Compensation for loss or damage caused by a breach of contract : can parties limit their liability

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November 10, 2021

This article is written by Warisha Solanki, pursuing Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho. The article has been edited by Prashant Baviskar (Associate, LawSikho) and Smriti Katiyar (Associate, LawSikho).

Table of Contents

Introduction

A contract is a legal promise to perform certain obligations According to Section 2(h) of the Indian Contract Act, 1872 “An agreement enforceable by law is a contract.” An agreement by two private parties that create mutual legal obligations. A contract can be either oral or written, when one party breaks such a promise the other party can claim for losses caused by the breach of contract.

The following remedies are available to each party

Damages

Remedy by the way of damages is the most common way available to the injured party. This entitles the injured party to recover compensation for the loss suffered by him due to breach of contract from the party who caused the breach. Section 73 to 75 incorporates the provisions in this regard. Every breach of contract entitles the injured party to claim damages for the loss he has suffered. The aggrieved party can recover damage by way of compensation for loss suffered by his due to breach of contract.

Quantum meruit

Literally translated to “as much is earned”. Where a party has in the performance of his contractual obligation done some work or rendered some service and further performance has been prevented by the other party as a breach on his part then in such case the aggrieved party plaintiff is entitled to reasonable remuneration under it.

Specific performance

A party in breach actually has to carry out his duties according to the contract. In certain cases, the court may insist that the party carry out the agreement. If any of the parties fails to perform the court may order them to do so. In this case, a specific decree of performance is granted instead of damages.

Injunction

It is basically a decree for specific performance but for a negative contract. An injunction is a court order restraining a person from doing a particular act. Therefore, a court may grant an injunction to stop a party to a contract from doing something he promised to do.

The first remedy (damages) will be discussed in some detail below.

Damages

Damages in simple terms refer to a form of compensation due to breach, loss or injury. Damages are popularly granted in cases of tort or breach of contract. Section 73 of the Indian Contract Act deals with damages arising upon the breach of contractual obligation, resulting in losses to the aggrieved party. Damages refer to money paid by one side to the other; it is a legal remedy. A party who breaches the contract is liable to compensate the injured party for loss or damages caused by the way of breach of contract

Damages under section 73 are compensatory and not penal in nature.

Types of damages

Ordinary damages

On the breach of contract, the suffering party may incur some damages arising naturally in the usual course of events. If the contract was breached he can claim compensation for such losses.

Special damages

A party to a contract might receive a notice of special circumstances affecting the contract. In such cases, if the contract is breached then he is liable for ordinary damages plus special damages.

Exemplary damages

There are two scenarios for such damages:

• Breach of promise to marry because it causes injury to his/her feelings.

• Wrongful dishonour of cheque by banker because it causes loss of reputation and credibility.

Nominal damages

If a party to a contract files a suit for losses but proves that while there has been a breach of contract he has not suffered any real losses the compensation for nominal damages is awarded for such damages.

Damages by delay

In case where the goods are being carried by transport and he delays the delivery of goods causing them to deteriorate the affected party can file a suit for such damages caused by delay.

Pre-fixed damages

During the formation of a contract, the parties might stipulate payment of a certain amount as compensation upon breach of contract. This amount can be a reasonable estimate of the likely loss in case of breach of contract.

Remoteness of damages

The rules on the remoteness of damage in the contract have been discussed in the judgement of Hadley v. Baxendale. It is considered to be the basis of law to determine whether the damages are a proximate or remote consequence of the breach of contract:

When the nature of the damage is as may fairly and reasonably be considered to arise naturally from the breach of contract. In other words, the loss or damage must be proximate damage arising naturally in the usual course from breach of contract.
Such damage or loss is reasonable in the contemplation of both the parties at the time they made the contract if a breach happens. The parties to the contract must know that if a breach takes place such damages can arise.

Under this branch of rule, compensation can be claimed for any loss damage that arose in the usual course of things from any breach of contract.

In Hadley v. Baxendale, the working of the plaintiff mill was stopped by the breakage of the crankshaft and it was necessary to send the crankshaft to the makers. The defendant who was the carrier undertook the delivery of the shaft to the makers. The only information given by the plaintiff mill owner was that the article was to be carried. Due to some neglect of the carriers, the delivery of the shaft to the makers was delayed and the production of the mill remained shut for a longer time than it could have been, had the shaft been delivered without any delay.

It was held that the circumstances as well as the information to communicate with defendants were not sufficient to show that the mere delay in the delivery of the shaft could be a loss of profits to the mill owner. The plaintiff might have had another shaft in reserve. As such it was beyond the contemplation of the defendant that mere delay would cause loss to the miller.

Accordingly, the plaintiff mill owner could not recover damages for the loss because the special circumstances involved were never communicated by the plaintiff to the defendant.

Measure of damages

Once it has been recognised that a certain loss arising out of breach of contract is direct and proximate and not remote then the plaintiff is entitled to recover the damages. The object of awarding damages to the aggrieved party is to put him in the same position in which he would have been if the contract had been performed. Damages are therefore assessed on that basis.

Limitation of liability

A ‘limitation of liability’ or ‘liability’ clause, is defined as a disclaimer for a contract that limits the conditions under which the breaching or the disclaiming party may be held liable for loss or damages. Limitation of liability is of fundamental importance in managing and allocating risks in commercial contracts. They are often the subject of intense negotiations between the contracting parties to exclude certain types of losses or set a financial ceiling for contracting parties total liability. One should consider the following factors when negotiating limitation of liability clause:

The value of the contract,
The role and responsibilities of the parties,
The potential risks and liabilities, and
The relative bargaining powers of the parties.

A well-drafted clause enables both parties to balance their risks with the benefits of the contract. There are several types of legal liabilities to be aware of including:

Breach of contract- One contracted party does not deliver as per contractual obligation.
Negligence- A failure to meet the reasonable duty of care caused harm to somebody else.
Misrepresentation- False claims about goods or services result in the termination of the clause.
Infringement of intellectual property right- One party infringes the copyright design right, patents or trademark of another.

It is important to understand the typical limitation of the liability clauses and pay particular attention to them.

Conclusion

Thus, where a sum is named in a contract as a liquidated amount payable by the way of damages, the party complaining about the breach can receive as reasonable compensation such amount only if a genuine pre-estimate of damages is fixed by both the parties can be found by the court. It is the nature of the damage clause that needs to be considered that is whether it is genuine damage or loss of profit by looking at the circumstances and the remoteness of damages and measure of damages.

References

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The law surrounding hand sanitisers during COVID-19

By

Diganth Raj Sehgal

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November 10, 2021

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COVID 19 — Image Source - https://rb.gy/svxoi1

This article is written by Vanya Verma from O.P. Jindal Global University. This article focuses on the laws related to hand sanitisers.

Table of Contents

Introduction

Hand sanitizers have acquired significance in the aftermath of COVID-19, particularly as a result of the WHO’s demand, and can now be found in every area and corner of the world, from the largest metropolis to the tiniest hamlet, hand sanitiser has had such an impact.

To avoid the spread of COVID-19, the World Health Organization and governments around the world have frequently urged the use of hand sanitiser. Hand Sanitizer is a cleansing agent, hand antiseptic, hand rub, or agent used on the hands for the goal of eliminating common germs. It’s a straightforward method of infection prevention. Ethanol and hydrogen peroxide are the major chemicals, according to the label. Alcohol-based hand sanitisers often include between 60 and 95 per cent alcohol, typically in the form of ethanol, isopropanol, or n-propanol.

Guidelines by WHO for composition of sanitisers

The WHO suggested a specific composition of sanitisers to protect the general public’s interests and maintain the quality of sanitisers on the market. Hand sanitisers with the best antibacterial activity often comprise 75 to 85 per cent ethyl alcohol/ethanol, isopropanol, or a mix of these products, which is appropriate to India. As a result, the WHO-recommended formulations contain either 75 per cent v/v isopropanol or 80 per cent v/v ethanol.

In India

The importance of hand sanitiser may be seen in the fact that it has been included in the Essential Commodities Act, 1955 by the Ministry of Consumer Affairs, Food and Public Distribution here to ensure that it is readily available around the clock.

Before COVID-19, hand sanitiser was only used by a few people. It was developed, promoted, and sold by a small number of enterprises and multinationals, because of the enormous impact of hand sanitiser, the government was forced to interfere and set a price cap.

Interestingly, the Maharashtra government sent a letter through the Food and Drug Administration on 29 May 2020 stating that only a legitimate licence holder under the Drugs and Cosmetics Act, 1940 and its Rules can distribute and sell the hand sanitiser. The government’s response appears to be in response to a question from a major manufacturer about whether they (as a manufacturer with a licence) may sell these items to small Kirana shop owners (clearly without a licence) who will ensure that hand sanitiser reaches the last mile.

Legislation for hand sanitiser

Unless a drug is exempted, the Drugs and Cosmetics Act, 1940, and the Drugs and Cosmetics Rules, 1945, require that every drug made, stocked, sold, or exhibited in India be done so under a licence. The Drugs and Cosmetics Act of 1940 was enacted to govern the importation, manufacturing, distribution, and sale of drugs and cosmetics. The term ‘drug’ is defined in Section 3(b), which includes four sub-clauses. Sub-clause (1) refers to medicines while sub-clauses (ii) and (iii) refer to substances and sub-clause (iv) refers to devices. As a result, one could get to the conclusion that a ‘drug’ would include not only medicines but other chemicals and things as well.

As a result, the obvious question is whether hand sanitiser falls within the definition of a drug as defined in Section 3(b). In Chimanlal Jagjivan Das Sheth v. State of Maharashtra (1963), Supreme Court determined that a ‘substance’ as defined by Section 3(b) of the Drugs and Cosmetics Act, is not limited to those that can be classified as “medicine,” and that a substance can also be a “thing” that can be used for any treatment. Using this logic, a hand sanitiser would categorically fall under the definition of a drug as a substance.

Sale of hand sanitiser

Section 18(c) of the Drugs and Cosmetics Act of 1940 makes it very clear that a licence is required for “manufacture for sale, distribution, sale of stock, or exhibit of an offer, for sale of any medication.”

Part VI – Rules 59 to 66A and Part VII – Rules 71 to 84B of the Drugs and Cosmetics Rules 1945 must also be read in conjunction with this Section. A review of these requirements reveals that not only the maker, but also those who stock, show, sell, or distribute must have the necessary licence.

Part XI of the Drugs and Cosmetics Rules 1945, Rule 123 talks about exemptions. To the extent and subject to the restrictions described in that schedule, the medications listed in Schedule ‘K’ are exempted from the provisions of Chapter IV of the Act and the rules adopted thereunder. This would mean that all pharmaceuticals listed in Schedule ‘K’ are excluded from the provisions of Chapter IV of the Act and its Rules to the extent and subject to the criteria outlined in that schedule. Schedule K contains 35 goods that are exempt from the Drugs and Cosmetics Act’s Chapter IV.

Item 12 of the Rule provides that insecticides and disinfectants are substances intended for use in the elimination of vermin or insects that cause disease in humans or animals. Item 12 resembles the wordings of Section 3(b) (ii) of the Drugs and Cosmetics Act 1940. As a result, the legislature’s purpose appears to be that those substances defined under 3(b)(ii) that expressly fall within item 12 of Schedule K are exempted from the Act’s restrictions to the degree permitted.

Licences for manufacture, distribution and sale of sanitisers

Because sanitisers are classified as “drugs” under the Drugs and Cosmetics Act of 1940, a licence to sell, manufacture, or distribute them must be obtained from the Licensing Authority as prescribed by the government in the Drugs and Cosmetic Rules of 1945.

The application for the sale, stock, exhibit, or offer for sale must be made using the 1945 Rules designated applicable Form. The licensee must submit the relevant information and adhere to the terms and conditions of the licence.

The application for manufacturing must be submitted following the prescribed form under 1945 Rules, along with all relevant papers, including but not limited to a plan of premises. The licence must also adhere to the license’s terms and conditions. Entrepreneurs who do not have their manufacturing facilities might apply for a loan licence to manufacture the drug for sale. They would have to present a consent document from the location where the manufacturing is taking place.

Licencing, approval, and renewal of sanitisers by the Ministry of AYUSH

In light of the pressing need for sanitisers during the COVID 19 epidemic, the Ministry of AYUSH issued a circular on April 02, 2020, to speed up the process for approving /renewal of licence for manufacturing sanitisers. In this regard, the government has urged the AYUSH Licensing Authorities to finish the licensing/approval/renewal process as quickly as possible. However, the licensing/approval/renewal must comply with the components’ and excipients’ terms of use, i.e. ingredients of the medication.

Licence for sale and stocking of sanitisers

The Union Health Ministry has exempted hand sanitisers from the requirement of a selling licence for stocking or sale under the Drugs and Cosmetics Act, 1940, and the Drugs and Cosmetics Rules, 1945, in the wake of the COVID-19 pandemic.

Several requests were submitted to the government, according to the official notification, to exempt hand sanitisers from the requirement of a sale licence under the Drugs and Cosmetics Act.

The gazette notification read, “The central government is satisfied that hand sanitisers are required to fulfil the requirements of an emergency arising from the COVID-19 epidemic, and their simple availability is made in the public interest.”

Even though hand sanitisers are free from the requirement of a selling licence, some conditions must be completed by a seller before the drug’s expiration to comply with medications and cosmetics regulations.

The government notification stated, “The central government hereby directs that the drug, namely, hand sanitiser, be exempted from the requirement of a sale licence for its stocking or sale under the provisions of Chapter IV of the Drugs and Cosmetics Act, 1940 and the Drugs and Cosmetics Rules, 1945, subject to the condition that the provisions of condition (17) of Rule 65 of the said Rules are complied with by the person stocking or selling hand sanitisers.”

In the United States

The Food and Drug Administration (FDA) plays a crucial role in protecting the United States from infectious diseases like the coronavirus. The FDA is dedicated to providing timely guidance to help with the pandemic’s continuity and response activities. During the COVID-19 public health emergency, FDA undertook additional action to help fulfil the increased demand for hand sanitisers.

Entities that were not registered medication manufacturers could register as over-the-counter (OTC) medicine manufacturers and make alcohol-based hand sanitisers during the COVID-19 public health emergency.
Certain alcohol-based hand sanitisers can be compounded by pharmacies and registered outsourcing facilities.
Alcohol production enterprises can generate alcohol for use in hand sanitisers if they follow the FDA’s industry guidance.

The FDA planned to withdraw three guidance documents released in March 2020 that outlined temporary procedures for manufacturers who were not drug makers before the public health emergency to produce certain alcohol-based hand sanitisers and alcohol for use in hand sanitisers. Under the temporary restrictions, companies that manufacture alcohol-based hand sanitisers must stop making them by December 31, 2021. Manufacturers can no longer sell or distribute hand sanitisers made before or on December 31, 2021, and produced under the temporary guidelines after March 31, 2022.

Manufacturers that want to keep making hand sanitiser beyond that date can do so as long as they follow the preliminary final monograph for over-the-counter topical antiseptics and other applicable regulations, such as the FDA’s Current Good Manufacturing Practice (CGMP) Regulations. Deregistration information can be found on the Electronic Drug Registration and Listing Instructions website for manufacturers who no longer plan to produce these products.

Due to the dangers of methanol or 1-propanol contamination, including death, the FDA is recommending importers, consignees, distributors, retailers, and others not to distribute or sell certain hand sanitisers, even if the maker has not issued a recall. The agency maintains a list of harmful hand sanitisers and suggests that companies involved in the distribution and sale of hand sanitisers review this list frequently because it is updated regularly. All of the hand sanitisers on the list are considered adulterated by the FDA, and it is illegal to distribute or sell them across states.

Advice to consumers by FDA

The FDA is advising consumers and health care professionals that hand sanitiser products branded as containing ethanol (commonly known as ethyl alcohol) but have tested positive for methanol, 1-propanol, or other impurities have increased dramatically. Methanol, often known as wood alcohol, is a poisonous chemical that can be life-threatening if consumed or absorbed via the skin. The FDA also warned consumers and healthcare professionals about hand sanitisers packed in water bottle-like containers or those that are sub potent, meaning they contain less than the appropriate amount of ethyl alcohol, isopropyl alcohol, or benzalkonium chloride.

Consumers should examine hand sanitiser items in their homes and before purchase see if they are on this list of methanol-contaminated hand sanitisers. More information on methanol or 1-propanol contamination in certain hand sanitisers, as well as other safety risks with certain hand sanitisers, can be found at FDA updates on hand sanitisers consumers should not use.

Consumers are advised not to use certain hand sanitisers by the FDA. The information on hand sanitiser labels for consumers to identify a product that:

FDA tested and found that it contains methanol, 1-propanol, benzene, acetaldehyde, or acetal.
Methanol is listed on the label.
Has been tested and proven to contain microbial contamination.
Recalled by distributor or manufacturer.
Is sub potent, which means it contains less ethyl alcohol, isopropyl alcohol, or benzalkonium chloride than is required.
Is allegedly manufactured at the same facility as items that have been found to include methanol, 1-propanol, benzene, acetaldehyde, or acetaldehyde.
Is packaged in a container that looks like a food/beverage container, posing a higher risk of accidental ingestion.

Hand hygiene is a critical component of the United States’ response to COVID-19. Hands should be washed often with soap and water for at least 20 seconds, especially after using the restroom, eating, and coughing, sneezing or blowing one’s nose. The Centers for Disease Control and Prevention (CDC) recommends using an alcohol-based hand sanitiser that contains at least 60% alcohol if soap and water are not readily available (also referred to as ethanol or ethyl alcohol).

Hand sanitisers should be kept out of the reach of minors, and in the event of ingestion, seek medical attention or contact a Poison Control Center External Link Disclaimer right away. Hand sanitiser in little doses can be harmful, even fatal, to young children.

Conclusion

Hand sanitisers had become essential during the time COVID-19 and in order to avoid any complications or irregularity laws were needed to regulate the distribution, supply and composition.

References

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Difference between product patent and process patent

By

Abanti Bose

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November 10, 2021

0

patent_0 (1) — Image Source: https://rb.gy/7t4fd1

This article is written by Aishwarya Parameshwaran, pursuing Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho. The article has been edited by Aatima Bhatia(Associate, LawSikho) and Smriti Katiyar (Associate, LawSikho).

Table of Contents

Introduction

In this evolving world, land and capital are no longer the only assets that are value-creating. The rise of a tech-driven commercial environment has allowed our knowledge, ideas and inventions to generate an economy that is rightly termed as Intellectual Property (IP). IP is mainly divided into two parts: industrial application and copyright. The industrial application includes patents, trademarks and industrial designs.

Patents deal with the protection given to inventors for a product or process patent. Trademarks deal with brand name, logo, slogans etc which build the brand value of a product. And industrial designs deal with the unique designs made for the purpose of industries. In this article, we are going to focus on patents and understand the difference between product patents and process patents.

Introduction to patents

Patents, amongst all assets that fall under intellectual property rights, are mostly sought by industrialists and inventors. The reason is, it gives them a right that restrains others from making, using or manufacturing a product using the same formula or technique. This generally leads to a monopoly right over the product or over the process used to make the product. Such a right lasts for a specified period of time.

In India, the Act which deals with patents is The Patents Act, 1970. The Act specifically lays down the categories that do not fall within its ambit under Sec 3 and Sec 4 of the Act. It also specifies the period for which a right over Patent is protected which is 25 years.

As per the Act, there are two types of Patents that can be acquired in India, namely, product patent and process patent. The Indian legislature implemented these patent regimes as a part of the Patent Amendment 2005.

So in short, we can say that The Patents Act, 1970 gives a statutory right to the inventor for a fixed period of time. This right is granted by the government. Once this patent protection is acquired by the inventor, he is granted the right to stop others from making, using, selling his patented process or product.

Product patent vs process patent

The Indian Patents Act, 1970 provides for two types of patents, they are process and product patents. Let’s discuss each of these types.

Product patent

As the name suggests, this type of patent protects the product. It offers the inventor higher protection for his invention by decreasing the level of competition of the same product. On the other hand, a process patent protects the manufacturing process of a product but not the product. The product patent maximises the level of monopoly and minimizes the competition. So, we can conclude that a product patent has the following features that eventually benefits the inventor or the patent owner:

It provides a higher level of monopoly rights to the inventor of the patent owner.
Such a grant prevents others from manufacturing the same product using the same process or a different process.
Since the end product is given protection, the level of protection is considered higher in comparison with process patents.

Process patent

In this type, patent protection is granted only to a particular process used in manufacturing a product but not the end product. A process patent is often considered to provide limited protection. The reason is, it does not bar or prevent others from manufacturing or creating the same product by using a distinct process. Hence, it is possible that there are multiple process patents granted for a single product. This eventually reduces the monopoly that the inventor enjoys, thereby increasing the level of competition.

How are product and process patents different from each other?

Sr.No	Basis	Product Patent	Process Patent
1	Definition	Patent protection is provided to the ‘End Result’ or ‘the product’.	Process patent protection is provided to only the process, and not the resulting ‘End Product’.
2	Competition	Once protection is granted, less competition	Competition shall remain
3	Monopoly	A higher level of monopoly is enjoyed by the inventor	Inventors do not enjoy a monopoly since other persons can still manufacture the same product using a different process.
4	Implementation	Product Patents were introduced as part of the Patents (Amendment) Act, 2005.	Process Patents have been recognised in India ever since the Indian Patent Act, 1970 was enforced.
5	Example	The altered DNA will be provided protection and not just the process involved.	The patent will be provided to the process involved in altering the DNA as recognised by the Indian Patents Act.

Take of developed and developing countries on product and process patents

When it comes to product vs process patents, developed countries and developing countries have been shown to possess varied opinions. Whereas developed countries recognise the importance of product patents as complete protection, developing countries have not yet recognised the importance of product patents. This dichotomy has led to hindrance in product protection on a global level as both product and process protection gives protection to patents at different levels.
Since India is a part of WTO, it has agreed to bound itself and to comply with the TRIPS Agreement which came into effect in the year 1999. India adopted the concept of product patent through the 2005 Amendment of the Indian Patents Act.
This Amendment made in 2005 brought two important sections in the Indian Patents Act, namely, Section 2 and 3. Even the definition of ‘Patents’ under Section 2(j) of the Act changed to an invention means a new product or process involving an inventive step and capable of industrial applications.

WTO’s stand on product and process patents

During the Uruguay Round of Talks, the World Trade Organization (WTO) codified an agreement that intended to create and recognise an equitable system for international trade. It was felt that it was the need of the hour to protect products exported of intangible assets through strong and powerful IP Laws.
This led to the TRIPS Agreement which required the ratified countries to comply with terms in order to meet global standards and to resolve hindrances to IP protection that were caused at the global level. One of the requirements specified under the TRIPS Agreement was that all countries that ratified the agreement must follow the Product Patent Regime.
In short, we can say that the TRIPS and WTO intended that the countries shift from process to product patents which would maximise the monopoly right over the patent and reduce the competition in the market.

Analysis of product vs process patents

Evidently, a strict divergence appears to exist between product and process patents regimes. Developed countries are inclined towards the product patent system while the developing country prefers the process patent system. Since the process patent is granted for a particular process and not for the product itself, any other person can produce the same product using a different process by simply modifying the parameters used. This would enable multiple producers to produce the same product. It is a disadvantage for the inventor because the multiplicity of producers in the market shall give him less protection for his patented right and eventually, he wouldn’t have the monopoly and this will give rise to competition in the market.

However, a process patent is a benefit to the consumer of such a product because the customer can get alternative options and can opt for a product that has all the specifications available at an affordable price. The non-existence of monopoly over a product even pressurises the inventor to market the product at a lower cost which makes it cost-effective to the consumer of such product.
In the case of a product patent, the exclusive right is given to the original inventor of a product. Once this type of patent is granted, no other person can make, use or manufacture the same product. Since there would be a monopoly over the product, the inventor would stand to benefit since he can market the product at the price he desires. However, it would be a disadvantage for the consumer since the price of such a product would be high and the consumer who has no other alternative option will now be forced to buy the product at the rate decided by the inventor as his exclusive right.

Conclusion

Now that we have understood the various factors which differentiate product patents from process patents and the advantages and disadvantages of both, we can conclude why the developing countries and developed countries have different stances.

Maybe developing countries have not yet completely shifted to product patents because this will eventually affect their nation and consumers who aren’t financially strong on a global level yet. Granting process patents would help such countries to increase innovation in their economy, and would promote healthy and effective pricing of the product. India, being a developing nation is also in favour of granting both process and product patents and is not inclined towards product patents. The reason is, the government at the end of the day needs to implement laws only after analysing and understanding the plight of the country and not by blindly following the developed countries.

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.

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

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Abuse of Human Rights in business operations

By

Abanti Bose

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November 9, 2021

0

human rights — Image source-https://rb.gy/zmtlna

This article is written by Mohit Kumar, pursuing Diploma in Law Firm Practice: Research, Drafting, Briefing and Client Management from LawSikho. The article has been edited by Tanmaya Sharma (Associate, LawSikho) and Smriti Katiyar (Associate, LawSikho).

Introduction

Never start a business just to “make money”, start a business to make “DIFFERENCE” -Marie Forlio. Humanity and greed are two qualities of human life that overlap each other more than we think in the world of business operations. Business operations are necessary for the growth of the economy of any state and the advancement of the human race. They have both positive as well as negative impacts on the lives of people.

Positive

They create employment for a huge number of people. Businesses intend to provide products and services which make life easier and comfortable etc.

Negative

Businesses have adverse impacts on the human rights of people in the form of forced labour, invasion of privacy etc.

The growing conflict between Human Rights and business is relatively new but it has its inception in the past from industrialization, colonialism and globalisation. Let us discuss the burgeoning field of business and human rights; its history, the role of the state, the United Nations and businesses in maintaining a balance between human rights and business operations in perspective.

History of business and Human Rights

During the Industrial Revolution, the role of the state was limited to that of a mere watchman. Economies were governed by the policy of Laissez-Faire (Leave Businesses Alone). Here, the State did not interfere in the free economy. Business Enterprises operated as per their whims and fancies, unrestricted by state.

But this unbridled freedom to business enterprises led to gross violation of the natural rights of human beings during the colonial period. Business enterprises were guilty of colonialism, slavery, apartheid, human trafficking which are considered crimes against humanity.

It was realized that business operations cannot be left unchecked for the sake of society at large.

The concept of Human Rights

The Charter of The Universal Declaration of Human Rights was introduced by the United Nations in 1948 laid down guiding principles of inalienable human rights which are the basis of a decent life. These Human Rights are inherent and fundamental to all the human beings living on the planet irrespective of class, caste, religion, place of birth and colour. They are based on the principles of equality, dignity, freedom and fairness.

This charter makes it necessary for all the States and Persons (natural or juristic) to implement and respect the internationally recognized human rights of all the individuals in the world.

The need of guiding principles on business and Human Rights

With the advent of Globalisation, the economic market of a State is no longer limited to only domestic players. In the International Free Market, Companies are now operating globally. They have grown bigger, richer and are more powerful than they have ever been. The turnover of some companies is more than the GDP of many developing and underdeveloped countries. This puts them in a dominant position and increases the risk of human rights violations in their operations. In the race for economic development and to attract foreign investments, states were reluctant to address the abuse of human rights by their own business operations or trans-national business enterprises.

The United Nations laid down the guiding principles on business and human rights in 2010, laying down the role of the state, business operations for the smooth operation of business operations without violating the human rights of any individual.

The role of the State

The State cannot sit and act as a watchman as it used to in the Laissez Faire. Now, the State has to act as the protector of the people and their rights. The state has to safeguard people not only from external aggression but also from the internal passive abuses in the form of economic development. The state should strive for a balance of sustainable economic development.

The first and foremost duty of the state is to be proactive and prevent any abuse of human rights in its own business operations or of any third party. The state is duty-bound to foresee any potential risk to the enjoyment of human rights by any business activity. If there is any impending abuse of human rights then the state should address the same promptly. The state should be extremely careful in business operations in conflicted and high-risk areas as the chances of human rights abuse are extremely high.

The state cannot ignore the impact on human rights while encouraging economic developments and Foreign Direct Investments. The state is the knight in armour for the people to protect themselves against giant business enterprises.

The state can avoid any human right abuse

Enforcing strong labour laws that safeguard the poor and illiterate labour from any coercion, violation of their human rights.
Labor Inspections at fixed intervals to reduce the risk of slavery, forced labour, child labour and unhealthy working environment.

United Nations guiding principles on business and Human Rights

Introducing and implementing strong corporate laws that encourage businesses and enterprises to respect human rights.

Avoid collaborating with any business enterprise that hinders the enjoyment of human rights.
Framing policies that promote and assist in identifying, addressing and mitigating any risk of human rights abuse by business entities.
Denying public access to any business enterprise which is involved in human rights abuse.
Providing training to the government aided business practising agencies to maintain human rights obligations and maintain domestic policies that promote human rights enforcement.
Raising the Licensing requirements, which make it mandatory for business enterprises to respect human rights in their operations.

Remedial of Human Rights abuse

Addressing any violation of human rights promptly.
Establishment of a judicial and non-judicial grievance system for complaint, investigation and remedy of any violation of human rights if occur.
The state should make sure that those affected are adequately compensated.

Role of the businesses enterprises

Businesses are operating to make profits. But they cannot abuse human rights or hinder the enjoyment of human rights in their operations. Such violation will lead them to lawsuits, loss of goodwill and investments, heavy penalties or cancellation of license or winding up of their operations. To sustain for a longer time, businesses should operate in coordination with human rights.

Business enterprises are required to:

Comply with the labour laws of a country.
Avoid infringement of any of the human rights of the workforce or customers in their operations.
Mitigate any human rights abuse if it occurs in their operations.

Even if the state is ignorant of human rights, the business enterprises should respect human rights in their operations.

Business Enterprises can respect human rights by:

Conducting enhanced Human Rights due to Diligence-The United Nations guiding principles on Business and Human Rights urges the business enterprises to conduct enhanced human rights due diligence to identify, prevent and mitigate risks of abuse of human rights.

As a preventative measure, Business Enterprises should conduct due diligence to address the vulnerable section of people whose human rights might be infringed in their operations. If there is any potential abuse of human rights, the Business Enterprises should address the same and cooperate with the state for a quick remedial of the same.

Complying with all applicable laws of the state.

Due diligence under United Nations guiding principles on business and Human Rights

Honouring human rights in case of any conflict with business operations. People need businesses for a comfortable life and businesses to need people as clientele for their exponential growth. They benefit mutually from each other.

The outbreak of COVID-19 exposed that despite the existence of various labour laws, corporate laws and guiding principles of the United Nations on Business and Human Rights, the relationship between businesses and human rights still remain estranged.

Businesses all over the world abused the following human rights of people in the pandemic in form of:

Abuse of right to work

The life of workers has drastically changed in the spread of COVID-19, approximately 450 million workers around the globe have been directly impacted. They have either lost their job or are underpaid or are forced to work for longer or shorter durations or their incentives have been cut down or they are forced to work in an unhealthy environment.

Example: Miserable state of health workers in Ukraine.

Health workers worked tirelessly, risking their lives but they are still underpaid. The private hospitals charged exorbitant fees from the patients in the pandemic.

Abuse of right to health and life

The basic safeguards against coronavirus like masks, sanitiser, gloves and PPE kits were hoarded, to later sell them at exorbitant prices. Further, in India medicines like Remdesivir were sold in the black market, making them out of reach of the common man. To add more to the injury, fake vaccines and sanitisers were also introduced in the market.

Example: Vaccine shortage in poorer countries.

Vaccination is the only way to contain the coronavirus yet. The vaccine manufacturers play a vital role in achieving this goal. But they are reluctant to share the formula of their vaccines for the reason of intellectual property protection. This prevents the availability of vaccines for people in poor countries. “The current pace of vaccination is very slow, some countries would not have vaccinated the majority of their populations before 2023, risking lives of millions at stake. This is a serious concern for the world.”

Forced migration

The pandemic was the worst nightmare for migrant workers all over the world. They are the most impacted class in the world. Many lost their jobs; others are being forced to work for less than minimum wages, forced to work in an unhealthy environment, spent all their savings and are left with heavy debts.

Example: UN Report on the impact of Covid-19 on internal migrants workers in India

Businesses and States did not look after the well-being of the working class. During the lockdown, workers were forced to work in miserable conditions for less than minimum wages, risking exposure to coronavirus.

In India, migrants were forced to return to their native places due to the lockdown. With no public transportation available, they had to take up arduous journeys of thousands of kilometres on foot. Many migrant workers lost their lives on the journey to their native places.

No place to go

Seafarers are stuck in the sea for a period longer than their contracts. State and Business Enterprises are negligent in resolving this problem. The emotional and physical well being of people is at stake.

Example: Seafarers stranded at sea.

Abuse of Human Rights by state and business enterprises in India

For the gains of earnings in cricket, BCCI (Board for Control of Cricket in India) organized the Indian Premier League (IPL), which led to an upsurge in the number of covid cases in India, abusing the right of the health of players and audience.

Example: Indian premier league in Covid times leads to the second wave in India.

Infringement of right to privacy

Despite the Right to privacy having been recognized internationally as a basic human right, the Internet companies have time and again shared the data of users to third parties invading their privacy.

example: Privacy Scandal by Facebook.

Environmental degradation

Business operations have a profound impact on the biosphere. Businesses abuse the right to a healthy life by exploitation of natural resources like air, land and water. Factories pollute the air and water, severely affecting the quality of life of people.

Example: Illegal Mining in Brazil.

Violation of right to property

Businesses need land for their operations which cause resettlement of natives. The loss of habitat violates their right to property and destroys their livelihood.

Example: Attack on Indigenous communities in Nicaragua.

Modern slavery (forced labour)

The modern form of slavery (forced labour) is still carried out on vulnerable and trafficked people in China and Japan. Over 200 big companies have their manufacturing units in this region where forced labour is carried out.

Example: Forced Labour in China and Japan.

Conclusion

The pandemic revealed that to achieve the goal of sustainable development on the part of the state as well as business enterprises, bare guiding principles are not sufficient. The world needs stricter human rights treaties, customs and policies that have a direct legal obligation on the businesses operations.

State and Business Enterprises have to play an important role in getting society back on track post the pandemic, with special care to the most vulnerable.

State and Business enterprises should coordinate to resolve the current issues by –

Speeding up the Covid-19 vaccination drive, setting up covid proof workplace, providing basic wages to workers.
Hiring people of all cultures and races at all levels.
Forced Labor by strict inspection of the supply chains.
Promoting environment-friendly operations, regulating emissions.
Promoting a safe and healthy working environment for women to work.
Data protection by ensuring an end to end encryption.
The mental health of children by promoting healthy food and censoring the content of online games and shows.
LGBTQ movement by increasing representation of all the sexes in their operations.

State as well private business operations in Finances can resolve the crisis of growing poverty by providing loans to people to restore their livelihood. Loans should be granted with minimum or no collateral with the least documentation. This will save people from falling into the trap of greedy money lenders and they will be able to enjoy the right to a dignified life.

The clock is ticking. The world needs strong international human rights rules that have direct legal obligations on the business operations around the world. These laws should govern all business operations around the world. The United Nations and the respective states immediately need to introduce and implement such hard laws which minimize the abuse of human rights in business operations.

Businesses have the potential to promote a good life along with making profits. Businesses are also operated by natural persons only. It is high time that business operates with the values of humanity and fairness along with a motto of profit.

Making a positive impact along with profit is the best way for a business operation to sustain and grow.

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What is the effect of death of a party to an arbitration agreement

By

Rachit Garg

-

November 9, 2021

0

This article has been written by Rashmi C, pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from LawSikho. It has been edited by Prashant Baviskar (Associate, LawSikho) and Smriti Katiyar (Associate, LawSikho).

Table of Contents

Introduction

Arbitration agreements are just like contingent contracts, wherein they can be enforceable only when the dispute arises between the parties to the agreement. The Parties enter into the arbitration agreement in order to solve the disputes which may arise out of the contract in future without the intervention of the courts. There may be some unforeseeable circumstances, where the question of the survivability of the agreement will become relevant, such as the death of one of the parties to the arbitration agreement. The courts in several cases have held that the arbitration agreement will not be terminated by the death of any party to the agreement.

In this article, we shall discuss in detail about the effects of death of a party to the arbitration agreement along with some of the judicial precedents.

Effect of death of a party to an arbitration agreement

Section 40 of the Arbitration And Conciliation Act, 1996

Section 40 of the Arbitration and Conciliation Act, 1996 (Hereinafter referred to as Act) states as follows:

40 (1) An arbitration agreement shall not be discharged by the death of any party thereto either as respects the deceased or as respects any other party, but shall in such event be enforceable by or against the legal representative of the deceased.

(2) The mandate of an arbitrator shall not be terminated by the death of any party by whom he was appointed.

(3) Nothing in this section shall affect the operation of any law by virtue of which any right of action is extinguished by the death of a person.

As per Section 40 the Act, the arbitration agreement entered between the parties shall not be discharged or terminated solely on the ground of death of one of the parties to the agreement. The same can be invoked by the legal representatives of the deceased party.

Case laws

Jyoti Gupta vs. Kewalsons (Arb. P. 599/2017 & I.A. 1357/2018):

GIST:

In this judgment, the Delhi High Court decided that, “Merely because, the arbitration agreement mentions about the disputes arising between the partners, it cannot take away the rights of the legal heirs of the deceased partner from enforcing such arbitration agreement as per Section 40 of the Act.

FACTS:

In this case, the Petitioner filed a petition under Section 11 of the Act praying before the court for the appointment of the sole arbitrator for the adjudication of the dispute between the parties to the Partnership Deed. One of the partners to the Partnership Deed had passed away before the invocation of the arbitration clause which was in the Partnership Deed. Upon his death, the Respondent filed an objection on the grounds that Clause 15 of the Partnership Deed is only between the partners to the agreement and does not include their legal heirs and thus, the legal heirs of the deceased partner cannot invoke the arbitration agreement.

JUDGEMENT

The Court, in this case, disagreed with the contentions made by the Respondent and held that, the arbitration agreement shall not be merely discharged by the death of the one of the parties to the agreement and the same can be enforced by the legal heirs of the deceased party, as the present case properly falls under Section 40 of the Act.

Ravi Prakash Goel vs. Chandra Prakash Goel & Anr (Appeal (Civil) 1526/ 2007)

FACTS OF THE CASE:

In the present case, the mother of the Petitioner, Smt Dulari Devi, Respondent Chandra Prakash Goel, Rakesh Aggarwal along with Pushpalatha were the business partners. The partners executed a Partnership Deed among themselves. Upon the retirement of one of the partners, a new Partnership Deed was executed between the rest of the partners. The net profit of the parties earned by the partners was to be divided by the partners at the rate mutually agreed between them.

In 2004, when the petitioner’s mother asked for an explanation for the accounts of statement, there was no proper response given to her by the Respondents. She thus sent a legal notice disputing the accounts of the firm and authorizing the Petitioner to look after her accounts in the partnership firm on her behalf, due to her illness. In the notice, she had also requested the Respondents to explain in detail about the accounts of the firm to the Petitioner. The Respondents failed to give reply to such notice and thus, the Petitioner himself visited the firm to check the statement of accounts.

In October 2004, Smt Dulari Devi, the mother of the Petitioner passed away and after a month, her will was executed. In her will, she had bequeathed her property along with the partnership business in Petitioner’s name (son). Upon such execution, the Petitioner sent a notice to the Respondents to inform them about the same. He also informed the Respondents that, the dispute that is existing, with regard to the books of accounts can be resolved through the arbitration and suggested the name of the arbitrator, as there was a clause in the Partition Deed, which stated that, “All the disputes with regard to the partnership firm shall be resolved by referring the dispute to an arbitrator in accordance with the stipulations of the Indian Arbitration Act and the verdict given by the arbitrator shall be final and is binding on all the parties.” There was no reply made by the Respondents to this notice as well.

Since the Petitioner received no reply from the Respondents side for his notices, he made an application before the Allahabad High court under Section 11 of the Act, for the appointment of the arbitrator. The Allahabad High Court made an observation that the Petitioner does not have a binding arbitration agreement with the Respondents and hence, his application was dismissed.

Upon such dismissal, the Petitioner made an appeal before the Supreme Court against the order passed by the Allahabad High Court, contending that the High Court has failed to consider the provisions of Section 40 of the Act and have erroneously dismissed the application made under Section 11 of the Act.

JUDGEMENT:

The Court in the present case observed that, the person who has the right to represent the deceased person will obtain the status of a legal person. The court also stated that, the Allahabad High Court should have allowed the application made by the appellant under Section 11 of the Act and should have appointed an arbitrator and the Allahabad High Court has committed an error by overlooking the provisions of the Arbitration and the Conciliation Act along with the provisions of the Indian Partnership Act. The Court also observed that, the Allahabad High court’s view that the Appellant not having a binding arbitration agreement with the respondents is also erroneous in law and facts. The Court in its judgment pronounced that the Appellant has the right to invoke the arbitration clause in the Partnership Deed and make an application before the court under Section 11 of the Act for the appointment of the arbitrator.

Pravati Devi And O/S. vs Kesharwani & Co. (5^th May,2011).

FACTS:

Parwathi Devi was the legal heir of the late Bhairon Nath Kesharwani , who was one of the partners of M/s. Kesharwani & Co. The duration of the partner as per the Partition Deed was at the will of the party or in case of retirement of the partner. The arbitration agreement under the Partition Deed read that, any dispute arising out of the Partnership Deed shall be settled mutually amongst the partners and if this fails, then, an arbitrator or arbitrators shall be appointed by the parties and arbitration proceedings shall be conducted as per the Act.

Shri Bhairon Nath Kesharwani had executed a Will when he was alive, where he had bequeathed his properties, both movable and immovable in the name of Smt Parwati Devi and other family members (his legal heirs).

Upon the death of Shri Bhairon Nath Kesharwani, his legal heir’s attorney holders, sent the notice to the other members of the firm, informing them about the same and asking them to pay their part of the credit balance which shall be receivable by them, as per the terms of the Partnership Deed. Upon such notice, the other partners of the firm asked the legal heirs to provide them with the necessary documents and all those documents were provided by the legal heirs to the firm. The legal heirs did not get any response or the credit amount from the opposite parties. The parties being aggrieved by the same requested the firm to appoint an arbitrator to adjudicate the dispute and received no response for the same.

Upon receiving no response from the other partners of the firm, Smt Parwathi Devi made an application under Section 11 of the Act before the Allahabad High Court for the appointment of the arbitrator. The contention raised by the Respondent firm was that, can the Petitioner, being a legal heir, represent the deceased and have the right to invoke the arbitration clauses in the Partition Deed?

JUDGEMENT:

The Court considered the decision made by the court in the case of Ravi Prakash Goel Vs. Chandra Prakash Goel & Anr. That, the death of one of the partners to the agreement does not take away the provisions relating to arbitration and the legal heirs of such deceased partners have the right to invoke such arbitration clauses. The Court in the present case decided that the Petitioners have the right to invoke the arbitration clause and the Respondent firm has erroneously refused to appoint the arbitrator and thus, the Court appointed a sole arbitrator to adjudicate the dispute between the partners.

Conclusion

Survivability of the arbitration clause is very important and the decisions made by the court by interpreting Section 40 of the Act and extending the applicability of this section to the legal heirs of the deceased partners should be appreciated, as this is one of the best reliefs that, the legal heirs who have suffered damages can get. It is very clear from the above mentioned case laws and Section 40 of the Act that, the death of the party to the arbitration agreement will not have any negative impact on the arbitration agreement as the same can be invoked by his/her legal heirs and relief can be sought.

References

https://blog.ipleaders.in/invocation-arbitration-clause-death-party/

https://law.asia/heirs-of-deceased-partners-can-invoke-arbitration-clause/

https://blog.ipleaders.in/can-arbitration-clause-be-invoked-after-death-of-any-party/

https://www.tclindia.in/arbitration-agreement-referring-to-disputes-between-partners-would-include-disputes-involving-legal-representatives-of-a-deceased-partner/

https://smartmarble.gr/effect-of-death-of-parties-in-arbitration-agreement/

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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Legal guardianship and custody of adults with mental disabilities in India and abroad

By

Rachit Garg

-

November 9, 2021

0

This article is written by Anushka Singhal of Symbiosis Law School, Noida. In this article, she discusses the legal guardianship and custody of adults with mental disabilities.

Introduction

‘Mental disability’ is defined as the inability to learn things at the rate at which a normal human being is expected to learn them. With the advancement in technology, mental health issues have become more acceptable today. Erstwhile mental disabilities were regarded as ‘madness’ and are now being treated as ‘mental illness’. The world recognizes the problem of such people and thus to lend a helping hand to them, we have made certain guardianship rules. In this article, we will discuss the guardianship laws particularly concerning mentally disabled adults in India and abroad. In India, we have a separate law called the National Trust Act, 1999 which provides provisions for the welfare of mentally disabled people, and other countries like the US, China, etc. have similar laws.

Legal guardianship

Legal Guardianship is a concept in which the court appoints a legal guardian i.e. a person who takes care of a minor and his property until the minor acquires the age of majority. According to the Indian Majority Act, 1875, the age of majority for a minor with a legally appointed guardian is 21 years. The court appoints a guardian not only for a minor but also for the people who are not able to take care of themselves, like mentally or physically disabled persons.

The Indian Contract Act, 1872, under Section 11, lays down the conditions for the competency of parties to enter into a contract. According to this Section, minors and persons of unsound mind are considered incompetent to enter into a contract. Therefore to enable such persons to enter into a contract and to ensure their paramount interest, we have the concept of legal guardianship. For people with cerebral palsy, autism, and other disorders, the law provides for a provision for the appointment of a guardian who will take all their legal decisions. This guardianship may not be absolute, i.e. if a mentally disabled person can exercise some control over himself, then the law provides a partial guardian to such a person.

In India, the personal laws of Hindus and Muslims, the Guardians and Wards act 1890, and the National Trust Act lays down the provisions of legal guardianship. The National Trust Act especially deals with the guardianship of mentally disabled people and we also have the Right of Persons with Disabilities Act, 2016.

Concept of guardianship

The provisions for guardianship for a mentally disabled person are laid down under Section 14 of the National Trust Act. According to this Section, a local level committee is empowered to appoint a guardian for mentally disabled persons. A legal guardianship application has to be filed with the district collector and then the district collector, if satisfied with the application, will appoint the legal guardian. The application of legal guardianship can be filed offline with the local committee or it can also be filed online via the official website. Following persons can apply for the guardianship-

A parent or relative of the disabled person.
Any registered organization with the consent of the guardian
Also while granting the guardianship, the local committee has to keep two things in mind-

Whether the mentally retarded person needs a guardian.
The purpose for which the guardianship is sought.

After being satisfied, the local committee processes the application.

Voluntary

Section 14 of the National Trust Act says that a parent, relative, or organization can voluntarily apply for guardianship with the local committee established under the same act. The guardian appointed under this provision has to take care of the mentally retarded person as well as his property. The relative under chapter VI of the National Trust will include any person related to the disabled person by blood, marriage, or adoption.

Involuntary

The Rights of Person with Disabilities Act 2016 lays down the provisions for involuntary guardianship. Under Section 13 of the said Actfulfils, if the district collector feels that a mentally disabled person is not able to take care of himself, then he can appoint a legal guardian for that person. The guardian appointed under this section may be given plenary guardianship i.e. full authority over the decisions of such a person, or limited guardianship i.e. both the guardian and the mentally ill person would take all the decisions with mutual consent.

Guardianship under the National Trust Act, 1999

As stated above, the National Trust Act, or to be precise, the ‘National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities’ looks after the guardianship of people with cerebral palsy, autism, and other mental incapabilities. A local committee would decide on the same, once an application is filed under Section 14. Now let us try to understand what this local committee is and who are the members of it. Section 13 of the committee provides-

A local committee should consist of an officer not below the rank of a district magistrate of a district.
A representative from a recognized organization
A person with a disability as defined under relevant provisions of the law.

Duties of a guardian

The duties of a guardian have been laid down under Section 16 of the National Trusts Act. After the grant of guardianship under the National Trust Act, a guardian thus appointed must inform the concerned authorities about all the movable and immovable properties, debts, assets, and liabilities of such mentally ill person for whom he has been appointed, within six months. He shall also have a duty to tell the authorities about all the financial transactions of that person before every financial year, within three years.

Who may qualify to be a guardian

The qualifications to be appointed as a guardian are given under the National Trusts Act. Regulations 11 and 12 of the given act talk of such qualifications.

Section 11 of Regulations

According to these regulations, the following persons can apply for guardianship of a mentally disabled adult-

Either or both parents may apply for guardianship or in the event of the absence of one due to death, divorce, legal separation, desertion or conviction, a spouse may singly apply for guardianship e.
The siblings may adopt their mentally ill sibling in case their parents have died.
The relatives may apply for adoption in the absence of both parents and siblings.
An organization working for the welfare of such people may file an application for the same in the absence of parents and siblings.
If the person is destitute or abandoned, the local level committee may direct a welfare organization to become the guardian of such an adult.

Section 12 of Regulations

It lays down the qualifications of an applicant i.e the person who is applying for the guardianship of the disabled person.

Both the parents or a single parent in the absence of the other may apply and their application will always be selected, unless-

A. They are no longer Indian citizens

B. They are of unsound mind

C. They are convicts

D. They are destitute

The applicant can name the relatives, siblings, or any institution as his/her guardian.

In case an institution is appointed as a guardian, the institution should be registered under appropriate laws and if later the institution is found to be incompetent, the local committee can make alternative arrangements for the time being. Also, the applicant should be living in the vicinity of the disabled person and lastly, no single male member is entitled to get guardianship of a female disabled person except the father of the child. The male person shall be given co-guardianship with his spouse, who shall be master co- guardian.

Application process

An application form needs to be received from the local level committee or it can be downloaded from the official website. Any person who is eligible to be a guardian and fulfills the requirements of Regulations 11 and 12 can file an application. In case an organization or some other person apart from the parents is applying for guardianship, he must submit the consent of the parents. After applying with all the relevant documents, the application process is deemed to be completed.

Guidelines for receiving and confirmation

Regulation 13 of the National Trust regulation provides the procedure for receiving and confirming an application for guardianship. As provided in the National Trust Act, a local level committee (LLC) is designated to grant guardianship. Upon receiving the application, the committee should scrutinize the application carefully and should see whether the prospective guardian would be suitable for the mentally ill person or not. The committee would counsel the parents if they are looking for an organization or some other person as a guardian for them and would make sure that the parents have genuine reasons for giving the person up for guardianship. Also, the need for a guardian would be assessed properly and only guardianship would be provided in those cases where the adult is completely unable to make independent decisions. Partial guardianships may be provided when required. After the LLC is satisfied, it confirms the application and the confirmation is sent by letter or firm both online and offline.

Removing a guardian

A guardian can be removed via Section 17 of the National Trust Act. A person who is appointed as the guardian of a mentally disabled person can be removed if –

He is abusing that person.
He is neglecting that person.
He is misappropriating that person’s property.
He is neglecting that person’s property.

The mentally retarded person’s relatives, parents, or an organization on finding either of the above-mentioned points can apply in the local committee for the removal of the guardian. If the local committee is satisfied with the allegations, it can remove the guardian so appointed and would appoint some other person or if no one is available then the committee would take any other measures in the interest of the mentally disabled person.

The terms ‘abuse’ and ‘neglect’ have been elaborately defined, and they include-

Solitary confinement
Chaining
Sexual Abuse
Beating or treating badly
Depriving the person of his basic needs like water, clothes, and food.
Not working towards rehabilitation of that person

Voluntary

A voluntary guardian can be easily removed via the above-given rules- i.e following Section 17 of the National Trust Act.

Involuntary

If the certificate of authority has been revoked under Section 51 of the Persons with Disabilities, the guardianship of such an institution is said to be removed. The license of such an institution is revoked if it makes some statement falsely in front of the authorities or if it has breached any rule or regulation.

Need for guardianship

A guardianship may be needed for–

Looking after the physical, social and mental well being of the person.
For looking after the property of the person.
For opening bank accounts and assisting the mentally ill person to avail the benefits of government schemes.

Custody of an adult with a mental disability: India and abroad

Under different jurisdictions

Civil law countries treat mentally incapable adults as equivalent to children. Portuguese Civil Code expressly states that the person under ‘interdição’ is ‘equivalent to a minor’ and that, consequently and with the necessary limitations, the provisions concerning guardianship of children also apply to adults. This approach is called the paternalistic approach. A similar provision is laid down under the Italian Civil Code and Estonian law. Under French law, apart from assisting incapable adults in legal work, the law also applies to persons who need temporary patrimonial protection.

Sweden has two forms of protection wherein two persons are called a ‘godman’ and the ‘forvalarskap’. In Japan, traditionally, the responsibility to look after the disabled person was on the family, or to be more correct, on the household. But the whole system was revamped during the 2000s. A ‘hojonin’ or a helper is appointed for a mentally disabled person who ‘helps’ the person. The legal guardianship system is divided into three categories: “guardianship”, “curatorship”, and “assistance”. The appropriate system can be chosen depending on the degree of the person’s mental capacity. Now, the guardians are responsible not only for legal work but also for the everyday care of the mentally ill person. Germany has the provision for the appointment of ‘Betreuer’ also known as the caretaker, who is provided by certain orders from the court which he has to fulfil. This measure of appointing a caretaker is seen to be a last resort. Here, the caretaker can be a family member, a member of an association, or an agent of a state. The German Civil Code also has the concept of a ‘Betreuung’ or a ‘caretaker’. Several countries have the provision of appointing a guardian, the difference being in the extent of liberty that the caretaker and the mentally retarded people are provided and also in the nomenclature used.

International conventions and treaties

The Hague Convention of 2000 on the Protection of Adults also throws some light on the mentally disabled and elderly adults who are not able to take care of themselves. However, the Convention has so far been ratified only by the Czech Republic, Estonia, Finland, France, Germany, Switzerland, and the UK (particularly Scotland). Even Article 23 of the UN Convention on the Rights of Persons with Disabilities (CRPD) provides that a state party should take proper measures for providing adequate guardianship to the persons with disabilities, and it is significant to note that it has about 162 signatories with 181 ratifications. Thus, it has become an international obligation of the countries to look after mentally ill adults. Also, as seen above, India has the National Trust Act, the Right of Persons with Disabilities act 2016, and also via the Mental Health Care Act 2017, the government has given certain rights to the legal guardian when it comes to making decisions about their health, property, education, legal rights, etc.

Conclusion

It is our responsibility to look after our ‘specially-abled people’. By providing the laws of guardianship, the government has ensured that they are taken proper care of. By the concepts of voluntary and involuntary guardianship we have ensured that each mentaly diisabled person lives with dignity. The international community is not far behind and thus, we all make sure that “We rise by lifting others.”

References

Elder Guardianship Kaleidoscope: A Comparative Perspective, Israel Doron, International Journal of Law, Policy and the Family, Volume 16, Issue 3, December 2002, Pages 368–398.
Rethinking Vulnerable Adults Protection in the light of 2000 Hague Convention, Int J Law Policy Family (2013) 27 (1): 51, Joëlle Long

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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Application of principles of natural justice in administrative proceedings

By

Abanti Bose

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November 9, 2021

0

This article is written by Raunak Sood, pursuing Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho. The article has been edited by Prashant Baviskar (Associate, LawSikho) and Smriti Katiyar (Associate, LawSikho).

Table of Contents

Background and purpose

There are mainly two roles of natural justice namely, the right to be heard, and the rule against bias, even though there are some other principles. For example, an executive authority adjudicating upon a matter shall give a well-reasoned decision, especially in those matters wherein the said decision has an impact on the accrued rights and liabilities of the citizens. This chapter attempts to discuss the effect of fairness and the interaction of this concept with natural justice principles whenever proceedings are taking place before an administrative authority. In this chapter, the focus shall be upon the irregularity, deviation and departure from natural justice rules.

Concept of fairness and illustrative cases in which rules of natural justice have to be applied

If an order is enforceable under the law having an administrative nature that has a civil effect, such an order should be made consistent with the principles of natural justice. The Principles of Natural Justice (“Natural Justice”) act as an addition to the enacted law wherein the administrative body whose actions are having civil consequences have to follow a “fair procedure” in which a fair opportunity to be heard has to be granted (procedural fairness) and there is a need to meet the ends of justice. The following cases are those in which principles of natural justice have to be strictly applied.

Illustrative Case 1 – If an administrative order affects the rights and liabilities of a person, and the provision of the statute under which the said order is passed does not expressly bar the opportunity to be heard, in that case, Natural Justice has to be applied to act as a check on the arbitrary administrative power. It is pertinent to note that a show-cause notice from the side of an adjudicating administrative authority is sufficient to cover the ambit of Natural Justice provided that the order is passed on the reply given to the show-cause notice without even giving a personal hearing.

Illustrative Case 2 – “No man should be a judge in his own cause” is a part of the Natural Justice Principle which has to be followed almost throughout all administrative proceedings but in such cases, the burden of proof (“onus”) regarding the proving of bias is very heavy, hence it is pertinent to note that onus and delivery of Natural Justice are connected.

Pursuant to hereinabove discussed Illustrative Case 1 and Illustrative Case 2 it is important to note that there are matters of policy, law and order in which, if the Natural Justice principles are not followed, then such adjudication shall not be justiciable by any court of the Republic of India.

Elements include but are not limited to the following principles whenever administrative proceedings take place

Application of the rule of audi alteram partem (opportunity of fair hearing) – This rule is applicable to the cases pending adjudication before a court of law, tribunal and any other authority having a legal discretionary power to handle cases subject to the limitations given in the parent statute.

Issuing a notice

A notice is a document that notifies the opposite party about some facts, information or circumstances. It is to be noted that in order for a notice to be effective it should contain the timing of the hearing, place of hearing, grounds on which the hearing is taking place and name of the adjudicating authority and if the statute does not contain a specific provision of issuance of notice then an order to the prejudice of such person cannot be without issuing such notice wherein an equitable chance to be heard has to be given. A notice should explicitly lay down the grounds on which a person is being called by the said adjudicating authority.

Adducing evidence followed by laying down of facts, issues and legal grounds and divulgence of all material evidence

For the hearing to be impartial an equitable opportunity should be given after the notice has been served for the adduction of evidence and demonstration of the case by the person who received the notice. In the case of Ambala Central Cooperative Bank v. State of Haryana & Ors it was held by the Supreme Court that when the notice is received, it is the responsibility of the body that sent the notice to give feasible time and a chance to produce evidence for the purpose of adjudication whereas if the said chance or hearing is not given the court shall deem such a notice to be illegitimate, arbitrary, unauthorized and prohibited in the eyes of the law.

Freedom to produce witnesses and cross-examine them

An opportunity should be given to the person who is before an adjudicating court, tribunal or legal authority to ask pointed questions to those witnesses who are giving testimony against any party present before an administrative authority. In the case of Hira Nath Mishra and Ors. v. The Principal, Rajendra Medical College, Ranchi and Anr, the court laid down that a trial will get frustrated if the opportunity to cross-examine is not given but if the subject of such examination is a sensitive subject then this right may be denied. However, it was iterated in a recent case of Central Bureau of Investigation & Ors v. Mohd. Parveez Abdul Kayuum, wherein it was laid down if the right to cross-examination of a critical witness is not given it violates the principles of natural justice and thereby frustrates the trial and the proceedings which took place before the trial court. Hence to wind up the legal position on this issue it is important for the purpose of a fair hearing to give a chance of cross-examination.

Right to get represented by an attorney

The proceedings which are taking place before the adjudicating body should give the opportunity to a person to get adequate representation for the proceedings, but not every person can afford a lawyer. Hence it is the duty of the State that they should arrange for legal help for such a person who cannot afford the services of a lawyer. That is why in India, we have the Legal Services Authority in charge of providing lawyers for people who are not able to afford an attorney. In the case of M.H. Hoskot v. State of Maharashtra, it was decided that for a fair and equitable hearing the concept of free legal aid is extremely important as implied under Article 21 of the Constitution of India.

Obtaining a decision with reasons recorded – Article 14 of the Constitution of India is against getting decisions that are arbitrary, irrational and capricious in nature, therefore a decision tendered should be a decision in which the reasons for passing the said decisions are well-stated in the record because justice must appear to be done. A recording of reasons shows that there has been the application of judicial principles by the adjudicating authority.

Post decision hearing

In its landmark case of Navratnna Rao v. Municipal Corporation, Bombay, in the year 2021 SC has clarified that the post-decision hearing has an extra onus that a sufficient amount of written reasoning should be present in the written order hence passed.

Suggestions for people who are adjudicating on being biased in a particular matter

In certain situations, a person who is adjudicating can be biased, and he or she may not realise it themselves. Hence enumerated below is a checklist of suggestions which an adjudicating person should peruse before delving into the case at hand.

Firstly, ensure that the person making the decision does not have a political rivalry with any person before him Secondly, that the judge should not have any financial interest in any of the parties present before him Thirdly, the presiding officer should not be a person of interest as per the subject matter of the case. Fourthly, that the decision making person should be of the same working department whose matter has been prostrated before him. Lastly, there should not be any kind of preconceived notion of bias.

Conclusion

Administrative law is a developing branch of law, so it brings a number of grey areas with it. One of such grey areas is regarding the application of the principles of natural justice in matters of administrative proceedings. Whether the principles of natural justice will be applicable or not depends on what type of function is being performed by the administrative body. So, the first step is to identify the nature of that particular administrative function, which also does not have any definitive parameters. The extent of the applicability of the three major principles of natural justice, as elaborated upon at the beginning of this article, depends on the classification of the administrative function. In this paper, the author has attempted to classify the various types of administrative functions and identify a set of parameters that can be used to differentiate between them. After this classification, the paper goes on to discuss the pros and cons of applying the principles of natural justice to administrative actions.

References

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Pakistan and China’s growing fellowship and their common threat towards India

By

Rachit Garg

-

November 9, 2021

0

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This article is written by Rida Zaidi, from the faculty of law, Aligarh Muslim University. This article deals with Pakistan and China growing relations and the India factor in their developing relations.

Table of Contents

Introduction

China is the world’s largest trading and manufacturing country. It is acknowledged as the next global superpower after the United States or may overshadow the states in the times to come. China is highly equipped with technology, military, intelligence sharing, nuclear weapons etc. However, it has maintained its friendly relations with Pakistan which is politically unstable, a failed democracy, publicly funded terrorism and so on but the question is why has China overlooked all these glaring loopholes? Sino-Pak ’s relations have been described by Pakistani President Arif Alvi as “higher than the mountains, deeper than the oceans and sweeter than honey”. China has always allied with unstable countries, has a corrupt elite and whose people are violently contesting for positions of power and being a communist country required the support of someone who would aid it in establishing its relations with the Muslim world furthermore someone who contemplated. India as its enemy to set about together against India.

This article shall deal exhaustively with Pakistan-China’s diplomatic, military, economic relations, factors for China’s alliance with Pakistan, the sino-pak agreement etc.

Diplomatic relations

Pakistan was the first Muslim country to acknowledge the People’s Republic of China and the 3rd non-communist country. The relations have been based on stable and rationalist calculations. Both China and Pakistan built bilateral relations for their respective interests as Pakistan required military and technical support whereas China wanted a friend through which it can maintain ties with the middle-east and a common enemy to India. Both the countries have maintained their ties by regularly paying high-level visits to each other’s countries resulting in a variety of agreements.

When Xi Jinping visited Pakistan for the first time he said “When I was young, I heard many touching stories about Pakistan and the friendship between our two countries. To name just a few, I learned that the Pakistani people were working hard to build their beautiful country and that Pakistan opened an air corridor for China to reach out to the world and supported China in restoring its lawful seat in the United Nations. The stories have left me with a deep impression. I look forward to my upcoming state visit to Pakistan”

Pakistan supported China in reserving a permanent seat in the United Nations. Pakistan voted to condemn China’s excesses in the Tibet region but soon after that, the initial steps were taken which eventually resulted in the strengthening of Pakistan-China’s relations which was the degeneration of India-China’s relations over the border issue where Americans aided India which made the relations of Pakistan and China more secured. Many agreements related to the building up of infrastructure, power plants, nuclear projects etc have taken place continuously and in addition, have paved the way for future associations. In May 2021 Pakistan and China marked 70 years of their friendship.

Military relations

Pakistan-China’s alliance has served the interest of Pakistan more than it has done for China as they have strong ties as are geopolitical. China is Pakistan’s largest supplier of arms. It is not just limited to providing arms but of military equipment, personnel training, intelligence sharing, technology assistance etc. China has provided Pakistan with missiles, aircraft. The two countries have undertaken many projects including nuclear infrastructure, production of aircraft, deadly weapons etc. China has administered Pakistan regarding counterterrorism and the Islamic movements. China has heavily invested in Pakistan’s Gwadar Deep Sea Port, which is strategically located on the shores of the Arabian sea. It is viewed cautiously by both the U.S. and India as a possible airbase for the Chinese navy, allowing them to launch submarines and warships in the Indian Ocean. China has recently assured Pakistan to invest around 45 billion US dollars

United Nations

Pakistan and China have vowed to back each other in the United Nations. It is when Pakistan supported China in regards to the issue of Hong Kong or Xinjiang and when China raised the issue of Kashmir in the United Nations. Both China and Pakistan are working in the direction of protection of basic human rights and that no individual’s rights get infringed. They have stated in the United Nations that they shall support multilateralism, cooperation and peacemaking amongst the Countries. They would function for the fostering of human rights and their promotion in every area and notion possible. They have assured the United Nation that they would operate for regional security and shall recognize the role of the UN in foreign affairs. They expressed to strengthen their relations and would strive to protect and promote each other’s crucial interests.

Counterterrorism

The two all-weather strategic partners have worked together for counterterrorism by strengthening the security cooperation and China assisting Pakistan in the vision of a new Pakistan, learning from the ordeals of China in governance, technical assistance, military, nuclear projects etc. Recently, a terrorist attack took place in China in the form of a bus accident which was later reported to be a pre-planned terrorist attack. Pakistan took the responsibility of conducting a thorough investigation in the matter and China assured Pakistan that it is all set to provide them with the necessary arms and technical support to prevent terrorism within and outside the province of Pakistan. Both China and Pakistan are working together in the direction of averting terrorism from its roots.

Economic relations

Pakistan and China’s economic relations have evolved for ages. As the reports suggest that bilateral ties between Pakistan and China are more favourable for Pakistan than is for China as China has under its control the whole of the real estate of Pakistan, the Karachi and Islamabad Airports etc are all mortgaged by China furthermore the Gwadar Port of Pakistan is on a lease for 99 years this is nothing but economic warfare. But a trade agreement was signed in 2008 between the two countries which resulted in free access to each other’s markets and the profit that it fetched was worth billions. Furthermore, an uprising trend was seen in the trade mechanism.

A joint declaration was signed which bolstered the bilateral ties of the two countries. Ven Jiabao in one of the conferences stated that both China and Pakistan should strive to build together strong ties for which China would support Pakistan in the construction of the Gwadar port or any other significant project. Both of them would gain the perks of maintaining the economic relations as Pakistan has an abundance of resources and China can guide them in the technical support or any other help required. Pakistan and China have indulged in several projects ranging from nuclear plants to production of arms, trade and the list continues. Pakistan-China being strategic partners are well versed with the fact that both of them need to nurture their relationship to pursue their respective aims.

Haque’s point of view

Pakistan’s ambassador to China Moin ul Haque was recently interviewed by the global times where he expressed in detail the Pakistan-China’s relationship. He stated that their ties are rock solid and they are on their way to success. Everyone encounters critics and people pulling them down and so are the enemies of the two countries. They wish to break the ties of all-weather strategic partners but they are determined to do what they have in mind for achieving their goals. They believe in multilateralism, strategic cooperation and peaceful negotiations with anyone and everyone. Haque also stated that their relationship is not for the sake of confronting a third party like India which is portrayed by the media but for their good. He also expressed their relations to be the ground for stability and cooperation in the region. He wished to see Pakistan and China standing firm together in the times to come.

Factors for an alliance with Pakistan

The relationship of Pakistan and China as stated earlier is based on rationalist calculations and until now it was believed that Pakistan needs China more than China needs Pakistan though the scenario has somewhat changed there are several factors for their alliance which are as follows-

Pakistan has an abundance of resources and China has the expertise.
Pakistan is the only link through which China can establish its relations with the Muslim world.
Both China and Pakistan pose a strong threat against India.
China has availed of Pakistan’s trading from around $ 1billion to $10 billion in a year as estimated.
China has assured Pakistan of the construction of the Gwadar port and other infrastructural projects.
Pakistan has always stood for China against the world in the UN whether it was the issue of Hong Kong or Xiajing.
China has been working with Pakistan regarding counterterrorism for which Pakistan has firmly taken the responsibility to prevent terrorism within and outside the province of Pakistan and to maintain the security of the Chinese personnel, students and Chinese people visiting Pakistan.
China has invested in a variety of projects in Pakistan for which it is sure that Pakistan can never pay him back yet the reason behind this is economic superiority and total dependence on China.
China’s alliance with Pakistan has helped China by elevating the military force to protect the CPEC projects which were criticised by some on the grounds of depriving them of their supremacy and yearning.
Pakistan gave its full support to China for its entry into SAARC and returned Pakistan’s entry into SRO.
China does not possess friendly relations with the South Asian Countries so it used Pakistan to analyse its foreign policy.
China is a strategic partner of Pakistan and it is understood that it affirms all its policies and so it does to the production of nuclear weapons as well. Having said that Pakistan is the only Islamic country retaining nuclear weapons so through Pakistan, China can contact the west Asian countries.
China has made use of Pakistan as an incentive as the United States is the largest trading partner of China.
The installation of CPEC projects has helped China in generating its energy requirement as it reaches China through the Gwadar Port.

Sino-Pakistan Agreement

The Sino-Pakistan Agreement is a boundary agreement that was signed by the two countries in 1963. It demarcates the area of China’s Sinkiang and Pakistan’s adjoining areas which are under the control of Pakistan. The agreement is based on the principles of equality and good faith. It also aims at establishing friendly and cordial relations with each other.

Significance

The agreement was politically significant for Pakistan as its northern border was now totally secure from any future strikes. Pakistan and China were of the view that the boundary was never demarcated and defined but India clearly stated that it was defined long back. The agreement strengthened the bilateral ties of the two countries but aggravated its relations with India and Pakistan’s relations with the United States in regards to the Kashmir issue.

Issue and result

In 1959 some maps of China portrayed certain areas of Pakistan as theirs regarding which China was a bit taken back but as Pakistan had China’s back for securing a permanent seat in the UN, China did not take up this issue. China Both China and Pakistan were negotiating for taking up the agreement regarding the border issue. It was criticised by many including India because the agreement was not legal furthermore, Pakistan evacuated a large area of its territory to China for this agreement.

Why has China halted CPEC projects

Pakistan and China’s Economic Corridor (CPEC) was inaugurated with a lot of vigour in 2015. China has already invested a lot in Pakistan whether it is in infrastructure or nuclear plants or technical assistance. But reports suggest that there has not been much progress in the CPEC Projects and has been still for a while. The Gwadar project, which is worth a billion, lacks necessities like water and electricity. Furthermore, there have been many attacks for which China is concerned. Pakistan being unsecured may push away potential investors from investing in its country. People from the opposition have been continuously criticising the CPEC projects and their lack of progress but it cannot be totally denied that they are slowly and steadily working towards what they aspire to achieve shortly.

Political fragility and corruption

Many reports disclose the true intentions behind the CPEC projects of China which are purely about serving its socio-economic interests and establishing a corrupt elite in Pakistan. China has invested around 62 billion in CPEC projects which lack transparency and accountability. Owing to a lot of criticism and resentment from the public, as soon as Imran Khan took the office of the Prime Minister of Pakistan he ordered a thorough investigation against all the allegations concerning the CPEC projects. China too became cautious while investing a large sum of money into any project fearing the repercussions of its actions or from the response of the general public.

The India factor

Pakistan, China and India’s relations have been described as a triangular relationship by the World. It would not be wrong to state that one of the factors of the relations between Pakistan and China is the common threat towards India. Pakistan and China’s ties are purely geostrategic and are bilateral. India has been very tranquil in regards to all the mutations and attacks that were targeted to it and with every Country trying to be resilient with each passing day, India too needs to come to the forefront and counter back its neighbours.

War is not always bad but is undesirable and whichever country wins, it in some way gets favoured in economic terms as its economy gets flourished in the future.‘War always deceives’ which is a popular saying which it truly does as under the Indian shastras as well it is mentioned that for any country to achieve any objective four principles of Chanakya which is commonly known as the Chanakya neeti need to be kept in mind that are- saam meaning thereby the power of convincing your opponent, second is the daam meaning thereby economic benefit which for example India did by sending free vaccines to many countries, third is dand meaning thereby military force and the final principle is bhedd meaning thereby deception which the intelligence agencies do. COVID-19 has hit every country at a varying rate. India was affected the most especially during the second wave of COVID-19. There is still doubt about the so-called bioweapon of COVID-19 which may or may not be manufactured by China. Weapons are basically of three categories-nuclear weapons, chemical weapons and biological weapons. Biological weapons are not a new term and have evolved a century ago but during the COVID-19 era, it became quite popular through the media as it is a weapon made out of bacteria or biological viruses.

Initially, the relations between India and China started quite well during the Nehru regime where he envisioned the relations of China and India to be global relations like two brothers standing together in happy times and tough times. In 1954, a Panchsheel agreement was signed between India and China for growing their friendship but their relations deteriorated when the Chinese army attacked India in 1962 which caused a rift amongst the two countries and China supported Pakistan to counter India and the USSR and in 1963 china resolved its border dispute with Pakistan but with times the relations were reforming and today the trade between India and China stands for about $60 billion and both are working towards achieving more in the times to come. The issues that persist are the border issue, the Tibetan issue etc. Pakistan which always had conflicts with India saw those building relations with China would not just serve its interest in border issues, military equipment etc but would be in a better position to strike India. It can be understood that India is one of the factors behind China and Pakistan’s relations but not the only factor as both China and Pakistan need each other’s support in developing and prospering their respective Countries and India only functions as a stimulant in doing so.

Conclusion

The all-weather strategic partners’ China and Pakistan have built strong, cooperative and bilateral ties with each other. The relationship is entirely based on strategic and geopolitical grounds serving their respective interests. China has maintained its relations with Pakistan to experiment with its foreign policy as most of its neighbours are in continuous conflicts with China. Another reason could be to have Pakistan’s support in the UN General Assembly whenever any issue arises where China requires the support of any Country, Pakistan would aid it in doing so. Pakistan on the other hand is politically unstable and unsettled and somewhat a failed democracy so it also required the support of China in assisting it with technical, military and intelligence support. Both countries have signed a variety of agreements in infrastructure, nuclear weapons, production of arms and missiles etc and have been paying high-level visits to each other’s countries which have established diplomatic relations between the two. Reports suggest that the Pakistan-China relationship is built on the ground of common threat to India but after analysing every layer of the relation, one can clearly state that the India factor only acts as a catalyst and the Sino-Pak ties is beyond the territorial dispute with India and various other factors are present which guide both the countries to continue maintaining their ties with each other.

Reference

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Chapter XVI of the Code of Criminal Procedure, 1973 : an insight through case laws

By

Diva Rai

-

November 9, 2021

0

Screen-Shot-2019-12-16-at-6.31.29-PM — Image source - https://bit.ly/3mV4Sbu

This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article discusses some notable case laws that concern proceeding commencement before the magistrate as under the Code of Criminal Procedure, 1973.

Table of Contents

Introduction

Chapter XVI of the Code of Criminal Procedure, 1973 talks about the commencement of proceedings before magistrates which are spread over Sections 204 to 210. The case of State of Himachal Pradesh v. Hazara Singh (1999) made it clear that where an accused is summoned by the magistrate, the proceedings will be commencing in accordance with this chapter, and thereafter, the magistrate cannot dismiss the complaint as under Section 203 of the Code. This article provides a detailed explanation of these sections by means of case laws so as to provide the readers with a procedural understanding.

Commencement of proceedings before magistrates

Section 190 of the Code of Criminal Procedure, 1973 provides the road following which commencement of proceedings before magistrates take place. The provisions talk about the cognizance of offences by magistrates. Before delving into the case laws, it is necessary to know which provision deals with what:

Section 204: Issue of process.
Section 205: Magistrate may dispense with personal attendance of accused.
Section 206: Special summons in cases of a petty offence.
Section 207: Supply to the accused of copy of the police report and other documents.
Section 208: Supply of copies of statements and documents to accused in other cases triable by Court of Session.
Section 209: Commitment of case to Court of Session when offence is triable exclusively by it.
Section 210: Procedure to be followed when there is a complaint case and police investigation in respect of the same offence.

A list of notable judgments has been discussed hereunder for an accurate mastery of Chapter XVI of the Code.

Jacob Harold Aranha v. Vera Aranha (1979)

The Bombay High Court took a firm stand on Section 204 of the Code of 1973 in the well-known case of Jacob Harold Aranha v. Vera Aranha (1979). The Court observed that a magistrate has been vested with the legal duty to have a detailed analysis of the allegations and the evidence placed before the court in order to assure if at all a prima facie case exists or not. This needs to be carried out prior to issuing of summons under Section 204 of the Code of Criminal Procedure, 1973. The decision was accepted as a precedent in the case of Roshan Lal v. P Hemchandran (1996) where the Rajasthan High Court accepted that although issuing of summons to the accused is a subjective satisfaction of the magistrate, the same has to be exercised judiciously, in accordance with the law, and on the basis of sound reasoning.

Anil Saran v. State of Bihar (1996)

The Supreme Court of India while deciding on the case of Anil Saran v. State of Bihar (1996) reaffirmed the case of Jacob Harold Aranha v. Vera Aranha (1979). The Apex Court observed that for issuing a process under Section 204 of the Code, the only consideration that a magistrate should make is whether the allegations that have been made in the complaint against the accused make out a case in the very first impression thereby holding the accused liable, or not. The fact as to what defences are available to the accused are not matters that are to be considered by the magistrate in this stage.

Anam Charan Behera v. State (2002)

The Orissa High Court while deciding the case of Anam Charan Behera v. State (2002) discussed the power conferred on the magistrates under Section 205 of the Code of Criminal Procedure, 1973. Stating that the power is discretionary in nature, the Hon’ble High Court assured that Section 205 does not lay any hard and fast rule that needs to be applied by the magistrates while exercising the conferred power. This discretionary power needs to be exercised by the court after due acknowledgement of relevant circumstances such as the significant inconvenience that can be caused to the accused, his or her profession, etc. In the present case which was pending for over 16 years due to the absence of the accused, and the same could not be assured even after repeated warrants sent to him, the magistrate had dismissed the petition. It was held that the magistrate’s discretion was not improperly exercised in rejecting the petition in this case under Section 205 of the Code.

Kamala Shankar v. State of MP (1988)

The purpose of Section 206 of the Code of Criminal Procedure, 1908 was upheld by the Madhya Pradesh High Court in the case of Kamala Shankar v. State of MP (1988). The Hon’ble High Court observed that the whole idea behind the provision is to facilitate speedy disposal of cases that are numerous in number but are of petty nature. In this case, where the accused was charged with a petty offence of overboarding the bus he was driving, his personal appearance at the hearing of the court was held to be unwarranted by its very nature.

Ramesh v. State of Maharashtra (1995)

Section 207 of the Code of Criminal Procedure, 1973 is an accused-friendly provision that mandates the magistrate to supply the accused with copies of police reports, and other documents, free of cost. The Bombay High Court upheld the objective of Section 207 of the Code in the well-known case of Ramesh v. State of Maharashtra (1995). In this dowry-death case, the accused was not furnished with a copy of the dying declaration of the deceased under Section 207 of the Code of 1973. Taking this into account, the Hon’ble High Court observed that Sections 162, 173(4), and 207 A (3) of the Code of Criminal Procedure, 1973 imposes a duty on the prosecution to provide copies as laid down under Section 207 because the valuable rights that the accused have under Section 162(1) can be implemented only by supplying copies to the accused.

Roxy v. State of Kerala (2000)

Section 204 read with Section 208 of the Code of 1973 provides that cases that have not been instituted on a police report are exclusively triable by the Court of Session, and the magistrate shall furnish the accused with the documents provided under Section 208 clauses (i),(ii), and (iii). The Supreme Court of India while deciding in the case of Roxy v. State of Kerala (2000) held that Section 208 is a mandatory provision, and the magistrate cannot exercise his discretion while providing the accused with the required documents.

Bajrang Lal v. State of Rajasthan (2003)

Section 209 of the Code of Criminal Procedure, 1973 lays down the provision for the commitment of the case to the Court of Session when the offence is triable exclusively by it. The Rajasthan High Court observed the inter-relationship between Sections 207, and 209 of the Code in the well-known case of Bajrang Lal v. State of Rajasthan (2003).

The Hon’ble High Court observed that the magistrate can commit a case for trial to the Sessions Court only after arriving at the conclusion that the offence is exclusively triable by the Sessions Court only. By this view, the Court made it clear that Sections 207, and 209 are not provisions made for facilitating the magistrate to wash off his duties of trying a case and burdening the same on the shoulder of the Sessions Court. Instead, it ensures that the case does not have to knock the doors of injustice to the parties of the same.

Ajay Kumar Parmar v. State of Rajasthan (2013)

The Supreme Court of India in the 2013 case of Ajay Kumar Parmar v. the State of Rajasthan upheld the decision of the Rajasthan government made in the case of Bajrang Lal v. State of Rajasthan (2003). In the present case, the Apex Court was of the view that when it has been decided already that an offence is cognizable by the Sessions Court, then in such cases the magistrate cannot probe into the same case and discharge the accused in the case. The only concern of the magistrate should be as to whether the offence triable by the Sessions Court has been mentioned in the police report or not. If it is mentioned then the magistrate must commit such a case to the Court of Session.

Geevarghese v. Philipose (1987)

Section 210 of the Code of Criminal Procedure, 1973 lays down the procedure that is to be followed when there is a complaint case, and police investigation in respect of the same offence. The Kerala High Court in the 1987 case of Geevarghese v. Philipose observed that if a cognizance of an offence was carried out initially on the basis of the police report, but subsequently on grounds of private complaint which led the Court to add the names of more accused which were initially absent, then such procedure will not be considered as an irregular one.

State of Kerala v. Intelligence Officer (2003)

The Karnataka High Court did not apply the doctrine of res judicata in the case of State of Kerala v. Intelligence Officer (2003) where the issue was concerning the Narcotic Drugs and Psychotropic Substances Act, 1985 which provides concurrent jurisdiction of various authorities to carry out an investigation. In this case, a prosecution that was launched by one authority was undertaken by another on the basis of a private complaint. The subsequent authority had sought a stay in the initial suit but the Court had found that both the suits were different because of which stay on the suit was granted.

Conclusion

As we come to the end of this article, what can be inferred is that the provisions which have been structured under Chapter XVI of the Code of Criminal Procedure, 1973 are majorly accused-friendly provisions. The basic rights of the accused have been taken up seriously by this chapter, and have not been restricted only to these provisions but have been adopted by the entire Code. It is necessary to mention that the case laws that have been discussed on the basis of their ratio-decidendi, are not the only few cases that explain the provisions under Chapter XVI, but indeed the major ones.

References

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Article 340 of the Indian Constitution : have the commissions helped in improving the lives of ‘other backward classes’

By

Rachit Garg

-

November 9, 2021

0

This article is authored by Akash Krishnan, from ICFAI Law School, Hyderabad. It discusses the scope of the term OBC and which class of citizens fall under its domain, the protections granted to the OBC’s by the Constitution and the role of the Backward Classes Commissions set up for the benefit of OBC’s.

Table of Contents

Introduction

All of us have heard about reservations being made for the Scheduled Castes (SC), the Scheduled Tribes (ST) and Other Backward Classes (OBC). The OBCs can be found amongst all religious groups like Hindus, Muslims, Christians, etc. The Constitution of India extends protection to all these three classes. Before moving into the constitutional protections and the Backward Classes Commissions, let us try and identify which class of citizens fall under the ambit of OBC’s.

Identification of OBC’s

The term OBC includes all classes of citizens who are socially and educationally backwards. The question that arises here is how does one determine whether a particular person is socially or educationally backwards and what is the criteria to be followed for such determination?

In Ashok Kumar Thakur vs. Union of India {(2008) 6 SCC 1}, the Supreme Court attempted to define the term OBC. The Court observed that different expressions have been used under different provisions of the Constitution to define OBC. For example, under Article 15 and Article 340, the term ‘socially’ and ‘educationally backward classes’ is used, under Article 16(4), the term ‘backward classes’ is used and under Article 46, the term ‘weaker sections of the society’ is used. In light of these observations, the Court came to a conclusion that in order to identify OBC’s, the principle of exclusion of creamy layer should be applied. A creamy layer can be defined as those classes of people within the OBC category who are no longer backward and are socially and economically at par with other forward classes of the country.

The next question that needs to be deliberated upon is whether a person belonging to OBC in one state can claim a similar status in another state i.e., whether OBC status remains uniform throughout the nation or does it vary from state to state. This question was answered by the Supreme Court in the case of Municipal Corporation of Delhi vs. Veena {(2001) 6 SCC 571} wherein the Court held that the OBC status of an individual shall vary from state to state and each state should prepare its own OBC list highlighting the number and details of all OBC citizens in the state. The reason given by the Court for this ratio was that each state suffers from different socio-economic barriers. The OBC status of an individual would therefore depend on the nature and extent of disadvantages and social handicaps suffered by the individual in that state. When the individual shifts from one state to another, there is a shift in the socio-economic barriers as well and thus, the status of the individual might also vary.

Another important aspect of the OBC status of an individual arises in the case of a woman marrying an individual who has an OBC status or a child adopted by such an individual. The question herein is whether the wife/adopted child automatically receives the OBC status. In Valsamma Paul vs. Cochin University {(1996) 3 SCC 545}, the Supreme Court held that there is no shift in status when a person from a forward class becomes part of a backward class family by way of marriage or adoption. This is because the status of OBC is given to an individual due to them being socially, culturally and educationally backwards. The primary objective of giving reservations to these people is that they should be on par with everyone else in the country. If such actions would be allowed, there may arise a situation where people would want to be married to or adopted by an individual having OBC status just for the sake of claiming the reservations available to them. In light of these arguments, the Court concluded that reservations cannot be claimed by a person of the forward class upon marriage to an individual in the backward class and any such claim would be in violation of the basic principles of the Constitution.

Constitutional protections granted to OBC’s

Under Article 15(4) of the Constitution, the State has the power to make special provisions for the advancement of any socially and educationally backward class i.e., the OBC. The term “special provision for advancement” includes several aspects like reservation of seats in educational institutions, financial assistance, scholarships, free housing etc. Under Article 16(4), the state is empowered to enact laws for the reservation of appointments or posts in favour of OBCs; it is of the belief that the OBCs are not adequately represented in the services of the State or the Central Government.

According to the Central Educational Institutions (Reservation in Admission) Act, 2007, the Central Government should reserve seats in Central Educational Institutions for the OBC’s. This Act also defines OBC’s under Section 2(g) as the class or classes of citizens who are socially and educationally backward as determined by the Central Government.

Exceptions

There are multiple cases wherein there are provisions regarding reservation for the members of SC or ST but there are no corresponding provisions for such reservations in the favour of OBCs. Some of these exceptions are enumerated below:

Seats cannot be reserved in specified institutions of excellence, research institutions and institutions of national and strategic importance in light of Article 335 of the Constitution.
Seats cannot be reserved for the OBC’s in Lok Sabha and the State Legislative Assemblies.
No reservation in appointments to services and posts in connection with the affairs of the Centre and the States unless the exception laid down under Article 16(4) is satisfied.

However, there exists a constitutional limitation on the exercise of powers under Article 16(4) by the Government. In Indra Sawhney vs. Union of India (AIR 2000 SC 498), it was held that Article 16(4) should be read along with Article 335. OBC’s are also covered within the ambit of Article 335 even though it is not expressly stated under the Article. The limitation prescribed by the Court, in this case, was that if the appropriate authority believes that any reservation in the favour of OBCs will adversely affect the efficiency of the administration, the powers under Article 16(4) cannot be exercised by the Government.

Backward Classes Commission

Article 340 of the Constitution empowers the President to investigate the conditions of the backward classes. The 3 features of Article 340 have been enumerated below:

The President has the power to appoint a Commission to investigate the conditions of the socially and educationally backward classes, the difficulties faced by them and give recommendations to resolve those difficulties and improve their conditions. The modus operandi of the Commission should be mentioned in the Order.
The Commission should make a recommendation regarding the grants that have to be released by the Government for taking the recommended action.
The Commission should submit its report to the President. The report should include a memorandum that explains the actions that the Government should take to improve the conditions of the backward classes. This memorandum should be laid down before each House of the Parliament.

The President has exercised his powers twice under this Article and appointed 2 Commissions in this regard. Let us now discuss the impact of these Commissions and how the Commissions helped to improve the lives of the minorities and backward classes.

First Backward Classes Commission

The First Backward Classes Commission was appointed by the President shortly after independence in 1953. The Chairman of this Commission was Mr. Kaka Kalelkar. The primary objective of this Commission was to establish a criterion that would be used to classify and define socially and educationally backward classes.

However, the Commission failed to meet its primary objective and the members were divided over the criterion that should be used to classify and define socially and educationally backward classes. The majority opinion was that the test for backwardness should be based on the caste-based social hierarchy of the individual. The majority opinion was not accepted by the Government and it termed the case system as the biggest barrier in the progress of the society and stated that establishing a caste-based system may lead to promote inequalities in the society.

The other issue in a caste-based classification is that not all individuals belonging to a particular caste may be educationally and economically backwards. There may be several individuals who will be well educated and economically stable even though they belong to a backward caste. There is a clear-cut case of the existence of a creamy layer within each caste. Also, the difference is economic and educational barriers vary across states and an individual from a particular caste may be backward in a particular state but not in another. What is important to note is that conditions differ from State to State and region to region.

Another criterion suggested by the Commission was using factors like lack of general educational advancement among the major sections of a caste, inadequate representation of the caste in a particular field of trade, commerce or industry etc to classify backward classes. The Government rejected these factors on the ground that the factors were very vague and given the population of India it would be difficult to apply these tests to all individuals as these factors keep changing with time. The Government after rejecting the solutions suggested by the Commission came to the conclusion that there was a need for further investigation into this matter to ascertain a proper classification.

In the absence of any proper classification, power was given under Articles 15 and 16 to each state to prepare a list of backward classes individuals in their respective states. This mechanism was surrounded by several errors as there was no guiding mechanism and it gave rise to a series of cases in this regard. Some of the relevant cases have been enlisted below:

Name of the Case	Classification system	Ratio
Balaji vs. State of Mysore (AIR 1963 SC 649)	Caste-based system	Caste can be used to determine backwardness but it should not be the sole dominant factor in determining backwardness. Social backwardness should be looked into keeping in mind the poverty of the individual.
P. Rajendran vs. State of Madras (AIR 1968 SC 1012)	Caste-based system	The Court accepted a caste-based classification on the ground that the social and educational backwardness of the castes was based on their occupations.
P. Sagar vs. State of Andhra Pradesh (AIR 1968 SC 1379)	Caste-based system	The Court rejected the caste-based system as it was the sole dominant factor used for determining backwardness.
K.S. Jayasree v. State of Kerala (AIR 1976 SC 2381)	Economic-standard-based system	Poverty or economic standard is a relevant factor in determining backwardness. Neither caste nor poverty alone could be the sole or dominant test.

Second Backward Classes Commission

The Second Backward Classes Commission was appointed by the President in 1979. The Chairman of this Commission was B.P. Mandal. This Commission is popularly known as Mandal Commission. The Commission was set up with the following objectives:

Determine the criterion for defining the socially and educationally backward classes.
Recommend steps for the advancement of the socially and educationally backward classes
Recommend whether there should be reservations in appointments or posts in Central and State Governments in favour of backward classes.

The Commission in its report observed that reservation should be provided to backward classes and recommended a 27% reservation of backward classes in appointments or posts in Central and State Governments in favour of backward classes. This coupled with the existing SC and ST (22.56%) reservations took the whole reserved category to 50%.

When dealing with the issue of determining a classification system, the Commission came to the conclusion that the determining factor should be caste and it ignored all other economic tests. The Commission also failed to include those individuals who may be backward even though they belong to a forward caste.

Following this report, the Supreme Court had the opportunity to determine the validity of this classification in the case of K.C. Vasanth Kumar vs. State of Maharashtra (AIR 1985 SC 1495). The Court held with a majority that caste cannot be the sole determinant of backwardness, but that it is not an irrelevant test and can be taken into account along with other factors.

The latest position in this regard was laid down by the Court in two landmark judgements. In Indra Sawhney vs. Union of India I (AIR 1993 SC 477), the Supreme Court while examining a caste-based system held that once a caste satisfies the criteria of backwardness, it becomes a backward class but it shall not remain a backward class always and will have to satisfy the test of backwardness from time to time. In Indra Sawhney vs. Union of India II (AIR 2000 SC 498), the Supreme Court made critical observations regarding the creamy layers in backward castes and held that individuals falling under the creamy layer of a backward caste should be excluded.

Conclusion

The First Backward Classes Commission that was set up did not live up to its expectations and failed to provide a proper classification. The Second Backward Classes Commission on the other hand provided a controversial classification mechanism. Both these Commissions failed to establish a proper mechanism and it was finally up to the judiciary to provide a proper guiding mechanism and the same was established in the case of Indra Sawhney. Therefore, the conclusion that can be drawn regarding the classification at this point are the following:

Once a caste satisfies the criteria of backwardness, it becomes a backward class but it shall not remain a backward class always and will have to satisfy the test of backwardness from time to time.
Individuals falling under the creamy layer of a backward caste should be excluded.

References

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Introduction

The following remedies are available to each party

Damages

Quantum meruit

Specific performance

Injunction

Damages

Types of damages

Ordinary damages

Special damages

Exemplary damages

Nominal damages

Damages by delay

Pre-fixed damages

Remoteness of damages

Measure of damages

Limitation of liability

Conclusion

References

Introduction

Guidelines by WHO for composition of sanitisers

In India

Legislation for hand sanitiser

Sale of hand sanitiser

Licences for manufacture, distribution and sale of sanitisers

Licencing, approval, and renewal of sanitisers by the Ministry of AYUSH

Licence for sale and stocking of sanitisers

In the United States

Advice to consumers by FDA

Conclusion

References

Introduction

Introduction to patents

Product patent vs process patent

Product patent

Process patent

How are product and process patents different from each other?

Take of developed and developing countries on product and process patents

WTO’s stand on product and process patents

Analysis of product vs process patents

Conclusion

References

Introduction

Positive

Negative

History of business and Human Rights

The concept of Human Rights

The need of guiding principles on business and Human Rights

The role of the State

The state can avoid any human right abuse

United Nations guiding principles on business and Human Rights

Remedial of Human Rights abuse

Role of the businesses enterprises

Due diligence under United Nations guiding principles on business and Human Rights

Abuse of right to work

Abuse of right to health and life

Forced migration

No place to go

Abuse of Human Rights by state and business enterprises in India

Infringement of right to privacy

Environmental degradation

Violation of right to property

Modern slavery (forced labour)

Conclusion

Introduction

Effect of death of a party to an arbitration agreement

Section 40 of the Arbitration And Conciliation Act, 1996

Case laws

Jyoti Gupta vs. Kewalsons (Arb. P. 599/2017 & I.A. 1357/2018):

GIST:

FACTS:

JUDGEMENT

Ravi Prakash Goel vs. Chandra Prakash Goel & Anr (Appeal (Civil) 1526/ 2007)

FACTS OF THE CASE:

JUDGEMENT:

Pravati Devi And O/S. vs Kesharwani & Co. (5th May,2011).

FACTS:

JUDGEMENT:

Conclusion

References

Pravati Devi And O/S. vs Kesharwani & Co. (5^th May,2011).