What are the consequences of breach of contract : an overview

November 7, 2021

This article has been written by Gauri Atreja pursuing the Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from LawSikho. This article has been edited by Zigishu Singh (Associate, Lawsikho) and Ruchika Mohapatra (Associate, Lawsikho).

Table of Contents

Introduction

The following article discusses the consequences of breach of contract. A contractual agreement is the foundation of any country’s business and trade. Any country that encourages commercial interactions has seen expansive growth in trade and, as a result, increased GDP. Contractual agreements are based on trust; which means that both parties must believe that the other will fulfil the contractual responsibilities that are expected of them.

The timely fulfilment of contractual agreements is an important part of any commercial transaction, and if one party breaches the contract’s terms, that party not only loses the other party’s trust, but it also has to pay a penalty for the breach of contract, which is predetermined during the contract’s drafting. Sections 73–75 of the Indian Contract Act deal with the consequences of breach of contract. In other words, what will be the liability and what will be the process of action if either party breaches the contract.

Now, it is possible that a breach has occurred, but it is not due to the fault of either party, but due to the actions of some external factors over which neither party has control or could have predicted the occurrence. The law has also provided guidance on what to do in such a situation.

What is breach of contract?

Assume you have been hired by a customer to finish a project. Consider this scenario: you do the project, but the customer never pays you for it. Your customer has breached your contract, and you are no longer in possession of the funds you were promised. This is an example of a contract breach. Whether you own a small business or provide services as an individual, you should expect to be subjected to breach of contract on occasion.

Contracts are documents that are used to formalise a connection between two or more people. Contracts will specify a set of conditions and obligations, as well as a number of requirements:

a) Technical specifications, such as the duration of a construction project.

b) Demands for service.

c) Requirements for reporting or information.

d) Legal standards must be met.

e) Financial constraints.

A breach of contract occurs when one of the contracting parties fails to meet a condition. Suits for breach of contract are fairly common in small claims court. A breach occurs when a contract is violated because the terms have not been met without justification.

In some situations, forcing the other party to fulfil their contractual duties may not be realistic for the person who has been affected by the violation. Instead, the party who has been harmed may decide to pursue other options.

When one party fails to complete their duties on time, in the manner specified in the contract, or does not fulfil their obligations at all, a breach occurs. A breach has occurred, for example, when a co-worker fails to fulfil their required part of a project or when an employee engages in behaviours prohibited by their contract.

When a contract is breached, the law has numerous remedies from which you can decide which is more appropriate , and the specific remedy you decide can influence the amount of monetary damages that must be paid. The plaintiff may be awarded monetary damages if you entered into a contract falsely, for example. This, however, is an unusual course of action. It is important to consult an attorney after getting harmed by a breach of contract to ensure you’re pursuing the most advantageous legal remedy.

Default event vs. contract breach

When a contract is breached, it might result in a variety of outcomes, including a default event. A default occurrence occurs when one or more of the contract’s key responsibilities are breached. The contract can be cancelled if a default event occurs. A default occurrence is almost always the outcome of repeated violations and breaches of important contract responsibilities.

Breach of contract and effect on small businesses

A breach of contract can cause substantial harm to both individuals and small enterprises. Breach of contract can squander time, effort, and money, in addition to producing a great deal of frustration. However, not all security breaches are equal; some are more dangerous than others. A contract violation can arise in a variety of ways, and many of them will be minor.

The most serious type of contract breach is a significant breach. In each of these instances, someone has failed to fulfil their contractual obligations. When this happens, the harmed party might file a civil suit for damages. A substantial breach occurs when a contractor completes a project but is not paid.

Another sort of contract breach that could result in a lawsuit is a fundamental breach. A party who has been harmed by a fundamental violation has the right to promptly terminate the contract and bring forward a lawsuit. A fundamental breach has occurred if, for example, you leased an apartment and the landlord put someone into the apartment before you.

An anticipatory breach occurs when it becomes evident that one party will be unable to complete their obligations within the time frame specified in the contract. For example, if you hire someone to paint your house and they don’t start until the day before i ir issupposed to be finished, you may be able to sue for damages because the project would be impossible to finish by the date specified in the contract.

What are the types of breach of contract?

Contractual breaches can take many forms:

a) Material breach of contract;

b) Anticipatory breach of contract;

c) Fundamental breach of contract;

Let’s take a look at each one separately

Material Breach of Contract

A material breach is the most serious of the three categories of breaches.

A material breach is a violation of a contractual party’s responsibilities, such as a failure to perform a service, negligence, or other significant failures.

Anticipatory Breach of Contract

When a party is unable to perform their contractual duties and the violation is obvious, it is referred to as an anticipatory breach.

An anticipatory breach occurs when a person lacks the capacity to carry out their responsibilities and it is evident that they are straining to do so.

Fundamental Breach of Contract

Another sort of contractual breach that allows the non-breaching party to cancel the contract and seek damages is a fundamental breach.

A fundamental breach is a form of breach that is more serious than simply breaking contract terms. Fundamental breach occurs when one of the parties in the agreement does not keep their part of the deal by failing to complete a contractual term that was essential to the agreement so much so that another party could not complete their own responsibilities in the contract. In some jurisdictions, a fundamental breach may not be feasible. For example, in Tercon Contractors Ltd v. British Columbia (Transportation and Highways), the Supreme Court of Canada used a three-step approach to examine the violation rather than the concept of a fundamental breach.

What happens if a contract has been breached?

When a contract is breached, depending on the nature of the breach, the breaching party may be regarded in default of its obligations, allowing the contract to be terminated by the non-breaching party. An event of default is an occurrence that is either contractually specified or undefined by the parties that results in a party’s inability to fulfil its contractual obligations. In some situations, the default event is so significant and material that it causes the other party to suffer damages and gives the other party the clear right to cancel the contract. On the other side, there are times when a party repeatedly breaches a contract. Each event of default is not material or significant in and of itself, but when taken together, it is evident that a party has failed to fulfil its contractual obligations sufficiently.

What are the repercussions of a contract breach?

The most apparent effect of a contract breach is that the non-breaching party suffers damages or injury as a result of the breaching party’s acts or omissions. The legal ramifications of a contract breach will be determined by numerous factors:

a) Contractual terms and conditions.

b) The type of contract.

c) The contract’s legal framework.

Contractual terms and conditions

Individuals and businesses sign contracts primarily to protect themselves from a potential breach. Both parties will agree to bind themselves legally to the terms and conditions of a binding contract. In a commercial setting, businesses have the freedom to enter into contracts after thoroughly weighing the benefits and drawbacks. As a result, they will be held liable for any contract violations.

The type of contract

The penalties of a breach can also be influenced by the type of contract.

In certain jurisdictions, for instance, if a person has engaged into an adhesion contract, the court may reject abusive clauses or even the entire contract if the duties are unreasonable.
A contract of adhesion is one in which one party dictates the terms and conditions to the other, who has no significant power to negotiate them.
A consumer contract will also be handled differently than a commercial deal.
When a merchant breaches a contract, a consumer is protected by law and will benefit from far stronger protection.

The contract’s legal framework

The applicable legislation is crucial in identifying the actual consequences of a contract breach. The same contract, between the same parties, with the same event of default resulting in a breach, can be handled differently in different jurisdictions.

For example, the state of Florida in the United States has a 5-year period of limitation under its statute of limitations for most breach of contract claims, although other jurisdictions, such as Quebec, Canada, have a 3-year period of limitation under its statute of limitations.

In Quebec, a lawsuit filed in the fourth year will be time-barred, however in Florida, the same person can bring a claim for damages within the statute of limitations time frame.

Is breaching a contract a crime?

Breaching a contract is not, in general, a crime as defined by criminal statutes. A contract is a civil transaction between two or more people. Entering into a Contract by dubious means, on the other hand, can lead to criminal charges. Contracts entered into, for example, as a result of fraud, force, threat, bodily damage, ransom, or other criminal conduct as defined by criminal statutes will result in criminal charges.

What happens if both parties to a contract breach it?

Both parties may be in breach of their contracts. The court will consider the parties’ total obligations, the losses sustained by both parties, the attribution of blame, and the property recompense or remedy available to each. It’s possible that one party broke the contract to a greater extent than the other.

If a party suffers a loss as a result of another contracting party’s breach, the party who suffers damages can normally seek reimbursement. However, if the party seeking compensation also caused harm to the other party, the latter can expect to be compensated as well. This is the point at which the courts must assign blame to each party and determine who may be eligible for compensation. For example, even though both parties have breached the contract, if one party suffers Rs. 50,000 in damages and causes Rs. 50,000 in damages to the other, the parties will not receive anything.

In actuality, the figures are not always that apparent, and the parties may or may not seek monetary damages. Depending on the breach, even though each party was accountable for 50% of the damages, one party may be sentenced to pay punitive damages, resulting in one party receiving recompense while the other receives none.

Conclusion

A contract is the starting point for a correlative set of rights and obligations between the parties, and it would be worthless if there was no statutory provision for the reimbursement of the aggrieved party’s damages or losses. The Indian Contract Act, 1872, gives a remedy to the non-defaulting party to a contract in the form of compensation for harm or loss caused by the other party’s violation of contract. Section 73 of the contract provides for reimbursement from the party who has breached the contract for genuine harm or loss. Without proof of loss, reasonable liquidated damages are payable.

Contracting parties may agree that in the event of a breach, the defaulting party will pay a certain sum to the other, or that in the event of a breach by one party, any payment given to him will be forfeited, according to Section 74. It may be referred to as a ‘penalty’ if the amount is not a genuine pre-estimate of the loss, but rather an amount intended to assure contract performance. However, merely stipulating something does not entitle you to compensation in the form of a penalty. For loss or damages caused by a violation of contract, proof must be produced.

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:https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

Carlill v. Carbolic Smoke Ball Co : a landmark decision amidst an epidemic

Sneha Mahawar

November 7, 2021

This article is written by Bhavyika Jain, a first-year learner of Symbiosis Law School, NOIDA. This article would provide the readers with an insight into the landmark case of Carlill v. Carbolic Smoke Ball Co., which was decided amid an epidemic at that time.

Table of Contents

Introduction

Whenever society faces an epidemic, placebos and fake medicine cures emerge at a rapid scale. In the wake of established medicinal organizations’ inadequacy to provide ready therapies to a unique ailment, there will be elements in society who will try to earn quick money by offering magical cures to the naïve.

Being one of the most cited cases, it explains the concept of unilateral contracts. It highlights the difficulties of unilateral contracts and also helps in understanding that unilateral contracts are the most important part of the contract. Unilateral contracts tend to be most useful at some point in industrial use; promoting products like vaccinations as seen in the present Covid-19 scenario, that guarantee illness prevention, are primarily benefited with the use of unilateral contracts’ enforceability.

Background

The country witnessed one of the deadliest viruses back in 1918-19 called the ‘Spanish flu’ or ‘Influenza’. Influenza is a disease that is caused by a virus that gets transmitted from one person to another through airborne respiratory secretions. If a new strain of influenza virus occurs against the population with no immunity an outbreak can evolve. The cause of extreme mortality of this pandemic came to be known as Influenza type A subtype H1N1, which resulted in millions of deaths.

The pandemic occurred in three waves as is expected of the Covid-19 virus. The first wave of which came in early March, during World War 1 and spread quickly through western Europe and then to Poland. Pneumonia was taken as a symptom to know who has contracted the virus. At a later stage, the flu was spread in almost all parts of the world including countries like India, New Zealand, the United States of America, etc. It was the time when the case Carlill v. Carbolic Smoke Ball Co. came into the limelight.

Aspirin, quinine, arsenic, digitalis, strychnine, Epsom salts, castor oil, and iodine were used to treat the virus because there were no antiviral treatments and no antibiotics to treat the secondary bacterial infections. Traditional medicine treatments such as bloodletting, Ayurveda, and Kampo were also used. Although procedures for notifying public health authorities of the spread of infectious diseases existed in 1918, they did not frequently cover influenza, which resulted in a delayed response. However, actions were taken. On islands like Iceland, Australia, and American Samoa, maritime quarantines were declared, saving many lives. Closing schools, theatres, and houses of worship, as well as limiting public transit and prohibiting mass gatherings were among the social distancing tactics implemented. Face masks became popular in various countries, including Japan, despite disagreements about their effectiveness. As shown by the Anti-Mask League of San Francisco, there was also some opposition to their use. Vaccines were also produced, but they could only aid with secondary infections because they were based on bacteria rather than the virus itself. The extent to which various limitations were actually enforced, differed.

Facts of the case

In the case of Carlill v. Carbolic Smoke Ball Co. (1892) Carbolic Smoke Ball Co. offered, by the means of an advertisement, to pay 1000 pounds to anyone who contracts the increasing epidemic influenza, colds, or any disease caused by catching a cold. As per the printed directions, they even included common flu. To show the seriousness and their sincerity in the contract the company deposited 1000 pounds into the Alliance Bank. Ms. Carlill used the ball in the same manner as was prescribed but still contracted the virus. She sued the defendant and demanded a reward from them.

Contentions of the plaintiff

It was claimed by the company that the advertisement was just a casual advertisement as they had no time to think and create it and there was no intention to enter into a legal obligation. They described it as a puffing advertisement as it was not made to any one person in particular, and there was no communication regarding the acceptance by the plaintiff and also no consideration was present in the proposed contract. Because of this, there is no need for them to pay any reward to the plaintiff.

Contentions of the defendant

The strongest argument as per the defendant was that when one generally gets an offer and is accepted by him, the same should be communicated as well but in this case, it was not communicated by the plaintiff. The court held that it was not a speculative offer but a definite one. It was mentioned in the advertisement that while consuming the smoke ball if anyone contracts influenza or even common flu, he is entitled to receive a reward. So, the advertisement caused the customers to see and act upon it. The money deposited in the bank showed the seriousness on behalf of the company about the offer, so it cannot be considered a puffing advertisement.

Issues raised in the case

The following are the four primary issues that were brought up:

Did the plaintiff’s action upon the defendant’s advertisement constitute a binding contract between the parties?
Is a formal notification of acceptance required by the contract in question?
Is it necessary for Mrs Carlill to notify the Carbolic Smoke Ball Company that she has accepted the offer?
Is there any evidence that Mrs Carlill gave anything in return for the company’s award of 1000 pounds?

The Court’s analysis of the case

Defendant, Carbolic Smoke Ball Co., argued that their advertisement lacked a binding impact which is necessary to form a valid contract. They argued that the phrases used in the advertisement did not constitute a legal commitment since the provisions of the advertisement were too imprecise to form a contract. They claimed that there was no time limit set and that there was no way to monitor how the smoke ball (product) was being used by customers. For example, a shady customer may not have used the product effectively and then accuses the corporation of failing to deposit the money according to the agreement. There was no contract since forming a legitimate contract necessitates transmission of acceptance intent. Mrs. Carlill didn’t openly or implicitly accept the offer in this situation, nor did she do so through any overt behaviour. As a result, it is evident that the advertisement was merely a marketing technique, and the corporation had no intention of entering into any kind of contract while making an offer to the general public, as per the court.

On the other hand, the Plaintiff stated that the promise was not vague and that the offer was constructed in such a way that it was evident that if the product was ineffective, the corporation would compensate a particular sum. To make things easier, the corporation had also deposited a considerable sum of money in the Alliance bank account. As a result, depositing the money demonstrates one side’s intention to truly sign an agreement. The plaintiffs further established that the money paid to purchase the carbolic smoke ball was a consideration. The advertisement was not a boast in the abstract. In fact, it encompassed the majority of the key characteristics of a contract, specifically a Unilateral Contract.

It was also stated that if the specific offer contains some conditions and fulfils the requirement, there is no need to accept that offer. Acceptance of the condition’s performance without notification is adequate. So, in this case, it was stated that fulfilling the terms of any offer constitutes acceptance and that communication of acceptance is unnecessary. Mrs. Carlill, the plaintiff got the reward of 1000 pounds.

Unilateral Contract

A unilateral contract is a contract where there is just a promise from one side and some performance is required from the other side. It’s a commitment made in return for specific activities. Advertisements and contracts are not the same things, but if an advertisement contains a clear promise to be legally bound, it can be considered a unilateral contract. In this case, the advertisement was not speculative and puffy. There was some thought given to the fact that the company would gain from the product’s sales and the fact that the company had deposited 1000 pounds in Alliance Bank as proof of payment honesty.

Communication of the acceptance of the offer, one of the essential elements of a valid offer, is defined under Section 4 of the Indian Contract Act, 1872. However, an exception is made under Section 8 of the Indian Contract Act for a unilateral contract, which states that when the offeror proposes the world, acceptance may be made through the performance of few acts. In this particular case, Mrs. Carlill consumed the ball as per the given directions, i.e., 3 times a day for 2 weeks. Such an action determined her acceptance of the offer for the promise. Thus, the advertisement was constituted as a unilateral contract.

Impact on English Contract Law

This decision had an impact on English contract law, particularly on the concept of a unilateral contract, as businesses and advertising agencies have henceforth been more cautious about what they divulge to the general public. A thoughtless marketing strategy can result in significant financial losses for a firm, as they may be drawn into an unnecessary legal battle.

There are now various possibilities for unilateral contracts. For example, if a person/pet goes missing and their family/owner puts up a poster of their image and name on it, offering a reward for any pertinent information or the safe return of the missing person/pet, it can be considered a unilateral contract. It is an offer to the entire globe. Once the person or pet has been located, it is assumed that the offer has been accepted. As a result, the offeror is now obligated to fulfil his part of the bargain, which is to compensate the person who found the missing entity.

Similarly, if the police offer incentives to the general public in the event of anyone offering information that would aid the police in a criminal investigation, it will be considered a unilateral contract. As a result, the award money is payable in the event of any person fulfilling the condition(s).

Harbhajan Lal v. Harcharan Lal (1925)

The case focused on a young lad aged 14 or 15 years, who had run away from his father’s house. In this case, the boy’s father was the defendant. He distributed a brochure in which he declared: “Anyone who finds my son and returns him to me will receive Rs.500 as a reward.” Harbhajan Lal, the plaintiff, discovered him at the Bareilly junction train station and took him to Dharamshala police station, where he informed the defendant that he had found his son, through telegram. However, when the incentive was given, the boy’s father claimed that he had not received any acceptance and hence was not entitled to any of the offer’s rewards.

According to the Allahabad High Court, this proposition was made for the benefit of the entire world. As a result, anyone can accept this proposal, and the significance of acceptance is the fulfilment of the proposal’s requirements. In this case, the plaintiff had fulfilled the proposal’s criteria by tracking down the youngster and sending the telegram. Thus, he is eligible for the incentive.

Conclusion

The case of Carlill v. Carbolic Smoke Ball Co. established the concept of ‘Unilateral Contract’, which is widely recognized by English and Wales courts. In terms of notification of acceptance of offer and consideration, it held that unilateral transactions are an exception. The case granted remedy not only in commercial issues but also under other Acts such as the Consumer Protection Act. The UK’s Consumer Protection from Unfair Trading Regulations, 2008 play a key role in making misleading marketing illegal.

The commercial uncertainty caused by such a void in unilateral contracts has an impact on the concept of contract privity. As a result, this case has become a landmark in contract law. Overall, the decision was well-crafted; yet, the decision’s underlying ramifications have been a perennial source of controversy in business circles.

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:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

An easy guide to draft a contract like a professional

Sneha Mahawar

November 7, 2021

This article is written by Surbhi Jindal, a law student at Dr B.R. Ambedkar National Law University, Sonipat, Haryana. Through this article, she attempts to discuss the nuances of drafting a contract exhaustively.

Table of Contents

Introduction

Many people think that drafting legal contracts is complicated. Moreover, it is often assumed that even when you have designed your contract correctly, your counterparts may not comply with the rules of the agreement. This guide will show that these assumptions are wrong. You can draft professional agreements independently if you follow this guide and develop some good negotiation skills. As long as you know what you want and understand the basic terms involved in drafting a contract, we will provide you with easy steps to take to make it happen!

This article attempts to address the process of drafting a contract, the essential points to keep in mind before agreeing, and the various do’s and don’ts of a contract. The article also discusses the rough sketch of the clauses that should be prepared. In the last part of this article, the author has stated how one can review the documents efficiently and effectively. Start with this easy guide to design professional contracts!

What is contract drafting

Contract drafting is the act of writing the terms and conditions of an agreement on a single piece of paper. It determines the future relationship of the parties. In the business world, contracts play a significant role in the organization’s success. They create a fundamental legal relationship between the parties.

A written contract can prove to be a boon for any organization because if any dispute arises, it will be easy for both parties to refer to a mutually decided agreement. If the matter goes to the court of law, it will act as evidence.

A contract, once drafted, affirmed, and signed by the parties, needs to be registered. It is essential for a contract to be written to avoid future hassles. The drafting of contracts is a very crucial task that needs to be error-free. One must always hire a professional to draft an agreement.

Things to keep in mind before entering into an agreement

Here are the top few things that would help a drafter to draft the best agreement:

The person drafting or reviewing the contract must possess adequate knowledge about the agreement. The rights and duties of the parties should also be included in the contract. Furthermore, it is essential to note that these things must be written in a simple language so that the person reading it can understand the context.
The terms and conditions of the contract must be capable of performing. The performance, clauses, and duration of a contract must be feasible. A few questions that determine the feasibility of a contract are whether parties to the contract can execute their rights and duties etc.
While drafting, one must predict the various problems or disputes that may arise possibly out of contracts. If one possesses such a quality of predicting future situations, then the purpose of a particular contract is served. This is helpful in avoiding future disputes.
The drafter/reviewer must try to avoid loopholes in the contract and make the contract as simple as possible. This step will be really beneficial in the long term as through this, you can avoid a lot of legal hassles. It will also help the parties to get a clear understanding about their rights and obligations.
Apart from this, one should know how to deal with different clauses. A few of the provisions that should roughly revolve around your mind without looking into the main structure of a contract are as follows:
Subject and its legal enforceability

The foremost thing while drafting a contract is to look for and understand the subject of the contract. The issue of the arrangement plays a vital role in determining what clauses are necessary to be added. E.g., suppose a contract is an employment contract. The clauses to be added are that it covers all the basic terms and conditions related to the relationship between an employer and employee.

Also, it is pertinent to note that the subject of the contract also determines the nature and legality of a contract. The reviewer must look at the issue of the agreement first. This is because as per Section 2 (h) of the Indian Contract Act, 1872, only the contracts enforceable by law are considered to be valid. If the subject of the contract is illegal, then there is no point in reviewing the whole document because it is void from the beginning (void-ab-initio).

Terminology clause

A contract must include a terminology clause meaning terms used throughout the agreement must be stated with their meanings. This is done to avoid the problem of having the same word being interpreted in multiple ways. To avoid ambiguity, the terminology clause must be added. So, before starting to draft, you should ideally look for all the technical terms that should be included so that it becomes easier for people to understand. For example, the word ’employer’ and ’employee’ should be defined in clear terms.

Information of parties

The contract is made when two different entities/parties wish to enter into a business relationship. The parties are the essence of the contract. Therefore, the drafter must know adequate details about the parties. This information regarding parties to a contract must be added. The terms and conditions that the parties agree on, the kind of business they are involved in, the address of their organization, etc should be explicitly stated in the agreement.

Duration of the contract

The duration of the contract must be specified. A contract is always made for a definite period, no matter how long it is. But the time must be mentioned to decide when the legal relationship between the parties will exist. Sometimes, the duration of the contract depends upon the achievement of a specific goal too. A drafter must explicitly lay down when the contract between the parties comes to an end.

Renewal of the contract

This clause is sometimes added in the clause of the duration of the contract. This is done to avoid the formation of the same arrangement again and again. If the agreement is of such a nature that its terms and conditions could not have been changed for an extended period, then a renewal clause can be inserted. While drafting a contract, this clause should be inserted only if the parties permit it. A drafter should never insert this clause by themselves.

The legality of consideration

A contract must stipulate the consideration that each party will perform on its part. Consideration is something given in exchange for the service or product. The nature of the consideration must be legal, and it should be provided through lawful means. A contract in which consideration is either wholly or partly illegal, will be considered as unlawful and void as under Section 23 of the Indian Contract Act, 1872. The drafter must consider the nature of the agreement and decide the legality of the contract.

Quality of goods and services

This clause is inserted to ensure that the purchaser and the seller respectively. They receive and sell the goods and services of their desired quality which is to be clearly stated in the contract. In case of any inadequacy, they can approach the court of law with enough evidence of the legal clause.

Return and refund

The clause of return and refund must be inserted in the contract to ensure if the party isn’t satisfied with the goods, they may return them and seek a refund. It should mention the policy of returning the goods and refunding the money. The parties contracting can inform the drafter about their return and refund policy to ensure that they meet on the same lines.

Dispute settlement and clause of jurisdiction

If a dispute arises, it should be mentioned what the process and mode of adjudicating the conflict is and where the jurisdiction would lie. Where would the parties seek remedy and get their grievance addressed? Now, this is to be decided at the convenience of the parties. It is generally preferred to have a specific method and jurisdiction of dispute.

Termination of contract

A clause must be there stating in what cases the contract will stand cancelled. This clause is declared to limit the control of the parties. If a party acts contrary to the agreement, the other party can ask for the termination of the contract. But this can only happen when the drafter drafts this clause into the contract and both parties have agreed to decide upon the terms of termination of a contract.

Rights and duties

The contract must contain the rights and duties of each party. The benefit of inserting this clause is that it governs the code of conduct between the parties.

The clauses mentioned above are just for reference but not limited to it. As per the suitability of a contract, the drafter can add the clause to avoid all future hassles. But, they should remember that the rights and duties inserted should not favour one party and against the other. They should be drafted, maintaining neutrality and balancing the rights and responsibilities of both parties.

So, these were some of the main parts that a contract drafter should glance at when the contract first comes for the task on the desk. Now, let us look in detail at the four main parts of the agreement and which clauses are added to the contract.

Four main parts of the contract

Drafting contracts is not an easy task. Though several templates are available on the internet, the biggest challenge that remains while reading, interpreting, and drafting is the absence of a structured method that suits your purpose. It is because the templates available on the internet are made according to the different laws and transactions.

Your transactions may undoubtedly differ from the existing ones. Instead of copy-pasting, you may end up inserting unnecessary clauses or may miss some critical clause that ought to be included. Therefore, you need to understand how to draft the contracts effectively.

In the above section of this article, we discussed certain things to keep in mind for drafting the clauses in a contract. You can use the above points for your reference while drafting a contract. That was just a basic idea on the drafting of clauses. In this section, we will discuss the clauses of a contract that appears in every arrangement unless contradictory.

Essentially, contracts are divided into four main groups and then further subdivided into various clauses. Here is how you can divide your agreement to make it look simpler.

Introductory clauses

The introductory clauses include the agreement’s title, essential line, name of the parties, definitions, interpretation, the preamble, and recital clauses. The critical points to remember while drafting these clauses are as follows:

Title clause

It is essential to state the title of the agreement. It indicates the inherent nature of the agreement and leads the person who is reading to understand the overview of what they can expect in the report. For example, if the title of a contract is an employment agreement, it would indicate that the deal is essentially drafted to determine the terms and conditions between an employer and an employee.

Introductory line

The introductory line is one of the most important things to include as it indicates the date of execution and its effective date of placement. It is stated as, “This XYZ agreement is executed on ‘this’ date at ‘that’ place”.

Parties and description

This clause includes the name of parties and other details such as son of/daughter of, business entity number details, and further identifiable information through which parties can be ascertained. Besides this, it also mentions the registered address of the entity and a short abbreviation by which company/party will be referred to as. It is done so that the word used throughout the contract is shortened and used uniformly.

Preamble and recitals

A preamble is the introductory paragraph that usually talks about who are the parties to an agreement. The main purpose of including preamble and recitals in a contract are to answer five W’s: who, what, when, where and why.

Recitals are intended to provide a background of the parties, like how these both or multiple parties came into contact with each other and the situation before the parties entered the contract. It usually begins with ‘Whereas’ and then explains in detail about the parties.

Definitions

All the typical terms that you think either have a broader ambit or are intended to be used for a specific purpose should be defined explicitly in the contract. This clause has a unique characteristic of interpretation where the meaning of a term, if specified in a definition clause, has the same performance throughout the contract. The terms should be capitalized wherever they are used in the agreement.

Operative clauses

An operative clause is essentially drafted to show the commercial intent of both the parties. This intent is expressed through the clauses. These clauses must consider the ‘give and take’ that is happening through the contract.

Effective date

It is one of the most important clauses to be included, i.e., from which date would the contract be effective and bind the parties to perform their part of obligations. Not the only date, the contract can be effective when some condition precedent to the agreement is fulfilled.

Obligation and consideration clause

The statement regarding the respective obligations of both parties and the consideration must be taken care of while drafting a contract. Parties should be made aware of their duties in writing to avoid confusion in the future. Besides the obligation clause, the consideration clause, i.e., what parties will receive in return for their performance, must also be mentioned.

Term

The duration of the contract must be specified in the agreement. Suppose, a contract entered into by the parties is intended to bind them in performing duties for five years, then that should be explicitly stated to avoid ambiguity in the future.

Termination

This clause is necessary because it clearly states the circumstances under which an agreement can be terminated. This operative clause should be entered into the contract diligently, as gaps in it can lead to a dispute in the future. Also, one should remember that nothing should be inserted that is in favour of only one party.

Covenants

This clause seeks to pen down the duties and rights of the parties. In case of a breach, the non-defaulting party will be free from performing their part of the obligation and has the right to sue the defaulting party or to terminate the contract.

Representation and warranties

This clause lists down the representations and warranties that the parties make. The clause is inserted so that in the future, in the case of any misrepresentation, the suffering party can sue the other side on account of such misrepresentations made. For example, in the contract, it has been stated that the X product has a warranty of 3 years. But later on, the company refused. In such a case, if it is written in a contract, the party can show the evidence and take the matter in their favour.

Boilerplate clauses

After the operative clauses, the boilerplate provisions are to be drafted in a contract. Boilerplate clauses are considered the standard provisions that are penned down to focus on the contingency of the contract. In such clauses, the solution to the inevitable events is provided. Here are some of the provisions that are inserted under this heading:

Governing law

While this clause may seem very uncommon because everyone may know the law by seeing the title, it is essential to write all the rules that govern the particular contract. This clause becomes one of the most critical clauses in international agreements.

Indemnification

Indemnification means to protect someone from the losses that are either caused by themselves or the third party. So, while drafting a contract, this clause is inserted to decide the scope of indemnification by the party. It is inserted to determine to what extent the indemnifier will be liable to indemnify the indemnity holder.

Dispute resolution

As the name of the clause indicates, in this clause, the method of adjudicating the fights or disputes under the contract will be decided. Mostly, the parties adopt alternative dispute resolution methods such as negotiation, consulting, mediation, and arbitration. It is essential to mention this clause for speedy justice to the dispute.

There are many other boilerplate clauses such as a waiver, assignment clause, amendment clause, etc. The clauses are to be inserted as per the suitability of the subject matter of every contract. Now, let us come to the last part of the contract, i.e., its execution.

Executing the contract

Once the contract is drafted, the next part is the execution of the contract. The parties need to confirm the execution by signing of the contract. The signature on the agreement shows the willingness of both parties to enter into the contract. This clause intends to cover the understanding formed between the parties.

Now, there are certain do’s and don’ts while drafting a contract that one should never forget. These are explained as follows:

Things to do while drafting contracts

Contract draft must answer all the five W’s- Who, What, Why, When, and Where. The questions formed from these five W’s are:
- Who are the parties to contract?
- What is the contract for?
- Why do parties want to enter such a Contract?
- When is the contract formed, and when will it come into force?
- Where is the agreement to be enforced?
The language of the agreement must be straightforward. One should avoid the use of legal jargon. In other words, the use of complicated language must be avoided.
Punctuation marks, words like ‘and,’ ‘or,’ should be used with utmost care as they can change the whole meaning.
Always begin with the recital clause.
Try to use active voice throughout your contract.
Numbers should be written both in ‘Alphabets’ as well as ‘Numerals.’
All the technical terms must be clearly defined.
A copy of the drafted contract must be retained in the office for future record.
Always assume yourself as a party to the agreement to identify errors, if any, quickly.
Notarization must be included if it is required by law.
Avoid ambiguity and vagueness in contracts.
Proofread the document twice.
The definitions should be exhaustive.

Things not to do while drafting contracts

Never use long sentences. A contract should always contain crisp and short sentences.
You should never assume that the definition of a particular term has the same meaning throughout the contract.
Everything should not be verbal. This is because in absence of any written statement, the rights and intentions of parties will not be clearly documented. As a result, the relationship between parties may get sour.
Don’t act yourself. Everything should be done following the terms finalized by parties.
Never read the agreement hurriedly and hastily. It can bring more harm than good.
One should always avoid the use of unnecessary abbreviations.

How to review contracts

Till now, we have got to know how a contract is to be drafted diligently. However, drafting is only one step. The last and the most crucial step is to review the agreement efficiently so that the errors and mistakes that might have been made in the contract while drafting can be avoided.

How tiresome a task can it be to review the contract after drafting, especially if it’s the same thing that you have been preparing for such a long time? Whenever you are examining any piece of content written by you, hardly any mistake will be spotted. This is because our mind gets adapted to the same content’s structure. And that’s why it is always suggested that someone review your contract to highlight the mistakes.

How to review a contract efficiently and effectively? Is there any shortcut? Well, there are no shortcuts to good things. But yes, there are ways to make your reviewing work easier. Let us understand it in detail with the help of a principle called three-level reading.

First-level reading

In the first-level of reading, the contract has to be reviewed by the reviewer by looking at a few aspects while answering some basic questions in the contract that will be discussed in the latter part of this section. As soon as you skim through questions, you will get to know whether your contract is adequately drafted or not. So what are these questions? Let us understand them.

What is the subject matter of the contract or transaction?
Who are the parties entering into the contract or transaction?
What and How the roles, responsibilities, and obligations of the contract or parties are performed?
What are the considerations and the payment mechanics involved in the contract or transaction?
On which date or day will the contract become effective?
What would be the duration of the contract, and how will it be terminated?

The primary purpose of the first-level reading is to get the gist of the contract and understand the broad nature of the transaction that revolves around the agreement.

Second level reading

Now, after you have done the first-level reading and understand the broad nature of the transaction, it’s time to do a second-level reading of the contract. So, what has to be looked for in the second level of reading? Here are some pointers presented below to help you with the same:

Highlighting the most relevant and essential clauses such as renewal, assignment, liabilities, termination, etc. After doing this, you should note those clauses that are very much specific to your client’s interests.
Vague, subjective, and ambiguous clauses should be removed from the contract. This is because of the troubles they are going to create in the parties’ business relationship. These have to be either deleted or edited to make them more comprehensive and avoid ambiguity.
Look for the termination and breach provisions, dispute resolution provisions, and various other contract provisions highlighted above.
The clauses such as representations, warranties, conditions, precedents, and covenants should be the special care of.

The primary purpose of this second-level reading is to understand the contract comprehensively and get an idea about what is happening in the agreement in the real sense.

Third-level reading

Here we come to the third and the last stage of reviewing the contracts efficiently and effectively. This level requires the application of your mind. In this step, your thinking power and reasonableness would matter a lot since you add your perspective.

Assessing the risks and eventualities that have not been provided for.
Look for the danger signals for your client in the contract.
Assessing the connected contractual obligations that the drafter may have missed and are very important for the contract.
Looking for the definition clause and finding out whether any technical terms have been left unexpressed and are essential to be described in the contract.

So, follow this principle of three-level reading, and you are ready to draft your contract efficiently.

Conclusion

Contract drafting is a skill that every lawyer must possess. It is often a misconception that only people of a particular field like litigation should have such talent, which is unnecessary. But it is not valid. Researching and drafting are the most critical skill sets in one’s life. You should know how to draft thoughts, words, and ideas efficiently so that even a layman can understand.

People hire professionals to draft contracts because they know they can prepare their words simply and effectively. A person from any field can understand the intricacies of a contract. Using complicated and fancy words is of no use if one has to search the meaning every time to understand the terms and conditions of the agreement.

A famous saying for life: ‘Honesty is the best policy.’ Similarly, ‘Simplicity is the best policy to be kept in mind while drafting‘.

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:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

War on terror : analyzing its impact on International Criminal Law

Sneha Mahawar

November 7, 2021

This article is written by Varchaswa Dubey from JECRC University, Jaipur. This article reflects the analysis of the impact on International Criminal Law by the war of terror.

Introduction

In a war against terrorism, the human rights jurisprudence, and rule of law are the most applauded champions on earth. To eliminate the gruesome acts of terrorism must be considered as a different and more wicked act against human rights, and the rule of law.

The act of terrorism includes war crimes, genocide, and crimes against humanity, and to prosecute those who are responsible for such crimes, the United Nations General Assembly enacted the Rome Statute of International Criminal Court in 1998 which empowered the International Criminal Court to prosecute individuals starting from 2002.

The modern-day concept of terrorism was first witnessed during the year 2001, when the then-President of the U.S.A. used the term ‘war on terror’ referring to the September 2001 attacks, infamously known as the 9/11 attack.

Origins of war on terror and International Criminal Law

Terrorism has always existed in society in different forms, including mass killings, assassinations through bombs, etc. but the contemporary times’ concept of terrorism can be traced back to the 18th Century where French Revolution began in 1789 and lasted until 1794 where after executing King Louis XVI, and his wife, more than 17,000 individuals were executed, and this event of executing thousands of people is infamously termed as the reign of terror.

Terrorist attacks have occurred ever since, however, the gravity of atrocities caused by such acts of terrorism has increased. The attack of 9/11 is the worst terrorist attack the world has ever witnessed in contemporary times when more than 3000 people lost their lives.

What is the war on terrorism?

The 9/11 attacks in the U.S. led to the origins of the global war on terrorism, which was initiated to eliminate terrorism worldwide. After the September attacks, the U.S. administration began an endless war against terrorism through open military operations, new defense legislation, blocking financial support to terrorism, etc.

The Bush government not only decided to tackle terrorism worldwide but also asked other nations to join the U.S. or else it shall be considered that they are associated with terrorism. Eventually, many nations joined the international operation against terrorism, when most of the nations enacted more strict laws regarding terrorism in their respective nations.

What are the impacts of war on terrorism?

After numerous nations, including India, joined the U.S.’s war on terrorism, the terrorism groups, especially al-Queda, which was operated primarily by Osama Bin Laden, the prime accused in the 9/11 attacks, faced heavy damages on their dominance, after the U.S. military was deployed in Afghanistan, where al-Queda is situated. The war on terrorism not only led to Taliban leaders surrendering to the U.S. troops but also at least 11 terrorist camps were destroyed, and routes were blocked to prevent the running away of terrorists from Afghanistan. All the efforts of the U.S. were achieved then they eventually managed to kill the al-Qaeda leader Osama Bin Laden in the year 2011 during a raid in Pakistan.

With the demise of the al-Qaeda leader, the global war on terrorism did not stop and there is no conclusive proof as to when will this war against terrorism will come to an end.

The Hamdan judgment

The Supreme Court of the United Nations in the case of Hamdan v. Rumsfeld, Secretary of Defense (2006) tried the close associate of Osama Bin Laden, who was captured by the U.S. military during a raid in Afghanistan which was responsible for killing Osama Bin Laden. Hamdan was detained in Guantanamo Bay where he was held eligible to be tried by military courts by the then President of the U.S.

Hamdan filed a habeas petition before the U.S. District Court for the District of Columbia arguing that the military courts have no jurisdiction to try him for the alleged offenses, and the trial by military commission is a violation of common Article 3 of the Geneva Conventions, 1949. The District Court allowed the appeal of Hamdan and ruled that the military tribunal had failed to establish that Hamdan is a prisoner of war, however, the judgment was reversed by the D.C. Circuit Court.

The circuit court ruled that Geneva Conventions cannot be enforced by federal courts, and the President is a competent authority to determine the status of a prisoner of war, and the President has the authority to establish military commissions which will sustain evidence gained by torture or coercion.

The matter eventually went to the U.S. Supreme Court and it reversed the judgment of the Circuit Court while ruling that military commissions are a violation of Article 3 of the Geneva Conventions, and the Geneva Conventions were enforceable in federal courts as well but the Congress passed the Detain ee Treatment Act of 2005 which ceased all the federal courts to hear habeas petition which significantly infringed the Supreme Court of U.S. judgment, and Hamdan was later found guilty of providing support to terrorists but was acquitted for charges of conspiracy.

The targeted killings judgment

The case of The Public Committee against Torture in Israel v. The Government of Israel (2006) considered Israel’s policy which caused the death of terrorists who were associated with planning, committing, and launching terrorist attacks in Israel against civilians and soldiers. The strike back by the soldiers resulted in harm to the lives of innocent civilians. The main question before the Supreme Court of Israel was whether the State acts legally in such cases.

The petitioners in the present case argued before the court that such killings are a violation of human rights and such killings have caused large disapproval by the international community. However, the Supreme Court disagreed with the arguments of petitioners holding that targeted killings may be unlawful and then the court emphasized human rights law.

The Court further held that it cannot be decided prior that each targeted killing is prohibited in accordance with customary international law in the same way it cannot be determined that every targeted killing is permissible under customary international law.

What is International Criminal Law

International criminal law is the subset of international public law, which is primarily concerned with the criminal activities of individuals, and places responsibility on individuals who commit criminal acts. International criminal law is not concerned with inter-state relations but the responsibility of individuals who commit acts like genocide, crimes against humanity, war crimes, and crimes of aggression.

The prosecution under international criminal law is conducted at the International Criminal Court, situated at Hague, which is empowered to prosecute and punish individuals who commit grave offences.

What are the jurisdictions of the International Criminal Court with respect to the war on terror

The International Criminal Court (ICC) prosecutes and imposes punitive measures on those who are guilty of committing genocide, crimes against humanity, war crimes, and crimes of aggression. The jurisdictions of ICC are defined in Article 5 of Rome Statute, however, the ICC can only entertain cases when the country where the alleged offence took place is a party to the Rome Statute, or the person who is an alleged criminal belongs to a country who is a party to Rome Statute.

The ICC only exercises its jurisdictions in cases where national courts fail to practice their jurisdiction, and to prosecute a criminal, also the jurisdictions of ICC are not retrospective, i.e. any offence which took place before the commencement of ICC cannot be tried at ICC.

The most atrocious crimes can be tried at the national as well as international level, however, such prosecution of the person is a subject matter of jurisdiction of the court where such prosecution is taking place.

In numerous instances, the International Criminal Law and the international legal mechanism concerning terrorism operate parallelly and do not intersect with each other, yet the only method by which they can intersect is the assistance of terrorism-related facts concerning the main atrocities under international criminal law, like genocide, crimes against humanity, war crimes, etc.

The International Criminal Court certainly have a crucial responsibility regarding what shall be done in cases of terrorist acts, but still, the international criminal law is in turmoil in addressing terrorism as an individual crime, yet still, the jurisdictions of the International Criminal Court has absolute jurisdictions over acts of genocide, crimes against humanity, war crimes, and crimes of aggression.

Genocide

Defined in Article 6 of the Rome Statute, genocide refers to those crimes which involve killing members of a group, causing grave physical and mental injuries to the member of a group, intentionally degrading the living conditions of members of a group, imposing measures to prevent births, and forced transfer of children to another group.

Crimes against humanity

Defined in Article 7 of the Rome Statute, crimes against humanity refers to murder, extermination, enslavement, deportation or forcible transfer of people, forceful imprisonment, torture, rape, sexual slavery, forced prostitution, forced pregnancy, forced sterilization, or any other form of sexual violence with the same gravity of offence, any type of persecution against a group on racial, political, national, ethnic, religious, etc. grounds, the disappearance of persons, crime of apartheid, crimes causing mental or physical injury, etc.

War crimes

Defined in Article 8 of Rome Statute, war crimes refer to wilful killings, torture or inhuman treatment including biological experiments, intentional causing suffering or injury to body or health, destruction of property not justified by the military, forcing a prisoner of war to serve in the forces of a hostile power, depriving a prisoner of war of the right to fair and regular trial, unlawful deportation, unlawful confinement, taking of hostages, and various other crimes committed during a war.

Crime of aggression

Defined in Article 8(Bis) of Rome Statute, crime of aggression refers to the planning, preparation, initiation or execution, by a person in a position of authority effectively to exercise control over or to direct the political or military action of a State, which through its nature constitutes to be a violation of international laws. Crime of aggression also refers to the use of armed forces to violate the sovereignty, territorial integrity, or political rule of another State.

Treaties to tackle terrorism activities

Since 1963 The United Nations has bestowed 19 international legal instruments to prevent terrorist acts, primary being:

Convention on Offences and Certain Other Acts Committed On Board Aircraft, 1963: the treaty was bestowed to provide in-flight safety to the passengers, and crew members. The treaty authorizes the air commander to impose restrictions, including restraining if such flight commander has reason to believe that any person may commit or has committed any act which may compromise the safety of the aircraft.
Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, 1973: protected persons under this convention refers to the head of a State, Minister of External Affairs, or any state representatives. The convention places a responsibility on the states to punish any person who is found liable for murder, kidnapping, or any other attack on the internationally protected person.
Convention on the Marking of Plastic Explosives for the Purpose of Detection, 1991: the convention was bestowed to control and curb the use of unmarked and undetectable plastic explosives, and the State parties are under obligation to ensure that they have effective control over unmarked plastic explosives.
International Convention for the Suppression of Terrorist Bombings, 1997: it bestows a universal jurisdiction over all the illegal explosives or other similar products against public places. The convention also highlighted the urgent need to enhance international cooperation between states to prevent acts of terrorism.
International Convention for the Suppression of the Financing of Terrorism, 1999: the convention places a responsibility on the state parties to counter and curb financing relating to terrorists in any form.
International Convention for the Suppression of Acts of Nuclear Terrorism, 2005: the convention is concerned with the wide range of acts concerning nuclear power and nuclear reactors. The convention places a responsibility to either extradite the offender or prosecute them and to encourage the states to cooperate for the prevention of terrorist activities.

How terrorism affects the International Criminal Law

Terrorism is not only an act of violation of human rights including the right to life and the right to have a safe environment, but also terrorism violates the peace and security of the nation and results in infringement of the sovereignty of the nation.

Terrorism has adverse effects on the governance of a country, human rights, and the rule of law or the law of the land. Terrorism violates the rule of law, and especially international criminal law, by not only violating its international legal obligations of not to practice terrorism but also shake the foundations of the country which is governed by rule of law. Terrorism also weakens the faith of people in law, when terrorist attacks are committed.

What are the impacts of war on terror on International Criminal Law

The war on terror was primarily initiated by the U.S. to deal with those who were responsible for the 9/11 attacks in New York, and this war eventually led to numerous military deployed in Afghanistan, and other neighboring countries, including Pakistan, where the U.S. Navy seals traced the al-Qaeda leader and killed him in an encounter during the raid. This violates the terms of international criminal law which should have prosecuted Osama Bin Laden.

According to an article, the U.S. war on terror kills nearly 500,000 in Afghanistan, Iraq, Pakistan including U.S. and allied troops, civilians in the war zones, local military and police forces, as well as militants, who have died from war violence.

The war on terrorism is not only arbitrary but also is responsible for the lives of individuals who should otherwise have been prosecuted by the established international criminal law.

The International Criminal Court (ICC) began operating in the year 2002, and Afghanistan has been an ICC member country since May 1, 2003, yet the first request of investigating the crimes against humanity and war crimes came in limelight in the year 2017. According to the ICC prosecutor Fatou Bensouda, the war crimes and crimes against humanity have been committed by the Taliban and other armed groups, even before the period when Afghanistan joined the ICC.

This reflects how instead of considering international criminal law, the U.S. has arbitrarily practiced its jurisdictions to tackle terrorism, instead of ICC.

How International Criminal Law can tackle terrorism

At the international level, the rights and obligations of a State under international law are superior to any rights or duties that may exist under national law. International law is applied in national courts as well as in international courts and informs the development and interpretation of national laws and practices. It is, therefore, crucial to have at least a basic understanding of international law to apply fully the legal framework relevant to counter-terrorism.

No trust in the government, liberal democratic and judicial mechanism, and fair laws play a significant role in promoting terrorism and therefore, the international criminal law can restore this trust amongst people.

In cases where a nation is not willing to not able to enforce International Criminal Law in its domestic legal mechanism, most of the states have bestowed an adjudicative power to the International Criminal Court to fill that gap. However when a state is not able to enforce counterterrorism legislation, no international legal institute can fill that gap, therefore the national counterterrorism laws are associated with national sovereignty and it is predicted that the future of international criminal law will primarily be driven by domestic laws.

The international laws are yet to enact a universal definition of terrorism and are yet to establish a codified law to curb the acts of terrorism at the international level which shall be applicable and adopted by all the states altogether.

Rule of law

Just like terrorism, there is no certain established definition of rule of law, however, according to Black’s Law Dictionary rule of law refers to a legal principle of general application sanctioned by the recognition of authorities, and usually expressed in the form of a maxim or logical proposition. The basic concept of rule of law is that law is the ultimate guardian of the land, and no one is above the law, not even the lawmakers, kings, and rulers.

Considering international criminal law as a settled rule of law, the firmly established legal jurisprudence under international criminal law can effectively restore the efficiency and impact of rule of law, leading to peace, and prosperity across the areas of terrorism.

The rule of law is not only the law of the land, but also it safeguards basic human rights, and since terrorism is a direct attack on human rights, the rule of law is its counter-part that can curb terrorism, by not only establishing a settled procedure across the areas of conflict but also eliminates the chances of terrorism.

Human rights

The United Nations in its report has argued that responses to violent extremism that respect and protect human rights are more effective and sustainable, however, all the anti-terror activities of states tend to violate human rights in every aspect possible, including the right to life, and personal security. To tackle terrorism numerous campaigns have taken place which has also resulted in a loss of civilian lives and there is evidence which reflects the abuse of human rights and freedom.

To protect innocent lives, and to eliminate terrorism, the armed forces and the concerned government must adapt to new approaches which not only address terrorism but also safeguard the lives of militants residing or found in war lands. A new approach is also necessary for armed forces which respect the value of human rights.

The promotion of human rights will not only prevent any loss to human lives but also it will promote the rule of law, especially international criminal law. International criminal law is primarily responsible for prosecuting the terrorists, but due to the absence of its forces, the task of handing over the terrorists should be done by the armed forces of respective states.

Treaty laws

According to Black’s Law Dictionary, a treaty refers to a “compact made between two or more independent nations with a view to the public welfare. A treaty is not only a law but also a contract between two nations and must, if possible, be so construed as to give full force and effect to all its parts.”

The treaties concerning the suppression of terrorism have a history long before the war on terror was declared however the treaties not only lack the enforceability but also the jurisdictions which can eliminate acts of terrorism. Even certain treaties have empowered jurisdictions to the International Court of Justice yet still nations avoid such procedures in cases of counterterrorism treaties.

The treaties under International law can certainly eliminate the acts of terrorism but only in cases where the ICC prosecutes the individuals who are alleged to have committed terrorist acts. The treaties are an ideal piece of legislation that can also bestow a codified law and the procedure associated with anti-terrorism, but it can only be achieved in cases when the treaties are multilateral and binding upon the nations to follow its terms.

Conclusion

International Criminal law has made significant progress in the field of countering terrorism and terrorism financing with the assistance of international treaties, statutes, and documents, however, it has been noted that international laws certainly suffer from a lack of jurisdiction, financial assistance, enforcement team, less awareness, etc. and therefore, the international law is suffering at such a great level that very few people have been tried at ICC over last 2 decades. The nations who have not accepted the jurisdictions of ICC are one of the reasons why international criminal law not only lacks jurisdictions but also the non-prosecution of those responsible for terrorism, therefore, nations must adapt to the jurisdictions of ICC.

In most, terrorism-related cases the prosecution must be done by national courts because bringing all the terrorism-related matters to the ICC will overburden the court, and the national courts must be well competent to try individuals responsible for terrorism-related activities, however large scale terror activities like the 9/11 attacks and the ISIS acts shall only be tried by the international courts due to the gravity of the offences.

After scrutiny of the situation of war on terror, it can be concluded that war on terror has not only dominated the legal mechanism laid down by international criminal law but also the practice of killing terrorists is arbitrary, and therefore, there is an urgent need to cease the war on terror and instead nations must rely on the workings of international criminal court to prosecute the individuals responsible for the acts of terrorism.

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:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

Indian Stack Nationalisation of the financial infrastructure

Oishika Banerji

November 7, 2021

This article has been written by Sagar Rane pursuing the Diploma in US Technology law and paralegal studies from LawSikho. This article has been edited by Prashant Baviskar (Associate, Lawsikho) and Smriti Katiyar (Associate, Lawsikho).

Table of Contents

Introduction

Indian Stack is a set of API’s that allows government, business and start-ups and developers to use a unique digital infrastructure to conduct India’s business presenceless, paperless and cashless delivery service. Many software developers approved of this concept and they came together to develop, evolve and evangelise these API’s and systems.

Indian stack is a software project aimed at creating a unifying software platform that would enable the Indian population to use digital software in their mobile phones and other electronic devices. The Indian government has pushed this creation of Tech stack, thereby enabling different services to be utilized by the Indian people at the a click of button without the hassle of documentation, paper money and wet signature. These developments have paved the way for India to become a fintech pioneer.

Success story of Indian stack

Indian has ventured into adding this digital platform to its economy, which has been growing at a very fast pace since 2009. They have achieved this by creating three different layers.

a.Biometric Identity database,

b.Simplified payment addressing

c.Digital Payment Interoperability.

Let us understand this by using a example of fictional person called “Ram”

Biometric Identity Database: Ram is a garment worker who ventures from Madhya Pradesh to Mumbai in order to start his own garment business. As Ram is a garment worker he does not have his own permanent address and Bank usually needs multiple ID documents to open an account. In 2009 the Indian government linked the Biometric identity of a person to a unique account number. This enabled people like Ram to have their own Unique identity number. By using this biometric number (Aadhar Card) & his own Physical biometric Ram is able to open a Bank account as the unique identity allows the banks to conduct an instant KYC check.
Simplified payment addressing: Thereafter that identification number, phone number and Bank account number is linked to a simplified payment address called UPI eg: ram@bankaddress. This address can be shared by Ram with his employee so that he can receive his salary digitally from Mobile applications or Web Apps specifically made for these purposes.
Digital payment Interoperability: Now Ram can send money from his phone to his mother in Madhya Pradesh (M.P) instantly, because she also has an account linked to Biometric Identity Database. Ram’s mother can withdraw the funds from Madhya Pradesh itself by using her ID number and fingerprint.

Recently Digital Locker was also added to the entire process separately. Here people can upload digital copies of personal documents such as their Passport book, Bank passbook, academic records, driving license, or birth certificate.

Another system added to Digital locker is the feature of E-Consent which would allow Ram to share certain documents with financial institutions so that he can avail loan facility fast and with ease.

When all Indian citizens are able to utilise these facilities then a huge Digital Data infrastructure will be formed with very strict security protocols at key required points to ensure safety of their database. Thus, this has allowed the formation of connected networks between businesses, the government, and millions of people and the financial system. m.

Institution pioneering the project

Two institutions were formed under the leadership of Manmohan Singh.

National Payment Corporation of India (which took over the ATM network to modernize retail payments and settlements)
Unique Identification Authority of India (by the then planning commission and the appointment of co-founder of Infosys, Nandan Nilekani as its chairman)

As all Indians know, Infosys epitomized India’s first tech wave giving software service to multinational corporations in India as well as throughout the globe.

Mr.Nandan Nilekani looked after the creation of Aadhar, the world’s biggest biometric identity database and that enabled India’s second tech wave ie., its own digitalization.

Indian Stack is a combination of NPCI’s projects for digital payments and Aadhar’s Identity and authentication prowess via API’s Aadhar enabled digital payments and eKYC.

UPI (United payments Interface) which was part of the project which enabled transfer of money via mobile phones instantly with only biometric inputs. It began with P-2-P (Person to Person) transfer and then was extended to person to merchant transaction, and now it o has an Autopay feature which enables it to make premeditated recurring payments. The Central Bank uses the UPI project for its own e-wallet called BHIM and more companies have adopted the feature of ewallet which is born from UPI’s. They charge no fees for transfer of funds from wallet to person or merchant or for storage into e-wallet. In 2006 more e-wallets came into the market such as Google Pay and Amazon pay. Covid 19 pandemic also encouraged people to make paperless/contactless transactions using the e-wallet and UPI facility due to fear of infection through paper money.

E-Signature

E-signature is an attempt to try and form a Digital signature of an API. It allows any Aadhar holder to digitally sign any sheet of paper under the information technology act legally with no paperwork, dongle etc. Just an authentication procedure required. India is constantly evangelizing with regulators to adapt the Esign API. The technical aspect of it also includes Consent Architecture taking into account the data protection which allows an individual to take control over the date trail/footprint, protect it, securely store it and share it with the individual’s consent.

Credit transaction /OCEN

With the success of APIs and UPIs India is now focusing on making available credit facilities for the most deserving and smallest businesses and individuals. The banks did not venture into giving credit facilities to these small businesses and individuals as it is not feasible for them to cater to such service at a Micro level. The NPCI has rolled out an Open Credit Enablement Network (OCEN) to connect lenders & marketplaces. OCEAN probably represents the supreme of the Indian Stack in finance. Thereafter future vision would be in Healthcare and Education. Unfortunately, the reality is that India is still mostly a cash economy. 90% of the transactions are still settled in cash as stated by data released by Amazon pay and only 1/3^rd of the population has a smartphone. Many court cases and opposition by various sects of people claiming Aadhar to be a threat to civil liberty, privacy and cyber security looms as an ever-increasing risk. According to PwC, in 2002 UPI processed 12.5 trillion transactions valued at Rs.21 trillion ($281 billion). And it is growing at a staggering rate. PwC had estimated that from 2017 to 2020 the compound annual growth rate of this product is 785% in volume and 570% in value. There are also 1.15 billion wireless subscribers and 718 million Internet subscribers.

Transformation from cash economy to digitalisation

The number of Indians active on the internet is around 500 million. Estimates of digital payments vary as there is no complete data, but it is probably in the range of 130 million to 170 million, including UPI users, plus those using standalone credit cards and e-wallets for online purchases. That is about one-third of internet users, which is still a low proportion considering the government’s efforts to go cashless. It is expected that government initiatives might prove to be successful as they are focused on building a digital infrastructure of financial inclusion, in which fintech, banks and other private businesses can create their own products and opportunities. Most people, even sophisticated urbanites, still trust banks and traditional rails hence the commercial use is still nascent. The government continues to drive improvements, big priorities matters. New features like UPI Autopay and account aggregation will drive usage, banks, and insurers. Mutual funds companies will work with software companies to build new products across the spectrum of the market.

Going global

The next big challenge for Indian stack and Indian fintech will be taking it globally- Not just to export an Indian model for national pride, but to create freeway for Indian companies to do business abroad. Many developing markets could find India’s model useful and relevant. The Indian government is in talks with technologically advanced areas with a large number of Indian workers such as Singapore and the United Arab Emirates about allowing Indian citizens to access UPI from abroad. The other use case would be to allow global tech companies that are piggybacking off the India stack to take those services abroad. India is the first country to take a platform first approach thus taking with itself other entrepreneurs as well. Once you get into payments applications, one can participate in a large ecosystem with many facilities. But for that to make sense to global tech players, the India stack will need to be compatible with global payment networks, like those of a Paypal or Visa or Mastercard. If India is able to export the India stack to its smallest merchants, their marketplace would expand globally. This is the opportunity and the challenge for the next mile of India’s fintech journey.

Conclusion

No single aspect of the India Stack is entirely unique. However, its comprehensive planning has succeeded in building a more inclusive digital economy from the bottom up. The Indian experience offers several lessons:

A foundational approach providing a range of public infrastructure and policies can allow for significant synergies across different parts of the digital economy. A digital ID system promotes widespread inclusion by giving everyone a foothold in the digital economy. Common approaches to APIs can set up an ecosystem for data and payment flows that is open to participation by many providers, leading to innovation and choice for the consumer. Data fiduciaries will potentially operationalize greater user control over individual data, setting the stage for the transition from open banking to an open-data economy that spans many sectors.

Interoperability is a useful tool for fostering competition in digital financial services. The India Stack ecosystem is vast, allowing existing financial intermediaries, as well as big tech firms and new fintech companies, to compete. But it is also mindful of the need for stability to underpin public trust, subjecting these diverse participants to regulation. Could the costs of complying with regulation be a barrier to entry for smaller firms? It is still early days, and while big techs process the bulk of transactions on UPI (Frost and others 2021), smaller fintech companies are gaining ground. Moreover, existing intermediaries and some fintechs account for the bulk of the source and the end points of funds transferred. The market continues to develop rapidly and, in the end, it is a question of striking the right balance between efficiency and stability.

A level playing field for data flows is necessary to ensure fair competition. There are concerns that big tech companies will be able to obtain financial data from banks and fintech providers but will not have to share their own non-traditional data, such as location, web browsing, or social media history. This remains outside the data-sharing regime but can still inform financial decisions such as credit assessments. Non-traditional data will be crucial as the India Stack eventually expands into processing insurance and even health data, which are beyond the scope of most of the world’s existing open banking frameworks.

Approaches such as the India Stack can support not just open banking but open finance as well, with synergies across banking, wealth management, insurance, and other products across the world.

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The Juvenile Justice Amendment Bill, 2021 : to reinforce the provisions for the protection and adoption of children

Diganth Raj Sehgal

November 7, 2021

Juvenile — Image source: https://rb.gy/u7xurh

This article is written by Pranjal Singh & VAIBHAV SANGAM MISHRA from Babu Banarasi Das University, Lucknow and the article has been edited by Khushi Sharma (Trainee Associate, Blog iPleaders).

Introduction

The Juvenile Justice (Care and Protection of Children) Amendment Bill, 2021, which looks to alter the Juvenile Justice Act, 2015, was passed in the Lok Sabha on March 15th, 2021 with the proposed enactment being firmly valued by both the decision party just as resistance individuals which were presented by the Minister of Women and Child Development, Ms. Smirti Zubin Irani. Later on, the Rajya Sabha clears the changes to the Child Protection Law on July 28th, 2021.

The amendment looks to reinforce the protection of children— including the ones who require assurance under the law just as the individuals who struggle with the law. The Act expressed that the adoption of a child is last on the issuance of an adoption request by the common court. The Bill gives that rather than the court, the area judge, including extra locale officer, will issue such adoption orders. This bill has centered upon streams like child adoption and intolerable offenses submitted by minors. The Act, 2015 comprises arrangements identified with the children in struggle with the law and needing care and protection. The new amendment bill tries to present measures for fortifying the children’s protection arrangement. This Act was passed with the view to eliminate the troubles in translation of the past Juvenile Justice Act.

What is the Juvenile Justice (Care and Protection of Children) Act, 2015

Before we move further, we are required to comprehend the history of the Juvenile justice act 2015, a new statutory act entitled as Juvenile justice care and protection of children act, 2000 which was passed and came into force on 1^st April 2001 and replaced the previous one (conspicuously Juvenile justice act 1986). Thereafter another amendment act, the Juvenile justice act, 2015 has replaced the J.J act of 2000. The J.J act (care and protection of children) act, 2015 was enacted by the parliament of India on 7 May 2015 in Lok Sabha and 22 December 2015 in the Rajya Sabha. President of India assented on 31st December 2015.

The 2015 J.J act has specified and define so many new branches, board and distribute justice and power to the competent authority to justice must be served under the constitution supervision. J.J. act requires members of the Juvenile Committee and Child Welfare Committee to receive initial training within two months of their appointment which is specified (under section 4 & 27) children’s court, under section 15 after the recipient of preliminary assessment from the board then children’s court may decide those under the prescribed provision (section 19). One of the significant/ part sections of the Juvenile justice act 2015 that is, no child in conflict with the law shall be sentenced to capital punishment or life incarceration without the endeavours of the release of any such offense either aforesaid act or under the IPC provision (section 21). The present act also elaborates about child welfare committee, it empowered the State Government that through a notification in the official gazette to constitute one or more child welfare committees in every district for exercising the power and to discharge the duties conferred on such committee concerning children welfare, security so on and so forth in this act (section 27-chapter v of J.J ACT 2015). The present act 2015 has changed the Nomenclature from “Juvenile” to “child or “child in conflict with law”. The word Juvenile or child means a person either a boy or girl who has not completed the 18^th year of age. Although, in the earliest Juvenile justice act 1986 this age was 16 years for boys and 18 years for girls. The aforesaid concept defines in chapter 5 of the act and procedure concerning children in conflict with law simultaneously.

A stupendous hallmark of the Juvenile Justice (care and protection of children) act 2015 is “community/ social service as an alternative to primitive means of incarceration or fine” specified under section 4 of the Juvenile justice act, 2015. In the present act, there is numerous anastomosis of the new definition concerning orphaned, abandoned, and surrendered children and also differentiate between normal crime and grave in nature offences like the petty, grave, and heinous offence ( more serious as compared with the petty offence)is committed by juvenile; the special provision also substituted in the act which is a special provision for heinous offences committed by children/ Juvenile aloft the age of XVI years under section 12 of the J.J act 2015( those who committed heinous offence like rape, murder, dacoity (Section 395), etc whether they are under the age of Xviii they can not avail juvenile justice act protection), special provision has been inserted to preclude child offender from committing a very heinous offence in the age group of XVI to XVIII years.

The Juvenile Justice Council offers the possibility of referring the corresponding cases of heinous offences committed by these minors to the juvenile court (session court) only after having carried out preliminary assessments. Even in the present act, separate new chapter over adoption to streamline adoption of orphan abandoned and surrendered children anastomosis. Also, CARA – Central Adoption Resource Authority has conferred the status of statutory corpus to enable it to perform its process, function, and procedure more efficiently. The present act, the provision related to aforesaid is detailed described in the separate chapter (VIII). Under the provisions of the 2015 law, a single or divorced person/citizen can also adopt a child, although a single man cannot adopt a girl child. The present act is potentially being modified by the parliament of India to protect Juvenile against cruelty Although for the time being not a single statutory act have so for adequate law to protect juvenile against cruelty under the present act, so many protective measures have been included. The provision regarding registration of child care institutions made it mandatory to register in the present act, even if these agencies are government agencies or non-government agencies, or all or part of them, regardless of whether they receive government subsidies or not, they must be registered under the Juvenile Justice Act 2015 within six months from the effective date of the statutory.

Why amendment in Juvenile Justice Act 2015 was needed?

The Delhi gang-rape case ( Mukesh v. State (NCT of Delhi) brought numerous changes in the Indian criminal justice system. In the case of Nirbhaya a juvenile also Indulge in the same transaction, he was the same abomination to commit the offence although due to juvenile procedure he was being released, thereafter, throughout the Nation on agitation against his release and questioning to law enforcement, therefore Rajya Sabha has passed the Juvenile Justice Bill 2014, this Act indeed makes the real balance between equality before the law and the equal protection of the laws. However, I’ve covered almost all amendments that took place in the 2015 Act in the above title.

The following main amendments was made :

The juvenile justice act has divided the world crime into 3 diverse genera (1) petty office (2) serious offence (3) Heinous offence.
For the age of 16 in the case of heinous crime offender treated as an adult, not J.J. protection shall be granted in the aforesaid case.
If any person compelling/ giving juvenile to swallow liquor or any intoxication liquor or drug, the punishment up to 7 years and penalty up to one lakh rupee, etc.

The Juvenile Justice Amendment Bill, 2021

Adolescent wrongdoing is certainly not another thing in India. The crime percentages are not reducing and causing a big deal of concern. As per a report introduced by the National Crime Reports Bureau (NCRB) in 2019, the adolescent crime percentages spikes higher when contrasted with earlier years individually. It was additionally uncovered by the reports of NCRB that the Child Care Institutions not working as expected even after the 2015 Amendment was brought to the Act. The deficient and absence of Juvenile guidelines by the bodies.

The National Commission for Protection of Child Rights (NCPCR) examined the Child Care Institutions (CCIs), in 2020 and uncovered that 90% of which are controlled by NGO’s and tracked down that the Child Care Institutions (CCIs) were not enlisted even after the 2015 Amendment was brought to the Act. The information recommended that these home considerations needed getting assets rather than recovery of youngsters. In this way, the bill was acquainted with a view with executing estimates that will fortify the child protection forums.

The Juvenile Justice Amendment Bill was passed by Rajya Sabha on 28th July 2021. It was earned help in March which was upheld and postponed by the Ministry of Women and Child Development Ms. Smirti Zubin Irani and collected a great deal of help as well as by the opposition parties. The Bill changes the Juvenile Justice (Care and Protection of Children) Act, 2015. The Act, 2015 comprises arrangements identified with children in struggle with the law and needing care and protection. The Bill tries to present measures for reinforcing the child protection arrangement.

The changes introduced by the New Amendment Bill are as follows:

Serious offences: one of the significant amendments got the incorporation of the classification of serious offences or serious wrongdoings. Which is ordered now into two classifications of wrongdoing; named Heinous Offenses and Serious Offenses.

Heinous Offences: Heinous Offences are those wrongdoings that recommend the least discipline of seven years or more under Section 2(33) of the Indian Panel Code. For the most part, Heinous Crimes include some type of exceptional individual injury or death; e.g., Murder, assault, sexual molestation, and so on.

Serious Offences: Serious offences incorporate offences for which least detainment of three years and not surpassing seven years are endorsed under Section 2(54) of the Indian Penal Code. This eliminates the uncertainty and has been brought to guarantee the Juvenile’ greatest assurance to get them far from the adult justice system. Presently the Juvenile Justice Board will ask as indicated by the offences submitted by the Juvenile to decide if the Juvenile be attempted as a minor or a grown-up.

Adoption: The adoption orders usually issued by the courts establish the child belongs to the adoptive parents but now after the amendment in the Juvenile Justice Act 2021, the District Magistrates and the Dumpty District Magistrates have the power to sanction the adoption mechanism.

Appeal: If a party is aggrieved by the adoption order, the party can go to the divisional official to have to take a passage at that section to settle the complaints however the allure ought to be made under 30 days after the District Magistrate and Additional District Magistrate passed the request. These offers ought to be discarded inside about a month of recording, which helps in speeding the ADOPTION instrument.

Designated courts: Assigned courts are the exceptional court uniquely set up for the reason to attempt every one of the offences submitted by the Juveniles and named as Children’s Court. Prior before the Amendment was acquainted with the Act the offences thinking about the detainment of seven years and more to be attempted under the Children’s Court and the offences which are punishable of detainment of fewer than seven years will be attempted by the Judicial Magistrates. The bill corrects this to give that all offences under the demonstration will be attempted under the Children’s Court.

Child Welfare Committee (CWCs): The Bill referenced that no individual will be designated as an individual from CWC except if they have been effectively engaged with any record of human rights or child rights has been indicted for an offense including moral turpitude has been eliminated or excused from administrations of the focal government or any state government or any administration undertaking and if a part of the administration of a child care institution in a locale.

Termination of members: The appointment of any individual from the board of trustees will be ended by the state government after a request if they neglect to go to the procedures of the Child Welfare Committees, therefore for three months with no substantial reasons or then again on the off chance that they neglect to go to under three fourth of the seating in a year. The bill additionally puts direct management on the responsibility of CCIs as it has been found in surveys that rehabilitation of children isn’t their need and children are kept there just to get the assets which further prompts defilement.

Additional functions of the District Magistrates

DMs are now engaged to survey issues identified with child protection. After the Bill becomes law, their extension will go past the survey. What’s more, when they are lawfully appointed, they would focus on child rights and insurance region, work for Juvenile Justice Board, Child Protection Units, and working for the State Child Government Assistance Board.

Future impact of the new amendment brought to the juvenile law

With the new bill presented by the public authority, it puts more responsibility on bureaucrats. The disappointment in the execution of the Juvenile laws by the Child Care Protection units prompts a flood in crime percentages by the adolescents, the extensive procedure of adoption mechanism, and so on to determine the vagueness by the framework. The new bill arranged segregated offences to protect the children from the adult justice framework appropriately. It likewise gives more powers to the District Magistrates even though they are now saddled with loads of responsibilities. The DM’s need to screen and work for the Juvenile Justice Board, for Child Care Institutions (CCIs), and the District Juvenile Care Boards. As I would like to think, the new bill ought to have been considered to yield the ideal outcomes. Furthermore, make it beneficial for the insurance and care of the child.

Conclusion

The new bill is by all accounts progressive, the key changes brought to the Juvenile Laws reinforce the insurance and care of children including to ones who require assurance under the laws and to the individuals who struggle with the laws. It likewise streamlines the adoption system of the Juvenile to the gatherings. It seems like the encouraging bill brings straightforwardness to the well-being of the children. The new change is invited by the opposition parties too in the parliament which shows the significance of the genuinely necessary advance brought to the laws. It likewise appoints excellent capacity to the District Magistrate to screen the Juvenile Justice framework to eliminate any vagueness to its system and to convey better interest to the government assistance of Juvenile.

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Analysing the anti-dumping laws of the US on trading practices

Abanti Bose

November 7, 2021

This article is written by Shreya Patil, pursuing Diploma in International Business Law from LawSikho. The article has been edited by Zigishu Singh (Associate, LawSikho) and Ruchika Mohapatra (Associate, LawSikho).

Table of Contents

Introduction

In the contemporary era, international trade, industries and corporations have encountered tremendous foreign competition. This competition is often assisted by foreign governments. While such competition may be difficult to tackle, it is extremely important to maintain a balance between the domestic markets and the international markets in order to protect the economy of any country. Dumping is one such obstacle that despite being illegal, is critical to tackling, concerning the confrontation of the businesses. This article briefly discusses the anti-dumping laws of the U.S and their governing strategies and statutes for anti-dumping.

Anti-dumping and related duties

Anti-dumping generally means the import of goods that are manufactured in foreign countries and are priced below fair market value e in the domestic market. Such products are taxed by the government, this is known as “anti-dumping duty” with the perspective of the goods being dumped in the country through low pricing. This is executed in order to protect the local businesses and markets from unfair competition by foreign imports. Such duty is calculated by equalizing the difference between the average costs of the products in the importing country and the market value of the goods in the exporting country ranging anywhere from 0% up to 555% of the invoice value of the goods.

Regulation of anti-dumping measures by the World Trade Organisation

As an international organisation, the role of the world trade organisation is extremely critical. Since it cannot regulate the companies allegedly involved in dumping activities, it possesses the powers to regulate the reactions of the governments to dumping activities in their territory. Some governments take the dumping activities very seriously resulting in harsh reactions of declaring punitive anti-dumping duties on the foreign companies. Hence, world trade organisations may determine the gravity of imposition of such duty and if they are really genuine or against the principle of capitalism and free markets.

In accordance with the principles of the world trade organisation, dumping is considered legal unless it comes as a threat of material injury in the domestic markets of the importing country. Despite determining dumping as legal, the world trade organisation allows the affected governments to impose legal actions against the dumping country provided there should be enough evidence of the material injury to the domestic markets with the terms of costs and the potential threat to cause injury to the domestic markets.

Calculation of anti-dumping duty

The WTO Anti-Dumping Agreement allows the governments to proceed in a way that does not discriminate between the trading partners and honours the GATT 1994 principle when calculating the duty. The GATT 1994 governs the trade between the members of the WTO that requires the imported goods not to be subjected to internal taxes in excess of the costs imposed on the domestic goods. It also thereby provides to treat the imported goods in the same way as of the domestic goods in accordance with the domestic laws and regulations provided they do not exceed the bound rates and threaten to cause injury in the domestic markets resulting in the imposition of the duty. There are various ways of interrogating whether an imported product has been dumped lightly or heavily, and the amount of duty that shall be applied. The anti-dumping duty is calculated either by the normal price of the product or by the price charged on the same product in a different country. It may also be calculated through total product costs, expenses and the manufacturer’s profit margins.

Anti-dumping import laws in the USA

Under the Tariff Act of 1930, a United States based industry may petition the government for relief from the imports that are sold in the United States at less than the fair value or which benefit from the subsidies provided through foreign government programs. While The United States Department of Commerce (“USDC”) determines the existence and the margins of the dumping or the amount of the subsidy, the United States International Trade Commission (“USITC”) determines the existence of material injury or threat of material injury to the domestic industry due to the dumped or subsidized imports. The USITC can also determine whether unestablished industries are facing hindrances in growth due to dumping or subsidized imports. Nonetheless, the relief available for such dumping of the products is the imposition of the duties to equalize the market and as well as acting as a revenue source for the Government of the United States. Such interrogation and investigations pertaining to antidumping and duty investigations are conducted under title VII of the Tariff Act. However, the investigations pertaining to material injury are conducted in preliminary and final phases.

Enforcement of anti-dumping regulations

In the United States, anti-dumping regulations are enforced as mentioned below:

Plaintiffs representing a particular industry have to file a petition with the (“USDC”) and the (“USITC”).
Such plaintiffs must satisfy the elements to obtain anti-dumping relief:

The price of the imports must be unfairly low, meaning it must be below “normal value” which is defined (in order of priority) by domestic market prices; foreign market prices; or based on constructed value.
There must be an existence of material injury or threat of material injury to the plaintiff’s industry by virtue of importing the dumped goods.

If there is an establishment of dumping which has resulted into the injury to the domestic injury, then a dumping duty order is issued.
The dumping duty order is the primary form of relief for the plaintiffs that enables the prices of the domestic producers and the foreign imports to compete with each other.

Penalties under us civil law for import anti-dumping

Circumvention of the dumping duties ultimately results into the penalties imposed from the United States Customs & Border Protection (“CBP”) and even criminal liability under certain circumstances as mentioned below:

Under 19 U.S.C. §1592, CPB shall impose penalties for the acts of fraud, gross negligence and ordinary negligence.
If an importer makes false statements to avoid dumping duties and fails to pay amounts that are legitimately owed, CPB can impose penalties that equals the commercial value of the merchandise itself, in addition to collection of the underpaid and the paid duties.
Importers are also liable for civil/or criminal penalties for “conspiracy to commit offense or to defraud the United States” and for making false statements or entries. These penalties are the most significant that CPB may impose and add up to amounts that exceed the value of the imported goods.

To hereby summarize, there are three ways by which an importer violates customs regulations in relation to antidumping:

Inaccurate country of origin making,
Misclassification of goods,
Failure to pay antidumping duties.

The doctrine of “Respondeat Superior” applies in the cases of anti-dumping violations. Under this principle, the employer or principal is also held liable for acts of agents or employees even if not specifically directed to engage in the acts which are prohibited by the employers. Hence a company’s set of internal policies and procedures put into place in order to comply with laws, rules, and regulations or to uphold the business’s reputation, often regarded as compliance, are crucial to ensure the potential civil and criminal liability that the employees and agents aren’t exposed to.

Penalties under us criminal laws for import anti-dumping

US Laws do not consist of any criminal statutes specifically for antidumping laws. Criminal liability associated with antidumping is asserted due to the violation of other existing criminal statutes, such as 18 U.S.C. Section 1519, concerning the “Destruction, Alteration, or Falsification of Records in Federal Investigations and Bankruptcy.” Fraud, negligence, and gross negligence elements in antidumping criminal cases are standard.

In accordance with Section 592 of the Tariff Act of 1930, as amended 19 U.S.C. 1592, any person who, by fraud or negligence, enters merchandise into the United States by means of false data, statement, document, act or omission, is subject to a penalty and criminal liability. If the duties are not paid, the CPB, who is thereby in charge to ensure the payment of duties and seizing merchandise, may then be forfeited in lieu of payment.

There are various statutes that cover customs fraud & imports as below:

Title 18, United States Code, section 542 (Federal Criminal Statute): Provides sanctions who present false information to custom officers and thereby imposes a maximum of two years imprisonment, a fine, or both, for each violation involving an importation or attempted importation.
Money Laundering Control Act: This Act includes importation fraud violations that specify unlawful activities or predicate offenses within the act which imposes imprisonment of up to 20 years for each offense.

Usually, only civil penalties are applied in the cases of antidumping violations, however, in the event of egregious conduct which involves fraud, gross negligence and in cases of intentional conduct, criminal charges may be filed.

Importing from an economically advantageous country

If an importer determines the advantageous position, economically, in order to avoid anti-dumping duties, the UDSC could use the data of the alternate country data to determine the market value which is fair in the different countries.

Examples of the dumping cases in the United States

Recently, there has been a continuous increase in the number of anti-dumping cases. The local businesses solely rely on the anti-dumping laws in order to limit the unfair competition below the market-value imports which are manufactured abroad. Some of the cases are as mentioned below:

Flat Panel Display Screens Dumping by the Japanese Companies in 1991

As a result of consideration of the complaints by the American businesses on the dumping of flat panel display (FPD) screens by the Japanese, the Commerce Department held that they were liable for the dumping of the FDP screens in the U.S market and thereby initiated an investigation. This investigation concluded that the dumped FDP screens were causing material damage to the American businesses and recommended a 62.5% anti-dumping duty on FDP screens imported from Japan.

Dumping of Steel by Chinese Companies in 2015

The Chinese companies dumped a large number of steel in the American markets. This led the American businesses to complain that the large imports of steel resulted in the unfair competition since the imports were unfairly at a lower price. After the investigations of the International Trade Commission (ITC), the commerce department found out that there was an injury or threat to injury on domestic markets and found the Chinese companies guilty of dumping and thereby imposing a 500% import duty on steel imports from China in order to protect the domestic steel industry.

Conclusion

Regardless of the increased global competition, the competition laws always have an upper hand. In the case of U.S. dumping laws, the anti-dumping laws have majorly impacted resulting in maintenance of the fair value for the domestic markets as well as for the international imports with applicable duty. Regardless, the world is constantly evolving and so should the laws, considering the increase in competition, globally. It is also pertinent to note that, investigations under such circumstances shouldn’t be biased or on the sole basis of complaints made by the American businesses and must have a wider perspective while conducting such interrogations. Nonetheless, the U.S has been successfully maintaining the balance through adequate measures.

References

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Impact of female labour force on the economic growth of India

Diganth Raj Sehgal

November 7, 2021

rights — Image Source: https://bbc.in/2C58gcb

This Article is written by Shreya Rathore & Azizal Ludhar BBA LLB(H) specialization in Corporate Laws from University of Petroleum and Energy Studies, Dehradun and the article has been edited by Khushi Sharma (Trainee Associate, Blog iPleaders).

Table of Contents

Introduction

Female labour force engagement and development are intricately linked, involving change in the economic growth, literacy, fertility rates, and social norms, among other variables. It is critical to understand women’s employment. To increase employment quality, policy should target both labour demand and supply. Expanding secondary education is critical, but so is providing jobs for women. One of the most critical aspects is that the females who are addressing the topic of women’s rights and protections in India are doing it positively. Women have battled to achieve social prominence and a respectable position in society from antiquity to the current day. At the time, Indian women were in urgent need of laws that would elevate their social status and provide enough protection from physical and psychological torture. This article contributes to the body of knowledge by examining the relationship between economic growth and women’s economic output in India, a country with significant regional economic, social, and cultural variation. Over the previous three decades, the combination of high economic prosperity has been accompanied with a rise in conservatism and patriarchy. At first appearance, economic growth appears to be slowing. Between 2001 and 2011, the sex ratio, which is viewed as a gauge of how society perceives it, declined from 927 to 914 women. Investing in women’s health has likewise been limited, with maternal mortality increasing just slightly in the recent decade. While considerable improvement has been made, anaemia has risen by six percent points in the first half of the 21st century. Since its beginnings, a law aiming to offer one-third of women’s participation in Parliament has received opposition from a range of political groupings.

Women’s employment is viewed as a key sign of economic opportunities and women’s contributions to economic success. Indian women’s labour participation rate (WPR) has been declining for several decades. It decreased from 29.6 percent in 1983 to 21.9 percent in 2011–2012 and to 16.5 percent as measured by the most recent Periodic Labour Force Survey (PLFS 2017–2018). Not only is the rate of female participation in the labour force decreasing, but so is the absolute size of the female labour force. Women’s diminishing involvement in the labour sector has substantial economic repercussions, given India’s current demographic mix appears to be favourable. India has the world’s youngest working population in the 15–34 age bracket and is currently considered as the world’s youngest country. The advantages of the demographic dividend are more likely to be evaded if women are not employed. It is crucial to underline here that actually entering the labour force does not guarantee women economic security. The quality of employment is especially critical since it reflects the standing of women in the labour force. This article makes an attempt to address the research objectives listed below. They include the following:

1. How does the labour force participation of women in India change in response to GDP growth?

2. What are India’s most significant structural changes?

3. Has women’s workforce employment changed over the course of structural changes? Is women’s labour quality improving?

In many industrialized countries, female labour supply trends follow a U-shaped curve. As per Goldin (1994), female labour supply initially declines with economic success and then rises as a result of systematic changes in the economy, lowering fertility rates, and higher female education. Unlike in most other countries, the female labour supply in India does not follow a ‘U’ form. According to numerous studies based on NSS data from India and elsewhere, employment of women has been falling as the economy has progressed. Most studies demonstrate that increasing women’s household wealth and enrolment in both rural and urban India reduces women’s labour participation rates. Moms are departing the workplace to take care of their children as a result of girls’ greater school attendance. It has been discovered that intelligent women are significantly more likely to marry intelligent men, resulting in their continued unemployment. Numerous studies have documented rural women’s lack of non – farm work opportunities. The mechanisation of agriculture has also resulted in a reduction in the need for female farmworkers. The big female labour force is assumed to be the result of measuring errors and difficulty distinguishing between household activities and contributing family labour. Women are also discouraged from working due to sociocultural conventions. As a result, a variety of factors influence women’s labour-force participation and exit.

According to studies, more women are preferring to stay at home to care for ‘domestic chores,’ stressing the weight of housekeeping and caring tasks on women. As per the OECD research (2019), Indian women worked without payment for 352 minutes every day, while males work 52 minutes. According to several studies, more women work in India’s informal economy, wherein they confront considerable levels of discrimination against women. In this context, the current article examined the relationship between GDP growth and women’s labour participation in India; significant structural changes in the economic growth and their implications for women’s employment structures; and the efficiency of women’s labour as measured by selected metrics.

Indian context

Women’s labour force participation is influenced equally by societal expectations dictating gender roles and responsibilities as it is by economic and structural factors. This section discusses the factors that lead to the deterioration of the Indian situation. The majority of the study presented here is based on individual responses to many NSS survey sessions and is largely focused on the role of education, earnings, employment prospects, and cultural variables on women’s labour market participation. As a result, the underlying causes driving women’s economic behaviour remain poorly understood, and there are no consistent explanations across contexts. Additionally, the factors affecting women’s employment interrelate, making it more difficult to disentangle their effects. For example, the influence of education will be decided by both accessible economic opportunities and the culture that govern women’s work norms. This will be regulated to a certain extent by households’ economic circumstances. Women’s relative unemployment is likely a reflection of their home preferences, which might have class implications in traditional cultures where the father is assigned the responsibility of providing for the family. Working women can imply economic hardship for the family, and when household income increases, women have a tendency to exit the labour force. This is particularly true when men’s economic prospects improve and wage rates rise, allowing women to devote their energies to reproductive work. Poor women bear a double burden of family labour and outside work, providing compelling reasons for them all to be able to transition out of labour as household income increases. On the other hand, highly educated women can afford to employ domestic servants and therefore engage in the labour market. Additionally, economic and cultural factors interact; when women’s salaries increase and societal standards relax, they are more likely to participate in non-economic activities. Women’s labour supply acting as a safety net for households is also consistent with declining female labour participation rates as household economic condition improves. Increased access to education, as indicated by the increase in student enrolment, may account for the decline.

The 2005 National Rural Employment Guarantee Act is a critical issue that may affect women’s labour force participation. It ensures 100 days of employment per year and has requirements ensuring equal wages for women and men, as well as on-site child care. As a result, it has been established that it has a beneficial effect on women’s economic activity. NREGA was found to have a beneficial effect on female labour force participation, with NREGA districts reporting a decrease in female labour force involvement between 2004-05 and 2007-08.

Economic growth and female labour

On the world scene, India is a global economic powerhouse. It was named the world’s fastest-growing significant economy in 2017, with GDP growth over 7% every year since 2011-12. However, 2017 was important for Indian women for another reason: it was the year in which India’s women labour force participation (FLFPR) fell to their lowest point since independence. According to the World Bank, India has one of the lowest FLFLPRs in the world, with only parts of the Arabic world having lower FLFLPRs. GDP is the country’s income. Economic growth helps a country’s standard of living to rise via increasing consumption. Women’s WPR increased by 2.1 percent between 1999–2000 and 2004–2005, while GDP increased by 1 percent. When the GDP increased by 9% in 2009–2010, female employment fell by 4.5 percent. Female employment growth has slowed by 5% in recent years (2017–2018), while GDP has fallen from 7.8 percent in 2011–12 to 5.3 percent. Between 1983 and 2017–2018, the increase in female WPR was negative, suggesting that there is no meaningful association between growth in the economy and female WPR in India. Between 1983 and 2018, female labour force participation growth in rural India declined by 2%, while it fell by 2% in urban India. Between 2017 and 2018, rural India saw the highest decline in female employment levels, at 6%.

According to NSSO data from 1970 to 2018, women primarily work in low-productivity, labour-intensive, home-based, and irregular industries. Between 1977-78 and 2017-18, 88.1% women engaged in agriculture, compared to 80.6 percent of rural men.

Women have concentrated their efforts in fields such as nursing and teaching, which provide limited opportunities for growth. Neither urbanized nor rural women were able to considerably increase their participation in the secondary sector.

Way forward

Women’s labour force distribution across the economy exhibits some noteworthy traits. Women are employed in the agricultural sector at the highest rate (68.4 percent), followed by the service sector (15.8 percent). Eastern nations, which are some of the poor, demonstrate significant patterns of female engagement in a wide variety of industries. Women are much more likely than men to work in this industry of construction in the north-east. In western states, women are less likely to work in this industry of construction than in any other region. There has been a dramatic movement in the sectors in which women work over the previous twenty-five years. Agriculture’s nationwide decline has resulted in a 15% decline in the number of women employed, whereas the percentage of females employed in all other sectors has increased. In the previous five years, the share of women employed in the construction business has virtually tripled. This is unsurprising given the sector’s rapid growth and demand for manual labour. NREGA may have resulted in a rise in the employment of women in the construction industry. Similarly, women’s employment in manufacturing and services has climbed by 60% and 23%, significantly. The pattern is constant across regions, with a few outliers. Both in the central and north-eastern states, women’s involvement in manufacturing has decreased.

Male workers have learned that immaculate work-life integration is possible in the face of a pandemic-induced remote working environment. Workplace flexibility is critical for women’s right to choose employment, even as India Industries expands its diverse and inclusive programs, such as improved maternity leave and mandatory paternity leave. Because women’s labour supply responds more to take-home earnings than men’s, reduced income taxes for females can boost participation.

Women Entrepreneurship Promotion: The creation of new jobs is desperately needed. However, empowering more women to enter their own enterprises is a lengthy solution. Promoting women towards becoming entrepreneurs has the potential to benefit both the economy and society in India. In 2016, UN Women launched the “Making Every Women and Girl Count” Initiative to better prioritize gender data. In India, a similar approach is necessary.

Conclusion

India has undergone substantial changes over the last twenty-five years. Among other things, the country has experienced significant economic expansion, marked by rapid urbanization, an increase in educational attainment, and declining fertility rates. During the same time period, however, women’s economic activity has been declining steadily and over time. Between the ages of 25 and 59, the share of women in the labour force has declined by 23%. This proportion has been significantly higher in several of India’s poorest regions. Several economic and social factors influence women’s decision to work and ability to work at both the home and macro-level. Literacy, fertility, and age are three of the main worldwide drivers. Marriage, urbanization, and economic growth are all factors to consider. In Aside from these obstacles, social traditions defining women’s positions in the public realm continue to have an impact on outcomes. Much of the downward trend discussion in India has centred on four primary reasons:

growing young people’s education
lack of work prospects;
household effects
measuring.

As can be observed, the mix of economic growth has an impact on the speed of female labour force participation. India’s economic growth has been lagging in terms of employment creation. This will almost certainly have a greater influence on women’s opportunities than on men’s. Agriculture and manufacturing have historically been labour-intensive businesses, but have not been the primary drivers of India’s economic growth. Although the service sector has developed into a critical engine of growth, it requires advanced skills that the majority of women lack. These data suggest unequivocally that economic development alone is insufficient to increase women’s economic participation. The process of growth is equally critical. Policies that foster growth in “women-friendly” industries are critical for women’s labour force participation to increase. The challenge in comprehending women’s economic growth is that it is influenced to a greater extent than men’s economic activity by both market pressures (external factors) and household and family setting (internal forces). A distinct set of measures will be required to push women to overcome social barriers to labour force participation. India has made considerable strides in increasing female education access, with an increase in the number of women of working age attending school.

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Benefits of standard form contracts

Abanti Bose

November 7, 2021

This article is written by Esha Gautam, pursuing Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho. The article has been edited by Zigishu Singh (Associate, LawSikho) and Ruchika Mohapatra (Associate, LawSikho).

Table of Contents

Introduction

In our current industrial society, growing standardized productions leading to standardized dealings with customers has taken a shift from customized contracts to preprinted standard contracts for even the most routine transactions. These contracts offer a host of benefits, but they come at a price. This article aims to enlist these benefits and provide solutions for the proposed disadvantages of entering into standard contracts.

What are standard form contracts?

Standard Form Contracts are a type of contract which contain standardized, preprinted and non-negotiable provisions. These are also called “boilerplate contracts” or “take it or leave it” contracts as they offer no room for negotiation. They are offered only for acceptance or rejection. These are usually used by big, multinational corporations who routinely deal in such transactions. It is drafted by, or on behalf of the corporations, which gives them superior bargaining power.

Standard form contracts fulfil an important efficiency role in the mass distribution of goods and services. Essentially, it helps to legalize a transaction by having a ready-to-sign contract without having to take the burden of making one for every single transaction. This reduces time, effort and transaction cost.

Benefits of standard form contracting

Reduced Transaction Costs: By using a standardized contract, there is no need to make customized contracts for every transaction, thereby reducing the per transaction cost for both the contracting parties.
Speeds up the Process: Since there are ready to sign contracts available, there is no need to get into the tedious process of negotiations,drafting and approvals. Consistency in contracts reduces the need of, and time taken, in negotiation, thus ensuring that the process gets completed quickly.
Easy to Understand: As every contract contains the same terms and is used several times, it becomes familiar for both the parties thus making it easier for even a layman to understand and trust the contract.
Not affected majorly by absence of negotiation: A well thought out standard form contract benefits and inures both the parties leading to terms which they ultimately would have engaged in costly bargaining for. Thus, the absence of negotiation does not necessarily imply exploitative contracts.
Legalizes the Transaction: Legalizing the transaction eliminates the need for customized contracts for every individual transaction,making it more convenient to legalize a transaction with just a couple of signatures. This improves its admissibility without the lengthy process.
Helps Build Trust: Since the transactions are legalized, suing for breach or remedy becomes much easier which builds the trust of the parties.
Brings uniformity in practice: Over time, standard form contracts establish a body of case laws which can be referred to by the parties in case of disagreement over any issues. This benefits the whole industry.
Consistency in contracts: At certain times, it has been observed that though the principal has offered a fair contract, the agent meddles and changes the contract to best suit himself; thus injuring the principal’s reputation and leading the customer to sign an unfair contract. Consistency in contracts means less room for deviation from the terms set out in the contract. Standard form contracts prevent the agent from making any unfair changes.

Disadvantages of using standard form contracts

Boilerplate clauses: Boilerplate clauses are usually found at the end of the contract. These are usually miscellaneous clauses which contain standard language, which makes it very easy for the other party to overlook these clauses. Though these clauses do not make or break the contract like the main clauses, they are no less important especially in cases of disputes as they contain the place of jurisdiction in case of dispute, how disputes will be settled or dealt with, powers in case of a dispute etc.

Usually the area to pay attention to in a boilerplate clause is not what is written, but what is left out. Not paying attention to a boilerplate clause can leave the party at a disadvantage. For example, the boilerplate may not expressly convey that the winning party has paid the attorney’s fees, in which case it would be difficult to retrieve. Or, if the remedy to sue is not expressly allowed in the contract the parties may be forced to settle via arbitration and lose the right to sue due to the Arbitration Clause in the contract^.Sometimes liquidated damages are already provided in the contract in case of a dispute, leaving no room for a bigger claim. Another such example is the place of jurisdiction, in case a dispute reaches court; this is an important clause that decides where the dispute may arise. If not seen properly, despite having the right to sue, a person may not be able to do so due to the inconvenient location of jurisdiction.

Since these clauses sound like legal jargon, even if a party decided to read it, they may not be able to understand it completely and would be bound to miss out on certain things in their favour. A layman would not be able to understand the contract.

Price Fixing: Standardized contracts can often lead to the trap of price fixing. Price fixing is basically a practice where competitors in the market agree (verbally or written or inferred from conduct) not to sell their product, commodity or service at a price lower than the set price, thereby reducing competition in the market. This adversely affects the consumer, not to mention it is also considered illegal.

Some contracts, though standardized, leave the price blank, so parties can negotiate and agree accordingly. But the contracts in which the price is printed as part of the text, there is no room for negotiation and this can often lead to price-fixing. Trade unions have often been found guilty of this practice. Generally, if the price is part of the standardized contract, it is price-fixing. To avoid this, one should be careful, even if the price stated is a favourable one, there should always be a provision that allows for the price to be re-negotiated in the future.

Legal jargon: As contracts use legal jargon and not common English, it remains a fact that a layman cannot completely understand all the connotations of every single word. The understanding of a word we have in English does not have the same connotations. So, even if one reads word by word, it is not possible for a common man to perceive the entire text. This leaves a layman with two options, either to hire a lawyer and have the contract interpreted to them, which is going to cost money, time and effort or to go into the contract with incomplete understanding which might leave him at a disadvantage at a later stage.
Favoring one party over another: Though standardized contracts claim to be neutral, they favor the party who has made it, because it is the attorney of that party who has drafted it. Usually standardization is done by big companies and offered to small customers showing unequal bargaining power.
Literacy rate: It is a fact that not all the parties transacting, especially small consumers would be literate. Even those who are educated, may not be able to understand all the terminologies of the contract and may end up making uninformed and irrational decisions. They are more likely to misplace their trust and get entrapped for whatever is written in such contracts.

There is a lack of legislation that governs exclusion of contractual liability due to unfair terms or in case of unequal bargaining power. As of now, it’s upon the court’s discretion to decide.

Some solutions to make standard form contracts more fair

Though standard form contracting faces certain disadvantages, those do not necessarily make it a redundant concept as it has many advantages as well. So to make standard form contracts more fair and favourable to both parties, there are some practices that can be incorporated.

Contracts should be formed on the principle of ‘full disclosure’ so that it is fair to the other party and the contract occurs on actual meeting of the mind of the parties. Also these disclosures should be clear, unambiguous and simple, not pages after pages of incomprehensible fine print. These should be for lawyers to interpret but for a common man to understand.
It should also be understandable. Sometimes it is observed that the companies disclose everything in the fine print, using this principle to defraud the consumers, thinking the more they disclose in fine print the more they can get away with. Many deceptive policies are buried in the fine print waiting to be overlooked.
No matter how much they try, a layman will not be able to understand and interpret the entire contract. It would be advisable for him to hire a lawyer. The lawyer will briefly explain the entire contract to them without leaving anything out. Since standard form contracts save a lot of cost, some of those savings can be put to use here in order to actually have a fair transaction.
The regulators which are responsible for industries which often use standard form contracts should require copies of the contracts to be submitted to the government agencies and be made easily available from the government database.
The party making these contracts should suggest the other party to go through the contract thoroughly to avoid disputes later.
Unfair terms and provisions which only benefit one party should be avoided, such as forced arbitration and waiver of the right to sue.

Legislation on standard form contracts

The Indian Contract Act, 1872 gives the essentials of a valid contract, which requires a valid offer and acceptance. This means that the acceptance must be with the full knowledge of all the clauses and provisions of the contract so as to ensure exact meeting of the minds. Though this provision does not protect a negligent person who chooses not to go through the contract, he must have had reasonable opportunity to have done so.

In Henderson v. Stevenson,the plaintiff bought a steamer ticket on the back of which there was a condition printed which excluded the liability of the company for loss, injury or delay to the passenger or his luggage. There was no indication of a condition written at the back and naturally, the plaintiff failed to see it. Later the plaintiff’s luggage got lost due to the company’s fault. The court held that the company was liable despite the clause which excluded its liability as the plaintiff was bound to miss it.

Generally, the opinion of the courts on this matter is that if there is an indication as to the conditions are given in the back on the face of the ticket then the party signing will be bound by it as the courts won’t protect against negligence, but if there is no indication or sign on the fact that there is a condition on the back, the party signing will not be bound by it.

In case of an unfair term in the contract, courts have sided with the party whose loss the term causes despite the party has signed the contract. If a term is unfair to any party to the contract or if it is not in the public interest or if it is against public policy, the courts have ruled against it. No test has been established to identify these terms. It rests on the court’s discretion.

Unlike England, where the Unfair Contract Term Act 1977 exists, there is no legislation in India as of now which rules on unfair terms or exclusion clauses. In Central Inland Water Transport Corp. Ltd v. Brojo Nath, the Supreme Court struck down a clause on the ground of being unreasonable and against public policy. The clause provided that the service of a permanent employee could be terminated by giving a 3 months’ notice or 3 months’ salary.

Conclusion

Standard form contracts having their share of advantages are not free from disadvantages. These have to be used and signed with a lot of care. Signing them without thoroughly going through all the fine print is a mistake that can cost one a great deal. Since these contracts are often between parties with unequal bargaining power, it is easier to exploit the vulnerable party in the contract. The courts have time and again protected such parties by ruling in their favour. However, despite having drawbacks, they should not be declared redundant as they offer exemplary benefits. With a few fixes and solutions, they can be beneficial to both parties.

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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Issues with celeb trials in India : privacy, defamation and media trials

Sneha Mahawar

November 6, 2021

This article is written by Bhavyika Jain, from Symbiosis Law School, NOIDA. This article deals with the celebrity trials that take place in India and all the issues related to privacy, defamation, and media trials and the basic procedure that is required.

Table of Contents

Introduction

Media is considered as the fourth pillar of society, the other three being executive, legislature, and the judiciary. In the present era, the media has become increasingly significant in various aspects of our economy, especially in terms of mobilising public opinion. Newspapers, T.V., Internet, etc. are some sources to keep us in touch with the media.

Therefore, in the current time, it is almost impossible to imagine a life without the role played by the media. It has become an integral part of our life without which our lives would be incomplete. It is necessary to regulate the affairs of the media through effective laws.

Who is a celebrity

In 2012, the Delhi High Court defined a celebrity in Titan Industries Ltd. vs. Ramkumar Jewellers (2012) as “a famous or a well-known person and is merely a person to whom many people talk about or know about” and further went on to say that “the right to control the commercial use of human identity is the right to publicity”.

Need to protect celebrity rights

Celebrity rights are generally assignable and licensable commercially. In today’s world, public relations costs a lot of money, and a celebrity’s public image is extremely valuable. Recognizing this valuable item as property means that it will be taxed as a capital asset, similar to any other intellectual property. This generates an economic incentive for the general public, and superstars are sufficiently compensated due to their moral claim to money derived from their celebrity.

The right to publicity can be passed down through the generations. As a result, a celebrity’s descendants can benefit from the celebrity’s notoriety during his or her lifetime.

There is also a need to protect the performers by removing their sense of insecurity caused by the threat of technological unemployment. to prevent bootlegging and control the exploitation of performers who are unable to handle their own situations.

Privacy in India

The Information Technology Act (ITA) 2000 currently contains India’s most comprehensive legal provisions concerning internet privacy. The ITA incorporates a list of regulations that can safeguard online privacy in some circumstances while still diluting it in others. The ITA, for example, does not address issues such as the legal status of social media content in India, data merging and sharing across databases, whether individuals can transmit images of their own “private parts” across the internet, whether users have the right to be notified of the presence of cookies and do-not-track options, and the use of electronic personal identifiers. Furthermore, the ITA’s legislative gaps lead to eroding online users’ privacy.

People tend to personalise celebrities as their friends and become curious about every personal aspect of their lives, ranging from their personal affairs to something as trivial as the clothes they wear, the cosmetics they use, and the places they visit because celebrities have a popular image in society. However, because celebrities are unfamiliar with the general audience, there is no natural interchange of information. As a result, superstars try to keep their personal information under wraps because disclosing it could result in embarrassment, shame, and a sense of insecurity.

Protection of celebrities under the Right to Privacy

The Right to Privacy is enshrined under Article 21 of the Indian Constitution as a fundamental right. Article 19 of the Constitution guarantees freedom of the press. In addition, the right to obtain and distribute information is included in the definition of ‘freedom of speech and expression’ in Article 19 (1) (a). A broad dimension is given by the Supreme Court in the case of the State of Uttar Pradesh vs. Raj Narain (1975) that freedom of speech and expression includes the capability to receive and transmit information and ideas without interference.

Four distinct rights are included under the purview of the Right to Privacy:

The right to prevent public exposure.
The Right to Privacy and the prohibition of any sort of intrusion into a person’s personal matters.
Avoid erroneous publicity
Prevent the use of a person’s name and likeness without permission.

For the first time, the personality rights in the form of the right to privacy were recognized by the Supreme Court in the landmark judgment of R. Rajagopal vs. State of Tamil Nadu (1994). The Indian Supreme Court determined that a magazine would publish an autobiography written by a prisoner without his knowledge or licence. Officials at the jail sought to prevent the autobiography from being published by compelling the prisoner to request that it not be published. Someone tries to pry into a person’s private life, he or she is met with a barrage of defences. While still, celebrities rely on publicity, they have a right to privacy in both their personal and professional lives.

Media trials vs. Judiciary

There has never been a legal system that allows the media to try a case. Every coin has two sides, and the same is true of media trials and journalism. In some cases, journalists portray a predetermined image of an accused, shredding his or her reputation and potentially affecting the trial and judgment. The importance of media trials has grown in India. Several instances have occurred in which the media has taken the case into its own hands and rendered a verdict against an accused in violation of fair trials in court. Any individual’s thought process can be influenced by the media.

For example, in times like this, when COVID-19 has become a global pandemic, the media and news channels broadcast how many people have died and the number of new cases every morning, which automatically installs fear in the public’s mind, whereas showing the number of recoveries may motivate the public and aid in the fight against the pandemic. People’s perceptions are shaped by the media, which can have both positive and harmful consequences.

Cases regarding media trials

The case of Dr. Rajesh Talwar and another vs Central Bureau of Investigation, 2013 drew a lot of attention from the media and was in the news for a long time. In May of 2008, Arushi and her domestic helper Hemraj were assassinated. Initially, the suspect list had a large number of names. Many saw the spectacular media coverage as a media trial, with scandalous claims levelled against Aarushi and other accused. The media questioned Arushi’s character as well as her relationship with Hemraj, despite the fact that no reliable evidence had been produced. In November of 2013, the parents were found guilty of the murder and sentenced to life in prison. Many critics contended that the case was founded on flimsy evidence, that the evidence was insufficient to fully condemn the parents for the murder, that there were other suspects, and that the media trial intervention caused doubts in the public’s minds. The Talwars appealed the ruling to the Allahabad High Court, which acquitted them in 2017 after giving them the benefit of the doubt and deeming the evidence inadequate.

In the Sushant Singh Rajput death case, the Bombay High Court stated that the media should avoid reporting on a continuing inquiry and current facts that are in the public interest rather than what the media believes the public is interested in. The judgement established a list of reports that are likely to create prejudice to an ongoing investigation, but it is not exhaustive.

The following are some examples:

In the case of a suicide, presenting the deceased as a weak character or infringing in any way on the deceased’s privacy are prohibited.
Engaging in character assassination and so tarnishing a person’s reputation that prejudices a current inquiry by:

Making disparaging remarks about the accused’s character and creating a hostile environment for both;
Conducting interviews with the victim, witnesses, and/or members of their families;
Examining the versions of witnesses whose testimony may be crucial at trial;
Without letting the public know the nitty-gritty of the Evidence Act,1872; publishing a confession allegedly made to a police officer by an accused and attempting to persuade the public that the same is a piece of evidence that is admissible before a court and that there is no reason for the court not to act on it;
Printing images of an accused person in order to make his identification easier;
Deciding on the merits of a case, including determining the guilt or innocence of an accused or a person who is not yet wanted in a case, as the case may be;
Forecasting future actions, such as measures that should be taken in a specific direction to finish the inquiry, and
Leaking sensitive and confidential data from the investigative agency’s materials.

3. Operating in any way that contravenes the terms of the Programme Code as set forth in Section 5 of the Cable TV Network Act and Rule 6 of the Cable TV Network Rules, consequently attracting contempt of court.

4. Engaging in character assassination and so tarnishing a person’s reputation.

The bench stated that while these guidelines are not exhaustive, they are indicative, and that any report published in print or electronic media must comply with the Programme Code, journalistic standards, and the Code of Ethics and Broadcasting Regulations; otherwise, action under the existing regulatory mechanism may be taken.

Defamation

In law, defamation is the act of assaulting another’s reputation by false publication (communication to a third party) with the intent of bringing that person into disgrace. The notion is enigmatic, with only human creativity limiting its variations. A defamatory statement is one that is intended to cause hatred, contempt, or ridicule toward a person, or to harm him in his trade, business, profession, calling, or office, or to cause him to be shunned or avoided in society. In order to bring a defamation suit, the plaintiff must have suffered some harm to his reputation. Defamation, defined under Section 499 of the Indian Penal Code, can be committed either by the way of writing or by the way of speech. The term ‘libel’ is used for the former kind of utterances and ‘slander’ for the latter. Slander is spoken defamation and libel is written defamation.

The murder of Sushant Singh Rajput is one of the most recent cases in which the media has taken the lead in shaping people’s perceptions and establishing facts and secrets even before the CBI or police discover them in India. It was observed by Justice D.Y.Chandrachud in Romila Thapar & Ors. v. UOI (2018) that the way in which the police misuse the media makes an impact on the reputation of the people that are part of the case. He also stated that “the use of electronic media by the investigating arm of the state to influence public opinion during the pendency of an investigation subverts the fairness of the investigation. The police are not adjudicators nor do they pronounce upon guilt”.

People may use the media to malign someone, resulting in the person’s and his entire life being destroyed. or even persons without a job or an aim can become renowned. In the #Me Too movement, several people in the industry were charged and labeled as rapists. Not all accusations are true, and not all accusations are false. However, it is our responsibility as members of a society to understand and verify which information is correct and which is not.

Newspaper libel

Newspapers are subject to the same regulations as other critics, and they have no unique rights or privileges. Despite the leeway given to them, they have no special right to make unjustified remarks or to make imputations about or in regard to a person’s profession or calling. A journalist’s criticism or comment is limited to the same scope as that of any other citizen.

In Mitha Rustomji v Nusserwanji Engineer (1941) it was held that even if newspapers have a duty to their readers to publish any and all news that may be of interest to them, it has been determined that this is not such an obligation that every communication in the paper relating to a matter of public interest is privileged. In this case, the defendant published in a newspaper about a lady, who was an instructress in physical culture and dancing and who also ran an industrial institution for Parsi girls, that she was unfit to carry on her profession and that by carrying it on, she would be in a position to ruin the future of the girls taking their training in her classes. It was held to be a gross libel.

In another case of Rustom K Karanjia v Thackersey (1969) it was held that a journalist like any other citizen has the right to comment fairly, provided the allegation of facts that he has made are accurate and truthful, however, defamatory otherwise. Since his right to comment on matters of public interest is recognized by law, the journalist owes an obligation to the public to have his facts right.

Raj Kundra’s case

This is the most recent case in which a media trial is highlighted. In this case, the businessman Raj Kundra has been arrested on the charge of being involved in the making of an adult film. Recently, some people were arrested on the charge of forcing a woman into porn movies. A promise was made to these women who came to Mumbai to aspire to their careers. It is alleged that they have changed their scripts on the day of the shoot and have threatened them to perform the acts.

As soon as the shoots were done these movies were made available on the mobile apps, offering subscriptions on the lines of mainstream OTT platforms, and later advertisements were put up on the social media platforms. Since pornography is illegal in India, this was too against the law.

These allegations are not yet proved and no strong evidence has been collected against the accused, the investigation is still on in this case, but the media has made the case more sensational and are making their allegations based on some facts which may be true or false.

Conclusion

Media has evolved and altered over time, from the Bengal Gazette to digitalized forms. In contrast to the United States, India does not have a distinct provision protecting press freedom. The media should not be hampered by political constraints or influences in order to operate freely. It should also not have to make editorial judgments based on ratings, audience, or sponsors in an ideal world.

Conducting debates or conversations on ongoing cases is pointless because most of these disputes are fatal in the absence of evidence and a true legal trial. Nowadays, there is an abundance of information available. As a result, there is an inbuilt pressure to perform and stay active on television and other media at all times. Given how competitive the media landscape already is, how can we reasonably regulate media without undermining its democratic purpose? And who should be in charge of enforcing these limitations?

Without a doubt, the media should be allowed to publish news. Even so, when it comes to interfering with the legal system, the judiciary has the potential to facilitate a fair set of rules. These restrictions should not jeopardise the quality of reporting, but they should set important boundaries for sensitive instances in India to avoid media trials.

References

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