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Detailed analysis of copyright violation with respect to Brazil

By
Rachit Garg
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0
Copyright Law
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This article is written by Nishtha Garhwal, from Alliance School of Law, Bangalore. The article attempts to analyse the laws related to copyright violation in Brazil and how it becomes problematic at times. 

Introduction 

The primary sources of law in the legal system of Brazil are the written rules. The secondary sources of law include judicial precedents, supplementary laws, decrees etc. However, the law that is ranked the highest in the Federative Republic of Brazil is the Constitution of Brazil. 

The role of secondary sources of law comes into the picture when the law in Brazil is silent on some issues. Whenever there is any conflict, the highest-ranked law prevails. Copyright is provided as a fundamental right in the Constitution of Brazil. Any international treaty or rule can be enforced in Brazil only if it is internalized and incorporated into the legal system of Brazil by local law. 

The treaties that are enforceable and applicable to copyright litigation in Brazil include the WIPO Berne Convention for the Protection of Literary and Artistic Works,1971 (Berne Convention), WIPO Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations,1961 (Rome Convention), the Inter-American Convention on the Rights of the Author in Literary, Scientific and Artistic Work (Washington Convention), the treaty on the International Registration of Audiovisual Works and the Convention for the Protection of Producers of Phonograms against Unauthorised Duplication of their Phonograms (Phonogram Convention).

An overview of Copyright Law in Brazil 

The written rules that are applicable to copyright in Brazil include Law No. 9610/1998 which is known as the Brazilian Copyright Law and Law No. 13,105/2015 which is the Brazilian Civil Procedure Code containing the civil proceeding rules. The Brazilian Copyright Law provides certain rules regarding copyright. 

In Brazil, a person alleged of copyright infringement can be sued both in a civil and a criminal case. Decree-Law No. 2,848/1940 provides copyright infringement as criminal conduct and the general rules of criminal procedure are contained in Decree-Law No. 3,689/1941.

Copyright law in Brazil irrespective of the medium in which creative work is expressed provides protection to it provided the work is an original creation. Article 29 of the Brazilian Copyright Law provides a list of things that can be claimed for copyright infringement along with examples. However, this list is not exhaustive in nature.

Notable provisions in copyright legislation in Brazil

The Brazilian Copyright Law regulates the issues of copyright in Brazil. As per this law, the exclusive right to enjoy, use or dispose of the protected work is with the author and also has the right to keep the work unpublished. In case of an author’s death, their successors get entitled to exercise moral rights which means that they get the right to get their names linked to the work and to maintain the work’s integrity.

If this moral right is exercised by someone other than the author himself or his successor, then it is considered an infringement. Thus, if a protected work is used without authorisation, it is copyright infringement. As per the Brazilian Copyright Law, if anyone edits a work or partially or fully reproduces a work without authorisation, it is deemed to be an infringement.

The Brazilian Copyright Law also gives the author of a work a right to withdraw an already authorised work from circulation or to suspend its utilisation if the circulation or utilisation would cause harm to the author’s reputation.

A third party will be held liable jointly for infringement along with the actual infringer if it is engaged in selling or distributing a reproduced work without authorisation for the purpose of gaining benefit from it. If a director or agent without authorisation characterises a protected works’ public performance, then he shall be held liable jointly along with the actual infringer.

An exception to copyright infringement is ‘Fair use’ which can be availed by a person accused of copyright infringement. As per the Brazilian copyright law, a list of situations is mentioned under which an accused will be allowed to avail the doctrine of ‘fair use’. If a person’s use of work does not fall into any of these authorisations mentioned under the law, it will be considered as copyright infringement and third parties will be held liable.

While deciding cases, courts need to consider whether the work was used for educational or commercial purposes. For instance, a book containing 300 pages is photocopied by a professor and given to the students to study, it will come under the purview of ‘fair use’. However, if the same book containing 300 pages is photocopied by a professor and sold to students at a lower cost than the original book, it will not come under the purview of ‘fair use’ since the work was used for a commercial purpose.

Software law, that is, Law No. 9609/1998 protects software in Brazil. However, in the places where the software law is silent, the Brazilian Copyright Law is applicable. 

In cases where the infringement of a copyright-protected work is done in the national territory of Brazil by a foreign-owned or operated website, the legislation relating to copyright in Brazil can be applied by local courts of competent jurisdiction to make a decision. 

As per Article 9 of the Copyright law, if an author makes copies of a work of art, those copies are entitled to the same protection as given to the original work. Article 93 of the copyright law recognises the ‘neighbouring rights’ for phonogram producers and Article 95 for broadcasting organisations. This means that an exclusive right to restrict or allow the reproduction and distribution of a work to the public either for consideration or for free of cost is available to the phonogram producers. Similarly, such an exclusive right is available to broadcasting organisations. 

Article 7 of the copyright law protects architectural works under copyright. This article says that intellectual works are the creations of the spirit and thus, they need to be carefully protected as they are considered as an extension of an author’s personality. A list of protected intellectual works that are non-exhaustive in nature is given under Article 7 of the Act.

Protection of the title is inclusive under the protection of intellectual works when it is related to a specific intellectual work provided it is an original creation. This means that it can not be confused with a prior work’s title of the same time. As per Article 27, waivement or assignment of moral rights is not permitted. Therefore, any legal entity is not entitled to its own moral rights even if such an entity was the initial owner of the work.

Things not protected under the Brazilian Copyright Law

The things that don’t result in copyright infringement in Brazil as per the Brazilian Copyright Law are as follows:

  • Reproduction of any informative article or news which has already been published in a newspaper provided it mentions the name of the author or contains his signature.
  • Reproduction of any speech delivered at a public event.
  • Non-commercial reproduction of some literary, artistic or scientific work for the sole purpose of utilisation by the visually impaired people.
  • Reproduction of any quotation or passages in books, magazines, newspapers or any other source for the purpose of study provided the name of the author and the source of the work is mentioned.
  • Reproduction of lectures given at educational institutions into notes by those to whom the lecture is delivered. 
  • Any theatrical or musical performance of any work taking place for teaching purposes in educational institutions or in the privacy of home provided it is done with a non-profit motive.
  • The utilisation of any literary or artistic work in order to develop evidence for judicial proceedings. 
  • Representation of any work present at a public place permanently in the form of paintings, drawings or photographs.

Period of copyright protection

As per Law No. 9610/1998, for a period of 70 years from the first day of an author’s death, copyright protection lasts. If a work has joint authorship and it is indivisible, then the copyright protection period of 70 years begins from the date of the last author’s death. In the case of an anonymous, photographic or audiovisual work, the period of copyright protection begins from the first day of the year that follows the publication. 

In the case of software where Law No.9609/1998 is applicable, a protection period of 50 years is provided which starts from the first day of the year that follows the publication or creation in case there is no publication.

Provisions relating to copyright notice and deposit

According to the law in Brazil, the copyright notice is not a mandatory legal requirement and thus, even if the copyright notice is not displayed, there are no consequences of it. In addition to this, for the purpose of copyright, a deposit is not a mandatory requirement. The National Library is the place to deposit all the literary works. However, the purpose behind it is to control the literary heritage of Brazil and to preserve its national culture and language as per Law No. 10,994 of 14 December 2004. Foreign works that are published in Brazil are also covered under this law. 

A fine exceeding 100 times the current price of work can be imposed in case the work is not deposited with the National Library or a sufficient number of samples can be seized required to fulfil the legal deposit.

Who owns a copyright protected work

The original creator of a work is deemed to have initial ownership of it as per Article 11 of the Brazilian copyright law. In a general scenario, initial ownership and authorship are the same things. However, there are two exceptions to this, namely, the creation of software through collective work or employment and work being created by an initiative and responsibility taken by an individual or a legal entity that does the work of publishing it under its name or mark which is created by the contribution of different authors leading to an autonomous creation. 

Under Brazilian law, the concept of commissioned works being made in the course of employment does not exist. An exception to this notion is software. In case a software has been developed by an employee or a commissioned person under a contractual obligation, that employee or commissioned person will become the exclusive owner of the economic rights to the work as per Section 4 of the Software law. 

A hiring relationship cannot lead to the automatic assignment of copyright if there has been no express agreement in written format except software. Article 15 of the copyright law is about co-authorship.

It must be noted that only the economic rights can be assigned to a third party and that too in writing. The moral rights of an author cannot be assigned to a third party. In case rights are transferred in writing, however, the duration is not stipulated in the contract, five years is the term for the expiry of the assigned rights as per Article 49 of the Copyright law.

Under Brazilian copyright law, licensing of rights is not mandatory. However, if rights are assigned or licensed, they can be recorded before competent authorities, for instance, the National Library. Depending upon the nature of work, there are different authorities responsible for recording it. 

Although not compulsory, a contract for the transfer of rights can be registered before the Registry of Title and Deeds and this serves as useful evidence.

Performance rights under Copyright

A right to permit or restrict the following acts is available to the performers:

  • Their interpretation’s fixation.
  • Renting their interpretations, its public performance or reproduction.
  • Their interpretations being made available to the public in such a way that they can access it at the time and place of their choice.
  • Any other way in which their interpretation can be utilised.

Digital exploitation of copyright protected works

There are certain provisions in relation to digital exploitation of works in the Brazilian copyright law. The definition of ‘Reproduction’ is given under Article 5 of the copyright law. As per this, if through the use of electronics or any other source that may come up in future, one or more copies of a work is made in any temporary or permanent form of storage, it will be considered as reproduction and thus, infringement of the copyright-protected work.

Prior authorisation is required before work is distributed for the purpose of offering work or its production through the application of optic fibre, cable, electronic waves or any other system such that it enables the user to select and have access to a work by making payment as per Article 29 of the copyright law.

According to Article 184 of the Brazilian Criminal law, it is a crime to make copyright protected work available to the public through partial or total reproduction without prior authorisation by electronic means for the purpose of obtaining profit out of it either directly or indirectly. Imprisonment of 2-4 years is imposed by the law along with a fine in such a case.

Although the concept of digital exploitation is dealt with in some way by Article 184 of the Brazilian Criminal law, there is a lack of provisions and proper legislation in order to deal with the digital exploitation of copyright-protected work.

Who enforces copyright in Brazil

Brazil doesn’t have a central agency to enforce copyright regulations. The primary governing body that enforces copyright statutes and legislations in Brazil is the Ministry of Culture. It is constituted of the following:

It must be noted that the office of Public Prosecutor also enforces copyright in Brazil. In addition to this, there are Police Precincts that specialise in matters relating to intellectual property rights are responsible to investigate in case copyright infringement is involved.

Registration of copyright in Brazil

Since the protection of copyright in Brazil is based on a declarative system, therefore, registration of copyright is not compulsory in order to have copyright protection. Copyright is protected in Brazil irrespective of whether it is registered or not as per Article 18 of Law No. 9610/1998. However, registration may serve the purpose of mere declaration. It can be used to produce evidence in a Court of law in the case of infringement. 

Depending on the nature of the work, it can be registered in the following manner:

However, now works of all nature and not just the literary ones are being accepted by the National Library. It is regarded as the most suitable to register works of all kinds and it is usually advised to make an attempt to register works with it first. A comprehensive form has to be filled in by an author along with his or her qualifications including a copy of the work and other related documents in order to register the work with the National Library.

A fee of an estimated 80 Brazilian reais per work is charged by the National Library in order to register copyright-protected work. The other entities also have similar fee requirements.

The Brazilian Copyright Law and its role in restriction on efficiency of human right to seek education 

In today’s era of globalisation and technology growing at such a fast pace, access to any artistic, scientific or literary work for the purpose of the study is much easier. Now, it is possible to access works from all over the world and thus it becomes possible to disseminate knowledge and materials for the purpose of education. 

Article 26 of the Universal Declaration of Human Rights says that the Right to Education is available to everyone. In order to provide education, it becomes essential to have access to the various textual, musical or audio-visual works. Based on the principles framed in the Berne Convention of 1886, the Brazilian copyright law was drafted and this law is known to be one of the most restrictive copyright laws in the world. 

As per this law, anybody is exempted from producing a full copy of another person’s work without express and prior approval from the copyright holder. The larger the extent of protection, the less access people have to work because they will always require authorisation from the copyright holder and therefore, it is a major challenge towards the goal of implementing the right to education. 

Copyright litigation in Brazil 

The state courts have jurisdiction over the copyright laws in Brazil. However, the federal courts will have jurisdiction over the copyright cases if one of the parties involved is a public company or a federal entity. While handling copyright litigation, the lawyers who are enrolled with the Brazilian Bar Association (BAR) can only represent parties before courts. However, if the amount that is in discussion is twenty times the minimum wage in Brazil, that is, approximately $300, then parties can also represent themselves in the small claim courts. 

Usually, in the legal system of Brazil, the precedents are not binding and there is no obligation on the judges to make a judgement in consonance with the precedent on a similar issue. Even though this is the case, still precedents are taken into consideration by the judges while giving a judgement. The judges in a copyright case can even take the foreign decisions on a similar issue into consideration while giving a judgement but only to the extent that the applied foreign law is in congruence with the Brazilian law. 

The parties do not have the freedom to choose a different language for the judicial proceedings than Portuguese and thus, Portuguese must be the language of every judicial proceeding. However, if it had been agreed beforehand by the parties to a dispute to go for arbitration, then the parties have the freedom to choose the language of the arbitration proceeding. 

Defences available to an alleged infringer

The defendant can take certain defences when sued for copyright infringement. Under Brazilian law, three years is the statute of limitation for bringing an action for copyright infringement in case of extra-contractual damages. However, in cases where the action has a contract related claim, the statute of limitation is 10 years. The defendant can take the defence that the author of the work claiming infringement failed to bring an action within the limitation period. 

The defendant can attempt to prove that the work was used by him before the author, or in other words, the defendant can show his prior use. In addition to this, the defendant can also try to show that the copyright associated with the work is not valid because of not meeting the legal requirements and thus, is not entitled to protection under the Brazilian Copyright Law.

Remedies available in an action for copyright infringement

In the case of copyright infringement, the monetary remedy is available to the copyright holder, that is, a person may request the court to order the infringer to indemnify him for moral damages. An assumption of damages is always there in the case of infringement of moral rights. As per Article 103 of Law No.9610/1998, the amount received from the sale of any protected work must be paid by the infringer to the copyright holder. An infringer must pay a price equivalent to three thousand copies of the work in case the amount is not accessible.

As per Article 102 of the Brazilian copyright law, it can be requested by the copyright holder to seize all the infringing goods. 

A permanent injunction can also be sought by the copyright holder that usually results in an order to cease the infringement and dissemination of copyright work permanently.   

Orkut Case in Brazil

Orkut was launched in 2004 by the largest search engine, that is, Google. Orkut is a social networking site. Though it was unsuccessful in America, the site gained immense popularity in Brazil where almost 70% of the internet users were Orkut users. In a while, Google had to face allegations related to copyright-infringing materials.

The highest appellate court in Brazil, that is, the Superior Tribunal de Justice delivered a landmark judgement in this case. The Court in this case gave the decision that if a third party commits any copyright infringement, then a social networking site or content providers cannot be held responsible if they do not achieve any profit out of it. Therefore, Orkut was not held liable for the links directing to some external pages posted by users containing copyright-infringing materials. 

Reform of Copyright Law in Brazil

The legislative Bill no. 3,133/2012 was introduced on 7th February 2012 in the Chamber of Deputies. This bill intended to make some changes to the Brazilian copyright law. It sought to establish that the reproduction of intellectual work and its sale or distribution for study or knowledge purposes as not constituting copyright infringement. Though this Bill had fewer chances of survival, it forced the authorities to consider the reform of Law No. 9610/1998.

Conclusion

Brazilian law allows both criminal as well as civil cases to be filed in case of copyright infringement. However, in the case of a civil case related to copyright, a single judge gives the judgement and in the case of a criminal case related to copyright, a panel of judges give the ruling. The evidence legally obtained for a civil case is also admissible in a criminal proceeding and the evidence obtained in a criminal case is also admissible in a civil proceeding. The copyright dispute of civil nature is decided by state courts while the one of civil nature is decided by the state criminal courts.

Two years is the average time taken in order to reach a first instance decision and another two years is an average time taken in order to reach a second instance decision. It may take 5 years for a copyright case to be concluded if it goes to superior court.

Renewal of the copyright term cannot be done. There exist no specific regulations regarding the online infringement of copyright in Brazil. The Brazilian copyright law makes the nationals of other designated countries entitled to the same level of protection as available to their own nationals.

The copyright holder, an author’s successor after his/her death, and the Federal Union in case the work falls in the public domain have the right to sue for copyright infringement. The proof of infringement and direct involvement is sufficient to make an alleged infringer liable and there is no need to prove the intention to commit infringement.

An attempt to avoid and restrict infringement of copyright protected work can be done through campaigns and police measures aiming to ensure access to content. As far as an online infringement of copyright is concerned, agreements with search engines and Internet Service Providers can be made or the federal and state ministries can be stimulated in order to reach an agreement so that the illegal activities spreading on the internet can be controlled.

References

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

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

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Compulsory registration of marriage and its feasibility

By
Shoronya Banerjee
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0
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This article is written by Harit Gandhi. The article has been edited by Ruchika Mohapatra (Associate, LawSikho).

Introduction

Civil registration of events like birth, death, marriage, and so on is primarily done to provide the legal records needed by law. In India, Section 30 of the Births, Deaths and Marriage Registration Act, 1886, mandates compulsory birth registration. However, as far as marriages are concerned, their registration is not made obligatory since they are connected to consanguinity, and their solemnization is unrelated to registration. Non-registration of marriage provides a breeding ground for social evils like bigamy, desertion, denial of a matrimonial right, child marriage, etc. which has a disproportionate effect on women. Law commission of India (Hereinafter referred to as Law Commission), in its report 270, has expressed concerns regarding the current state of affairs and has come up with suggestions, which can help frame national law.

Thus, for this article, the author will first look at a global overview on compulsory registration of marriages, followed by the central and state laws on registration of marriage, and lastly, determine the feasibility of a national law mandating registration. The author has heavily relied on Law Commission reports while approaching the problem.

Global view on registration of marriages

The United Nations has given primacy to creating a civil registry of social events like birth, death, and marriage. Such a civil registry creates and safeguards individual rights, which also helps in the creation of a database containing vital statistics.

In countries where marriage registration is compulsory, governing norms stipulate either creating a household register/family album or enacting civil laws (individual registrations) mandating compulsory registration. In countries following the former system, formal acknowledgement of one’s status or family-related events such as marriage is only provided after all such occurrences have been recorded and documented in the family or civil registry. For example, when a marriage takes place in Japan, the household record must be amended to reflect the event. This system is known as Koseki. As a result of the family registry, policies can be effectively aimed at the family rather than the individual, with household heads accountable for execution. Though such a system presents its problem, e.g. process of registration may become discriminatory and exclusionary and may involve complex questions when dealing with a person of other nationality. Children born from an unregistered relationship are deemed illegitimate and are not entitled to family property or inherited titles, as used to happen in Koseki. Other examples include countries like Germany (familienbuch), France (livret de Famille), China (hukou).

Whereas countries following a system of non-family registration often have the provision of fines and imprisonment on non-registration of marriage. E.g. As per Section 5(2) of The Muslim Marriages and Divorce Registration Act, 1974 of Bangladesh, non-registration is punished by up to two years of simple imprisonment, a fine of up to 3000 Taka, or both. On the other hand, in countries like France, Italy, Brazil, Portugal, etc., marriage must be celebrated and registered before a governmental body, and a marriage certificate is the only permissible proof of marriage. This effectively makes the non-registration of marriage null and void. 

Indian laws on registration of marriage

In India, at the central level, no law makes marriage registration compulsory. As per the commission, marriage registration in different parts of the country is governed by either one of the three central laws (Births, Deaths and Marriage Registration Act, 1886; Registration Act of 1908; and Registration Births and Deaths Act 1969) or local law, or a combination of the two. This leads to a lot of confusion among authorities and those who wish to or have been mandated by law to register their marriages.

As far as personal laws are concerned, marriage registration guidelines are given by The Indian Christian Marriage Act, 1872, The Kazis Act 1880(Muslim), The Anand Marriage Act, 1909, The Parsi Marriage and Divorce Act, 1936, The Special Marriage Act, 1954, The Hindu Marriage Act, 1955. Except for the Parsi Marriage and Divorce Act, 1936, Christian Marriage Act, 1872 and The Special Marriage Act, 1954, no other marriage act mandates compulsory marriage registration. Parsi Marriage and Divorce Act, 1936  and Christian Marriage Act, 1872  have largely taken recourse to the provision of The Birth, Death and Marriage Registration Act, 1886 to provide compulsory marriage registration for maintaining records and statistics.

Section 12 of the Parsi Marriage and Divorce Act, 1936 provides that the priests must periodically transmit their records to Marriage Registrars. A priest who fails to certify a marriage or submit its copy to the Marriage Registrar commits an offence punishable by simple imprisonment for up to three months, a fine of up to one hundred rupees, or both. Furthermore, the State Government will select Marriage Registrars for various districts, and they will be obligated by Section 9 of the Act to send their data to the registrar general of Births, Deaths, and Marriages. Concerning the Indian Christian Marriage Act, 1872, Extracts of marriages registered under the act are forwarded to the Inspector General of Registration. Section 34 mandates transmitting registration records of various kinds of marriage to the Registrar-General of Births, Deaths, and Marriages act 1886.

Given the country’s cultural richness, states under Entry 30, List-3, Schedule 7 of the Indian Constitution have the power to make laws on the registration of marriages. The Supreme Court in Seema v. Ashwani Kumar observed the same and directed the states to compulsorily register marriages solemnized in their jurisdiction. Himachal Pradesh became the first state to introduce a law on compulsory marriage registration in 2004. Following the Supreme Court ruling, many states have developed relevant statutes or made amendments in rules to provide for compulsory marriage registration, with UP (2017) as the latest in the list. Most of them have made registration necessary with a penalty for late registration, but no state has made any law that makes an unregistered marriage invalid or void.

Feasibility of registration

The Commission in para 8.11 recommends amending the Registration of Births and Deaths Act, 1969, to include marriage registration within its scope so that the existing administrative machinery for registration of birth and death can be used for marriage registration, without imposing a substantial financial burden to set up any separate infrastructure. However, addressing financial viability wouldn’t be enough; problems that impact cultural and religious diversity and procedural documentation must also be addressed to ascertain the feasibility of a uniform law.

Legal lacuna on age and impact on social diversity

If implemented, then compulsory marriage will significantly help in reducing child marriages. Delhi HC in Lajja Devi v. State NCT of Delhi observed that compulsory marriage registration would deter guardians from marrying off their underage children as a written record of their ages would show the illegality of such weddings. 

There looms uncertainty over the legal age of marriage that authorities must register because of various personal laws and Central laws dealing with the subject. The Special Marriage Act, Section 5(iii) of the Hindu Marriage Act, 1955, and Section 2(a) of the Prohibition of Child Marriage Act, 2006 stipulate 18 and 21 as the minimum age for women and men. However, when it comes to the status of this marriage, there is much ambiguity.

 According to Sections 11 and 12 of the Hindu Marriage Act 1955, marriages in which one or more parties are minors are lawful and punishable by a monetary fine. Whereas as per Section 3 of the Prohibition of Child Marriage Act, marriage is voidable at the option of minor. Then there is Muslim Personal Law, which states that a Muslim who has reached puberty and is of sound mind can contract marriage. There itself is much ambiguity on the age of puberty in Muslim law. As per Hanafi, the legal age is presumed to be on completion of the fifteen years, unless puberty is attained before fifteen. The Hedaya, on the other hand, states that the earliest age for a male is twelve years and for a girl nine years. The situation is even more deplorable for Shia females, where the age of puberty begins with menstruation. In NabadSadiq Ali Khan v. Jai Kishori, the court held that puberty starts at nine for girls. 

In the lack of a defined status for child marriages – whether invalid, voidable, or lawful – the necessary age for registration remains an open topic. Other than that, the registration age raises a larger question of interference with the customary practice of a different community. The Law Commission is cognisant of the issue and accordingly in para 6.14 recommends regulations that ensure that weddings under all cultures and religions can be recorded instead of meddling with any existing personal law systems. This recommendation can be problematic, as some states might frame laws or rules giving legal effect to child marriage. E.g. Rajasthan government recently amended section 8 of the Rajasthan Compulsory Registration of Marriages Act, 2009, which mandates families to register the marriage of bride below 18 and groom below 21 within 30 days of solemnisation of marriage.

 Many activists have raised concerns that it will increase the number of child marriages. The state government responded by saying that the act will ensure marriages happening underground will come under a legal framework and ensure rights to married couples. Again, we need to look at the main objective; our objective is to eliminate child marriages; in essence, the Rajasthan government uses the exact mechanism to fight the evil of child marriage held by Seema v. Ashwini Kumar be a benefactor of child marriage.   

The committee in para 3.1 also emphasizes the concept of encouraging legal awareness among the public so that these essential ceremonies might be preceded or followed by marriage registration. However, there are cases where even the registration process might affect some prevailing customs of the community, e.g. Uttar Pradesh Marriage Registration Rules-2017 mandates all residents of the state, regardless of faith or community, to register their marriages. One of the rules mandated that the bride and groom furnish their photograph. The Muslim community objected to this rule, as nikanama (the Islamic marriage contract) doesn’t carry bride and groom images. The commission, however, is silent on such kinds of situations.

Procedural documentation

While framing provision for permanent registration, it needs to be ensured that neither does provision become too stringent nor does it become too lax that it gets exposed to fraudulent documentation that potentially hampers the cause of redressing social evils. For example, under rule 4(b)(i) of the Tamil Nadu Registration of Marriages Rules, 2009, the document required for proof of legal age to marry can be as simple as a mark-sheet or a birth certificate, so the possibility of submitting fake documents cannot be ruled out. Take the contrasting case of Mumbai; in Mumbai, marriage has to be registered for the issue of passport, but since registering the marriage is tedious, couples instead get their surname officially changed through a notarized affidavit and a notification in the government gazette. Thus, the government needs to account for these extreme circumstances while framing provisions on compulsory marriage registration.

Furthermore, failing to recognize unregistered marriages as genuine may disproportionately impact vulnerable women since it significantly increases the likelihood of legal claims of women failing due to failure to register the marriage, e.g. refusal of maintenance rights. Accordingly, the Law Commission in para 3.2 proposes that an unregistered marriage should not be regarded as ‘illegal,’ but that small fines for non-registration should be imposed to promote registration. Further, given the country’s vastness, a decentralized registration process may better help implement the rule and serve the purpose. The Law Commission in para 8.10 considers this point and suggests that the Sarpanch or Panchmukh may be called to oversee the duty of marriage registration. Kerala Registration of Marriages (Common) Rules, 2008, is modeled on the same principle which under rule 3 makes the Director of Panchayat the Chief Registrar of marriage.

Conclusion

After thoroughly analysing the topic, the author concludes that Parsi, Christian, and Special Marriage Acts are the only central legislatures that mandate compulsory marriage registration. The majority of enactments for compulsory registration are made at the state level. Whereas on the issue of feasibility of national law, the author makes the following observation:-There is a need for a national law on compulsory marriage registration that is neither stringent nor too lax. The law needs to solve the present ambiguity on the legal age of marriage without interfering in the prevailing customs of a community. The implementation of the law should be decentralised for its effective enforcement.

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

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

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Special officer for linguistic minorities : an indispensable need

By
Diva Rai
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0
Image source - https://bit.ly/3FE2BbV

This article is written by Oishika Banerji of Amity Law School, Kolkata. This article provides a detailed discussion on the special officer appointed for the linguistic minorities in India. 

Introduction 

India is a land where people of different linguistic communities reside. Home to 19,500 languages, India comprises 121 languages that are spoken by 10,000 people across the nation. Whenever we talk of linguistic minorities, the concern surrounding their welfare, socio-economic development, and equal status like that of the rest of the nation, takes a positive stand. Although the term linguistic minorities have not been defined in the Constitution of India, the linguistic minorities are considered as a group or collectivities of individuals residing in the territory of India or any part thereof having a distinct language or script of their own.

The language of the minority group need not be one of the twenty-two languages mentioned in the Eighth Schedule of the Constitution. In other words, linguistic minorities at the State level mean any group or groups of people whose mother tongues are different from the principal language of the State, and at the district and taluka /tehsil levels, different from the principal language of the district or taluka/tehsil concerned. In order to channelize this concern, the Seventh Constitutional Amendment Act of 1956 inserted a new Article 350-B in Part XVII of the Constitution of India which provides the setting up of a constitutional body for addressing the issues surrounding linguistic minorities of India.

This constitutional body of Special Officer for Linguistic Minorities falls under the Ministry of Minority Affairs which is currently headed over by Shri Mukhtar Abbas Naqvi (assumed office on 31st May 2019), followed by Shri John Barla (assumed office on 8th July 2021), and Ms. Renuka Kumar (assumed office on 8th July 2021) in the position of Minister of State for Minority Affairs, and Secretary (Minority Affairs) respectively. The Special Officer submits the annual reports along with other reports to the President of India through the Union Minister of Minority Affairs. This article provides a detailed discussion regarding the Special Officer for linguistic minorities. 

The Indian Constitution and its provisions relating to special officer for linguistic minorities

Prior to the 7th Constitutional Amendment Act, 1956, the Indian Constitution did not have any specific provision concerning Special Officer for Linguistic Minorities. The provision for the Special Officer for Linguistic Minorities saw the light of the day after the recommendation by the States Reorganisation Commission (1953-55) which was adopted in Part XVII of the Indian Constitution under Article 350 B. The article reads as:

“(1) There shall be a Special Officer for linguistic minorities to be appointed by the President.

(2) It shall be the duty of the Special Officer to investigate all matters relating to the safeguards provided for linguistic minorities under this Constitution and report to the President upon those matters at such intervals as the President may direct, and the President shall cause all such reports to be laid before each House of Parliament, and sent to the Governments of the States concerned.”

A bare reading of this provision reveals that the Constitution while on one hand specifies appointment and the objective of the Special Officer, it does not provide clarity on subject matters of qualifications, tenure, salaries and allowances, service conditions, and procedure for removal of the Special Officer for Linguistic Minorities.

Commissioner for Linguistic Minorities

The term “Special Officer” in association with the Linguistic Minorities came into the picture in 1957. It was from then that the Special Officer was designated as the Commissioner for Linguistic Minorities. With the Commissioner having his headquarter at Allahabad in Uttar Pradesh, each of the three regional offices functioning under the headquarter located at Belgaum (Karnataka), Chennai (Tamil Nadu), and Kolkata (West Bengal) are headed by an Assistant Commissioner. At the headquarters, the Special Officer is assisted by the Assistant Commissioner, and a Deputy Commissioner. In order to keep positive relations with the states, and the Union Territories, the Special Officer appoints nodal officers who carry out and facilitate the functions of the Commissioner, as it is technically not possible for the Commissioner himself to carry out every function in association with the 29 states and 7 Union Territories. 

Role of the Commissioner 

The Commissioner has a significant role to play in helping the Ministry of Minority Affairs achieve goals in association with the linguistic minorities of the nation. The notable roles of the Commissioner of the Linguistic Minorities have been listed down hereunder:

  1. Whichever policy and schemes pertaining to the linguistic minorities are brought up by the Ministry of Minority Affairs, the responsibility of ensuring its implementation and keeping track of the same rests completely on the Commissioner.
  2. Remedial actions need to be adopted by the Commissioner if the first role fails to be carried out. Any notice, references, information brought before the Commissioner by the linguistic minority groups or individuals, associations, or organizations at the highest administrative levels of the state governments and Union Territory administrations, must be taken into account by the Commissioner.
  3. The constitutional safeguards that have been provided to the linguistic minorities, namely Articles 29, and 30 have to be publicly made known so that the protective measures ensured by the supreme law of the land can be applied when required. The role of the Commissioner in such scenarios is to make the state governments and Union Territories acknowledge the necessity of raising awareness among the public. This can only be done through the Ministry of Minority Affairs. 

Purpose behind the working of the Commissioner

The Commissioner for Linguistic Minorities will acquire his/her position keeping in mind the purpose of the designation acquired. Thus there has to be both a vision and a mission that will facilitate the functions of the Commissioner or the Special Officer. Previously, we have discussed the necessity of implementation of policies, schemes that are framed for the development of linguistic minorities of India. The vision of the Commissioner walks in the same line as it aims to strengthen and streamline the machinery that helps in delivering the planned schemes thereby guaranteeing effective discharge of constitutional safeguards framed specifically for these minorities. To summarize, therefore, the vision of the Commissioner is to provide equal opportunities, and scope for the growth of the linguistic minorities in order to remove the tag of “minorities” from their names. Similarly, the mission is to give effect to the vision of the Commissioner, and the Ministry of Minority Affairs as a whole. Inclusive development and equal chances are thus the two key priorities of the Commissioner. 

Functions and objectives of the Commissioner 

The summarized list of functions of the Commissioner of Linguistic Minorities have been provided hereunder:

  1. It is the duty of the Commissioner to investigate matters associated with safeguards available for linguistic minorities.
  2. The Commissioner is supposed to submit to the President of India reports on the status of implementation of the protection measures that have been accepted on a constitutional and national basis for the linguistic minorities.
  3. To look after the implementation of the protections available for the linguistic minorities by means of questionnaires, visits, conferences, seminars, meetings, review mechanisms, etc.

The objectives of the Commissioner of Linguistic Minorities are listed below:

  1. The objective behind the functions of the Commissioner is to provide and ensure equal opportunities, and platforms to the linguistic minorities for their development and overall national integration.
  2. The Commissioner must spread awareness amongst the linguistic minorities about the safeguards that are available to them by means of the Indian Constitution.
  3. The Commissioner must make it certain that effective implementation of the safeguards provided for the linguistic minorities in the Indian Constitution will take place, as have been agreed by the states / Union Territories.
  4. The Commissioner must be responsible to handle the representations appointed for grievance redress in relation to shielding the linguistic minorities. 

Conclusion 

As we come to the end of this article, it is necessary to talk about the 52nd Report of the Ministry of Minority Affairs which was provided by the Commissioner for Linguistic Minorities, and presented a list of responsibilities undertaken by the constitutional organization, and the Indian government for the betterment of the linguistic minorities. The same has been laid down hereunder:

  1. The Commissioner of Linguistic Minorities has personally visited locations of such minorities along with educational institutions constructed specifically for such minority groups, for the purpose of on-the-spot assessment of the status of implementation of the scheme of Safeguards. In this connection, the Commissioner has also held discussions with dignitaries such as the Chief Ministers, Governors, and at the highest levels of administration at the States/Union Territories.
  2. The report highlighted that the Union Government along with the Ministry of Human Resource Development has collaborated to address issues concerning the threat of extinction of several languages of India. The purpose behind the same is to highlight the importance of a language that is not just a collection of words but also a reflection of the culture of the society. 
  3. The “Mahal” language which is majorly spoken in Lakshadweep and the tribal areas of the North-Eastern States demands immediate attention be preserved from extinction. Taking into account the constitutional rights of the citizens under Article 29 of the Indian Constitution, the same should be administered in its true spirit. 
  4. The Commissioner has worked towards a successful grant of permissions by the Central Government, thereby recognizing the educational institutions for the linguistic minorities.

References

  1. http://minorityaffairs.gov.in/sites/default/files/Vacancy_Circular.pdf
  2. https://www.advocatekhoj.com/library/bareacts/constitutionofindia/350b.php?Title=Constitution%20of%20India,%201949&STitle=Special%20Officer%20for%20linguistic%20minorities
  3. https://www.thehansindia.com/posts/index/Hans/2017-01-31/Special-officer-for-linguistic-minorities/277275
  4. https://pdpu.ac.in/cce/downloads/Constitutional%20Bodies.pdf

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Independent directors in India, a critical analysis

By
Shoronya Banerjee
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0

This article has been written by Kaushiki Vatsa, pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from LawSikho. This article has been edited by Ruchika Mohapatra (Associate, Lawsikho). 

Introduction

The concept of Independent directors cannot in any way be considered as a newly discovered concept but there have been such remarkable developments in this concept over a few years that it is now seen in a certain new light. Moreover, this concept has been a consistent topic of debate after the popular scams such as the Satyam case. The Independent directors have been brought with the objective that they will enhance the objectivity of corporate governance throughout the corporate world. There are a number of different pieces of evidence which brought a mixed result in the effectiveness of independent directors. The aim of this paper is to trace back the independent directorship to its evolution and to find out whether they are as independent as they pretend to be. To achieve this, the theoretical concepts about the different models of corporate governance and the origin of the concept of independent directors will be briefly discussed. 

Concept of independent directors 

In practical terms, the origin of the concept of Independent directors can be traced back to the 1950s US. This was the time when certain people that were not employees of the company or were not connected with the company were selected so that they could be part of the board of directors.

Two models of corporate governance

There are two models of corporate governance, the outsider and the insider model. Countries like the US and UK have incorporated the outsider model. The main objective of the outsider model of corporate governance is to protect the shareholders from being exploited by the management. There is a lowkey understanding that the shareholders are dispersed (Shareholder Primacy theory) and the concept of independent directors has been linked to this theory. From this, we can conclude that the concept of Independent directors was discovered as a way to protect these dispersed shareholders from the management of the company. 

The insider model of corporate governance, which is applicable in countries like India and China, works in a totally different way. In this model, the company is controlled by the individuals who develop a relationship with the company, usually a long-term relationship. These individuals are also referred to as “insiders” and they are mostly from the same family. These “business families” control the company by owning the majority of the shares and unlike the previous agency problem, here, the problem is between the majority shareholders and minority shareholders. Because of this, these families enjoy huge power and mould every decision of the company in such a way that it can benefit them.

In the following circumstances, the work of the independent directors should have been to protect the minority shareholder from the majority shareholders but this is not what happens. The concept of independent directors is directly copy-pasted, in a very literal sense, from the outsider model and thus, the Independent directors find themselves confused as there is no concrete law that can be useful in guiding them.

Independent directors in India

In India,  liberalisation led to the development of corporate governance which further led to the introduction of the concept of independent directors. It is important to note that the only way Independent directors can work efficiently is when they are free from the influence of the management of the company. But there is an inherent problem in this due to the fact that the concept is directly imported from the outsider model and is being implemented in the insider model with zero modifications.

There have been several principles of corporate governance that have been transplanted to India from the US or UK because of the fact that these jurisdictions have a common law background. But in this scenario, there is a difference between the objective of their model of corporate governance with ours, as well as different agency problems. As a result of the aforementioned reasons, there exists a lot of vagueness and arbitrariness. India has a system where the shareholders owning the majority of the shares control everything. Therefore, the independent directors should have additional responsibilities such as preventing the exploitation of the majority shareholder from the dominant shareholders and preventing “insider” problems in the company. Hence, the Independent directors should be able to act in this dual way. 

It is also important to highlight the fact that there have been several modifications or several attempts in the Companies Act so that the independent directors can achieve their independence in a literal way. For example, for the appointment of independent directors, there is a well-described procedure (Appointment and qualification of directors) rule- which states that the appointment of independent directors can be objected to by all the members. But this provision does not ensure that the Independent directors are free from the influence of the management or the shareholders owning the majority of the shares.

Problems faced by the independent directors in India

After the Satyam case, the independent directors were put under a lot of scrutinies. This further resulted in the exodus of around 620 Independent directors. According to Section 149 (12) of the Companies Act, there is a requirement that the Independent Directors should act as a strategic advisor as well as a watchdog. This creates a lot of confusion as the more the Independent directors are outside, the less is their will to maximize the company’s profit and the more they are “inside”, the less independence they get. What is interesting to note here is that in an interview-based study, it was observed that the independent directors perceive themselves as strategic advisors and not as watchdogs. The reason behind this is because as watchdogs, they have more liability and there is more scope of the damage to their reputation. This leads us to two conclusions- firstly, the Independent directors are not encouraged to monitor the management of the company and secondly, even if some Independent directors are, they do not have the necessary tool, mechanism, independence and information (except the audit committee) to monitor them. 

Steps to be taken to remedy the problem 

The only way to ensure the independence of the Independent directors is to prevent the shareholder and the management of the company from having influence over the selection process of the independent directors. And therefore, the Nomination and Remuneration Committee, which is appointed by the Board, is an insignificant and insufficient mechanism as this committee is independent only in papers because of the fact that it is appointed by the board members according to Section 178(1) of the Companies Act.

SEBI should make laws and policies that could be used as a mechanism to supervise Independent directors and should not only focus on imposing liabilities on independent directors. Another way to prevent this problem is the introduction of Independent Supervisors, appointed by the body which is entirely different from the company. They will have a better chance to fulfil some of the insufficiencies of the independent directors. Moreover, it will be useful when the independent supervisors will have the power to appoint directors.

Another way to supervise and monitor Independent directors can be done by a national level supervisory board of Independent directors. This will be a completely independent board that will establish a literally separate mechanism to monitor the management of the company. Moreover, this will provide a mechanism by which the independent directors will be able to act as strategic advisors whereas the board will ensure a system of checks and balances.

Conclusion

The concept of Independent directors was introduced in India with the objective that they will play a major role in enhancing the standards of corporate governance and will also be successful in ensuring that the companies are run in a more transparent way This paper provides a brief understanding of the origin of the Independent directors in India and the difficulties or the arbitrariness they face because of the inherent problems of being directly transplanted to India from a different type of corporate governance, without any modifications. The independent directors are not able to work properly because of the lack of emphasis given to the Indian legal system and the different types of corporate governance that it has. One of the alternative options that might be quite useful is the Delaware Model, where independence is decided by observing the behaviour of the directors and is not taken for granted, as a status. 

References

  • Jeffery N. Gordon, ‘The Rise of Independent Directors in the United States, 1950-2005: Of Shareholder Value and Stock Market Price.’ (2007)
  • Markus Berndt, ‘Global Differences in Corporate Governance Systems Theory and implications for reforms.’ (2000) 
  • Cydney Posner,’ So long to Shareholder Primacy.’ (2019)
  • Umakanth Verotill, ‘Evolution and Effectiveness of Independent directors in Indian Corporate Governance.’ (2010)
  • Victor Brudney, ‘The Independent Director: Heavenly City or Potemkin Village?’ (1982)
  • Shen and Jia, ‘Will the Independent Directors Work in China?’ (2005)
  • Vikramaditya Khanna and Shaun J. Mathew, ‘The Role of Independent Directors in Controlled Firms in India: Preliminary Interview Evidencer’ (2010)

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Analysis of Manoj Kumar v State of Himachal Pradesh

By
Oishika Banerji
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0

This article has been written by Deepankar Borah pursuing the Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho. This article has been edited by Zigishu Singh (Associate, Lawsikho), and Ruchika Mohapatra (Associate, Lawsikho). 

Introduction 

In criminal jurisprudence “Actus Non Facit Reum Nisi Mens Sit Rea” is the foundational principle when deciding whether an act is a crime or not. So, an act where there is intention and motive before the actual crime is committed would be of serious nature in comparison to an act where there is no motive or intention but has been done out of a sudden provocation or had been an instantaneous act. Due to this principle, the punishment for murder is more serious as compared to punishment for culpable homicide not amounting to murder.    

 Facts of the case with timeline 

That the Appellants/Accused Manoj Kumar, Surinder Singh and Rangeel Singh were convicted for offences punishable under Sections 302, 341, and 323 read with Section 34 of the Indian Penal Code (IPC) by the Trial Court and the conviction had been upheld by the High Court and therefore, it was appealed before the Supreme Court. 

Here in this case, on 24/03/2004 at around 8:30 p.m. Jeewan (PW12) –complainant went out of his house in search of his father Prem Dass (Deceased) who went to a nearby village and  found his father along with the company of some other people, i.e. with the company of Yashwant Singh (PW13) and Narso Ram (DW1) near a village called Chhedu. 

While they were returning towards their village, they were met by the appellants and their family members near the disputed land. The appellants and their family members were seven members in total. Suddenly, the appellants and their family members attacked the deceased, Prem Dass. The Appellant Manoj Kumar (A4) was holding a spade (belcha) and Surinder Kumar(A3) had a Drat (Sickle). The other Accused were armed with sticks. 

The Appellant Manoj Kumar gave a blow on the head of the deceased (Prem Dass) and the other appellant/accused struck the deceased with a blow of the sickle causing injury on the right hand of the index finger, and other accused were beating him with sticks. For saving their own lives, the deceased (Prem Dass), Yashwant Singh (PW13), Narso Ram (DW1) and Jeewan (Complainant) ran helter-skelter from the scene.  

By taking another route, when the complainant reached the shop of Yashwant Singh, he found his father Prem Dass (Deceased) in a subconscious condition and was bleeding profusely. Then the injured Prem Dass was taken to the police post and subsequently was sent to the Primary health centre, Sihunta and there the injured Prem Dass was attended by Dr. Parveen Kumar and there the Doctor has referred the injured person to Rajinder Prasad Medical college (RPMC), Dharmsala because his condition was deteriorating. And after some time the injured person was again brought before Dr. Praveen Kumar (PW4) who on examination was declared dead.

Issues raised in the case

With the facts given in this case, whether the conviction of appellants under section 302 IPC is justified or should the conviction be based under section 304 IPC culpable homicide not amounting to murder.

Judgement by the court

The Sessions Judge, Chamba after taking cognizance of the case framed charges against the appellants/accused and other accused under Sections 147, 148, 341, 323, 302, and 506 read with Section 149 of IPC. After carrying out the full-fledged trial, the Sessions Judge held all the accused guilty for all the sections charged except section 506  and all were sentenced to life imprisonment and with other sentences. The Sessions Judge held that the prosecution was able to prove the case beyond reasonable doubt. And held guilty and convicted all the accused who were on trial.

On appeal before the High Court against the conviction, the High Court while allowing the appeal partly had acquitted the accused  Biaso Devi(A7), Veena Devi(A6), Mohinder Singh(A2) and Rekha Devi(A5) and upheld the conviction and sentence against the appellants Manoj Kumar(A4), Rangeel Singh(A1) and Surinder Kumar(A3). The HC also held that there was the motive in this case which was due to prior land dispute and that the statements of defence witness(DW-1) was not believable and the High Court also accepted that the prosecution had exaggerated the case by roping other unconnected family members.

Finally, there was an appeal against the impugned judgment of the High Court before the Supreme Court by the appellants.  The Supreme Court after considering mixed questions of law and facts had decided whether the case falls under the provision of murder or culpable homicide not amounting to murder. The Supreme Court after considering the facts that were available before the Court then looked to the question of law to see whether the given facts amounts to culpable homicide not amounting to murder. It was contended by the learned counsel for the appellants that there was no premeditation on behalf of the appellant-accused and the entire incident was a sudden fight and the High Court ought to have invoked Exception 4 to section 300 IPC.

Exception 4 to Section 300 IPC states that  Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.

The Supreme Court held that there is no dispute about the ingredients of Exception 4 to Section 300 IPC, the following conditions are to be satisfied namely: 

(i) that the incident happened without premeditation; 

(ii) in a sudden fight; 

(iii) in the heat of passion; 

(iv) upon a sudden quarrel and 

(v) without the offender having taken undue advantage or acted in a cruel or unusual manner.  

The Supreme Court cited the case of Sridhar Bhuyan Vs State of Orissa wherein it was held that for bringing in operation of Exception 4 to Section 300 Indian Penal Code, it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner.

Thus, the Supreme Court held that by considering the facts in this case there was a sudden verbal quarrel and evidently there was no premeditated attack. And after considering the given facts the Supreme Court gave the opinion that goes to show that the injury no. 2 on the scalp resulted in hemorrhage which had earlier not been duly accounted for. Moreover, the force and gravity of assault indicate that the aforesaid assault was carried out with only sufficient knowledge of likely death.  The Supreme Court observed and held that the circumstance demonstrates that the appellant had no intention to cause death, though he has knowledge that the weapon used by him to inflict injury on the scalp of the deceased may cause death. But in the absence of intention to cause death or to cause such bodily injury as is likely to cause death, the offence does not fall within the scope of Section 300, IPC but it will fall within Section 304, Part II of the IPC. And subsequently, the Supreme Court held that the appellants were not guilty of murder but were guilty of culpable homicide not amounting to murder.

Analysis

In the present case which the trial court had perceived the motive of the appellants to murder the deceased from the fact that there was a civil suit between the appellants and the deceased is taken in a light note. In such a serious offence, where the appellants and other accused were convicted for life imprisonment, this should have been considered important enough to constitute motive as there have been several such cases with similar facts and similar motives. 

Current position

Until today, the observations given by the Supreme Court, in this case, are relevant and binding as the judgement has not been overturned by a larger bench of the Supreme Court.

Conclusion of the case

In the present case, it can be seen that the trial courts are in some sense, still not that liberal in interpreting the statutes which in turn affects the personal liberty of an individual. Here in the present case, wherein there were verbal altercations between the deceased and the appellants and subsequently there were fights and ultimately some physical assault and blows were administered by the appellants on the deceased, which the deceased after some time died out of. Here, just because there was a civil suit between the appellants and the deceased doesn’t make it fit to try it as a case of murder with motive and intention to murder. The court should always look into the facts and circumstances in and around the case and then decide whether there is any motive or intention. If not, then that case shouldn’t be brought under the purview of murder. Here, in this case, the facts and circumstances depict that there was a sudden fight and out of which there was assault and a blow given with a ‘belcha’ to the deceased.  This leads to culpable homicide not amounting to murder.

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Group of companies doctrine : a defense

By
Oishika Banerji
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0

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

Introduction

The most basic or fundamental thing required to start or complete the process of arbitration is consent. By the term consent, it is meant that the parties should have the common intention to take the legal matters to an arbitral tribunal instead of the court when any disputes occur. This proof of consent is properly highlighted in the agreement of arbitration. Hence, in most circumstances, the parties which have signed the arbitration agreement are bound by the law of the arbitration. It can also be considered as a cornerstone. However, in some very rare situations, the parties which have not signed the agreement of arbitration will also be bound by the same law. This happens in the cases where it becomes difficult to solve that particular dispute without the third party being involved during the proceedings. The point to ponder here is: how can the consent of these parties be ensured? What is the mechanism to ensure this “implied” consent? For this very same purpose, a variety of legal doctrines have been used which are derived or taken from the well-known concepts of company law and contract law. One such legal principle that has become popular over time is the “group of companies ‘ doctrine.

Group of companies doctrine

From a superficial point of view or as the name suggests, this doctrine states that a non-signatory can be also bound by the arbitration agreement if the non-signatory and the signatory belong to the same group or the company and all the parties that are mutual to the arbitration agreement have agreed that the non-signatory will also be bound by the law of arbitration. What is important to note here is that the parties’ intention can be figured out or implied by their conduct as well. By the term conduct, it means activities such as non-signatory were present during the negotiations, or when the agreement was performed.  If we are talking in a practical context, the value of this doctrine is consistently rising because of the complex nature of society. This doctrine seems to be contrary to the very basic or fundamental principles of a legal personality that is very important in common as well as civil jurisdictions.

Moreover, the “group of companies” doctrine tends to divert from all the orthodox principles that have been governing our legal area and our legal framework for a long time. Hence, this is obvious to create some controversies and debates. Some scholars believe that this doctrine erodes the foundation of the consent of the parties. But it is important to note that a detailed analysis of this doctrine will help us to realize that it is not against the foundation of the arbitration.

The “group of companies” doctrine uses a three-fold test to determine whether the non-signatory party is involved in the process of Arbitration or not. This three-fold test is- the presence of a tight group structure, involvement of the non-signatory party in the conclusion of the agreement, and the mutual intention of the parties to bind the non-signatory party to the arbitration agreement. This article tries to provide a defense for this doctrine by countering some of the claims against its validity. 

Origin

The “group of companies’ doctrine was discussed thoroughly for the first time in the International Chambers of Commerce in the case of Dow Chemicals Company & Ors v. Isover Saint Gobain (Dow Chemicals). At this time, this doctrine was way out of the ordinary concepts of contract law that were prevalent at that time and therefore was a novelty. in the above-mentioned case, there was a group of companies that were together known as Dow chemical group and they filed a case against Isover. What is important to note here is that in the Dow chemical group, some companies (parent companies) have signed the arbitration agreement while some did not (French subsidiary). The matter was brought to the tribunal when both the companies who had signed the arbitration agreement had some distribution disagreement.  

At the tribunal, not only the two companies who had signed the arbitration agreement were the parties but also all the companies of the Dow Chemical group (Dow Chemical Venezuela, Dow Chemical AG, Dow Chemical Europe and Dow Chemical France) were considered as the parties to the arbitration agreement as well. This was one of the very first times when the parties that were not exclusively mentioned in the arbitration agreement or did not intend to take a part in the arbitration were a part of the arbitration. 

Criticisms

This judgment was severely criticized because it included the non-signatory party only because of the fact that the parties had a parent-subsidiary relationship. Moreover, the critics also added that the decision of the court was problematic because many parent companies were put at risk. The article further explains the three-fold test that was used in the Dow Chemical case to reach the conclusion. This has also become the basic requirement for the non-signatory party to be bound by the law nowadays. The article also intends to counter the above criticism of the case and wants to show that the tribunal reached the conclusion by believing that there was a common intention of all the parties (signatory parties) to bind the non-signatory party to the contract.

Countering the criticism of the Dow Chemical case

To apply the “group of companies” doctrine all the aspects must be fulfilled (Subjective and Objective). The objective aspect looks for the relation between signatory and non-signatory companies while the objective criteria looks for the intention of the parties to get the third party involved in the arbitration agreement. Both of these aspects have been fulfilled in this case as the relationship between the signatory and the non-signatory party is justified as well as there is enough evidence to show that the parties wanted a third party to be involved in their arbitration agreement. The tribunal further justified the conduct of the non-signatory company by stating that this non-signatory company was a parent company of the signatory company and therefore the signatory party is controlled by the parent company. They finally concluded by saying that these are the conditions that provide implied consent from the third party as the members of this company are so tightly related to one another that all the members have enough control over each other. 

The tribunal said that the non-signatory party has a right to come before arbitral because they have played a crucial role in the performance of the agreement as to all the distributions that were made as per the agreement were made by this very non-signatory party only. It is also important to note that why will a third party be so interested in the completion of the contract if they have no intention to be a part of it and why will the involved parties bring a third party if they don’t want the third party to be the part of the contract. Hence this was a valid decision.

The three-fold test requirements

 The three parameters of the test that were laid down, in this case, are as follows-

(i) The group of companies should exist in such a way that they can form a tight structure despite being different legal entities. They should not only belong to one group but the structure should be so tight that the members should have enough control over one other.  (ii) The second criteria is that the non-signatory party should perform an important or crucial role during the performance or termination of the contract containing the arbitration agreement. This participation by the non-signatory is shown by its conduct. The underlying principle behind this criterion is that it is very likely that a third party will be actively present during all the stages of the contract without having the intention to get involved. 

 (iii) The third criteria is that both the parties must have the common intention to bring the third party into their agreement of arbitration.

“Group of Companies Doctrine” in different jurisdictions

ICC has been very inconsistent with the use of the “group of companies” doctrine. In some cases, it has supported this doctrine while in some others it completely rejected the doctrine. 

US and UK 

The US, as well as the UK, have both been a little skeptical about the use of the doctrine. However, while the US had a comparatively flexible approach, the “group of companies” doctrine was completely rejected by the United Kingdom in the cases of Caparo Group Ltd v Fagor Arrastate Sociedad Cooperative and Peterson Farms Inc v C&M Farming Ltd. The US has denied this doctrine because it believes that only the old contract theories guarantee consent. This theory of the US appears to be vague and illogical with no concrete evidence. 

In the case of the UK, the reason for not accepting the doctrine in the case of Caparo Group Ltd v Fagor Arrastate Sociedad Cooparative was that the contract, as well as the arbitration agreement, was governed by English law. However, there is  no evidence to suggest that Caparo was a party to either of them. Peterson Farms Inc v C&M Farming Ltd case law rejected the doctrine because the substantive law was decided to be Arkansas law by the parties. The tribunal, however, failed to take notice of that and they assumed that it has the jurisdiction of both the signatory party as well as the non-signatory party. The matter was then brought to the English court where the court said that the tribunal had failed to take the consent of both the parties into consideration. The court said that the party has the right to choose the law and they chose Arkansas law which the tribunal failed to apply. The court then applied the Arkansas law and found that there was no role of “group of companies” doctrine and therefore, the tribunal had no jurisdiction to decide the case. The court also added that the “group of companies” doctrine does not form any part of English law.

 It can be vaguely said that Arkansas law as well as the English law have no provisions to support the Doctrine of Companies. However, it is interesting to note that some scholars argue that if the law of arbitration has recognised this doctrine then the English law cannot stop this doctrine from implementing it. 

It is not shocking to discover that like the US, the UK shares the same old thesis about consent. And they only consider the written agreement as valid proof for consent. These countries have refused to acknowledge that how to evidence consent lies in the heart of the “group of companies” doctrine. This argument can further be proved with the fact of a three-fold test that the Dow Chemical case draws. This three-fold test acts as a litmus test to determine the mutuality of the intention of the involved parties. One of the more reasons, the UK has blatantly refused to accept the “group of companies” doctrine is because of the fact that they have applied the concept of “privity of contract” very broadly and very extreme. 

France

France is one of the many jurisdictions that have adopted the “Group of Companies” doctrine. This country went to the extent of making this doctrine a legal rule. In the Kis France case, the court extended the arbitration agreement to the subsidiaries because there was a common intention to bring the third party into the contract. France has shown a very liberal approach in adopting this law but this doctrine is only applicable if it meets the two conditions. The company which has not signed the arbitration agreement and is considered as the third party per se must play a crucial and active role during the performing and the concluding of the arbitration agreement. The second condition is that the parties which have directly signed the arbitration agreement must have a mutual interest in binding the third party to the contract. 

India

Indian courts have quite a mixed reaction to the “group of companies ‘ doctrine and to some extent are quite willing to adopt the “group of companies” doctrine. The Indian law does not put emphasis on signed arbitration agreements because they gave validity to both oral and written contracts. In the Chloro Control India case, the court allowed this doctrine. For the doctrine to be applied in India the court said that there should be enough commercial evidence to show that the non-signatory has been involved during the performance of the court by the signatory party. It is also important to note that there is no hard and fast rule for this doctrine to be applied and the only way this doctrine can be applied is on a case-to-case basis. In India, the Chloro has dealt with the applicability of the doctrine but there are still some problems with solving the disputes relating to the enforcement of the awards.

Conclusion

The “group of companies” doctrine faces several criticisms and several challenges from the different scholars in different jurisdictions across the globe. Countries like France have been flexible enough to adapt this doctrine. While some countries like Germany are also relaxing their extreme stance and are making several provisions by which they can adopt this doctrine. It is not a surprising fact that this doctrine diverts from the traditional and the orthodox principles and the doctrine of law. But it also provides a mechanism by which the third party can be held liable which were not held liable previously because all the emphasis was given to “signatures”. Therefore, more or less, this doctrine acts as a shield against those companies who try to escape their liability by acting through the subsidiary company. It is also important to note that no mandate rule can be set up, there can be no one formula and each case should be decided on a case to case basis. And therefore, it is very important for the arbitral tribunals to strike a balance between misinterpreting consent and flexible interpretation.  

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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How to prepare legal aptitude for undergraduate law entrance exams

By
Sneha Mahawar
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0

This article is written by Gursimran Kaur Bakshi. This article is a step-by-step guide for students who want to prepare for the legal aptitude section in law entrance exams.  

Introduction 

Legal aptitude is one of the most pertinent yet complex sections in the law entrance exam. This section is important because no legal entrance exam is complete without it. The legal aptitude section is inculcated in the examination to test the problem-solving ability of the aspirants, that is the ability to think like a lawyer. But what makes it difficult is not the standard of the questions that are asked in the legal aptitude section but the inability of the students to understand and solve the same. Generally, legal aptitude comprises two parts that are subdivided into the legal reasoning section and the general knowledge section based on contemporary legal affairs. This article is meant to help students who want to understand legal aptitude and the approach to prepare the same for upcoming exams. 

What is the meaning of legal aptitude?

A lawyer is someone who not only understands the law but also knows how to apply the right legal principles in a given case. The ability to understand and apply legal principles can be learnt through legal aptitude. 

Legal aptitude in layman terms means the basic knowledge of the law that a prudent person should know while living in a society. However, the threshold of prudence increases when that person is someone who is a law entrance aspirant. It is because knowing the bare minimum law will not work for someone who wishes to pursue a professional course in law.

As mentioned above, this section is included in the entrance exams to test the ability of the students to solve the questions based on hypothetical facts with the help of a certain set of legal principles. This can be better understood with an example. 

For instance, we know that everyone in India has the right to vote. But for a law aspirant, this level of knowledge is insufficient. A law aspirant will have to dig deeper into the pool of knowledge to understand and find out whether the right to vote is a legal right or a fundamental right? If it’s a legal right, can the person whose right to vote has been violated, seek damages?

The legal aptitude section generally comprises the following:

  • Legal Reasoning including questions based on a hypothetical set of facts along with legal principles. 
  • Legal G.K including legal maxims and important landmark cases. 

What are the subjects on which the legal aptitude questions are based?

Legal aptitude is usually based on some of the most important legal subjects that are taught in detail in law schools. These are as follows:

What are the different law entrance exams in which legal aptitude is required 

Legal aptitude is asked in almost all legal entrance exams. Legal entrance exams are divided into Undergraduate (UG) legal entrance exams and Postgraduate (PG) legal entrance exams. 

List of UG entrance exams 

Name of the exam Eligibility 
Common Law Admission Test (CLAT).There is no upper age limit to appear for this exam. The minimum limit is that the student should either be appearing or have appeared in the Higher Secondary School Examination (Class 12th). 
All India Law Entrance Test (AILET).There is no age limit mentioned on the website of the university. The candidate must have passed class 12th with a minimum of 50% marks. Usually, in all the entrance exams the minimum limit is either 45% or 50%.
Symbiosis Law Admission Test (SLAT).Same as above. 
Banaras Hindu University Law Admission Test (BLAT).Same as above. 
Maharashtra Common Entrance Test (MH CET). Same as above. 
Indraprastha University Common Entrance Exam (IPU CET).Same as above.Students on the basis of CLAT scores can also take admission. 
Law School Admission Test for India (LSAT). A student should have scored an aggregate of 45% marks in class 12th. 

What are the essential things that students should keep in mind while preparing for legal aptitude 

Given below are the essentials of preparation for the legal aptitude section. 

Students should have a proper knowledge about the syllabus

It is very important that an aspirant should be aware of the exact syllabus for the exams they are preparing for. In usual cases, the syllabus of the legal aptitude section consists of the important legal subjects that have been mentioned above. To reiterate the same, it includes:

  • Constitutional Law; 
  • Contracts Law;
  • Law of Tort;
  • Criminal Law.

Reading newspaper is essential for legal G. K. preparation

For the purpose of legal GK, reading newspapers is important because often the questions are based on contemporary developments. There are various ways in which the questions based on legal GK are asked in the exams. Some of the common ways are mentioned below:

  • Questions entirely based on current legal developments. 
  • Static GK questions based on current legal development. Some examples of these are the recent appointment of nine judges to the Supreme Court. This is current news related to legal affairs. However, a static question can be asked on this, such as”
    • What is the National Judicial Appointment Commission?
    • Which Article of the Constitution of India concerns the judicial appointment of judges to the Supreme Court?
  • Questions based on landmark cases. An example of this is:
    • Which case is attributed to the development of the Supreme Court Collegium? 

Students should analyse past year papers 

Alongside knowing the syllabus, it is crucial to go through the past year’s question papers. These question papers allow the student to develop a pre-understanding of what they should be focusing on in a given subject. For instance, if a student analyses the past year papers of CLAT, they will understand that questions from contracts law are consistently asked. However, these questions are usually focused on certain areas such as acceptance and consideration to write a few. 

What kind of questions are asked in legal aptitude

As mentioned above, legal aptitude generally has two sections and thus the form of questions will definitely differ in both two sections. 

For legal GK

Questions are based on current events such as landmark case laws, legal developments, and world affairs which may have a link with the Indian judicial system. These are mostly objective-based questions. In the law entrance exams, legal GK also consists of legal maxims. These are established principles of doctrines originating from different legal jurisdictions. Below given example is based on the legal maxim that has been asked in different legal entrance exams. 

Example 1

Q.1. What do you understand about the term ‘Res Ipsa Loquitur’?

  1. Let the buyer beware. 
  2. Things speak for itself. 
  3. Listen to the other side. 
  4. Rule of lost opportunity. 

Answer- Res Ipsa Loquitur is a rule in the Tort of Negligence which means ‘things speak for itself’.

Example 2

Q. 2. In which of the following cases did the National Judicial Appointment Commission was held unconstitutional?

  1. In Re Vinay Chandra Mishra.
  2. Supreme Court Advocate on Record Association v. UOI.
  3. Supreme Court Bar Association v. UOI.
  4. In re: Under Article 143(1).

Answer- The National Judicial Appointment Commission was enacted to replace the Supreme Court Collegium on the appointment of judges through the 99th Constitutional amendment inserting Article 124A in the Constitution of India. It was held unconstitutional in the Supreme Court Advocate on Record Association v. UOI (2015). 

For legal reasoning

Recently, CLAT has changed its pattern to include passage-based legal reasoning questions. For instance, a passage will be given on a recent judgment and legal reasoning questions will be based on the information given in the passage. Whereas other entrance exams have principle-fact based questions. In this, a legal principle will be given to the student and on the basis of which the factual situation will need to be solved. The legal principle is nothing but provisions of law. This section is also objective. 

Example on legal reasoning in legal entrance exams except for CLAT 

Q.1 Principle: The parties to the contract must agree on the same thing in the same sense.

Fact: A has two horses, named Phineas and Ferb respectively. Ferb is a racing horse. A wants to sell his horse and he offers B to buy the same. B is an avid racer and is known to have participated in horse racing. B thinking about buying Ferb accepts A’s offer to buy the horse. A sent his horse named Phineas to B. Now, B is not willing to pay for it.

  1. There is no contract but the parties were not agreeing on the same thing. 
  2. There is a valid contract. 
  3. A should have specified the horse he is selling. 
  4. It is voidable at option of B because he was not told about the specification of the horse. 

Answers: The parties failed to agree on the same thing and hence, there is no contract between the parties. This is known as consensus ad idem in contracts law.

How to prepare legal aptitude 

The preparation for a legal aptitude for UG and PG is different and the approach will obviously differ. The approach to this has been mentioned below in the most simplified manner.

Prepare a list of legal maxims for legal GK

As mentioned above, these entrance exams do have questions on important legal maxims principles. To prepare for this, the previous year’s question paper can be used to develop a better understanding. In usual cases, questions on legal maxims are often repeated which are frequently used in legal textbooks and judgments. 

Legal maxims are terms known to have originated from various parts of the world such as Rome and England. One example of a legal maxim is ‘Caveat Emptor’ which means ‘let the buyer beware’. This is one of the common legal maxims often used in consumer forum cases. 

Focus on the objective of the exam for legal reasoning 

Firstly, understanding the objective of the exam is necessary, which is to question the ability of the aspirant to understand the law. A general understanding of the subject is required and not in-depth knowledge. To do this, analyse the syllabus along with the past year papers and filter out those topics that are most frequently asked. 

Develop a basic understanding of the important legal subjects

Once all that is done, start with a basic subject. For instance, an aspirant would want to start with the Constitutional Law which is most frequently asked. Now, they must find out the topics that they have filtered out as per the previous year papers. Once this is done, three steps should be followed. 

  • First, read the background of the subject to understand its context. This step is essential for structured preparation. 
  • Start reading the most frequently asked topics. For this, a bare reading of the Article of the Constitution on the concerned topic is a must. Often direct questions are asked from it, such as which Article of the Constitution deals with the right to freedom of speech?
  • It is also important to keep in mind that questions are often asked based on illustrations in different bare acts. While trying to understand a legal topic, it is suggested that a person reads and understands the examples given with it in the bare acts. For instance, if a student is preparing the Indian Penal Code, 1860, the illustrations which are given in the Code after each Section cannot be missed. 
  • A list of landmark cases should also be made to get a basic understanding of it. In recent years, a lot of questions have come from landmark case laws. Every subject has a set of landmark judgments that are not just repeated in the exams every year but are also asked in a form of legal GK. Landmark judgments are considered the most important judgments which are often referred to by lower courts. 
  • Now, it is important to keep in mind that other leftover topics may be equally important for the preparation. But how to find out those topics that may not have been frequently asked, but are still important? This is where the importance of reading newspapers comes into play. If a person is updated with the legal current affairs, they will be able to find out those topics. Hence, reading the newspaper is a must.

Solve past year papers thoroughly

After a basic understanding of the subject has been developed, it is important to solve as many questions as possible before appearing for the exams. But these questions should be relevant to the exams. Question papers of other UG law exams can be referred to for practice. Some of the links to the past year papers are given below:

Appear for all India mock tests to analyse your preparation

Many coaching institutes conduct all India mock exams based on the standard pattern before the actual date of examination of law entrance exams. This happens to be free of cost and students should appear in the case to understand how well they have prepared. At the same time, the scores should not set a parameter to their performance. Given below is the list of some of the all India mock exams based on the standard pattern of examination. 

What are the books and materials for legal aptitude 

Level of exam Books 
UGLegal awareness and legal reasoning by A.P Bhardwaj.CLAT solved papers by Universal. This also contains solved papers of various other law entrance exams.

Platforms providing free classes for the legal aptitude preparation 

Nowadays, various online platforms provide free classes on legal aptitude including legal GK and other legal updates. Their youtube channels can be referred to for basic preparation. 

What are the pointers to remember for the last-minute preparation for legal aptitude 

Basic understanding of the subject cannot be skipped

Those looking for a last-minute preparation strategy should learn some of the important things. First, the basic understanding of the subject cannot be skipped irrespective of the level of the exam a person is appearing in. However, since time is limited, students can refer to the books provided by the coaching institutes or they can buy the summarised version of subject books. These books cover the subject in pointers. 

Past year papers cannot be skipped

Second, past year papers are the ultimate weapon in this case. A person who has limited time can start their preparation by filtering out the important parts of the past year papers. If a student has limited time, they can refer to these youtube videos to revise past year legal papers:

Read consolidated legal GK and landmark cases

Many legal websites such as Live Law and Bar & Bench regularly update legal current affairs which are necessary for all levels of exams. Monthly videos can be found on their website for consolidated GK. Some of the youtube channels providing consolidated legal GK are:

Conclusion 

The legal aptitude section can be understood easily if the following pointers mentioned in the article are followed by heart. Once these basic pointers are well taken care of, the students can refer to the materials freely available online. However, a caveat here is that the internet has a lot of material for preparation and this can both be a blessing and curse. It is a blessing because the student can refer to the material as and when required. But the curse lies in the fact that too many materials can confuse the student and distract them from a systematic preparation. Thus, students should only refer to the materials on the internet when they are aware of the basic knowledge and the objective of the legal aptitude section. 

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

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

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Certified Public Accountant (CPA) exam in the US

By
Sneha Mahawar
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0
Image Source: https://rb.gy/cu7cue

This article is authored by Anvita Bhardwaj, a student pursuing BA LLB from Symbiosis Law School, Noida. This article extensively discusses all the aspects involved in attaining a CPA certification and its relevance. 

Introduction 

A Certified Public Accountant, hereafter referred to using the abbreviation (CPA), is a distinguished and licensed accounting professional that is committed to safeguarding the public interest. The basic objective of a CPA is to inform investors regarding the financial position of an organization, the same is done by him by offering financial statement audits and other attestation services. Around the world, CPA offers various organizations financial reporting and advisory services to help them make decisions strategically and advance their success. 

It is pertinent to know that only with extensive education can an accounting professional pass the meticulous four-part exam and meet the experience requirements to become a Certified Public Accountant. A CPA has to adhere to a Code of Professional conduct that further requires them to be competent, objective, independent, and upright.  

With a basic understanding of what a CPA is, let us now understand how to apply for the exam, the eligibility and skill set required for the same along with other details relevant to the topic. 

How does one apply for the CPA exam

Eligibility 

In the United States, there are 50 states and 5 U.S. Territories. There are 55 jurisdictions to take this exam, each has its unique Board of Accountancy. Please click here to check out the various Boards and their requirements. 

Candidates will be eligible if they meet the eligibility and licensure requirements set by the Boards for their jurisdiction’s candidates. 

The candidate must pass all four sections of the CPA Exam within 18 months. The calculation of when this 18-month timeframe begins varies by and depends on the jurisdiction. You can refer to the link mentioned above to check the timeframe of the jurisdiction you are interested in appearing for. The fees, i.e, the cost of appearing for the examination also varies from jurisdiction to jurisdiction depending on where you are looking to be licensed. You can check it here. The fee for international students has been mentioned in the table below. 

CPA exam typeFees
Auditing and Attestation$356.55
Business Environment and Concepts (BEC)$356.55
Financial Accounting and Reporting (FAR)$356.55
Regulation (REG)$356.55

Therefore, it is very important to first select the jurisdiction, based on that you can obtain the application, complete and submit it as directed. It must be coming to your mind if some jurisdictions have easier examinations than others. That is not the case, however, in the rare situations where that does happen, you must remember that the question difficulty is accounted for during scoring. 

Credit hours

Candidates wanting to pursue US CPA must have a 120 credit score in the field of commerce. According to the US, each year of university education in India is equivalent to a 30 credit score.  An Indian student must have a master’s degree in the field of commerce or MBA or be a member of the Institute of Chartered Accountants of India or a member of the Institute of Company Secretaries of India to fulfill the criterion of 120 credit score. If a student has pursued a B.Com degree and has obtained a first division from a NAAC ‘A’ accredited university, such an Indian student will get the benefit of an additional 30 credit score. Therefore, such students are eligible even with their three-year bachelor’s degree programme and do not have to pursue a masters degree to become eligible. 

Examination centres 

Indian students can give the exam in the USA or in any such Middle East country where there is a recognised examination centre for US CPA. However, due to the pandemic, the US has administered the CPA exam at eight centres in India. They are Ahmedabad, Bangalore, Calcutta, Chennai, Hyderabad, Mumbai, New Delhi, and Trivandrum. 

Notice to Schedule (NTS) 

  • After CPA Exam application has been processed and you are eligible to take one or more sections of the CPA Exam and you’ve paid all fees, NASBA will issue an NTS to you.
  • It will be issued to you via your e-mail.
  • You would be required to sign into your account in the NASBA Candidate Portal and print your NTS. 
  • The NTS will list the section(s) of the Exam you are approved to take. 
  • This allows you to contact prometric to begin the scheduling process. The details regarding the same are printed at the back of the NTS.
  • When you receive the NTS, verify that all information is correct. If the information is incorrect and your ID and NTS do not match, you will not be admitted into the testing center. Therefore, immediately contact your Board of Accountancy or its designated agent to request a correction in case of incorrect information.
  • Remember to bring your NTS with you to the testing center. Without it you will not be admitted into the test center. Further, you will forfeit all fees for that section.
  • Your NTS includes the Exam section identification number for each approved section of the Exam. This number is also used as the Exam “Launch Code” (password) for each approved section. You will enter the Launch Code on the computer as a part of the login process.
  • NTS is valid for only six months. Schedule and take your exam accordingly. You will not be able to extend the time or receive a refund of fees. Canceling an Exam appointment doesn’t change the expiration date of your NTS. 
  • If an NTS expires, you will need to submit a new application, including application and testing fees.

Skills required 

This is a computer-based test. Only basic computer skills are required in order to take this exam. The candidate needs to be familiar with the usage of the mouse and keyboard. As far as software is concerned they need to have a basic knowledge of using spreadsheets and word processing functions. The word processing application used by CPA is similar but not identical to Microsoft Word. 

Apart from that, one must have knowledge of the English language as the exam is only offered in English. 

Please check out the sample tests by clicking here and learn more about the functionality of the CPA exam. The exam varies from candidate to candidate but is made equivalent. The questions in front of you are drawn from a pool of test questions as per defined specifications. So though you take different examinations, the specifications ensure that the results are comparable.

Structure and format of the CPA exam 

Each part of the examination is divided into question blocks. They are known as testlets. Testlets contain questions of either description i.e., MCQs (Multiple Choice Questions) or TBS (Task-Based Simulations). There is a written test component present in one section of the exam. 

Multiple Choice Question (MCQs) 

Using the reference of the image presented below, I will now be elucidating how the MCQs testlets work. 

Image source: https://www.ais-cpa.com/cpa-exam-sections/  

MCQs are of varying difficulty and change depending on your answer, i.e., whether the answer is correct or incorrect. Each section starts with a medium level MCQ testlet. Upon performing well in that testlet you will be receiving a more difficult one. Provided you work well on the difficult level testlet, you will be receiving an even more difficult testlet as the third one. Vice versa is also true. 

Aspirants of this exam should keep in mind that answering the initial testlet incorrectly will not help them as answering one difficult question correctly helps advance the overall score more than answering multiple easy questions correctly.

Task-Based Simulation (TBS)

It is the notion of most aspirants that TBS is harder than MCQs. The most common formats of TBS include matching and fill-in-the-blank. Every part further includes a single research question which requires the aspirant to research a topic in the authoritative literature and cite the code that discusses the current topic at hand. In this section, the problems are set in such a way that it allows the aspirants to apply their knowledge and demonstrate that they have understood the topics on which the exam is based. Please note that no two exams have a similar number of simulations and questions. You must find a way to navigate through each exam in a 4-hour time span.  

Written Communication test 

Only one component, namely, Business Environment and Components (BEC) has the written communication portion wherein a candidate is tested on their technical writing and communication skills by having them write a memo or client letter in a word processor. 

You can find the detailed structure of each section of the CPA exam here. 

Sections of the exam

There are four sections in the CPA exams, namely: 

  1. Auditing (AUD): This section is based on your knowledge of the skillset AICPA professional code of conduct, audit process, reviews, compilations, and attest engagements.
  2. Business Environment and Concepts (BEC): This section is based on macro and microeconomics, cost accounting, management, and information systems.
  3. Financial Accounting and Reporting (FAR): This section is based on the entire topics of financial accounting and reporting which includes the FASB framework, financial statement preparation, US GAAP rules, and IFRS rules.
  4. Regulating (REG):  This section is based on business and individual taxation, business law, and ethics.

To check the breakdown of how this exam is graded and weighted click here.

Content allocation 

Image source: Made by the author using PowerPoint Presentation. 

Changes in the format of the CPA exam (to be implemented by 2024)

Reason for changes in CPA Licensure model

The CPA profession is ever-evolving and adapting to new technologies, skills, and better practices. Even today, the work requirements of most CPAs are completely different from ones needed even two decades ago. As the profession evolves, so must the steps to licensure. Therefore, to meet the latest skillset needed in the accounting profession, newly licensed CPAs must adapt to these changes as they are now required to perform more advanced tasks and contribute to increasingly complex projects early on in their accounting careers. Thus, the CPA exam needed evolution in order to remain relevant.

Core-Plus-Discipline Model : 2024 CPA exam evolution

The 2024 CPA exam will consist of three core sections and three discipline sections. To earn their licensure, aspirants must pass all three core sections and at least the discipline section. The exam is expected to remain in the four sections, however, the time format would change to 16-hours.

Core overview 

  1. Accounting and data analytics;
  2. Auditing and AIS;
  3. Taxation;

Discipline overview 

  1. Business Analysis and Reporting (BAR);
  2. Information Systems and Controls (ISC);
  3. Tax Compliance and Planning (TCP).

As this model is yet to be adopted, this article will not discuss its components in detail. To know more about this, please click here. However, it is pertinent to note that the new licensure model would result in one CPA license regardless of which discipline a CPA aspirant chooses.

Relevance of becoming a CPA 

The key roles and responsibilities held by CPAs are as follows:

  • Not only is a CPA expected to develop the detailed financial records of an organization, but he is also expected to organize and maintain the same.
  • Conducting audits to make sure that old reports are accurate, up to date and compliant with the latest regulations. 
  • To organize and file tax documents at all levels i.e., federal, state and regional. 
  • Giving recommendations about the best financial planning not only to the company but also to individual clients.  
  • Cutting down costs and enhancing revenues of their respective company.

Benefits  

  • Secures your career: As CPAs continue to be in high demand. Retiring CPAs exit the market which increases the number of employment openings for freshly licensed CPAs. It is a profession that is likely to not go out of practise.
  • Reputation: Once you clear the CPA Exam and meet all other prerequisites, you will join a selected group of accountants. It is very hard to crack this exam and the people who do it are very well respected as they are assumed to have all the qualities such as hard work, determination, willpower, intelligence, diligence etc., which are required to pass this exam.
  • Financially rewarding:  Annual wages of $70,500 for accountants and auditors on an average exclusive of yearly bonuses. As per the Department of Labour and Statistics, accountants and auditors are expected to expand faster than the average for all jobs through 2024. As you gain experience, your pay scale rises.
  • Choose your own field: Candidates who pass the CPA test have the option of working in investment banks, accounting and auditing firms, hedge funds, merger and acquisition firms, research firms, mutual funds, private equity firms, commercial banks, and other areas as per their interest.

Salary 

The Bureau of Labor Statistics, in 2018, highlighted median annual wages of $70,500 for accountants and auditors. The Association of International Certified Professional Accountants (AICPA) revealed that newly qualified CPAs earn $66,000 per year on average. However, with just a few years of experience, many do achieve six figures. According to AICPA, the average CPA earns $119,000 annually. The AICPA data further reveals that most CPAs receive a very generous bonus.

Conclusion 

To conclude this article the author would say that though the CPA exam is difficult and will become more so in the near future, aspiring candidates should keep in mind that they can easily achieve certification to become a CPA with the right study resources and the right mindset. Extensive studying and practicing the blueprints is the correct path to achieve success. The key does not solely lie in hard work, one must do smart work as well and practice more and more to find a suitable strategy.

Very good luck to all the aspirants!

Join us for an exclusive 3-day boot camp on – International Opportunities for Chartered Accountants / Company Secretaries in US Corporate Law from 9th to 11th October, 6-9PM.
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References 

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

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Best tips to get hired after completing the course of Chartered Accountancy

By
Sneha Mahawar
-
0

This article is written by Somya Jain, from the Vivekananda Institute of Professional Studies. The article establishes some eye-opener to get hired after completing CA. 

Introduction 

Are you worried about the future course of action after completing the course of Chartered Accountancy? Don’t know how to prepare for becoming eligible to be hired by top-tier companies? Do not have the correct guidance as to what skills one should acquire to ace the interviews and get the right job that you always desired? It is time to learn some eye-opener tips before stepping into the corporate world of Chartered Accountants. 

Chartered Accountancy is in itself a lucrative career option and the decision to pursue it has brought you one step closer to epic success. It brings money, respect, and a chance to opt for other career opportunities. The job necessitates a lot of hard work and a desire to take on new challenges. CA is appealing because it can be a full-fledged career as well as a stepping stone to other exciting careers. However, due to such extensive characteristics that are attached to the course, CA is considered to be one of the most competitive careers. Therefore, if you are planning to get a job pertaining to your expertise, you need to stand out from the rest of the crowd and show your unique abilities that would prove to be beneficial for the establishment of the employer.  

Skills that employers consider while hiring a Chartered Accountant

Chartered Accountancy is enriched with several complexities and pursuing such a professional course can be a changing point in your life. The CA professionals are considered to be highly skilled encompassing the right amount of commercial acumen and awareness, along with the professional qualities and technical competencies. Due to the changing dynamics of the global economy and its subordinate industries, it is pertinent for CAs to continuously update themselves and further upgrade their skills. To remain effective and in touch with their present roles, it is also essential for CAs to maintain the highest degree of professional and personal integrity apart from the necessary requirement of honing their skills in a timely manner. 

Considering the prevalent competition in the market, the recruiters have set certain criteria pertaining to hiring a Chartered Accountant. Typical and sought-after skills and requirements have been attributed by the recruiters with an expectation that the concerned skill sets would prove to be efficient for the company and would lead to the profitability of the firm. Some of the skills that are considered a must-to-have by employers are:

  • Having the knowledge of finance and accountancy from a general view along with an interest and passion to work with numbers. It is not necessary at all times to have specialised knowledge on a particular matter. Rather, recruiters prefer those professionals who have a holistic knowledge of the industry.
  • Commercial awareness is one of the greatest and most appreciated qualities that one can acquire. Being part of a dynamic industry calls for regular updation and upgradation both in awareness as well as technical skills. Knowledge of any current political/legislative/financial issues that may have an impact on your chosen field should be thoroughly considered. 
  • Communication and interpersonal skills with the ability to communicate complex information clearly and to build relationships with others at all levels within the business.
  • The ability to work in a team is greatly appreciated. 
  • The stamina and commitment to work for long hours as the company expects full dedication in their employees.
  • Presentation skills, report writing and attention to detail are some of the soft skills that one should be able to comprehend. 
  • Leadership and negotiation skills form yet another important factor.
  • Problem-solving and analytical skills is another skill set that helps in the growth of the organisation. 

These skills are not exhaustive rather, these are majorly preferred norms of the recruiters while appointing a professional like a Chartered Accountant. 

Tips for future course of action

To impress prospective employers one must have the right amount of positive attitude in addition to the requisite qualifications, technical skills, and experience. Therefore, apart from being adept in your field, it is crucial for you to have the right passion and interest in your expertise area and further, showcase it in a way that would definitely turn the table in your favour. There are some suggestions that can help to ease up your haul to success. These are:

General tips

  • It is essential for a newly qualified CA to choose its career path wisely according to their interests and passion as that would be the deciding factor. Recruiters are always keen to understand your motivation either for applying to accountancy and your interest in finance and business or readiness to join at locations of their choice. Therefore, one should be an aspirant for a particular role. The industry can be bifurcated into two under which different roles are guaranteed to a professional. These are:
Banking & Financial ServicesCommerce, Industry & Professional Services
SECTORS COVERED:SECTORS COVERED:
Asset management Commodities Corporate banking hedge funds investment banking private equity retail banking.Retail and FMCGChemical and pharmaceutical technology/media/telecom energy and utilitiesLegal, professional and business services construction, infrastructure and real estatesManufacturingTransport and distribution health care, hospitality, and tourism education Industry.
  • Commercial awareness forms another essential requirement while approaching a company. Awareness should not be limited to technical skills or other related avenues. It should also cover the propogandas and policies followed by the companies. The recruiters are impressed when they learn that the concerned candidate is interested in their company. But to showcase such kind of interest, it is pertinent to research on the relevant policies and agendas that the company preaches. This would definitely make you stand out from the rest of the crowd. 
  • Employers know that the candidates approaching them have invested in improving their accountancy skills. Therefore, softer skills like communication, interpersonal and presentation skills will be distinguishing factors in trainee accountants, as is motivation and a willingness to learn. Thus, the way the trainees present their skills and experiences to a potential employer is vital. 
  • Potential candidates should have a fair understanding of how their role is fit for the larger business. Displaying a sense of commerciality, by understanding the key business drivers, including revenue and growth targets, will create a positive impact on the employers contributing towards the fact that you understand the business goals and would be a perfect match to their expectations. 
  • Having a right and a positive attitude towards the profession is crucial for any company. Show that you take your job seriously by being conscientious and exuding an aura of professionalism at all times. This also includes working on your appearance and most importantly time management. Sloppiness or scruffiness is not at all preferred by the recruiters. 
  • It is also pertinent for a CA to choose their articleship wisely as it defines their future course of action. It is highly recommended to choose a versatile role and not restricting oneself to a specified role. Having a holistic view of your field is more ideal than only having knowledge regarding a specific field. You need to know enough about every instrument to understand how and when it needs to be played.

Preparing a resume

Apart from keeping up with your interpersonal behaviour and technical skills, it is essential to work upon how to highlight your capabilities in a way that is attractive and at the same time enriching. Prospective employers look for the following employability skills in your resume:

  • Communication skills 
  • Attention to detail.
  • Time management
  • Maintaining personal rapport. 
  • Leadership qualities.
  • The will to accept challenges. 
  • Adept at solving problems. 
  • Exploiting your inner potential. 
  • Ability to achieve targets.
  • Maintaining excellent working relationships
  • Having good analytical abilities.
  • General awareness of the business environment and its impact on the organization.

Remember that a CV is your first focal point of enumerating your skills and it should be given priority as a major can be asked based on the content mentioned in the CV. Some of the important points that one should consider while making a CV are:

  • Ideally, the length of a CV should be 2 pages. The first page is of utmost importance, therefore, it should explicitly enumerate all the qualifications that you want the employer to know. 
  • Highlight your skills, accomplishments and experience in a presentable manner (preferably in bullet points). 
  • If you do not hold any prior accountancy experience, then highlight those areas of your previous employment which contributes towards analytical ability, numeracy, attention to detail and communication skills that the employers are looking for. 
  • Make your CV well structured with a proper format. Double-check for all the grammatical errors as it can be a game-changer. Use bullet points and never write in paragraphs as it is least preferred by the employers.
  • Make regular changes to your CV and keep it updated at all times. It should be tailored to enshrine each individual role that you possess. 
  • If you are applying to different employers, make sure that you tailor it accordingly as one company may have different requirements and preferences as compared to another company. Though it’s definitely extra work, it may pay you well. 
  • Don’t forget to include your extracurriculars as they show your interpersonal abilities well. 
  • Be true to your resume as prospective employers can verify antecedents. 
  • Do not forget to send a follow-up mail regarding the status of your application. 

Acing an interview

After the resume, the most important part is to prepare well for your interview. It is one of the golden opportunities for you to showcase your professional abilities and interest in the concerned job. 

Before the interview

Below are some of the basic requisites before job interviews: 

  • Find out about the organization  
  • Brush up on the details you have mentioned in the resume  
  • General awareness  
  • Study thoroughly your favourite subjects  
  • Have structured answers 
  • Use the STAR (Situation, Task, Action, Result) method to answer the questions asked. This means setting the scene, explaining how you handled the situation by placing the emphasis on your personal role and skills and detailing the outcome or result.

At the time of the interview

  • Start from your home 5-10 minutes ahead of your schedule so that you can reach the venue a bit early to calm your nerves.
  • Directions to the interview venue can be practised before a day or so of the interview date. 
  • Keep all the relevant documents and certificates that would act as proof of your data stipulated in your resume. Also, carry extra copies of your resume in case it is needed. 
  • Dress appropriately and be polite and courteous to everyone you meet.
  • Greet the panellists with a smile and a professional handshake. 
  • Sit only when you are asked to. Maintain eye contact with the interviewers but not defiantly. 
  • Be mindful of your body language; your posture, eye contact and gestures can show a lot about your confidence and mindset.
  • Stay calm and maintain professionalism as it would give an insight into how well you can handle the pressure. 
  • When a question is asked, it is suggested that you look at all the interviewers and not just the one who asked you a question.
  • If you are not sure of any answer, then say it politely. There is nothing wrong in admitting that you are not aware of any answer rather defying and giving absurd answers.
  • Complete your answers and do not leave them by just saying yes or no. 
  • You should not be afraid of giving controversial answers as long as you have the logic to support them. Never give answers which you think the interviewer wants to hear.
  • Any gaps in the career should be confidently presented, without feeling defensive, emphasizing how you utilized the period constructively.

After the interview

Generally, after an interview, the interviewer asks the candidate whether he has any questions. This is the time when you can demonstrate that you have researched and are genuinely interested in their company. Some of the questions that you can ask include:

  • Is your profile suitable for the organisation
  • Exact profile being looked for.  
  • More details about the organization.  
  • Location of posting.  
  • If there is probation or if one would be confirmed immediately.  
  • If there is a formal induction programme planned.  
  • When and how would the result be conveyed?  
  • Enquire about reimbursement of train or airfare if not already committed.

If no other questions are asked, ensure that you leave a positive impression on the interviewers. Leave with a professional handshake, make eye contact, and thank your interviewer for their time. Lastly, do not forget to follow up with HR for your application status. 

Questions posed in the interview

Here is a list of some common questions that one can prepare before an interview:

  • Tell me about yourself
  • Why should we hire you?
  • Why do you want to join us?
  • What are your salary expectations?
  • What are you looking for in a job?
  • Why did you choose this particular career?
  • What do you know about this organization?
  • What are your short term goals?
  • What according to you is success?
  • Where do you see yourself 5 years down the line?
  • According to you, what is your USP (Unique Selling Point)?
  • Can you tell me about a problem you have dealt with?
  • What is more important: speed or accuracy?
  • How do you update your knowledge?
  • What is your way of dealing with challenges?
  • How well do you take criticism?
  • How often are you able to meet the deadlines?
  • Are you a leader or a follower?
  • Would you define yourself as ambitious?
  • Do you like your current job/profile?
  • You have been in your present employment for a long time? Will you be able to adjust to your new job/organisation?
  • Explain with an example your keenness to take initiative?
  • How will you handle job stress?
  • Are you willing to relocate or travel?
  • What is your philosophy towards work and ethics?
  • What do you consider as your greatest achievement?
  • Would you agree to put the interest of the organization ahead of your personal goals?
  •  How do you think your skills will be useful in the discharge of your duties?

Try to find an answer to these questions before you sit for your interview. If you know the answer to such questions instantly the recruiters will know you have clarity in mind related to such topics and are likely to be impressed.  

Updating your social media profiles

  • Nowadays, apart from your CV and interview, the recruiters are interested in your social life. Thereby, it becomes pertinent to maintain and continuously update your social media profiles especially LinkedIn and Twitter. 
  • LinkedIn, in recent times, has achieved great relevance in the business industry as one can connect with industry professionals and get involved with relevant industry discussions to help demonstrate your passion for the profession.
  • Many prospective employers thoroughly study your profiles to get additional information about you. So provide correct details in your profiles. 
  • Further, if your profile, especially on LinkedIn, is found to be suiting a particular role, there is a possibility that the recruiter may approach you on LinkedIn itself and provide you with an employment opportunity. Therefore, it becomes essential to showcase all your qualifications, skills, extracurriculars that may end up getting you a job for real. 

Conclusion

Chartered Accountancy is in itself a dense course and after completing it everyone expects a great reap from it. Therefore, if you are planning to join the industry by getting employed in a company, it is pertinent to ensure that you leave no stone unturned. When you are given an opportunity try to outshine others by putting your best foot forward. Give your best and never give up. A positive outlook will definitely add to the correct motivation.  

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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

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

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The role of media trials in judicial proceedings

By
Oishika Banerji
-
0
Image source: https://blog.ipleaders.in/media-right-privacy-incursion-social-media/

This article has been written by Rishabh. This article has been edited by Ruchika Mohapatra (Associate, Lawsikho) 

Introduction

Media is regarded as one of the pillars of democracy. The freedom of the press is regarded as “the mother of all liberties in a democratic society. Free speech and Expression are perhaps the most significant and helpful rights accessible in our Constitution. The opportunity of articulation fused in the Indian Constitution in Article 19(1) stays a significant facilitator for far and wide commitment of the media inside a majority rule environment. It is by utilizing this opportunity that the media can work.

Media has played wide-going parts and assumes a crucial part in molding the assessment of the general public, however like each and every other freedom and liberty, this freedom of speech and articulation is additionally seen to be abused by the media. Every institution is liable to be abused, and every liberty, if left unbridled, has the tendency to become a license that would lead to disorder and anarchy.

‘Trial by media’ is a recently coined term and is used to denote a facet of ‘media activism.’ It means “the impact of television and newspaper coverage on a person’s reputation by creating a widespread perception of guilt regardless of any verdict in a Court of law. “Particularly during high publicity Court cases, the media often provoke an ambiance of public hysteria akin to a lynch mob which not only makes a fair trial impossible but means that, regardless of the result of the trial, according to public insight the condemned is now held liable and isn’t have the option to carry on with the remainder of his existence without serious public scrutiny”. The media playing the job of a foe and utilizing the masses as judges to lead their own preliminaries is the way a media preliminary comes to be. The media is regularly inhumane towards the psychological condition of the parties involved especially the accused and the victims. They invade their privacy which causes a breach of the Right to Privacy guaranteed under Article 21. This article seeks to shed light on media trials with a special focus on the role of media trials in today’s age on various judicial proceedings. 

Influence of media trials

Media has certainly played a great role in bringing justice to many people. One cannot gag the press due to the brave role it played in cases which are commonly known as ‘Billa Ranga case’, ‘Baba Nirankar case’, ‘Sudha Gupta case’ and of ‘Shalini Malhotra case’.Without active media, the cries of the victims of the brutal khap killings of Haryana would have gone unheard. The fear of khap and the backing of police and politicians allowed this barbarous tradition to continue for a long time until they turned out in front of the world through the media. Many different cases like the Arushi Murder Case, Jessica Lal Murder Case, Ruchika Girhotra Case, and even the games played in IPL row were brought out into the broad daylight because of the praiseworthy attempts of media personnel. 

But the need to compete for commercialization and more views has transformed the media today into a full-fledged game for viewership. The name of the game is ratings, viewership, eyeballs, and commercials. Under this new scheme, the news is whatever sells the best. The recent example of prioritisation and extreme coverage of a superstar’s son over alleged drug abuse as opposed to covering the death of protesting farmers is one of the many instances where media has shown that it seeks to cover sensational news more than any other.  This means, whatever catches and grasps the attention of the public. Or, in other words, ‘sensationalism’. 

The current day trend in news broadcasting manifestly points out that journalists and media people should be unmistakable facilitators for the democratic process to function without interference. The morals that the media should embrace include values like efficiency, justice, truth, objectivity, integrity, fair reporting, respect, and autonomy. These values are very much part and parcel of the democratic process. Tragically, nowadays the media individuals are more often than not accused of being overwhelmed by materialistic contemplations instead of professional ethics and honesty towards the profession

The pressure on judges in high-publicity trials 

It is true that every holder of legal office does his utmost not to let his mind be affected by what has been seen or heard or read outside the court and he will not intentionally let himself be influenced in any way by the media. Similarly, it is to be remembered that judges being people are not liberated from faults. A man may not be capable to put what he has seen, heard, or read completely out of his mind; and he may be influenced by it. 

In the Nanavati case, for example, there was a huge hue and cry from the media and there was extensive reporting which was later claimed to have influenced the minds of the jurors. A weekly tabloid Blitz that was owned and run by R. K. Karanjia, a Parsi publicized the story and openly supported Nanavati and portrayed him as a wronged husband whose gullible wife had been swayed by a rich playboy. 

 If one carefully analyses the judgment in Reliance Petrochemicals v. Proprietor of Indian Express in the light of the judgment of  P.C. Sen, it tends to show that the Supreme Court has believed that Judges are likely to be “subconsciously affected” by media publicity. Parties have a constitutional right to have a fair trial in the court of law, by an unbiased tribunal, uninfluenced by newspaper dictation or popular cry.  Fairness and equity are two primary basements on which the whole democratic structure rests. The biased distribution against the blamed amounts to a denial of a fair trial. Media is so ubiquitous in our everyday lives that judges also can’t stay away from its pervasiveness.

Need to regulate unhealthy media involvement

There must be regulations with respect to journals and news programs while a trial is going on. It is just as significant to protect the public perception of judges’ fairness as to protect the risk of bias. After all, we cannot forget the Common rule Law laid down in R v. Sussex Justices: Exparte McCarthy that “Justice should not only be done, it should manifestly and undoubtedly be seen to be done”. 

The limitations to be forced on the media must be sensible and reasonable. Where Article 19 of the  Constitution enables the media to communicate its thoughts through the freedom of discourse, note that this article likewise gives reasonable restrictions, for example, the reasonable restrictions on freedom of speech given under Article 19(2). In this manner, it is the established liability of the courts to guarantee that such limitations don’t go past the ambit of the sensible limitations as referenced in the Constitution of India.

International jurisprudence in media trials

The international jurisprudence on media preliminaries has a strong inclination towards free and fair trial. A few excerpts can be taken from international treaties and cases that help this contention. Article 6 of the UN Basic Principles on the Independence of the Judiciary states that the Judiciary should guarantee that “legal procedures were conducted honestly and the rights of parties were respected.”

The 200th Law Commission Report on Media Trials put forth the association between the media and jurisdictional independence by examining the basic principles set down in the Madrid Standards 1994 which conceives provisions under ICCPR and 1985 UN principles on the Independence of Judiciary. The freedom of media is fundamental in any democratic country administered by the Rule of Law. It is the responsibility of judges to observe and give effect to freedom of media by applying only such restrictions as approved by ICCPR. The particular provision according to ICCPR is, “The media have a responsibility to respect the rights of people, protected by the International Covenant and the independence of the judiciary.” Moreover, under the fundamental standard, the freedom of media has been interpreted to convey information and commentary on the administration of equity including cases before, during, and after trial without disregarding the presumption of blamelessness.

Conclusion

It must be remembered that freedom of expression isn’t outright, limitless, or free. The judiciary is populated by judges who are human, and being human they are occasionally driven by considerations other than an unbiased view of law and justice. No judge is totally invulnerable to the influence of the hype generated by the media.

The media should practice better self-regulation. It is anticipated from persons at the helm of the affairs in the field of media to assure that the trial by media does not hamper the fair investigation by the investigative agencies, and more importantly, does not prejudice the defense of the accused in any manner whatsoever. It will amount to a mockery of justice if either of these causes delays in the accepted judicious and fair examination and trial.

If the government starts regulating the media, the complete purpose would be defeated. Instead, the more desirable option would be robust and civic engagement by the people with their polity and political class. In another word, an engagement that is both adversarial and cooperative in nature. An informed, cultivated, and interested civil society can be the best watchdog over politics and the media. This would re-establish and balance the polity and harmony a semblance of normalcy among the institutions of the nation.

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

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

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