Shaheen Bagh judgment and right to protest in India

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December 3, 2021

This article is written by Ansruta Debnath, a student currently pursuing the BA LLB degree from National Law University Odisha. This article explores the implications the 2020 Shaheen Bagh judgment has on the right to protest in India.

Table of Contents

Introduction

The right to protest is a fundamental right enshrined in the Indian Constitution. But the Shaheen Bagh judgment has substantially reduced the right given by it. It thus becomes important to analyze the judgment in detail and understand why the principles used in it, although given in good faith, form a dangerous precedent that can be easily used by authorities to arbitrarily clamp down on dissent.

Facts of the case

The Shahen Bagh protest was an iconic protest launched in December of 2019 by women, children and senior citizens against the Citizenship (Amendment) Act, 2019 (hereinafter, referred to as CAA). The protesters were m a inly Muslim. Their primary point of contention was the fact that through the CAA, persecuted minorities from Afghanistan, Pakistan and Bangladesh would be given citizenship in India but Muslim persecuted minorities would not. This unfair nature of differentiating on the basis of religion goes completely against the basic tenet of secularity embodied in the Indian Constitution. Coupled with the hotly debated NRC, the CAA has been seen as a method of disenfranchising Indian Muslims. The protest was in the form of a mass-sit in the Kalindi Kunj-Shaheen Bagh present in the north-eastern part of Delhi and resulted in the closure of the entire stretch of road.

Because of the block-in, numerous petitions were filed demanding a clearance of the road. The petition on which the Court decided to give its judgment was Amit Sahni v. Commissioner of Police and Ors. (2020). The writ petition was originally filed in the Delhi High Court where the petitioner contended that blocking a public road was against the Indian Constitutional regime and that the Court should take measures to clear the said road. The judges in the Delhi Court, however, decided to not adjudicate on the issue and left it to the Delhi Police and other authorities to decide. The Delhi Court also cautioned authorities saying that, while taking a decision, they must keep the greater public interest in mind. Importance was also given to the maintenance of law and order. The Court felt that an appropriate order could not be given until the ground reality was assessed and the best person to do that was the Delhi Police.

The situation, however, remained the same and subsequently, a special leave petition was filed and the entire thing went on appeal to the Supreme Court of India. Two other writ petitions were “dismissed as withdrawn”. Before the judgment was given, the Court had directed for mediation to take place between the petitioners and the protestors. However, no one could reach any consensus.

Judgment

The Supreme Court gave its judgment in October of 2020 despite the fact that the protest could not continue because of the COVID 19 pandemic and subsequent lockdown. The Apex Court felt that there was a further need to provide a written judgment on this issue.

Right to protest : a fundamental right with restrictions

The Court held that even when the right to protest was a fundamental right granted by the Indian Constitution, it had to be subjected to reasonable restrictions related to public order, sovereignty and integrity of India and “regulation by the concerned police authorities in this regard”.

While recognizing the right to freedom of speech and expression under Article 19(1)(a) and the right to assemble peacefully without arms under Article 19(1)(b), the Court held that public spaces could not be occupied, especially indefinitely. While “democracy and dissent went hand-in-hand”, dissent could take place only in designated places. Shaheen Bagh could not be a designated place because it was a road used frequently by commuters and the sit-in was causing a lot of inconvenience to said commuters.

Furthermore, the Court refused to accept the plea that an indeterminable number of people could assemble whenever they chose to protest.

Balance between right to travel and right to protest

Although not explicitly mentioned in the judgment, an implied balance must be struck between various rights. In the case in contention, the right to travel of the commuters of Shaheen Bagh was being affected. Right to travel freely across the territory of India has been guaranteed by Article 19(1)(d) of the Indian Constitution. One right cannot be given more importance than the other. What is needed is to ensure that policies and rules being made conform to the greater public good.

Dismissal of review petition

The Supreme Court in 2021 dismissed a review petition which challenged its Shaheen Bagh judgment. It reiterated its stand that while spontaneous protests could be allowed, prolonged protests would under no circumstance be allowed in public spaces. It is interesting to note that the three-judge bench that examined the review petition was the same bench that gave the verdict in the original judgment.

Implications of Shaheen Bagh judgment

Increased restrictions

For starters, one very important aspect of the judgment is that the Court added on to the reasonable restrictions given in the Constitution. Article 19 allows reasonable restrictions related to “sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence”.

However, the Apex Court went to note that fundamental rights were subject to “regulation by the concerned police authorities in this regard”. This contention substantially widens the ambit of restrictions and can prove to be dangerous to the right to dissent. Our Constitution framers had included the restrictions with the hope that they could not be widened by executive and legislature and the same would be ensured by our judiciary. However, here the judiciary ends up compressing the rights available on the grounds of “inconvenience caused to the commuters”.

The Supreme Court, in Anuradha Bhasin v. Union Of India (2020), had made a distinction between “law and order” and “public order” and said there was a higher threshold for activation of restrictions under public order. Mere inconvenience cannot be a reasonable threat to public order. However, the Court in this judgment failed to explain why they considered said inconvenience a proper ground for reasonable restrictions to come into play.

Meaning of public protest

The Court held that protests could not take place in public places. But a public protest by its definition implies a protest in places that are public and available to all. When it is in a public location, it will create inconvenience to someone else who genuinely wished to utilise that space for a different reason. If the Supreme Court’s decision is to be followed, then it automatically implies that the ability to protest anywhere will be reduced considerably.

Did protestors cause inconvenience

Another important point to note is the inconvenience caused to the commuters was aggravated because they were unable to access any other alternate routes, as they too were apparently blocked in by the protestors. But later, reports emerged which said that the alternate routes had been barricaded by the police itself, not the protestors. Thus, it is strange that the Court failed to include this bit of information in its judgment. This entire scenario implies that if the police can somehow prove an inconvenience for the commuters, then such inconvenience will be understood to be a threat to public order and would not have the Constitutional backing of the right to protest.

Vague terms

The judgment asks for protests to take place in designated areas. Yet, the Court does not elaborate on what a designated area can be. This non-specification might be arbitrarily used by authorities to stifle dissent.

This vagueness is also found in other terms used in the judgment. The Court has said that such protests cannot go on indefinitely. However, what exactly will be considered an indefinite period was not elaborated upon, which yet again opens up avenues for arbitrary state action.

Lack of binding value

This case has been said to not have a ratio decidendi at all. This is because the Court gave a decision based on a protest that had already been wrapped up. It has been contended that since there was no case, there cannot be any ratio that automatically implies that the judgment should not have any binding value. With regards to whether there is persuasive value, the entire Shaheen Bagh judgment can be said to have set a dangerous precedent with regards to the right to protest given to the citizens of India.

Other judgments on the right to protest

In Beenu Rawat v. Union of India (2013) the Supreme Court held that there must be a balance between rights and duties. While everyone has the right to protest against arbitrary state action, protesting against police action (or inaction) becomes especially dangerous because there is a higher chance of fundamental rights being violated. At the same time, people could not paralyse state machinery in the name of protest. People had a right to protest and a duty to not break the law. Police had the duty to maintain law and order. In this sense, there must be a balance as “rights without duties tend to degenerate into a license for misuse of rights”.
In another case, Anita Thakur v. the State of J&K (2016), the Apex Court held that there was a fundamental right to protest using freedom of speech and expression and form peaceful assemblies. Only when said assemblies became unlawful could they be dispersed using force. However, the Court cautioned that force had to be reasonable and not excessive in nature.
The Shaheen Bagh judgment used Mazdoor Kisan Shakti Sangathan v. Union of India & Anr. (2018) Here the main point of contention was whether disturbances caused to residents were a larger public interest for which the right to protest in that area could be restricted. There had to be a balance between rights accorded to all. The Court in this scenario held that the protest in contention was causing serious harassment to the residents. At the same time, the site of protest which was Jantar Mantar, was a common place to hold protests and was also recognized by the authorities. So the Court directed the authorities to formulate proper and requisite guidelines for regulating protests in and around the area.
In Himat Lal K. Shah v. Commissioner of Police, Ahmedabad & Anr. (1972), a challenge was made to the rules framed by the Commissioner of Police, Ahmedabad, by the powers conferred under Section 33(1)(o) of the Bombay Police Act, 1951. One of these rules required that prior authorization be obtained before holding public meetings. The Supreme Court ruled that the state may only enact laws in support of each citizen’s right to assemble and can only impose reasonable limits in the interests of public order. In determining whether these rules violated Article 19(1)(b) of the Indian Constitution, it was determined that, while the State cannot impose unreasonable restrictions, the right to hold meetings on public streets was subject to the control of the appropriate authority regarding the time and place of the meeting, as well as considerations of public order.

However, because the rule requiring prior permission from the concerned authority did not include any guidance as to when such permission to hold a public meeting could be refused, it was determined that the rule conferred arbitrary powers and gave the concerned authority unguided discretion, and this was thus held to be against Article 19(1)(b) of the Constitution. This case was also mentioned in the judgment of Shaheen Bagh.

Conclusion

From our above-mentioned discussion, it is clear that the judgment needs to be given much more clarity. As was aptly put, “Constitutional questions require dissection with a sharp surgical knife; what the Supreme Court used in the Shaheen Bagh case instead was a hacksaw”. It is very important that the judgment given is promptly revised to prevent unpredictable behaviour by authorities in case of protests.

References

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Setting aside skin-to-skin judgement : Supreme Court in Attorney General for India v. Satish and another

By

Oishika Banerji

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December 3, 2021

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This article is authored by Nidhi Bajaj, of Guru Nanak Dev University, Punjab. The article deals with the landmark judgement of the Supreme Court of India which set aside the skin-to-skin judgment of Bombay High Court and held that sexual intent is the main ingredient of offence of sexual assault in Section 7 of the POCSO Act.

Introduction

In its judgment Attorney General for India v. Satish and another(2021), the Hon’ble Supreme Court set aside the judgment of Bombay High Court which held that skin to skin contact is a prerequisite for an offence of sexual assault to be made out under the Protection of Children from Sexual Offences (POCSO) Act, 2012. The case arose out of appeals filed by the Attorney General of India, the National Commission for Women and the State of Maharashtra against two judgements of the Bombay High court, both authored by Justice Ganediwala. In this article, the author will highlight the facts, submissions made and the judgment given by the Supreme Court in this case.

Background

Filing of appeals

Four Appeals were filed before the Supreme Court by the appellants – Attorney General for India, National Commission for Women, State of Maharashtra and appellant – accused Satish against the judgement dated 19 January 2021 passed by Bombay High Court (Satish v. the State of Maharashtra) holding that skin to skin contact is necessary to constitute an offence of sexual assault under Section 7 of the POCSO Act.

Another appeal was filed by the State of Maharashtra against the judgement of the same bench dated 15 January 2021 (Libnus v. the State of Maharashtra) wherein it was held that acts of ‘holding the hands of the minor girl’, or ‘opening the zip of pant’ do not constitute sexual assault under the POCSO Act. The Hon’ble Supreme Court heard and disposed of all the appeals together.

Facts: Satish v. State of Maharashtra (2021)

The victim, aged about 12 years had gone out to obtain Guava when the accused, a man residing in the neighbourhood took her to his house under the pretext of giving her Guava and then pressed her breast and tried to remove her salwar. When the victim shouted, the accused pressed her mouth. The informant in the case was the mother of the victim who lodged a complaint against the accused. The Special Court convicted and sentenced the accused-Satish for the offences under Sections 342, 354 and 363 of the Indian Penal Code, 1860 and Section 8 of the Protection of Children from Sexual Offences Act, 2012.

The accused filed an appeal against the said order and judgment in the Bombay High court. In appeal, the High Court acquitted the accused under Section 8 of the POCSO Act and convicted him for a minor offence under Sections 342 and 354 of the IPC. Justice Ganediwala of Bombay High Court made the following observations in her judgment, “The act of pressing of breast of the child aged 12 years, in the absence of any specific details as to whether the top was removed or whether he inserted his hand inside top and pressed her breast, would not fall in the definition of ‘sexual assault’.”

Facts: Libnus v. State of Maharashtra (2021)

In this case, the accused was charged with the offence of aggravated sexual assault. The victim was a girl aged 5 years and her mother was the informant in the case. When the mother and father of the victim were not at home, the accused Libnus came to their house asking for the father of the victim. On finding out that both parents of the child were out, he held the hands of the victim, lowered her pants and thereafter unzipped his pants and showed his penis to her and then asked her to lay down on the wooden cot. A complaint was lodged against the accused for offences under Sections 354-A (1)(i) and 448 of the IPC and Sections 8, 10 and 12 read with Section 9(m) and Section 11(i) of the POCSO Act. The Special court convicted and sentenced the accused-Libnus for offences punishable under Section 448 and 354-A (1)(i) of IPC and Sections 8 and 10 read with Section 9(m) and 12 of the POCSO Act. Aggrieved by the said order and judgment, the accused filed an appeal before the Bombay High court.

The High Court in the appeal filed by the accused-Libnus set aside the conviction for the offences under Sections 8 and 10 of the POCSO Act and upheld the conviction for the offences under Sections 448 and 354-A(1)(i) of IPC read with Section 12 of the POCSO Act. While interpreting Section 7 of the POCSO Act, the High Court relied on the principle of ejusdem generis to hold that the expression ‘any other act’ in the definition of ‘sexual assault’ under Section 7 of the Act encompasses within itself, the nature of the acts which are similar to the acts which have been specifically mentioned. The acts of ‘holding the hands of the prosecutrix’ or ‘opening the zip of the pant’ not being of the same nature or closure do not fit in the definition of ‘sexual assault’.

Submissions on the behalf of Appellants

Following submissions were made on the behalf of Appellants:

The interpretation of the provisions of the POCSO Act as done by the Bombay High Court would have a devastating effect on society at large.
All the alleged acts of the accused including taking the victim to his house, removing salwar, pressing breasts and mouth were acts amounting to ‘sexual assault’ within the meaning of Section 7 punishable with Section 8 of the POCSO Act.
The interpretation of the word ‘physical contact’, as meaning ‘skin to skin contact’ is a narrow interpretation that defeats the very purpose and object of the POCSO Act.
There was no scope for application of the principle of ejusdem generis and it should not be applied where it would defeat the very object of the statute.
Section 7 includes two parts-first, is an act of ‘touching with sexual intent the vagina…’ and second, pertains to ‘any other act with sexual intent which involves physical contact without penetration’. Thus, it is clear that mens rea-the sexual intent of a person is the most important and material thing in case of offence of sexual assault.
The words ‘touch’ and ‘physical contact’ in Section 7 have been used interchangeably by the legislature.
In terms of Sections 29 and 30 of the POCSO Act, the court is required to presume the sexual intent on the part of the accused and it is for him to prove that he had no such intent or culpable mental state.

Submissions on behalf of accused

Following submissions were made on the behalf of accused:

While relying on the case of Bandu Vithalrao Borwar v. State of Maharashtra(2016), the Learned Senior Advocate appearing for the accused submitted that the expression ‘sexual intent’ can not be confined to any predetermined format or structure and as the POCSO Act defines the term ‘sexual assault’, the definitions of words ‘assault’ or ‘criminal force’ as given under IPC cannot be imported into the POCSO Act.
The first part of Section 7 i.e. the act of touching of private parts of the child may not require skin to skin to contact but the second part i.e.“ the other act with sexual intent which involves physical contact without penetration” requires ‘skin to skin’ contact which is to be proved by the prosecution.
The presumptions under Sections 29 and 30 make it difficult for an accused to prove his innocence and so any interpretation other than strict interpretation would expand the offence which would go against the constitutional objective of Article 21.
The Advocate for the accused invoked the ‘Rule of Lenity’ which requires the court to resolve an ambiguity in a criminal statute in favour of the accused by doing a strict or narrow interpretation.
Lastly, there are a lot of contradictions in the oral evidence of informants and it would be risky to convict the accused on such sketchy evidence.

Important Legal provisions of POCSO Act

The Protection of Children from Sexual Offence Act, 2012 has been enacted to protect children from the offences of sexual assault, sexual harassment and pornography.

Section 7

Section 7 defines ‘sexual assault’ as touching of the private parts (vagina, penis, anus or breast) of the child with sexual intent or making the child touch a person’s private parts or doing any other act with sexual intent which involves physical contact without penetration.

Section 8

Section 8 provides ‘Punishment for sexual assault’ i.e. simple or rigorous imprisonment which shall not be less than three years but which may extend to five years, and fine.

Section 9

Section 9 enumerates the cases where sexual assault is said to be aggravated sexual assault. For instance, clause (m) of Section 9 provides that whoever commits sexual assault on a child below twelve years is said to commit aggravated sexual assault.

Section 10

It provides for punishment for aggravated sexual assault i.e. imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and fine.

Main issue

The main issue in the case relates to the interpretation of Section 7 of the POCSO Act.

Analysis by the Supreme Court

The Court observed that while interpreting a statute, such a construction has to be adopted which promotes the object of the legislation and prevents its possible abuse. The Court also observed that the POCSO Act was enacted to prevent children from sexual assault, sexual harassment and pornography.
After analysing the dictionary meaning of the words ‘touch’ and ‘physical contact’, the court expressed its agreement with the submission of appellants that both words have been used interchangeably in Section 7 by the legislature.
The Court agreed with the submission made on the behalf of accused that expression ‘sexual intent’ in Section 7 cannot be confined to any predetermined structure and is a question of fact to be decided in each case. The Court however rejected the submission that physical contact in Section 7 means skin-to-skin contact. Relying on the maxim ‘Ut Res Magis Valeat Quam Pereat’, the Court observed that any narrow interpretation which would defeat the object of a provision cannot be accepted. Interpreting the expression ‘physical contact’ to mean ‘skin-to-skin contact’ would lead to an absurd interpretation that could not have been the intent of the legislature. Such interpretation would frustrate the very object of the statute and would be very detrimental as the acts of touching the body of the child with gloves cloth or condoms would not amount to sexual assault under Section 7 even if they are committed with sexual intent.
The Court observed that it is a settled position that penal statutes have to be construed strictly but it is equally settled that clauses of a statute should be construed with reference to the context and other provisions so as to make a consistent enactment of the whole statute relating to the subject matter.
The Court refused to apply the rule of lenity and observed that it is a settled proposition of law that the statutory ambiguity should be invoked as a last resort of interpretation. Where the intention of the Legislature is clear, the courts can not manufacture ambiguity in order to defeat such intention. The Court held that there is no ambiguity or obscurity in Section 7 so as to invoke the Rule of Lenity.

Judgment of Hon’ble Supreme Court

A three-judge bench of the Supreme Court consisting of Justice Bela M. Trivedi, Justice U.U. Lalit and Justice S. Ravindra Bhatt heard the case and disposed of the five appeals. The majority judgement was authored by Justice Bela M. Trivedi on behalf of herself and Justice U.U Lalit and Justice Ravindra S. Bhatt delivered his concurring opinion separately.

Justice Bela M. Trivedi and Justice U.U. Lalit gave the following judgement:

The most important ingredient for constituting the offence of sexual assault under Section 7 of the POCSO Act is ‘sexual intent’ and not skin-to-skin contact.
The High Court erred in holding the accused-Satish guilty for the minor offences under Sections 342 and 354 of IPC and acquitting him for the offence under Section 8 of the POCSO Act. The High Court was wrong in holding that there was no offence since there was no direct physical contact i.e. “skin to skin” with sexual intent.

Construing Section 7 of the POCSO Act on the basis of the principle of ‘ejusdem generis’ is wholly misconceived. Such a principle should be applied only as an aid to the construction of the statute and should not be applied where it would defeat the very legislative intent. Where the specific words used in the section exhaust a class, then it has to be construed that the legislative intent was to use the general word beyond the class denoted by the specific words and such is the case with Section 7 of the POCSO Act.
The fact that the accused took the victim to his house, lied to the mother of the victim about her whereabouts etc. having been proved by the prosecution entitled the Court to raise a presumption about the culpable mental state of the accused under Section 30 of the POCSO Act. The accused has failed to rebut such presumption and hence, sexual intent under Section 7 of the Act stands proved. Also, the act of accused of pressing breasts, removing salwar and of using force to press mouth having been proved, constitute sexual assault, punishable under Section 8 of Act.
In the case of accused Libnus, the High Court has committed a grave error in holding that acts of “holding the hands of the prosecutrix” or “opened the zip of the pant” do not come under the definition of sexual assault. The Court held that such acts constitute sexual assault under Section 7 and the fact that the victim was below 12 years of age, the accused is guilty of commission of aggravated sexual assault under Section 9(m) of the Act and is liable to be punished with the imprisonment for a term not less than five years under Section 10 of the POCSO Act.

Justice Ravindra S. Bhatt’s opinion

Justice Ravindra S. Bhatt in his concurring judgement pointed out the need to interpret the statute in the context of the circumstances that resulted in its birth. In his judgement, the Hon’ble judge resorted to the mischief rule of interpretation of statutes which provides that courts have to interpret the law so as to suppress the mischief and advance the remedy. He noted that the judgment given by Bombay High Court tends to continue the mischief that the Parliament wished to avoid.
He also noted that in Section 7 of the POCSO Act, the term ‘physical contact’ is of wider import than the word ‘touching’ and is not limited to touch. The expression ‘any other act’ involving ‘physical contact’ may include direct physical contact by the offender, with any other body part of the victim except those mentioned in the first part of Section 7 and other acts such as the use of an object by the offender, engaging physical contact with the victim. Even no contact by the offender may come under the purview of the expression “any other act”. For example in a case where the victim is coerced to touch oneself.
To determine whether touch or physical contact is made with sexual intent, one has to look at the surrounding circumstances. For instance, the nature of the relationship with the child, the length of contact, its purposefulness and whether there was a legitimate non-sexual purpose for the contact, place and conduct of the accused before and after such conduct are all relevant considerations. Courts have to keep in mind that sexual intent is not defined but is dependent on the facts of a case.

Order by the Supreme Court

The Supreme Court set aside the order passed by the Bombay High Court in the case of accused Satish and restored the order of the Special Court. The accused was convicted for the offences punishable under Section 8 of the POCSO Act and Sections 342, 354 and 363 of the IPC. The accused-Satish was directed to undergo rigorous imprisonment for three years and a fine of Rs.500/- and in default thereof to undergo simple imprisonment for one month for the offence under Section 8 of the POCSO Act. As the accused was sentenced for the major offence under Section 8 of the POCSO Act, no separate sentence was imposed upon him for the other offences under the IPC.

The accused-Libnus was convicted for the offences under Sections 354-A (1)(i) and 448 of the IPC as and for the offences under Sections 8, 12 and 10 read with Section 9(m) of the POCSO Act. The court directed him to undergo rigorous imprisonment for five years for the offence under Section 10 of the POCSO Act and to pay a fine of Rs. 25,000 and in default thereof to suffer simple imprisonment for six months. No separate sentence was imposed upon him for the other offences under the IPC and the POCSO Act.

Conclusion

In this case, the Supreme Court has given a landmark judgement by reversing the controversial judgements passed by the Bombay High Court which were heavily criticised for being bad in law. However, it is unfortunate the High Court in a country would pass such a judgment that makes a mockery of the law by completely disregarding the legislative history of the POCSO Act and the important objects that the Act seeks to achieve. To conclude, it is pertinent to mention the following observation made by Hon’ble Justice Ravindra S. Bhatt, “It is no part of any judge’s duty to strain the plain words of a statute, beyond recognition and to the point of its destruction, thereby denying the cry of the times that children desperately need the assurance of a law designed to protect their autonomy and dignity, as POCSO does”.

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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Bar against legal advertising and solicitation

By

Oishika Banerji

-

December 3, 2021

0

This article is written by Nidhi Bajaj, a final year student of BA.LL.B in Guru Nanak Dev University, Punjab. This article aims to analyse the provisions relating to the bar against soliciting work and advertising in India in the backdrop of the right to commercial speech and the comparative jurisprudence in other countries.

Table of Contents

Introduction

Advocacy is a noble and honorable profession. It is expected that an advocate should not indulge in such acts or conduct which might lessen the faith of the people in the legal profession or malign its integrity. It is for this reason that advertising of legal services and soliciting of work by advocates is prohibited by the Bar Council of India and State Bar Councils.

In this article, I will be dealing with the provisions that bar legal advertising and soliciting of work, the basis for such provision, the consequences of its violation, the judicial approach, and the position in other countries with regard to legal advertising and soliciting of work.

Legal advertising and solicitation of work : meaning

Legal advertising means advertising of legal services provided by a lawyer or a law firm in order to attract potential clients. Such advertising may be done through various mediums including print, television and online advertising, etc.

To ‘solicit’ simply means to ask for in a persuasive manner or approach. Solicitation refers to any communication initiated by or on behalf of a lawyer directed towards a specific person with the knowledge that such person is in need of legal services in a particular matter offering to provide legal services for that matter.

Basis for bar against legal advertising and solicitation of work

Legal advertising is prohibited for the simple reason that law is not a trade. It is understood that advertising by lawyers can manipulate or mislead people and lower the dignity of the legal profession. The ban against advertising and solicitation of work in India owes its origin to British Law. The Solicitors Act of 1933 empowered the Law Society Council to promulgate rules regulating the professional practice, conduct, and discipline of solicitors. Rule 1 of the Solicitor’s Practice Rules 1936 provided for a comprehensive ban on solicitor advertising prohibiting three types of behavior: touting, advertising, and unfairly attracting business.

Reasons behind prohibition of legal advertising and solicitation of work

To avoid commercialization of the legal profession.
To uphold the integrity of the legal profession and maintain quality services.
The misleading nature of advertisements may shake the faith of people in the legal profession.
Allowing advertising will lead to unhealthy competition between lawyers who might resort to unfair practices to gain more clients thereby focussing less on the quality of services provided.

Provisions regarding bar against solicitation and advertising

Section 49 of the Advocates Act 1961

Section 49(1)(c) of the Advocates Act 1961 provides for the power of the Bar Council of India to make rules prescribing the standards of professional conduct and etiquette to be observed by advocates.

Chapter II of Part VI of the Bar Council of India Rules

The Bar Council of India, while exercising the rulemaking power conferred upon it by Section 49(1)(c) of the Advocates Act 1961, has framed several rules under Chapter II of Part VI of the BCI Rules laying down the ‘Standards of Professional Conduct and Etiquette’.

Rule 36 as provided in Section IV (Chapter II of Part VI of BCI Rules) provides for the bar against advertising and soliciting work:

It provides that an advocate shall not solicit work or advertise by direct or indirect means. Such solicitation and advertisement include circulars, advertisements, touts, personal communications, or interviews not warranted by personal relations.
Even furnishing newspaper comments or producing photographs to be published in connection with cases in which the advocate was engaged or concerned is also prohibited.
The sign-board or name-plate of an advocate should be of a reasonable size.
The sign-board or name-plate of an advocate or his stationery should not indicate that:

he is or has been a President/Member of a Bar Council or any Association;
he has been associated with any person or organization or any particular matter;
he specializes in any type of work;
he has been a judge or an Advocate General.

Furnishing of certain information allowed : 2008 Amendment

Rule 36 of Chapter II of Part VI of Bar Council Rules was amended by the Bar Council of India in 2008 to provide for some relaxation. It allowed the furnishing of website information by the advocates under intimation to and as approved by the Bar Council of India. However, only the particulars as approved by the BCI are to be provided. Any additional input would be deemed as a violation of Rule 36 and the advocate would be liable to punishment for misconduct under Section 35 of the Advocates Act 1961.

The Schedule attached to Rule 36 provides for furnishing of the following particulars:

Name, address, telephone numbers, e-mail id;
Enrolment number, date of enrolment;
Name of state bar council where originally enrolled;
Name of state bar council on whose roll name stands currently;
Name of the bar association of which the advocate is a member;
Professional and academic qualifications;
Areas of practice.

Hence, the Amendment allowed the furnishing of certain information by advocates on the internet.

Punishment : Section 35 of the Advocates Act, 1961

An advocate who commits a breach of Rule 36 providing for the bar against advertising and solicitation of work is liable to be proceeded against for professional misconduct.

Section 35(1) of the Advocates Act, 1961 provides for the power of the State Bar Council to punish an advocate for ‘professional or other misconduct’. It provides that, where on receipt of a complaint or otherwise, the State Bar Council has reason to believe that any advocate on its roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee.

Judicial approach

Tata Press Limited v. Mahanagar Telephone-Nigam Limited & Ors (1995)

In this case, the Hon’ble Supreme Court held that ‘Commercial Speech’ is a part of Freedom of Expression as enshrined in Article 19(1)(a) of the Constitution. Hence, the Supreme Court recognised advertising as a part of the right to freedom of speech.

V.B. Joshi v. Union of India (2008)

In this case, the petitioner had challenged Rule 36 of BCI rules (Part VI, Chapter II). The Supreme Court directed an amendment to be made in Rule 36 to allow the advocates to advertise their services on the internet. The amendment was made in 2008 allowing advocates to advertise certain information on their websites including name, address, telephone numbers and email id, enrolment number, date of enrolment, name of State Bar Council where originally enrolled, name of the State Bar Council on whose roll name stands currently and name of the Bar Association of which the advocate is a member, professional qualifications and academic qualifications and areas of practice.

Bar Council of Maharashtra v. M. V. Dabholkar (1975)

In this case, the Supreme Court ruled that “Law is no trade, briefs no merchandise and so the leaven of commercial competition or procurement should not vulgarise the legal profession”.

Rajendra V. Pai v. Alex Fernandes & Ors (2002)

In this case, a complaint was filed against the appellant advocate that he was not engaged as an advocate by the complainant but he solicited the work directly and through bogus representation to the complainant and many others who applied for enhanced compensation under Section 28A of the Land Acquisition Act 1894. The advocate was held guilty of professional misconduct and the Bar Council ordered the removal of his name from the state roll. The Supreme Court, in appeal, while maintaining that the advocate is guilty of professional misconduct, modified the punishment given to him and ordered a suspension of his licence for a period of seven years.

Position in other countries

USA

In the US, till 1977 the provisions relating to the bar on advertising and soliciting work were more or less similar to that of India. Canon 27 of the American Bar Association: Canons of Ethics (1908) provided that the solicitation of business by way of advertisements etc., was unprofessional. However, this position underwent a huge change following the case of Bates v. State Bar of Arizona (1977). In this case, the US Supreme Court upheld the lawyer’s right to advertise his services and held that the legal advertising is commercial speech protected under the First Amendment rights. It was also held that the First Amendment allows lawyers to advertise in a manner that does not mislead the general public.

In 1969, the ABA Model Code of Professional Responsibility was adopted by the American Bar Association. Later, in 1983 the ABA Model Rules of Professional Conduct were adopted which replaced the model code.

Rule 7.1 of the aforesaid Model rules deal with ‘Communications concerning a lawyer’s services’. It prohibits a lawyer from making any false or misleading communication about his services. Rule 7.2 contains specific rules relating to information about legal services. It allows the lawyer to advertise his services through any media, such as print and electronic media etc. Rule 7.3 dealing with ‘Solicitation of clients’ bars the solicitation of professional employment by the lawyer by live person to person contact when such contact is made with the motive of making pecuniary gain.

UK

In the UK, advertising by lawyers was viewed as unprofessional till 1970. The bar on advertising of legal services was removed with the coming of the Monopolies and Mergers Commission in 1970 and the Office of Fair Trading in 1986.

Rule 2 of the Solicitors Practice Rules 1990 provided that the solicitors may publicize their practices. These rules were replaced by the Solicitors Code of Conduct 2007. Later, the Solicitors Regulation Authority(SRA) Handbook came into force in 2011 replacing the earlier Code of Conduct.

Presently, the SRA Standards and Regulations which came into force in November 2019 provide for the Code of Conduct for Solicitors. Rule 8.6-8.11 of the ‘SRA Code of Conduct for Solicitors, RELs and RFLs’ provides for ‘Client Information and Publicity’. It states that the publicity made by the solicitors in relation to their practice has to be accurate and not misleading. Making unsolicited approaches to members of the public to advertise legal services is prohibited, with the exception of former or current clients. Also, solicitors have to ensure that clients understand the regulatory protections available to them.

Whether legal advertising should be permitted ?

Advertising is considered to be the cornerstone of our economic system. The Supreme Court has recognized the right to advertise as a constitutional right in its various judgments. The right to commercial speech and advertisements is protected under the right to freedom of speech and expression under Article 19(1)(a) of the Constitution of India.

Advantages of legal advertising

Legal advertising results in greater opportunities for lawyers, especially first-generation lawyers who are unable to get the much-needed exposure when they start out.
Advertising will aid in bringing the new legal talent into the limelight which might otherwise get lost behind the names of big and established law firms and advocates.
It is very important that the consumer of any product or service is able to exercise the right to choose. Such a right can be fully exercised only when accurate and complete information is provided to the consumer. Similarly, a consumer of legal services also has a right to know about the lawyer including his/her expertise in order to make an informed choice as to whether one should engage such a lawyer as a legal counsel.
Advertising will increase the level of competition in the legal arena, thereby encouraging the lawyers to improve the quality of their services.
Advertising will lead to the globalization of the legal profession which will enhance the number and quality of opportunities available to Indian lawyers.
Advertising will provide a fair chance to all advocates to market their skills and prove their talent.

The way forward

In India, many advocates and law firms do engage in advertising their services indirectly, for instance by conducting seminars or sponsoring conferences or publishing awards, etc. After the amendment of 2008, the furnishing of certain information on the internet by advocates is allowed. LinkedIn has become the one-stop for all advocates that lets them expand their network and consequently bag more clients. The blogs and articles published on an advocate’s or firm’s website also help in publicizing. However, the rules are still very strict when it comes to advertising through other mediums. This discrimination between the modes or manner of advertising contradicts the very motive of regulating legal advertising in the first place. Instead of a complete ban on advertising or permitting advertising solely on websites, legal advertising should be permitted through all mediums and on all platforms. At the same time, effective guidelines and rules should be made to regulate and govern legal advertising across all mediums. Stringent penalties should be levied on the erring advocates who provide misleading information or dupe their clients by making false claims.

References

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High Courts’ jurisdiction to impose costs in a suit under CPC

By

Abanti Bose

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December 3, 2021

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This article is written by Sai Manoj Reddy, pursuing Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from Lawsikho.com. The article has been edited by Prashant Baviskar (Associate, LawSikho) and Ruchika Mohapatra (Associate, LawSikho).

Table of Contents

Introduction

Everyone who has seen or drafted a plaint or some kind of an application or a petition in Civil Practice would have observed that there is always a prayer seeking the court to award “costs to the suit”. This has become a format and is a widely used term but many people do not know where the concept of costs is dealt with and under which statute. Costs in a civil suit are not to be confused with compensation or damages claimed by a party as the two are completely different concepts which will be explained further in this article.

To begin with, the meaning of costs under legal terminology, Costs are monetary/pecuniary allowance that is granted by the court to a successful party in a civil suit towards expenses incurred by such person in prosecuting or defending the suit. Costs in a civil suit are dealt with under Sections 35, 35A, 35B of the Civil Procedure Code (‘CPC’) along with Order XXA of CPC. Under these sections costs are imposed for different reasons like general costs to the successful party, compensatory costs against false and vexatious claims, costs for causing delay, costs for miscellaneous expenses like serving notice, typing etc.

In this article, we will see the types of costs under CPC and understand when a court can impose costs on a party. Further, there will be an analysis on the jurisdiction of High Courts in imposing costs under CPC in the light of the recent judgement of Delhi High Court imposing 20 Lakh rupees as costs against a suit filed by film actress Juhi Chawla.

Why do costs need to be imposed?

It is a well-known fact that Civil Litigation in India is an arduous and lengthy process that takes years for a single case to get resolved. To add fuel to the fire, there are a huge number of civil suits which are false and vexatious being filed every year which is leading to crores of pending cases and an extreme workload on judges.

The concept of imposing costs is to deter litigants from indulging in filing false and vexatious cases and cause unnecessary delay by using dilatory tactics like taking unnecessary adjournments etc. The intention of legislators in providing provisions for costs in CPC is firstly, to indemnify the successful party to the suit by awarding them legal expenses in prosecuting or defending the suit. Secondly, to deter the litigants from filing false and bogus cases. Thirdly, to deter the litigants from causing unnecessary delays.

Existing framework and types of costs under CPC

Provisions regarding imposing costs in civil litigation are enshrined under Sections 35, 35A, 35B and Order XXA of the CPC. The CPC provides for different types of costs under the above sections namely general costs, compensatory costs, costs for causing delay and miscellaneous costs.

General Costs are dealt with under Section 35 of the CPC. This section states that costs can be granted to any party to the suit by the courts under their own discretion. If costs are not granted then the courts need to give reasons for doing so. Costs under this provision are not granted to a successful party to make profit out of them or as a punishment for losing the party. The main objective of this section is to award costs to the successful party to a suit against the expenses he might have incurred for prosecuting or defending the suit.

Compensatory Costs are dealt with under Section 35A of CPC. This section is an exception to the principle of general costs which is to indemnify the successful party. The objective of this section is to deter the false and vexatious cases being filed by the litigants by imposing costs to compensate the other party who has suffered from such false litigation. If the judge is satisfied that the suit is false and vexatious then compensatory costs with a maximum amount of Rs.3000/- can be granted to the victim.

Costs for causing delay are dealt with under Section 35B of CPC. The objective of this section is to deter the parties to the suit to employ delaying tactics. The court can order costs against a party trying to unnecessarily delay the progress of the suit causing a delay in resolution of the matter.

Miscellaneous Costs are provided under Order XXA of the CPC. Under this Order, specific provisions are made giving power to the court to grant costs with respect to miscellaneous expenses like serving notices, typing and printing charges, production of witnesses etc.

It is to be noted that if costs are awarded against a party to a civil suit, it does not mean that he is exempt from any other criminal or civil liability. If a person is found filing a false case, then the victim can file a fresh suit for damages and also criminally prosecute such person even if costs are granted against such person for filing a false and vexatious case.

Difference between costs in a civil suit under CPC and writ proceedings/public interest litigations

The main difference between the costs under CPC and costs in writ proceedings is the maximum limit of the number of costs. Under CPC there is a limit of Rs.3000/- for compensatory costs for false and vexatious cases and other limitations based on the rules framed by respective high courts of each state. Whereas, under writ proceedings and public interest litigations if they are found to be false and vexatious then the High Courts’ have the power to order exemplary costs and there is no limit. There are many examples of false or politically motivated public interest litigations where courts have imposed exemplary costs ranging from a few thousand to a few lakhs.

Juhi Chawla’s Case

Juhi Chawla has filed a civil suit before the Delhi High Court against the roll out of 5G communication technology in India on the grounds of long-term and short-term harm to human, animal and plant life and detrimental impact on the environment at large.

Delhi High Court has imposed a cost of Rs.20,00,000/- (Twenty Lakh Rupees) against the famous film actress Juhi Chawla in the month of June, 2021. This case became quite viral when Juhi Chawla has knowingly or unknowingly shared the meeting link related to the hearing of the case to the public through her social media handle and to add fuel to the fire random strangers have interrupted the court hearings many times and one of them even sung a song from one of Juhi Chawla’s movies. The court observed that this is a case filed for all wrong reasons and for publicity by the actress and valuable judicial time of this Court has been wasted due to the public sharing of meeting links by her.

As the case stands thus, the question that arises is whether the High Court has the power to impose exemplary costs under CPC when there is a statutory limitation to awarding costs under CPC. This will be analysed in the next section of this article.

Analysis on High Courts’ power to impose costs under CPC

Firstly, not all High Courts in India have ordinary original civil jurisdiction and hence civil suits cannot be filed directly in those High Courts. Only Delhi, Bombay, Calcutta, Madras and Himachal Pradesh High Courts have ordinary original civil jurisdiction in India. Hence, civil suits can be filed directly only in these 5 High Courts and all other High Courts only have appellate jurisdiction when it comes to civil suits.

As discussed in the earlier parts of this article, the concept of costs is provided under CPC and there is a limitation on the amount of money that can be imposed as costs for false or vexatious suits filed by a party. The maximum amount that can be awarded as costs for a false and vexatious suit is Rs.3000/- as per Section 35A of CPC.

It is well within the power of the High Court to dismiss the suit for lack of enough court fee or other defects and as a false and vexatious suit and impose costs in tune of Rs.3000/- but imposing anything above that is nothing but judicial overreach. It is pertinent to observe that the High Court cannot take the aid of Article 226 when it is working with CPC under its ordinary original civil jurisdiction and hence it has to abide by the provisions of CPC.

The current case of Juhi Chawla is a clear example of the Delhi High Court not abiding by the provisions of CPC in imposing the costs. In a civil suit filed under CPC, High Courts have very limited power to impose costs and the same has also been reiterated by the Hon’ble Supreme Court time and again in many of its judgements. Ashok Kumar Mittal v. Ram Kumar Gupta & Anr is one such case where Delhi High Court has imposed a cost of 1 Lakh rupees each on Plaintiff and Defendant for lying on oath. The Supreme Court has observed that while dealing with civil suits under CPC High Courts need to abide by the limit set under Section 35A of CPC. Further, the Supreme Court has once again reiterated the ration in Ashok Mittal judgement in the case of Sanjeev Kumar Jain v. Raghubir Saran Charitable Trust where a whopping 45 Lakh rupees was imposed as costs by the Delhi High Court. In this case, the Supreme Court has while setting aside the order related to costs, has strongly observed that the High Court cannot impose exemplary costs in a civil suit ignoring the limit of Rs.3000/- set in the CPC and further ordered the respondent to only pay Rs.3000/- as costs. Again, in the case of Vinod Seth v. Devinder Bajaj, the Supreme Court once again reiterated that the High Court needs to follow the statutory limit provided under CPC in awarding costs. The Supreme Court in this case has also observed that if a suit is governed by CPC, then no court can, merely because it considers it just and equitable, issue directions which are contrary to or not authorized by law.

Supreme Court’s Suggestions and 240^th Law Commission Report 2012

The Supreme Court of India on one hand is doing its job by not allowing the High Courts to exceed their powers beyond what is provided in the CPC while on the other hand, it kept on suggesting in numerous judgements that there should be change in the maximum limit of costs under CPC on a regular basis and that the present system is outdated and it is not deterring the false and vexatious suits or providing enough for expenses of the successful litigant prosecuting or defending the suit. The Supreme Court has proposed that (i) the upper limit under CPC be increased from the Rs.3000/- to at least Rs.1,00,000/- to effectively deter litigants from instituting false/vexatious suits and (ii) instead of awarding nominal costs, actual realistic costs be imposed, i.e., costs that are practical and costs that a normal advocate in a normal case of a particular nature would charge.

The Law Commission of India in its 240^th Report headed by Justice (Retd.) P.V.Reddy has endorsed the suggestions made by the Supreme Court regarding an increase in the upper limit to costs along with many other necessary changes to the current costs regime under the CPC, but till date, there has been no legislative action on these suggestions by the lawmakers.

Conclusion

It is pretty clear that India needs a big-time revamp in the costs regime under CPC and there is no arguing otherwise. The current regime is way outdated as the last amendment was made in the 1970s and the value of money has increased a lot since then. The Legislature needs to take the suggestions by the Supreme Court as well as the 240^th Law Commission Report and make necessary changes to the costs regime under CPC and make it more up to date and robust. Further, it is to be noted by the Legislature that while making the changes, aspects like court fees, advocates fees, duration of the proceedings and appropriate restitution for the successful litigant need to be considered. In absence of the necessary reforms the hands of courts are tied and the judges are powerless to dissuade/deter the false and frivolous litigation as the costs under the current regime are nominal.

Nevertheless, the trend that is being followed by courts more importantly by the High Courts with ordinary original civil jurisdiction by awarding exemplary costs by going beyond the Rs.3,000/- ceiling set in the CPC is not a good trend. Yes, it is just and equitable but at the same time it is judicial overreach and it sets bad precedents. This has been explained beautifully by the Supreme Court in Vinod Seth v. Devinder Bajaj where the apex court has quoted Benjamin N. Cordozo:

“The Judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to “the primordial necessity of order in social life”.

And observed that Judges can innovate, to discipline those whom it considers to be adventurers in litigation, but it has to do so within the four corners of the law. The Apex Court has further observed that “Hard Cases Make Bad Law” and quoted the dissenting opinion of Justice Holmes in Northern Securities Co. v. United States 193 (1903) US 197 that, A lawsuit involving equities that tempt a judge to stretch or even disregard a principle of law at issue but a Judge should not give in and take moral high ground.

Finally, I would like to conclude by stating that orders like the one in Juhi Chawla’s case by Delhi High Court, even if it has done for good purpose to deter the false and vexatious litigation, may lead to the public gradually losing faith in the judiciary and start seeking extra-judicial remedies like seeking the help of goons/mafia or police to settle their claims which will lead to break-down of rule of law. Hence, no order or direction of the High Court, even if it is intended to deter false and frivolous litigation, should lead to obstruction of access to courts and needs to be within the four corners of rule of law.

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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What does a grant of probate by a testamentary court establish : an insight

By

Oishika Banerji

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December 2, 2021

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This article has been written by Khan Saba pursuing the Certificate course in Real Estate Laws from LawSikho. This article has been edited by Prashant Baviskar (Associate, Lawsikho) and Zigishu Singh (Associate, Lawsikho).

Table of Contents

Introduction

Probate court is a branch of the legal system that handles wills, estates, conservatorships, and guardianships, as well as the placement of mentally ill people in facilities meant to help them. When wills are challenged, for example, the probate court is in charge of determining the legitimacy of the document as well as the mental soundness of the individual who signed it. The court also determines who receives what percentage of the deceased’s assets, depending on the instructions in the will or, in the absence of a will, other laws in effect. An individual begins the probate process by filing a petition with the state’s probate court system, which serves as the starting point for the procedure. This petition is often submitted by a family member of the deceased or by the executor or administrator of the deceased’s will and estate plan. The probate court subsequently makes an order appointing a person to serve as the executor or administrator of the deceased’s estate, and the process is completed. Among other administrative responsibilities, the executor or administrator is in charge of dispersing the deceased’s inheritance to the appropriate recipients after the death. A probate lawyer is frequently retained to assist with the nuances of the probate process.

The subject matter of a court’s proceedings is determined by its jurisdiction, and interim relief is issued to safeguard such subject matter. To determine whether a testamentary court has the authority to award interim relief, one must first grasp the jurisdiction of a testamentary court as well as the subject matter of proceedings before it. The probate court’s job is to ensure that a deceased person’s obligations are paid and assets are distributed to the right beneficiaries. The legal process of managing the assets and obligations left behind by a recently dead individual is referred to as probate. Probate is a comprehensive legal procedure that encompasses the general legal process of dealing with a deceased person’s assets and obligations, the court that oversees the process, and the actual distribution of assets. Each state has its own set of probate courts. Some states refer to it as a surrogate’s court, orphan’s court, or chancery court rather than a probate court.

What is the difference between Grant of Probate and Letters of Administration?

There are confusions and misunderstandings about inheritance procedures, so here we will explain the difference between the Grant of probate and Letter of Administration. When people die, their assets like property, bank account, personal belongings, etc. left behind is known as their Estate. In order to be able to handle the estate of the deceased, it is necessary to obtain a legal guardianship system from the probate court. The statutory guardianship system, issued by the real estate register, is known as the power of attorney that allows anyone involved in the real estate to close their bank accounts, redeem their investment and sell or transfer their real estate. The Grant of Representation is provided in two different forms i.e “Grant of probate” if the person dies with a will or “Letter of Administration” if the person dies without a will.

Grant of Probate

The property will only be issued to the executor nominated in the will. Once the executor has obtained the estate, she/he is legally authorized to manage the property and can initiate the redemption of the property and transfer to the beneficiary specified in the will. The court needs to make sure that the will is valid and that the appointed executor is the right person to handle the estate.

Real estate grant is a legal confirmation that the will is valid. When the grant is issued, it means that the will is officially registered and only the executor nominated in the will is authorized to manage the property.

Letter of Administration

Letter of administration is similar to a probate, but instead it is issued to a close relative of the person who died without a will. Letters of Administration is the document issued by the Probate Registry to the administrators authorising them to deal with the estate. This process however is not automatic and you need to apply for the letter to confirm that you are entitled to manage the estate.

This can cause problems if the family cannot agree on who is best to be an executor of the estate. Such disputes might take place and the financial cost can increase rapidly. Letter of administration can also be issued when a valid will is available but the executor nominated in the will did not apply for grant of probate. This may be in the scenario where the executor does not want to act as executor or she/he might have already passed away.

Case law : jurisprudence on jurisdiction of Probate Court

The Bombay High Court simply outlined the authority of a testamentary court in Balan Alias Balendu Jayant Sawant v/s. I.K. Agencies Pvt. Ltd. According to the law of testamentary succession, no matter what property is being bequeathed in a will, it does not have to be determined who owns it. This court’s only job is to determine if the deceased was of sound mind and capable of making a will and to ensure that the will is in line with the law. It only matters whether or not a person’s will is their final testamentary instrument, whether or not they were in a sound state of mind when they created it, and whether or not the will was properly executed and witnessed as required by law.

Rupali Mehta v/s. Tina Narinder Sain Mehta was a testamentary litigation in which the Plaintiff filed a Notice of Motion requesting for the appointment of a Court Receiver as well as other interim remedies in a testamentary suit. The Notice of Motion was dismissed because it was determined to be unconstitutional. The Bombay High Court conducted a thorough examination of the relevant articles of The Indian Succession Act, 1925, and the Code of Civil Procedure, 1908, in order to decide if the court has been granted the authority to intervene in order to preserve property rights in the case. Before presenting the ratio, a brief summary of the clauses under consideration has been provided.

The court has the authority to intervene in order to defend the property, according to Section 269 of the Act. This clause, on the other hand, does not apply in the event of a Hindu, Mohammedan, Buddhist, Sikh, or Jain who has died intestate, or in the case of a Christian who has died intestate. Additionally, Sections 192 and Section 193 of the Act make provision for summary procedures in the event that the deceased’s property is in urgent need of protection. These rules, on the other hand, can only be invoked when a person who has no legal claim to the property takes forcible control of it. After carefully examining all of the relevant clauses, the Court concluded that there was no provision in the Will permitting a testamentary court to issue interim orders as a matter of routine for the preservation of the estate’s assets while a testamentary suit was pending.

Despite the express provision of sub-section (2) of Section 269 to read a broad authority to provide interlocutory remedy in respect of property claimed to be part of the deceased’s estate into the provisions of Sections 266 and Section 268 prior to the issuance of probate, this interpretation is reinforced by the notion that the testamentary Court is primarily concerned with the genuineness and voluntariness of the deceased’s Will in probate procedures. The probate court has no jurisdiction over property-related issues. Though the Appellant made an assiduous effort to rely on the Act’s provisions, the Court is primarily concerned in this instance with the powers of the testamentary Court in exercising its authority in a petition for the award of probate. There can be no resort to the use of the Civil Court’s inherent powers in light of the specific provision contained in Section 269(2).

A testamentary court cannot provide interim reliefs because of the nature of the court’s jurisdiction and the subject matter of the proceedings. To protect the property of the deceased, a party seeking to have an administrator pendente lite appointed by the testamentary court, apply for summary proceedings under Section 192 of the Act if applicable, or seek interim reliefs from a civil court would have to successfully make out a case before the testamentary court.

Critical analysis and conclusion

The Grant of Probate empowers the personal representative to handle the deceased’s estate. With a Grant of Probate, you will be allowed to act in the deceased’s place, and organisations such as banking institutions will recognise your legal authority.

When a will exists and the individual applying for the grant is the personal representative specified in the will, a Grant of Probate is issued. If the individuals listed as personal representatives in the will are unable or unwilling to accept the appointment, another person may be given a Letter of Administration with the will Annexed. If no will exists, the court may grant a Letter of Administration.

Once probate has been completed, you or your solicitor will have the legal authority to govern the deceased’s estate, if you so choose (property, money and possessions). Depending on whether or not the individual left a will, you will get a grant of probate; if there was no will, you will receive a letter of administration.

If there is a will, a personal representative is also known as an executor, and if there is no will, a personal representative is known as an administrator. This individual is the one who will be in charge of managing the estate after the death of the testator. Understanding what a probate is and how it works is critical because it will help you understand what to do next after the probate has been granted.

It might be tough to contest a Will. In most circumstances, courts strictly enforce Wills since the testator is no longer there to defend himself. If you have an interest in the Will, you may contest it, and if you are successful in persuading the court, the Will can be annulled whole or partially. It is essential to get the opinion of a professional lawyer before contesting the Will, since the legislation governing Will challenges is intricate, and each situation is unique.

A legal Will must be written and signed in the presence of two witnesses, who must likewise testify to the Will. If the procedure is not strictly followed, the Will might be contested in court. People above the age of 18 are required by law to prepare a will. Adults are considered to have testamentary competence; however, the Will may be contested on the grounds of senility, dementia, insanity, or that the testator was under the influence of a drug or otherwise lacked the mental ability to write a Will.

It is possible to revoke a Will’s Probate under the terms of the Succession Act, but only if the person contesting the Probate can persuade the appropriate court that the revocation is required “for reasonable cause.” If you’re going to dispute a probate, you’re going to have to do it in accordance with the law of limitation, which states that any challenge to a probate that is time-barred can’t be accepted by any court of law. Furthermore, an order of revocation of the Probate would take effect immediately and would not erase any legitimate transactions made by the executor while the Probate was pending.

Seeking Probate of Will is a time-consuming operation that must be completed by the executor of the testator’s Will, and the testator must also invest time and money to pay court costs based on the value of the assets provided under the Will. However, as previously indicated, it is mandatory to seek Probate of Will only in specific instances, while it is not necessary to seek Probate of Will in other cases.

References

The Indian Succession Act, 1925
Balan Alias Balendu Jayant Sawant v/s. I.K. Agencies Pvt. Ltd.
Rupali Mehta v/s. Tina Narinder Sain Mehta
The law of wills was administered in the Court of Probate in England by F. A. Inderwick
The law relating to Hindu Wills including the Hindu Wills Act and the Probate and Administration act by Arthur Phillips.
A manual of the practice of the Court of Probate by Alexander Staveley Hill
N. Anand, D. Arora, Where There Is a Will, There Is No Way: COVID-19 and a Case for the Recognition of E-Wills in India and Other Common Law Jurisdictions 27, ILSA J. Int’l & Comp. L 77 (2020). (Hereinafter “N. Anand, D. Arora).

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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Crown-jewel strategy

By

Shoronya Banerjee

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December 2, 2021

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This article is written by Naimishi Verma, pursuing a Diploma in M&A, Institutional Finance, and Investment Laws (PE and VC transactions) from LawSikho. The article has been edited by Tanmaya Sharma (Associate, LawSikho) and Ruchika Mohapatra (Associate, LawSikho).

Table of Contents

Introduction

Hostile takeovers have been a part of M&A transactions for a very long time. As per M&A terminology, a hostile takeover refers to the acquisition of a target company by an Acquirer without the acquirer seeking the permission of the target company and directly approaching the shareholders. A hostile takeover comes into existence when the initial offer has been rejected by the target company. In simple terms, when an acquirer receives disapproval from the target company regarding the acquisition, there arises a possibility that the proposed acquisition will become hostile. One of the reasons for such hostile takeover is that acquisitions and mergers allow companies to increase their overall performance by expanding and diversifying their businesses and reducing competition.

However, the target companies also have the right to avoid any such hostile takeover by the acquirer. There are many hostile takeover strategies that target companies can make use of to prevent unwanted acquisitions. One of such strategies is the crown-jewel strategy which allows for target companies to sell off their assets in order to maintain a low profile and make it less desirable in the corporate world so that they are able to avoid any kind of acquisitions by larger companies.

How does this process work?

Crown-jewel strategy can be described as an anti-takeover strategy that is used by the target company to prevent the hostile takeover of the company. Under this strategy, the target company tries to sell off its most valuable assets in order to become a less attractive acquisition target in the market and to avoid a hostile takeover. The valuable assets of the target company are sold to a third party and this third party is known as ‘white knight’. This strategy compels the hostile bidder to withdraw from the bid. Crown jewel strategy is a self-destructive strategy and after the hostile bidder withdraws from the bid, the target company again purchases the assets from the third party at a predetermined price.

In order to understand how this defence strategy works, it is important to understand the meaning of crown jewel. Crown jewels are the most valuable and important assets of the company in terms of profitability, future business prospects and asset value. The intention behind this kind of strategy is to prevent the hostile company from taking over the target company. The target company not only sells the crown jewels but also ends up selling the properties that diminish its worth in the market. This approach has often been labelled as the radical ‘scorched earth approach.’

Taking two companies, Company X and Company Y, the process involves-

Company X makes a bid to acquire Company Y.
However, Company Y rejects the bid.
In order to acquire Company Y, Company X offers a 25% premium to buy the shares of the company.
In this situation, Company Y will resort to a crown jewel defence strategy and reach out to a friendly third party, say Company Z, and enter into an agreement with it to sell the crown jewels of the company and the properties in order to diminish its worth in the market.
The agreement signed between Company Y and Company Z states that Company Y will buy back its assets at a predetermined price once Company X withdraws the bid.
Since Company Y sold off its most valuable assets, the market standing of the company diminished and Company X withdrew its bid as it became less attractive for acquisition.
Now that Company X has retracted from the bid, Company Y will buy back its assets at a predetermined price.

Advantages and disadvantages of crown jewel strategy

Advantages of crown jewel strategy

Crown jewel defence is the strategy under which a popular group can buy a major portion of the target company at a price that is less than the market price.
It gives an added advantage to the target company as it reduces its attractiveness in the market and avoids unwanted customers.
A good strategy for those who want to avoid a hostile takeover.

Disadvantages of the crown jewel strategy

It is considered to be a dangerous strategy as it ruins the worth of the company in the market.
The presence of a third party or the white knight is significant as in the absence of it, the company would lose all of its valuable assets.
As assets include tangible as well as intangible assets, assets like intellectual property, trade secrets, patents, etc. might lead to a revelation of the secrets of the company during the transfer of assets to the third party.

Applicability in the real world

As mentioned, crown jewels are the most valuable units of a company. These could be any line of business or department that is most profitable or holds great value as compared to the other departments. Crown jewels are the assets that a target company sells in order to protect itself from a hostile takeover. These assets include tangible as well as intangible assets like intellectual property, patents and trade secrets. Hence, a company can also sell its intangible assets to another company (third party) to make it less desirable in the eyes of other companies in the market. These crown jewels are heavily guarded by the company as they are worth a lot of money. Only certain people of the corporation are aware of the intellectual property and trade secrets so as to protect such information from the competitors.

For instance, in a consultancy firm, research and development is the most valuable department and is, therefore, termed as the company’s crown jewel. When a hostile bid is made, then, to protect itself from such an unwanted takeover, the company will sell its research and development department to another company or make it a separate entity. A company can make use of this strategy by generating anti-takeover clauses which will compel the company to sell off its crown jewels during a hostile bid. Some examples where companies have employed this strategy in the real world are-

Suez-Veolia case: These are the two water and waste management leaders in France. In the year 2020, Veolia made an attempt to take over Suez by purchasing 29.9% of the stocks for $3.4bn and Suez tried the crown jewel strategy as a defence move.
Sun Pharma-Taro case: Sun Pharma and Israeli company-Taro entered into an agreement in the year 2007 related to a merger. However, there were some violations on the part of Taro and therefore, the agreement was terminated unilaterally with Sun Pharma. The Supreme Court of Israel passed an injunction against Sun Pharma for non-closure of the deal. In order to keep away Sun Pharma, Taro employed strategies like crown jewel defence and sold off its Irish unit.

Conclusion

The sale of crown jewels is considered to be a risky process. As per experts, companies, in order to protect themselves from acquisition, tend to nearly kill their own company by selling off their assets at a predetermined price and then buying them at a premium. Not only this, but by selling off their intellectual property and trade secrets, the company is indirectly sharing its own confidential information with another company, which harms the reputation and standing of the company in the corporate world. This strategy should be used with utmost care and caution to ensure that it does not harm the company.

Therefore, a defence strategy like the crown jewel strategy has always acted as a shield and protected target companies from hostile takeovers by larger companies. Hostile takeovers are discouraged in the market through the presence of such strategies and provide protection to the weaker/smaller target firms to analyze their own business structure and maintain their identity in the market by avoiding such hostile takeovers by bigger companies. Where the right of taking a company in a hostile manner has been given to the larger companies, the remedy to avoid it has been given to the target companies.

References

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Umair v. State : case analysis

By

Rachit Garg

-

December 2, 2021

0

This article is written by Dnyaneshwari Patil, from RTMNU Babasaheb Ambedkar College of Law, Nagpur. In this, she analyses the judgement passed by the Delhi High Court in Umair vs State regarding the inherent power of the High Court and recent Supreme Court judgements on similar matters.

Table of Contents

Introduction

The inherent power of the High court under Section 482 of the Code Of Criminal Procedure, 1973, is extraordinary and needs to be exercised with great caution, care, and circumspection before undertaking the scrutinisation of the complaint/FIR/charge-sheet in deciding whether the case falls under exceptional circumstances. Section 307, which is an attempt to murder, is a non-compoundable offence. Non-compoundable offences are more severe and grave in nature in which both the parties and the society at large are affected. In this, the accused cannot be allowed to be free with some settlements. In Mohammed Umair v. State and Anr (2021), the impugned question was whether the High Court of Delhi could exercise its jurisdiction under Section 482 Cr. P.C to quash the FIR on the ground that the parties have entered into a compromise.

Facts of the case

When the accused was disputing with his mother, the complainant urged him not to argue with his mother; however, the accused began abusing and assaulting the complainant and fought with him. It was alleged that the accused slapped the complainant, and when the crowd gathered around them, the accused threatened the complainant and went to his home. It was alleged that the accused stabbed the complainant in the stomach. According to the MLC doctor, the current case is one of a physical attack with a reported stab wound in the abdomen. The incident happened near the home address. A charge sheet has been filed against the complainant mentioning that he has sustained severe injuries. Later, the accused/petitioner was granted bail. This petition was filed on the pretext that the parties had agreed to settle their issues after the engagement of their parents and well-wishers. A settlement deed was also filed.

The decision of the Court

Putting reliance on the case of Gian Singh v. the State of Punjab (2012), in which the power to quash an FIR/complaint, based on a compromise reached between the parties, by the High Court under Section 482 Cr. P.C was held in affirmative. It quoted that, “Inherent power is of wide plenitude with no statutory limitation, but it has to be exercised in accord with the guideline engrafted in such power viz:

(i) To secure the ends of justice, or

(ii) To prevent abuse of the process of any court.

In what cases power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and the victim have settled their dispute would depend on the facts and circumstances of each case, and no category can be prescribed.”

The court took into consideration that the accused was a 21-year-old adult, having a whole life before him, without any criminal antecedent, and he had not absconded. After the perusal of the charge sheet, it was found that the complainant slapped the petitioner. Consequently, the petitioner felt insulted and therefore, he took a knife from a vegetable vendor and stabbed the complainant in anger. Both the parties live in the same area. The accused have already spent a month in custody. Thus, the court held that they are inclined to quash the FIR under Section 482 as the 21 years old adult has an entire life ahead of him, and the parties have entered into a settlement.

Analysis

The Court referred to various judgements, including the case of Gian Singh v. The State of Punjab (2012). In the said judgement, the Court held for refraining from quashing criminal proceedings if the offence committed is of a serious nature or when the public interest is involved. However, if the offence is of civil nature, or if the possibility of the conviction is remote and the continuation of the proceedings will bring about grave injustice to the accused, then the High Court may quash the criminal proceeding.

The High Court referred to the case of State of Rajasthan v. Shambhu Kewat (2013), where it was observed that the scope of Section 320 and 482 Cr. P.C. are both similar and different. There are both similarities and differences between compounding and quashing of cases on the basis of compromise, and therefore the High Court has the sound discretionary power to quash the criminal proceeding in view of a compromise. The power under 320 is cribbed, cabined, and confined, whereas Section 482 is vast, unparalleled, and paramount. The Criminal court power while compounding an offence is limited by Section 320 of Cr. P.C., and is guided totally through it, while the material on record drives the inherent power of the High Court to form an opinion on whether or not to quash a criminal complaint. The exercising of this power is to meet the ends of justice, even though the ultimate effect of this may be acquittal or dismissal of an indictment.

Similarly, in Narinder Singh v. the State of Punjab (2014), the Supreme Court held affirmative that the High Court can quash the criminal proceedings in case of non-compoundable offences in exercising its inherent power under Section 482 of the Cr.P.C. It took into consideration the Gian Singh Case. However, it further held that the inherent power should be used cautiously. Even if the offence under Section 307 is severe, the court makes sure whether the incorporation of Section 307 is for the namesake or there is adequate evidence to show it.

Guidelines laid down by the Supreme Court

In the State of M.P. v. Laxmi Narayan (2019), the larger bench of the Supreme Court laid down specific guidelines by which the High Court can settle the disputes between the parties while exercising power under Section 482.

Whether the offence committed is a crime against the society or an individual

The inherent power of the High court should not be exercised in those prosecutions where the offences are of severe nature, such as murder, rape, dacoity, etc., or offences of extreme mental depravity. These offences are not private but have an immense impact on society at large.

Whether the offences are predominantly civil in nature or criminal in nature

Those criminal cases that are primarily civil in nature, such as conflict arising out of commercial transactions, or family disputes, or marital relationships should be quashed if the parties have settled the dispute among themselves.

Heinous and serious offences

The High Court should refrain from quashing criminal proceedings of severe and heinous crimes. Offences under Section 307 of the IPC fall under this category. However, the decision should not be rested merely on the fact that the offence falls under Section 307 of the IPC but whether the incorporation of Section 307 is solely for namesake or there was substantial evidence to prove it. Thus, regarding this, the High Court looks into the injury’s nature, such as whether the injury is on the vital organ or not, nature of the weapon used, etc. Although the inherent power can be exercised only after the evidence is collected through investigation and the charge sheet is filed, not when the matter is still under investigation. Whether the chances of prosecution are strong or bleak should also be a guiding factor in deciding the impugned question.

Special statutes

The High Court must refrain from quashing the criminal proceedings if the offences fall under a special statute like the Prevention of Corruption Act,(1988), or are committed by the public servant while working in that capacity.

Conduct and antecedent of the accused

The offences conducted are private in nature and do not affect society at large. In this, the court should take into consideration the antecedent of the accused, the conduct of the accused, whether the accused absconded, if he did, then why did he abscond? How did the accused manage to enter into the settlement in the first place? etc.

Recent judgements passed by the Supreme Court on a similar subject

State of Madhya Pradesh v. Kalyan Singh (2019)

In this case, the state filed an application against the High Court, which ordered the quashing of a criminal proceeding against an accused under Section 307, 294 and Section 34 of the Indian Penal Code. The Supreme Court held that the High Court made a grave mistake in quashing the criminal proceeding under Section 482 by taking note of the accused’s criminal background. Further, it reiterated the observations made in Gulab Das and Ors. Vs State of Madhya Pradesh (2011), where it was held that despite the settlement between the parties, the offences that are not compoundable under Section 320 Cr. P.C cannot be allowed to be compounded.

Ramawatar v. State of Madhya Pradesh (2021)

In this case, a civil dispute arose between the appellant and the complainant over the ownership and possessory rights of a piece of land. Further, it took an ugly turn, and the appellant allegedly threw a brick on the complainant and made slur remarks on her caste. Thus the complainant filed an FIR under the Schedule Caste and the Scheduled Tribes ( Prevention of Atrocities Act ), 1989 read with Section 34 of IPC. The trial court convicted the accused and sentenced him to undergo imprisonment for six months along with a 1000 Rs fine. The appellant challenged the conviction before the High Court; however, the same was dismissed. Before the Supreme Court, it was submitted that the matter had been settled between the parties; further, an application was filed for compromise.

The impugned question raised was whether criminal proceedings arising out of Scheduled Caste and the Scheduled Tribes ( Prevention of Atrocities Act ), 1989, can be quashed, invoking the power under Section 482 Cr.P.C. and Article 142. It was held that the sole fact that the offence falls under the special statute would not refrain the High Court from exercising power under Section 482 of Cr.P.C. and Article 142 of the Constitution. The Court held that when the offence is of private or civil nature and is not committed due to the caste of the victim, even though the offence comes under the SC/ST Act, and further also the Court believes that the objectives of the Act would not be in contravention even if the impugned offence goes unpunished, then the Court can consider quashing under the said Section.

Conclusion

The Judgement passed by the High Court in Umair vs State is not bad in itself. The Court took into consideration the young age of the accused, who has a whole life waiting for him. However, the inherent power should be used with caution while quashing the FIR/charge-sheet of criminal proceedings, especially non-compoundable offences when the parties have entered into a compromise. In the above case, the accused, in a fit of anger, allegedly stabbed the victim with a knife. The act itself is a severe step taken by the accused in a fit of rage. However, a person capable of stabbing a person in the abdomen due to which the victim suffered severe injuries should not be allowed to be set free after a month of staying in custody. By considering all the facts the court, instead of quashing the criminal proceedings, Court could have decreased the quantum of the punishment given to the accused.

Reference

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Society’s consent in marriage of two consenting adults : a growing issue in India

By

Diva Rai

-

December 2, 2021

0

658539-wedding — Image source - https://bit.ly/3pkmnSy

This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article discusses society’s consent as a hindrance in the marriage of two consenting adults thereby leading to the contravention of both fundamental and individual rights of the adults.

Table of Contents

Introduction

Marriage has been and remains an integral part of Indian society. In India, marriage is a sacrament as it takes place not between two individuals but between two families, and therefore, this sacrosanct union of two individuals comes with certain challenges with respect to society and its perception of marriage. The institution of marriage, like other social phenomena, has been undergoing significant changes. Taking the children’s opinions for their marriage, the marriage’s diminishing stability, and the bridegroom’s family’s increased greed are some of the visible changes in the institution of marriage. Economic progress, technological advancements, greater materialism in society, and legislative attempts are only a few of the significant causes that have led to changes in the institution of marriage.

The Hindu Marriage Act, 1955 recognizes marriage as a contract between two individuals and thus abiding by Section 10 read with Section 14 of the Indian Contract Act, 1872, free consent between the parties is an essential ingredient of a valid contract. Although Indian law clarifies the need for free consent between the parties getting married, society’s beliefs and thought-process often overpower legal force. The judiciary has many times stepped in to avoid existing laws from getting degraded by stringent ignorance from the people of the society. This article intends to highlight how society’s consent holds more face value in comparison to the consent of two adults wanting to get married with respect to India and how the Indian judiciary has time and again arrived at such scenarios protecting the consenting adults from facing unnecessary harassment.

Society and marriage : the age-old friendship

Fundamentally, marital relationships govern human behaviour amongst people of different sexes. It has evolved and progressed in tandem with humanity’s socioeconomic advancement. It’s a social proclamation of a new connection. It has a significant influence on social welfare since it is a demographic occurrence. Kinship is seen as a primary realm of the kinsmen. The kinship system, which is made up of families and other forms of kin groups, is one of the most essential structural subsystems of any civilization.

Because not everyone can afford a socially acceptable union, family, community, and clan, rebellions become unavoidable. Without the backing of their families, many couples marry in small, private ceremonies, while others forgo even that formality and begin living together. This ‘disobedience’ to community standards is sometimes regarded as so dangerous that the family believes the only way to redeem themselves is to engage in ‘honour killing.’ The Indian courts, notably the constitutional courts, have consistently defended the rights of couples who engage in such daredevilry, especially against anticipated murder. But a recent judgment delivered by the Punjab and Haryana High Court has brought in serious concerns on the citizen’s hope about the Indian judiciary.

The High Court of Punjab and Haryana declined to provide protection to a live-in couple on the grounds that the Petitioners sought a ‘stamp of approval’ on their live-in relationship under the guise of requesting protection, putting their lives at risk. The Court’s remark has pierced the reasonable society’s conscience. When the couple sought the High Court in need of protection after leaving their community’s orthodox and life-threatening clutches, it was the court’s constitutional responsibility to preserve their life and liberty in line with the law, rather than relying on supposed morality. This is a textbook example of egregious injustice that requires the Supreme Court’s quick involvement.

Legal protection available for consenting adults getting married

Unlike Article 16 of the Universal Declaration of Human Rights, the Indian Constitution does not specifically recognize the freedom to marry as a fundamental or constitutional right. Marriage is controlled by many statutory enactments, but its recognition as a Fundamental Right has only come about as a result of Supreme Court judgments in India. Article 141 of the Constitution makes such a statement of law binding on all Indian courts.

Article 21 of the Indian Constitution guarantees the Right to Marry the person of one’s choice. The Right to Life is guaranteed by the Constitution. This privilege may only be taken away by legislation that is substantively and procedurally fair, just, and reasonable. Intrinsic to the liberty which the Constitution guarantees as a Fundamental Right is the ability of each individual to make decisions on matters central to the pursuit of happiness.

In Justice KS Puttaswamy (retd) and others v. Union of India and others (2018), a Constitution Bench of nine Justices of the Supreme Court of India dealt extensively with the issue of choice. The Court had unanimously concluded that “the Right to Privacy is safeguarded as an integral aspect of the Right to Life and personal liberty under Article 21,”. In paragraph 81 of Justice Dr. DY Chandrachud’s majority opinion, the Court stated that the fundamental Right to Privacy in India would cover at least three aspects:

Privacy of the person,
Informational privacy, and
Privacy of choice, which protects an individual’s autonomy over fundamental personal choices.

The third point among the aforementioned points includes the Right to Marry a person of his or her own choice.

The Prohibition of Child Marriage Act, 2006, the Guardians and Wards Act, 1890, the Majority Act, 1875, the Family Courts Act, 1984 and the Protection of Women from Domestic Violence Act, 2005 are other notable legislation existing in India that stands for a person’s Right to Marry. Thus not only do we have statutory provisions promoting the Right to Choose and Marriage as an integral part of the Right to Life and Personal Liberty, but the Indian courts have also delivered progressive judgments that have remained robust precedents to abide by in this regard.

Growth of Khap Panchayats and their dominance

Khaps are caste and community-based assemblies in northern India that have a voice on a variety of topics, including marriage, dowry, and children’s education, based on ancient practices. They are mainly composed of senior men from the Jat group. The Supreme Court had ruled in Shakti Vahini v Union of India & ors (2018), that any attempt by Khap Panchayats or any other assembly to hinder or prohibit two consenting adults from marrying is totally ‘illegal,’ and established preventative, corrective, and punitive measures in this respect. The Court’s decision was based on a petition brought by Shakti Vahini, a Non-Governmental Organization (NGO) in 2010. The Petitioner had asked the Court to order the states and the federal government to implement a strategy to prevent honour murders.

The Indian courts and their viewpoint on consenting adults wanting to get married

The Supreme Court, as well as other Constitutional Courts, have often recognized that a static judicial interpretation of the Constitution would suffocate the spirit of the Constitution in a country undergoing fast social and economic development. A citizen of India has the Right to Protect their own privacy, as well as the privacy of their family, marriage, reproduction, maternity, child-bearing, and education, among other things. The freedom to marry a person of one’s choice is enshrined in Article 21 (Right to Life and Liberty) of the Constitution, according to the Supreme Court, which overturned a Kerala High Court ruling that annulled Hadiya and Shefin Jahan’s marriage in 2017. Two distinct lengthy concurring judgments were issued by the three-judge bench, one by Chief Justice Dipak Misra and Justice A M Khanwilkar and the other by Justice D Y Chandrachud.

Lata Singh v. State of Uttar Pradesh (2008)

Lata Singh v. State of UP, a 2006 case involving an inter-caste marriage, was one of the early instances dealing with society’s barriers to adults getting married with mutual free consent. The Supreme Court ruled that because the Petitioner was a major, she had the Right to Marry whoever she chose and that there was no statute prohibiting an inter-caste marriage. The verdict, on the other hand, was limited to the facts of the case and did not constitute a “statement of the law” by the Court. The Court did, however, specifically accept the Petitioner’s ability to pick her own spouse.

Re: Indian Woman says gang-raped on orders of Village Court published in Business & Financial News (2014)

Newspaper reports of a 20-year-old Indian woman being gang-raped on the instructions of a village court were taken up by the Supreme Court suo motu. Because the woman had a connection with a man from a different caste, the local court or community panchayat issued their penalty. The Supreme Court emphatically stated that “An intrinsic part of Article 21 of the Constitution would be the freedom of choice in marriage. Such crimes are the outcome of a State’s ineptitude or unwillingness to defend its citizens’ Fundamental Rights. Article 21, which deals with the Right to Life and Personal Liberty, is a broad article that encompasses the inalienable Right to Marry the person of one’s choice”.

Mayra Alias Vaishnavi Vilas Shirshikar and Anr v. State of UP and Ors. (2021)

The Allahabad High Court, in an extremely commendable, courageous, cogent, composed, and convincing judgment titled Mayra alias Vaishnavi Vilas Shirshikar and others vs State of UP and others (2021), dealt with a batch of 17 petitions that were concerned with an interfaith marriage contracted by the Petitioners who sought protection from the Court, while underscoring that Uniform Civil Code (UCC) is long overdue thereby calling upon the Central Government to implement the mandate of Article 44 of the Constitution of India. The Hon’ble High Court made the following observations:

The State and private respondents are prohibited from interfering with the Petitioners’ Right to Life, Liberty, and Privacy as men and women. Taking the same into account, the Court ordered that the Petitioners’ safety and protection should be ensured by the police authority of the individual districts whenever asked or required.
Once the two adult persons agree to engage in valid and legal matrimony, the consent of the family, the community, the clan, the State, or the Executive is not required. Their willingness must be delivered piously, gracefully, and dignifiedly. The Marriage Officer/Registrar cannot refuse to register a validly solemnized marriage and/or demand that the district authority approve the conversion in case of inter-faith or inter-caste marriages.
The duty of the court is to uphold the right and not to abridge the sphere of the right unless there is a valid authority of law. The choice of a partner, whether within or outside marriage, lies within the exclusive domain of each individual.
Marriage’s intimacies are contained inside an inviolable zone of seclusion. Questions of faith have no bearing on an individual’s full freedom to pick a life partner.
Interfaith marriage is not prohibited by the Unlawful Conversion Act of 2021. The Marriage Registrar/Officer does not have the jurisdiction to refuse to register a marriage simply because the parties have not secured the requisite conversion consent from the district authorities. This type of permission is optional and not required. If construed otherwise, the Act would fail to pass the rationality and fairness test and would fail to meet the requirements of Article 14 and Article 21 of the Indian Constitution.

Swaleha Hussain v. State of Uttarakhand & another (2021)

“Adults, of course, have the freedom to marry whoever they want. As a result, neither family members nor acquaintances of the family should use any form of pressure” stated a Bench of Chief Justice Raghvendra Singh Chauhan and Justice Alok Verma of the Uttarakhand High Court in a recent case of Swaleha Hussain v. State of Uttarakhand & another (2021). The Uttarakhand High Court ordered the Uttarakhand State and the Director-General of Police to ensure that if a complaint is received about threats made to a young couple or those about to marry, an FIR is supposed to be filed right away, and severe action is to be taken against the perpetrators.

Significantly, the Court noted that it is inundated with criminal applications from those who are about to get married or who have already got married. In many of these situations, the Court remarked that people who are engaged in an inter-caste and inter-community marriage, or marriage against the family’s desires, face threats from family members or anti-social groups.

Navjet Singh Johar and others v. Union of India (2018)

A five-judge Constitution Bench of the Supreme Court of India in Navjet Singh Johar and others v. Union of India (2018) declared Section 377 of the Indian Penal Code, 1860, a colonial-era provision that criminalized homosexual relations, unconstitutional to the extent that it prohibited voluntary sexual intercourse between two consenting adults. Whether the Right to Marry exclusively applies to heterosexual couples rather than same-sex couples was answered by the Court in this landmark decision.

Justice Chandrachud in the present case had observed that members of the LGBT community “are entitled, like all other citizens, to the entire spectrum of Fundamental Rights, including the liberties protected by the Constitution, as well as equal citizenship and “equal protection of the law.” As a result, once members of the LGBT community are “entitled to the entire spectrum of constitutional rights,” it is clear that same-sex couples planning to marry must be granted the basic right to marry the person of their choice. If such a right is denied, individuals can undoubtedly go to the constitutional courts to have their fundamental and inherent rights enforced.

Conclusion

It is extremely necessary for a society and its people to think progressively when it comes to matters of societal importance. Over-concern about the marriage of two consenting adult individuals often takes a back step in the process of societal development. Education and awareness are the two key elements that can contribute to regulating positive changes within a society thereby helping in the metamorphosis of the thought-process of individuals of every age group living in a society. Laws can help to be a catalyst in driving the society towards an optimistic outlook to some extent, but it is the perception and mindset that needs to change for this Indian society when it comes to marriage.

References

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Critical analysis of Egypt’s new cyber law

By

Rachit Garg

-

December 2, 2021

0

This article is written by Smaranika Sen from Kolkata Police Law Institute. This article deals with Egypt’s cybercrime laws.

Table of Contents

Introduction

We are now almost at the end of 2021, and every aspect of our lives is somewhat dependent on the internet. The pandemic showed us that almost everything under the sky is possible, starting from work from home to online health checkups and so on, the list never ends. However, as we know that every coin has two sides, the same is true with the enormous growth of the internet. In 2020, the commission of cybercrime was rampant worldwide. Research by Deep Instincts showed that in the year 2020, the malware increased by 358% overall and ransomware by 435% as compared to 2019. Some other highlights of the research were: cyberattacks on Android phones were 263%, manipulation of Microsoft Office documents by 112%, malicious activity almost 653%.

Thus, with the advancement of technology and the reign of the internet all over the world, it is crucial to have legislation in the cyber arena. Lately, Egypt has introduced its new cyber laws. A lot of discussions, controversies have been observed regarding this new cyber law. Through this article, I will analyze, and try to highlight the key features of Egypt’s new cyber law.

Anti-Cyber and Information Technology Crimes Law

This Anti-Cyber and Information Technology Crimes Law (Law No. 175 of 2018) was introduced in Egypt on 15th August 2018. The purpose of the enactment of the law was to regulate internet activities, complement the media, and the press laws in Egypt. This law has emphasized deeply the activities of media and the press; especially penalizing the production of fake news, unlicensed online activity, etc.

Overview of the law

The law is composed of 45 Articles. The authority of the law is the National Telecommunication Regulation Authority of Egypt and the competent Minister is the Minister of Communications and Technology Affairs of Egypt. The law is addressed to:

Both natural and legal persons
Managers of legal persons
Internet service providers
Web administrators
State officials

The law penalizes various crimes like crimes related to the infringement of:

Surpassing the Right of Access
Unlawful sniffing
Data, information, and information systems integrity
Website design
State information systems
Information network integrity
Privacy and unlawful information content

Highlighting provisions of the law

Encroaching on the security of information networks, systems and technologies

This provision is contained in Article 13 of Chapter 1. It recognizes the crime of unrighteous benefit from the telecommunications and information services and the technology thereof. The provision states that if any person is found out unduly using any network system or any means of information technology in communication services, audio services, or visual broadcasting channel, they will be punished with imprisonment with not less than three months along with a fine ranging from not less than ten thousand Egyptian Pounds to not more than fifty thousand Egyptian Pounds. Based on the crime, the punishment can also be either of these two penalties.

Crimes committed by information systems and technologies fraud and encroachment

This provision is contained in Article 23 of Chapter II. It mostly recognizes crimes against credit cards, services, and electronic payment tools. This provision states that any person who is caught unduly accessing numbers and data of bank credentials, or of any modes of e-payments will be punished with imprisonment with not less than three months along with a fine ranging from not less than thirty thousand Egyptian Pounds to not more than fifty thousand Egyptian Pounds. Based on the crime, the punishment can also be either of these two penalties.

If it is found that the person has committed such crime in the view of obtaining funds or services from a third party, then such person will be punished with imprisonment with not less than six months along with a fine ranging from not less than fifty thousand Egyptian Pounds to not more than one hundred thousand Egyptian Pounds. Based on the crime, the punishment can also be either of these two penalties.

If it is found that the person has committed such a crime of obtaining funds and services from a third party and has been able to seize such funds and services for himself or for anyone else, he will be punished with imprisonment not less than one year along with a fine of not less than one hundred thousand Egyptian Pounds.

Crimes related to invasion of privacy and illegal content

This provision is contained in Article 25 of Chapter III. The provision states that if anyone is found infringing any family principle or value of Egyptian society, or sells any private data to any website or e-system without one’s consent, or sends an email without one’s consent, or publishes any kind of information or image which is personal without such person’s knowledge irrespective of the fact that such information is true or false; he will be punished with imprisonment with not less than one year along with a fine ranging from not less than fifty thousand Egyptian Pounds to not more than two hundred thousand Egyptian Pounds. Based on the crime, the punishment can also be either of these two penalties.

If any person has committed this crime against any public legal person, then such person will be punished with imprisonment along with a fine ranging from not less than one hundred thousand Egyptian Pounds to not more than three hundred thousand Egyptian Pounds. Based on the crime, the punishment can also be either of these two penalties.

These were some of the crucial offences that were recognised in the anti-cybercrime law of Egypt.

Critical evaluation of the law

As already stated above, cyber laws are very important for every State now. However, it goes without saying that every legislation must be enacted and implemented in such a way that it is beneficial for the common people. At times, it is observed that certain legislations are implemented in such a way that it becomes detrimental rather than beneficial to commoners.

Regarding the anti-cybercrime laws of Egypt, a lot of protests, debates, and discussions took place. Let us analyze the issues in detail below:

What is the issue

Censorship

The most critical issue that had been observed regarding this law was the legalization and the reinforcement of censorship. According to a statement published by Reporters Without Borders, the anti-cybercrime law legalized and reinforced censorship along with blocking websites. It also criminalized the usage and operation of these websites. Article 7 states the procedures and decisions issued in respect of the site block writs. It states that if any broadcasting of websites both inside or outside the State display any images, films, or public materials etc., or jeopardizes national security or is in contravention with this law, then such broadcasting would be deemed as an offence. In such situations, the Government grants the investigating authority the power to block those websites.

Public reaction

Various citizens and especially the media personnel and journalists have emphasized the point that these provisions are curbing the right to freedom and expression. The ambit of threat to national security is too widened to the extent of curbing commoner rights. Some people have stated that previously, in Egypt a lot of sites have been blocked under the purview of security reasons and authorities have arrested various news journalists, news bloggers, news editors, satirical bloggers, etc. Even a mere visit to a banned website is a punishable offence.

Increased liability of web administrators and managers

Another critical issue faced by this law is the provisions related to the liability of web administrators band managers. Article 27 of the law deals with crimes committed by the site administrator. It states that any person who manages, creates, or uses any website or private account which aims to commit any punishable crime or facilitates to do the same, then such person will be punished. The accused will be punished with imprisonment with not less than two years along with a fine ranging from not less than one hundred thousand Egyptian Pounds to not more than three hundred thousand Egyptian Pounds. Based on the crime, the punishment can also be either of these two penalties.

Article 29 states that if any person responsible for managing a website or private account or information system or email exposes the same to crime then such person will be punished with imprisonment with not less than one year along with a fine ranging from not less than twenty thousand Egyptian Pounds to not more than two hundred thousand Egyptian Pounds. Based on the crime, the punishment can also be either of these two penalties. It further states that if someone commits the same due to negligence, then such person will be punished with imprisonment with not less than six months along with a fine ranging from not less than ten thousand Egyptian Pounds to not more than one hundred thousand Egyptian Pounds. Based on the crime, the punishment can also be either of these two penalties

Article 35 states the criminal liability of legal persons. It states that if the manager of legal person becomes aware of the fact that certain entities or websites have been victims of crime and does not inform the same competent authority, then such person will be punished with imprisonment with not less than three months along with a fine ranging from not less than thirty thousand Egyptian Pounds to not more than one hundred thousand Egyptian Pounds. Based on the crime, the punishment can also be either of these two penalties.

Article 36 states that if the manager of the legal person is aware of the crime or facilitates the crime in the view of obtaining the interest of himself or for a third party, then such person will be punished with a similar penalty as imposed on the original perpetrator of the crime.

People’s reaction

The provisions as stated have triggered a lot of people and enhanced public debate. Their question was that, will the managers or owners, or admins of any websites face criminal liability for any user-generated crime. According to certain people, the law could prosecute them. However, it can be stated that Article 27 gives a very broad spectrum to state offences. Thus, a lot of acts come under the purview of it, even though from a general perspective, it cannot be treated as a criminal offence. A narrow interpretation could have been beneficial. The broad spectrum of Article 27 could also hold web administrators liable for such acts which are technically beyond one’s control.

Other issues

Articles 25, 29, and 39 are defined very broadly. The interpretations might be victims of a lot of mistakes. Therefore, more narrowed or accurate definitions could be beneficial.

Conclusion

The anti-cybercrime law of Egypt has certain provisions which are too broad to be accurately interpreted. The issue regarding censorship cannot be overlooked as Egypt ranks 166th out of 180 countries in the World Press Freedom Index. It clearly shows that the journalists there are not given enough freedom to free speech and expression. However, it goes without saying that a proper judgment regarding this law could only be given after its implementation in the country for some time.

References

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Essential clauses in a trademark licensing agreement

By

Shoronya Banerjee

-

December 2, 2021

0

This article is written by Aditya Rastogi, pursuing a Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho.

Table of Contents

Introduction

Trademark licensing is one of the most common methods of monetising the intellectual property of individuals. Organisations, by licensing the trademarks which are owned by them, grant the licensee with the right to use their respective registered trademark. In the year 2020, Hero MotoCorp and Harley-Davidson entered into a licensing agreement through which Hero MotoCorp was granted the exclusive right to develop and sell premium motorcycles under the Harley-Davidson brand name. Similarly, Walt Disney also licensed its relative trademark to its producers so that they could use the mark on agreed products.

A huge number of brands are choosing to license their respective trademarks in order to expand their businesses as well as to generate greater revenue from their own brand name. The most common and important factor in a business arrangement is the licensing agreement. Both the parties i.e. the licensor and the licensee should necessarily ensure that the signed license agreement is comprehensive and clear in nature and covers all future possibilities. In the cases where the license agreement is not properly drafted, it could result in future litigation and could also impact the commercial interests of both parties. This article aims to explain some of the important clauses in a trademark licensing agreement.

Important clauses in trademark licensing agreement

In every licensing agreement, there are some clauses that should compulsorily be incorporated in order to ensure that the rights and obligations of each and every party are clearly laid down.

Preamble

It plays a very important role in clearly identifying the parties to the agreement i.e., the licensor and licensee, and also states the other details of the parties, like their registered offices and their location. It clarifies if the agreement is binding upon the representatives, successors, or assignees of the parties to the agreement.

Grant clause

This clause is again a very important clause in a trademark licensing agreement because it grants the licensee the right to use the licensor’s trademark. It must clearly lay down the extent to which the rights are granted to the licensee. The granted right can be with respect to exclusive or of the non-exclusive type; or kind of a transferable or the non-transferable one; the geographical limit within which one of the parties that is the licensee is provided the right to use the given mark; all the goods and services on which the licensee can use the relevant trademark; whether the given right to sub-license will be granted to the party which is the licensee. In the cases where the trademark is licensed on an exclusive basis, the agreement should necessarily specify or state all the relative terms and conditions which if not fulfilled will permit the licensor to cancel the entire exclusively given license.

Rights and liabilities

The agreement should necessarily contain a clause that is clearly indicative of the rights and obligations of each of the parties. The licensor’s obligation must involve the fact ensuring the value with regard to the trademark is purely maintained, and adequate technique of marketing and advertising is done in conformity to the relevant extent. The licensee’s obligations must extend into ensuring the quality of goods and all the services upon which a licensor’s trademark is mentioned and used, and is also maintained. Both the parties must also lay down all the obligations or the roles of each of the parties in cases where there is a third-party infringement of the registered trademark.

Royalties clause

All the clauses pertaining to the royalties with regard to a licensing agreement must specifically lay down all the methods of calculation of the relevant royalty which is to be paid by the licensor to the licensee. It should also state all the terms related to the payment i.e., the manner inclusive of the timeline for all payments of royalties, including the documentation mentioning the calculation of royalties.

It is extremely important that both the parties are made accountable for the late payments and also, provide a detailed description of the manner in which such a situation shall be addressed. The licensor should also be provided with the right to audit all the royalties which are paid and the agreement should necessarily specify the kind of frequency of all the audits.

Product and process stewardship clause

The particular clause in the agreement must specifically state all the responsibilities of both the parties with respect to safety, including the environmental, and all possible kinds of social impacts, on the goods which are produced under the relative trademark. It must further be mentioned that the licensee in the future is also responsible and must adhere to all the state and local safety rules prevalent with reference to the process, product, employee, and customer safety.

Quality control clause

Since it is one of the most important aspects of trademark licensing, the agreement should necessarily provide for the provision where the licensor shall exercise the quality control practice over the goods given to the licensee i.e., should provide all the complete details of the respective design, as to how the trademark should be used and all the different types of products which should be placed and promoted in future, whether in future there will be inspections by the licensor and their frequency, etc. The clause must also clearly specify the process for disposing of all the kinds of goods that do not meet the required standards.

Termination clause

This clause must clearly lay down all the conditions as to when a party may possibly terminate the signed agreement. It can be either terminated on completion of the term of the license agreement, or on the breach of obligations in the agreement by either of the parties, prior to the expiry of the term of the agreement. If the party is to be awarded an opportunity to rectify the breach, the same shall be clearly stated and the time period within which the rectification is to be made, must also be specifically mentioned.

Governing law clause

It is another important clause in the agreement which specifies the law that will govern the agreement during its effectiveness. This clause has its own particular significance in the cases where the parties belong to different jurisdictions. The governing law clause is instrumental when it comes to determining the rights and liabilities of the parties to the agreement and also the remedies which are available to them in case of a breach, and so on and so forth.

The governing law clause is extremely significant when it comes to the interpretation of clauses that are contained in this agreement. The governing law clause must include jurisdiction that is well connected in regard to the transaction which is entered into between the parties depending upon the principles that govern the private international law.

Dispute resolution clause

The disputes related to the agreement can arise at any point of time. Therefore, it is very important that the drafted agreement includes a clause that is relevant to determining the resolution mechanism in the case where any dispute arises between the parties. Parties often choose arbitration as it is neutral in nature with regard to proceedings, especially in the cases of cross-border licensing agreements. Parties’ right to choose is another characteristic of arbitration that makes it one of the most preferred modes for dispute resolution amongst parties where there is licensing agreement.

Insurance clause

The licensing agreement generally contains the insurance clauses that are included in order to protect the licensor from any kind of future third-party claims which might arise against the licensee. This can include the extent of loss or damages, or the fee and expenses to be incurred by them due to such future third-party claims.

Confidentiality clause

In a licensing agreement, it is very common that both parties have their own confidential information with regard to the other party. It would be quite prudent to have clauses related to confidentiality. Both the parties should be entitled to utilize the confidential information throughout the duration of the agreement, however, such information should not be disclosed to any third party.

The licensing agreement must have a provision for the return of the exchanged confidential information made between the parties as soon as the agreement is terminated. It is extremely essential to clearly mention to which information will be considered as ‘confidential’ in nature and under what situations such information could be expected to be disclosed.

Conclusion

It is extremely important that the trademark licensing agreement is perfectly drafted and is comprehensive so that it eliminates potential disputes which might arise in the future between the parties. Further, it is also very important to remember that every licensing agreement which is drafted is different because it is based on the kind of commercial arrangement between the parties. Thus, it is important to be clear with regard to the interests of both parties to the agreement and then draft the respective agreement accordingly. Parties should seek the assistance of attorneys who are experienced, in order to ensure that the relative agreement is well-drafted and inclusive of all the accurate rights of each party reflected in the trademark license agreement ensuring that the interests of both parties to the agreement are considerably safeguarded.

References

docs.google.com/spreadsheets/d/1X30BgDUESlsYK-RB4MyWtYuT6_9Cuh41MXA-ty0VJZM/edit#gid=324164889
https://www.ny-trademark-lawyer.com/the-nuts-and-bolts-of-a-trademark-licensing-agreement.html

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Introduction

Facts of the case

Judgment

Right to protest : a fundamental right with restrictions

Balance between right to travel and right to protest

Dismissal of review petition

Implications of Shaheen Bagh judgment

Increased restrictions

Meaning of public protest

Did protestors cause inconvenience

Vague terms

Lack of binding value

Other judgments on the right to protest

Conclusion

References

Introduction

Background

Filing of appeals

Facts: Satish v. State of Maharashtra (2021)

Facts: Libnus v. State of Maharashtra (2021)

Submissions on the behalf of Appellants

Submissions on behalf of accused

Important Legal provisions of POCSO Act

Section 7

Section 8

Section 9

Section 10

Main issue

Analysis by the Supreme Court

Judgment of Hon’ble Supreme Court

Justice Bela M. Trivedi and Justice U.U. Lalit gave the following judgement:

Justice Ravindra S. Bhatt’s opinion

Order by the Supreme Court

Conclusion

References

Introduction

Legal advertising and solicitation of work : meaning

Basis for bar against legal advertising and solicitation of work

Reasons behind prohibition of legal advertising and solicitation of work

Provisions regarding bar against solicitation and advertising

Section 49 of the Advocates Act 1961

Chapter II of Part VI of the Bar Council of India Rules

Furnishing of certain information allowed : 2008 Amendment

Punishment : Section 35 of the Advocates Act, 1961

Judicial approach

Tata Press Limited v. Mahanagar Telephone-Nigam Limited & Ors (1995)

V.B. Joshi v. Union of India (2008)

Bar Council of Maharashtra v. M. V. Dabholkar (1975)

Rajendra V. Pai v. Alex Fernandes & Ors (2002)

Position in other countries

USA

UK

Whether legal advertising should be permitted ?

Advantages of legal advertising

The way forward

References

Introduction

Why do costs need to be imposed?

Existing framework and types of costs under CPC

Difference between costs in a civil suit under CPC and writ proceedings/public interest litigations

Juhi Chawla’s Case

Analysis on High Courts’ power to impose costs under CPC

Supreme Court’s Suggestions and 240th Law Commission Report 2012

Conclusion

References

Introduction

What is the difference between Grant of Probate and Letters of Administration?

Grant of Probate

Letter of Administration

Case law : jurisprudence on jurisdiction of Probate Court

Critical analysis and conclusion

References

Introduction

How does this process work?

Advantages and disadvantages of crown jewel strategy

Advantages of crown jewel strategy

Disadvantages of the crown jewel strategy

Applicability in the real world

Conclusion

References

Supreme Court’s Suggestions and 240^th Law Commission Report 2012