucent and Upkar’s Publication by Khanna and Verma
– Arihant Publications
– Pratiyogita Darpan
English– English – Objective General English
– For essays and grammar – Renin Martin
– Newspapers (like The Hindu- editorial section)
– R.S Aggarwal
– Nil
– Nil
Tamil– Daily Thanthi, 
– Hindu Tamil, and 
– Dinamani
Nil

Books to refer for Tamil Nadu Judiciary Mains exam

Subject Name of the bookAuthor/Publisher of the book
The Code of Civil Procedure, 1908– Civil Procedure, Limitation and Commercial Courts
– Universal’s The Code Of Civil Procedure
– C.K. Takwani
– Universal Law Publishing
The Negotiable Instruments Act, 1881– Negotiable Instruments Act
– The Negotiable Instrument Act, 1881 – Bare Act
– R.K Bangia
– Harsh Vardhan Singh
The Transfer of Property Act, 1882– Mulla on the Transfer of Property Act, 1882
– The Transfer of Property Act
– The Transfer of Property Act
– Dinshaw Fardunji Mulla
– RK Sinha
– S.N. Shukla
The Indian Contract Act, 1872– Avtar Singh’s Law of Contract and Specific Relief
– Law of Contract I and II
– Rajesh Kapoor
– S S Srivastava
The Specific Relief Act, 1963– The Specific Relief Act, 1963
– Specific Relief Act
– Avtar Singh’s Law of Contract and Specific Relief
– Pollock and Mulla
– Dr. R. K. Bangia
– Rajesh Kapoor
The Constitution of India– Bare Act
– Indian Constitutional Law
– V N Shukla’s Constitution of India
– Pratiyogita Darpan
– Nil
– M. P. Jain
– Mahendra P Singh
– Pratiyogita Darpan Editorial Board
The Tamil Nadu Buildings (Lease and Rent Control) Act, 1960Bare ActNil
Tamil Nadu Regulation of Rights and Responsibilities of Landlords and Tenants Act, 2017 (Tamil Nadu Act 42 of 2017)Tamil Nadu Regulation of Rights and Responsibilities of Landlords and Tenants Act 2017 As Amended by T.N. Act 39 of 2018 – English and Tamil VersionEditorial Board of Malathi Publications (Author)
The Code of Criminal Procedure, 1973– Criminal Procedure – R.V. Kelkar’s Criminal Procedure
– Bare Act
– The Code of Criminal Procedure
– Kn Chandrasekharan Pillai Rv Kelkar
– Nil
– S.N. Misra
The Indian Penal Code, 1860– P S A Pillai’s Criminal Law
– INDIAN PENAL CODE 
– P S A Pillai’s Criminal Law
– K.D. GAUR
The Indian Evidence Act, 1872– Bare Act
– V. P. Sarathi’s Law of Evidence
– The Law Of Evidence
– Nil
– K. A. Pandey
– Batuk Lal
The Criminal Law (Amendment) ActsCriminal Law (Amendment) Act and OrdinancesProfessional’s (Author)
The Criminal Minor Acts (including Information Technology Act, 2000Supreme Court on Information Technology Act, Internet and Cyber Laws and Aadhaar (1950 to 2019)Surendra Malik and Sudeep Malik
The Protection of Children from Sexual Offences Act (POCSO Act), 2012– Protection of Children from Sexual Offences Act, 2012 along with Rules, 2012 (POCSO)
– The Protection of Children from Sexual Offences (POCSO) Act, 2012
– Professional’s
– Ganguly

Books to refer for Tamil Nadu Judiciary viva voce round 

Well, there are no books per se for being successful in viva voce, however, one can refer to these books that improve one’s communication skills, which in turn might help the candidate in acing the viva voce stage just like the other two stages-

Name of the bookAuthor of the book
The New Lawyer’s Handbook: 101 Things They Don’t Teach You in Law SchoolKaren Thalacker
The Tools of Argument: How the Best Lawyers Think, Argue and WinJoel. P. Trachtman
Tomorrow’s Lawyer: An Introduction to Your FutureRichard Susskind 

Moreover, a candidate must explicitly focus on current legal affairs to ensure a reasonable discussion between them (the candidate) and the panel.

Tamil Nadu Judicial Service : selection process

The selection process for the Civil Judge Recruitment 2023 has three rounds, namely:

  1. Preliminary Exam, 
  2. Mains Exam, and the 
  3. Viva-voce round.

All the details on these Exams are discussed above. However, a candidate applying for the TNPSC Civil Judge Exam may take note of the following pointers:  

  • The first stage, i.e., the Preliminary Exam, will be a written exam and will be objective in nature. 
  • The second stage, i.e., the Main Exam, will be in written form and descriptive in nature.
  • The last round, i.e., the viva voce round, involves interaction between the candidate and the jury.

Final selection

Once a candidate has cleared all the aforementioned stages, they will be provided with an appointment letter. The candidates need to verify certain documents before their final appointment. Further, candidates are also asked to go through a fitness standard. The details are mentioned above

Tamil Nadu Judicial Service exam : application form and details

How to apply for the TNPSC Civil Judge Exam Application 2023

All the candidates willing to apply for the TNPSC Civil Judge Exam 2023 have to register and fill the Exam form. One can easily register by following these 10 simple and easy steps: 

  1. Visit the official TNPSC website. 
  2. Those candidates who have not registered before need to first register themselves with a One Time Registration (OTR). An application fee of Rs. 150/- has to be paid for the registration. 
  3. To register, candidates need to upload their picture, signature, and other documents mentioned in the registration form. 
  4. The above registration is compulsory to create an Applicant’s dashboard. This page will be valid for the next 5 years.
  5. After registration, a candidate must proceed to login using a unique ID and password. 
  6. After the candidate has successfully logged in, the candidate has to search for the TNPSC Civil Judge Recruitment 2023, and click on the “Apply” button. 
  7. Upon pressing the apply button, a form will open asking for the requisite details and documents. The candidate then has to fill in all the details and upload the documents. 
  8. The candidate has to preview the form and click on the “Submit” button.
  9. The candidate then has to pay the application fees mentioned under their category using any of the various payment options available. 
  10. After the form is successfully completed, it is advised that candidates take printouts and save an e-copy of the form for future reference.

Documents required for filling the TNPSC Civil Judge exam application 2023

Before a candidate begins the application process, it is advisable that they keep the following documents handy-

  1. Passport sizes photograph, 
  2. Marksheets and degree certificates, 
  3. Identity verification documents like
  1. Aadhar Card, 
  2. Date of birth certificate, or
  3. 10th certificate. 
  1. Signature of the candidate, 
  2. Registered number/email address, 
  3. Caste certificate, if applicable, 
  4. PwD certificate, if applicable, 
  5. Income certificate, 
  6. EWS certificate.

Tamil Nadu Judicial Service exam : application and exam fee 

One-time registration fees

Candidates have to mandatorily register their basic particulars through a one-time online registration system. The registration fee is Rs. 150/- (Rupees One hundred and fifty only). After successfully completing the registration process, one can apply for this recruitment. 

Please note :  The one-time registration fees will be valid for a period of five years, after which a candidate will have to renew it again by paying the prescribed amount of fees. Also, one-time registration will not be considered for applications apart from the TNPSC Judicial Service. 

Word of caution

  1. There are no other means or modes to apply for the application except online, and no other means or modes shall be entertained. 
  2. Further, it is advisable that a candidate read all the details mentioned in the Notification, the rules and instructions issued for filling out the online application form and the guidelines for making payment of the Exam fee online before filling the application for the available posts as per the Notification. They should also ensure that they fulfil all the requirements for eligibility before filling out the application form. 
  3. Moreover, candidates have to provide all the relevant information asked for in the form. Any defects thereto shall result in rejection of the application. Also, the application may be rejected in case of providing incomplete information.

Tamil Nadu Judiciary exam fees 

Category Additional information Fees 
Registration feeThere is a one-time registration fee (Revised with effect from01.03.2017 vide G.O.(Ms).No.32, Personnel and AdministrativeReforms (M) Department, dated 01.03.2017) to be paid and the same will be valid for a period of 5 years.
Please note : All the candidates who have registered in One Time Online Registration system and are within the validity period of five years are exempted from paying the prescribed amount of fees.
Rs. 150/-
Preliminary Exam feeA candidate has to pay the Preliminary Exam fee within the prescribed date of submission of the online application. In case that they are eligible for a concession (discussed below), they have to make the payment accordingly, and if not, they have to pay the prescribed fees.Rs. 100/-
Mains Exam feeOnly those candidates who have been qualified for the Mains Exam, i.e., cleared the Preliminary Exams round according to its results, will have to pay the fee of Rs. 200/- for the next exam. Further, the candidates should get a receipt of intimation from the TNPSC in case they are eligible for concession.Rs. 200/-

Word of caution

  1. It is compulsory for candidates to link their Aadhar Card number with  One Time Registration (OTR).
  2. As mentioned above, the OTR is valid for a period of 5 years from the date of registration, after which the applicant will have to pay the prescribed amount in case of renewal. 
  3. It must be noted that the OTR is different from the application for the exam and that an applicant has to fill out an online application form separately for each and every Exam he/she intends to appear for.

Concession in Tamil Nadu Judiciary exam fee

Sr. no. Category Concession
1. Scheduled Castes/ Scheduled Caste (Arunthathiyars)Full Exemption
2.Scheduled TribesFull Exemption
3.Persons with Benchmark Disability (PwBD)Full Exemption
4.Destitute WidowFull Exemption
5.Most Backward Classes/ Denotified CommunitiesThree Free Chances
6.Backward Classes (Other than Muslim) / Backward Classes (Muslim)Three Free Chances
7.Ex-ServicemenTwo Free Chances

Points to note

  1. All the instructions on concessions in Exam fees (for candidates of SCs, SC(A)s, STs, MBCs/DCs, BC(OBCM)s, BCMs, Destitute Widows, Persons with Benchmark Disability and Ex-servicemen) are  given in para 6 of the ‘Instructions to Applicants’ of the official Notification.
  2. Candidates claiming concessions referred to above and other claims made in the application have to provide proof of such a claim along with the application form. If the candidate fails to provide proof of such a claim, their application will be rejected after due process. 
  3. Please note, under Section 3(j) of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016, in cases of an Ex-serviceman who has been recruited for a post in any class or service or category, cannot claim the concession of being called an ex-serviceman for his further recruitment.

Word of caution

  1. The total number of free chances to be availed shall be determined on the basis of the claim that were made in the previous applications
  2.  Further, the number of free chances availed by the applicant may be rechecked and verified by the TNPSC at any point of the selection process.
  3. Candidate whose exemption for payment of fees was accepted when he or she made false claim for such an exemption, by suppressing information pertaining to his/ her previous application(s),  then in such cases he or she shall be rejected after due process and shall also be barred for a period of 1 year from appearing for any Exams and to be selected for such positions.
  4. Applicants  who are willing to appear for the TNPSC  judicial Service Exam  are advised to carefully choose the option of ‘Yes’ or ‘No’ regarding the fee concession.
  5. Furthermore, they are advised to keep a track of the number of times they have availed the fee concession, irrespective of the information displayed in the <Application History> of the applicant dashboard.
  6. Also, an applicant will lose one free chance  from the number of free chances allowed for fee concession, irrespective of the post he/she applied for.
  7. All those candidates who have availed the maximum number of fee canes prescribed against their category or those who do not wish to avail the fee concession or those applicants who are not eligible to get such a concession, shall choose the option of ‘No’ against the query regarding fee concession. All such candidates should then pay the requisite fee through the prescribed payment. 
  8. Any failure to pay the prescribed fees along with the online application, will result in the rejection of the application. 

Mode of payment for Tamil Nadu Judiciary exam

  1. The fees for the Preliminary Exam, i.e., Rs. 100/- (Rupees One hundred only), is only payable through the following means on or before the last date of submission by selecting the option in the online application.:
  1. Net Banking,
  2. Credit card, 
  3. Debit card.
  1. The applicants have to make payment of the service charges, as well. 
  2. Some applicants who fall into the concession category can avail themselves of an exemption from paying Exam fee as per the eligibility criteria. 
  3. Any offline mode of payment, like a Demand Draft, Postal Order, etc., will not be accepted, and the applications forwarded through such modes of payment will be summarily rejected. 
  4. Candidates who have registered in the One-Time Registration system and have made payment of the registration fee of Rs. 150/- and have received the registration ID are not liable to pay the Registration fee, i.e., Rs.150/- and payment of the Exam fee alone.
  5. All those applicants who have made One-Time Registration should pay the prescribed Exam fee for this recruitment, unless their fee is exempted. Please note, One–Time Registration is only to avail exemption from the Registration fee for a period of 5 years from the date of registration and will not be considered as prescribed Exam fee for this recruitment.

Tamil Nadu Judicial Service exam : admit card

Information on TNPSC Civil Judge Admit Card

A candidate has to ensure he/she takes the admit card to their Exam, for it contains necessary information like:

  1. The name of the candidate;
  2. The roll number of the candidate assigned for the Exam; 
  3. The venue; 
  4. The signature of the candidate; 
  5. Candidate’s passport sized photograph; 
  6. Time of the Exam; 
  7. Date of birth; 
  8. The rules and regulations of the exam; etc. 

Important points to note for the TNPSC Civil Judge Exam Admit Card 2023

  1. It is compulsory for the candidates to carry their admit cards, failure to which, they might end up not being allowed to enter the Exam hall. 
  2. If there are any issues with the admit card after downloading the same, the candidate has to contact the concerned authority immediately within the prescribed time limit, thus provided. 
  3. The admit cards will be released only on the official website (www.tnpsc.gov.in). 

Tamil Nadu Judicial Service exam : results and answer key

How to check the result for Tamil Nadu Judicial Service Exam

The results for the TNPSC Civil Judge Exam will be announced a few days/weeks after the exam is conducted. The procedure to download the result for the TNPSC Civil Judge Exam is as follows: 

  1. Go to the official website (www.tnpsc.gov.in). 
  2. Check for the results Notification. 
  3. Click on the direct link.
  4. A PDF will pop up on the screen containing a list of roll numbers and marks scored by the candidates. 
  5. Check if your will number is enlisted in the list. 
  6. Download and take a printout of the same for further reference.

How to check and download the TNPSC answer key

After a few hours of the Exam, the answer key is usually released on the official website of the Tamil Nadu Public Service Commission. The answer sheet could be used to ascertain and calculate the marks of the candidate. Following the release of the answer sheets, candidates are free to challenge the wrong answers and raise objections for the same, in the prescribed time period. The candidates can easily download the answer sheet by following the steps mentioned below:

  1. Visit the official website of the TNPSC.
  2. Look for the option “Result 2023”.
  3. Click on the answer key option.
  4. On the next page, look for “Civil Judge in the Tamil Nadu Judicial Service”.
  5. Click on the Exam date.
  6. A new window will pop-up showing the  answer key for the Tamil Nadu Public Service Commission 2023 Exam.
  7. Download the answer sheet to match the answers.
  8. Raise objections, if any, against any wrong answer. 

Tamil Nadu Judicial Service exam : cut-off 2023

Factors affecting cut-offs

Usually, the cut-off is released on the official website of the Tamil Nadu Public Service Commission. The cut-ff is influenced by several factors, some of which are as follows:

  1. The number of vacancies released (if the number of vacancies is higher, then the cutoffs are lowered too, as there are more seats and less competition).
  2. The number of candidates applying and participating in the exam (if the number of applications is huge, then the cutoff is increased, as the competition increases). 
  3. The category of the candidates (i.e., general or reserved).
  4. The difficulty level of the exam (if the difficulty level is tough, the cutoff is lowered as candidates tend to score less, and vice versa).
  5. The cut-off of the previous years, etc.

How to download the TNPSC Civil Judge cut-off

Candidates should check the official website to stay updated about the cutoffs. The cutoffs are released only after the exams are conducted. Mentioned below are the steps to download the cut-off for the TNPSC Civil Judge Exam 2023-

  1. Visit the official website.
  2. Search for the cut-off under heading “New” or “Candidates Corner”.
  3. Click on the link of the cut-off.
  4. A new page will pop-up.
  5. Download the document and save it for further reference. 

Tamil Nadu Judicial Service exam : number of attempts

There are no restrictions on the number of attempts per se for a candidate to attempt the Tamil Nadu Judiciary Exams. The best part of the TNPSC Exam is that there is no restriction unless a candidate has exceeded the maximum age limit prescribed by the Tamil Nadu Public Service Commission. Simply put, for a candidate belonging to the General category, he/she can appear for the exam until the age of 35 years, whereas, for candidates belonging to the SC/ST category can appear until they reach the age of 40 years

Tamil Nadu Judicial Service : job profile

The job profile of a TNPSC Civil Judge includes the following key points:

Judicial responsibilities

As a civil judge, the main responsibility is to preside over civil cases and render judgements based on the laws applicable to such cases and evidence thus presented.

Case management

Civil Judges are accountable for performing several tasks, like-

  1. Managing caseload,
  2. Conducting hearings,
  3. Examining the witness(es), and
  4. Evaluating evidence to arrive at a fair and just inference.

Legal research

Civil judges have to conduct thorough research on relevant legal precedents, statutes, and case laws to make sure they are applying proper laws in their judgements.

Court proceedings

As a civil judge, it is crucial that the judicial officer looks after the court proceedings, maintains decorum, and ensures every party gets a fair trial and just practises are followed to reach an inference. As judicial officers, the judges have the authority to issue orders, summon witnesses, and administer oaths.

Dispute resolution

Civil judges play an important role in resolving disputes on civil matters, including matters related to-

  1. Family,
  2. Contracts, 
  3. Property, amongst other civil matters. 

Interpretation and application of laws 

One of the major roles a civil judge plays is interpreting and applying laws to specific cases, considering legal principles, precedents set forth by other judges, and the facts and validity of the case to reach a just and fair conclusion. 

Judicial administration

Along with civil duties, civil judges or judicial officers also have to take part in administrative functions related to the system of court like-

  1. Case management, 
  2. Maintaining records, and
  3. Coordinating with staff in the court. 

Legal imparity 

Civil judges are expected to show a level of impartiality, fairness, and integrity in their judgements, thus, making sure each party to the dispute has access to justice. 

Continuous learning

Civil judges are expected to stay updated with developments in the legal field, attend programs for the purpose of being trained, and enhance their knowledge to uphold the principles of justice and deliver informed judgements. 

Public service

The position of civil judge, being one of the most esteemed roles, requires a judicial officer to uphold the rule of law, protect the rights of the citizens, and ensure that the judicial system is functioning efficiently.

Tamil Nadu Judicial Service : salary

Considering the guidelines given by the Hon’ble Supreme Court in the case of Malik Mazhar Sultan vs. U.P. Public Service Commission [(2008)17 SCC 703], there are 245 vacancies for 2023-24 for the post of Civil Judge in the pay scale of Rs.  27,700 – 770 – 33,090 – 920 – 40,450 – 1080 – 44,770 + Allowances, as admissible under the Rules.

Tamil Nadu Judicial Service : training, test, confirmation and probation training

Training 

Every person who has been appointed for the position of Civil Judge by direct recruitment has to undergo training. The training period will be for twelve months or as prescribed by the Madras High Court. 

Test 

Every individual who has been appointed for the category of Civil Judge by direct recruitment has to pass the Account Test for Executive officers within the period of probation. 

Tamil Nadu Judicial Service : exam centres 

Exam centres for Preliminary exams

Sr. No.Name of the centreCentre code
1.Chennai 0101
2.Madurai1001
3.Coimbatore 0201
4.Tiruchirappalli2501
5.Tirunelveli2601
6.Salem 1701
7.Thanjavur1901
8.Vellore2701
9.Villupuram2801

Exam centre for Tamil Nadu Judiciary Mains and viva voce

The main Exam and the viva voce round will be conducted only in Chennai. 

Points to remember

  1. All the applicants have to choose any two of the aforementioned centres to attempt the Prelims exam. Out of the two centres, the applicants will be allotted a venue in one of these centres.
  2. However, a candidate with benchmark disability will be authorised to choose only one district centre.
  3. Any request to change the Exam centre will not be permitted.
  4. The TNPSC has the right to increase or decrease the number of Exam centres and re-allot the applicants to their venues/centres accordingly.
  5. All the candidates have to appear for all the exams at their own expenses.

Tamil Nadu Judicial Service : contact details 

In case of any problems, a candidate can reach out to the exam conducting body (TNPSC) by writing at [email protected] or by calling 1800 425 1002. The toll-free number will be accessible from 10 a.m. to 5:45 p.m.

Important pointers to note regarding the TNPSC Civil Judge Exam 2023

Employment details

Candidates who make an attempt to suppress any fact of employment while applying for the TNPSC Civil Judge Exam shall result in rejection of candidature after due process.

Disclosure of criminal or disciplinary cases

  1. Candidates who have claimed pending criminal or disciplinary cases in their online application are obliged to upload a First Information Report (FIR) or memorandum of charges or a show cause notice. Candidates who do not submit such proof may face rejection of their candidature after due process. 
  2. Candidates who have declared conviction in criminal cases or penalty in disciplinary cases are obliged to upload the court orders and/or release order or memorandum of proceedings and failure to do so shall lead to rejection of the candidature after due process. 
  3. If any disciplinary actions or a suit is filed after submitting the application form, it is the duty of the candidate to report the facts to the TNPSC in further stages and failure to do so shall lead to rejection of the candidature after due process. 

Benefit of reservation

The rule of reservation is applicable to the post of TNPSC Civil Judge. The benefit of reservation is admissible only to candidates who have bonafide domiciles or are residents of the State of Tamil Nadu. 

Person studied in Tamil Medium

  1. According to Section 2(d) of the Tamil Nadu Appointment on preferential basis in the Service under the State of Persons Studied in Tamil Medium Act, 2010, candidates who have studied through Tamil medium up to the requisite educational qualification thus prescribed for direct recruitment in the rules or regulations or order applicable to any appointment in the Service under the State. 
  2. Further, candidates who have claimed to study under Tamil medium have to upload proof of the same in the form of the following documents-
  1. SSLC (Secondary School Leaving Certificate), 
  2. HSC (Higher Secondary Certificate), 
  3. Transfer Certificate, 
  4. Provisional Certificate, 
  5. Convocation Certificate, 
  6. Degree Certificate, 
  7. PG (Post-Graduation) Degree Certificate, 
  8. Mark Sheets, 
  9. Certificate from the Board or University or from the Institution, as the case may be, 
  10. And a recording that he/she had studied the entire duration of the respective course(s) through Tamil Medium of instruction at the time of submission of online application.
  11. The candidates have to upload the aforementioned documents while submitting their online application forms. 

Appointment of seats

According to Section 26(5) of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016, if there are seats vacant for selection of vaccines reserved for suitable women, then such seats will be filled by male applicants belonging to the respective communal categories. 

Suppression of material information

  1. If a candidate is found guilty of suppressing the following information there are high chances that his/her candidature will be rejected after due process along with debarment for a specific time period: 
  1. No of free chances availed;
  2. Employment in the Service of the Indian Union or a State in India or in the employment of Local Bodies or University or Quasi Government Organization or Public Sector units constituted under the authority of the Government of India or of a State in India in regular service or temporary service;
  3. Hiding information on criminal cases / disciplinary action pending / punishments if any, against the candidate; 
  4. Violation of undertaking given by the applicant in the online application etc.

Incomplete applications or applications with incorrect details 

Incomplete applications or applications containing incorrect particulars relating to eligibility, age, gender, educational qualification, medium of instruction, physical qualification, other basic qualifications and other basic eligibility criteria, category of reservation, communal category will be rejected after due process.

Such an error, when brought to the attention of the candidate, must be fixed within 72 hours of receiving such a notice, after which, no queries or grievances shall be entertained.

Determination of community for transgenders

  1. Individuals who belong to the transgender community but do not have any community certificate claiming the same, may choose to be considered under Most Backward Classes  or under ‘others’.
  2. Transgender candidates belonging to the Scheduled Caste/ Scheduled Caste (Arunthathiyar)/Scheduled Tribe communities and possessing community certificates as such, shall be considered as per their respective community.

Reservation in employment for transgenders

  1. Transgender candidates who identify themselves as ‘female’  shall be considered under 30% reservation for women as well as 70% reservation for the general category (both men and women). 
  2. Further, transgender candidates who identify themselves as ‘male’ or ‘transgender’ shall be considered against the 70 % reservation for General Category (both men and women).

Please note : The above concessions shall be granted to transgenders when they produce certificates identifying them as Transgender or Transgender (Male) or Transgender (Female), as the case may be, issued by the Tamil Nadu Transgender Welfare Board (TNTGWB).”  

Other important pointers to consider for the TNPSC Civil Judge exam 2023

  1. Candidates should check the eligibility criteria properly and ensure they are eligible to appear for the Exam. 
  2. Applicants who need help or clarification regarding anything related to the Exam, can contact TNPSC. The details are mentioned above
  3. Candidates have to check the official website regularly to ensure they do not miss out on any Notifications relating to the exams. 
  4. Applicants have to carry only a black point for their Exam and no electronic materials like calculators, smart watch, rings with inbuilt memory notes, pencil box, pouch, recording devices, or non-electronic devices like  data book, mathematical and drawing instruments, log tables, stencils of maps, slide rules books, notes, loose sheets, rough sheets, hand bags etc., inside the Exam hall/room.
  5. No candidate should use unfair means to write their Exam. 
  6. No candidate should misbehave in any manner in the Exam hall or harass any staff or authority as such misconduct will definitely attract a serious penalty. 
  7. No candidate will be allowed to obtain copies of their answer sheets under the Right to Information Act until the finalisation of the recruitment process. 
  8. If any dispute arises on any matters, the decision given by the Madras High Court shall be deemed to be final. 

Some tips and tricks to follow 

Mentioned below are some of the tips and tricks for a judicial aspirant:

  1. A candidate must treat their graduation syllabus as their primary source of preparation.
  2. A candidate must look at the syllabus before starting to study for the TNPSC Civil Judge Exam.
  3. Usually, the Prelims Exam relies on facts and figures instead of lengthy texts.
  4. Candidates must keep an eye on the local and global legal events. 

Other factors are discussed in the FAQs section.

Some Frequently Asked Questions (FAQs) on Tamil Nadu Judicial Service Exam 2023-24

Frequently Asked Questions (FAQs) on Tamil Nadu Judiciary Prelims exam 

For how many marks is the TNPSC Civil Judge Prelims Exam 2023?

The TNPSC Civil Judge Prelims Exam 2023 will consist of 100 marks.

What is the duration of the TNPSC Civil Judge Prelims Exam 2023?

The duration of the TNPSC Civil Judge Prelims Exam 2023 is 3 hours.

When will the TNPSC Civil Judge Prelims Exam 2023 be conducted?

The TNPSC Civil Judge Prelims Exam 2023 will be conducted on 19th August 2023.

When will the TNPSC Civil Judge Prelims Exam 2023 results be declared?

The TNPSC Civil Judge Prelims Exam 2023 results will be declared on 29th September 2023.

Should a candidate only focus on mock tests and prepare for the Mains Exam only after clearing the Preliminary exam?

No, definitely not. A candidate must prepare for the Mains along with preparing for the Prelims Exam as there is only a gap of one or two months between the Prelims and Mains Exam and it might become difficult for a candidate to cope up with an extensive syllabus in such a short time.

How should a candidate prepare for the Preliminary Exam?

In order to successfully ace the Preliminary Exam, it is crucial that a candidate goes through last year’s papers and analyse the syllabus thoroughly. Further, the candidate can study bare acts and case laws and thoroughly practise last year’s papers along with set timers for improved accuracy.

Is there a fee for the Prelims Exam?

Yes, a fee of Rs. 100/- has to be paid by the applicants within the date of submission of online application for the Preliminary Exam.

How many mock tests should I practise for the Preliminary Exam, and where do I get them?

One can practise several mock tests for the Preliminary Exam; as the famous saying goes, the more, the merrier! One can get the mock tests online or also buy books on the same, which are available in abundance in the market. 

Frequently Asked Questions (FAQs) on Tamil Nadu Judiciary Mains exam

For how many marks is the TNPSC Civil Judge Mains Exam 2023?

The TNPSC Civil Judge Mains Exam 2023 will consist of 400 marks.

What is the duration of the TNPSC Civil Judge Mains Exam 2023?

The duration of the TNPSC Civil Judge Mains Exam 2023 is 3 hours for each paper, so 12 hours in total.

When will the TNPSC Civil Judge Mains Exam 2023 be conducted?

The TNPSC Civil Judge Mains Exam 2023 will be conducted on 28th and 29th October 2023.

When will the TNPSC Civil Judge Mains Exam 2023 results be declared?

The TNPSC Civil Judge Prelims Exam 2023 results will be declared on 1st December 2023.

Is there a fee for the Mains Exam?

Yes, a fee of Rs. 200/- has to be paid by the applicants within the date of submission of online application for the Mains Exam based on the results of the Prelims Exam and after receiving an intimation from the Tamil Nadu Public Service Commission.

Is it important for a candidate to have knowledge of Tamil language for clearing the Mains Exam? 

Yes, definitely, a candidate has to have a knowledge of Tamil language to clear the Mains Exams.

How should a candidate prepare for the Mains answer writing?

A candidate can prepare for his/her Mains Exam by revising topics thoroughly and practising last year’s questions for the specific subjects in order to be well-prepared.

Is Judgement writing important for Tamil students?

Yes, Law papers II and III are specifically on Judgement writing so they are important for all the candidates.

Do all the states have a Mains Exam compulsorily? 

Yes, all the states conduct the Mains Exams compulsorily.

Are there any tips and tricks for a candidate to successfully ace the Mains Exam?

Yes, a candidate may follow the following tips and tricks to ace the TNPSC Exam, some of them are as follows:

  1. Having sound, conceptual clarity on the Mains subjects. 
  2. Ensure there is clarity in the thought process while writing answers for the Mains Exam. 
  3. Do not practise rote learning, as it never helps.
  4. It is only possible to understand and interpret the law if there is clarity in the thought process, and the examiner will infer the same only if the answers are succinct and to the point.
  5. An individual will only be able to interpret and apply the laws if he/she starts following a detail-oriented approach right from Day-1.
  6.  RACE AGAINST TIME:  Ensure you have good handwriting and a good pace! 
  7. Learn, revise, and apply. Keep your notes handy at all times. 
  8. Focus on the language and ensure you avoid making errors and scribbling on the paper. 
  9. Choose a pen wisely. Preferably, choose a black ballpoint pen. 
  10. Avoid unnecessary aggravation while writing the answers for your Mains Exam. 

Frequently Asked Questions (FAQs) on Tamil Nadu Judiciary viva voce

What are the passing marks for the viva voce test?

The passing marks for the viva voce test is 18/60, so a candidate has to score 18 out of 60 marks to successfully qualify for the position of Civil Judge.

How can a candidate improve his/her communication skills for the judiciary interview? 

In order to improve communication skills, one can take mock interviews, record themselves while pretending to give the interview and send them to peers or mentors for feedback. 

What should one wear to the interview for the Tamil Nadu Judicial Service viva voce round?

While going for the viva voce round, ensure you dress formally and decently. Always avoid flashy or casual outfits. 

Is there any way a candidate can work on improving his/her language skills? 

Yes, definitely. Mentioned below are some of the best tips and tricks for the same:

  1. Keep your main focus on building a vocabulary. One can watch TV series, read books, and subscribe to YouTube channels for this; there are tons of channels, books and podcasts on the same subject matter. 
  2. Work on improving articulation/expression. 
  3. Try practising grammar and solving MCQs. Focus on tenses, articles, and idioms). 
  4. Include quotes from renowned personalities, statistics, and schemes while writing the essay(s). 
  5. Keep a brief summary of content ready for all the expected essay topics.
  6. Follow a proper structure and ensure the flow is proper. Do not add any information anywhere.  
  7. Read editorials of newspapers and refer to relevant books. 

How to demonstrate your personality and character traits during the viva voce round of the TNPSC Civil Judge Exam?

To demonstrate your character traits, follow the instructions stated below: 

  1. Be authentic, 
  2. Show enthusiasm, 
  3. Highlight your strengths and accomplishments, 
  4. Avoid giving a negative answer or being a critic for every question asked. 

Please note : For more FAQs on the viva voce round, you may refer to my article about Delhi  Judiciary, published on iPleaders where an attempt is made to help candidates ace the viva voce round, effortlessly. Kindly visit- https://blog.ipleaders.in/delhi-judicial-Service-exam-2023-24/ 

Frequently Asked Questions (FAQs) on Tamil Nadu Judicial Service exam : General questions

How can one prepare for the TNPSC Civil Judge Exam 2023?

To  prepare for the TNPSC Civil Judge Exam 2023, it is important that all an aspirant goes through the syllabus properly, do revision daily, attempt previous year question papers, take mock tests, and work on time management.

How can a candidate prepare from the start to ace all three stages of the TNPSC Judiciary Exam?

A candidate can prepare from the start to ace all three stages of the TNPSC Judiciary Exam by following these pointers:

  1. Note down the syllabus on the A4 sheet and stick it where you study to know the major, minor, and local laws.
  2. Start with one major and one minor subject.
  3. Divide your day into 3 halves –  Read the topic thoroughly – learn the bare act provisions alongside to save time and efforts. 
  4. Learn 3 case laws everyday to be updated with the cases and add up in Mains answers to strengthen your points explained.
  5. Make weekly targets and try completing 3-4 topics of each subject weekly.
  6. Be consistent with your routine and keep revising what you’ve studied.
  7. Practise answer writing for the topics completed to improvise on grammar and language. 
  8. Focus on the concepts and speed of writing answers.

Which state specific subjects come in Tamil Nadu?

Mentioned below are some of the major state Acts that come up in the TNPSC Civil Judge Exam:

  1. The Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, and 
  2. The Tamil Nadu Regulation of Rights and Responsibilities of Landlords and Tenants Act, 2017 (Tamil Nadu Act 42 of 2017). 

Will a candidate be able to clear the exam by studying the major subjects only?

No, state specific subjects are very much important to clear exams. So, it is advised that a candidate studies all these subjects and gives equal importance to each and all. 

How many levels are there in the TNPSC Civil Judge Exam 2023?

In total, there are three levels, namely the Prelims, Mains, and viva voce. Out of these exams, two are written in nature and one is oral. It is important that all the candidates clear one stage in order to be eligible for the next level.

Can a candidate who is not from the state of Tamil Nadu apply for the TNPSC Civil Judge Exam?

Yes, definitely, a candidate belonging to any state can apply for the TNPSC Civil Judge Exam. There are no limitations or restrictions for a candidate to be originating from Tamil Nadu to apply for the exam.

When will the Madras High Court release the TNPSC Civil Judge Notification in 2023?

The Madras High Court has already released the TNPSC Civil Judge Notification in 2023 on June 1st 2023.

What are the factors that affect the TNPSC Civil Judge cut-off?

There are numerous factors that affect the cut-off for the TNPSC Civil Judge, some of them are as follows:

  1. The number of vacancies released,
  2. The number of candidates applying and participating for the exam, 
  3. The category of the candidates (i.e., general or reserved),
  4. The cut-off of the previous years, etc.

Is there negative marking in the TNPSC Civil Judge Exam?

Yes, there is indeed a negative marking of 0.10 marks for each incorrect answer.

What is the mode of Exam?

The mode of Exams is offline.

Should a candidate only focus on mock tests and prepare for Prelims and start preparing for the Mains Exam only when they clear the Mains Exam?

No, it is advised that a candidate prepare for the Mains Exam along with Prelims because there is only a month or two gap between the Prelims and Mains Exam s and it becomes quite difficult to complete the targets within such a short span of time.

What is the ideal time for a judicial aspirant to start with judicial preparation for the TNPSC Civil Judge Exam?

Generally, as per industry experts, the following timeline is the most suitable one-

Five-year course

Ideally, for a five-year course student, the ideal time to start the judicial preparation is from the 4th or 5th year. 

Three-year course

Ideally, for a three-year course student, the ideal time to start the judicial preparation is from the 2nd year. 

However, there cannot be a straight-jacket answer to this as it depends on the candidate’s level of understanding, ability to interpret laws, and knowledge in the field of law.

Word of advice :  In any year of law school, ensure that you, as a candidate, focus on academia as well as current affairs and the current legal affairs.

If I want to be a judge, should I still do internships? What kind of internship should I do?

Yes, a candidate/student can do several internships even when he/she is aspiring to be a judge in the future. One can start with a district court internship, then work in the high courts, and, if possible, also in the Supreme Court under any lawyer. One can also apply for a clerkship while preparing for the judicial Exams. This will help the candidate gain a better understanding of the courts and the processes and procedures they follow to resolve disputes on a daily basis, amongst other things. 

What should one check before selecting a judiciary course for acing the TNPSC Civil Judge exam?

A candidate must ensure that the coaching classes or online classes one is considering enrolling in have the necessary coaching for the local laws of Tamil Nadu along with the major subjects. Further, if a candidate decides to attempt other states, as well, he/she must ensure that help is provided for the same. This is why LawSikho has its own Judiciary course, titled “Lord of the courses”, which has state-wise content and experts in the field of the judiciary. This can help a candidate ace the exam easily.

How to apply for the TNPSC Civil Judge exam?

A candidate can apply for the TNPSC Civil Judge Exam, from the official website of the Tamil Nadu Judicial Service. One can refer to the official Notification for further details.

How can one download the Mains admit card for the TNPSC Civil Judge Exam 2023?

A candidate can download the TNPSC Civil Judge Exam 2023 through the Tamil Nadu Public Service Commission official website.

How can one download the Answer Key for the TNPSC Civil Judge Exam 2023?

There is a step-by-step procedure to download the Answer Key for the TNPSC Civil Judge Exam 2023. The same has been discussed in detail above.

What are the contact details for the TNPSC Civil Judge Exam 2023?

In case of any problems, a candidate can reach out to the exam conducting body (TNPSC) by writing at [email protected] or by calling 1800 425 1002. The toll-free number will be accessible from 10 a.m. to 5:45 p.m.

Frequently Asked Questions (FAQs) on Tamil Nadu Judicial Service exam : exam’s vacancies and selection process

How many vacancies has the Notification released for the TNPSC Civil Judge recruitment 2023?

As per the Notification, a total of 245 vacancies have been released for the TNPSC Civil Judge recruitment 2023.

What is the selection process for the TNPSC Civil Judge Exam 2023?

There are three stages for a successive selection process, namely, the Preliminary exams, the Mains Exam and the viva voce test.

Frequently Asked Questions (FAQs) on Tamil Nadu Judiciary exam’s eligibility criteria

What is the eligibility criteria required for fresh graduates?

The eligibility criteria for fresh graduates is as follows:

  1. The fresh Graduate must have a degree in Law from a recognised University.
  2. Must be eligible to be enrolled as an Advocate. 
  3. Must have secured an overall percentage of marks in acquiring the Bachelor’s Degree of Law. 
  4. Must have obtained the Bachelor’s Degree of Law within a period of three years prior to the date of Notification.
  5. Must have practised for a period of not less than 3 years in any court on the date of Notification.

What is the certain period of practise required to be eligible and appear under the category of Practising Advocates/ Pleaders and Assistant Public Prosecutors?

In order to be eligible and appear under the category of Practising Advocates/ Pleaders and Assistant Public Prosecutors, a candidate must be practising as an Advocate or Pleader in any Court on the date of Notification for recruitment to the post and must have practised for a period of not less than 3 years on such date.

What is the minimum overall percentage required to be eligible for the exam?

The minimum overall percentage required to be eligible for the exam is-

  1. 45% Marks in case of Reserved Categories (i.e SCs, SC(A)s, STs, MBCs/DCs, BCs (OBCMs) and BCMs). 
  2. 50% Marks in case of Open Category (i.e., Others).

Frequently Asked Questions (FAQs) on Tamil Nadu Judiciary exam’s age criteria

What are the age criteria for the Tamil Nadu Judicial Service Exam?

The minimum age for the Tamil Nadu Judicial Service Exam is as under:

  • For Fresh Graduates it is 22 – 29 years;
  • For Practising Advocates/ Pleaders and Assistant Public Prosecutors- 
  1. For SCs, SC(A)s, STs, MBCs/DCs, BCs, BCMs and Destitute Widows of all castes : 25 – 42 years.
  2. Whereas, for others : 25 – 37 years.

Frequently Asked Questions (FAQs) on Tamil Nadu Judiciary exam’s reservation

Is there any provision for relaxation for candidates belonging to the unreserved or general category in educational criteria?

No, there is no provision for  relaxation for candidates belonging to the unreserved or general category in educational criteria. The candidates have to compulsorily follow the educational criteria. The educational criteria is discussed above.

Frequently Asked Questions (FAQs) on Tamil Nadu Judiciary exam’s preparation

Are there any tips and tricks to prepare for the judiciary exams?

Yes, below are some tips and tricks mentioned to prepare for judiciary exams:

  1. Focus on the syllabus you studied throughout your graduation.
  2. Find the prescribed syllabus before planning a study schedule to ace the Find the prescribed syllabus before drawing your study schedule for the Tamil Nadu Judicial Service Exam.
  3. The Preliminary exams rely on facts and figures instead of long texts.
  4. Keep a close eye on all local and global legal events.
  5. Study the GK of law and learn the history and politics of law.
  6. Implement different strategies to learn different questions. 
  7. Find a good guide or mentor or coaching centre for proper preparation.
  8. Always read quality/authentic content like iPleaders blog as one does not need vast syllabi but credible information.
  9. Take judiciary mock tests for both, Prelims  and Mains Exam at regular intervals.
  10. Develop an understanding of the concepts of the topics instead of practising rote learning.

How should a candidate prepare from the start for the TNPSC Judiciary Exam?

  1. Note down the syllabus on  A4 sheets and paste them somewhere. Especially note down the major, minor and local laws and read them everyday.
  2. Start with one major and one minor subject.
  3. Divide your day in 3 halves –  Read the topic thoroughly – learn the bare act provisions alongside to save time and efforts.
  4. Learn 3 case laws everyday to be updated with the cases and add up in Mains answers to strengthen your points explained.
  5. Make weekly targets and try completing 3-4 topics of each subject weekly.
  6. Be consistent with your routine and keep revising what all studied.
  7. Practise answer writing for the topics completed to improvise on grammar and language. 
  8. Focus on the concepts and speed of writing answers.

Frequently Asked Questions (FAQs) on Tamil Nadu Judicial Service Exam : career, scope and pay scale

What is the role or job profile of a TNPSC Civil Judge?

The role of a job profile, amongst other things, include:

  1. presiding over civil cases, 
  2. managing the caseload, 
  3. conducting hearings, 
  4. evaluating evidence, 
  5. conducting legal research, 
  6. interpreting and applying laws, 
  7. resolving disputes, 
  8. maintaining court proceedings, 
  9. ensuring fair trial practices.

What is the probation period of a TNPSC Civil Judge? 

The probation period for a newly recruited TNPSC Civil Judge is usually for a year. During this period, the candidates that excelled in performance are finalised along with all the perks.

Frequently Asked Questions (FAQs) on Tamil Nadu Judiciary exam fees

What is the fee amount for one-time registration?

The fees for one-time online registration is Rs. 150.

Is there any fee for appearing for the Prelims and Mains Exam?

Yes, a fee of Rs. 100/- is to be paid by the applicants within the date of submission of online application. Further, a fee of Rs. 200/- has to be paid later only by those applicants who are admitted to the Main Exam based on the results of Preliminary Exam and on receipt of intimation from Tamil Nadu Public Service Commission.

Is there any concession on exam fees for the TNPSC Exam?

Yes, there is a fee concession for a list of specific categories mentioned below:

  1. Full fee exemption for Scheduled Castes/ Scheduled Caste (Arunthathiyars)/ Scheduled tribes/ Persons with Benchmark Disability/ Destitute Widow –  Full Exemption.
  2. Three free chances for Most Backward Classes/ Denotified Communities/ Backward Classes, Two Free Chances for Ex-Servicemen.

Words of motivation

Always remember, “We generate fears while we do nothing. We overcome these fears by taking action”, so here is to every aspirant of the TNPSC taking positive actions towards becoming a judicial officer! All the best!


Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

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Homicide v. murder

0

This article has been authored by Bhavika Mittal, who is pursuing BA LLB at Shri Navalmal Firodia Law College, Pune, affiliated with Savitribai Phule Pune University. The article attempts to give an insight into one of the most confusing concepts of the Indian Penal Code of 1860. That is the difference between homicide and murder. 

It has been published by Rachit Garg.

Introduction 

A person named A killed B. What does this illustration mean? What can you deduce from it? Well, upon first reading, any individual would say that A has murdered B. So, A should be punished for committing the horrific offence of murder. Just because a person has killed another doesn’t indicate that he has murdered someone. Instead, it means that the person has committed the act of homicide.

But aren’t homicide and murder synonyms? Also, isn’t it a culpable homicide and not homicide? For laymen, sure, but these are separate terms for law professionals. Despite this awareness, there is persistent confusion among them. This article attempts to clarify the difference between these terms. 

Meaning

Homicide 

The World Health Organisation, in 2019, released a report stating that 475,000 people worldwide are victims of homicide. The global rate is 6.2 per 100,000. What is this act or concept of which the world’s population is a victim? Well, the term “homicide” is relatively more common among law enthusiasts and professionals than laymen. 

The word ‘homicide’ owes its origin to two Latin words, ‘homo’, meaning ‘man’, and ‘cido’ meaning ‘I cut’. So, homicide implies the killing of a human being by a human being. The World Health Organisation defines homicide ‘as the killing of a person by another with intent to cause death or serious injury by any means. It excludes death due to legal intervention and operations of war’.

Murder

The origin of “murder” can be traced back to “morth”, a German word meaning “secret killing”.

Murder is defined as an act carried out with malice and the intention to inflict sufficient injury to cause death by natural causes. It can be classified as an imminently dangerous act that has all the probability of causing the death of another human being. It shall also be noted that there is no excuse for incurring such a risk.

The following essentials must be fulfilled for an offence to be constituted as murder or culpable homicide amounting to murder.

  1. Intention of causing death

The intention of the offender should be clear to kill another human. The intention of a person should be in a conscious state where the person is aroused, and he must have deliberately acted, particularly to kill a person. 

For instance, A fires in the direction of Z with the intention of killing him. As a consequence, Z dies. Here, the intention of A to cause the death of Z is evident.

  1. Intention to cause bodily injury, which is likely to cause the death

A person acts in such a way that the bodily injury caused is sufficient to cause death.  

  1. Knowledge of causing death

The person committing the act is well aware that the act will cause the person’s death. Knowledge is not a probability but the clarity of knowing the consequence.

For instance, knowing that the particular food has poison, A serves it to B with malicious intent. B dies after eating it.

Illustration

A, without an excuse, fires a cannon into a crowd of people and kills one of them. A is guilty, even though there was no premeditated intention to kill any particular person. Since it is committed with full consciousness of its probable consequences.

In Virsa Singh v. State of Punjab 1958, the Supreme Court stated that the three essentials should be proved to be present, and then the enquiry must proceed further for the offence of murder. It shall also be proved that the enquiry for murder is initiated as the three elements set out above are sufficient to cause death in the ordinary course of nature.

In Anda and Ors v. State of Rajasthan 1965, the accused beat the victim in a house after dragging him there. The beating caused numerous injuries and bruises. His arms and legs were smashed, and lacerated wounds were caused. Further, the injuries caused were sufficient in the ordinary course of nature to cause death. The Supreme Court held that the offence of murder had been committed. The Court backed its judgement by stating that the intended injury caused by such bodily injury constitutes death. 

However, not every act fulfilling the above mentioned consequences constitutes the offence of murder. There are certain circumstances where the essentials are fulfilled, yet the act falls under the category of culpable homicide, not amounting to murder. Those are five in number and have been mentioned under Section 300 of the Indian Penal Code, 1860. The exceptions will be discussed later in this article. 

Types with examples

The definition of homicide indicates that it has a broad scope. It can be divided into two categories, one, criminal acts, and second, non-criminal acts.

Under the category of criminal act, murder and culpable homicide are included. While justifiable homicide and accidental or excusable homicide fall under the category of non-criminal acts.

For the sake of clarity, it seems imperative to briefly elucidate the above mentioned terms.

Justifiable homicide

It means causing death in circumstances authorised by law. For instance, killing in the course of dispersing a riot, killing in self-defence, in the prevention of a violent attack, killing a prisoner who is attempting to escape, etc. 

Illustration

A, a soldier fires on a mob by order of his superior officer in conformity with the commands of the law. A has committed no offence, as it was justifiable by law.

The concept of justifiable homicide is best understood by reading R v. Dudley and Stephens 1884 case. In the instant case, there were two adults and one child on a ship. The three passengers had been stranded for days and had gone without eating. The child had become weak; the adults decided to feed on the child and save themselves. The adults claimed that the act of homicide was out of necessity, but the court held them guilty. The killing of another human to save one’s life is not justifiable homicide.

Accidental homicide 

It is either an accidental or excusable homicide. It means causing unintentional death by misadventure. For instance, a street accident, an unsuccessful attempt at surgery, etc.

Illustration

A, a surgeon comes across a child suffering from an accident that is likely to prove fatal unless treated immediately. There is no time to ask for the guardian’s consent. A performs the surgery in good faith. Now, if the child dies, A has committed no offence.

Illustration

A and B agree to fence with each other for leisure. This agreement implies the consent of each to suffer any harm during fencing without foul play. A, while playing fairly, hurts Z. Here, A commits no offence.

Culpable homicide 

Culpable homicide owes its derivation to the Latin word “culpabilis”, meaning “worthy of blame. While homicide means to cut or kill a man. So, culpable homicide is an offence when one is or can be blamed for killing another man.

It is the causation of an act that most likely causes death. The three essential ingredients of culpable homicide are:

  1. intention of causing death,
  2. bodily injury likely to cause death, or
  3. knowledge that is likely to cause death.

Illustration

A knows Z is behind the bush. B doesn’t know it. A, with the intention of causing Z’s death, induces B to fire at the bush. B fires and kills Z. Here, B is not guilty, but A is guilty of culpable homicide.

Illustration

A, lays sticks and turf over a pit, with the intention or knowledge that it will likely cause death. Z, unaware of the pit, walks on by the path, falls into the pit, and dies. Here, A has committed the offence of culpable homicide.

Further, there are two types of culpable homicide, namely: 

  1. Culpable homicide not amounting to murder; this situation is said to arise when either of the five exceptions to murder in the Indian Penal Code, 1860, are fulfilled.
  2. Culpable homicide amounting to murder is basically that the accused has committed murder in fact. 

Murder

This is the last kind of homicide. It is the gravest form of a criminal act. Usually, not only laymen but also law professionals, especially students, are unable to distinguish between other kinds of homicide and murder. Under the heading below, the concept of murder has been discussed in detail. 

The above-detailed explanation of homicide clearly implies that the scope of homicide is broad. It covers criminal as well as non-criminal acts. However, these acts are offences that affect human life. 

Scope

Criminal litigation

Homicide 

All homicides are not murders. There are four types of homicide, them being justifiable homicide, accidental homicide, culpable homicide, and murder. The concept of homicide constituting such a wide variety makes the scope of homicide broad. 

Murder

All murders are homicides. Murder is one of the types of homicide, which makes its scope relatively narrow. However, there are four degrees of murder. 

How is murder different from other types of homicide 

On reading the brief mentioned above on homicide and murder, you might have drawn a faint line between the two. Herein, a detailed account of how murder differs from other types of homicide has been discussed. 

Intention and knowledge 

Intention is the desire to achieve a particular object, and to form an intention, there must be a capacity to reason. Intention needs to be proved; it cannot be assumed. Knowledge stands on a different footing; it is the awareness of the consequences of an act. 

In Basdev v. State of Pepsu 1956, the Supreme Court stated that the demarcating line between knowledge and intention is no doubt thin, but it is not difficult to perceive that both mean different things. It is mainly this line of confusion that causes conflict between murder and homicide, but with the help of illustration and judicial precedents, clarity is attempted. 

Murder and justifiable homicide 

Chapter IV of the Indian Penal Code, 1860, contains principles of general exceptions whereby the accused may avoid criminal liability. In justifiable defences, the accused does not deny the existence of elements of the crime but pleads that despite those elements, he should be acquitted as the actions were justified in some manner. For instance

  • Act done in execution of legal punishment,
  • act done in execution of legal process,
  • act done to keep peace, or
  • act done for prevention of crimes.

In the above instances, even though homicide occurs, the author of the act is immune from the punishments prescribed for criminal acts.

Further, some instances from the chapter are applicable and fall under the category of justifiable homicide.

  • Mistake of fact

A person who has, by reason of a mistake of fact and not by reason of a mistake of law, committed an act in good faith and believed himself to be bound by law is excused from criminal liability.

In R v. Prince 1875, the accused takes away a girl of sixteen years for keeping her lawful guardian without his consent, believing that the girl is over eighteen years old. The court held him liable as proper enquiries would have elicited facts. Therefore, there is no defence against the mistake of fact.

This exception lies on the principle of “ignorantia facti excusat, ignorantia juris non excusat,” that is, ignorance of fact is excused, but ignorance of law is not. However, the lack of knowledge of facts shall be reasonable. When it comes to murder, the accused is aware of the facts and other circumstances.

  • Believing himself to be justified by the law

Where a person believes himself to be justified by law, he is not imposed with criminal liability.

Illustration

A sees Z committing a murder. A, in good faith, believes that the law empowers all persons to apprehend murderers in the act and seizes Z to bring him in front of appropriate authorities. A has not committed any offence, even though, in reality, Z was acting in self-defence.

In Waryam Singh v. Emperor 1926, the Madras High Court held that the accused was not guilty of murder or culpable homicide under Section 302 and Section 304 of the Indian Penal Code, 1860, respectively. In the instant case, the accused assaulted a man, believing him to be a ghost. The assault was proved to be fatal and life-threatening, but the accused was excused as there was a mistake of fact, and he believed his actions to be justified by law.

Therefore, the point of difference between murder and justifiable homicide is that murder is not an act done in the execution of a legal process. It is not a legal act at all. While justifiable homicide is. Also, under murder, there is intention, but under justifiable homicide, there is no intention. 

Murder and accidental homicide 

Death may occur accidentally or unintentionally while doing an act that is lawful; such deaths may be categorised as unnatural deaths. For instance, by accident, by consent, etc. The acts that constitute accidental homicide are done in good faith and with no intention to cause the death of another person.

Illustration

A, in good faith and for the benefit of his child, without his consent, permitted a surgeon to operate on him despite knowing that the operation might cause the child’s death but without any intention to cause death. A is not guilty, as the object is the child’s cure.

Certain acts are excusable, and the person committing them is not criminally liable. For instance, acts by children are not constituted as criminal acts because they are incapable of knowing the consequences of an act.

In Shrikant Anandrao Bhosale v. State of Maharashtra 2002, the accused caused the death of his wife by hitting her with a grinding stone. The state of mind of the accused at the time of committing a crime shall be proved to get immunity under the category of accidental or excusable homicide. It was proved that the appellant had paranoid schizophrenia, and the court did not charge the appellant with the offence of murder.

In Jethuram Sukhra Nagbanshi v. State of Madhya Pradesh 1959, the expression “without his knowledge” means ignorance of fact. The person is incapable of knowing the act, and under such circumstances, the accused gets immunity from criminal liability. 

Therefore, the point of difference between murder and accidental or excusable homicide is knowledge of causing death; under accidental homicide, there is no knowledge of causing death, but in murder there is. Death in the case of accidental homicide is unnatural, but when murder is committed, the action is so fatal that death is caused in a natural course.

Murder and culpable homicide 

As mentioned earlier, Section 300 of the Indian Penal Code, 1860, lays down an exception to murder that is culpable homicide not amounting to murder. Except for the five circumstances, all other acts fulfilling the essentials of murder constitute the offence of culpable homicide amounting to murder. The exceptions being:

Grave and sudden provocation

This is available only when the offence is committed against the one who provoked it. However, an offender is said to have not been provoked when done for the obedience of the law and right to private defence.

Illustration

Y gives grave and sudden provocation to A. A, provoked, fires a gun at Y. Here, A had no intention or knowledge of killing Y. Thus, A is liable for the offence of culpable homicide.

In Hansa Singh v. State of Punjab 1976,  the accused saw the deceased commit an act of sodomy on his son. The accused, on seeing this, under grave and sudden provocation, murdered the deceased. The Supreme Court, considering this a sufficient provocation, convicted the accused under the offence of culpable homicide and reduced his imprisonment sentence. 

Exceed power given for private defence

Private defence serves a social purpose, as everyone has the right to safeguard themselves. However, it is required that private defence be exercised in good faith, and the death caused shall not be premeditated or intended.

Illustration

Z attempts to horsewhip A. A draws a pistol to persist in the assault by Z. A, in good faith, believing it to be the only way to prevent shooting Z. Consequently, Z dies. Here, A is liable only for culpable homicide and not murder.

In Mohammed Mytheen Shahul Hameed v. State of Kerala 1979, the deceased had slapped the appellant for beating the dead’s friends; a fight ensued between them but was resolved by the bystanders. Two days later, the appellant and his friends attacked the deceased and his brother. The deceased started running south, where the appellant used a dagger and killed the deceased. 

The Supreme Court held that no right of private defence accrues to the assailant as the deceased was unarmed. Where the right of private defence is exceeded, the causing death amounts to murder. The instant case implies that there is a thin line between culpable homicide and murder. 

Public servants exceed the power given by law

The death caused by the public servant was done in good faith only. The right was instead believed by the public servant to be his lawful duty. 

Illustration

A, a thief, runs from the custody of B, a police officer. B shoots at A with the intention of catching him, despite being able to catch him. The shot fired hits A, and he dies. B is liable for the offence of culpable homicide, not murder.

Sudden fight

It must be sudden in all circumstances. It shall be in the heat of passion, and there shall be no action of cruelty or unusual manners. Additionally, it shall not be premeditated.

Illustration

A, buying vegetables in the market, accidentally steps on B’s foot. B is charged by this, and A and B get into a heated argument. Further, the argument turns into a fight where A hits B with a stone. Consequently, B dies, but A is liable for culpable homicide.

In Rajendra Singh and Ors v. The State of Bihar 2000, the Supreme Court stated that exceptions four to Section 300 are a sudden fight, absence of premeditation, no undue advantage, or cruelty, but the occasion must be sudden and not use the circumstance as a cloak for pre-existing malice.

Consent of the victim

The victim shall be above the age of eighteen years, which is a major. The death he caused is a consequence of his taking a risk.

Illustration

A instigates Z to commit suicide. Z, a person below the age of eighteen, voluntarily commits suicide. Since Z is not capable of giving consent, A is liable for the offence of abetting murder.

The point of difference can easily be deduced from the abovementioned exceptions. The intention, knowledge, and degree of seriousness of the act demarcate a line between culpable homicide and murder. 

Phulia Tudu and Anr v. The State of Bihar, (2007)

In the case of Phulia Tudu and Anr v. The State of Bihar 2007, the appellant assaulted the deceased with a single blow of lathi, which caused death. The lower court convicted the appellant under Section 302 of the Indian Penal Code, 1860. However, the Supreme Court upheld the instant petition and reduced the sentence to Section 304 of the Indian Penal Code, 1860. 

Additionally, the Supreme Court, to reduce the confusion between the two, stated that the confusion between culpable homicide and murder is caused if courts lose sight of the true scope and meaning of the terms used by the legislature in Section 299 and Section 300 of the Indian Penal Code, 1860. Thus, they allow themselves to be drawn into minute abstractions.

The court also said that the safest way to approach the interpretation and implementation of these two provisions is to focus on the keywords used in the various clauses of these two sections. 

Legal provisions 

Despite the differences between homicide and murder, the legal provision governing them is the Indian Penal Code of 1860. However, the legislature differs between the two by mentioning them under distinct headings and sections.

Homicide

Chapter IV, “General Exceptions”, mainly governs the types of homicides. Moreover, Chapter XVI also has specific provisions. They are as follows.

  1. Justifiable homicide can be covered under Section 76, Section 77, Section 79, Section 81, Sections 91 to 106 of the Indian Penal Code, 1860.
  2. Accidental or excusable homicide can be covered under Section 80, Section 82, Section 83, Section 84, Section 85, Section 87, Section 88, Section 89, and Section 92 of the Indian Penal Code, 1860.
  3. Culpable homicide has been covered under Section 299 of the Indian Penal Code, 1860. Additionally, Section 304 of the Indian Penal Code, 1860, contains the punishment for culpable homicide. Moreover, this type of homicide has been mentioned under Chapter XVI of the Indian Penal Code, 1860. 

Murder

Chapter XVI titled “Offences Affecting Human Life’, contains the provisions for murder. 

Section 300 of the Indian Penal Code, 1860, defines murder by stating the five exceptions, that differentiate between culpable homicide amounting to murder and culpable homicide not amounting to murder. Further, Section 302 of the Indian Penal Code, 1860, prescribes the punishment for the offence of murder. 

Punishment 

Homicide 

Culpable homicide, as mentioned above, is punished under Section 304 of the Indian Penal Code, 1860. Punishment for justifiable homicide and accidental homicide has not been prescribed under the Indian Penal Code, 1860, as they are non-criminal acts.

There are two categories laid out under Section 304.

  1. Where the intention is proved, the accused is liable for life imprisonment or ten years of imprisonment and a fine.
  2. Where knowledge is proved, the accused is liable for ten years of imprisonment and a fine.

Murder 

Murder, as mentioned above, is punished under Section 302 of the Indian Penal Code, 1860. Where all the essentials of murder are fulfilled and the exceptions tested. The person would be held guilty of murder. Such a person is liable to the death penalty, life imprisonment, and a fine. 

Conclusion

The words homicide and murder are often used interchangeably. Sure, murder is a type of homicide, but as elucidated above, homicide is divided into categories, and just murder is a part of them. As the most famous expression goes, “Homicide is a genus, and murder is a species”. However, the demarcating line is so obscure that the difference between murder and homicide is one of the most discussed topics in criminal law. 

The main elements that draw a line between murder and the other types of homicide are intention, knowledge, the degree of probability of death, and the nature of the act. The degree of seriousness among the types of homicide differs, as does the punishment. Therefore, to ensure that the offender is charged with deserving imprisonment, it is imperative to understand the difference. 

Frequently Asked Questions (FAQs)

What is the death penalty?

The death penalty, or capital punishment, is the highest degree of punishment. It is when the court sanctions the practice of killing a person as a punishment for committing a crime. The punishment of the death penalty in India is granted for the rarest of rare cases. For the offence of murder, the death penalty may be given, but for other forms of homicide, the punishment of the death penalty is nowhere closer. Therefore, for murder, a person can be held liable for the death penalty.

References 


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Digital rights management : the new copyright

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This article has been written by Vibhuti Thakur, pursuing a Diploma in Intellectual Property, Media and Entertainment Laws and has been edited by Oishika Banerji (Team Lawsikho). 

It has been published by Rachit Garg.

Introduction 

Living in the digital world, violations of one’s rights are just a click away. Such rights are digital in nature, that is technology is involved in such rights. Since such rights are intangible, these rights are also known as incorporeal rights. The rapid technological advancements are a big challenge from the perspective of law as the pace of growth of both is comparable. With the help of torrent sites and applications like Telegram, data is being exchanged which otherwise is not for unauthorised use. In order to prevent digital rights from being violated, copied and circulated in an unauthorised manner, Digital Rights Management (hereinafter called as DRM) is implemented. DRM protects data from copy or leak but it cannot protect the data which has already been spread from being circulated. This article is dedicated to discussing DRM as a new form of copyright in the ‘Go Virtual’ era.

What is DRM

Digital Rights Management or DRM can be understood as the use of technology to control and manage access to copyrighted material. Put simply, legal access to digital content is managed by DRM. Digital media is now the new vogue involving the usage of technology to allow software developers and digital media producers to impose access controls on their product(s), such as limitations on usage, reproduction, modification, and distribution. 

Where are DRM systems used

The domain of DRM system usage is huge. Here are a few fields where DRM plays a significant role:

  1. Sensitive information: This system disables the copying, saving or unauthorised use of sensitive information of businesses and companies e.g., their trade secrets, confidential information of the employees and all the financial details.
  2. Discoveries and inventions: Such systems have proven to be a boon for the new generation of scientists, researchers and engineers, for they help safeguard the patented work of the inventor or discoverer.
  3. Artistic work: Music, movie and other forms of artistic expression are today shielded from piracy and other forms of unauthorised use due to DRM systems.
  4. Business brand and logos: The logos and brand name hold a very heavy weightage in the business’s reputation and goodwill. In order to prevent undue and unwarranted advantage by other competitors in business DRM plays an effective role.

The mechanism for DRM to function

In the oceanic world of the internet, it is very hard to monitor each and every activity on each device. Thus, it is easier to protect the data at its source i.e., it should be protected from piracy by limiting and restraining its distribution. The DRM works through three main components:

  1. Secured distribution: The author (the owner of the copyrighted data) can put a bar on the distribution of his/her data. He can provide data for consideration for a specific period and can prevent users from reviewing, editing, copying or sharing the data. He can set a limit as to the number of licensees and can track the use of such data.
  2. Encryption: The author by digital encryption can protect the data from being read, copied or pirated by containing the data in an unreadable format. Later this data can be decrypted, where the data is again converted into a readable format. Such decryption can only be done by the person who is authorised to read the data. This technique is very commonly used in Whatsapp Messenger.
  3. Watermark: Another component which helps to protect digital information is Watermark. It is a specific mark or logo attached to every piece of data which protects the copyrighted data from unlicensed use.

Apart from this, there are various other ways to protect the data from unauthorised use:

  1. Limiting the number of distributions e.g certain PDFs can only be circulated to a limited number of devices.
  2. Preventing the screenshot or saving the content e.g Facebook does not allow the screenshot to display pictures.
  3. Unavailability of data to non-payers, e.g, Spotify or iTunes
  4. Restricting the use by granting or restricting the software from the use of certain information.

Benefits of the DRM mechanism

In earlier times when a certain piece of information, work of art or a book was created, it was shared by way of creating copies. It was then distributed among the masses. The end user only had a copy of the original work.  But now in the digital world this mechanism is futile.  Thus, DRM plays a key role in the protection of digital data, work of art or literature or any other confidential information.

  1. It protects the rights and content of content creators, movie makers, and music artists from being live-streamed, piracy and unauthorised use. 
  2. In social media, this technology helps in protecting personal data, such as pictures, videos, contact details and even payment details.
  3. It protects unique inventions and discoveries by saving the patents in the name of the scientist. It protects the ownership of the work of such scientists. Moreover, the Author or the creator of such content or copyrighted material gets a better way of licensing and authorising the use of his work. He/She can even charge for the authorised use of such information or work, hence, it creates an opportunity of income generation.

Challenges posed by DRM systems

Besides having these incredible DRM systems there are still a bunch of challenges in the operation of DRM systems and protection of data. A few of such challenges are listed below.

  1. Compatibility: The device must be compatible with the DRM support system in order to operate properly for the security of the data. If there is incompatibility, then the purpose of DRM is defeated.
  2. Interoperability: This is also similar to incompatibility where DRM should be able to work with contemporary technologies and platforms.
  3. Hacking: Regardless of how advanced the protection is, certain hackers manage to hack into the authorised data. Such hackers stay one step ahead of the DRM system and find a way to bypass the security system.
  4. Lack of unified DRM systems:  Due to the lack of one single unified DRM system the user has to buy multiple DRM systems in order to secure his content from copying, piracy and stealing completely.
  5. Public view: There exists a divided public opinion regarding the mode of functioning of DRM. The user generally has to buy a subscription per month or year to protect the said data. On one side there is a need for DRM to content creators who are not financially sound. Such technology must be provided to them free of cost. But on the other hand, there is a requirement of infrastructure and capital to run an advanced business that could provide up-to-the-date solutions for the most recent technologies.

DRM in India

In India, there are statutes like the Copyright Act of 1957 and Information Technology Act, 2000 for the regulation and control of the infringement of copyrighted data. Under the Information Technology Act, 2000, Section 79 provides for the exemption from liability of intermediaries in certain cases. Intermediaries here include the DRM service providers.

The Copyrights Act, 1957 which was recently amended in 2012 contains provisions like Section 65A and 65B which authorises and protects the actions of  DRM. These sections make any alteration, modification or distribution of the DRM system without authority punishable with imprisonment of up to 2 years and a fine.

It protects the literary, dramatic, musical and artistic work of the creator. The copyright usually lasts for 60 years from the next year of the publication year. It also protects the rights of Government work, public undertakings, international agencies, etc.

For copyright infringement in India, the basic remedies which are available are:

  1. Civil remedies like damages and injunctions.
  2. Criminal remedies like imprisonment and fines under Chapter XIII of the Copyrights Act, 1957.
  3. Administrative remedies like the detention of such information or data by the authorities concerned.

Conclusion 

Over the last few decades, the requirement of DRM has rapidly increased due to the advancement of the technology and internet and new AI-based platforms and institutions. Since the new advancements are still taking place DRM is going to be a much-needed tool for the protection of the incorporeal digital rights of the people and institutions. There is a necessity for a unified and much-regulated system of Digital rights management which may evolve over a period of time in the near future. The European Commission is supporting the development of the same and also advancing and facilitating legal copying and re-use of content to the paid users and preventing the misuse of such information. In future, the law relating to copyright is destined to become more advanced and stricter. The DRM systems will become more efficient in tracking the copyright breach and there might be stricter rules and bye-laws worldwide for the protection of the intellectual property.

References:

  1. http://www.manupatra.com/roundup/328/Articles/digital%20rights%20management.pdf
  2. https://www.widen.com/blog/digital-rights-management
  3. https://www.digitalguardian.com/blog/what-digital-rights-management
  4. https://www.britannica.com/topic/digital-rights-management
  5. https://www.redpoints.com/blog/what-is-digital-rights-management/
  6. https://www.mondaq.com/india/copyright/597256/digital-rights-management–its-interaction-with-net-neutrality
  7. https://www.researchgate.net/publication/255993106_Does_India_Need_Digital_Rights_Management_Provisions_or_Better_Digital_Management_Strategies

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Mergers and acquisitions in real estate industry : all you need to know

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This article has been written by Himanshu Agarwal, pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution and has been edited by Oishika Banerji (Team Lawsikho).

It has been published by Rachit Garg.

Introduction 

The real estate sector is one of the oldest sectors in the world and has witnessed growth which is unmatchable by the other industrial sectors. The Indian real estate sector saw a phenomenal rise post the 2008 global financial crisis as banks started disbursing loans to individuals, developers and institutes. Prominent asset classes like residential, commercial and retail have witnessed unprecedented growth. Some of the other asset classes like industrial, data centre etc have also seen traction in the recent past. This article is dedicated to highlighting the corporate restructuring (with a specific focus on mergers and acquisitions) that takes place in the real estate industry which accelerates the overall growth of the sector as well.

Contribution of the real estate in Indian Economy 

The contribution of the real estate sector to the Indian economy can be better understood by statistical data has have been provided hereunder:

  1. The real estate sector in India is expected to reach US$ 1 trillion in market size by 2030, up from US$ 200 billion in 2021 and contribute 13% to the country’s GDP by 2025.
  2. This sector contributes 2nd highest employment. 
  3. The construction industry holds 3rd rank among 14 major sectors declared by the Indian Govt. 

Reasons conducive to Indian real estate growth

contract drafting
  1. Rise of millennials – Traditionally, real estate was touted as a self-use product. However, millennials have started considering this sector as an investment opportunity. Hence, significant demand has been witnessed in the residential sector. 
  2. Government thrust- to foster the sector. I.e incentive schemes to developers developing new asset classes like IT hubs, Industrial / Logistic parks, rebates or tax relaxation have been introduced to first home buyers etc. Alternative housing fund (AHF) and Alternative investment fund (AIF) have been set up to compensate for the shortfall of the micro financing of Housing financing companies and complete the stalled 1600 stalled housing projects across top cities of India, respectively. 
  3. Relaxed rules- The government has relaxed the rules for PE investment in India, which has increased the cash flow in this sector. 
  4. SEBI’s role- The Securities and Exchange Board of India (SEBI), comprehending the government thrust for real estate, has approved the Real Estate Investment Trust (REIT) platform, which will permit all investors to invest in this sector. It is expected that this would be an opportunity of Rs. 1.25 trillion (US$ 19.65 billion) in the coming future. 

Merger and acquisition in the Indian real estate sector

In the fast-paced society, the traditional approach of generic growth and development has taken a back seat. Generic growth approach is time consuming and developing expertise in the domain results in substantial resource deployment. Some of the options explored by entities for the development are joint venture, joint development and M&A. 

M&A in nutshell 

When 2 or more investors/ developers/ institutions form a new entity for resource sharing, to expand their footprints in the market or for any other reason which may be strategic to their business is called a merger. When one investor/ developer/ institution acquires the resources/ business/ idea etc of the other investor/ developer/ institution is called acquisition. Generally, companies opt for this route to venture into new markets or strengthen their position in existing markets, acquire new expertise, become more competitive and increase profits. Some of the common types of mergers are conglomerates, horizontal/vertical mergers, market and product extensions. 

M&A deals in 2022 have increased by 126% compared to 2021, the primary reason cited by the industry is a rise in strong domestic demand and healthy corporate financials. Furthermore, low-interest rates up to H1 2022 have been an impetus to the situation. 

Key reasons for the rise of mergers and acquisitions

Other than aforesaid reasons there many some of the key reasons for the rise of Merger and acquisitions are as follows: 

  1. Expansion of real estate in Tier 2 and Tier 3 cities : 

Post covid many industries such as the IT sector have started expanding their presence in tier 2 and tier 3 cities to reduce employee concentration in the metro cities, also known as the hub-spoke model. Tier 2 /3 cities have lower infrastructure costs and availability of talent pool at lower salaries. However, the biggest challenge in aforesaid cities is the limited availability of Grade A or fully compliant commercial spaces. Primarily, the key reason is the limited construction knowledge and technical know-how of the developer. Hence, some of the notable developers are tying up with fund houses to increase their resources to expand in tier 2 and 3 cities.  

  1. Better bargain deal for landlord and developers: 

Land parcels with significant ticket sizes will have a limited target audience or developers. Upfront payment in case of a bigger land parcel will attract some negotiation or disposition timeline would be higher. In such cases, a merger between the developer and landlord plays a vital role. Landlord and developer form a new entity wherein the landlord brings land as equity and the developer shall bring the funds for the development. If the developer brings funds equivalent to land value then the new entity shall have a 50:50 holding pattern or alternatively holding pattern would be determined by the funds injected in the new entity. 

  1. Portfolio diversification: 

The availability of cheap funds by foreign investors/institutions and the conducive environment of India have been an impetus in making India a hot investment destination. A good amount of transactions have been witnessed in the Industrial & logistic sector, this is in a nascent phase when compared to other developed countries. Some of the notable institutional players in this sector are Indospace, ESR, Blackstone etc. Organic development shall take a good amount of time hence M&A is a better alternative. Moreover, many big institutions and industrial houses are eager to create long-term income-yielding portfolios, without diverting their concentration from their core business, hence they prefer to acquire stable rented assets. 

  1. Rise of alternative sectors or specialised sectors: 

New age concepts are also becoming prevalent in this field such as data centres, cell towers, life science labs, financial / IT hubs, senior citizen living, co-working / co-living etc. The success of such projects requires pre-requisite experience, domain expertise, upfront fund deployment and most important network to attract end users.  Hence, comprehending above situation developers/ institutions/ PE partners with different domain expertise form the merged entity for the new development. 

Few notable M&A transactions and announcement 

  1. Blackstone, one of the notable private equity investors, is bullish on Indian real estate and has significant investments worth INR 3.8 lakhs crore as of 2022. They are looking to invest an additional INR 1.7 lakh crore by 2030. 
  2. Post Covid in April 2021, many real estate projects were looking for capital infusion for completion. Assessing this sweet opportunity, HDFC Capital Advisors (HDFC capital) collaborated with Cerberus Capital Management (Cerberus), a US-based private equity player, to form the platform which shall focus on the purchasing of residential inventory and funding projects which are on the verge of completion.  
  3. To expand its footprint in Indian real estate, Blackstone in May 2021, acquired the Embassy Industrial park portfolio at INR 5,250 crore (US$ 716.49 million). 
  4. In June 2021, GIC acquired a small portion of Phoenix Mills’ portfolio (worth US$ 733 million). This is a diversified portfolio having investments in all the asset classes, however primary focus is on the retail sector. 
  5. In November 2021, the largest deal of the standalone commercial tower by the global institutional player was observed. Ascendas India, Property Fund trustee manager a wholly owned subsidiary of Singapore-listed Capital and Investment, bought Aurum Ventures’ 16-storey commercial tower in Navi Mumbai for INR 353 crore (US$ 47 million). 
  6. In March 2021, Godrej Properties acquired equity shares of HDFC Venture Trustee Company in Godrej Realty, hence increasing the stake from 51% to 100%. 
  7. In January 2021,  Sabha Highrise Ventures Pvt. Ltd. acquired a 100% stake in Annalakshmi Land Developers Pvt. Ltd. Acquiring company is a wholly owned subsidiary of SOBHA Limited, a prominent Bangalore-based developer. 

Reasons which can dispel M&A 

  1. Nowadays, unprecedented situations have increased greater fold, if a contract does not have water-tight clauses to handle such situations then it can jeopardise the merged entity. 
  2. Nowadays, ESG (Environmental, social and governance) is becoming part of corporate responsibility. Hence, most of the fund houses and PE institutions scout for partners with the same determination. 
  3. Global slowdown and restriction on the free fund flow have been anticipated by most of the notable economists of the world. This can have a detrimental effect on the M&A. 
  4. The merger brings two entities under one roof for the development. It is prudent for parties hereto, to do proper due diligence of the background. It has been observed that embezzlement or non-compliance by the parent company has serious repercussions on the newly formed entity. 

Conclusion

In the past decade, Indian real estate has grown at a steady pace, moreover, the Indian real estate sector has shown resilience post-pandemic crisis. Domestic demand remains strong in all asset classes, supported by government actions. Expectation and anticipation of real estate growth in the Tier 2 and Tier 3 cities is a vital factor for this sector.  Considering the above factors M&A activities remained strong in the previous years and the same could be expected in the coming years. The introduction of the laws pertaining to real estate by the government shall further foster M&A activities in the coming years. 


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Specific performance under Contract Law

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This article has been written by Albinita Pradhan, pursuing Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution and has been edited by Oishika Banerji (Team Lawsikho). 

It has been published by Rachit Garg.

Introduction

Performance of contract means where both parties are legally bound to fulfil their obligation/duties created under the contract terms. The parties are bound to fulfil their reciprocal promises in the contract. When either of the parties does not fulfil its obligations as per the terms of the contract then the party to whom the breach is so caused shall sue for specific performance of a contract. It is an equitable relief given by the court in the form of an award for the completion of the performance of a contract. This article discusses specific performance under contract law thereby focusing on other related aspects of the same.

Contracts that are specifically enforced

Cases of any contract at the discretion of the court

When an act is agreed to be performed between the parties and it is not performed, then the actual damage caused to the party purchasing cannot be ascertained.  The party purchasing can compel specifically to perform the act. When compensation is paid in damages for non-performance of the act agreed to be done then the decree for specific performance cannot be made. But compensation paid in damages cannot be compensated for contracts relating to the transfer of immovable property and in the case of transfer of movable property can be sought before the court for specific performance of a contract, provided that the goods are of unusual beauty, rarity and distinction and of special value to the party suing by reason of personal, family association or the like.

For example, D agrees to purchase and E agrees to sell a patent. D may compel E specifically to perform this said contract as there exists no standard for ascertaining the actual damages which would be caused by E’s non-performance. 

Let’s take into consideration that Y contracts to sell 100 shares of a Company to Z. Y refuses to sell a part of it. Z may compel Y to specifically perform this contract as it would not always be available in the market. 

Contracts connected with trusts

The Court may order for specific performance of contract only when the contracts agreed to be performed is for performance of a trust provided the trustee does not perform a breach of contract and does not go beyond the powers conferred in the contract.

Let’s take for example that M entered into a contract with N for distributing the assets of the trust to M’s son and grandson. N misappropriated the assets of the trust and transferred all the assets to his only son. Here the law creates an obligation on N to retransfer the assets of the trust to M’s son and grandson and M may enforce specific performance of the contract.

Part of the contracts left unperformed is small or large

No specific performance of the contract shall be directed by the court except under the following cases:

  1. When part of the contract left unperformed is small:

Section 12(2) of the Specific Relief Act,1963 explains that when the whole part of a contract is left unperformed by the party to an agreement and bears only a small proportion of the whole value, can be estimated in compensation in money and the court may direct specific performance of contract at the suit of either of the parties and award compensation in money to the party to whom damage is so caused.

  1. When part of the contract left unperformed is large:

Section 12(3) of the Specific Relief Act, 1963 explains that when a party to a contract is unable to perform the whole or part of it and where compensation in money can be estimated or not, the party filing the suit is not entitled to obtain the decree for specific performance of contract provided that:

  1. The party in default agrees to perform his part of the contract left unperformed by paying compensation in money for the whole of the contract reduced by the consideration amount for the part left unperformed; or
  2. Has agreed to pay the compensation in money without any abatement; or
  3. Through the default, the defendant relinquishes all the claims of performance of part of the contract and compensation in money for the loss/damages sustained by him, in either of the cases.
  4. When a contract consists of separate and independent parts:

Section 12(4) of the Specific Relief Act, 1963 states that when a contract consists of a separate and independent part from another part of the same contract which cannot be specifically performed, then the specific performance of the former contract can be enforced by the court.

  1. The contract having imperfect title:

Section 13 of the Specific Relief Act, 1963 explains the rights of purchasers who have imperfect titles in immovable property. The following are the rights of the purchaser:

  1. When the landlord acquires any interest in the property.
  2. When concurrence or conveyance by another person(s) is necessary to validate the title.
  3. When mortgaged property is sold to a vendor or is left with encumbrances or charges whatsoever.
  4. When a suit is filed by a vendor for specific performance of the contract and is dismissed on grounds of imperfect title to the property.

By whom the specific performance can be obtained 

The specific performance of a contract can be obtained by any party to suit its representative-in-interest or the principal.

Against whom contracts can be specifically enforced

Specific performance of a contract can be enforced against:

  1. Either of the parties to a contract.
  2. When the contract is made by fraud, mistake of fact or misrepresentation and the terms that were agreed between the parties have not been mentioned in the contract.
  3. When the seller knows that he has no title to the property contracted to sell.
  4. When a time is given to the seller to clear the doubts of the purchaser with respect to the title to the property he contracted to sell.
  5. Any person who has no notice of the original contract and pays money in good faith.
  6. Prior to entering into a contract any person known to the plaintiff claims under a title, might have been displaced by the defendant.
  7. The new company arises after the amalgamation of two companies.
  8.  To the company, when the promoters enter into a contract warranted by the terms of its incorporation.

Discretion and powers of the court

Provisions regarding the discretion and powers of the court in granting or rejecting the specific performance of contract have been explained in sections 20 to 25 of the Specific Relief Act, 1963 as under:

1. Jurisdiction to decree specific performance:

The power of the court is discretionary and not arbitrary but sound and reasonably guided by judicial principles and capable of correction by a court of appeal. Below cases are the circumstances under which the court may exercise discretion not to decree specific performance:

1. Circumstances under which the defendant was misrepresented by the plaintiff or a fraud was committed on his part.

2. When a defendant enters into a contract with the plaintiff and the contract is silent which he did not foresee and where specific performance is refused by the plaintiff for its non-performance.

c. Circumstances under which the defendant refuses to enforce specific performances.

Below cases are the circumstances under which the court may exercise to decree specific performance:

a.  When a substantial act has been performed by the plaintiff or he has suffered losses in consequences of a contract capable of specific performance.

b. When the specific performance of the contract shall not be refused by the court at the instance of either of the parties merely on the ground that the contract is not enforceable.

2. Award compensation:

The amount of compensation shall be awarded by the court by following the principles specified in Section 73 of the Indian Contract Act, 1872 and the compensation will not be awarded unless the plaintiff claims for its breach. Provided that the court may at any stage of the proceedings allow the plaintiff to add a claim for breach if the plaintiff has not claimed for it.

3. Specific performance of a contract for the transfer of immovable property:

 The court has the power to grant relief to which the plaintiff may be entitled unless it has been specifically claimed by the plaintiff.

4. Liquidation of damages:

When the amount to be paid for the breach has been mentioned in the terms of the contract, then it does bar the court to decree specific performance.

In the case of Mukesh Singh and Ors. vs. Saurabh Chaudhary and Ors (2012), it was stated that there was an agreement to sell the property by the plaintiff to the defendant and the agreement to sell was also registered for consideration of Rs. 35 lakhs. Rs. 10,00,000/- was paid to the plaintiff by the defendant as an advance amount for the property which shall be adjusted in the total agreed consideration. After the cross-examination of both the plaintiff and the defendant and their witnesses it was observed by the court that the defendant is ready to return the advance amount with interest to the plaintiff and plaintiff’s willingness to perform their part of the contract was proved by documentary evidence. Once it is proved by the court that the registered agreement was executed lawfully by the defendant and signed by the defendant’s witness, the plaintiff cannot be barred from filing a suit against the defendant for the specific performance of the contract and the court has not committed any error of law from decreeing the suit for specific performance of a contract.

5. Compensation for breach after the dismissal of suit:

The plaintiff’s right to sue for compensation for a breach shall be barred after the dismissal of the suit and not for any other relief. To invoke the clauses of specific performance of a contract, the injured party must prove before the court that the agreement he entered into was executed lawfully and compensation in money is not sufficient. The clauses of the specific performance of the contract are a relief for either of the injured party when compensation in money is not sufficient.

Conclusion  

When monetary compensation alone would not be sufficient, a specific performance clause is meant to safeguard both parties to a contract or agreement. This could entail the purchase or sale of distinctive goods like real estate, works of art, or other priceless items. Generally speaking, a specific performance clause is enforceable if it is fair to both parties and the injured party can demonstrate that the defendant breached their obligations while upholding their own. Additionally, the injured party must show that monetary compensation is insufficient.

References

  1. https://www.investopedia.com/specific-performance-clause-5536830.
  2. https://districts.ecourts.gov.in/sites/default/files/the%20contours%20of%20specific%20performance%202.pdf.

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Brain fingerprinting and evidentiary analogy

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Information technology

This article has been written by Soham Goswami, pursuing a Diploma in Technology Law, Fintech Regulations and Technology Contracts at LawSikho.

It has been published by Rachit Garg.

Introduction

With growing science and technology, we have witnessed the world changing in various fields. Every field is going hand in hand to keep pace with new technologies. When we are witnessing technological growth in all fields, why will our legal field be left behind? We have also seen several technological changes in the fields of law and forensic science. 

Forensic science plays a crucial role in the legal system, especially when the question of evidence arises. It assists in collecting, matching, and analysing evidence to solve criminal cases and helps in judicial proceedings to provide justice to victims. With advancements in technology and science, various new and efficient forensic techniques have been developed that help in the investigation process. One such technique is “Brain Fingerprinting”. Brain fingerprinting depends upon technology, but in some situations when technology or forensic science does not play any role in the field of law, the legal system depends upon a certain procedure or process that helps in establishing the guilt or innocence of an accused person by relying on the facts of previous cases, and this process is known as “Evidentiary Analogy”. You’ll understand this statement better as we dive deeper into the topic.

What is brain fingerprinting

The story begins in 1995, when Mr. Lawrence A. Farwell,  Director and Chief Scientist of “Brain Wave Science”, IO WA, first developed and patented the brain fingerprinting technique.

Brain fingerprinting is a forensic technique that uses Electroencephalography (EEG) to detect unique brainwave patterns that correspond to specific memories or knowledge. This technique has been used to determine whether a suspect knows about a particular crime or event. This technique is relatively new and gaining popularity in the legal system. 

The main function of brain fingerprinting

Brain fingerprinting is a forensic scientific mechanism or method to detect secret information or concealed information stored in the brain by measuring Electroencephalographic (EEG) brain responses, or brainwaves, non-invasively by sensors on a headband placed on the scalp.

What is the mechanism of brain fingerprinting

The Mechanism or Technique involves the presentation of words, pictures, and videos of different kinds of sound which are related to the crime scene and is done  in the following manner:- 

A  sensor-fitted headset with two electrodes is put non-invasively on the head or is placed on the scalp that covers the forehead between the eyebrows and the back of the head, where the brain stores experiential memory. One electrode is put on the forehead, and the other is put on the back of the head. That electrode is now connected to a computer or laptop with brain fingerprinting software via Bluetooth. After that, various kinds of pictures, words, phrases, videos, and other relevant materials are shown in a series or in an organised pattern that contains salient details about a crime or investigates the situation on a digital screen. It can be a computer, laptop, or anything else. If the brain somehow recognises that presentation or recognises something significant in that current context, then the brain sends a specific, measurable brain response known as P300 to the software.  The response is characterised by a specific brainwave pattern, also known as P300-MERMER (“Memory and Encoding Related Multifaceted Electroencephalographic Response”), which is captured during that process. And that response helps in analysing whether or not the specific information is stored in the brain of that person, which helps in the investigation and the collection of evidence.

Brain fingerprinting in Indian law

Brain fingerprinting has been used in India by the National Investigation Agency (NIA) in the investigation of terrorist activities. Investigative agencies have also used this technique to determine the truthfulness of a suspect’s statement and obtain information about their involvement in a crime. 

The NIA used brain mapping, or brain fingerprinting, to crack the 2006 Malegaon bomb blast case, in which six people were killed and a hundred others injured.

Recent updates on brain fingerprinting and judicial precedents

However, using brain fingerprinting evidence in Indian Courts has been a subject of debate. Let’s take a look at some of the Indian cases and news stories in which brain fingerprinting came into context.  

Recently, CBI officers probing the alleged rape and murder of a 19-year-old Dalit girl in Hathras, Uttar Pradesh, arrived at the Gandhinagar – based Forensic Science Laboratory (FSL) with the four accused for their brain electrical oscillation signature profiling (BEOSP) test to be conducted. 

Dr. Purshottam Swaroopchand Soni vs. The State of Gujarat (2007)

In the case of Dr. Purshottam Swaroopchand Soni vs. The State of Gujarat, the Gujarat High Court gave permission to undergo brain Mapping/brain fingerprinting In order to establish the innocence of the accused, the court permitted him to undergo brain fingerprinting.

State of Gujarat vs. Inayat Ismail Vohra (2013)

In the case of State of Gujarat  vs. Inayat Ismail Vohra, the Gujarat High Court did not permit the patient to undergo brain mapping/brain fingerprinting because it was not in a proper stage to undergo brain mapping/brain fingerprinting. It was submitted that such an application at the crucial stage of the trial is nothing but an attempt to derail the proceedings. Referring to the impugned order, it was pointed out that the learned judge has not recorded any reasons justifying the purpose for undergoing the test, and neither has the accused person justified the purpose for undergoing such a test.

Admissibility of brain fingerprinting in India  

The admissibility of brain fingerprinting as evidence in court is still a matter of debate in India. The Supreme Court of India has not yet definitively ruled on the admissibility of brain fingerprinting as evidence in court. Therefore, it is up to the discretion of individual judges to decide whether or not to admit the results of brain fingerprinting as evidence in a trial. 

In 2010, the Supreme Court of India passed a judgement in the case of Selvi & Ors vs. State Of Karnataka & Anr (2010), where the bench observed that narco analysis, polygraph, and brain mapping tests cannot be forced upon any individual without their consent. The Honourable Supreme Court also states that investigation agencies should follow the guidelines issued by The National Human Rights Commission, Guidelines for the Administration of Polygraph Tests (Lie Detector Tests) on an Accused (2000).  In that judgement, the Court also stated that the test result cannot be admitted solely as evidence. However, any information found or discovered during the forensic test can be made part of the evidence.

Brain fingerprinting in foreign law 

Brain fingerprinting has been used in other countries as well, with some legal systems accepting it as valid evidence while others do not. In the United States, brain fingerprinting evidence has been admitted in some criminal trials, although it has not been universally accepted. 

Grinder’s case was the first time Farwell’s technique was used in an investigation. 

Evidentiary analogy

The evidentiary analogy refers to the use of evidence from similar cases to support the conclusion of a current case. It is a well-established principle in the legal system and is used to determine the guilt or innocence of a suspect. Let us look at how evidentiary analogy is used in the legal system. 

Evidentiary analogy in Indian law

In India, evidentiary analogy is used to determine the guilt or innocence of a suspect. The Supreme Court of India has held that evidentiary analogy can be used to support a conviction, provided that there is a sufficient degree of similarity between the cases being compared. 

One such case is Maruti Navnath Sonawane vs. The State Of Maharashtra (2002), where the Bombay High Court held that the prosecution can rely on the evidence from similar cases to establish the guilt of the accused. The Court also held that such evidence should be used with caution and only in cases where it is necessary to do so. 

Brain fingerprinting vs. Evidentiary analogy

Brain fingerprinting and evidentiary analogy are both methods of determining the truthfulness of a person’s statement. Brain fingerprinting uses EEG signals to determine whether or not a person is telling the truth, while evidentiary analogy relies on observations of behaviour to make this determination as well as various factors involved. While both techniques have been used in various cases in India, several differences between them make one more effective than the other in certain situations:-

Brain fingerprinting is a relatively new concept in the criminal justice system that involves the use of neuroscience to determine whether a person has specific knowledge related to a crime. This is done by measuring the EEG signals in the brain. It only detects information-processing brain responses that reveal the information stored in the subject’s brain. It does not detect how that information is stored. Whereas evidentiary analogy is an entirely different process where the present case is being compared with some previous cases, there must be a sufficient degree of similarity between the cases being compared, and that should be used cautiously only in cases where it is necessary to do so. This can be done by using previous cases with similar facts to establish a pattern of behaviour or to establish that a particular individual was likely responsible for the crime. 

Brain fingerprinting requires specialised equipment that may not be available at all times or locations. Till now, states like Karnataka, Maharashtra, and Gujarat have installed brain fingerprinting technology, which simply means it is limitedly available and it could take some time before someone can get access to this equipment and bring it into play, but hopefully in the future this will be available in various other states as well. In contrast, the evidentiary analogy doesn’t require any special tools; all you need is the perfect procedure.

The use of brain fingerprinting has been somewhat controversial; issues like human rights violations and the right to privacy are major concerns, with some critics arguing that it is not yet sufficiently reliable to be used in the courtroom. However, proponents argue that it can be a useful tool in certain cases, particularly those involving terrorism or other high-stakes crimes. Evidentiary analogy, on the other hand, has been a well-established concept in the criminal justice system for many years. It can be a powerful tool for establishing guilt or innocence, particularly in cases with a high degree of similarity between the facts of the case and the facts of previous cases.

Conclusion

Brain fingerprinting and evidentiary analogy are two distinct concepts that can be used in the criminal justice system to establish guilt or innocence. While they are different, they can be used together in some cases to provide a more complete picture of evidence. Brain fingerprinting is a relatively new and innovative technology in the field of forensic science. It has the potential to revolutionise the investigation process, which can also contribute a lot to the process of investigation and evidence collection.  Brain fingerprinting is still in its early stages; it will require more and more research to have a greater impact on the field of forensic science. 

Several Indian and foreign case laws have played a significant role in the development and acceptance of brain fingerprinting as a scientific tool for forensic investigations. As brain fingerprinting is evolving and contributing to the process of investigation and forensic science, it will likely become more widely accepted in the upcoming years in criminal and forensic investigations. But it is important to use these techniques fairly and ethically, and they do not violate an individual’s right to freedom. In the end, the main goal of both Brain fingerprinting and evidentiary analogy is to ensure justice and maintain law and order in our country so that the guilty are punished and the innocent are protected from wrongful conviction. 

References


Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

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Impact of COVID-19 on employee onboarding

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This article has been written by Tonia Lawrence, pursuing a Diploma in Labour, Employment and Industrial Laws for HR Managers from LawSikho and has been edited by Oishika Banerji (Team Lawsikho). 

It has been published by Rachit Garg.

Introduction

The first day at a new job is always exciting for an individual, more so if you are a fresh graduate or if it’s your first job. Though the excitement comes along with anxiety about the new environment, an effective onboarding puts the employees at ease and starts off the journey on the right foot. New employee welcome celebrations, introduction to peers, welcome kits, orientation programs, etc provide various occasions for in-person interaction which in turn leads to a healthy start to gel with the new surroundings and work. This article discusses the impacts of COVID-19 on employee onboarding. 

How COVID-19 impacted socialising at work

The business world was forced to make drastic changes to the workplace when the COVID-19 pandemic had hit the world. All the companies had to build a business continuity plan quickly to float through the unknown times. Social distancing has kept individuals from coming to the office, social interactions were nullified, and the concept of work-from-home has taken root which in turn disrupted the employee experience. The Human Resources department now had to face the most difficult situation as every function that was once interaction based, had to be remote. The recruitment, interviews, onboarding, orientation, and work were held online. With the limited interactions, the non-verbal feedback was close to nil. The intangible aspects of working from the office were absent. The human resource had to place employee well-being and mental health as a priority failing which in turn reduced productivity.

Accommodating the new onboarding process

Adapting to the new situation was the need of the hour. Companies of all sizes had to move online for continuity of business. As the first step, a communication platform for the employees had to be set up if not already implemented. An online employee portal, where the employee can log their time, can access the handbook, policies, contacts, training manuals, and other important company documents. Introductory video meetings with the manager and the teammates are critical to know the people who the employee will be working with and to develop a good relationship with them for a long-term association.  

The onboarding team of the company should have a meeting with the new employees to give a walk-through of the policies and their expectations when working remotely. Their point of contact for queries should be informed of any clarifications in the future.  While designing the onboarding process, care was to be taken to include different types of content to keep the employees engaged and for the process to be effective. The goals to be achieved were to be realistic and should not burden the employee.

To find out if the new process was being welcomed or if there were any hiccups, a feedback system was considered to be helpful for the onboarding team to revisit the process and make effective changes. The repetitive documentation workload of the Human Resources Department has thus greatly reduced, thereby increasing the efficiency of the department by focusing more on the employee engagement. 

Increasing employee engagement through effective onboarding 

Employee engagement begins with the onboarding process. Effective onboarding keeps an employee engaged for a longer period.  Keeping an employee engaged was arduous during the pandemic. Creating a positive work environment was a challenge as the environment shifted from office to home. Work now had to fit the employee’s home rather than employees fitting in the workplace. Work-life balance was considered more than ever and new company policies such as paid-time-off, mental health days, and parental time off were incorporated in many companies.  

The pandemic reinvented the employee engagement process. Keeping an open and frequent communication channel was the key. Daily team meetings and frequent, transparent communication between the management and the employees developed trust in the leaders. The performance of the employees who were truly engaged could be measured by their high productivity and good quality work. This could be achieved only by keeping the communication lines open with the team and the manager. 

Organising creative team-building activities online was quite a new concept and when organised was enjoyable and increased the comradeship among the team. Dedicated social time, which the employees quite often looked forward to when in the office, had to be taken online. As lunches and sports were out of the question, the human resource team had to find creative ways to find alternatives. And they did so! Some companies even had virtual online pizza parties!

Adverse effects of ineffective onboarding

On the contrary, if the onboarding was ineffective, the employees would require more training and guidance which takes away time for real work. This increased the cost of training and brought loss for the organisation.  The sudden change from working from the office to working from home increased the work pressure which also increased the feeling of insecurity about the job. If the job expectations were vague with infrequent communication, the employees tend to perform less and become dissatisfied with the job quickly. Thus, ineffective onboarding leads to attrition and even moonlighting. 

Though the initial months of the pandemic saw companies laying off employees, afterwards the environment changed as there was massive recruitment in technology companies. The disengaged seemed to find new work and jump ship frequently. 

Current state of onboarding

The changes brought about by the pandemic in the onboarding process have had many positive impacts on companies. The pandemic has revealed the pitfalls in the traditional onboarding process, and companies have revamped their process to maximise productivity and effectiveness. 

Advantages witnessed

The manual documentation and paperwork had moved to the online portals and the hassle of organising and managing them was eliminated. The repetitive tasks have been automated and hence increase efficiency and reduce time. All the documentation will be available readily in the portal, thus saving time and reducing stress for the HR department. The information in the portal will be consistent and can be updated if required without the struggle of paperwork. The documentation through the portals ensures that the data entered are correct and without errors. This helps in adhering to the compliance rules. 

The one-on-one training has moved online, which helps the new hires revisit the sessions and clear their doubts at ease, thus saving time and increasing productivity. A mentor or buddy can be assigned as a point of contact for the employee. As all the new hires go through the same onboarding program and tutorials, there is no ambiguity, which helps them start their job confidently and produce positive results. This increases employee satisfaction and helps in being an engaged and motivated employee. 

Since a solid remote onboarding process is in place, the employees can work from anywhere and still be connected to the system without being left out. This in effect helps businesses acquire talent from anywhere around the world and onboard them easily. An effective onboarding system helps employee retention thus reducing hiring costs and increasing efficiency. 

Disadvantages experienced

Though there are many advantages to the new online onboarding process, there are disadvantages also.

  • A poorly planned onboarding program will be ineffective and will only increase the cost of the operation. 
  • Some employees may feel isolated without direct interactions as in-person interactions can build relationships faster than online modes.
  • If there is too much information, the employee may feel the process is too overwhelming.
  • An employee might feel disengaged due to lack of in-person interactions.
  • Teamwork might be affected due to lack of communication or misunderstanding in the team. 

Conclusion

For remote onboarding to be successful the following steps have to be followed:

  1. The employee must be briefed clearly about the onboarding process and realisations must be set.
  2. The online training and other resources must be easily accessible to the new hire.
  3. A feedback system should be implemented to resolve any issues in the process.
  4. As the first step of introduction to the team, a buddy can be assigned to the employee. 
  5. Schedule video meetings with the team often, so that the employee is familiar with the team mates and feels inclusion is imbibed.

There is clear evidence that remote onboarding has multiplied efficiency and has reduced the time and cost which otherwise was reducing productivity. Since the resources are easily available online, there is much convenience and accessibility. Hence, an employee can be onboarded to the company from anywhere at any convenient time as online onboarding gives ease of use to both the employee and the company administration. 

Digital transformation of the online onboarding process has completely changed the productivity of the Human Resources department and the new hires. This, in turn, has favoured the companies that have adopted the system to perform better. Though there are some disadvantages to the online onboarding system, the advantages clearly outshine the disadvantaged. We are still in the early stages of adapting the new system but we can be sure that remote work and online onboarding are here to stay. 

References


Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

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Unveiling the dark secrets of surrogate advertising

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This article has been written by Sahil Arora, a student of Guru Nanak Dev University. Surrogate advertising is a marketing strategy used by brands to promote certain products through advertisements that appear to be promoting another product. It is commonly used in industries such as tobacco and alcohol, where advertising is heavily restricted or banned. This article will explore the various aspects of surrogate advertising and its effectiveness in building brand awareness and consumer loyalty.

it has been published by Rachit Garg.

Abstract

What comes into our mind when we hear the lines like “Men Will Be Men” or “Aaj Manao No.1 Yaari”; any CD or Soda bottle. The majority of us will say no because these lines remind us of some liquor. But what if we came to know that whatever we were seeing and understanding was incorrect, or it is better to say that we were intentionally made to see and understand those things via advertisements incorrectly. 

Also, all the things written in this article are taken from different sources like newspapers or the internet and the sources of those things are provided at the end of this article under the “references” heading.

Introduction

In India, as per the Cable Television Network Rules, 1994 (CTN Rules), any sort of advertisement which promotes any intoxicant such as alcohol or tobacco, in any form is strictly prohibited. But if this is the case and moreover if there are rules specifically prohibiting these advertisements also, then how do people in general come to know about any new alcoholic beverage that comes in the market or how these hard drinks and pan masala manufacturers are able to sell their products? Not only just selling, these companies are also profiting handsomely. So how are they able to run their business? Are they doing all this illegally? If it was going on a small scale, then we might have thought of and considered it as an illegal business. But unfortunately, it is not so. In U.S., advertising is a major contributor in the country’s economy. The advertising industry contributes around 20% to the U.S. GDP [1]. Although India doesn’t spend much on advertising as compared to developed nations, but this does not mean that it does not have much influence on people’s mind. This is only advertising which motivates people to spend more, which in turn helps the economy to run and rise.  

These manufacturers are using a loophole in these advertising regulation acts, which is called “surrogate advertising” and the purpose of this article is to create awareness regarding the deceptive practise of surrogate practise prevalent in the advertising industry now a days for promoting intoxicant products. 

Meaning of surrogate advertisement

Surrogate, in simple words, means “replacement” or “taking place of somebody or something else”. Similar to the concept of surrogate mother, where a woman who cannot herself reproduce and then takes the help of another woman (surrogate mother)  to carry forward or extend her family by different medical procedures, the companies who manufacture the products which are prohibited by the government and then advertise under the name of a similar but different product, is called surrogate advertisement. 

In simpler terms, surrogate advertising is performed by companies whose products are prohibited or banned but now substitute or surrogate the brand name with another product. The motive behind doing so is to ensure that the customers can be recalled the original product in the disguise of another advertised product. This process is also called as “brand extension”.

For example, in case of tobacco products like ‘Vimal Gutka’ or ‘Pan Parag Gutka’, they are advertised in the disguise of elaichi (cardamom). Another example in case of liquor is of ‘Haywards’ or ‘Mc Dowells’ which are disguised as soda or ‘Officer’s Choice’ which is advertised as social obligation towards society. Here ‘Vimal and Pan Parag Gutka’, ‘Haywards’, ‘Mc Dowells’ and ‘Officer’s Choice’; these are all surrogate products.

How it is different from normal advertisement

In any normal advertisement, the product which is advertised is the same product which the company wants that the consumers buy and consume. The ad directly and in clear terms describe about the product and will take its generic name again and again does not talk about any irrelevant or unconnected dialogues with that product. For example- if ‘Bisleri’ runs any ad then it will take about water simple and will use the word “water” too in their ad.

But in case of surrogate advertisement, the product which is advertised is not the product which the companies and advertisers want the consumer to buy and consume. They want that through the advertisements, the consumer connect with the surrogate product and whenever they heard or see the name of that brand, they are reminded of that surrogate product only. These ads don’t openly talk about the product regarding which the ad is going on because they don’t want to divert the focus of the consumers from their surrogate products. That’s why their ads also don’t talk much about the generic product regarding which the ad is going on and they use phrases which are not much connected with the advertised product. Example-‘Mc Dowells’ products are advertised like they are of water or soda, but throughout their ad they nowhere use those words. Instead of it they use phrase like “Aaj Manao No.1 Yaari” or “Jashan Yaari Ka”. These lines are nowhere able to describe that how yaari (friendship) is connected to soda. These lines are just made to make the consumer remember the brand and their surrogate product. And how this happens is described in below sub-headings.

History of surrogate advertisement

Traces of surrogate advertisements can be gathered from Britain. In earlier times, there used to be advertisements which attracted the men’s to consume liquor. Seeing the bad effects of the liquor on their husband’s; the housewives started protesting against those advertisements. A ban was imposed on those ads but those liquor companies started selling fruit juices under the same brand name in which they used to sell the liquor. This was in the disguise of fruit juice that the companies were able to sell the liquor ( the surrogate product ).

Although there’s no data which can accurately tell that how much proportion does surrogate advertising constitute in the whole advertising industry, but as per a report around 2.3 billion people are currently drinkers and worldwide around 27% of all 15-19 years old are also drinkers [2]. In the year 2020, 1.3 billion people i.e. 22.3% of the world population uses tobacco products [3]. This shows that the market for surrogate advertisement could also be huge and it includes such products which are not at all beneficial to anyone.

What’s wrong with it

On the surface level, it seems like there’s only cheating or misinformation done to the consumers and the one who is of mature mind will not fall in their trap. But as shown in the start of this article, the lines used by those brands remind a common man of the surrogate product only instead of the product which is being advertised actually. A survey was also conducted in which it was found that out of 50 people watching such ads, 42 believed that they were watching a whisky or tobacco ad and thought that it is legal to advertise such products. This way not only adults but youngsters also get attracted towards these intoxicants and by seeing their favourite actors or actresses in those ads, they started believing that by consuming that product they might become like them. It is sad that the common man didn’t know and also can’t differentiate whether those actors are not aware that they are promoting a product which falls under surrogate advertising or they themselves voluntarily advertising it. There are few instances when some actors after knowing that they are promoting a banned product refused to continue with that brand. Bollywood actor Amitabh Bachchan terminates his contract with a pan masala brand and also returned the fees of that ad [4]. Similarly, actress Sunny Leone has also refused to endorse any pan masala product after the Delhi government’s appeal [5]. But still, there are many actors, cricketers, etc. who are endorsing these products even after so much criticism from the general public. 

At the start of every film no doubt there are warning ads and in between also if any smoking or alcohol-consuming scene comes there is a warning displaying that it is injurious to health. But honestly, it is not showing any positive effect. Rather by seeing such smoking and alcohol-drinking scenes, people are getting more encouraged to consume those products considering it cool. Thus, it is clear that some more stringent measures are required to be taken to curb this problem of surrogate advertisement and ways by which people not get attracted towards these products.

Effects of surrogate advertisements

In spite of the ban on the advertisement of liquor, India is the 4th largest consumer of alcohol beverages in the world. This shows that this form of advertisement is completing its objective. People without knowing the harmful effects or sometimes even after knowing but still consuming these intoxicants because of addiction or peer pressure or sometimes just to have fun. Although a simple google search can provide a list of harmful effects of liquor, tobacco and pan masala. A few of them are as follows:-

  • impact work performance
  • financial problems due to excessive spending on these substances
  • reduced sexual performance
  • serum testosterone levels are decreased
  • causes cancer, loss of appetite, gum disease, tooth decay, and heart problems
  • pregnancy complications
  • and, in a worst-case scenario, it can even result in death.

Apart from health problems on an individual level, the economy of India suffers a loss of 1% of its GDP because of diseases and early deaths from tobacco [6]

Thinking that brands by doing surrogate advertisements only, i.e. by showing different products under the same name, mislead the common public is not the complete truth. Not only do the brands provide misleading information, but in a few cases some brands are also found which provide wrong information. For instance, in the case of some pan masala products, their packaging shows that their products are nicotine free, but a test by National Tobacco Testing Laboratories (NTTL) found that they are actually nicotine positive [7]. This way even those people who consume these pan masala products thinking that it will not affect them are misled no matter they consume these products after seeing those surrogate advertisements or not.  

Legal steps are taken to tackle this issue

  • Item number 51 clause (a) of the State List of the Indian Constitution talks about ‘alcoholic liquors for human consumption’ and thus it gives the state legislature the power and right to make laws related to the alcohol business in the state.
  • Article 47 of the Indian Constitution which falls under the Directive Principles of State Policy (D.P.S.P.) puts a duty on the State to improve the health of the public. To achieve it the State should make endeavour to bring about prohibition of the consumption of intoxicating drinks which are injurious to health.
  • “ASCI (Advertising Standard Council of India)”, a non-profit company formed under the Companies Act to safeguard against the indiscriminate use of advertising for the promotion of products which are regarded as harmful to society or to individuals. Clause 6 of this ASCI Code specifically prohibits surrogate advertising along with laying down criteria for deciding whether an ad is ad indirect advertisement or not. 
  • Some regulations for such advertisements are also prepared by ASCI, which are as follows:
  1. The surrogate advertisements cannot make hint towards any banned product. 
  2. Product extension must be genuine, which means that the things which the companies are advertising should be the one displayed in those ads and should exist in reality also.
  3. The product sold under the brand extension must have at least 10% in-store availability of the leading brand in the product category.
  4. The brand extensions must be registered with a government authority like the FDA or FSSAI.
  5. These brand extensions must be audited by independent organisations like NielsenIQ.
  6. Net sales turnover from the product must be at least Rs. 5 crores per annum nationally or Rs. 1 crore per annum per state where distribution has been established.
  7. Asset investment proof can also be shown, which must be made for that product with a value of at least Rs. 10 crore.
  • As per Rule 7(2)(viii) of “The Cable Television Networks Rules, 1994 (CTNR Rules),”  it prohibits advertisement which directly or indirectly promotes the sale, production or consumption of liquor, tobacco products, cigarettes, alcohol or other intoxicants.
  • Section 5 of “The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003” prohibits the advertisement of tobacco products via direct or indirect means.
  • A Bill named “The Prohibition of Publication or Telecast of Vulgar, Obscene and Surrogate Advertisements and Re-mix songs by Print and Electronic Media Bill, 2004” is also pending but this contains definitions and provisions related to surrogate advertising and also restrictions on the publication of the substitute ads.
  • “The Ministry of Information and Broadcasting (MIB)” of India issued an advisory to private satellite TV channels and instructed them to ensure that any sort of intoxicant like liquor or tobacco is not advertised directly or indirectly on their channels, in violation of the existing law, namely the CTNR.    
  • WHO Framework Convention on Tobacco Convention” was also developed in response to the globalization of the tobacco epidemic. This convention protects and reaffirms the rights of the people to the highest standard of health. India also ratified this Convention on 5th February, 2004 and the Convention came into force on 27th February, 2005.
  • At ground level also authorities are working to control this issue. The Patna state health department imposed a comprehensive ban on 12 brands of pan masala when it was found that they contained harmful chemical ingredients.
  •  Prohibition has been imposed on the manufacture, production, import, export, transport, sale, distribution and advertising of e-cigarettes.
  • A petition was also filed in the High Court of Delhi to ban the sponsorship of the ‘Wills’ brand which was a cigarette manufacturer under ITC. During the pendency of this petition only, ITC voluntarily withdrew its sponsorship from the Indian Cricket Team in 2001 [8].   

Other steps taken and/or required to be taken

  • Sponsorships and events organised by these brands should be banned.     
  • Recently, BCCI bans certain brand categories from sponsoring Team India while inviting tender for sponsor rights. The category includes alcohol products and tobacco also.
  • Many actors, as mentioned above, are now withdrawing from doing any sort of ads which promotes any intoxicant substance.
  • The general public and cricketers, including ex-cricketers like Gautam Gambhir, are becoming aware and now also criticizing persons who are doing pan masala ads.
  • The actors who are shown smoking or drinking in the films should come forward in the ads played during the interval of the films and urge viewers not to get attracted by those scenes and stay away from such products. 
  • Those actors who are not consuming real intoxicants in the films should be made known to the public.
  • And at best, if possible, no such scene should be shown in the films at all.
  • No doubt from these products the government is earning taxes and running its other important operations. But risking the lives of its natives in exchange of money is not a good deal in any sense. So the government should also instead of declaring those products as illegal, should totally or gradually ban them in every aspect.
  • Also, if the issue of brand extensions can’t be solved in these product cases, then a rule should be made that the products should not come under a single brand name or in similar packaging because of which confusion is created in the minds of consumers and the advantage of this is taken by those brands.   

Loopholes

  • There are no restrictions on internet sales or the sale of small packets of cigarettes or other tobacco products.
  • In spite of the ban on the manufacture and all of e-cigarettes, there is no restriction on their use.
  • There’s no law under which an authority is empowered to regulate the contents of cigarettes. It is not required for manufacturers and importers to disclose to the government authorities the contents and emissions of their products.
  • Also, the Centre is deciding to put a ban on the sale of loose or single cigarettes, but nowhere is it told how they will a check that this rule is being implemented.
  • Even though a condition is imposed that 85% of tobacco products are to be covered with health warning labels, not much impact can be seen on the consumers. 
  • Although surrogate advertising is banned for tobacco products, it is legal in the case of alcohol.
  • Although ASCI has time and again banned surrogate advertisements of some liquor companies, but at the same time it has been told that the advertisements against which complaints have been upheld could be published if they are suitably modified [9].    
  • Similar is the case where products which were found to be nicotine positive but actually advertising as nicotine free, the brands were told that if they come with confirmation that contaminations have been removed and they will follow FSS Act norms, then they can be allowed to do business. This shows that how easy it can be for such brands to go on by just making a few modifications in their ads and products [10]. 
  • The brand extension products are also many times not available in the market which shows that the regulations of ASCI are also not being properly followed.
  • Few courts in their judgements are also lifting the state-imposed ban on the sale of chewing tobacco by calling the prohibitions illegal and unjustified [11]. And a few state health departments are also considering appealing against the orders of the court regarding the prohibition on the sale, manufacture or transport of tobacco-based product [12]

Conclusion

Although much effort are being done by every part of society including the government, NGOs, courts and individuals at different levels but till the time the government not ban these products completely, i.e. ban them in every aspect, from production and all to consumption and use, there will be no stoppage from companies in promoting and advertising their intoxicated products. For instance, only declaring cigarettes illegal in India will not have much effect on its consumption. Because direct advertising of such products is prohibited by the government, these brands and companies will keep on finding one or other loophole to sell their products and consumers will also consume these intoxicants.

References

  1. https://www.ana.net/content%20/show/id/37679#:~:text=%E2%80%9CThe%20very%20fact%20that%20this,not%20subjected%20to%20a%20tax
  2. https://www.who.int/news/item/21-09-2018-harmful-use-of-alcohol-kills-more-than-3-million-people-each-year–most-of-them-men#:~:text=An%20estimated%202.3%20billion%20people,Europe%20and%20the%20Western%20Pacific
  3. https://www.who.int/news-room/fact-sheets/detail/tobacco 
  4. https://indianexpress.com/article/entertainment/bollywood/amitabh-bachchan-terminates-contract-with-pan-masala-brand-returns-fees-7564906/ 
  5. https://m.economictimes.com/magazines/panache/sunny-leone-supports-delhi-government-refuses-to-endorse-pan-masala/articleshow/50636020.cms 
  6. https://www.who.int/india/news/detail/09-02-2021-india-loses-1-of-its-gdp-to-diseases-and-early-deaths-from-tobacco-use-finds-who-study 
  7. https://timesofindia.indiatimes.com/city/patna/nicotine-found-in-7-pan-masala-brands/articleshow/71248360.cms 
  8. https://www.itcportal.com/media-centre/press-releases-content.aspx?id=248&type=C&news=ITC-decides-voluntarily-withdraw-sports-sponsorships 
  9. https://m.economictimes.com/industry/cons-products/liquor/asci-bans-surrogate-advertising-of-12-liquor-companies/articleshow/80328835.cms 
  10. https://timesofindia.indiatimes.com/city/patna/health-dept-bans-12-harmful-pan-masala-brands-in-state/articleshow/70916468.cms 
  11. https://theprint.in/feature/hard-won-gutka-ban-is-now-under-threat-this-time-from-courts/1369611/ 
  12. https://m.timesofindia.com/city/chennai/tamil-nadu-to-appeal-hc-order-on-gutka-sale/amp_articleshow/97388917.cms 

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

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

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Breach of contract case laws

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This article is written by Shristi Roongta, a student from Amity Law School, Kolkata. This article discusses the case laws for breach of contract, along with the meaning of breach of contract, its types, and the compensation to be paid for the same.

It has been published by Rachit Garg.

Introduction 

A contract is an agreement mutually entered into by two parties. A contract is an important legal document, especially in cases of trade and business, because such trade and business mainly depend on the contract. If either of the parties fails to fulfil the obligations of the contract, then it is a breach of contract. In this article, the main focus shall be on cases of breach of contract.

What is a breach of contract

A contract is said to be breached when one of the parties fails, denies, or refuses to perform his part as per the contract. Basically, when one of the parties to the contract fails to do the work for which the contract was entered into, such failure can be called a breach of contract. In these types of cases, the parties who breached the contract (“breaching party”) either pay compensation to the party who suffered a loss or fulfil the breached obligation as per the requirements of the party who suffered a loss, as such obligations are pre-listed while signing a contract. Section 73 of the Indian Contract Act, 1872 (“the Act”) deals with compensation for loss and damage caused by a breach of contract.

Let’s understand this with a simple example.

Example- ‘A’ and ‘B’ entered into a contract for the sale of pens. It was decided in the contract that ‘A’ will deliver 1000 pens to ‘B’ on March 31, 2021, for a sum of Rs. 10,000. Now, in this case, if A fails to sell either the pens or fails to sell them on March 31st, then it will be a breach of contract. On the other hand, if ‘B,’ after receiving his order, fails to pay the amount of Rs. 10,000, then there will also be a breach of contract.

In such cases, a suitable remedy is provided by the courts as per the requirements of the party or as the court thinks fit.

Legal provisions dealing with breach of contract

The Indian Contract Act of 1872 deals with the provisions of breach of contract. There are no specific provisions that clearly mention or define a breach. Although the following sections state about the breach of contract.

  • Section 37 of the Act states that it is the obligation of the parties to the contract to either perform or must offer to perform their part of the obligation as per the contract they entered into. Only in cases where the performance is omitted or excused under the Act are they not obliged to perform the contract. It is further stated that the promises made by the parties to the contract bind their representatives in the event of their deaths.
  • Section 39 of the Act describes the effect of the refusal of a party to perform their part of an obligation/promise completely. The Section states that when a party to the contract refuses to perform their part of the contract completely, the other party may end the contract unless the party refusing expresses their consent to the continuance of the contract.
  • Section 73 to Section 75 of the Act deal with the consequences of breach of contract. 
  • Section 73 describes compensation for loss or damage caused by a breach of contract. According to this Section, in a case where a contract is broken or breached by a party (“breaching party”), the party who suffered loss or damage due to the breach is entitled to receive compensation for loss or damage from the breaching party. 

The compensation shall be given in two circumstances:

  1. where the loss or damage from such a breach naturally arises in the usual course of things; or
  2. the loss or damage that the parties knew at the time they entered into the contract that such loss or damage was likely to cause from the breach of the contract.

Section 73 further states the compensation for failure to discharge obligations resembling those created by contract. It is stated that in cases where an obligation resembling those created by contract has not been discharged, the person who is injured because of this shall be entitled to receive damages from the party who broke such a contract.

Compensation shall not be given where there is a remote or indirect loss or damages suffered by the party because of a breach of contract.

  • Section 74 of the Act describes the compensation for breach of contract where a penalty is stipulated for. According to this Section, when a contract is breached, the party who complains of such a breach is entitled to receive an amount mentioned in the contract or any other stipulation as a penalty. This can happen even if the actual damage or loss is not proven to have been caused. Therefore, under this Section, a party who complains of the breach is entitled to receive some compensation in any form, as mentioned earlier, from the breaching party. 

However, if a person enters into a bail-bond or any such similar instrument under the provisions of law or under the orders of the government and gives the bond for the performance of a public duty or something that is in the interest of the public, then in these cases the person shall be liable for breach of contract and they have to pay the sum mentioned in the bond. 

  • Section 75 of the Act states that the party who rightfully rescinded the contract is entitled to compensation. According to this Section, a person who has rescinded or revoked a contract is rightfully entitled to receive compensation from the breaching party for the damage or loss that they have suffered due to the non-fulfilment of the contract.

Types of breach of contract

There are mainly four types of breach of contract:

Material breach

When a party to the contract gets less advantage or a different result than what was stipulated in the contract, that is a material breach. Basically, a material breach of contract happens when the obligation mentioned in the contract is not carried out. This is a serious breach of contract.

In the case of National Power Plc v. United Gas Company Ltd (1998), the term “material breach” was analysed by the judge, and he referred to it as “a serious violation of any of the guilty party’s responsibilities”. The judge further held that if the remedy for material breach of contract was not initiated within seven days, then the contract would be terminated.

Minor breach

A minor breach or partial breach of contract happens when the party receives the obligations as stipulated in the contract. However, the breaching party did not complete or failed to fulfil some parts of the contract. A minor breach of contract is also known as an ‘immaterial breach.’ This generally happens when a major portion of the contract is fulfilled and only a minor portion has not been fulfilled by the breaching party.

In the case of Rice (t/a the Garden Guardian) v. Great Yarmouth Borough Council (2003), the UK Court of Appeal held that if there is a clause in a contract stating that the contract should not commit a breach of any of its obligations or else the contract would be terminated under the contract, the clause must not be taken exactly because it would be contrary to business sense to allow any breach irrespective of the fact that such a breach is a minor one. 

Anticipatory breach

An anticipatory breach is basically an anticipated breach of contract, meaning an expected breach. In this type of breach, one party anticipates that the other party will not fulfil their part of the obligation. In such cases, an actual breach has not happened yet. In anticipatory breach cases, the party’s intention to break or breach the contract is indicated. The contract can be terminated if such a breach happens. Under Section 39 of the Act, the party that suffered the loss can claim damages.

One of the most important cases of anticipatory breach is  Hochster v. De La Tour (1853). It was held that “renunciation of a contract of future conduct by one party immediately dissolves the obligation of the other party to perform the contract. Thus, a breach of contract by renouncing the duty to perform the future obligation immediately renders the party liable to a suit of action for damages by the injured party.”

Actual breach

An actual breach of contract is a breach that has actually happened. In this case, the breaching party has either left the obligations unfulfilled, refused to fulfil them, or has not completed them on time. The party who suffered the loss shall be eligible to claim damages.

In the case of Bishamber Nath Agarwal v. Kishan Chand (1989), it was held by the Allahabad High Court that when a contract contains specific guidelines, actions must be taken accordingly and the obligations must be fulfilled accordingly. The party cannot do it according to their wishes or schedule.

Compensation for a breach of contract

Here, compensation means remedies available in case of a breach of contract. As the Latin maxim “Ubi jus ibi remedium” states, “where there is a wrong, there is a remedy.” Hence, when a contract is breached, it is considered wrong, and the following are the remedies:

  • Damages: Damages mean compensation in monetary terms. Damages are paid to the party that has suffered a loss from the breaching party. The provisions for the same are laid down in Section 73 and Section 74 of the Indian Contract Act, 1872.
  • Injunction: When someone is restricted from doing something. In cases of breach of contract, the party who breached the contract restrains the party who suffered the loss in the form of a court order.
  • Specific performance: In specific performance, the courts direct a specific act that needs to be done in order to compensate for the loss. This condition arises when the compensation paid in monetary terms is not adequate and the dispute is not resolved. This remedy is provided under the Specific Relief Act, 1963.
  • Quantum meruit: In quantum meruit cases, the party who is suffering the loss has done a part of the contract and wants to recover the value of the work done.

Remedies for breach of contract

The consequences of a breach of contract can be endless, and the defendant cannot be held liable for all the endless consequences arising out of the breach of contract. Therefore, there need to be certain limits drawn to limit the liabilities so that beyond such a limit, no liability arises. In this context, the question of the remoteness of damages and the measure of damages becomes crucial to be determined.

Damages are paid through compensation, not punishment. The object of granting damages is to reinstate the aggrieved party in the position in which he would have been had the contract been performed.

Section 73 lays down the law relating to compensation for loss caused by a breach of contract that is not pre-fixed by the parties. 

This Section is based on the rule laid down in Hadley v. Baxendale. In this case, the plaintiff carried on a mill business. The mill was stopped due to a broken crankshaft. Defendants were the carriers who were engaged in the transportation of the part from one place to another. Defendants delayed the delivery of the shaft, and the plaintiff did not receive the shaft on time. 

It was held by the court that when two parties enter into a contract and one of them breaks the contract, the loss that the other party has incurred should arise in the usual course of things. It was further held by the court that where special damages are required, a special loss must be shown to the other party. 

This decision is based on the following rules for the calculation of damages:

  1. General damages: These damages arise naturally in the course of things from the breach itself. The defendant is liable for all consequences, which parties are generally aware of.
  2. Special damages: These damages arise on account of special or unusual circumstances. They are not natural consequences of breach.

In a claim for general damages, the plaintiff has to prove that he suffered some loss, but if he has to claim special damages, he has to prove that he has suffered a special loss.

In Madras Railway Company v. Govind Rao, the plaintiff delivered a sewing machine cloth to the railway company. They were to be sent to a place where the plaintiff is expected to carry on his business with special profits. However, due to the fault of the company, the goods were delayed, and they reached their destination when the festival was over. The plaintiff claimed a loss of profits. 

The court held that damages for loss of profits were too remote to be compensated. It is because the special purpose was not known to the company. 

Duty to mitigate loss

The explanation of Section 73 lays out that in estimating the loss or damages arising from breach of contract, the means that existed for remedying the inconvenience must be taken into account. 

In other words, in the event of a breach, the aggrieved party should adopt all means to reduce the extent of the loss. 

Pre-fixed damages

If the parties to the contract at the time of making the contract agree to the compensation payable in the event of such a breach, then it is either liquidated damages or a penalty. 

The question to be asked is if the amount of damages is fixed, is it recoverable as a whole or to what extent?

English law

If the sum pre-fixed is a genuine pre-estimate of prospective damages, then it is known as liquidated damages. If the sum is highly disproportionate, then it is called a penalty. 

In Dunlop Pneumatic Tyre Co. v. New Garage and Motor Company Ltd., the court laid down that it is the duty of the court to find out whether the payment stipulated is a penalty or liquidated damages; the expression of the party is not conclusive. If the sum named is in the nature of liquidated damages, then the whole sum is recoverable, but if it is in the nature of a penalty, the court will grant reasonable compensation calculated on ordinary principles. 

Indian law

Indian law relating to liquidated damages and penalties is given under Section 74 of the Act. Following are the essential elements of Section 74:

  1. There must be a breach of contract.
  2. The sum must be mentioned in the contract. It may be either penalty or liquidated damages.
  3. Proof of actual loss is not necessary.
  4. The party complaining of the breach is entitled to receive reasonable compensation from the other party.
  5. The compensation must not exceed the amount named or the penalty.

Indian law has dispensed with the necessity of determining whether the sum named is a penalty or liquidated damages. This distinction has been abolished in India. 

Case laws on breach of contract

M/S Murlidhar Chiranjilal vs. M/S Harishchandra Dwarkadas & Anr (1961)

This is one of the oldest cases in India dealing with a breach of contract. This case was brought before the Supreme Court as an appeal by special leave from the judgement and decree order of the High Court of Judicature, Madhya Bharat, Indore.

Appellant- M/s Murlidhar Chiranjilal

Respondent- M/s Harishchandra Dwarkadas

Facts of the case

  • The appellant and the respondent had entered into a contract for the sale of canvas at Re 1 per yard. 
  • The delivery of the canvas was to be made by the railway receipt from Kanpur to Calcutta, and the charges for the same, along with labour charges, were to be borne by the respondent.
  • The railway receipt was agreed to be delivered on 5th August, 1947. However, the appellant failed to deliver the receipt. 
  • On 8th August, 1947 the appellant intimated to the respondent that since the booking from Kanpur to Calcutta was closed, the contract could not be performed, and it had become impossible for the appellant to perform the said contract. 
  • The appellant then closed the contract and returned the advance taken from the respondent.
  • However, the respondent did not accept the impossibility of the performance of the contract by the appellant. The respondent informed the appellant that they had committed a breach of contract and were liable to pay damages.
  • The trial court in this matter held that the contract had become impossible to perform, and the respondent was held responsible where the appellant had failed to perform the contract. The trial court also held that since the respondent could not prove the rate that was prevailing on the date of the breach of contract, as claimed by the respondent. Hence, the respondent was not entitled to damages.
  • The respondent appealed in the High Court, and the Court held that the contract had not become impossible to perform. 
  • The High Court further held that the respondent was entitled to damages as per the rate prevailing in Calcutta on 5th August 1947 i.e., the date of the breach of contract. 
  • Thereafter, an application for special leave was granted by the Supreme Court.

Issue involved

The issue related to the breach of contract that arose before the Hon’ble Supreme Court was whether the respondent was entitled to the damages at the rate at which they claimed them.

Judgement of the Court

The Supreme Court held that there was a breach of contract as the contract was required to be performed on August 5, 1947, by delivery of a railway receipt. However, the delivery was not done on the said date. The Court further addressed the question of whether the respondent was entitled to damages or not. The Court observed that the case involved the purchase of goods for resale, and the appellant and respondent were not aware that the contract would result in a breach. Therefore, the respondent had to prove the rate prevailing in Kanpur to calculate the amount of damage that would arise naturally in the usual course of things from such a breach. However, the respondent failed to prove the rate, therefore, they were not entitled to damages. 

The Supreme Court set aside the High Court’s decree and restored the trial court’s order.

Karsandas H. Thacker vs. The Saran Engineering Co. Ltd. (1965)

Civil-Litigation-Practice,-Procedure-and-Drafting_696X293-

In this case, the Supreme Court of India opined that when there is any remote and indirect loss or damage sustained because of the breach of contract, compensation in such a scenario will not be provided under Section 73 of the Act.

Appellant – Karsandas H. Thacker

Respondent – Saran Engineering Co. Ltd.

Facts of the case

  • The appellant had sued the respondent for breach of contract and recovery of damages amounting to Rs. 20,700. 
  • In July 1952, he and the respondent entered into a contract for the supply of 200 tonnes of scrap iron.
  • The respondent failed to comply with the contract and did not deliver the scrap iron, and the respondent expressed their inability to fulfil the contract in a letter dated 30th January, 1953.
  • Meanwhile, the appellant had entered into a contract with another company in Calcutta for the supply of 200 tonnes of scrap iron.
  • Due to the breach of contract by the respondent, the appellant could not fulfil the contract made between him and the company for the supply of scrap iron.
  • Because of this, the company had to purchase the necessary scrap iron from the open market.
  • The company had acquired the difference amount of scrap iron from the appellant. The difference amount is the amount that the company had paid for the purchase of scrap iron and the amount they had previously paid to the appellant.
  • On the other hand, the respondents stated that there was no contract between them and the appellant and that the appellant did not suffer any damages.
  • They also stated that the controlled price of scrap iron was the same in July 1952 and January 1953, the days when they entered into the contract and the days when the respondent intimated the desirability of discontinuation, respectively.
  • The respondent also contended that they were not liable to pay the amount that the appellant paid to the company in Calcutta because the appellant had not informed the respondent about their intention of purchasing the scrap iron for the company or for the purpose of export.
  • The trial court was in favour of the plaintiff, it was held by the trial court that the appellant was entitled to damages because the respondent breached the contract. 
  • However, the High Court reversed the decree of the trial court.

Issue involved

In this case, the main issue that arose was whether there was a breach of contract or not.

Judgement of the Court

The Supreme Court held that the respondents did not know that the appellant was purchasing the scrap iron for export, as concluded by the High Court. Therefore, as provided under Section 73 of the Act, the appellant was entitled to receive compensation for the breach of contract by the respondent, as the Section states that compensation is to be paid for the breach of contract when a loss is caused to the appellant in the usual course of business. However, under the Section, in the event of any remote or indirect loss or damage suffered by the appellant, compensation shall not be given. 

In the present case, the loss suffered by the appellant from the breach of contract by the respondent would be nil, and hence, no loss was suffered by the appellant on account of the breach of contract. 

Fateh Chand vs. Balkishan Das (1963)

This is another case of breach of contract, as held by the Supreme Court. The following are the details:

Petitioner – Fateh Chand

Respondent- Balkishan Das

Facts of the case

  • The petitioner entered into a contract with the respondent on 21st March 1949, to sell leasehold rights in a piece of land and in the building constructed thereon to the respondent. 
  • Under the contract, the petitioner received a sum of Rs. 25,000, and he delivered the possession of the building and the land to the respondent. However, the sale was completed after the expiration of the time period mentioned in the contract, and for this reason, both parties blamed each other.
  • The petitioner initiated a suit in the court of a subordinate judge and claimed to forfeit the amount of Rs. 25,000 received by him. He also prayed for a decree to have possession of the building and land along with compensation for the use and occupation of the building from the date of delivery of the building and the land.
  • On the other hand, the respondent contended that the petitioner has breached the contract, therefore, he cannot forfeit the amount of Rs. 25,000 received by him and that the petitioner cannot claim any compensation. 
  • It was held by the trial judge that the petitioner had failed to put the respondent in possession of the property, and therefore he must deposit the amount of Rs. 25,000. 
  • However, the Punjab High Court (Circuit Bench) in Delhi modified the decree passed by the trial court and held that the petitioner was entitled to retain Rs. 25,000 paid by the respondent under the sale agreement and also directed that the respondent pay compensation for using the property to the petitioner. 
  • An appeal was filed against the order passed by the Punjab High Court (Circuit Bench) in Delhi before the Supreme Court. 

Issues involved

There were mainly two issues involved with respect to the breach of contract:

  1. Which party committed the breach of contract?
  2. Whether a clause of liquidated damages can be interpreted as a penalty clause

Judgement of the Court

The Supreme Court was in favour of the High Court, which found the respondent had committed a breach of contract and referred to Section 74 of the Act. The Court interpreted Section 74 of the Act, which states that “the contract contains any other stipulation by way of penalty”. The Court viewed that this clause of the Section was applicable to every contract that contains a penalty and was also applicable in cases of payment on breach of contract for money or delivery of property in the future or in cases of forfeiture of rights to money for other property that has already been delivered. The Court further viewed that under this Section, there is an imposition on the courts not to enforce the penalty clause but only to award reasonable compensation. 

Maula Baux vs. Union of India (1969)

In this case, the Supreme Court of India found the plaintiff guilty of breach of contract. Let’s understand the case in detail:

Appellant/Plaintiff- Maula Baux

Respondent- Union of India

Facts of the case

  • The appellant and the respondent entered into a contract for the supply of some goods. An amount was deposited by the appellant as security for the due performance of the contract.
  • It was laid down in the contract that if the appellant fails to perform the contract, then the contract shall be rescinded by the respondent and the security deposit shall be forfeited.
  • Thereafter, the appellant failed to perform their part of the contract, i.e., by not supplying the goods to the respondent. The respondent cancelled the contract and also forfeited the deposited amount. 
  • The appellant then filed a suit for recovery of the deposited amount along with interest.
  • The Court of Civil Judges, Lucknow, passed a decree holding the respondent justified in cancelling the contract. However, it was also held by the Court that the respondent cannot forfeit the amount deposited as security because they did not suffer any loss because of the non-fulfilment of the contract by the appellant. 
  • However, the High Court at Lucknow modified the decree passed by the trial court. The revised decree awarded the respondent a huge portion of the deposited amount as damages. The Court also observed that the forfeiture of the deposited amount was not unreasonable because the amount was deposited for the due performance of the contract and the amount was deposited as a security. 
  • The High Court at Lucknow further observed that Section 74 of the Act does not apply in that scenario and that the deposited amount could be considered “earnest money.’ Earnest money basically means an amount paid in order to confirm a contract. 

Judgement of the Court

The Supreme Court (“SC”) observed that the High Court at Lucknow made an error by disallowing the appellant’s claim. The SC set aside the decree by the High Court and made some substitutions to the decree. The SC held that the Union of India, i.e., the respondent, must pay the appellant the sum specified by the SC, along with interest from the date of the suit until the payment is made. It was also held that the appellant was guilty of breach of contract and that an inconvenience was caused to the respondent because of the failure on the part of the appellant.

Therefore, the SC held that in order to give a fair order, both parties to the contract must bear their own costs.

M/s Construction and Design Services vs. Delhi Development Authority (2015)  

This is an appeal case before the Supreme Court. The following are the details of the case:

Appellant – M/s Construction and Design Services

Respondent – Delhi Development Authority

Facts of the case

  • The respondent was awarded a contract by the appellant for the construction of a sewerage pumping station at the CGHS area in Delhi. 
  • As per the contract, the contractor, i.e., the appellant, shall follow the time period provided in the contract, and in case the appellant does not follow the prescribed condition, they shall be liable to pay compensation, which shall be “an amount equal to one percent or such smaller amount as the Superintending Engineer Delhi Development Authority may decide on the estimated cost of the whole work for everyday that the due quality of work remains incomplete”. 
  • Due to the slow pace of work, the appellant could not complete the work within the time period, and the contract was terminated. 
  • As mentioned in the contract, now the superintending engineer asked the appellant to compensate on account of the delay in the execution of the project by an order of penalty. Thereafter, they called upon the appellant to deposit the amount. 
  • However, the appellant failed to give a response to the said order, which led to the filing of a suit by the respondent before the Delhi High Court for recovery of the amount along with interest.
  • The single judge dismissed the suit and held that the appellant had not treated the time period fixed for the performance of the contract as of essence and therefore the compensation as mentioned in the contract should be paid by the appellant as a nature of penalty.
  • The division bench on appeal held that the delay in construction was a ground for compensation.

Judgement of the Court

The Supreme Court held that the appellant failed to complete the work within the time period decided in the contract. Due to this delay in work, the respondent is entitled to receive reasonable compensation. The Court further viewed, Evidence of precise amount of loss may not be possible but in absence of any evidence by the party committing breach that no loss was suffered by the party complaining of breach, the Court has to proceed on guess work as to the quantum of compensation to be allowed in the given circumstances. Since the respondent also could have led evidence to show the extent of higher amount paid for the work got done or produce any other specific material but it did not do so, we are of the view that it will be fair to award half of the amount claimed as reasonable compensation.” 

Therefore, the appeal was partly allowed, the decree passed by the Delhi High Court was modified, and the respondent was entitled to receive half of the amount claimed along with interest. 

Conclusion 

A breach of contract results in loss or damage. Both parties to the contract suffer losses. One party suffers monetary or other types of losses due to the non-fulfilment of the obligation by the other party, and the other party ( the breaching party) suffers losses mostly in monetary terms by paying compensation. In the above cases, the Supreme Court of India impeccably interpreted the provisions of the Indian Contract Act, 1872 for breach of contract. It is concluded that wherever there is a breach of contract, the party suffering a loss or damage shall get reasonable compensation from the courts. 

Frequently asked questions (FAQs) 

What is the difference between liquidated damage and a penalty?

Liquidated damage is a predetermined estimate of the loss suffered by either of the parties to the contract, whereas a penalty is a fine that is disproportionate to the loss suffered by either of the parties. Liquidated damage is compensation that is equivalent to the loss suffered, whereas a penalty is higher than the loss that may result from a breach of the contract.

What is earnest money?

“Earnest money is part of the purchase price when the transaction goes forward: it is forfeited when the transaction falls through, by reason of the fault or failure of the vendee” observed by the Privy Council in Kunwar Chiranjit Singh v. Har Swarup. Therefore, the earnest money is a deposit that is made by the purchaser as part payment of the price after the contract is completed. It shows the intention of the purchaser to purchase the goods from the seller. 

References


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