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A comprehensive list of 50 scholarships for LLM abroad (USA, UK, China, Singapore, New Zealand, Australia)

By
Oishika Banerji
-
0

This article has been written and published by Oishika Banerji.

Counting fingers falling short while calculating fees to be paid for your LLM abroad? Eyes popping out seeing 6 to 10-digit numbers in the fee structure of your dream college? Want to fly down to a foreign nation to study LLM but stopping yourself from thinking about it because of financial restraints? 

These thoughts are genuine and completely normal. We don’t want our parents to spend all of their savings on us and many of us don’t even get a job immediately after graduation to fund the LLM course.

A lot of us are unable to take a huge educational loan because we do not have a property of that much value to mortgage for our education loan (mandatory for any education loan about INR 5 lakhs in India). 

What is the possible way out then? Scholarships, of course. Here is a comprehensive list for you if you want to do an LLM abroad. 

Despite knowing the benefits of doing an LLM abroad, many are not able to afford it. This is one of the most common questions that we get at LawSikho which we are covering in our upcoming Bootcamp too. 

Before you know about the list of scholarships available for you, let us learn about the three categories in which scholarships are divided:

  • Need-based;
  • Merit-based;
  • Merit cum need-based.

Each scholarship has a different application method, structure, and aid granted. Applying for an LLM is a time-consuming process, and applying for scholarships on top of that makes it much more difficult. This is sure to be a low period, time of saturation, and tiredness because the entire process is stretched out across four to six months (or even longer). 

But can we just sit and stare at the walls? Or should we choose to paint the wall with our potential and lay a table of choices for us? The latter sounds more exciting, doesn’t it? Let’s see what all scholarships await us to pursue LLM. 

Also, remember that almost every University has some full and partial scholarship programs. Partial scholarships are quite easy to get. For example, we at LawSikho are associated with a hybrid (online first course with the opportunity to attend some classes live) LLM program offered by Warsaw Management University, UNIES Business School in Germany, and Limburg Graduate School of Business in the Netherlands and we are often able to assist law graduates to get large scholarships that enable them to study their LLM program. We have assisted students to obtain such opportunities for in-campus LLM programs at School of Law, Texas A&M University as well. We have a network of US, UK, and Canadian universities where we may be able to assist you similarly as well, so always feel free to reach out to us if you are looking to do an LLM abroad. 

Just drop a mail to [email protected] if you want our help outlining how we can help you. All the best!

Table of Contents

National scholarships available for pursuing LLM

Why keep talking when we can directly get to the point? Let’s delve into the list of national scholarships that are available for Indian students willing to pursue LLM.

Scholarships which can be availed by every candidate in general

Narotam Sekhsaria Scholarship

The Narotam Sekhsaria Foundation provides up to INR 2 million to an individual based on the courses. It is a loan award exclusive of interest, provided to brilliant Indian students. Every academic year, the Foundation invites all applications for the Narotam Sekhsaria post-graduate scholarships in the month of January. The application steps are provided hereunder: 

1. Step 1: Pre-register to remain informed about the application process. 

2. Step 2: After completing the registration procedure, the applicant must log in using the email address and password generated throughout the process.

3. Step 3: Applicants who have been selected for the next round of the selection process must upload the appropriate papers.

Step 4: Applicants who have been shortlisted will be required to attend an interview in May or June, 2022.

Step 5: By the end of June, the scholarship beneficiaries will be contacted. Applications that are not complete will be rejected, and the form must be filed by March 15, 2022.

Aga Khan Foundation

Each year, the Aga Khan Foundation awards a limited number of postgraduate scholarships to outstanding students from select developing countries who have no other means of funding their studies, with the goal of developing effective scholars and leaders and preparing them for employment, primarily within the AKDN. Scholarships are provided on a 50/50 grant/loan basis once a year in June or July through a competitive application procedure.

KC.Mahindra Scholarship

KC Mahindra scholarship offers interest-free loans to students who wish to pursue postgraduate studies overseas. This Trust awards Rs. 10,000/- per annum to 550 students annually, for a maximum period of 3 years. Till date, 10,740 students have been awarded scholarship across India. Preference will be given to girl students, children from lower-income group families, differently-abled children, and children of armed forces personnel. The application form needs to be filled online and the documents requested should also be uploaded while submitting the application form.

J.N. Tata Endowment

It is a merit-based one-time loan fellowship available to Indian students who wish to pursue higher education (postgraduate, PhD, post-doctoral) in a foreign country. It is applicable to a wide range of courses. This scholarship is one of the most renowned and oldest (it was established in 1892).

Aditya Birla Scholarships

For legal students, the Aditya Birla Scholarships cover a considerable portion of both academic and dormitory tuition. The legal scholarship is for Rs. 1,80,000 per year or real tuition, whichever is lower. Only the Indian students from the institutes listed below are eligible to apply for this scholarship:

  1. Bangalore’s National Law School of India University;
  2. Hyderabad’s NALSAR University of Law;
  3. National Law University of Jodhpur’
  4. WB National University of Juridical Sciences, Kolkata;
  5. Gujarat National Law University.

 Debesh-Kamal Scholarship

The Debesh Kamal Scholarship is open to all colleges in the world, including those in the United States, the United Kingdom, and Canada. A scholarship of INR 1 lakh is given to each recipient. The Debesh Kamal Scholarship is available to Indian students in various disciplines of study. The scholarship award must be utilized solely for tuition payments. Other costs (accommodation, travel, and insurance) are solely the responsibility of the recipient.

TOEFL® Scholarship Program

Every year, 14 scholarships and awards in the form of TOEFL Scholarships are made available to candidates. TOEFL scholarships are jointly offered by ETS and TOEFL Board Sponsors to students working in the fields of foreign or second-language research, teaching, or assessment, as well as international higher education.

Education Grants offered by Tata Trusts

The Tata scholarship is a fantastic opportunity for deserving students who want financial assistance to further their studies. Tata scholarship advantages are available to students at various levels of education.

  • Since 1892, when Jamsetjee Nusserwanjee, the Tata group’s promoter, founded the JN Tata Endowment, more than 5,400 Indian students have been given loan scholarships. Only Masters, Ph.D., and Postdoctoral fellowships in any educational discipline are supported by the Endowment. 
  • It aims to reward based only on merit. The loan, which has a maximum amount of Rs 10 lakh, is repayable in seven years and is paid in five equal instalments beginning in the third year.
  • A maximum of two children from the same family can apply.

Central Sector Scheme of Scholarship for College and University Students

  • This scholarship are given based on senior secondary school examination results. 82000 new scholarships are offered each year (41000 for boys and 41000 for girls) for graduate and postgraduate studies in colleges and universities, as well as professional courses such as law, medicine, and engineering.
  • The monthly scholarship rate would be Rs. 1000/- for the first three years of college and university studies, and Rs. 2000/- for the fourth and fifth year. In an academic year, the scholarship would be paid for ten months.

National Law School of India Bangalore LL.M. Scholarship Award

  • Vanderbilt Law School, in collaboration with the National Law School of India University in Bangalore grants a $30,000 scholarship to a student who has obtained or will acquire a law degree from the National Law School of India University in Bangalore. 
  • This scholarship does not require a separate application, all approved students from NLSIU will be evaluated based on their applications for admission to the LL.M. programme. Candidates must apply to Vanderbilt through the standard LL.M. programme application procedure, which can be found here.

The Kapila & Nirmal Hingorani Postgraduate Scholarships

  • The Department of Law and Criminology at Sheffield Hallam University is offering a full tuition fee waiver scholarship for MA/LLM in Applied Human Rights to students domiciled in India. 
  • Students interested in availing these scholarships are advised to contact The Department of Law and Criminology at Sheffield Hallam University. 

R.D. Sethna Loan Scholarships

The R.D. Sethna Scholarships are investments in young people allowing them to pursue their academic and career goals. The loan scholarships are awarded on the basis of excellent achievement and are intended to assist with the payment of tuition fees, academic materials, and other connected expenditures in order to improve the educational experience. 

The eligibility criteria have been provided below: 

Eligibility Criteria

Scholarships that can be availed only if you are fulfilling the eligibility criteria provided by it 

Vishwa Konkani Study Abroad Scholarship

VKSSF gives scholarships to students wishing to pursue higher education outside of India with a scholarship amount of INR 1 lakh per student every year. This scholarship is available to students who speak Konkani as their first language and wish to enroll in a foreign university.

National Overseas Scholarship for SCs

The National Overseas Scholarship Scheme in the Central Sector aims to help low-income students from Scheduled Castes, Denotified Nomadic and Semi-Nomadic Tribes, Landless Agricultural Labourers, and Traditional Artisans who wish to pursue higher education, such as a Master’s degree or a Ph.D.

Merit-Cum-Means based Scholarship for Professional and Technical Courses for Minority students

  • The Scheme’s goal is to give financial help to underprivileged and deserving students from minority populations so that they can pursue professional and technical education. Financial aid will be provided to students pursuing technical and professional courses at graduate or postgraduate level from a recognised institution.
  • Students who are accepted into a college to study technical or professional courses after passing a competitive test are eligible for the scholarship. For a period of ten months, a maintenance allowance of Rs.10,000/- per annum (Rs.1000 per month) would be granted, as well as a course fee of Rs.20,000/- per annum or the actual fees, whichever is less.
  • The programme is run through the National Scholarship Portal (NSP). It is necessary for all students to apply online at www.scholarships.gov.in, the Ministry’s website.

Government of Andhra Pradesh’s NTR Videshi Vidyadharana for BC & SC/ST Students

INR 15 lakh aid is provided under the Government of Andhra Pradesh’s NTR Videshi Vidyadharana for BC & SC/ST Students for pursuing higher education in foreign universities. 

Interest Subsidy on Educational Loan for Overseas Studies for OBCs

The Ambedkar Scheme of Interest Subsidy on Educational Loans for Overseas Studies for Other Backward Classes (OBCs) and Economically Backward Classes (EBCs) is a scheme aimed at encouraging students from OBCs and EBCs to study abroad in the following programs.

International scholarships available for pursuing LLM

When someone tells you that pursuing LLM abroad is three times costlier than pursuing LLM in India we wonder if that is really true. Well, sadly it is. But you have nothing to worry about because we have got you covered. Here are some international scholarships available to you:

United Kingdom 

The Rhodes Scholarship

Want to go to the prestigious Oxford University to study LLM? The Rhodes Scholarship is your ticket. Each year, there are 5 scholarships available for Indians, out of which usually 1 or 2 are awarded to law students.

Inlaks Shivdasani Foundation Scholarship

  • Meritorious Indian students studying at institutions in the United Kingdom, the United States, and other European countries can apply for the Inlaks Shivdasani Foundation Scholarships. Students pursuing full-time Master’s, M.Phil., or Doctoral degree programmes can apply for grants, prizes, and scholarships through the programme.
  • University Courses and Specific Programs are the two categories of scholarships offered by the Inlaks Shivdasani Foundation. The foundation pays for each recipient’s tuition, as well as additional living and travel expenses. 
  • The scholarship sum is only provided once, and the Foundation does not spend more than $100,000 on it. Candidates must be under the age of 30 to be considered for the various scholarship programmes. Candidates who have been shortlisted must attend two interview sessions.

Oxford and Cambridge Society of India Scholarships

  • The universities of Oxford and Cambridge have been favoured destinations for Indian students for many years. Hence, the Indian society of these universities has come together to offer scholarships to aspirants who wish to study at either University of Cambridge or the University of Oxford. 
  • A citizen of India who is not more than 30 years of age and is a graduate of an Indian university can apply to a post-graduate course (LLM) under this scholarship. Scholarships are awarded on the basis of the candidate’s academic excellence, a good fit between the Scholar and the University, evidence of leadership potential and a commitment to improving the lives of others, particularly in India. 
  • The amount granted under this scholarship may differ year after year depending upon the funds raised by the society in association with other NGOs in India and abroad.

Stipendium Hungaricum Scholarship Programme

This scholarship is available in Hungary for Indian students who wish to study there. Students are drawn to Eastern Europe for the inexpensive living prices, a safe and pleasant living environment, and easy access to public transit, which are recognized across Europe and beyond. The program also seeks to foster and develop international graduates’ personal and professional ties to Hungary, as well as contribute to the promotion of Hungarian culture and language abroad.

Commonwealth Scholarship

  • To apply for a Commonwealth Scholarship, you must be a citizen or permanent resident of a Commonwealth country. You will still be eligible if you are a refugee or a British protected person. You also need to have an undergraduate honours degree of at least upper second class.
  • The Commonwealth Shared Award is a highly competitive master’s scholarship and one of the most coveted in the United Kingdom. It is co-funded by the UK government. UK higher education institutions through the Department for International Development (DfID) are partners to the same.

Chevening

  • Available for those students willing to study in the United Kingdom. Chevening is the government of the United Kingdom’s foreign scholarship programme. They provide grants to study in the UK for a year on a fully financed master’s degree course, supported by the Foreign, Commonwealth and Development Office and partner organisations.
  • Chevening applicants come from a wide range of nations and experiences, but they all have the passion, ambition, and talent required to make the world a better place. Being chosen has several advantages, including completely supported tuition costs, access to some of the world’s greatest institutions, unique networking opportunities, and the opportunity to learn about the UK’s rich culture.
  • If selected, you’ll join their varied network of over 50,000 worldwide graduates at the completion of your scholarship. You’ll go home with the knowledge and connections you need, to bring your ideas to life and succeed in your career. 

University of Southampton LLM International Scholarships

The Felix Scholarship

Available to students of developing countries, including India, willing to study in London. The Felix Scholarship enables outstanding students from India to pursue graduate studies in any subject (including law) at the University of Oxford, the University of Reading, and the School of Oriental and African Studies, University of London (SOAS). This scholarship will cover 100% of the course fees, a grant for living costs (around £15,840), and one return flight from India to the UK. Awards are made for the full duration of your fee for the agreed course.

Commonwealth Shared Scholarship

  • This scholarship is for pursuing higher studies in the United Kingdom. Funded by the UK Foreign, Commonwealth and Development Office (FCDO), these scholarships enable talented and motivated individuals to gain the knowledge and skills required for sustainable development, and are aimed at those who could not otherwise afford to study in the UK.
  • Tuition expenses, a maintenance stipend, economy air travel to and from the UK at the start and end of the scholar’s degree programme, and other discretionary allowances are all covered by the grant. Normally, awards are only valid for a year.

Harding International Legal Scholarship

  • For 2022 entry Birmingham Law School are offering £5,000 scholarships to international/EU students on the LLM programme.
  • Recipients of the Harding International Legal Scholarship are offered a tailored package to support professional and personal development:
  1. £5,000 financial scholarship as a fee waiver.
  2. An introductory meeting with Birmingham Law School Staff.
  3. Professional profile on the Birmingham Law School webpages.
  4. Membership of the Birmingham Law Society
  • In order to know how to apply, refer: 
https://www.birmingham.ac.uk/schools/calgs/scholarships/cal-masters-scholarships-howtoapply.aspx.

Holland Scholarship Erasmus University

  • This scholarship is only available for students who want to do the LL.M. programme in Commercial Law (all three specialisations) or the LL.M. programme in International and European Union Law at Erasmus School of Law. 
  • The scholarship amounts may range from € 5,000 to € 15000 (to be decided by the selection committee)  which the student will receive in their first year of studies.

Executive LLM scholarship from King’s College London

  • The Executive LLM programme at King’s College London and the IBA is a two-year, part-time degree programme for commercial, in-house, and regulatory attorneys who want to further their careers.
  • Scholarships of up to 100% of postgraduate diploma tuition costs (worth up to £24,000) are offered to qualifying students. Keep an eye on the website for further information on this LLM fellowship.

LLM scholarships of the University of Vienna

  • This grant covers solely the tuition expenses for the LL.M. programme at the University of Vienna (no travel costs). A legal degree from an international university with a strong academic record is required, as is a letter of admission to the LLM programme.
  • To be considered for one of these scholarships, an applicant must excel in the discipline of law. Those who have done innovative work in the field of human rights or have an outstanding academic record may be eligible for such scholarships.

International Excellence Scholarships

  • International Excellence Scholarship is awarded to students who can demonstrate exceptional academic and extra-curricular achievement, as well as to those looking to study at ARU (Anglia Ruskin University, UK). 
  • The total value of this scholarship is £4,000.

College of Arts and Law Masters Scholarships

  • The College of Arts and Law is happy to offer a number of Home fees-only scholarships to individuals interested in studying full-time or part-time master’s-level courses beginning in September 2022. Students from the United Kingdom, the European Union, and other countries are encouraged to apply.
  • For full-time students, these prizes pay one year of tuition fees at Home rates, or two years for part-time applicants.

Supperstone Law Scholarship

  • Awarded by Lincoln College, University of Oxford with the scholarship amount of 1000 GBP. 
  • Candidates must be accepted by the University and Lincoln College to read for the postgraduate degree of BCL or MJur with an emphasis or special interest in Public Law and must demonstrate academic excellence and show promise for a successful career in the legal field.

United States of America 

Fulbright-Nehru Master’s Fellowship

  • This fellowship is awarded to Indian students willing to study in the United States. The Fulbright-Nehru Master’s Fellowships are meant for excellent Indians to pursue a master’s degree programme in International Legal Studies, Public Administration, Women’s Studies/Gender Studies and various other disciplines.
  • The fellowship is available to people with at least three years of professional job experience and can last anywhere from one to two years depending on the course.
  • J-1 visa support, round-trip economy class plane travel from the fellow’s home city to the host institution in the United States, financing for tuition and fees, housing and associated costs, and accident and illness coverage according to US government criteria are all included in the grant benefits.

New York University (NYU) Scholarships

  • NYU is one of the top ten law schools in the world for LLM programmes. For individuals interested in pursuing a career in taxation, NYU provides a list of five scholarships. Some scholarships pay the full cost of tuition, while others may just cover a portion of the cost.
  • In addition to the five taxation scholarships, NYU offers three general LLM scholarships for deserving candidates who can get full tuition reimbursement. Aside from tuition, the scholarship may provide you with decent living expenses in one of the world’s most costly cities. 
  • Because the annual tuition expenses for an LLM at NYU are US$ 70,400, these scholarships might be beneficial to genuine and deserving applicants.

Columbia Law School (CLS) scholarships

  • For overseas students interested in pursuing an LLM at Columbia Law School, four scholarships are available. Each of the four scholarships have a particular aim. Depending on whose scholarship you receive, these scholarships guarantee to cover all or part of your CLS tuition.
  • The Jagdish Bhagwati Fellowship, which is supported by the Indian government and provides partial to full financing for up to three fellows every academic year is one of the four scholarships available.

UCLA Law Distinguished Scholars Program

UCLA Law announces three full-scholarship programmes for J.D. (Joint Degree) students. 

  • The UCLA Law Distinguished Scholars Program is a three-year binding early-decision programme that offers full tuition to excellent individuals who are ready to commit to UCLA Law. 
  • The UCLA Law Achievement Fellowship is a non-binding opportunity for high-achieving students who have overcome major personal, educational, or socio-economic challenges to receive full tuition for three years. 
  • The Graton Scholarship is likewise non-binding and grants full tuition for three years to individuals interested in Native American legal professions.

Hauser Global Scholars Program

  • The distinguished members of the Hauser Scholars Selection Committee select ten of the best students from around the world as Hauser Global Scholars each year. These LLM students share their insights and experiences from their respective legal systems with the rest of the Law School academic community. 
  • The Hauser Global Scholars are provided with a full tuition scholarship and a living stipend for the year of their study at NYU, as well as intellectual and social integration into the Hauser Global Law School Program and NYU School of Law activities.

China 

The Schwarzman Scholarship

  • Available for pursuing higher studies in China. Each year, awards are given to 100–200 candidates from all around the world. Scholars are chosen for the programme based on their demonstrated ability to become the next generation of global leaders who will build bridges between China and the rest of the world, as well as their leadership ability, academic achievement, and demonstrated potential to become the next generation of global leaders. 
  • A $4,000 allowance for personal costs, airfare tickets throughout the world, a research excursion throughout the country, and books that are required for the course are included in the scholarship. 
  • The Schwarzman Scholars programme at Tsinghua University in Beijing, China, is a one-year master’s degree and leadership programme that is completely supported.

Great Wall Program

The Government of the People’s Republic of China has made available to UNESCO, 75 fellowships for advanced studies in China at the undergraduate and postgraduate levels, including law. To be eligible for this prize, students must apply to the National Commission for UNESCO in their home countries.

  1. Registration, tuition, internship, and basic textbooks fees waived; free on-campus dormitory housing; 
  2. Monthly living allowance; 
  3. One-time settlement subsidy; 
  4. Outpatient medical service and Comprehensive Medical Insurance; 
  5. Protection Scheme for International Students in China; one-time inter-city travel reimbursement. 

Chinese Government Scholarship – Chinese University Program” of Zhejiang University

  • Scholarship coverage: tuition waiver, free on-campus housing, stipend awarded in line with the applicable norm, complete Medical Insurance.
  • Applicants must be nationals of a country other than China and in good health.
  • Go to http://iczu.zju.edu.cn/english/redir.php?catalog_id=248 for further information.

Belt and Road Scholarship

  • The Belt and Road Scholarship at Peking University’s School of Transnational Law (STL) has been announced for its LL.M. programme. This merit-based opportunity for candidates from countries involved in the Belt and Road Initiative will contribute to the development of a legal profession capable of navigating these and other unique obstacles.
  • The Belt and Road Scholarship covers twenty five (25) percent of STL’s full program tuition.
  • Refer to this link for eligibility criteria: 
STL Announces Belt and Road Scholarship for LL.M. Students

Hong Kong Maritime Law Scholarship

  • This scholarship is for students pursuing the Maritime and Transportation Law stream of the LL.M. program and is awarded by City University of Hong Kong.  Selection will be based on academic achievement and past work experience. 
  • The scholarship is contingent on students working full-time in a maritime-related sector in Hong Kong for 12 months after completing their degree. The scholarship award is full tuition fees. 

Refer: http://www6.cityu.edu.hk/slw/HKCML/hkmls18.html

Singapore 

The Lee Kuan Yew (LKY) Scholarship

  • The Lee Kuan Yew (LKY) Scholarship is associated with prominence as well as a desire to serve Singapore. Many Lee Kuan Yew Scholarship recipients have contributed in a variety of disciplines including public sector, business, law, medicine, arts, and academia since the program’s establishment.
  • If they are pursuing a Master’s degree or up to 5 years of PhD study, scholarship awardees will get an annual stipend of $50,000 for up to 2 years. With the exception of public sector recipients who are already financed for their postgraduate courses by their agency, this is not the case. The recipients in the public sector will receive a one-time payment of S$10,000.

New Zealand 

Auckland Law School Postgraduate Awards

  • Five prizes of up to NZ$ 10,000 each are granted to academically exceptional students who choose to pursue an LLM at the University of Auckland.
  • For international students, the annual tuition fees for an LLM at the University of Auckland is currently NZ$38,998. For deserving students, this grant might be a significant help. At the suggestion of a selection committee, the Dean of Law (or their nomination) shall present the prizes.

Research Masters Scholarships

  • Offered by University of Otago to the students taking up a thesis-based Master’s program at the university. The scholarship is awarded on the recommendations of the Senate to first-year thesis research applicants.
  • A scholarship amount of NZD 15,000 stipend per annum and an additional of a tuition fee waiver for a year on the domestic rate is awarded. Scholarship applications can be made anytime. There are no deadlines.
  • Only applicants that have good academic records will be chosen for the award due to limited availability. 
  • Applicants must be an international student.

Faculty of Law International Students LLM Fee Scholarship

  • Offered by the Victoria University of Wellington. Students may apply for the LLM Fee Scholarship for one year for full-time study. Established in 2016 by the Faculty of Law, this scholarship contributes $5,000 towards fees for students enrolled full time for an LLM.
  • The application process can be accessed here: 
https://www.wgtn.ac.nz/scholarships/how-to-apply

Australia 

Law Scholarships for International Students – Postgraduate at University of Queensland

  • University of Queensland, Australia has four scholarships for international students – two scholarships covering 50% of the tuition fees and two scholarships covering 25% of the tuition fees for courses undertaken towards the Master of Laws (LLM), Master of International Law (MIL) or Master of International Commercial Law (MICLaw).
  • The scholarship does not include living expenses, travel expenses, overseas health cover or the student services and amenities fee.

India Global Leaders Scholarship

  • Full-tuition overseas scholarships for Indian students pursuing a coursework master’s degree or undergraduate degree at the University of Queensland at Australia’s Faculty of Business, Economics, and Law.
  • Scholarship amounts to 50% of the tuition fee and validity is for the entire program. 

Loch Law Scholarship Program

  • Students from around the world are welcome to apply to the Loch Law Scholarship Program. They must be currently attending college or university and studying law. 
  • Scholarship award is $500/ £350. Students to whom the scholarship is awarded are free to use this money towards any of their education related expenses.
  • This scholarship program is open to all students who are enrolled in any full-time or part-time law program in any college or university across the world.
  • Check: https://www.scholarshipdesk.com/loch-law-scholarship-program-law-student/

Does this all sound exciting to you? I definitely can’t wait for you all to start applying already.
Now you won’t have to give up your dreams and ambitions.

But how to apply, which LLM to go for, how to get the most out of it, how to prepare for jobs after LLM, there are still a ton of questions you would need help with. 

Wait up! We are not done yet. 

We invite you to our 3-day FREE online Bootcamp to answer your questions around Should I do an LLM abroad? How can it help my career? from 18-20 December, 6-9 pm Indian Standard Time.

The Bootcamp will be hosted by Ramanuj Mukherjee, CEO & Co-Founder of LawSikho, and Abhyuday Agarwal, COO & Co-Founder of LawSikho.

They will teach you how to pursue an LLM abroad thereby erasing the confusion created in the minds of several LLM aspirants.

If you have already registered, don’t forget to invite your friends, colleagues, or classmates to this Bootcamp.

Registration Link: https://lawsikho.com/llmbootcamp.

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: https://t.me/joinchat/L9vr7LmS9pJjYTQ9

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Top 40 universities for LLM in US

By
Diganth Raj Sehgal
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0
Image Source- https://bit.ly/39ciG7a

This article has been written by Surbhi Jindal and has been published by Diganth Raj Sehgal.

Looking for a fulfilling career as a lawyer? Law universities in the US offer LLM degrees that enable you to specialize as a lawyer as well as increase your earning potential.

LLM in the US is a valuable postgrad opportunity for students and legal professionals to combine in-depth knowledge in their chosen areas with valuable US experience. 

But the big question on everyone’s mind is which law universities are the best? Which will be the perfect law University for me? Which US universities offer the best LLM programmes? With so many universities to choose from, it can be a little overwhelming to find the best one. 

Choosing the wrong law university could have long-lasting consequences on your career. Students should take charge of their future and research before committing to just any University because it’s abroad. Why not choose the best when you have the option to do so. 

There are dozens of top law Universities in the US. If you’re struggling to decide which US university’s LLM programme to attend, we’re here to help. 

Scroll down and find out which law school is perfect for your career ambition. We have compiled a list of top 40 US universities to pursue LLM from:

  1. New York University (NYU) School of Law

NYU School of law is one of the most prestigious law schools of New York. This school of law has been on the forefront to provide support and guidance to their students and further help them in excelling in the field of law. Students also get a deeper understanding on how to solve real world problems. 

  • The tuition cost of studying in this university is $70, 400 (approx. INR 53,46,528).
  1. Columbia University – Columbia Law School (CLS)

The Columbia Law School is one of the most prestigious law schools in the United States. It’s graduates are over-represented in all levels of government, the judiciary, academia, industry and public interest.

Columbia is ranked as one of the top law schools in the world by QS World University Rankings. It is renowned for its influential faculty members who are among some of America’s most accomplished lawyers.

  • The tuition cost of studying in this university is $77, 352 (approx. INR 58, 74, 497).
  1. Stanford University – Stanford Law School (SLS)

Stanford Law School is the best law school because it has a global reputation as one of the preeminent centers for training lawyers and public servants. It teaches you how to be a lawyer and prepares you to excel in law school. It offers a great legal education with a world-class faculty and opportunities for research, teaching, and public service.

  • The tuition cost of studying in this university is $64, 350 (approx. INR 48, 87, 060). 
  1. Georgetown University Law Center (GULC)

Georgetown University Law Center, United States is one of the oldest law schools in the United States. It was founded in 1870 and has produced many of the most famous judges, lawyers, and politicians.

It is one of the most widely recognized private universities in Washington D.C. It is also ranked as one of the best universities for law school according to Forbes. 

  • The tuition cost of studying in this university is $71, 356 (approx. INR 54, 19, 131). 
  1. Harvard University – Harvard Law School (HLS)

Harvard Law School is a renowned university for its legal programmes and has produced many distinguished alumni, including ex-president of the United States, Barack Obama. 

  • The tuition cost of studying in this university is $67,720 (approx. INR 51, 42, 995). 
  1. University of California, Berkeley Law

UC Berkeley Law provides a world-class legal education, with one of the best law faculties in the nation. Berkeley Law offers an unparalleled intellectual environment for law students, faculty, and scholars to explore new ideas and to be part of a community that fosters innovation.

  • The tuition cost of studying in this university is $69,000 (approx. INR 52, 40, 205). 
  1. University of Southern California – USC Gould School of Law

USC Gould School of Law is the law school of University of Southern California (USC). USC Gould is one of 35 American Bar Association approved law schools in the United States.

  • The tuition cost of studying in this university is $69,998 (approx. INR 53, 15, 998). 
  1. University of California, Los Angeles (UCLA) School of Law

The University of California, Los Angeles (UCLA) School of Law has been ranked as the #1 law school in both U.S. News & World Report rankings. UCLA consistently ranks at the top for its faculty’s scholarly impact on students which means that it has one of the strongest faculties in the country. The School of Law offers a variety of concentrations at both undergrad and graduate level, as well as opportunities for joint degrees with other departments at UCLA.

In addition to producing excellent graduates who are qualified to practice law, UCLA also has a commitment to public service and pro bono work by offering a variety of clinics to students interested in these areas of law.

  • The tuition cost of studying in this university for non-resident is $60, 739 (approx. INR 46, 12, 823). 
  1. Fordham University School of Law

Fordham University School of Law is the oldest law school in New York City and is 44th in world ranking.

Its prominent alumni include two United States presidents, eight Justices of the Supreme Court, and many U.S. Senators and Governors.

  • The tuition cost of studying in this university is $66, 850 (approx. INR 50, 76, 923).
  1. University of Pennsylvania (UPenn) – Carey Law School – Penn Law

The University of Pennsylvania (commonly known as Penn) is a world-renowned institution with a variety of academic and research programs. Penn Law offers one of the best legal programs in the US. Carey Law School is the #6 law schools in the US as per U.S News and World Report.

Penn Law’s curriculum is based on teaching students to think critically, solve problems creatively, and provide practical solutions for clients under unprecedented circumstances. They also teach students how to work effectively in small firms, large firms, government agencies, NGOs, corporations, international organizations and private practice.

  • The tuition cost of studying in this university is $65,392 (approx. INR 49, 66, 195).
  1. Boston University School of Law (BU Law)

Boston University School of Law is the only law school in the United States that offers an LLM in International and Transnational Criminal Law. It has a very strong international focus and offers courses on terrorism, human rights, international criminal law, and international human rights law.

It is one of the best schools for practical training. The curriculum offers courses on practical skills like negotiation and mediation which are not offered at most other schools.

  • The tuition cost of studying in this university is $59, 320 (approx. INR 45, 05, 057). 
  1. Cornell University – Cornell Law School

Cornell University is known as the best law school in the world. It has a prestigious faculty and strong alumni network. Cornell Law School is not only ranked as one of the top law schools in the country but also offers an LLM degree program that produces outstanding legal scholars.

It is recognized as one of the best law schools in the world, with a prestigious faculty and alumni network. The LLM program at this school produces outstanding legal scholars and is ranked as one of the top law schools in America.

  • The tuition cost of studying in this university is $71, 552 (approx. INR 54, 34, 016). 
  1. The University of Texas School of Law (Texas Law)

The University of Texas School of Law is an institution that offers degrees in law, arts and sciences, and engineering. This school is the largest in the state by enrollment.

Texas Law School has always been number one in the state when it comes to admissions. This law school provides a diverse range of courses with a competitive environment. The tuition rate for this institution is affordable for most people.

  • The tuition cost of studying in this university for non-resident is $54, 096 (approx. INR 41, 08, 320) 
  1. University of Virginia (UVA) School of Law

The University of Virginia School of Law is a top school in the country. It has a rigorous curriculum with full-time professors, and offers its students access to some of the best resources in the world. This school offers an education that is 100% online while still being one of the top universities in America.

  • The tuition cost of studying in this university for non-resident is $69,500 (approx. INR 52,77,830).
  1. Yale University – Yale Law School (YLS)

The Yale Law School LL.M. program is a two-year, full-time program designed to provide foreign lawyers with the educational background and practical skills necessary to succeed as legal professionals in the U.S.

The school offers most comprehensive international LL.M. curriculum in the country, with courses taught by leading scholars from around the world who are experts in their fields, so students can learn about American law, but also about law in other parts of the world

The Yale Law School is considered one of America’s top universities for J.D., with a rigorous curriculum that prepares graduates for success in today’s global legal profession

  • The tuition cost of studying in this university is $67,108 (approx. INR 50,96,181).
  1. University of Chicago Law School

The University of Chicago Law School has long been considered to be the best law school in the world. It is ranked number one by many prestigious rankings, including US News & World Report, QS World University Rankings, and Times Higher Education World University Rankings. It is also ranked as the top law school in America by The National Jurist based on salary, admissions statistics, bar passage rate, and employment statistics for new graduates.

It offers an excellent LLM program for those who are interested in international law. There are many reasons why it is a great choice for an LLM degree program like diverse student body, cutting-edge curriculum with highly engaging coursework, strong alumni network that provides support. 

  • The tuition cost of studying in this university is $70,710 (approx. INR 53,69,710). 
  1. Vermont Law School

Vermont Law School is one of the best law schools in the country. They have an excellent student body, faculty and facilities.

The school is ranked at the top for providing a high-quality legal education. It also has a very strong alumni network that provides opportunities for students to work with the best professionals. Vermont Law School also has a very affordable tuition fee which makes it more accessible to students from different backgrounds. The vast majority of their graduates are employed within nine months of graduation.

  • The tuition cost of studying in this university is $42,000 (approx. INR 31,89,480). 
  1. Northwestern Pritzker University 

Northwestern Pritzker University is one of the best universities in the United States. It is ranked among the top 50 law schools in the world and has been named among America’s top ten law schools. The LLM programs at this university provide a rigorous and practical education that prepares students to be leaders by collaborating with colleagues from around the world.

  • The tuition cost of studying in this university is $72,558 (approx. INR 55,10,054).
  1. Pepperdine University

Pepperdine University offers an excellent LLM program in International Business Law

It is ranked among the top 100 universities in the world. The University has a long history of higher education and has been providing students with a unique liberal arts and professional experience. 

It’s located in Malibu, California, and it’s only 30 minutes away from Los Angeles International Airport (LAX). Pepperdine offers dual degrees, combined degrees, and joint majors. The School of Law at Pepperdine University is ranked among the top 50 law schools in the country.

  • The tuition cost of studying in this university is $58,550 (approx. INR 44,46,287).
  1. Duke University

The LLM Degree will help you gain specialization in your chosen field of law, and learn from some of the world’s best legal minds.

Duke’s Law School is easily accessible with a public bus stop just outside our campus entrance, and our proximity to downtown Durham puts you close to two major airports—the Durham-Durham Airport and Raleigh-Durham International Airport—providing you with convenient travel options.

  • The tuition cost of studying in this university is $77,000 (approx. INR 58,47,380).
  1. University of Michigan

The University of Michigan in Ann Arbor is a public research university in the U.S. state of Michigan. It is the state’s oldest university and one of the nation’s largest universities by enrollment. The university offers more than 300 programs of study, including bachelor’s, master’s and doctoral degrees.

It has been ranked as one of the top 10 law schools in America by U.S News and World Report for over two decades running; consistently ranked among the top 15 law schools in America by Above The Law; and has been named one of the world’s best law schools by Business Insider, Financial Times and QS World University Rankings.

  • The tuition cost of studying in this university is $68,098 (approx. INR 51,71,362).
  1. Vanderbilt University 

Vanderbilt University has been ranked among the top law schools in the country. With its unique location, Vanderbilt provides an opportunity to study at one of the best universities in America while living in a diverse city with international influence.

It is one of the most prestigious universities in the US. It has been ranked among the top law schools in the country and is known for its unique location that provides an opportunity to study at one of the best universities in America while living in a diverse city with international influence.

  • The tuition cost of studying in this university is $64,284 (approx. INR 48,81,726). 
  1. Loyola Law School Los Angeles

Loyola Law School is a private law school within the Jesuit and Catholic tradition. It offers an alternative to the more expensive, conservative and traditional UCLA School of Law. Loyola is ranked as one of the best law schools in California and has one of the most diverse student bodies in the country with students from over 75 countries.

It offers a unique LLM degree program for those who want to undertake a postgraduate legal education either after obtaining their first law degree or as a non-lawyer seeking to enter into legal practice. With its flexible electives, this program provides an excellent opportunity for personal development.

  • The tuition cost of studying in this university is $46,080 (approx. INR 34,99,315).
  1. University of New Hampshire (UNH) – Franklin Pierce School of Law

The University of New Hampshire’s Franklin Pierce School of Law is a top-ranking law school that offers a fully online LLM program. It has been ranked as one of the best online law programs by US News and World Report, and it has been recognized for its commitment to student success.

At UNH, students have access to an outstanding faculty with a variety of expertise in different legal disciplines. With a number of courses offered online, students can complete their degree from anywhere with an internet connection making this program perfect for those who are looking to balance work with their education. Inside the classroom, they also offer various support services including tutoring and advising from writing tutors and academic advisors.

  • The tuition cost of studying in this university is $40,000 (approx. INR 30,36,400).
  1. University of Georgia – School of Law

According to the ranking of US News & World Report, University of Georgia School of Law is ranked as the best law school in Georgia, and it is also ranked as one of the best law schools in America. The school has a very strong reputation for its rigorous curriculum, experienced faculty, top-notched clinical programs, and magnificent facilities.

  • The tuition cost of studying in this university is $38,124 (approx. INR 28,93,992).
  1. Stetson University College of Law

Stetson University College of Law is ranked as one of the top 100 law schools in America by U.S. News & World Report, which is a top college ranking site that evaluates over 1,400 colleges/universities and graduate programs on various factors like tuition rates, retention rates, graduation rates etc.

Stetson Univ’s College of Law also offers a wide range of opportunities for students to pursue their interests and develop their skills with its innovative curriculum and diverse faculty.

  • The tuition cost of studying in this university is $14,400 (approx. INR 10,93,104).
  1. University of Alabama School of Law

The University of Alabama School of Law is ranked the top-ranked law school in the country for international law. The School is also ranked among the best US law schools for clinical programs, international and comparative law, tax law, and legal history. It has a diverse student body and a beautiful campus setting.

It is a great law school that has many strengths. The College of Law’s rankings are some of the strongest in the country and it has a diverse student body that comes from all over the world.

  • The tuition cost of studying in this university is $43,060 (approx. INR 32,68,684).
  1. Brigham Young University (BYU) – J. Reuben Clark Law School

The J. Reuben Clark Law School is the common law school of Brigham Young University, a private research university owned by The Church of Jesus Christ of Latter-day Saints (LDS Church).

BYU Law School is an internationally recognized law school with a large and diverse student body. This law school has some unique programs like the International Human Rights Clinic, which provides training on human rights advocacy to students from all over the world. Given its reasonable tuition cost, BYU Law School is one of the most affordable options for an LLM degree in the United States.

  • The tuition cost of studying in this university is $28,416 (approx. INR 21,57,058).
  1. Albany Law School

This School is one of the most prestigious law schools in the United States. The LLM degree is for those who want to specialize in a particular area of law.

Students at Albany Law School will learn from professors who are experts in their fields and will be able to work with top-tier professionals, interns, and students.

Albany Law School is one of the oldest law schools in the U.S. It was established in 1851 and it has since then produced some of the most successful lawyers, judges, and politicians.

The school is ranked in the top 20 law schools by US News & World Report. It also offers a wide range of courses for students interested in different areas of law. Students can receive a degree from Albany Law School either with an LLM or by completing the 3-year JD program.

  • The tuition cost of studying in this university is $53,670 (approx. INR 40,74,089). 
  1.  DePaul University College of Law

DePaul University College of Law is the first Catholic law school in the United States.

It has been ranked the top “value” law school for three years in a row by U.S. News and World Report, based on employment data of alumni who had graduated around five years ago.

The median LSAT score for students admitted to DePaul University College of Law is 158 (out of 180).

  • The tuition cost of studying in this university is $38,160 per year (approx. INR 28,96,725).
  1. University of Arkansas (UArk) – School of Law

University of Arkansas is one of the best universities in the state. The US News ranks it as one of the top law schools in Arkansas. It is ranked among top 150 law schools for, which reflects its quality.

The school offers a rigorous curriculum that provides LLM students with an exceptional opportunity to earn their degrees.

  • The tuition cost of studying in this university is $17,978 (appprox. INR 13,64,709).
  1. University of Mississippi – School of Law

The University of Mississippi School of Law is the only law school in the state. It has an excellent academic program and is ranked #40 in the country. The school offers a wide range of degree programs, including LLM, JD, JD/MBA, and J.D./LL.M giving students the opportunity to find their passion or grow their skill set for future jobs or education opportunities elsewhere after graduation.

  • The tuition cost of studying in this university is $37,404 (approx. INR 28,39,337).
  1. SMU Dedman School of Law

SMU Dedman School of Law is the only law school in the United States with four-year degree programs in three languages – Arabic, Chinese, and Polish.

The school is committed to building a global community of international lawyers. It offers many scholarships for international students. It also offers more than 40 dual degrees with universities around the world.

  • The tuition cost of studying in this university is $52,514 (approx. INR 39,86,337).
  1. Louisiana State University (LSU) – Paul M. Hebert Law Center

LSU- Paul M. Hebert Law Center is one of the top law schools in the US and has an excellent academic and research track record. It has a strong alumni network and provides ample opportunities for students to build their career through fellowship programs.

It not only offers excellent academic and research facilities but also provides easy access to legal professionals in Louisiana, who provide internships, work experience, etc., to students.

  • The tuition cost of studying in this university is $35,190 (approx. INR 26,71,272).
  1. University of Baltimore – School of Law

The University of Baltimore School of Law is a top tier law school in the United States, offering rigorous legal education and practical skills that prepare its graduates for careers in both the private and public sectors. It is best known for its programs in Business Law, Health Law, Intellectual Property Law, International Legal Studies and Taxation.

In recent years UB has been ranked among the top ten law schools by U.S. News & World Report and its students have achieved a 100% passing rate on the Maryland Bar Exam. The School’s graduate programs have been ranked among the nation’s best by US News & World Report for more than two decades while maintaining a high level of service to all students.

  • The tuition cost of studying in this university is $30,000  (approx. INR 22,77,300).
  1. University of Maryland – Francis King Carey School of Law

If you want to be a lawyer who specializes in commercial, corporate and financial law with a focus on Latin America, the University of Maryland – Francis King Carey School of Law is the right choice.

Universities such as this one offer programs in international law and the University of Maryland’s LLM program in Latin American studies is one of the best.

  • The tuition cost of studying in this university is $14,132 per semester (approx. INR 10,72,760).
  1. Regent University School of Law

Regent University School of Law is the first school of law to offer an online LLM degree. It is ranked among the top 20 best law schools in the United States by U.S News & World Report, and it has been recognized for its excellence by Forbes Magazine.

Regent University School of Law is best for LLM because it offers a competitive tuition rate, a variety of scholarships, and access to faculty members who are experts in their fields.

  • The tuition cost of studying in this university is $5,850 credit per hour (approx. INR 4,44,073).
  1. University of Houston Law Center (UHLC)

The University of Houston Law Center is a great choice for LLM students because of its affordable tuition rates and proximity to a major city. It offers a wide range of courses in the field of law, including intellectual property, environmental law, and international business transactions. The full-time program is designed for working professionals who have an undergraduate degree in any field.

  • The tuition cost of studying in this university is $44,204 (approx. INR 33,55,525).
  1. Benjamin N. Cardozo School of Law – Yeshiva University (New York City)

The Benjamin N. Cardozo School of Law is consistently ranked among the top law schools in the United States. Aside from providing a rigorous legal education, its location in New York City offers unparalleled opportunities for scholarly and civic engagement.

Nowadays, law schools are increasingly taking into account the student’s interest in internationalization. There are many reasons why one should prefer BNCC Law School:

The LLM program at BNCC is designed to be flexible and focused on practical skills and experience, with a number of options to choose from

The purpose of the LLM degree is to develop students’ global expertise as future leaders and professionals with international responsibilities

  • The tuition cost of studying in this university is $65,817 (approx. INR 49,96,168).  
  1. Penn State University – Penn State Law

Penn State University – Penn State Law provides a wide range of courses in law, with the focus on practical skills that will be useful for your career. You can learn about business law, intellectual property, and constitutional law.

The school also has a strong international program and international students can take advantage of internship opportunities in over 20 countries. The school stipulates that you must complete the coursework in order to confer eligibility for the bar exam.

  • The tuition cost of studying in this university is $51,143 (approx. INR 38,82,265).

It’s understandable that just exploring these options might’ve filled your mind with questions. You might be seeking a complete roadmap on pursuing LLM from the best university abroad. 

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Case analysis : Indian Federation of App-Based Transport Workers (IFAT) vs. Union of India and Others

By
Abanti Bose
-
0
Image source - https://bit.ly/2HVbbKp

This article is written by Sukanya Mitra, pursuing Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from Lawsikho.com.

This article has been published by Abanti Bose.

Introduction

India is one of the largest consumers of smartphones. We have access to the world at our fingertips, through applications or more popularly, “apps”. There are apps for every single aspect of our lives, from personal life, like tracking sleep, eating healthy, etc to work like collaborating with a team to social life and much more. Some of the big names are Ola, Uber, Swiggy, and Zomato. With movement restricted due to the Covid-19 pandemic, apps have become even more crucial. In September 2021, the Indian Federation of App-Based Transport Workers (IFAT) filed public interest litigation (PIL) in the Supreme Court seeking to secure social security benefits and economic reliefs to app-based workers. The PIL has not come up for hearing yet. This article examines the grievances of the workers raised in the PIL, the applicable statutory provisions, and relevant judgments.

Background

Ola and Uber drivers in Hyderabad were on strike, back in January 2017, demanding that the companies stop registering new drivers because the existing drivers were not making enough money due to the companies’ unfair practices. They were joined by drivers from Delhi-NCR, Mumbai, Bangalore, and Kolkata. Drivers were demanding

  • better share in the journey fares, 
  • better rates in light of rising fuel prices, 
  • relaxed hours to reach targets and, 
  • accident insurance. 

Earnings were already dwindling and drivers were facing hardships in paying monthly instalments (EMIs) on car loans, fuel, and maintaining their cars.

App-based drivers on strike in Mumbai in October 2018 demanded:

  • companies to ensure drivers earned a minimum of Rs. 15,000 per day,
  • companies must share maintenance costs of cars,
  • companies to fairly question drivers before blacklisting them and slashing their income based on customer complaints,
  • increasing base fares in proportion to the type of car. 

Strikes continued on and off in major cities through 2018, 2019, and 2020. Though Ola and Uber conducted talks with trade unions and associations of their drivers, there has been no concrete resolution as of yet.

A need was felt to address the demands of app-based drivers on a national level. After 2 years of work and meetings among various stakeholders, such as drivers, trade unions, etc, from across the country, the IFAT was built. The IFAT was voted into existence in Mumbai in December 2019 by app-based drivers, leaders, and activists delegates. The process of building a national federation for app-based transport workers was aided by the International Transport Workers’ Federation (ITF), Asia-Pacific, and Biju Mathew, the secretary of the New York Taxi Workers Alliance (NTWA). The main aim of the IFAT is to move forward with the demand of regulating the app-based taxi sector and to ensure that app-based drivers have social security benefits under new labour codes.

Between July and November 2019, the IFAT and ITF jointly conducted surveys into the health and safety of app-based drivers. The Covid-19 pandemic was in full force and so was the national lockdown during this period. The research took into account access to health insurance, safety nets in case of emergencies, expenditure on healthcare, and even harassment faced by drivers and mental health. A report was published in August 2020. The key findings are:

  • App-based drivers are termed as “independent contractors” and not employees in their contractors with the companies. This is allowing multi-national companies to circumvent their responsibilities in providing social security to the drivers who work up to 20 hours every day.
  • A large section of the research group had no form of social security or protection. As drivers, accidental insurance is a minimum requirement that must be provided by the companies.
  • Due to the long working hours, drivers get less than 6 hours of sleep. Further, backache, neck stiffness, waist pain, and liver disease are the most common ailments reported by drivers.
  • Apart from physical pain, drivers often face harassment, abuse, and even violence from customers, intimidation from authorities, and harassment from the companies themselves. This takes a toll on their mental health. Drivers reported feeling irritable from work, which carries into their home life and negatively impacts interactions with their families. There are no measures offered by the companies to tackle mental health issues. Drivers do not get any support from companies when dealing with unreasonable customers and authorities.
  • Drivers’ earnings have been adversely impacted by rising fuel prices, changes in the rate of fares, and cutbacks on bonuses and incentives. Drivers reported that there is no transparency as to how rates are fixed, how bonuses and incentives are calculated and distributed, and how the App’s algorithm decides which driver is offered to take up a ride.

The national lockdown to tackle the Covid-19 pandemic forced vehicles off the roads and permanently shut many small and medium businesses. Earnings of app-based drivers depend on the number of rides completed in a day. With the country at a standstill and no support from the companies, many drivers and their families have been pushed to poverty.

As the economy began to open up with safety measures in place, app-based workers of Ola, Uber, Swiggy, Zomato, Rapido, and Dunzo across the country protested against the lack of health safety and sanitization measures by the companies in June 2020. The workers alleged that they were not provided with adequate Personal Protective Equipment (PPE), face masks, sanitizers, etc. App-based drivers also demanded face shields and partitions between them and the passengers. App-based companies are still not providing health insurance to their workers.

Facts of the case

Based on their findings and looking at the worsening conditions of app-based workers, the IFAT initiated a PIL against the Union of India, Swiggy, Zomato, Ola, and Uber. The demands of the IFAT are:

  • Social security benefits.
  • Directions to app-based companies to provide economic relief to workers in the manner of cash transfers of Rs. 1,175/- per day for app-based drivers and Rs. 675/- per day for other app-based workers until the 31st December 2021 or until the pandemic subsides.
  • Directions to financial institutions, banks, and non-banking financial companies (NBFCs) to not seize and/or auction vehicles of app-based workers on failure to pay EMI of loans till the pandemic subsist and further, to penalize these institutions on failure to comply with RBI circulars and the Court’s judgment in Small Scale Industrial Manufacturers Association (Regd.) vs. Union of India and others (Loan Moratorium case).

Relevant provisions

The Unorganized Workers’ Social Security Act, 2008

In the PIL, the IFAT states that app-based workers or ‘gig’ workers come under the meanings of “unorganized workers” and “wage workers” under the Unorganized Workers’ Social Security Act, 2008 (Act of 2008). Accordingly, gig workers need to be registered under the Act of 2008 to claim social security benefits.

  • Section 2(m): “Unorganized workers” covers a home-based worker, a self-employed worker, and a wage worker, who is working in the unorganized sector. It also includes workers in the organized sector who are not covered under any of the Acts listed in Schedule II of the Act of 2008.
  • Section 2(n): “Wage Workers” means a worker who works for remuneration in the unorganized sector, irrespective of the place of work;
  • directly through an employer or through a contractor,
  • whether exclusively for one employer or one or more employers,
  • whether in cash or kind,
  • whether as a home-based worker, or temporary or casual worker, or migrant worker, or worker employed by households, including domestic workers,
  • with a monthly wage of an amount as notified by the Central or State government, as the case may be.

The social security benefits available for workers covered under the Act of 2008 are stated in Section 3:

1. By the Central Government – 

  • Life and disability cover,
  • Health and maternity benefits,
  • Old age protection
  • Any other benefit.

2. By the State Government – 

  • Provident fund,
  • Employment injury benefit,
  • Housing,
  • Educational schemes for children,
  • Skill up-gradation of workers,
  • Funeral assistance, and
  • Old age homes.

The Constitution of India

The IFAT contended, in its PIL, that if the State does not register gig workers under the Act of 2008, it would be violative of the fundamental rights of the gig workers and leave them open to exploitation.

  • Article 14: Every person is guaranteed equality before the law and equal protection of the law.
  • Article 21: Every person is guaranteed the right to life and the right to personal liberty and can be deprived of these rights only according to a procedure established by law. The Supreme Court has interpreted Article 21 in the widest possible manner and has declared the right to livelihood, right to decent and fair working conditions, and right to human dignity to come under the purview of Article 21.
  • Article 23: Right against exploitation is guaranteed. Human trafficking, beggar, and other forms of forced labour are prohibited.

Additionally, some of the Directive Principles of State Policy can also be applied:

  • Article 39(e): The State is mandated to direct its policy particularly towards ensuring that the health and strength of workers are not abused and that citizens, because of economic necessity, are not forced to take up work not suited to their age or strength.
  • Article 41: The State is mandated to, as far as its economic capacity and development allow, make effective provisions for securing the right to work, the right to education, and the right to public assistance in case of unemployment, old age, sickness, disablement and in other cases of undeserved want.
  • Article 42: The State is mandated to make just and humane working conditions and for maternity relief.
  • Article 43: The State is mandated to make every effort to secure work, a living wage, conditions of work ensuring a decent standard of life, and full enjoyment of leisure and cultural opportunities to all workers, industrial or otherwise, through legislation, economic organization, or any other means.

The Code of Social Security, 2020

The Code of Social Security 2020 consolidates and amends laws relating to social security and aims to extend social security benefits to all workers, irrespective of their nature of work. Provisions relevant to the discussion are:

  • Section 2(35) defines a “gig worker” as a person who works and earns in an arrangement outside of the traditional employer-employee relationship. 
  • Section 2(60) specifically includes work, outside of the traditional employer-employee relationship, where organizations or individuals use online platforms to solve problems or perform services or other activities, as may be notified by the Central Government, in exchange for payment.

The definitions of “gig workers” and “platform workers” have been criticized for being overlapping. For example, a person driving for Ola is working outside the traditional employer-employee relationship and is using an online platform to provide a service in exchange for payment. He would fall under both the definitions of “gig worker” and “platform worker”. Thus, the definition of “gig worker” needs to be made more specific.

  • “Social security”, under Section 2(78) includes measures to ensure access to health care and to provide security of income, particularly in cases of old age, sickness, unemployment, invalidity, maternity relief, and work injury or loss of a breadwinner. These measures are to give basic protection to employees, gig workers, unorganized workers, and platform workers.

Chapter IX of the Code provides the scheme for social security for unorganized workers, gig workers, and platform workers. To avail benefits under the Code, it is mandatory for gig workers, unorganized workers, and platform workers to be registered under section 113. Schemes for gig workers and platform workers are to be framed by the Central Government, under section 114, regarding:

  • Life and disability cover,
  • Accident insurance,
  • Health and maternity benefits,
  • Old age protection,
  • Crèche,
  • Any other benefit determined by the Central Government.

The schemes may be funded through a combination of contributions from the Central government, the State Governments, and aggregators. “Aggregators”, as per section 2(2), are digital intermediaries or market places where buyers or service-users connect with sellers or service providers. Schedule 7 of the Code provides a list of aggregators.

Table Description automatically generated

The National Security Board constituted for unorganized workers under section 6(1), will act as the Board for gig workers and platform workers for suggesting and monitoring welfare schemes for them. For this purpose, the Board shall consist of:

  1. 5 representatives of aggregators – nominated by the Central Government,
  2. 5 representatives of gig workers and platform workers – nominated by the Central Government,
  3. Director-General of the Employees’ State Insurance Corporation,
  4. 5 representatives of state governments.

The Code received the assent of the President on September 28, 2020. However, it has not been brought into force. Section 142 was notified on May 03, 2021, whereby an Aadhaar card is mandatory to avail benefits under the Code. On August 26, 2021, the Union Ministry of Labour and Employment developed a national database of unorganized workers, the ‘e-shram portal’, with the National Informatics Centre. The responsibility of registering workers eligible for benefits under the Code is with the states and union territories. The database is linked with Aadhaar. 

Judgments relied on

The IFAT relied on the decision of the U.K. Supreme Court in Uber BV vs. Aslam on 19.02.2021. In 2016, two drivers working with Uber, James Farrar and Yaseen Aslam, sued Uber on the ground that they were “workers” under the law and the company had denied them their rights and wages. The employment tribunal ruled in favour of the drivers and held that the 40,000 drivers engaged by Uber were “workers” as per law. The tribunal further ruled that when calculating drivers’ hourly wages, the time spent waiting for rides should also be included. Uber appealed twice and lost both times. The case finally reached the Supreme Court in 2020.

The primary question was whether the tribunal was entitled to find that drivers who work for Uber through the Uber App under workers’ contracts qualify for workers’ rights such as national minimum wage, paid leaves, etc. Uber contended that drivers work as independent contractors under contracts made directly with the passenger as Uber is simply the drivers’ booking agent and hence, they do not qualify for workers’ rights.

If the drivers work under workers’ contractors, a secondary question arose that whether the tribunal was also entitled to find that the petitioners were working under such contracts whenever they logged into the Uber App and were ready to accept trips. Uber argued against this and stated that drivers were working only when they were driving their passengers to their destinations.

The Supreme Court examined the extent of power Uber exercises over the drivers in terms of rates charged, terms of the contract between Uber and the drivers, monitoring the drivers’ performance, mandating routes which drivers need to follow, and restricting personal communication between the drivers and the passengers. The Supreme Court concluded that Uber maintained strict control over its drivers so much so that to improve their economic conditions, drivers must work long hours on Uber’s terms. The Supreme Court upheld the decision of the tribunal that Uber drivers are “workers” as per law and are entitled to rights such as minimum wage, paid annual leaves, etc.

The IFAT contended that Uber, being a multinational entity, must treat all its drivers across the world the same.

The IFAT also relied on the Loan Moratorium case for reliefs in repayments of loans and EMI’s on vehicles. In this case, the Supreme Court was hearing a batch of writ petitions challenging the Central Government’s Covid-19 Regulatory Package notified by the Reserve Bank of India, vide circular dated March 27, 2021. The petitioners prayed for the moratorium period to be extended and a complete waiver of the interest accruing on the outstanding portion of term loans during the moratorium period. The Central Government further notified a Scheme dated October 23, 2021, deciding to not charge interests on loans up to Rs. 2 crores. But this relief was restricted to 8 categories of borrowers specified in the Scheme.

The Central Government stated that they had not contemplated a total waiver and only a deferred payment of interest because the amount of interest sought to be waived was over Rs. 6 lakh crores, and a substantial portion of the net worth of banks would be wiped out. The very survival of banks would be in serious jeopardy. 

The Court held that it could not order an extension of the moratorium period because it was a policy decision. It could also not order a complete waiver of interest because it would have a far-reaching negative impact on the economy. The Court did, however, direct the government to waive the compound interest during the moratorium period. It further held that restricting reliefs to specific categories of borrowers was irrational.

Conclusion

A vast majority of India’s workforce is engaged in the unorganized sector. Workers are dependent on day-to-day earnings. If they do not secure any work for a day, they do not earn that day. Workers struggle to make ends meet daily and are unable to plan for the future. Adequate legislation to help workers is lacking. The grievances of gig workers resonate with all workers in the unorganized sector and hence, the decision of the Supreme Court will have a rippling effect on the unorganized sector.

References

  1. https://theswaddle.com/gig-and-delivery-workers-approach-supreme-court-seeking-social-security/
  2. https://www.ndtv.com/telangana-news/uber-ola-cab-drivers-threaten-hunger-strike-from-tomorrow-1644701
  3. https://gadgets.ndtv.com/apps/news/uber-ola-drivers-in-delhi-ncr-go-on-strike-from-friday-demand-accident-insurance-and-more-1658028
  4. https://indianexpress.com/article/explained/why-app-based-cabs-are-off-the-roads-and-drivers-have-hit-mumbai-streets-5424407/
  5. https://cis-india.org/raw/files/ifat-itf-protecting-workers-in-digital-platform-economy-ola-uber-occupational-health-safety-report/
  6. https://inc42.com/buzz/ola-uber-drivers-protest-over-lack-of-ppes-hygiene-support-from-aggregators/
  7. https://legislative.gov.in/sites/default/files/A2008-33.pdf
  8. https://legislative.gov.in/sites/default/files/COI_1.pdf
  9. https://labour.gov.in/sites/default/files/SS_Code_Gazette.pdf
  10. Uber BV and others v. Aslam and others [2021] UKSC 5 https://perma.cc/KAW2-D8FS
  11. https://blog.harvardlawreview.org/recent-case-_uber-bv-v-aslam_/
  12. https://rbidocs.rbi.org.in/rdocs/notification/PDFs/NOTI186B27003E9DB3D4FB49BDDF955F4289D68.PDF
  13. Small Scale Industrial Manufacturers Association (Regd.) vs. Union of India and others (2021) SC 246 https://main.sci.gov.in/supremecourt/2020/11162/11162_2020_35_1501_27212_Judgement_23-Mar-2021.pdf
  1. https://financialservices.gov.in/sites/default/files/Scheme%20Letter.pdf
  2. https://www.scconline.com/blog/post/2021/03/23/loan-moratorium-case-supreme-court-says-no-to-total-waiver-of-interest-and-extension-of-moratorium-period-but-directs-full-waiver-of-compound-interest/
  3. https://scroll.in/article/1004199/e-shram-all-you-need-to-know-about-indias-first-centralised-database-for-unorganised-workers

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The efficiency of PCA Optional Rules for arbitration of disputes relating to outer space activities

By
Oishika Banerji
-
0

This article has been written by Amrita Chatterjee pursuing the Certificate Course in Arbitration: Strategy, Procedure and Drafting from LawSikho. This article has been edited by Prashant Baviskar (Associate, Lawsikho), Zigishu Singh (Associate, Lawsikho) and Arundhati Das (Intern at Lawsikho). 

This article has been published by Oishika Banerji. 

Introduction

The Permanent Court of Arbitration (PCA) is a multilateral institution based in The Hague, Netherlands. It is not a court in the traditional sense, but it does provide arbitration services to resolve disputes arising from international agreements between member nations, international bodies, or private parties. The PCA is made up of 122 states who are members of two independent international treaties. The PCA is an official United Nations Observer, not a UN agency. This arbitral institution was solely responsible for resolving the renowned “Indus Waters Kishenganga Arbitration.” The PCA Outer Space Rules are based on the 2010 UNCITRAL Arbitration Rules (“UNCITRAL Rules“), which are well-established procedural rules that parties in international arbitration regularly employ. The PCA Outer Space Rules reflect the distinct characteristics of disputes involving the use of outer space by States, international bodies, and private entities, as well as the public international law elements and relevant  international practices that apply to such disputes. The goal of this article is to investigate the effectiveness of PCA optional rules for resolving disputes involving space activities at a deeper level.

Overview of the PCA Outer Space Rules

The PCA Outer Space Rules provide for the highly technical nature of space conflicts in the following ways:

• A Panel of Expert Arbitrators: 

The PCA Secretary-General shall maintain a list of individuals regarded to have expertise in the subject issues of the dispute at hand for which these Rules have been designed under Article 10(4) of the Rules, with the intention of aiding the parties in designating arbitrators. Twelve attorneys and non-lawyers from Argentina, Australia, Brazil, Chile, China, the Dominican Republic, Israel, Korea, Paraguay, Spain, and Thailand are now on the PCA’s Specialized Panel of Arbitrators. The parties to the dispute or the appointing body may, but are not required to, select individuals from the list when appointing arbitrators. In addition, unlike the UNCITRAL Rules, which allow the parties to choose, only the PCA’s Secretary-General may serve as the appointing authority under Article 6 of the Rules.

• Scientific Experts on a Specialized Panel: 

An arbitral tribunal may select experts on specific subjects to be determined by the arbitral tribunal under Article 29(1) of the Rules. The PCA Secretary-General, in accordance with Article 29(7), maintains an indicative list of persons regarded to have knowledge in scientific or technical issues on which these Rules may be relied. Ten scientific and technical experts from Austria, Brazil, Chile, China, Israel, Korea, the Netherlands, Paraguay, and Thailand are now listed on the PCA’s Specialized Panel of Scientific Experts. The tribunal has the option, but not the obligation, to select expert witnesses from the list.

• Non-Technical Documents: 

Under Article 27(4) of the Rules, the arbitral tribunal may ask the parties to submit a non-technical document summarising and explaining the background to any scientific, technical, or other specialised information that the arbitral tribunal believes is necessary to fully understand the issues in dispute. This non-technical material can help the tribunal grasp the difficult technical issues at hand and decide whether appointing a scientific or technical expert, as required by Article 29 of the Rules, would be beneficial.

• Confidentiality: 

A party may petition to the tribunal, pursuant to Article 17(6) of the Rules, to have specific information in the arbitration classified as confidential. The tribunal will decide whether the information should be classified as secret based on whether the absence of additional safeguards in the proceedings would be likely to cause substantial injury to the party or parties seeking secrecy. Alternatively, the tribunal may appoint a confidentiality adviser as an expert (in accordance with Article 29) to review the confidential information and report to the tribunal on specific issues designated by the tribunal, rather than a party disclosing the confidential information in the arbitration.

What are the characteristics of current Outer Space Activity? 

Nowadays, a variety of outer space operations are being carried out all over the world in order to accelerate the growth of space science. Space activities such as launching satellites into various orbits, various terrestrial missions such as mars missions, moon missions, anti-satellite missile development, and so on are the most popular and common ones, which are carried out by various government agencies as well as various private players from various countries. This type of activity and development in outer space is becoming increasingly prevalent, both for improving communication power through numerous satellites and for any country’s 5th generation military augmentation. As a result, this burgeoning industry is not only a part of our present, but it will also shape our future in a variety of ways.

In a nutshell, there are presently three major categories of outer space operations: 

a) Military activity.

b) Public usage and activities and research and development.

c) Scientific advancements and research.

Is arbitration effective as a dispute resolution mechanism for space activity?

Yes, arbitration is a useful instrument for resolving many conflicts outside of the courtroom and traditional legal system. Even with the rapid expansion in outer space activity, various disagreements regularly arise as a result of business disputes, and arbitration is the best approach to resolve conflicts. International arbitration is being used to settle disputes in outer space by states, international bodies, and private entities. In fact, institutional and ad hoc arbitration rules and procedures, such as those of the International Chamber of Commerce (“ICC“), the London Court of International Arbitration (“LCIA“), and the International Centre for Dispute Resolution (“ICDR“), have been used to resolve several space-related disputes.

arbitration

The 10th Anniversary of the PCA Outer Space Rules

The Permanent Court of Arbitration (“PCA”) released its Optional Rules for Arbitration of Disputes Relating to Outer Space Activities (the “PCA Outer Space Rules” or “Rules”) about a decade ago. The Rules, unlike the five UN treaties on outer space, provide for a voluntary and binding dispute resolution process accessible to all space actors. They are unique in that they are custom made expressly for the space industry and constitute a significant advancement in the subject of space law. Surprisingly, the PCA Outer Space Rules have received little attention in the space industry.

We seek to examine whether the Rules were a failed mission or the next generation for resolving space disputes, as the traditional 10-year anniversary gift is meant to represent preservation, durability, and the ability to last through time. No publicly acknowledged arbitrations under the PCA Outer Space Rules have yet been completed. The PCA has handled issues involving outer space, however, the parties used the 1976 UNCITRAL Arbitration Rules rather than the PCA Outer Space Rules to settle their differences.

According to preliminary findings, the present scenario of space-related concerns appears to be dominated mostly by private enterprises in the satellite and telecommunications industries. This raises the question of whether private enterprises are aware of the PCA Outer Space Rules and the PCA’s International Bureau (Secretariat) and refer to them in their commercial contracts and agreements, or, in the case of existing contracts and agreements, in the event of a conflict. Private entities are unaware of the PCA, despite the fact that it is a well-established institution that enjoys the trust of governments and international organisations. The PCA is not well-known, according to at least one informal survey of industry respondents.

Satellite launch and delivery, regulatory actions, and satellite capacity leasing have been the most common issues, according to a study of the types and subjects of conflicts so far. The PCA Outer Space Rules are not being tested to see if they are capable of resolving conflicts that arise from existing legal ties. The remarkable contribution and exceptional approach in PCA rules are truly missing in today’s highly competitive dispute resolution market.

In the existing United Nations treaties on space law, there are few efficient dispute settlement mechanisms. Although the Annex to the PCA Outer Space Rules contains a model arbitration clause for contracts, such model agreements are rarely used to resolve disputes. There is some serious doubt about PCA Outer Space Rules’ ability to hold any future promise. It can be anticipated that as the types of disputants and the complexity of space conflicts continue to expand, the usage of the PCA Outer Space Rules will certainly rise. This is because the future of international space law, as well as the space industry as a whole, is rapidly changing. To this aim, the recently signed plurilateral Artemis Accords show the interest of multiple spacefaring States in advancing civil exploration and usage of outer space, including resource extraction and utilisation under the auspices of the 1967 Outer Space Treaty, as previously addressed here. Several nations, including the United States, have established legal and regulatory frameworks for space exploration and resource management.

Conclusion

Future space treaties and governance structures will need stronger dispute resolution procedures to keep up. Industry responses largely support arbitration in handling space-related issues, according to the visionary drafters of the PCA Outer Space Rules. The Rules are well-suited to this preference and to addressing the next generation of space disputes. The transition away from state monopolies will open up new opportunities and interactions for private entities all over the world, as well as scientific, technical, and legal breakthroughs that are likely to exceed the scope of procedure foreseen in today’s basic institutional standards.

References

  1. https://www.fedbar.org/wp-content/uploads/2018/03/Outerspace-pdf-1.pdf
  2. https://www.mcgill.ca/iasl/files/iasl/iac-9e723x50661_dispute_settlement_in_space_law.pdf
  3. https://pca-cpa.org/en/about/panels/panels-of-arbitrators-and-experts-for-space-related-disputes/
  4. https://crcica.org/FilesEnglish/ArbitrationRefrence_2019-05-14_14-52-25-500726.pdf.

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All you need to know about Assisted Reproductive Technology (Regulation) Bill, 2020

By
Rachit Garg
-
0

This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article provides a detailed analysis of the Assisted Reproductive Technology (Regulation) Bill, 2020.

This article has been published by Rachit Garg.

Introduction 

When medical procedures are used in order to address infertility by remedying it with the help of Intracytoplasmic Sperm injection (ICSI), cryopreservation of gametes or embryos, In Vitro Fertilization (IVF), etc, the same is known as assisted reproductive technology. The Assisted Reproductive Technology (Regulation) Bill, 2020 was passed with amendments by the Lok Sabha on December 1, 2021, to prevent misuse and to ensure the safe and ethical practices of assisted reproductive technology services. The Bill, which was first introduced in the Lok Sabha on September 14, 2020, defines “assisted reproductive technology” as any technique that attempts to obtain a pregnancy by manipulating sperm or oocytes outside the human body and transferring the gamete or embryo into a woman’s reproductive system. The reason behind introducing such a Bill has been the absence of a set of standardized protocols or statutory enforcement in the field of reproductive medical tourism inspite of India’s significant contribution over the years to the global fertility industry. 

The Assisted Reproductive Technology (Regulation) Bill, 2020

The Assisted Reproductive Technology (Regulation) Bill, 2020 is spread over six chapters dealing with specific subject matters under the umbrella of ‘assisted reproductive technology’.  The Statement of Purpose of the Bill has been provided as, ‘for the regulation and supervision of the assisted reproductive technology clinics and the assisted reproductive technology banks, prevention of misuse, safe and ethical practice of assisted reproductive technology services and for matters connected therewith or incidental thereto’. Thus the objective of the Bill can be classified into the following heads: 

  1. Regulating and supervising assisted reproductive technology,
  2. Preventing misuse of the above-mentioned technology can be ensured by maintaining a safe and ethical practice with related to the same,
  3. Regulate any matter that is connected or any way related to the aforementioned points.

The authorities which have been formed under this legislation draw their roots from the Surrogacy (Regulation) Act, 2020. Under this head, with reference to the Bill, an explanation has been provided with regards to the Bill, placing it under three different heads. 

Features of Assisted Reproductive Technology (Regulation) Bill, 2020

Some of the notable features of the Assisted Reproductive Technology (Regulation) Bill, 2020 have been provided hereunder.

  1. Exhaustive definition of the term ‘assisted reproductive technology’: Section 2(b) to (e) provides a detailed list of inter-connected definitions namely, artificial insemination, assisted reproductive technology, assisted reproductive technology bank, and assisted reproductive technology clinic which signifies the objective and purpose of the Regulation Bill, 2020. The bill defines ‘assisted reproductive technology’ as any approach for obtaining a pregnancy by handling sperm or an oocyte (immature egg cell) outside the human body and transferring the gamete or embryo into a woman’s reproductive system. Gamete (sperm or oocyte) donation, in-vitro fertilization (fertilizing an egg in a lab), and gestational surrogacy are examples of ‘assisted reproductive technology’ services (the child is not biologically related to surrogate mother). ART services will be supplied by;
  • ART clinics that conduct ART-related treatments and procedures, and
  • ART banks that store and distribute gametes.
  1. Formation of National and State Surrogacy Boards: The Surrogacy (Regulation) Bill, 2019, establishes the National and State Boards for Surrogacy, which will operate as the National and State Boards for the regulation of ART services, respectively. The National Board’s key powers and functions include:
  • Advising the Central Government on ART-related policy matters,
  • Reviewing and monitoring Bill’s implementation,
  • Developing a code of conduct and standards for ART clinics and banks, and
  • Supervising various bodies to be established under the Bill. 

The State Boards will coordinate the execution of ART rules and guidelines in accordance with the National Board’s recommendations, policies, and regulations.

  1. Mandatory registration of clinics and banks: Chapter III of the Assisted Reproductive Technology (Regulation) Bill, 2020 lays down procedures for registration. Section 15(1) of the aforementioned Chapter mandates registration of clinics or banks for undertaking assisted reproductive technology or to render assisted reproductive technology procedures in any form. Further Section 15(2) provides that an application for registration under sub-section (1) shall be made to the National Registry through the State Board. This mandate acts as a check for any kind of improper or fraudulent use of the concerned technology which can harm the lives of people. 
  2. The condition specified for donation and supply of gametes: Only a recognized ART bank is allowed to screen gamete donors, collect and store semen, and provide oocyte donors. Males between the ages of 21 and 55 can donate semen, while females between the ages of 23 and 35 can donate oocytes. An oocyte donor should be a happily married lady with at least one living child (minimum three years of age). A woman can only contribute one oocyte once throughout her life, and she can only have seven oocytes extracted from her. A single donor’s gamete cannot be sent to more than one commissioning couple by a bank (couple seeking services).

Rights and liabilities vested by Assisted Reproductive Technology (Regulation) Bill, 2020

Chapter IV of the Assisted Reproductive Technology (Regulation) Bill, 2020 lays down the duties vested on the assisted reproductive technology clinic and assisted reproductive technology bank along with the rights of a child born by means of this technology. 

Rights of a child born by means of the assisted reproductive technology

  1. The child born through assisted reproductive technology is presumed to be the commissioning couple’s biological child, and the said child is entitled to all of the rights and privileges afforded to a natural child only from the commissioning couple under any legislation in effect at the time.
  2. A donor relinquishes all parental rights over the child or children resulting from his or her gamete.

Duties vested by the Assisted Reproductive Technology (Regulation) Bill, 2020

The duties vested on assisted reproductive technology clinics and banks have been discussed under three broad heads, namely, general duties, duties of assisted reproductive technology clinics and banks to keep accurate records, and duties of assisted reproductive technology clinics using human gametes and embryos. 

General duties

  1. The clinics and banks must ensure checks on the eligibility of the commissioning couple to avail of the assisted reproductive technology procedures.
  2. The clinics must ensure that the donor is medically capable and disease-free. 
  3. It is the duty of the clinics to communicate every assisted reproductive technology-related information to the commissioning couple.
  4. The clinics must be making the commissioning couple familiar with the rights of the child to be born out of the assisted technology. 
  5. The clinics must ensure that assisted reproductive technology must be provided only to men and women who are above the legal age of marriage and below the age of fifty years.
  6. Physical inspection by the National Board, National Registry and State Boards is to be mandatorily conducted in banks and clinics and the latter must cooperate in the same. 
  7. Written consent of all the parties seeking assisted reproductive technology must be the prerequisite of every clinic conducting such technological reproduction. 
  8. Human reproductive material, except in accordance with the provisions of this Act, must not be used by any clinics.

Duties of assisted reproductive technology clinics and banks to keep an accurate record

  1. All clinics and banks must keep meticulous records of all donor oocytes, sperm, and embryos utilized or discarded, as well as the processes and techniques employed.
  2. If a clinic or bank closes before the ten-year period is over, the records must be immediately transferred to the National Registry’s central database.
  3. Records must be made accessible for review by the National Board, the National Registry, the State Board, or any other person authorized by the National Board to do so.

Duties of assisted reproductive technology clinics using human gametes and embryos

  1. During any one treatment cycle, a woman shall not be treated with gametes or embryos derived from more than one man;
  2. Clinics shall harvest oocytes in the manner specified by regulations laid down by the Act;
  3. Embryos shall not be split and used for twinning to increase the number of available embryos;
  4. A posthumous collection of gametes shall be done only if prior consent of the commissioning couple is available; 
  5. In any method of in-vitro fertilization, the clinic should not use an ovum generated from a foetus.

Deterrence provided by Assisted Reproductive Technology (Regulation) Bill, 2020

It is to be noted that every offence committed under the Assisted Reproductive Technology (Regulation) Bill, 2020 shall be cognizable and bailable, according to Section 36 of the legislation. 

  1. If sex-selective assisted reproductive technology is practiced by any means in any clinics or banks, the same shall be punished by imprisonment for a term of not less than five years but not more than ten years, or by a fine of not less than ten lakh rupees but not more than twenty-five lakh rupees, or with both.
  2. Disowning of a child born through assisted reproductive technology, selling or importing of human embryo or gametes, exploiting the commissioning couple, etc, shall be punishable;
  1. For the first contravention, with a fine of not less than five lakh rupees which may extend to ten lakh rupees;
  2. For subsequent contraventions, imprisonment for a term of not less than eight years but may extend to twelve years and a fine of not less than ten lakh rupees which may extend to twenty lakh rupees.

Drawbacks of the Assisted Reproductive Technology (Regulation) Bill, 2020

A close study of the 2020 Bill reveals that the Bill specifically revolves around couples which consist of a man and a woman. Provisions for single men and the LGBTQ+ community stand clearly absent from the much-discussed Bill. Standing in the 21st century, the lawmakers must understand that the concept of ‘nurtures’ has expanded enough to cover not only females taking up the said role but even single men and individuals belonging from the LGBTQ+ community excelling in the role of care-givers. Unfortunately, the Bill failing to recognize the same has to carry the baggage of having a loophole. The four possible ways by which single men can have a child in India are: 

  1. Hiring a surrogacy/gestational carrier;
  2. By choosing a reputable egg donor agency;
  3. Using embryo donation;
  4. Adoption. 

But these methods are not protected by means of the Assisted Reproductive Technology (Regulation) Bill, 2020. Leave aside individuals belonging from the LGBTQ+ community who are not even perceived to be eligible for nurturing their own child by means of assisted reproductive technology. This backward mentality should be overcome as soon as possible.  

Conclusion 

The legislation would be benefiting patients, according to experts, by offering more uniform treatment methods and making vital information available to them. “ART clinics have sprung up all throughout India, many of them unregistered. Their methods and equipment are frequently dangerous. The ART law will improve the quality of service delivery and avoid malpractice in these facilities”, Dr. Souren Bhattacharya, consultant and center head at Birla Fertility & IVF, stated. Couples will be empowered by the new legislation, which would provide them with the necessary knowledge regarding treatment alternatives. In many ways, the new Bill aims to raise knowledge about IVF and reproductive treatments, allowing people to have a better understanding of their rights. Legislatures should consider amending the discussed Bill by adding provisions particularly focusing on single men and the LGBTQ+ community, taking into account their right to have a child by the use of assisted reproductive technology as well. 

References

  1. https://prsindia.org/billtrack/the-assisted-reproductive-technology-regulation-bill-2020.
  2. https://www.thehindu.com/news/national/lok-sabha-passes-bill-to-regulate-ivf-clinics/article37790488.ece.
  3. https://www.civilsdaily.com/news/assisted-reproductive-technology-regulation-bill-2020-3/.
  4. https://www.livelaw.in/news-updates/lok-sabha-passes-bill-to-regulate-assisted-reproductive-technology-186756.

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How gifts beyond ‘reasonable expenditure’ constitute dowry : an overview

By
Rachit Garg
-
0

This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article provides a detailed analysis of how gifts that fall beyond ‘reasonable expenditure’ constitute dowry and how much the said legislation is responsible for creating confusion in the minds of a layman with respect to legal gifts and dowry.

Introduction 

The practice of paying dowry in Indian marriages is a deeply rooted cultural phenomenon that has been dubbed as one of India’s most significant roadblocks on the path to economic and social justice. The Dowry Prohibition Act of 1961, which prohibits the practice, has been mostly ineffective in diminishing its prevalence. Not only has the demand for dowry remained, but also it has grown in popularity among the top echelons of Hindu society, where it began, and has expanded throughout India among numerous populations including Muslims, Christians, and tribal tribes. While on one hand, the Act holds ‘dowry’ as an illegal act, it legalizes offering and receiving gifts or presents by the groom and the bride. But, if the latter is beyond the ‘reasonable expenditure’ of the party offering it, the same will fall under the category of ‘dowry’. This article provides a detailed analysis of how gifts that fall beyond ‘reasonable expenditure’ constitute dowry and how much the said legislation is responsible for creating confusion in the minds of a layman with respect to legal gifts and dowry. 

Dowry under the Dowry Prohibition Act, 1961

The Dowry Prohibition Act (originally passed in 1961 and amended twice in the 1980s) defines dowry as “any property or valuable security given or agreed to be given either directly or indirectly by one party to a marriage to the other party to a marriage, or by the parents of either party to a marriage, or by any other person, to either party to a marriage at or before [or any other time after the marriage] in connection with the marriage.” Gifts of jewellery, clothing and money usually provided by the groom’s family would be covered by the anti-dowry statute and so deemed unlawful under this definition. Therefore, in order to frame a case under the legislation of 1961, it is necessary to establish a link between the giving or taking of property or valued security and marriage. 

Dowry giving and receiving became a cognizable offence by the two amendments passed in 1984 and 1986. This means that a court can begin procedures based on its own information or a police report, even if the offended party has not filed a complaint. It is to be noted that although dowry is prohibited under the aforementioned statute, gifts are permitted. The Anti-Dowry Act cannot be used to prevent the bride from receiving gifts at the time of her marriage if no demand has been made, provided that such items are included in a list maintained in conformity with the requirements, as outlined by the Dowry Prohibition (Maintenance of Lists of Presents to the Bride and Bridegroom) Rules, 1985. One should note that the term ‘gifts’ is nowhere used in the 1985 Rules. Instead, the term ‘presents’ is used which is synonymous with the term ‘gift’. 

Section 3 of the Dowry Prohibition Act, 1961

Section 3 of the Dowry Prohibition Act, 1961 lays down the provision for a penalty to be awarded for giving or taking dowry. While Section 3(1) lays down deterrence to curb dowry practice, Section 3(2) lays down the defence that can be resorted to in any dowry case. Clause (2) erases the scope of application for Clause (1) by providing that presents which are given at the time of a marriage to the bride and the groom, without any demand having been made on that behalf, provided that such presents are entered in a list maintained in accordance with Dowry Prohibition (Maintenance of Lists of Presents to the Bride and Bridegroom) Rules, 1985 made under this Act, will not be considered as a dowry.  

It is extremely important to note the proviso laid down under the aforementioned provision as it clarifies that presents given by or on behalf of the bride or any person related to the bride, being of customary nature, should not be excessively valuable with regards to the financial status of the person by whom, or on whose behalf, such presents are given. Put simply, although presents in accordance to the 1985 Rules does not amount to dowry, presents of excessive value which forces the one offering the same to go beyond their financial capability will no more be considered as a present instead will fall under the offence of ‘dowry’. 

What constitutes ‘reasonable expenditure’

Sub-rule 2 of Rule 2 of the Dowry Prohibition (Maintenance of Lists of Presents to the Bride and Bridegroom) Rules, 1985 provides that the ‘approximate value of the present’ which will be received by the bride and the groom or both at the time of their marriage from their respective families or relatives. Although the value within which presents are acceptable under the said Rules has not been specified, it is presumed that the amount for such presents should not be exceeding a reasonable expenditure. 

Therefore, reasonable expenditure will be depending on the financial capability of the bride’s family during the time of marriage and any amount which appears to be exorbitant in comparison to the bride’s family’s financial limits but is still demanded by the groom’s family will no more be within the ambit of ‘reasonable expenditure’. And thus will amount to dowry. 

Landmark judgments 

The three judgments that have been discussed hereunder highlights how Indian courts have maintained the thin line existing between voluntary gifts given during marriage and gifts demanded by the groom’s family on account of the marriage. Many times even stridhan which the female acquires during her marriage and which solely belongs to her takes the shape of a dowry as perceived by the groom’s family. This is another issue in light of the present discussed subject matter. Discussion regarding the same has also been put forth under this head. 

Netai Ghosh v. State of West Bengal (2021)

Justice Bibek Chaudhuri of the Calcutta High Court while hearing the case of Netai Ghosh v. State of West Bengal (2021), stated that traditional gifts are given to the bride or bridegroom, as the case may be, at or before or after the marriage, which are given not as a consideration for marriage but out of love, affection, or regard, would not fall within the mischief of the term ‘dowry,’ which is punishable under the Dowry Prohibition Act, 1961. Further elaborating on the definition of ‘dowry’ under the legislation, the Single-Bench Judge observed that any demand for money, property, or valuable security made by the bridegroom or his parents or other relatives from the bride or her parents or other relatives, or vice versa, would be considered ‘dowry’ under the Act if it is not properly related to any legally recognized claim and is only related to the consideration of marriage.

Jivendra Kumar v. Jaidrath Singh & Ors (2015) 

The Supreme Court has declared that any demand made by the husband or his family before or after the marriage falls within the concept of dowry, putting an end to the judicial trend to construe dowry in a restricted manner. While deciding on the case of Jivendra Kumar vs Jaidrath Singh & Ors (2015), the Apex Court expanded the definition of dowry thereby overturning previous rulings that indicated a demand for money to satisfy some essential home costs could not be considered dowry. Observing that the Dowry Prohibition Act, 1961 should be provided with fair, pragmatic, and common sense interpretation in order to achieve the goal set out by Parliament, the Court aimed to put an end to the social evil that still remains prevalent in our society in the form of dowry. 

This judgment holds significance as it specified that ‘any demand before or after marriage’  would amount to dowry and therefore, if also any ‘gift’ is provided to the bride and the groom, which is not voluntary in nature the same will be called as a ‘demand’ and would fall under the offence of ‘dowry’ as viewed by the Bench of Justices T.S. Thakur, Rohinton Fali Nariman and Prafulla C. Pant in the present case.

Pratibha Rani v. Suraj Kumar & Anr (1985)

Justices S. Murtaza Fazal Ali, S. Mukharji, and A. V. Varadarajan of the Supreme Court of India while deciding on the case of Pratibha Rani v. Suraj Kumar & Anr (1985) observed that, gifts of cash, ornaments, silver, clothing-or anything that constitutes dowry-may is entrusted by the wife to the husband to keep but he would be deemed “guilty of criminal breach of trust” if he either misappropriates or refuses to return what the court regards “as the absolute and personal property of his wife”. With respect to the stridhan of a female, the Apex Court viewed that a female is the absolute owner of such property and can deal with it in any way she wishes. She may spend the entire amount or give it away at her leisure by gift or will without consulting her husband. The entrustment of the stridhan property to the husband is similar to a bank account that the woman maintains and from which she can take any amount she desires at any time. 

The decision, according to Kanwaljeet Deol, Deputy Commissioner in charge of the anti-dowry unit in the capital’s police force, will help females extricate their property from hesitant husbands who tend to cling on to it after abandoning their wives and instead of taking them to court to light it out. 

The flawed Indian legislation creating confusion

The four major questions which come in a layman’s mind with regards to the thin line of difference existing between ‘reasonable expenditure’ and ‘dowry’ are:

  1. Who defines what constitutes a “free gift” and what is offered in response to demand? The same family that claims to solely provide ‘voluntary presents’ to the groom’s family at the time of the wedding is quick to blame all of their ‘gift-giving’ on extortionist demands if the marriage becomes sour and on the verge of disintegration. Thus, even when marital problems are not related to dowry disputes and the marital strain is due to mutual incompatibility rather than the husband’s violence or abuse, many women’s families seek an advantage in registering cases using the anti-dowry law’s draconian provisions when the marriage is on the verge of breaking down.
  2. How do you determine what is “excessive” in terms of gift income in India, when only around 3% of people declare their incomes, and even those are significantly underreported? How do you assess a family’s tax-paying status when the majority of their wealth is held in ‘black’ money and property is held in fictitious names to avoid taxes?
  3. The burden of proof has been transferred to the accused, making this statute particularly harsh. Because the huge dowry providers also put together their daughter’s dowry from black money and don’t want it reported, the bride’s parents seldom wish to reveal the real worth of items donated.
  4. Why would a groom or the bride’s family sign a list of goods being presented when dowry giving is illegal?

These questions hold immense relevance in today’s time and therefore the lawmakers should consider them while modifying and amending the existing anti-dowry legislation. These questions also raise concern on the perception of ‘dowry’ by the Indian people, specifically those belonging from a backward or a rural area. Law-makers should keep in mind how the impact of the implementation of the dowry legislation looks like when in the name of ‘gifts’, heavy demands are placed before the bride’s family. 

Conclusion 

According to a World Bank report, dowry payments in India’s villages have remained relatively steady over the last few decades. Even though the dowry has been prohibited in India since 1961, the report discovered that it was paid in 95% of weddings. The practice, which is sometimes referred to as a societal evil, persists and exposes women to domestic abuse and even death. Economists S Anukriti, Nishith Prakash, and Sunghoh Kwon used data on the value of monetary and in-kind gifts received or provided at the time of marriage to calculate ‘net-dowry’. The difference between the value of presents provided by the bride’s family to the groom or his family and those given by the groom’s family to the bride’s family was used to determine “net dowry.” In a tiny number of weddings, the groom’s family had paid more to the bride’s family.  While we can see where we are heading to in the 21st century, it is time for the bride’s family to start refusing the burden of filling the groom’s bag with gifts and money and for the groom’s family to stop accepting gifts offered to them by the bride’s family on the occasion of marriage. 

References

  1. http://www.commonlii.org/pk/other/PKLJC/reports/59.html.
  2. https://www.legalserviceindia.com/legal/article-1245-dowry-and-dowry-death.html.
  3. https://digitalcommons.iwu.edu/cgi/viewcontent.cgi?article=1030&context=uauje.
  4. https://indiatogether.org/manushi/issue148/dowry.htm.

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Indian National Flag : laws and case laws

By
Diva Rai
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0
Image source - https://bit.ly/3J5ZU4T

This article is written by Rida Zaidi, from the Faculty of Law, Aligarh Muslim University. This article deals with the Flag Code of India, laws regarding it and the National Symbols of India and the case laws surrounding the same. 

This article has been published by Diva Rai.

Introduction

The Indian National flag is perceived as a symbol of allegiance to one’s nation and is an emotion. It has to be honoured and respected by every individual of the country. Earlier there were many rules and conventions regarding the protection of the glory of the Indian National Flag, but there was, as such, no code prevailing regarding the proper display of the National Flag at various institutions and organizations and which would frame the rules as to how it has to be done to maintain the dignity of the Indian National Flag. The Flag Code came into force in 2002 superseding the earlier ‘Flag Code’ mentioned in a protocol of 1982 by the website of the Punjab Government.

The Indian National Flag represents the hopes and aspirations of several martyrs who sacrificed their lives to get to where we are today. The National Flag is esteemed by everyone yet sometimes we may unconsciously or consciously demean its prestige by our actions or gestures because we are not well versed with the code and conduct that needs to be adhered to. The Prevention of Insults of the National Honour Amendment Act, 2003 lays down the practices that are not permitted as they demean the dignity of the National Flag, Constitution and our National Emblem. The States Emblem Act of India (2005) also known as the Improper Use Act, 2005 prescribes the regulation regarding where the National Emblem could be used and where it is prohibited. There has been a very high threshold of cases where people have violated the laws and rules which are to be followed but people have neglected it which eventually has resulted in penal consequences under the Indian Penal Code. 

Constitutional perspective

Under the Indian Constitution, Article 51A has imposed a non-binding duty upon its citizens to respect and adhere to the Constitution and the National Flag of the Country. Another provision is Article 19(1)(a) which deals with freedom of speech and expression which involves the right to fly the National Flag. Freedom of speech and expression under Article 19(1)(a) is not an absolute right and is subject to restriction under Clause 2 of the Article. The Prevention of Insults to the National Honour Amendment Act, 2003 embraces to honour the national Symbols such as the National Flag and the National Anthem. The Act prohibits the disparagement of National Symbols. Under Section 2 of the Act if any person in a public place or under the view of public mutilates, burns, disfigures or defiles the National Flag he shall be punished with imprisonment of either description which may extend to three years or with fine or both. 

Penal policy

The Flag Code is merely a regulating code to protect the honour and grandeur of the Indian National Flag and to prohibit its contempt and disregard. The code is not a statute and thus if a person is punished under this code he is not criminally liable but only booked for violating the code. The Prevention of Insults to National Symbols Amendment Act, 2003 and the Prohibition of Improper Use Act, 2005 are statutory laws and if a person commits an offence under these laws he shall be liable for the same as prescribed under the statutes. 

The Flag Code of India, 2002 : a non-statutory code

The Flag Code of India came into force on 26th January 2002 superseding ‘The Flag Code India’ as existed then. The code is divided into three parts. 

  • The first part describes the general description of the National Flag.
  • The second part prescribes the display of the National Flag by various organizations and educational institutions whether private or public. 
  • The third part prescribes the display or hoisting of the National Flag by the central and state government or their organizations or agencies. 

Legal anatomy

The legal anatomy of the Indian National Flag is governed by the Flag Code 2002 which prescribes the structure of the Indian National Flag. Part 1 of the Flag code describes that:

  • The Indian National Flag has to be rectangular, that is there have to be three rectangular dashboards of equal width and in the middle panel, there has to be an Ashoka Chakra containing 24 strokes of equal measure. 
  • Each panel is of different colours indicating an aspect that is embedded in the Indian Culture. The topmost panel is of saffron colour which represents courage and sacrifice, the colour of the middle panel is white which represents truth and peace and the third panel is of green colour which represents faith and chivalry.
  • The Ashoka chakra in the middle represents continuous growth because if something does not move or grow it ultimately dies as it was stagnant. 
  • The Indian National Flag can be made only by handwoven cotton, wool or khadi. 
  • The ratio of the flag from its length to its height is 3:2.
  • The standard dimensions of the flag are: The Flag code states that the tricolour can be of nine standard dimensions — 6300 x 4200, 3600 x 2400, 2700 x 1800, 1800 x 1200, 1350 x 900, 900 x 600, 450 x 300, 225 x 150 and 150 x 100 (all sizes in mm). 
  • The manufacturing process can only begin when the standard protocols led by the Bureau of Indian Standards are encountered. 

For example, whenever any dignitary of the state passes away the flag has to be half-masted on the government buildings to portray the period of grief and mourning, displaying the National Flag on the same height with other flags is not permitted as the sanctity of the National Flag is above all the other flags etc. 

There have been several incidents of violating the honour of the National Flag such as in 2007, a notice was sent to cricketer Sachin Tendulkar who was seen in a video cutting a cake which was in the form of the National Flag having tricolour. Another incident was of Mandira Bedi where she was sent a notice as she wore a saree displaying the National Flag. In yet another incident, Shahrukh Khan was seen holding a flag upside down during a World Cup match.

In the case of Union of India v. Naveen Jindal (2004), the petitioner Naveen Jindal was prevented from flying the National Flag above his office premises under the Flag Code of India. He filed a petition before the High Court that he was being restricted from doing so. Flying the National Flag falls under Article 19(2) of the constitution and is a symbol of free spirit and allegiance to one’s Country. Allowing only the officials and high dignitaries to fly the National Flag would be discriminatory for the rest of the people under Article 14 as everyone is entitled to fly the National Flag.

The High Court pronounced that the Flag Code is only an executive instruction given by the Government and is not a statute. Union of India filed a petition seeking an answer to the above-mentioned query to which the Supreme Court ruled that every country has its rules and regulations regulating the protection of the honour of the National Flag and the Flag Code of our Country too is a regulating guide so that the glory of the flag is maintained and no individual disrespects or dishonours it. But it does not mean that the people are not permitted to fly the National Flag only out of the fear that they may disrespect it.

The Prevention of Insults to National Honour Act, 1971 (now, the Prevention of Insults to National Honour (Amendment) Act, 2003)

The Prevention of Insults to National HonourAct, 1971 came into force on 23rd December 1971 and imposes a binding duty upon the citizens of India not to dishonour and disrespect the sanctity and grandeur of the national symbols which includes the National Flag, National Anthem, Constitution etc. The Act imposes a duty upon the citizens to abide by the provisions laid down in the Act and if any individual disobeys the laws he is entitled to imprisonment of either description which may extend to 3 years or more or fine or both. Section 2 of the Act says that if anybody expresses insult or disregard to the National Flag or Constitution in a public place such as defiles, disfigures, mutilates, tramples or burns the National Flag would be liable for imprisonment as prescribed under the Act. 

Section 4 deals with what amounts to disrespect to the National Flag which is- 

  1. Dipping the flag in salute to another person, hoisting the flag half-masted except on occasions when the government directs. 
  2. Using the National Flag as a drapery, costume, dress, uniform or accessory. 
  3. Using the National Flag as in inscription or printing or embroidering the National Flag on cushions, handkerchiefs, napkins etc. 
  4. It does not need to be an actual National Flag but if it includes any visual representation, picture, painting etc. The test to inflict liability upon an accused under the Prevention of Insults to National Honour Act, 2003 is the intention to disrespect or criticize the National Symbols such as the National Flag, National Anthem and the Constitution. It has to be proved beyond reasonable doubt that the suspect intended to dishonour the National Symbols and the burden is laid upon the prosecution. 

The States Emblem of India (Prohibition of Improper Use) Act, 2005

The State Emblem of India Act was adopted on 26th January 1950 and came into force on 25th December 2005 as a bureaucratic symbol for issuing official documents of the Government. The preamble of the Act says that the Act aims to prohibit the improper use of the National Emblem for commercial and professional purposes. The National Emblem is printed on the Passports as a symbol of an official document of the citizen. It consists of three lions facing towards frontways mounted on an abacus and a dharma chakra with a bull on the right and a galloping horse on the left and outlines of dharma chakra on the extreme right and left which is adopted as the State Emblem of India on which it is written in Devanagari script ‘Satyamev Jayate’ meaning thereby truth alone triumphs. 

The Emblem is defined under Section 2 of the Prohibition of Improper Use Act, 2005 as the official seal of the government. Section 3 of the Act describes that no person can use the emblem or the design of the emblem portraying that he is related to the government either central or state or giving an impression that certain documents are official documents failing to comply with these guidelines the violator would be punished under this Act. Under Section 6 of the Act, the central government may legislate laws regarding the use of the National Emblem as the official seal in governmental offices and the offices of diplomats functioning abroad subject to the conditions as prescribed under the Act. 

The Prohibition of Improper Use Act, 2005 protects the common man from being exploited in situations where there is ambiguity regarding the functioning of an organization or institution whether it is governmental or non-governmental as the Act prohibits the use of national symbols including the National Emblem for unofficial usage. Rule 10 of the Prohibition of Improper Use Act, 2005 restricts certain persons or associates from operating the National Emblem under certain circumstances which are as follows-

  1. An individual who has ceased to function as the dignity of the government cannot use the national emblem.
  2. No non-government organisation, department or PSU’s can employ the National Emblem.
  3. No functionary or department which is not directly related to the government can employ the National Emblem in their notification, newsletter, columns etc.
  4. Section 4 of the Act prohibits the usage of the National Emblem for any trade, business or profession or using it with a patent under their title or claiming the trademark for the design etc.

Case laws

  1. PV Joseph v. State of Kerala (2010)

In this case, the prosecution alleged that the petitioners violated Section 2 of the Prevention of Insults to National Honour Act, 2003 by not lowering the National Flag upon their co-operative society after 9:30 pm. The Explanation for Section 4 deals with various instances that amount to disrespect of the National Flag under the Flag Code. The Court held that Flag Code as held by the Court in the case of Naveen Jindal v Union of India that it is only an executive code of conduct and has to be compulsorily observed but cannot attract penal consequences unless it involves a statutory offence and is a non-binding duty upon the citizens. The Court also observed that there was no intention of the petitioners to dishonour the National Flag and thus the petitions were dismissed and quashed.

  1. Kantilal Bhuria v. Sanjay Sarvaria (2012)

In this case, a union minister of state was travelling in a vehicle that fetched the National Flag having a hole in it. The prosecution asserted that he was addressed regarding the condition of the flag but he ignored it. The Court held that though it is envisaged under Article 51(1)(a) of the Constitution to respect and honour the National Flag but still after analysing the entire scenario on its face value no offence as such can be made out of it for which the petitioner could be punished and thus the complaint was quashed.

  1. Inspector of Police v. D. Senthilkumar (2018)

In this case, a complaint was filed where a cake was cut having the picture of the National Flag upon it which was alleged to have violated Section 2 of the Flag Code. Regarding it, the Magistrate directed the police to file an FIR which was appealed before the High Court by the police. The Court held that the true test is the intention to disregard or insult the National Flag. The term patriotism was defined in this case. It was stated that “Patriotism is not determined by a gross physical act. The intention behind the act will be the true test, and it is possible that sometimes the very act itself manifests the intention behind it. In the present case, even if the entire set of facts stated in the complaint are taken as it is, it must be seen as to what would have been the actual feeling with which the participants would have dispersed after the function was over. 

  1. Gaurishankar Garg & another v. the State of Madhya Pradesh (2020)

In this case, the petitioners were made to be punished under Section 2 of the Prevention of Insults to National Honour Act, 2003 where the petitioners were alleged for flying the National Flag between sunset and sunrise. The Court held that the hoisting of the flag during the said period may be out of forgetfulness or misconduct but it does not amount to an offence unless it is specified under the Flag Code of India. The Flag Code is not a law according to Article 13(1) and is only an executive instruction by the government.

  1. Veecon media & Broadcasting Pvt. Ltd. v. Union of India (2018)

In this case, the TV channel which was earlier named ‘Harvest TV’ wanted to change its name to Tiranga TV. The proposal was rejected by the Ministry of Information and Broadcasting on the grounds that it violates the Prevention of Improper Use Act 2003 which was quashed by the tribunal. The tribunal held that the word ‘Tiranga’ without the colours of the National Flag does not amount to a violation under the concerned Act; moreover, the word Tiranga was not initially included in the schedule of the emblem Act. It does not amount to a colourful imitation of the National Flag under the Prevention of Improper Use Act, 2003.

  1. V.K. Naswa v. Union of India (2012)

In this case, the Court held that there is absolutely no mandate in the Flag Code of India which prescribes the hoisting of the National Flag on all days on the public buildings.

  1. Bijou Emmanuel v. State of Kerala (1986)

In this case, the Court held that it is mentioned under Article 51(a) of the Constitution which has guided all the citizens of India to abide by the Constitution and to respect the national anthem, National Emblem etc. and the mere ground of not singing the national anthem does not amount to the expulsion of the students from their school as it amounts to violating their fundamental rights under Article 19(1)(a) and Article 25(1). The citizens are expected to stand and pay respect to the national anthem whenever it is sung.

  1. Hans Raj Jain v. the Election Commission of India (2009)

In this case, the petitioner was of the view that the logo used by the Aam Aadmi party resembles the Ashoka Chakra of the National Emblem and the party has been registered fraudulently. The Court held that the logo is not at all a colourful imitation of the Ashoka chakra and there is no merit in the case and was dismissed.

Conclusion

The Flag Code of India is an executive instruction by the Government of India which imposes a non-binding duty upon the citizens to honour and respect the National Flag of the country and regulates the conduct of the people so that people may not knowingly or unknowingly portray disregard to the National Flag. The Flag Code prescribes the general description of the structure of the flag and the requirements which are to be met. The Prevention of Insult to National Honour Act, 2003 lays down what amounts to disrespect to the national symbols.

It prescribes that any person who dishonours or disrespects the national symbols would be imprisoned of either description for a term which may extend to 3 years or more or fine or both. Similarly, the Prohibition of Improper Use Act, 2005 has designated the National Emblem as the bureaucratic symbol of the country for all official documents. The Act gives clarity to the ambiguity which may arise while distinguishing between a public or private functionary or organisation. It lays down the rules as to who can employ the use of the National Emblem and who are restricted from doing so. A variety of judgements have arisen where courts have relied on the principles envisaged under these Acts.

References

  1. https://www.theleaflet.in/breaking-down-the-law-governing-usage-of-indias-national-flag/
  2. https://blog.ipleaders.in/overview-state-emblem-india-prohibition-improper-use-act-2005/
  3. https://globalfreedomofexpression.columbia.edu/cases/union-india-v-jindal/
  4. https://www.latestlaws.com/articles/usage-of-Indian-national-flag-laws-and-case-laws/#:~:text=Section%202%20of%20the%20Act,%2C%20or%20fine%2C%20or%20both.&text=Explanation%204%20describes%20’disrespect%20to
  5. https://blog.ipleaders.in/analysis-jurisdiction-national-honour-act-1971/ 

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Compliances related to the transfer of unpaid and unclaimed dividends to the Investor Education and Protection Fund under the Companies Act, 2013

By
Oishika Banerji
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0

This article has been written by M Karthi Keyan pursuing the Diploma in Law Firm Practice: Research, Drafting, Briefing and Client Management from LawSikho. This article has been edited by Tanmaya Sharma (Associate, Lawsikho) and Arundhati Das (Intern at Lawsikho). 

This article has been published by Oishika Banerji. 

Introduction 

This article seeks to explain the Investor Education and Protection Fund and the compliances which have to be followed while transferring the unclaimed or unpaid dividends to the Investor Education and Protection Fund.

What is a dividend?

Generally, a dividend is a part of the earnings of a company that is being distributed among its shareholders. Under the Companies Act, 2013 Section 2 (35) defines a dividend as a specified proportion of profit from the net profit of the company for a financial year that is not being retained in the business and has been distributed among the shareholders of the company.

When does a dividend become unclaimed or unpaid?

As per Section 124 of the Companies Act, 2013 if a dividend has not been paid or claimed within 30 days of the declaration, the company, after the expiration of 7 days of the said period of 30 days, must transfer the total amount of unpaid/unclaimed dividend to a special account in any scheduled bank, and the account would hereby be referred to as an “Unpaid dividend account.” When the amount has remained unclaimed or unpaid for a said period of 7 years consecutively in the unpaid dividend account, then within the next 30 days, the amount unpaid or unclaimed will be transferred to a fund called the Investor Education Protection Fund (IEPF).

What is an Investor Education Protection Fund?

As per Section 125 of the Companies Act, 2015, the Central Government (Ministry of Corporate Affairs) under the guidance of SEBI, has established a fund called the Investor Education Protection to protect the interests of investors and to increase the number of investors by encouraging and educating them on the practical aspects and their legal responsibilities in the securities market and, lastly, on the option of refunding the unclaimed dividends which are transferred to this fund.

Important cases

In the case of Pragana Desai vs. National Stock Exchange of India Ltd., a writ petition was filed to recover the amount awarded in the arbitration against the Investor education and protection fund. The court held that a writ petition is not a proper remedy to enforce the award and held that the petitioner has to initiate procedures for the execution of the award by making a necessary application under relevant provisions and statutes and thereby rejecting the writ petition.

In another case in the Delhi high court, in India Awake for Transparency vs Union of India, the court clarified that Section 124(6) of the Companies Act, 2013 which mandates the transfer of shares to the Investor Education and Protection Fund, does not essentially result in statutory vesting of the property. The IEPF merely enforces a transfer of shares from a company that has yielded unclaimed dividends for a consecutive period of 7 years to the IEPF, and the said authority of the fund after the transfer of such shares holds the shares as a custodian, or in any manner prescribed thereof. Therefore, the court hereby holds that the writ petition filed by the plaintiff for strict enforcement of the Investor Education and Protection Fund Authority rules is to be dismissed.

Compliance and general procedures for the Transfer of Unpaid or Unclaimed Dividends to IEPF

  1. Filing of Form IEPF-1

The following are the e-form’s rules:

As per Rule 5(2) of the Investor Education and Protection Fund Authority (Accounting, transfer, Audit, and Refund) Rules 2016, which prescribes that any sum of amount which is to be credited to this fund as provided under Section 125(2) of the Companies Act shall be filed online with the addition of the e-form IEPF-1 for the purpose of the statement of the amount credited to the Investor Education and Protection Fund within 30 days from the date calculated from the expiry of 7 consecutive years.

Step-by-step details required to be filled in form IEPF-1:

  • The company should be in active status.
  • Valid company Corporate Identification Number (CIN) or bank Corporate Identification Number (BCIN).
  • Required details of the company, i.e., name, registered address, email-id of the company.
  • The intended amount has to be credited by the company to the IEPF fund.
  • Date of transfer of the unpaid dividend to the unpaid dividend account as created by the company under Section 124 should be provided.The application money received by the companies for the allotment of any securities is due for a refund.
  • Other miscellaneous details viz. which financial year the amount belongs to etc.
  • The form includes the date of the board of resolution authorizing the signatory to sign the form and the digital signature of the director, managing director, CFO, CEO, or company secretary.
  1. Filling out form IEPF-2:

The purpose of filing the form IEPF-2:

  • To provide a statement of the amount of unpaid or unclaimed dividends
  • To provide the details regarding the appointment of Nodal and deputy Nodal officers
  • To provide or update the details of the Nodal officer
  • To update/delete the details of the deputy nodal officer

According to Section 7 (2A) of the Investor Education and Protection Fund Authority (Accounting, Transfer, Audit, and Refund) Rules 2016, every company that is required to credit shares or other funds or deposit or transfer shares to the IFPF fund shall appoint a Nodal Officer who shall be a director, company secretary, or chief financial officer of the company who has been assigned with the duty of verifying the claims and coordinating with the authorities of the fund. In such a case,

If a company fails to appoint a nodal officer, the director of the company is deemed to be a nodal officer and the nodal officer as appointed is liable for the actions of the Deputy Nodal officer.

The rules governing the e-form

Rule 5(8) of the Investor Education and Protection Fund Authority (Accounting, transfer, audit, and refund) Rules, specifies that within 60 days after holding the AGM (Annual General Meeting) or the date on which it should have been held as per section 96 of the Companies Act, whichever is earlier, and every year thereafter until the completion of the seven years, it is mandated to identify the unclaimed amounts as of the date of closure of the financial year and to furnish them separately and to upload the relevant details about the unclaimed and unpaid dividends on the company’s website, as well as on the Authority’s website, or any other website as may be specified by the Government of India. This statement has to be filed along with the following information: 

1) The name and last known address of the individual whose dividend has gone unclaimed or unpaid.

2) Amounts to which each individual is entitled.

3) The amount’s nature.

4) The deadline for transferring such funds to the IEPF.

5) Other necessary information as specified has to be filled in along with the form IEPF-2.

6) Should be filed through Form No. IEPF-2. 

The details of the Nodal and Deputy Nodal officers are specified in Rule 7 (2B) and have to be notified within 15 days to the Investor Education and Protection Fund Authority in the form IEPF-2 from the date on which the information of such nodal and deputy nodal officer has been published on the company’s website. If the nodal officer has been changed or if any amendment has to be made in the details of the nodal officer, then it has to be notified within 7 days along with the details of the board resolution which approves the fourth change.

Step-by-step instructions for completing Form IEPF-2

  1. The company should be in active status.
  2. Valid company Corporate Identification Number (CIN) or bank Corporate Identification Number (BCIN).
  3. Required details of the company, i.e., name, registered address, email id of the company.
  4. Enter the details of the nodal officer who has been appointed by the company.
  5. Enter the number of Deputy Nodal Officers who have been appointed by the company.

(Note: The appointment of a deputy nodal officer is optional under Section 124(6), and the maximum number of nodal officers appointed is five.)

  1. Enter the relevant Deputy Nodal officer(s) information, including the verified PAN number.
  2. End of the Financial Year (as mentioned earlier under Section 125 of the Companies Act, the end of the seventh consecutive financial year) and Date of the Annual General Meeting.
  3. If applicable, or if there are no such small shareholders and depositors in the company, enter 0.
  4. Details of the unclaimed/unpaid accounts for seven consecutive years.
  5. The total amount of the unpaid/unclaimed dividend account for 7 years.
  6. The total number of underlying shares for the amount in the unpaid/unclaimed dividend accounts.
  7. Amount  Refunded by the company from the unpaid/unclaimed dividend account.
  8. Amount of application money received and due for refund.
  9. The total value of matured deposits and matured debentures and the amount refunded by the company.
  10. Other miscellaneous details, including the application money, matured deposits, redemption amount of preference shares, etc., and the total amount should be calculated and entered finally.
  11. The form includes the date of the board of resolution authorizing the signatory to sign the form and the digital signature of the director, managing director, CFO, CEO, or company secretary.

Mandatory attachment

The resolution of the board regarding the appointment of the Nodal officer and Deputy Nodal officer in the case.

How to claim the unpaid dividend from IEPF?

Any unclaimed and unpaid shareholder whose amount has been transferred by the company to the Investor Education and Protection Fund can claim the unpaid amount from the IEPF Authority by filling out the IEPF-5 form.

What is IEPF form-5?

According to Section 125 and Subsection 3 of the Companies Act, as well as Rule 7(1) of the IEPF Authority (Accounting, Audit, Refund, and Transfer) Rules 2016, an eligible person may apply for a refund of their unclaimed dividend, matured debentures and deposits, and respective shares by submitting Form IEPF-5 online.

The procedure is not as complex as compared to the previous one. The essentials required to fill out this form are:

  1. Particulars of the applicant and the company from which the amount is due
  2. Details of the shares/amount to be claimed
  3. In the case of NRI/Foreigners: Passport or Overseas Citizen of India/Person of Indian Origin Card Number.
  4. The number of claims
  5. Details of the bank account (in the case of Indians, it should be linked with Aadhar).
  6. A Demat Account Number (A Demat Account or a dematerialized account which is used for converting and holding physical shares in an electronic format, i.e., it is a piece of digital evidence issued to prove that the person is holding investments like shares, mutual funds, bonds etc.). 
  7. Declaration of the Applicant

Once the form is being uploaded, to initiate a verification of the claim, the applicant should send an envelope to the Nodal officer of the respective company with the following attachments:

  1. A copy of the duly completed IEPF–5 form
  2. A copy of the acknowledgement is generated after uploading the form.
  3. Original copy of the indemnity bond with the claimant’s signature.
  4. Original copy of the advance stamp receipt attested by the claimant and 2 witness.
  5. If the shares are in physical form, then the original copy of the share certificate is to be attached.
  6. A copy of the claimant’s identification documents (Aadhar, Pan card, or passport/OCI/PIO card in the case of an NRI)
  7. Proof of entitlement to the shares or dividend warrant
  8. Master List of Demat Accounts of the Claimant
  9. A death certificate copy is needed in case one of the joint holders is deceased.

What happens if the company fails to comply with this provision?

If the company fails to comply with the provisions of Section 124, then under subsection 7 of Section 124, this attracts punishment according to which, the company is liable to pay a fine which is not less than 5 lakhs rupees and not exceeding  25 lakhs rupees, and every person of the company who is in default of this offence shall be liable to pay a fine which is not less than 1 lakh rupees and may extend up to 5 lakhs.

Conclusion

According to an estimate which was published on March 31, 2020, the unclaimed dividends lying in the investor education and protection fund have increased to Rs. 4,100 crores. Though the government has relaxed and simplified the process for the shareholders to claim their amount from the IEPF, certain aspects like the complexity involved if the shares held are in the physical form and are no longer linked to a bank account, the death of an investor, as a result of which his bank account has been closed, or even a mere address change has caused serious trouble for the shareholders to claim back their dividends. It should also be noted that the government approved over 6000 claims from investors regarding unpaid dividends and matured company deposits through the investor education and production fund in 2019 and 2020.

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Theories of constitutional interpretation concerning centre-state relations in India

By
Diva Rai
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0
Image source - https://bit.ly/3GR88eS

This article is written by Akshita Rohatgi, a student of Guru Gobind Singh Indraprastha University, New Delhi. It explains the doctrine of Territorial Nexus, Harmonious Construction, Pith and Substance, Repugnancy and Colourable Legislation with respect to centre-state relations in India.

This article has been published by Diva Rai.

Introduction 

The Seventh Schedule of the Indian Constitution contains three subject lists- Union list for the centre, State list for the states and the Concurrent list for both, the centre as well as the states. The lists lay down the subjects each legislature is competent to legislate on. This well-defined scheme for division of powers is to ensure that no legislature trespasses while exercising its powers and the sanctity of the Constitutional scheme for the division of powers is preserved.

However, the actual working of our Constitution is a bit messier. The water-tight division of powers laid down in the lists is bound to create conflicts since laws tend to deal with more than one subject. When such conflicts arise, the courts take aid from various doctrines to help resolve these conflicts. This article explains the doctrines used, what they stipulate and the nuances of each of these.

Doctrine of Territorial Nexus 

Under the Indian conception of federalism, a state law that has operation outside the given state is invalid. The doctrine of territorial nexus is invoked to find out if the law in question has an operation beyond its jurisdiction. This doctrine stipulates that:

  1. Territory: The object to which a particular law applies does not have to be located within the strict territory of the state. Instead, it needs to have a sufficient territorial connection to the enacting state. 
  2. Subject: There needs to be a territorial nexus between the state enacting the law and the law’s subject matter. The connection must be real and not illusory, as laid down in Shrikant Bhalchandra Karulkar v. State Of Gujarat, 1994. Moreover, the liability imposed must be pertinent and relevant to the connection.

State of Bombay v. RMDC, 1957

In the given case, a lottery was conducted via a newspaper. This newspaper had wide circulation within the State of Bombay, but quite a bit outside the state too. The Bombay Government levied a lump sum tax on lotteries. The tax extended to the circulation and distribution of newspapers that were published outside the state. This tax was challenged in court. The Apex Court reasoned that even though newspapers were published and had wide circulation outside the state, collectors of the entry fees for the competition were within Bombay. Thus, there was sufficient territorial nexus and the tax was held to be valid.

State of Bombay v. Narayandas Mangilal, 1957

In the mid-1950s, the Bombay legislature criminalized bigamous marriages, including marriages entered into outside the state if one party was domiciled in Bombay. In the State of Bombay v. Narayandas Mangilal, (1957), the Supreme court struck down this law due to lack of sufficient territorial nexus concerning marriages performed outside the state, even if one person lived in the state.

Doctrine of Harmonious Construction

The doctrine of harmonious construction applies to cases where provisions of the same statute seem to contradict. The doctrine is based on the presumption that-

  • The legislature did not intend to give one provision importance and consequently neglect another; or
  • To cause or maintain any contradiction between the two.

This doctrine was profusely explained in the case of Sultana Begum v. Premchand Jain, (1996). The Hon’ble Supreme Court said that these conflicting provisions should be understood in a way to ensure that neither is ignored. In Jagdish Singh v. Lt. Governor, Delhi, (1997), it was held that this doctrine requires reading the statute as a whole construing it in a way in which neither is ineffective.

Shankari Prasad v. Union of India, 1951

Shankari Prasad v. Union of India, (1951) addressed the objective of this doctrine. It said that in the case of two articles that are widely phrased and conflict in their operation, the doctrine of harmonious construction requires them to be controlled and qualified by the other.

Ram Krishan v. Vinod, 1951

In the given case, there was a contradiction between the Representation of the People Act, 1951. Section 33 empowered government servants to nominate candidates seeking election. However, Section 123 prescribed that no government servant can assist any candidate to an election except by way of casting votes. 

The Supreme Court harmoniously construed both the provisions. It allowed government servants to nominate as well as vote for candidates. However, no other forms of assistance could be provided.

Bengal Immunity Co. v. State of Bihar, 1955

The given case conceded the limits of this doctrine. It held that in cases of conflict between provisions, they should be construed in a way in which both are effective and in harmony. However, in case this harmony is not possible, the useless provision can be ignored if there is no compulsion of its adoption.

Doctrine of Pith and Substance

Perhaps the most widely applied doctrine, ‘pith and substance’ means the ‘true nature and character’. It is used to determine what the true nature of an enactment is and which list or legislative domain it falls under. To determine this, the court needs to look at:

  1. The enactment as a whole;
  2. Its main objects; and
  3. The effect and scope of its provisions.

If a legislature encroaches on the field of another legislature, the court looks at whether this encroachment is in fact, in substance or merely incidental to the statute. The primary essence and object are differentiated from its ultimate or incidental results.

In determining the true nature, the name given to the statute is immaterial. Even if the purpose laid down in its Statement of Object and Reasons is wrong, it would not per se render the statute invalid. Instead, the statute needs to be viewed as an organic whole. 

This doctrine allows some flexibility to the rigid scheme of distribution of powers in the Indian Constitution. The rationale provided is that if every slight or incidental encroachment is struck down, the legislature’s power would be severely curtailed. and it would not be able to carry out its duties.

Premchand Jain v. R.K. Chhabra, 1984

In case the encroachment is merely incidental, the act would not, as a rule, be invalid. This was reiterated in Premchand Jain v. R.K. Chhabra, (1984). The Apex Court held that if an enactment substantially falls within the powers conferred by the Constitution upon the enacting legislature, it cannot be held to be invalid merely because it incidentally encroaches on matters assigned to another legislature.

State of Bombay v. Narottamdas, 1950

In the given case, it was held that to save the incidental encroachment, it needs to be proven that the pith and substance of the law fall within its enacting legislature. In other words, the validity of the statute is not determined by the degree of encroachment (though it is a relevant consideration) but by the true nature of the enactment. If the pith and substance fall under the enacting legislature’s domain, the law is upheld.

Krishna v. State of Madras, 1956

In 1937, the Madras Prohibition Act was passed. Over a decade later, this act was challenged for laying down procedures and principles of evidence for the trial of the accused. The appellants claimed contradiction between the procedure and principles in the madras act as opposed to the central Criminal Procedure Code, 1973. However, the court upheld the law on the grounds that the given law was simply ancillary to the central one. This law, in pith and substance, was related to intoxicating liquors, a matter under the state list.

The given case embodies a censure of this doctrine. Critics claim it gives the judiciary too much discretion. Courts are empowered to affix their interpretation of the character of law and determine its validity.

Doctrine of Repugnancy

Article 254(1)

Article 254(1) stipulates that if a state law is repugnant, i.e., incompatible with a law that:

  • the Parliament is competent to enact, or 
  • an existing law under the concurrent list.

Then, the central or existing law prevails over one made by the state. The state law is void to the extent of such repugnancy. Which law was enacted earlier is not considered. 

In the case of repugnancy, the repugnant provisions of the state law do not become ultra vires. They simply eclipse. If the central law is repealed, they become operative again. 

The doctrine of Pith and Substance is utilized to determine if the true nature falls to a matter under the concurrent list. In case the repugnancy is to central law, it is considered if the parliament intended to lay down an exhaustive code on the matter. If not, any qualification or restriction can not be considered repugnant to the state law. 

Article 254(2)

However, Article 254(2) can save a state law under the concurrent list if there arises any repugnancy to a central law on the same matter. Presidential assent to the state act would allow it to override any provisions of the central act. However, the inconsistent provisions must be applied to the state only. Moreover, the laws must be on the same matter, not two different fields. If there is no central law on the matter under the concurrent list, the state law would stand. 

While obtaining presidential assent, it needs to be specified that assent is sought for repugnancy to a particular act. Failure would make the state law invalid. However, the Parliament can not repeal any state law in the Concurrent list if it is not repugnant to the central law on the same matter.

The Supreme court placed yet another limit on the state act. In Pt. Rishikesh v. Salma Begum (1995), it held that if a state act has received the assent of the President and subsequently, the centre enacts another law conflicting with the state act, the central law would prevail.

Srinivasa Raghavachar v. State of Karnataka, 1987

The present case dealt with a state law restricting legal practitioners from appearing before land tribunals. The state was held invalid on grounds of repugnancy to the Advocates Act, 1961.

Sukumar Mukherjee v. State of West Bengal, 1993

The West Bengal State Health Service Act, (1990) barred any member of the state health service from carrying on private practices. This was disputed in Sukumar Mukherjee v. State of West Bengal, (1993) on the grounds that it was repugnant to the Indian Medical Council Act, 1956. Enacted by the centre under the concurrent list, the 1956 Act allowed any practitioner on the Indian Medical Register to practice in any part of the country.

The Apex Court held that this case was different from the Srinivasa Raghavachar v. State of Karnataka, (1987) case since legal practitioners did not, through a voluntary act of consent, give up the rights to practice for joining the state service. In this case, they did. The state law did not intend to regulate the medical profession in general, only its health service. Thus, the state law was upheld.

Kumar Sharma v. State of Karnataka, 1990

The given case held that repugnancy must only concern a matter in the concurrent list. Additionally, if the subject matters of the legislation were different, they would stand together. However, the dissenting opinion claimed that the two provisions would “run on a collision course”, and be irreconcilable. Thus, the state law must be struck down. The doctrine of Pith and Substance does not need to be applied here. 

Variyar Thavathiru Sundara Swamigal Medical Education & Charitable Trust v. State of Tamil Nadu, 1996

This case is one where repugnancy between a central and state statute is ambiguous. A Tamil Nadu statute dealing with the affiliation of medical colleges was challenged on grounds of repugnance against the Indian Medical Council Act. Both laws were enacted under the concurrent list. However, the provisions of the state act did not collide with the central one and it was possible to follow both.

However, the Court held that the parliament intended to lay down an exhaustive code on the subject for the entire country. This made it repugnant to the state act, which was consequently declared invalid.

Doctrine of Colourable Legislation

The doctrine of Colourable Legislation is based on the maxim ‘what cannot be done directly, cannot be done indirectly’. It restricts legislatures from indirectly doing something which, due to want of jurisdiction, they can not do directly. This encroachment may be direct or indirect. In the case of the latter, the expression ‘colourable legislation’ is applied. In other words, colourable legislation is a ‘fraud on the constitution’. 

The court employs the doctrine of Pith and Substance to determine if the legislature is competent to enact the disputed statute. The extent of encroachment is a relevant factor while determining if the enactment is colourable legislation.

State of Bihar v. Kameshwar Singh, 1952

The current case was to dispute the constitutional validity of the Bihar Land Reforms Act, 1950. The law provided that rent for the landlord’s land, before the date of acquisition of his holding, was to vest with the state. However, half of this was to be given to the landlord as compensation. 

The Supreme Court opined this was naked confiscation as taking of the whole and returning a half means nothing other than taking half. While its purported object was to lay down principles for compensation, the actual object was simply confiscation- a subject under the concurrent list. The Bihar Land Reforms Act was thus a piece of colourable legislation and hence, void.

Naga People’s Movement for Human Rights v. Union of India, 1997

In this case, the Supreme Court clarified that the doctrine of Colourable Legislation is applicable only in cases where-

  1. The real intention is camouflaged; and 
  2. With the motive to encroach into the domain of another legislature.

The purpose of legislation may be different from what it appears. However, it is not a case of Colourable Legislation if it does not deal with the competency of the legislature to enact it. The doctrine does not take into account if the law was enacted with bona fide or mala fide motives. The only question that merits consideration is if the substance of a statute falls under the enacting legislature’s domain or not.

Conclusion

Though borrowed from principles and ideas from across the world, the given doctrines were adapted to suit the Indian context. The Indian model of centre-state relations is neither unitary nor federal. It is a hybrid of both, best described by the phrase ‘quasi-federal’. This has caused commenters to remark that the Indian Constitution is ‘federal in structure and unitary in spirit’.

The comment seems to be justified if one looks at the theories of constitutional interpretation with respect to centre-state relations in India. These doctrines are chosen, modified and applied in a way to give the centre’s opinion more weight than the state’s. As we have observed, in cases of infringement of its legislative competence, the doctrines tend to be biased towards the union legislature. This proves that India is ‘a federal state with a unitary bias’.

References

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Paika rebellion and its inclusion in school curriculums

By
Rachit Garg
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0

This article is written by Anindita Deb, a student of Symbiosis Law School, NOIDA. The objective of this article is to discuss the recent inclusion of the Paika rebellion in the school curriculum. 

This article has been published by Rachit Garg.

Introduction 

Prime Minister Narendra Modi issued a commemorative stamp and coin recognizing the Paika Rebellion on December 24, 2018. In addition to the stamp and coin, the PM announced the establishment of a Paika Rebellion Chair at Bhubaneshwar’s Utkal University. The commemoration of the Paika Rebellion’s 200th anniversary was addressed in the Union Budget Speech for 2017-18. 

Union Culture Minister G. Kishan Reddy recently made the following recommendation regarding the Paika Rebellion:

“The 1817 Paika rebellion of Odisha could not be called the first war of Independence, but considering it as the beginning of a popular uprising against the British, it would be included as a case study in the Class 8 National Council of Educational Research and Training (NCERT) history textbook.”

This article will focus on the Paika rebellion and what led to its inclusion in the school curriculum.

What is the Paika rebellion

The Paika Rebellion of 1817 was an armed rebellion by the Paikas of Khurda in Odisha against the British. Under the leadership of Buxi Jagabandhu Bidyadhara, the uprising took shape.

Who are the Paikas

In Odiya, the word “Paika” means “warrior/fighter.” Their fighting method, known as “Paika Akhada,” dates back to ancient Kalinga and was praised by King Kharavela. The Paikas of Odisha were a landed militia that served the Gajapati monarchs by performing policing duties. They also served as warriors, assisting the king in battle. They were categorised into the following categories:

  • Praharis were sword-fighting experts.
  • Banuas were excellent matchlock marksmen.
  • Dhenkias were the battlefront archers.

For the military services they provided to the kingdom of Khurda, they were given rent-free land.

Reasons behind the Paika rebellion

Soon after the British took over Odisha from the Marathas in 1803, they began to implement a system of administration that enraged Mukunda Deva II, the King of Khurda. The British quickly discovered his plot to mutiny in collusion with the Paikas, and he was torn apart. They subsequently took over the Paikas’ territory beneath the deposed King’s estate. Many further British actions, such as the introduction of a new currency system, abuse of the Paikas at the hands of company officials, and the ban on extracting salt from saltwater, sparked considerable discontent and hate. In 1817, a powerful party of 400 Ghumusar Khonds marched to Khorda and stated their intention to liberate Khorda and Ghumusar from British domination. The Paikas of Khurda joined the organisation as well. 

The rebellion was led by Buxi Jagabandhu, also known as Paika Bakshi, who was the commander of the Gajapati king of Khurda’s militia force. Khurda was a kingdom in the vicinity of Puri. He was one of India’s liberation warriors. 

The course of events that followed:

  • During their march to Khurda, the Paikas set fire to a police station and killed some East India Company officials. The Nayagarh, Kujang, and Kanika kings, as well as village headmen, peasants, and zamindars, gave their support to the revolt. Purl, Pipli Cuttack, and other regions of Odisha rapidly joined the uprising. 
  • The Paikas appeared to have taken control of the conflict and had some success at first, but they were defeated by the British in just three months. Some Paikas, on the other hand, engaged in guerilla warfare against the British, but the rebellion was put down by 1819. As a result, it lasted a year and a half until being brutally suppressed by the armies of the British East India Company.
  • Bakshi Jagabandhu, the Paika leader, surrendered to the British in 1825 after a series of defeats and lived as a prisoner in Cuttack till his death in 1829.

Outcome and repercussions of the rebellion

The Paika Rebellion’s outcome was disappointing, since the rebels engaged were sentenced to death or long-term imprisonment.

British officials created a panel to investigate the revolt. Following the Paika revolt, which was led by individuals from the Kandha and Koi regions, there were violent uprisings. The fundamental issue that arose with the Paika revolt was the revenue policy, which remained unchanged.

Lord Jagannath was projected as a symbol of Odiya unity during the revolt. Despite the fact that it was a brutal rebellion prior to the renowned Revolt of 1857, which challenged British Supremacy in India, it did not garner widespread support. The Prime Minister honoured and congratulated the descendants of families connected with the revolt on the 200th anniversary of the rebellion.

Nationalist movement or peasant rebellion

The Paika Rebellion was one of the peasant uprisings that occurred in India during the British East India Company’s military expansion. Because these revolutions frequently clashed brutally with European colonialists and missionaries, their resistance is sometimes regarded as the first expression of resistance to colonial control — and hence as “nationalist.”

Inclusion of the rebellion in school curriculums and related controversies

Odisha has been demanding since 2017 that the state’s rebellion be recognised as the country’s first war of independence. At present, the 1857 Indian Mutiny, also known as the Sepoy Mutiny, is considered the first fight of independence against British rule. Although the Odisha Paika revolt of 1817 cannot be considered the first battle of independence, it would be incorporated as a case study in the Class 8 National Council of Educational Research and Training (NCERT) history textbook, stated the Union Culture Minister on December 2, 2021.

What was Odisha’s demand

The Odisha state cabinet, led by Chief Minister Naveen Patnaik, passed a proposal in 2017 to formally encourage the centre to recognise the Paika rebellion as the country’s first battle of independence. “I request the Government of India to consider this proposal positively,” Patnaik wrote to the-Home Minister Rajnath Singh, “so that the people of India appreciate, in the correct perspective, the events that led to the Indian freedom struggle and our historic independence from foreign rule.” 

The uprising was portrayed as a mass agitation and “the first struggle for freedom in the country against foreign rule in which the people of Odisha had actively participated” in the state cabinet’s recommendation. At President Ram Nath Kovind’s foundation stone laying ceremony for the Paika revolt memorial in Barunei in 2019, Chief Minister Patnaik reaffirmed his request.

Centre’s response to the demand

In consultation with the Indian Council of Historical Research (ICHR) under the Ministry of Human Resource Development, now called the Ministry of Education, the Centre had evaluated the suggestion and investigated the matter. The Paika Rebellion, according to ICHR recommendations, cannot be considered the first war of independence, the Union Culture Minister told the Rajya Sabha.

However, considering that the rebellion which started in 1817 continued till 1825 and “is one of the beginnings of popular uprisings against the British in India”, the minister declared that it would now be included in the curriculum of Class VIII history textbook of NCERT.

Is the centre “saffronizing” the education sector

In a statement, Marumalarchi Dravida Munnetra Kazhagam (MDMK) chairman Vaiko said that the BJP-led central government is attempting to ‘saffronize’ the education sector in the wake of the coronavirus outbreak. In his statement, he said that RSS’s ‘Hindutva‘ ideals are being ingrained in school and college curricula.

He further claimed that chapters on federalism, human rights, nationalism, and secularism, as well as chapters on Indian Democracy, Social Organization, and Social Processes in the sociology course, had been eliminated entirely from the 11th-grade political science curriculum. The RSS’s ‘Hindutva‘ concepts, such as Vedas, Upanishads, Smritis, and Puranas, he stated, have been incorporated into the syllabus. 

He also expressed his displeasure with the significance given to the Ramayana and Mahabharat, and said that Muslim rule in India has been neglected, with Muslim kings being referred to as “invaders.”

He further stated that teachings on Dalit politics, which were formerly included in the curriculum, had now been deleted.

“The Hindu Maha Sabha’s head, V.D. Savarkar called the 1857 soldier’s revolt the ‘First War of Independence.’ What Savarkar described is already part of the lesson. Prior to that, the Bengal Sanyasi Rebellion, Odia’s Paika Rebellion, and Tamil Nadu’s Vellore Revolution had not been included.” Vaiko went on to say that the partition of Bengal in 1905 and the events surrounding it were illegally deleted.

Conclusion

The Paika rebellion is a landmark in the history of the freedom struggle in India. Even though it was the first rebellion against British rule in India, ICHR has given no reasonable explanation as to why it cannot be considered the first war of independence and why the revolt of 1857 is considered to be the first war. Besides that, there are several rebellions, as mentioned by Vaiko, that have not even been mentioned in the school curriculum and students know nothing about them. What is taught in schools is only a chunk of the vast history of our country, and creating a bias on the history taught to students in school is a condemnable move. 

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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