What is meant by issue of commission by the Court?

Commission is instruction or role given by the Court to a person to act on behalf of the Court and to do everything that the Court requires to deliver full and complete justice. Such person who carries out the commission is known as a Court commissioner.

For example, whenever the Court has to do a local investigation, a commissioner is appointed who conducts the local investigation. Similarly, to record the evidence of a witness who cannot come to the Court for evidence, the Court can issue a commission for recording of such evidence.

Who can appoint a commissioner?

Under CPC, the Court which issues the commission can appoint the commissioner. Section 75, provides that “the Court” can issue commission provided the limitations and restrictions applicable. Therefore, the Court who has to decide the suit can appoint the commissioner. Commissioner is appointed to carry out the functions for which the commission is issued. Court has the discretionary power to appoint the commissioner and such power can be exercised on the application of any of the parties or the Court can issue the commission suo moto.

We will understand the procedure followed by the Courts to appoint the commissioner later in this article.

Who can be appointed as a commissioner?

Generally, there is a panel of commissioners which is formed by the High Court in which advocates are selected who are competent to carry out the commission issued by the Court.

The person appointed as commissioner should be independent, impartial, disinterested in the suit and the parties involved in it. Such a person should have the requisite skills to carry out the commission.

It will be a complete waste of time and resources of the Court and the parties if a person who cannot read and understand the accounts and documents is appointed as commissioner to adjust accounts. Similarly, a person who does not have the qualifications to conduct scientific investigation should not be appointed as a commissioner for such task.

The District judge supervises the subordinate Courts who have to take special care while appointing a commissioner(1). The same person should not be appointed by the Court in all commissions and a person who hangs about the Court should not be appointed.

What is the procedure for appointment of commissioner?

Every High Court has the power (Article 227) to make rules and regulations which is to be followed by the subordinate Courts. Procedure for appointment of a commissioner is provided in High Court rules each state.

For instance, in Delhi, Chapter 10 of Delhi High Court rules, 1967, provides procedure for appointment of Commissioner. The following procedure is followed by the Delhi High Court(2):

A panel of not more than 4 commissioners is to be formed which consists of young persons including a lady lawyer, appointed by the Court for recording of evidence.
The District Court notifies the bar about the number of vacancies of commissioners and the bar forward the applications received for the same to the Court who then forwards it to the High Court with their recommendation.
The term of such appointment is generally 3 years which can be extended by an order of the High Court but no commissioner can be appointed after 6 years of such appointment.

When can a commissioner be appointed by the Court?

A commissioner can be appointed by the Court when a commission is issued by the Court. According to Section 75 of CPC, the Court has the power to issue a commission to carry out the following functions:

To examine witnesses: Order 26 Rule 1-8

The general rule of evidence is to bring the evidence before the Court and must be recorded in open Court. But in extraordinary circumstances, the appearance of witness is dispensed and the witness is allowed to depose evidence without appearing in Court.

Appearance is exempted if:

A witness is bedridden or is unable to attend the Court due to sickness or infirmity, in such circumstances the Court can exempt the appearance of witness and allow the witness to depose evidence to a commissioner appointed for the same. Such a witness will have to submit a certificate signed by a registered medical practitioner as evidence of sickness or infirmity. (Order XXVI Rule 1, C.P.C.) In such situations the Court will exercise its powers provided under order 18 rule 4 and appoint a commissioner for examination on interrogatories(3).
A witness apprehends danger to his life and informs the Court about such danger and if the Court thinks that recording evidence of the witness is necessary, the Court may issue commission to record evidence of such witness. Where a party accused of fraud seeks himself to be examined with commission, the Court must not issue commission and avoid person of such demeanor to abuse the procedure.
The witness is a pardanashin lady whose attendance is exempted under Section 132 of the code.
The witness is a Civil or Military Officer of the Government, cannot attend without detriment to the Public Service. (Order XXVI Rule 4)
If the Court thinks that it is in the interest of justice or expeditious disposal of the case or for any other reason, the Court can issue a commission notwithstanding any of the rules provided in the order. (order 26 rule 4A)
A person who cannot be ordered to attend the Court in person under Order 16 rule 19 can be examined by the Court by issuing a commission. (order 26 rule 4 proviso)
A commission can be issued for examination of a person detained in prison. (order 16A rule 7)

The Court will issue an order of commission for examination of a witness on following grounds if such person: (order 26 rule 4)

Resides beyond the jurisdiction of the Court. [order 26 rule 3(a)]
About to leave from the jurisdiction of the Court. [order 26 rule 3(b)]
A government servant and cannot attend without affecting the public service [order 26 rule 4(c)].
Resides outside India and the Court decides that his evidence is necessary.
The commission will be issued to any other Court within whose local limits such person is residing and if the person resides within the local limits of the Court issuing it, a commissioner can be appointed to carry out such commission.

The provisions of the Court relating to summoning, attendance examination of witnesses, penalties imposed on the witness will apply on the person who has to give evidence or produce documents before the commissioner. The commissioner who is executing the order of the Court, within whose local limit such person resides or by the Court beyond whose jurisdiction such person resides, will be deemed to be a civil Court.

If the commissioner is not a judge of the civil Court, the commissioner cannot impose penalties but can make an application to the Court which has issued commission to impose penalties on the person. (order 26 rule 17)

To make local investigations: Order 26 Rule 9-10

The Court can appoint commission for local investigation if the Court is of the opinion that a local investigation is necessary:

For proper clarity of any matter in dispute, or
In ascertaining the market value of any property, or
To know the amount of mens rea or annual net profits.

While appointing a commissioner for, the Court has to examine (4).

The pleadings of both the parties,
Relief claimed,
The real controversy between the parties.

It is important to note that the object of a commission is not to collect evidence which can be brought to the Court by the parties but to acquire evidence from a fixed spot. It is also used to enable the Court to have more clarity regarding the facts of the case.

Commissioner should not be appointed to provide pre-trial decree against the defendant, that is, the Court should not appoint a commissioner to provide the relief claimed, directly or indirectly, by the plaintiff before the final decree is passed. It is important because such commission will prejudice the rights of the defendant to a fair trial.

To adjust accounts: Order 26 Rule 11-12

In a suit, if the Court thinks that it is necessary to verify the accounts involved in the suit, the Court may issue a commission to make the examination of such accounts and may appoint a commissioner. (rule 11) The Court takes special care while making such an appointment. The Court appoints only such a person who is competent to examine such records. The reports submitted by the commissioner is considered evidence by the Court. (rule 12)

To make partition: Order 26 Rule 13-14

The Court can issue commission for partition of a suit property. Suppose, the Court has passed a preliminary decree for partition of the suit property, in such a situation, the Court can appoint a commissioner to carry out the decree. (rule 13) The commissioner has to divide the property in shares and distribute it among the parties according to the suit decree. Commissioner has to submit a report after such partition is completed. (rule 14)

To hold investigation: Order 26 Rule 10-A

When the Court has to conduct a scientific investigation, the Court can appoint a commissioner who will then be responsible for such investigation. For example, to identify the substance used as a raw material in the subject matter, the Court may issue commission to hold scientific investigation. (rule 10-A)

After conducting such investigation the commissioner has to submit the report within the time prescribed by the Court.

To sell the property: Order 26 Rule 10-C

Suppose the subject matter of a suit is a movable property which cannot be preserved by the commissioner and if it is not sold, its value cannot be recovered. Therefore, the Court appoints a commissioner who is given the responsibility to sell the property and submit a report along with the proceeds received from the sale of such property.

To do ministerial work: Order 26 Rule 10-B

Ministerial work means the administrative work which the Court has to do, but are not of judicial nature like accounting, calculation, etc. Such work takes a lot of valuable time of the Court which can be used in other important judicial functions.

Therefore, the Court appoints a commissioner to do such works on behalf of the Court. It is important to note that commissioners cannot do judicial functions. (5)

Procedure for carrying out the commission:

The commissioner will conduct the local investigation, examination of witnesses, adjust accounts and other functions as ordered in the commission.
After completion of the function, the commissioner will reduce the findings in writing and will make a report.
The commissioner will submit the report signed by him along with the evidence recorded in the Court.
The report of commissioner will form a part of the record.
While examining the report, the Court or the concerned parties, after prior permission, can examine the commissioner personally in open Court.
If the Court is dissatisfied with the proceedings of the commissioner the Court can order a further inquiry on the commission or can issue a fresh commission and appoint a new commissioner.

To summarize, the commission can be issued in the following circumstances:

To make a local investigation.
To adjust accounts.
To make partition.
To hold investigation.
To conduct sales.
To perform ministerial work.

Powers of the commissioner: Order 26 Rule 16-18

Under order 26 rule 16, powers of a commissioner are as follows:

Commissioner has the authority to examine the parties and the witnesses and any other person who the commissioner thinks can give evidence in the matter referred to him.
Commissioner can direct the parties to produce any documents which is required to be examined.
Commissioner also has the power to enter and search any land or building with the permission of the Court.
If the party fails to appear before the commissioner after the order of the Court, the commissioner can proceed ex parte.

Whether the commissioner will be entitled to a Remuneration?

There is no provision in the CPC which expressly provides for remuneration to the commissioner but Rule 15 of order 26 provide for the expenses which might be incurred by the commissioner. While issuing commission, the Court directs the applicant to deposit a sum of amount which can be used by the commissioner to account for the expenses which might be incurred by him while carrying out the commission. The Court has the discretionary power to make directions make any other direction regarding the remuneration.

What are the limitations on the commissioner?

Commissioner has to assist the Court in carrying out the judicial functions but he cannot do the judicial functions on behalf of the Court. For example, a commissioner cannot value the suit property because it is a judicial function and only the Court has the power to do so. A commissioner can assist the Court by producing the documents such as plans of the suit property by which the Court can ascertain the value.

It is not the objective of issuing a commission to procure evidence for the parties. Therefore, if a party has the apprehension that the opposite party will tamper with a document which is relevant to the case, the Court should not appoint a commissioner to seize such documents.

What is the evidentiary value of the report submitted by the commissioner?

According to order 26 rule 10 (2) of the CPC, the report and the evidence submitted by commissioners forms a part of the record but if the evidence is submitted without the report of the commissioner, such evidence does not form part of the record. (6)

The report forms an important part of the case and can only be challenged on sufficient grounds.The Court has the final say on how much reliance should be placed on the report submitted by the Court.

What are the key takeaways?

The commission is issued by the Court to provide full and complete justice.The Court has the power to issue commission in certain circumstances. Commissioner is appointed by the Court to carry out the commission issued by the Court. He assists the Court by taking evidence, conducting local investigations, doing ministerial work and submits a report after carrying out the commission.

A commissioner is, generally, an advocate who is in a panel formed by the High Court and from such a panel the Court appoints a commissioner. The procedures for the appointment are formulated by the High Court.

The commissioner can exercise certain powers granted by the Court to carry out the commission. He cannot perform the judicial function of the Court. He can only assist the Court in performing such functions. The evidence with the report submitted by him in the Court forms part of the record.

References

“Commissions and Letters of Request – Delhi High Court.” http://delhiHighCourt.nic.in/writereaddata/upload/Courtrules/Courtrulefile_vs9kzqs0.pdf.
“Commissions and Letters of Request – Delhi High Court.” http://delhiHighCourt.nic.in/writereaddata/upload/Courtrules/Courtrulefile_vs9kzqs0.pdf.
“Sh. Sudhir Kumar vs Sh. Virinder Kumar Goel on 6 … – Indian Kanoon.” 6 Apr. 2016, https://indiankanoon.org/doc/177231580/.
“Sarala Jain, W/O Mahaveer Jain, 40 … vs Sangu … – Indian Kanoon.” 19 Feb. 2016, https://indiankanoon.org/doc/83956784/.
“Jagatbhai Punjabhai Palkhiwala … vs Vikrambhai … – Indian Kanoon.” https://indiankanoon.org/doc/1133556/.
“Kitnammal vs Nallaselvan And Ors. on 19 March, 2005 – Indian Kanoon.” https://indiankanoon.org/doc/112613/.

Introduction

Principle of Natural Justice is derived from the word ‘Jus Natural’ of the Roman law and it is closely related to Common law and moral principles but is not codified. It is a law of nature which is not derived from any statute or constitution. The principle of natural justice is adhered to by all the citizens of civilised State with Supreme importance. In the ancient days of fair practice, at the time when industrial areas ruled with a harsh and rigid law to hire and fire, the Supreme court gave its command with the passage of duration and establishment of social, justice and economy statutory protection for the workmen.

Natural justice simply means to make a sensible and reasonable decision making procedure on a particular issue. Sometimes, it doesn’t matter what is the reasonable decision but in the end, what matters is the procedure and who all are engaged in taking the reasonable decision. It is not restricted within the concept of ‘fairness’ it has different colours and shades which vary from the context.

Basically, natural justice consists of 3 rules.

The first one is “Hearing rule” which states that the person or party who is affected by the decision made by the panel of expert members should be given a fair opportunity to express his point of view to defend himself.

Secondly, “Bias rule” generally expresses that panel of expert should be biased free while taking the decision. The decision should be given in a free and fair manner which can fulfil the rule of natural justice.

And thirdly, “Reasoned Decision” which states that order, decision or judgement of the court given by the Presiding authorities with a valid and reasonable ground.

Origin

The principle of natural justice is a very old concept and it originated at an early age. The people of Greek and roman were also familiar with this concept. In the days of Kautilya, arthashastra and Adam were acknowledged the concept of natural justice. According to the Bible, in the case of Eve and Adam, when they ate the fruit of knowledge, they were forbidden by the god. Before giving the sentence, eve was given a fair chance to defend himself and the same process was followed in the case of Adam too.

Later on, the concept of natural justice was accepted by the English jurist. The word natural justice is derived from the Roman word ‘jus-naturale’ and ‘lex-naturale’ which planned the principles of natural justice, natural law and equity.

“Natural justice is a sense of what is wrong and what is right.”

In India, this concept was introduced at an early time. In the case of Mohinder Singh Gill vs. Chief Election Commissioner, the court held that the concept of fairness should be in every action whether it is judicial, quasi-judicial, administrative and or quasi-administrative work.

Purpose of the principle

To provide equal opportunity of being heard.
Concept of Fairness.
To fulfil the gaps and loopholes of the law.
To protect the Fundamental Rights.
Basic features of the Constitution.
No miscarriage of Justice.

The principles of natural justice should be free from bias and parties should be given fair opportunity to be heard and all the reasons and decision taken by the court should be informed by the court to the respective parties.

Supreme court said that arriving at a reasonable and justifiable judgement is the purpose of judicial and administrative bodies. The main purpose of natural justice is to prevent the act of miscarriage of justice.

A committee i.e. “Ministers Power” gave 3 essentials procedure related to the principles of natural justice.

No one should be a judge in his own matter.
No one can be condemned unheard.
The party is entitled to know each and every reason and the decision taken by the authority.

When it can be claimed?

Natural justice can be claimed when acting judicially or quasi-judicial like panchayat and tribunals etc. as well. It includes the concept of fairness, basic moral principles and various different kinds of biases and why the natural justice is required and what all special cases or situation it includes where the principles of natural justice will not be applicable.

In the case of the Province of Bombay vs. Khushaldas Advani, it was said that natural justice will be applicable on statutory as it is a basic principle of Natural justice which leads to fairness and justice.

Effect of function

Administrative action.
Civil consequences.
The doctrine of Legitimate exception.
Fairness in action.
Disciplinary proceeding.

In the case of Board of high school vs. Ghanshyam, a student was caught while cheating in the examination hall and he was debarred due to the act. Supreme Court held that student cannot file a Public Interest Litigation against the examination board.

High water mark case- Eurasian equipment and company limited vs. State of West Bengal: Under this case, all the executive engineers were blacklisted. Supreme Court held that without giving a valid and reasonable ground you cannot blacklist anyone and further he should be given a fair opportunity of being heard.

Rules of Natural Justice

NEMO JUDEX IN CAUSA SUA
AUDI ALTERAM PARTEM
REASONED DECISION

Nemo Judex In Causa Sua

“No one should be a judge in his own case” because it leads to rule of biases. Bias means an act which leads to unfair activity whether in a conscious or unconscious stage in relation to the party or a particular case. Therefore, the necessity of this rule is to make the judge impartial and given judgement on the basis of evidence recorded as per the case.

Type of Bias

Personal Bias.
Pecuniary Bias.
Subject matter Bias.
Departmental Bias.
Policy notion Bias.
Bias on the account of obstinacy.

Personal bias

Personal bias arises from a relation between the party and deciding authority. Which lead the deciding authority in a doubtful situation to make an unfair activity and give judgement in favour of his person. Such equations arise due to various forms of personal and professional relations.

In order to challenge the administrative action successfully on the ground of personal bias, it is necessary to give a reasonable reason for bias.

Supreme court held that one of the members of the panel of selection committee his brother was a candidate in the competition but due to this, the whole procedure of selection cannot be quashed.

Here, to avoid the act of biases at the turn of his brother respective panel member connected with the candidate can be requested to go out from the panel of the selection committee. So, a fair and reasonable decision can be made. Ramanand Prasad Singh vs. UOI.

Pecuniary bias

If any of the judicial body has any kind of financial benefit, how so ever small it may be will lead to administrative authority to biases.

Subject matter bias

When directly or indirectly the deciding authority is involved in the subject matter of a particular case.

Muralidhar vs. Kadam Singh The court refused to quash the decision of Election tribunal on the ground that the chairman’s wife was a member of Congress party whom the petitioner defeated.

Departmental bias

The problem or issue of departmental bias is very common in every administrative process and it is not checked effectively and on every small interval period it will lead to negative concept of fairness will get vanished in the proceeding.

Policy notion bias

Issues arising out of preconceived policy notion is a very dedicated issue. The audience sitting over there does not expect judges to sit with a blank sheet of paper and give a fair trial and decision over the matter.

Bias on the account of the obstinacy

Supreme court has discovered new criteria of biases through the unreasonable condition. This new category emerged from a case where a judge of Calcutta High Court upheld his own judgement in appeal. A direct violation of the rules of bias is done because no judge can sit in appeal against in his own case.

Audi Alteram Partem

It simply includes 3 Latin word which basically means that no person can be condemned or punished by the court without having a fair opportunity of being heard.

In many jurisdictions, a bulk of cases are left undecided without giving a fair opportunity of being heard.

The literal meaning of this rule is that both parties should be given a fair chance to present themselves with their relevant points and a fair trial should be conducted.

This is an important rule of natural justice and its pure form is not to penalize anyone without any valid and reasonable ground. Prior notice should be given to a person so he can prepare to know what all charges are framed against him. It is also known as a rule of fair hearing. The components of fair hearing are not fixed or rigid in nature. It varies from case to case and authority to authority.

Components

Issuance of notice– Valid and proper notice should be given to the required parties of the matter to further proceed with the procedure of fair trial method. Even if the statute does not include the provision of issue of notice then it will be given prior to making decisions. This was held in the case of Fazalbhai vs. custodian.

In the case of Kanda vs. Government of Malaya, the court held that notice must directly and clearly specify on the matter of bias, facts and circumstances against which needs to be taken. It’s one of the rights of the individual to defend himself so he should be familiar with the relevant matter so he may contradict the statement and safeguard himself.

The notice should be with regard to the charges framed against the accused person and proceeding to be held. He can only be punished on the charges which are mentioned in the notice, not for any other charges.

Right to present the case and evidence– After receiving the notice he must be given a reasonable time period to prepare and present his case in a real and effective manner. The refusal should not be done on the unreasonable ground or due to arbitrary.

Right to Cross Examination– Right of fair hearing includes the right to cross-examination the statement made by the parties. If tribunals denied the right to cross-examination then it will violate the principles of natural justice. And all the necessary copies of documents should be given and failure of that will also encroach the principle. The department should make available officers who are involved in the procedure of investigating and do cross-examination. Cross-examination is defined under Section 137 of the Indian Evidence Act, 1872 (amended).

In certain exceptional cases, the right to cross-examination can be denied or rejected. Hari Nath Mishra vs. Rajendra Medical College, under this case a male student was charged off some indecent behaviour towards a female student. So, here the right to cross-examination was denied for the male student as it will lead to embracement for the female student and it will not also lead to violation of natural justice.

Sometimes it becomes very necessary to keep the identity confidential as there is a threat of life and property. And the same situation was faced in the case Gurubachan Singh vs. the State of Bombay.

Let’s take an illustration, In the matter where lawyer and client are involved so, nobody can force a lawyer to reveal what all information is given by the client to the lawyer in relation to the case.

In the case of Ludhiana food product, the court held that If the party itself refuse to cross-examine the witness then it will not fall under miscarriage of natural justice.

Right of Legal representative– In the process of enquiry, every party has the right to have a legal representative. Each party will be presented by the legally trained person and no one can deny (A.K.Roy). Similarly, the department has the same right to direct its officer even though there are investigating officer in conducting an adjudicating proceeding (Sanghi textile processor vs. Commissioner).

Exceptions

During the Emergency period
Public interest
Express statutory provision
Nature of the case is not of a serious kind
If it doesn’t affect the status of the individual

Applicability

Natural justice is applicable to some of the following points:-
Court- except to ex-parte
Tribunals
Authority entrusted with discretion but subject to legal limitations

Reasoned Decision

Basically, it has 3 grounds on which it relies:-

The aggrieved party has the chance to demonstrate before the appellate and revisional court that what was the reason which makes the authority to reject it.
It is a satisfactory part of the party against whom the decision is made.
The responsibility to record reasons works as obstacles against arbitrary action by the judicial power vested in the executive authority.

Conclusion

The principles of natural justice have been adopted and followed by the judiciary to protect public rights against the arbitrary decision by the administrative authority. One can easily see that the rule of natural justice include the concept of fairness: they stay alive and support to safeguard the fair dealing.

So at all the stages of the procedure if any authority is given off the judicial function is not purely accepted but the main motive of the principal is to prevent the miscarriage of justice. It is supreme to note that any decision or order which violates the natural justice will be declared as null and void in nature, hence one must carry in mind that the principles of natural justice are essential for any administrative settlement to be held valid.

The principle of natural justice is not confined to restricted walls the applicability of the principle but depends upon the characteristics of jurisdiction, grant to the administrative authority and upon the nature of rights affected of the individual.

Reference

The article has been written by Subodh Asthana, a student of Hidayatullah National Law University. The author has discussed the different “schools of jurisprudence” along with some eminent scholars in the article.

Introduction

Jurisprudence is the study or philosophy of law. Various Jurisprudence thinkers and scholars have tried to explain it in the general form for the more profound understanding of the lawmaking process. Modern-day jurisprudence started in the eighteenth century and was centred on the primary standards of natural law, civil law, and the law of nations.

General jurisprudence can be separated into classifications both by the sort of inquiry researchers look to reply and by the hypothesis of jurisprudence, or schools of thought, in regards to how those inquiries are best replied. Contemporary rationality of law, which manages general jurisprudence mainly delivers issues under the law and legitimate frameworks and it also with issues of law as a social establishment that identifies with the more significant political and social setting in which it exists.

Schools of Jurisprudence

Jurisprudence is the hypothesis and investigation of law. It considers the cause and idea of law. Law has an unpredictable idea. Its comprehension differs from individuals to individuals. Everybody has an alternate perception of the law. The article discusses the five schools of Jurisprudence viz.

Philosophical School
Historical School
Realist School
Sociological School
Analytical School

Philosophical School

The philosophical or moral school concerns itself mainly with the connection of law to specific thoughts which law is intended to accomplish. It tries to explore the reasons for which a particular law has been established. It isn’t related to its recorded or scholarly substance. The eminent law specialists of this school are Grotius (1583-1645), Immanuel Kant (1724-1804) and Hegel (1770-1831). These law specialists see law neither as the discretionary order of a ruler nor concerning the making of recorded need. To them, the law is the result of human reason and its motivation is to hoist and praise human identity.

New speculations supporting the sway of the state were propounded by pragmatist Polito-legitimate masterminds. For example, Machiavelli, Jean Bodin. Because of these advancements, transient expert of the Church and the natural religious law got a genuine blow.

Lastly, it dwindled offering approach to inherent privileges of man and the state. The natural law hypothesis propounded by Grotius, Locke and Rousseau altered the current organisations and held that ‘social contract’ was the premise of the general public. Hobbes utilised natural law hypothesis to propagate reactionary development and legitimise business as usual for the safeguarding of harmony and insurance of people from never-ending struggle and disarray. Thus, the views of Scholars represent the Philosophical thought of the School itself.

Grotius

Hugo Grotius (1583–1645), a well known legal scholar in the Dutch Republic and established frameworks for universal law, in light of natural law. Grotius expelled the natural law from the locale of good scholars and made it the matter of lawyers and thinkers, by declaring that by their very nature, natural laws were definitive in themselves, with or without confidence in God.

He held that the ethical morals of natural law connected to all social and sane creatures, Christian and non-Christian alike. Grotius additionally advanced the idea of “Simply War” as a war which was required by natural, national and celestial law in specific situations.

Hobbes

Thomas Hobbes discovered the social contractual hypothesis of legal positivism. He proclaimed that all men could concur that what they looked for (bliss) was liable to dispute, yet that a comprehensive accord could conform to what they dreaded (savage demise on account of another, and loss of freedom and individual property). Natural law was characterised as how a sound person, looking to endure and flourish, would act.

It could be found by thinking about mankind’s natural rights, prior understandings had determined natural rights by thinking about natural law. As Hobbes would like to think, the primary way that natural law could win was by all men submitting to the directions of a sovereign. A definitive source of law currently turned into the sovereign, who was in charge of making and upholding laws to oversee the conduct of his subjects.

Locke

John Locke (1632–1704) is among the most persuasive political thinkers of the difficult period. He safeguarded the case that men are commonly free and equivalent against claims that God had made all individuals naturally subject to a ruler. He contended that individuals have rights, for example, the privilege to life, freedom, and property that has an establishment autonomous of the laws of a specific culture.

Locke utilized the case that men are naturally free and equivalent as a significant aspect of the defense for understanding real political government as an after effect of a social contract where individuals in the condition of nature restrictively exchange a portion of their rights to the legislature so as to all the more likely guarantee the steady, agreeable happiness regarding their lives, freedom, and property. Locke additionally protects the guideline of dominant party rule and the division of administrative and official forces.

Hegel

Hegel was the most persuasive scholar of the philosophical school. His framework is a necrotic one. As per him “the state and law both are developmental.”

The extraordinary commitment of Hegel to philosophical school is the improvement of the possibility of advancement. As per him, the different appearances of social life, including law are the result of a developmental, unique procedure. This procedure includes rationalistic structure, uncovering itself in theory, absolute opposite and blend. The human soul sets a proposition which ends up present as the main thought of a specific recorded age.

Rousseau

Jean-Jacques Rousseau (1712 – 1778) trusted current man’s enslavement to his very own requirements was in charge of a wide range of societal ills, from misuse and mastery of others to poor confidence and despondency. Rousseau trusted that great government must have the opportunity of every one of its natives as its most key goal.

The Social Contract, specifically, is Rousseau’s endeavour to envision the type of government that best avows the individual opportunity of every one of its natives, with specific limitations natural to an intricate, present day, civil society.

Rousseau recognised that as long as property and laws exist, individuals can never be as utterly free in present-day society as they are in the condition of nature, a point later reverberated by Marx and numerous other Communist and rebel social thinkers.

Regardless, Rousseau unequivocally had confidence in the presence of specific standards of government that whenever authorised, can bear the cost of the individuals from society, a dimension of opportunity that at any rate which approximates the opportunity appreciated in the condition of nature.

Kant

Kant gave current reasoning another premise which no consequent philosophy could overlook. The Copernican Turn’ which he provided for philosophy was to supplant the mental and exact strategy by the basic technique by an endeavour to base the reasonable character of life and a world not on the perception of actualities and matter but rather on human cognisance itself.

According to Kant “the opportunity of man act as indicated by his will and the moral proposes are commonly co-relative because no moral hypothesise is conceivable without man’s opportunity of self-assurance“.

Historical School

Historical school of jurisprudence trusts that law is a result of a long historical advancement of the general public since it starts from the social custom shows ethical standards, monetary requirements and relations of the general population.

As indicated by this hypothesis, the law is the result of the powers and impact of the past. Law depends on the general awareness of individuals. The cognisance began from the earliest starting point of the general public because there was no individual like sovereign for the making of law.

Savigny, Sir Henry Maine and Edmund Burke are the eminent legal jurists of this school.

Savigny is viewed as the originator of the historical school. He has given the Volksgeist theory. As indicated by this theory, the law depends on the general will or through and through the freedom of ordinary citizens. He says that law develops with the development of Nations increments with it and passes on with the disintegration of the countries. Along these lines, the law is a national character of the cognisance of individuals.

This school does not connect much significance to the connection of law to the state yet offers importance to the social establishments in which the law creates itself. While the investigative school pre-assumes the presence of a very much established legal framework.

The historical school focuses on the development of law from the crude legal organisations of the antiquated networks. The undertaking of the historical school is to manage the general standards administering the root and advancement of law and with the impact that influences the law.

Historical legal advisers ousted the moral thought from jurisprudence and rejected all imaginative interest of judge and law specialist or lawgivers really taking the shape of the law.

Volksgeist Theory

Savigny takes a shot at the law of ownership (Das Recht Des Vestiges) which was distributed in 1803 is said to be the beginning stage of Savigny’s historical jurisprudence. He solidly trusted that all law is the confirmation of ordinary mindfulness (an indication of regular cognisance) of the general population which develops with the development and reinforces with the quality of the general population and thus diminishes as the country loses its nationality.

The beginning of law lies in the well-known soul of the general population which Savigny named as ‘Volksgeist‘.

Law has a national character, and it creates a language and ties individuals into one entire due to their primary religions, convictions, and feelings. Law develops with the development of the general public and increases its quality from the general public itself lastly, it wilts away as the country loses its nationality. Law, language, custom, and governments have a no different presence from the general population who tail them.

At the most particular stage, law grows consequently, as indicated by the interior needs of the network. Yet, after a specific dimension when it achieves civilisation, it has an incredible task to carry out.

As a two-part harmony good example between the controller of general national life and as an unmistakable order for study, i.e., performing, controlling and managing the national exercises just as considering it by experts as law specialists, phonetics, anthropologists, researchers and so on.

In straightforward terms, it tends to be named as the political component of law and juristic component and both assume a large job in the advancement of law.

Savigny was not absolutely against the codification of the German law on the French example around then since Germany was then partitioned into a few small states and its statutes were crude, prudish and needed consistency. He expressed that the German law could be classified when there is a commonness of one law and one language all through the nation. Since Volksgeist had not satisfactorily created around then, in this way, codification would have beset the development and development of law.

Following out the advancement of law from Volksgeist, Savigny considered its development as a nonstop and unbreakable procedure bound by necessary culture, customs, and convictions. He needed German law to be created on the example of Roman law. As indicated by him, the codification of law may hamper its consistent development, and when the legal framework gets entirely created and built up, then the codification may happen.

Regardless of specific criticisms, Savigny’s legal theory denoted the start of the cutting edge jurisprudence. His theory of Volksgeist translated jurisprudence as far as individuals’ will as it laid more noteworthy accentuation on the connection of law and society. What’s more, is that this theory came as a rebel against the eighteenth-century natural law theory and explanatory positivism.

The quiet essence of Savigny’s Volksgeist theory was that a country’s legal framework is incredibly affected by the historical culture and customs of the general population and the development of law is to be situated in their prevalent acknowledgement.

Realist School

Basically, the Realist school was evolved and given accreditation in the American Jurisprudence. Legal realism suggests that judicial decisions must comply with financial factors and inquiries of strategy and qualities. In America, we have the Realist School of jurisprudence. This school strengthens sociological jurisprudence and perceives law as the consequence of social impacts and conditions, and sees it as judicial decisions.

Oliver Holmes is, as it were, an example of the pragmatist school. “Law is the thing that the courts do; it isn’t simply what the courts state.” Emphasis is on activity. As Holmes would have it, “The life of the law has not been the rationale; it has been involvement.”

Karl Llewellyn, in his previous works, was a representative for customary pragmatist theory. He contended that the guidelines of substantive law are far less significance in the genuine routine with regards to the law that had up to this point been expected.

The theory rules that chosen “cases which appeared for a century have been tricked and dealt by library-ridden hermits as judges.” He suggested that the point of convergence of legal research ought to be moved from the investigation of standards to the recognition of the genuine conduct of the law authorities, especially the judges. “What these authorities do about debates is, to my mind, the law itself.”

Llewellyn, one of the examples of the pragmatist development, has put forward the accompanying focuses as the cardinal highlights of American realism;

Realism isn’t so much another school of jurisprudence as another philosophy in jurisprudence.
Realists see the law as robust and not as static. They view the law as serving specific social closures and concentrate any given cross-segment of it to discover to what degree these finishes are being served.
Realists, with the end goal of perception of working of any piece of the legal framework, acknowledge a ”separation of is from should“. This implies the moral purposes which, as per the spectator, ought to underlie the law are overlooked and are not permitted to obscure the vision of the eyewitness.
Realism accentuates the social impacts of laws and legal decisions.

Sociological School

The sociological school of jurisprudence developed as the blend of different juristic contemplations. The types of this school treat law as a social wonder. As indicated by them, the law is a social capacity, an outflow of human culture concerning the external relations of its individual individuals. Montesquieu, Auguste Comte, Herbert Spencer, Duguit and Rosco Pound are the prominent legal advisers of this school.

This type of school laid more prominent weight on the utilitarian part of the law as opposed to its conceptual substance. They view the law as a social organisation connected with their orders bearing a direct effect on society.

The historical school, which was a response to the ultimate independence of the nineteenth century by its accentuation on the Volkgeist soul of the general population demonstrated that law and the social condition wherein creates are personally related. This thought was worked out by legal advisers of sociological school.

Before the nineteenth-century matters like wellbeing, welfare, training, and so on were not the worry of the state. In the nineteenth century, state, on account of the antagonistic impacts of free enterprise turned out to be increasingly more worried about various issues including practically all parts of life and welfare. This inferred guideline through the law, which constrained legal theory to straighten out itself to assess social wonders.

Ehrlich (1862-1922), a famous legal adviser of sociological school, essentially clarified the social premise of law. For him, the law is gotten from social realities and depends not on state expert but rather on social impulse. Law, he said contrasts a little from different types of social impulse and the state is simply one among numerous affiliations, however, indeed it has specific qualities methods for impulse.

The genuine wellspring of law isn’t rules or announced cases, however, the exercises of society itself. There is a “living law” basic the formal guidelines of the legal framework and it is the assignment of the judges and the legal advisers to incorporate these two kinds of law.

Roscoe Pound is viewed as a standout amongst the most noted American Sociological legal scholars of the twentieth century. Kohler’s methodology, truth is told, motivated Roscoe Pound the most for propounding the theory of social designing and the adjusting of social interests. Kohler attests that all laws are relative and moulded by the civilization where they emerge.

The possibility of law needs to pursue the all inclusive thought of human civilisation and the significance of civilisation is the social improvement of human parts towards their most astounding conceivable unfurling. The development of civilization results from the battle between the human personality separating itself from nature and the item matter of develop.

The assignment of law following the advancement of civilization is both to keep up existing qualities and to make new ones for the further improvement and unfurling of human forces. Each civilisation has a certain country which hypothesises thoughts of rights to be made successful by legal Institution.

Legal materials must be moulded to offer impact to those hypothesises and officials, judges, legal scholars must mole to the law as per them. For Pound, the law is a requesting of lead in order to cause the merchandise of presence and the methods for fulfilling professes to go Round quite far with the least grinding and waste. Pound views these cases as interests which exist autonomously of the law and which are squeezing for acknowledgement and security.

Equity Oliver Windell Holmes thought about law as a way to ensure and advance the aggregate gathering interests as contrasted and individual interests. Therefore, he moved toward law in a down to earth way, receiving a sensible frame of mind to dissect its working in the general public.

He apropos commented, “life of law has not been rationale, it has been involvement” which implied that while deciding the law and legal guidelines by which men ought to be administered, the lawyers and judges must mull over the requirements of the time, common good and political statutes, public policy and the public feeling.

Roscoe pound considered law as a ‘social engineering‘ its primary assignment being to quickens the procedure of social requesting by endeavouring every single imaginable exertion to maintain a strategic distance from irreconcilable circumstances of people in the general public. Along with these lines, courts, officials, heads and legal scholars must work with an arrangement and try to keep up a harmony between the contending interests in the public eye. He specifies different benefits which the law should look to secure and arranged them into various general classes.

In Case-Animal and environment legal defence fund vs Union of India & Ors.

The Supreme Court connected the standards of Economic supportability and condition assurance. The court thus ruled that if the townspeople are not allowed angling, their employment will be decimated. If they are allowed, there will be a threat to nature.

Henceforth the Supreme Court requested the concerned woodland specialists and the board established to find a way to secure the resources of earth without disrupting the employment of the locals. They will watch the locals and give reasonable guidelines for them. They will be instructed on the significance of the condition. The locals ought not to enter in other territories acknowledges to the lakes on which they are given angling rights.

Principle

The Supreme Court connected sociological methodologies for this situation for the welfare of tribals, whose wellspring of the job is angling. For this situation, yet besides in each ecological case, the sociological methodology of their lordship is perfectly clear. Their lordships regularly state that “law is a social building”.

It might be expressed that pound’s characterisation of interests in his theory of social designing can’t be said to be idiot proof, and one may discover some covering of benefits all over. Pound himself acknowledged that the different benefits of people in the general public must be extensively grouped and they can’t be put in watertight compartments. Julius stone has rejected the division of public affairs and social interests on the ground that in actuality, they are on the full social benefits.

Pounds handled the issue of interests as far as adjusting of individual and social interests. It is through the instrumentality of law that these interests are tried to be accommodated. As Justice Cardozo accurately commented, “Pound endeavoured to stresses the requirement for judicial attention to the social qualities and interests”.

Analytical School

Analytical school is otherwise called the Austinian school since this methodology is set up by John Austin. It is likewise called as an imperative school since it regards law as the direction of the sovereign. Dias terms this methodology as “Positivism” as the topic of the school is certain law. The analytical school picked up unmistakable quality in the nineteenth century. His methodology was mainstream, positivistic and exact. Truth be told, it was Austin who propounded the theory of positive law, the establishment of which was laid by Bentham.

Jeremy Bentham can be said to be the author of the Analytical school. In one of his books, he dismissed the principles of natural law and expounded the rule of utility with logical accuracy. He isolated jurisprudence into explanatory and censorial. The previous arrangements with the law all things considered while the last arrangements with the law as it should be.

Bentham’s examination of censorial jurisprudence is demonstrative of the way that the effect of natural law had not totally vanished that is the reason he discussed utility as the overseeing rule. Maybe, as a result of this reason, Bentham isn’t usually known as the father of analytical school. He, in any case, trusts that law is a result of state and sovereign. Bentham’s idea of law is an imperative one for which he alluded the expression “command.”

Austin gave the primary precise and extensive treatment on a subject which expounded the analytical positivist methodology, and because of this work, Austin is known as the father of the Analytical School. He constrained the extent of jurisprudence and endorsed its limits. His methodology was analytical. The investigation was by him “the standard strategy” to concentrate in the fields of jurisprudence. Austin based on the establishment of explanatory jurisprudence laid by Bentham and did not worry about additional legal standards. He recognised the investigation of enactment and law from ethics.

To Austin, jurisprudence implied the formal examination of legal originations. He isolates jurisprudence into general jurisprudence and specific jurisprudence. Austin accepting a legal framework as it is that is specific law and settled it into its crucial origination. Positive law is the result of state and sovereign and is not the same as profound positive quality.

Kelson’s theory of law which is known as the pure theory of law suggests that law must stay free from Social Sciences like brain research, human science or social history. Kelson’s point was to build up an investigation of law which will be pure as in it will carefully shun all powerful, moral, mental and sociological components.

Salmond surrenders the endeavour to locate the general components in law by characterising jurisprudence as an art of civil law. As indicated by him, there is not at all like general component in law since it is the exploration of the law of the land(lex loci) and is subsequently adopted by elements which win in a specific state. He manages low for what it’s worth however law to him is to be characterised not as far as the sovereign but rather as far as courts.

Law is something which exudes from courts as it were. He didn’t concur with Austin that examination of law should be possible with the assistance of rationale alone. He calls attention to that the investigation of jurisprudence which disregards moral and historical viewpoints will turn into a desolate report.

Thus, in a nutshell, the theory deals with the following aspects.

An Analysis of the origination of civil law.
The investigation of different relations between civil law and other types of law.
An investigation into the logical game plan of law.
A record of legal sources from which the law continues.
The investigation of the theory of obligation.
The investigation of the origination of legal rights and obligations.
To research such legal ideas as property, contracts, people acts, and aim, and so forth.

Conclusion

Jurisprudence is the scientific study of law. It is a kind of science that investigates the creation, application, and requirement of laws. Jurisprudence is the investigation of theories and methods of insight in regards to the law. It has viable and instructive esteem.

There are five schools of jurisprudence. Although the schools of the law tried to eradicate some of the shortcomings in the lawmaking and enacting procedures, there has to be an analysis and study to rapport the claim of the purpose and rationale behind the law. Moreover, the enactment of law should be looked at from a practical approach rather than a theoretical one.

Kashish Khattar is a 4th-year student at Amity Law School, Delhi. He writes on topics related to investment, banking and arbitration law. The following is a list of terms that are typically used in the banking sector of the country.

Let us cut right to the chase and talk about the top 20 terms you should know about if you are working in the banking sector of the country:

PCA (Prompt Corrective Action)

The prompt corrective action (“PCA”) framework is simply a corrective measure plan which is used to intervene early so as to restore the financial health of banks that are at risk by limiting their capital levels. PCA mainly puts up lending restrictions on the banks and doesn’t let them do business as usual. PCA kicks in when banks fall short on any of the three parameters – capital to risk-weighted ratio; non-performing assets; and return on assets.

Strategic Debt Restructuring

SDR was introduced in 2015 to let banks recover their loans from ailing companies. It lets the Joint Lenders Forum (“JLF”) or simply known as the consortium of lenders to convert their debt into equity. The lenders simply become owners of the company they had lent money to. The scheme basically lets the banks take control of the distressed companies. The JLF can control this entity for 18 months after which they have to sell it to a new set of promoters.

This is a kind of turnaround opportunity given to the banks by making the distressed company an attractive target and selling it to a new set of promoters. This is what was proposed to happen at jet airways by its lenders.

NPA – Non Performing Assets

Simply put, a loan given by a bank can be seen as an asset. Further, when the principal or the interest are not being given to the bank, they are not performing. They become a non-performing asset for the lender aka the bank. Typically, an asset which stops giving interest to its investors for more than 90 days is known as a non-performing asset. The 90 days period is kind of a thumb rule being followed by a lot of countries and can vary on case to case basis.

ROA – Return on Assets

It is basically a performance indicator of banks. RoA is profitability ratio and shows how profitable a bank is in relation to its total assets. Typically, it tries to measure the efficiency of utilizing the bank assets to generate profit for themselves and is calculated out by dividing net income by average total assets. A higher RoA indicates a better managed and more efficient bank.

RoA = net income/avg total assets.

Mezzanine financing

Mezzanine financing is a hybrid of debt and equity financing that gives the lender the right to convert to an equity interest in case of a default. It is paid after the senior lenders such as venture capital companies, private equity companies and others are paid.

It is usually listed as an asset on the company’s balance sheet. It is quickly available to the borrower without any collateral. A convenient loan without collateral only means one thing, a higher rate of interest. The rate of interest in relation to mezzanine financing can range anywhere from 12% – 20%. Typically, in India, it can range from 13-14%.

ECBs (External Commercial Borrowing)

External commercial borrowings or ECBs can be simply understood as loans from foreign institutions. ECB is typically seen as a way of growth capital for most of the corporate sector in the industry. It is of strategic importance in certain sectors which include power, aviation and infrastructure. It is of so much importance the Indian businesses that an entire team of law firm exclusively handles ECBs. It can be thought of as the cheapest source of capital in India.

Loans have to be taken from a foreign branch, such as Standard Chartered Bank London, HSBC Hong Kong or a foreign financial institution such as the Asian Development Bank. However, a loan from HSBC Delhi or Standard Chartered Bombay won’t qualify as a foreign loan. The simple reason being the loan would be provided in Rupees. ECB is a loan taken in foreign currency. ECB can include preference shares, convertible & non-convertible debentures and bonds which are issued to foreigners apart from a simple loan. A loan which is taken from a foreign shareholder who owns at least 25% of the shares of the borrower company is also included in the ambit of ECBs.

Bridge loans

A bridge loan is simply there to fill the gap between short term cash requirements and long term loans. They are typically taken for a period of not more than 12 months. As you may have guessed, the rate of interest is huge and these kinds of monies would require a piece in the pie. I mean that some equity or debentures is necessary to back the lender for this kind of a loan.

Simply put, bridge loans are short-term loans which are granted typically to industrial undertakings so that they can meet their urgent and essential needs during the period. These periods are seen when some kind of formalities for long term loans is being sanctioned by financial institutions. Further, this kind of period also maybe when the company decides to raise the funds from the capital markets.

Fun fact: These loans are granted by banks or by financial institutions themselves and are automatically repaid out of an amount of the term loan or the funds raised in the capital market.

The key guidelines to sanction bridge loans as notified by RBI should include the following aspects:

Security should be for the loan;
There should be compliance with the individual or group exposure norms;
The value of the outstanding bridge loan (or the limit sanctioned, whichever is higher) during the year;
Ensuring the end use of bridge loan, as to where is the loan going to be used; and
The maximum period of the bridge loan to be one year only.

Revolving credit

Revolving credit is defined as a line of credit where the borrower has to pay a commitment fee to a financial institution such as a bank to borrow money and is then allowed to use the funds whenever they are needed. They are typically used for operating some big projects or purposes. The amount can vary from on a month to month basis. Revolving credit is usually taken out by corporations or high net worth individuals. The maximum amount of revolving credit is called the credit limit. The bank which is the main financial institution in these kinds of transactions has to reach an agreement over the commitment fee, interest expenses and carry forward charges for consumer accounts.

Revolving credit is an added incentive for people or companies that face sharp fluctuations in cash flow and face unexpected expenses. The convenience and the flexibility account for the high rate of interest which is charged by the banks. They are different than instalment loans as they require a fixed number of payments over a period of time whereas the revolving credit only requires payment of the applicable interest and the fee.

Debt Covenants

They are basically the conditions put on by the lenders on the actions of the borrower. These covenants are incorporated into the lending agreements. Simply put, the debt covenants in the loan agreement tells the borrower what it can and cannot do. They are also known as banking or financial covenants.

They are of two types: positive; and negative covenants. Positive ones typically what the borrower has to do. Such as achieving certain thresholds in certain ratios, performing regular maintenance of capital assets etc. Negative covenants are the ones which the borrower doesn’t have to do. They include instances like selling certain assets, borrowing more debt and enter into a certain type of agreements.

Debt financing

Simply put, when a company borrows money that is to be paid at a future date is known as debt financing. It can take the shape of a secured or an unsecured loan. Typically, this kind of loan is taken for an acquisition or finance some working capital for a project. Debt funding is only taking a principal amount and paying interest on it.

You are not losing out on any equity of your company while you’re at it. It is a time-bound activity with predefined instalments to be paid at the agreed period. The loan is usually collateralised with some assets of the company. The secured or unsecured loan also helps determine the kind of line of credit that you’re going to get. Debt funding is said to be a new thing for India Inc. The venture debt space has been buzzing with a lot of activity in the startup space.

Corporate guarantee

A corporate guarantee is a guarantee in which a corporate agrees to be responsible for the financial, contractual obligations of the principal debtor to the creditor. These are invoked when the principal debtor fails to perform their financial or contractual obligations. A typical corporate guarantee is unsecured by nature. Further, it is imperative to check the charter documents of the company to ensure that they are ensured to issue a corporate guarantee and verify the prescribed limit. Furthermore, it is quite important that resolutions wrt these guarantees are passed for this purpose by the company accordingly.

Letter of Credit (“LOC”)

A letter of credit is basically a letter that assures that the seller that the buyer is good for his money. Banks typically require a pledge of securities or cash as collateral for the issuance of a letter of credit.

A letter of credit (“LC”) is issued by the bank at the request of its customer (Importer) in favour of the beneficiary (Exporter). It is an undertaking by the bank, informing the beneficiary that the documents under the LC will be honoured if the beneficiary submits all the paperwork as per the terms and conditions. Banks are mainly involved in LC to avoid default in payments, to facilitate trade and also enable the exporter and importer to receive and pay for the goods sold and bought.

Shadow banks

Shadow banking is a name given to all the intermediaries that provide services similar to a traditional bank. They typically carry out banking function but do not come into the ambit of the banking regulation of a country. Shadow banking got popular in the financial crisis of 2008 and was deemed to be one of the main factors the said crisis. It was coined by Paul Mcculley in 2007 to mainly define the American non-banking intermediaries who used short term deposits to finance long term loans. These banks are defined as ‘credit intermediation involving entities and activities remains outside the regular banking system’. NBFCs in the country come under the purview of the shadow banking sector. However, they are highly regulated by our central bank. Shadow banking has been the talk of the town after the recent crisis regarding the IL&FS default.

Term loan

It can be simply understood as a loan for a specific amount which has a specific repayment schedule and a fixed or floating interest rate over it. Meaning, it can be paid in a lump sum or in suitable amount according to the agreement. A loan is known as a demand loan if it has to be repaid within three years. If the loan’s tenure is three or more then it is known as a term loan.

They are mainly given to the manufacturing, trading and service sectors which require funds for buying various fixed assets, such as land, building, machinery, and electrical installation etc. Repayment of term loans depends mainly on the firm’s capacity to produce goods or services by the fixed assets financed by the bank.

. Cash credit

Can be seen as the main method of how banks lend in the country. Accounts for around 2/3rd of the credit of the total credit offered by banks. The banker specifies a limit, known as the cash credit limit. It is a flexible system of lending under which the borrower has the option of borrowing funds whenever he needs.

The bank specifies that limit. This kind of credit is typically sanctioned for a year and is secured by the security of some tangible assets or personal guarantees. If the arrangement is working satisfactorily, the limit can also be renewed. Talking about interest, it is calculated and then charged on the customer’s account.

Green banking

A green bank is a financial institution that has the aim of reducing the carbon footprint and promote environmentally friendly activities. It can come in a lot of forms like using online banking instead of branch banking. This kind of bank is also called an ethical bank or a sustainable bank. They are controlled by the same authority as a normal bank but with an added agenda of protecting the environment.

Consortium lending

In a consortium lending, two or more lenders join hands to finance a borrower. The lenders, ie, the banks join hands through an inter-se agreement to fulfil the credit needs of the borrower. This kind of arrangement is typically done through common documentation. The lenders also let one of the banks be the consortium lead. This leader is held responsible for all the documentation that is executed by the borrowers on behalf of the whole consortium. This kind of lending gives banks the leeway to make their own guidelines to ensure the safety of their credit. This kind of system also ensures that the risk is shared amongst the lenders.

A pari passu charge is created on the securities that are offered by the borrower against the total credit offered by the consortium. The pari passu charge basically means that if the borrower has to go into liquidation or the securities are in any way, disposed off by the consortium. The securities on which the charge is created will be distributed in proportion to the creditor’s contribution in the consortium.

Syndicate loan

Syndicate loan is said to be slightly different than consortium lending in terms of operations, procedures and the legal relationships involved in the transaction. In syndicate loan, a group of lenders come together to provide credit to a borrower. The borrower can be a corporation, government or any entity involved in a large project. All the lenders share risk in this kind of a transaction and needless to say, all the lenders in the syndicate contribute towards the loan amount.

One of the lenders acts as the arranging bank who mainly works out the loan on behalf of all the other lenders in the syndicate.

A loan syndicate happens when a single borrower needs a really big loan that a single lender fails to provide. This also happens when the lender cannot expose itself to the risk that gets generated if he decides to lend such a huge amount. The lenders then form a syndicate that helps them reduce the risk and share the financial opportunity with all the lenders involved. The liability of every lender is based on the kind of contribution they make towards the total loan. A single agreement typically contains all the terms and conditions of such an arrangement.

Letter of commitment

A letter of commitment is a formal binding arrangement between the lender and the borrower. It outlines the kind of commitments that have to be fulfilled when they get into the lending arrangement. The nature of the loan, the amount that has to be borrowed, the repayment period, interest rate are some of the things that are there in this document. The main objective of this commitment letter is to tell the borrower that the lender is ready to give out the loan. However, they need but the borrower will have to fulfil said conditions in order to access the credit that they need.

The basic contents of the commitment letter can be the type of loan applied for; the loan amount; terms agreed upon loan repayment; interest rate; estimated period payments; effective date and commitment fees; and cancellation policy.

Multiple banking arrangements

This kind of arrangement is where the borrower obtains credit independently from other lenders. There is no kind of contract between the lending banks. In multiple banking, each lender performs their own credit assessment and obtains independent documentation for every primary and security charge created over the assets. There is no single kind of document as seen a consortium loan or syndicate finance.

The main difficulties as seen in multiple banking arrangements is that there is no coordination in between banks among appraisal, documentation and other terms in a loan. A borrower gets the freedom to deal with each bank so he can negotiate the terms in a better way. However, this also ruins the tight credit culture that can be maintained through single agreements in consortium loans or syndicate finance.

This article has been written by Nishtha Jain, a fourth-year student from Symbiosis Law School, Noida. She has discussed the Ramsar Convention; highlighting the poor implementation and inefficient laws in India.

What are wetlands and why do we need to conserve them?

Popularly known as nature’s kidneys that purify the environment, wetlands are a vital part of the hydrological cycle. Wetlands not only support large biological diversity but also provide a wide range of ecosystem services such as soil erosion control, flood mitigation, agriculture, water purification, water assimilation, groundwater recharge and much more.

Most importantly, wetlands play a major role as a source of freshwater and encompass diverse assemblage of habitats. They are home for a variety of creatures including birds and serves as temporary homes for migratory birds. They perform manifold functions in the maintenance of the ecological balance. However, these fragile ecosystems are susceptible to damage and are getting exploited by the humans’ ever-growing greed and hence, are in grave danger of extinction.

What is the Ramsar Convention?

Recognizing the importance of protecting such water bodies, the Government of India became a Contracting Party to the only international treaty primarily focused on protecting Wetlands – “Ramsar Convention – The Convention on Wetlands of International Importance especially as Waterfowl Habitat” adopted on 2nd February 1971 and came into force in 1975.

The Ramsar Convention (popularly known as Wetlands Convention) defines wetlands in a very broad sense. According to the Convention, wetlands are “areas of marsh, fen, peatland or water, whether natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt, including areas of marine water the depth of which at low tide does not exceed six meters”. In simple words, wetlands include areas of marsh, fen, peatland or water. They may be natural or artificial. They may be permanent or temporary. The water in wetlands may be static or flowing, fresh, brackish or salt.

The basic tenets of the treaty text have been developed and interpreted by the Conference of the Contracting Parties. The developments and changes are made taking into consideration the environmental impact that those changes/developments would bring forth.

What are the bodies of the Convention?

To date, 170 countries have joined as Contracting Parties and are encouraged to maintain the ecological character of all wetlands. Some of the nations along with India are – Cambodia, Ghana, Egypt, Italy, Kenya, New Zealand, Sri Lanka, etc.

The Contracting Parties have three primary obligations –

Wisely using and conserving all wetlands in their respective countries.
Designating and conserving at least one Ramsar Site i.e. wetland of international importance.
Cooperating across national boundaries on transboundary wetlands.

Member Countries are required to report any adverse human-induced changes in a Ramsar site and take necessary actions to restore these wetlands to their former state. Ramsar sites, which are of international importance, are those which have been listed in the Ramsar List uploaded on Ramsar Convention’s official website. However, this doesn’t mean that the sites which are not included in the list are not to be protected and conserved.

The Contracting Parties are required to implement the Wetland Convention properly in their territories as well as collaborate and efficiently contribute to shared projects. The government agency responsible for the national application of the Wetland Convention is known as the country’s Administrative Authority.

Every three years, the Contracting Parties meet at the “Conference of the Contracting Parties” (COCP). After thorough discussions, they adopt decisions to administer the Convention. Further, they guide the implementation of the Convention as well. A Standing Committee is appointed by the Conference of Contracting Parties under whose authority day-to-day administration is entrusted to a Secretariat.

The Scientific and Technical Review Panel (the STRP) and the Communication, Education, Participation and Awareness (CEPA) Oversight Panel are two advisory bodies that provide technical guidance to the Standing Committee. Official partners of the Convention are – Convention’s Secretariat and the International Organization Partners (IOPs), who provide support in various forms to the Contracting Parties.

A Strategic Plan if formulated and the scope and focus of the Convention’s work is coordinated by this Strategic Plan itself. This Plan lists out the objectives and action plans that are to be followed or expected to be followed by the bodies of the Ramsar Convention. Started to protect and provide habitat for waterfowl habitat, it has now expanded its goals and succeeded in keeping the work of the Convention abreast of changing world perceptions, priorities, and trends in environmental thinking inclusive of sustainable urban future.

What is the mission of the Ramsar Convention?

As adopted in 1999 and refined in 2002, the mission of Convention is clearly opined as, “the conservation and wise use of all wetlands through local, regional and national actions and international cooperation, as a contribution towards achieving sustainable development throughout the world”. The term “wise use” is at the heart of the Convention and is defined as “the maintenance of (a wetland’s) ecological character, achieved through the implementation of ecosystem approaches, within the context of sustainable development”.

Is the Ramsar Convention being properly implemented in India?

Ever since the commencement of this Convention, countries around the globe have initiated numerous conservation efforts. However, at least in the case of India, it would be accurate to say that not much has been done to protect the wetlands and such issues have received little attention by the decision makers in the country.

There are several underlying reasons for this lack of effort by the concerned Government agencies to review the legal systems concerning the wise use of wetlands. Many factors are involved in this ranging from a vast number of users and economic interests attached to lack of resources and ambivalent political interests of leaders as well as the varying geographical characteristics of wetlands and inefficiency in the proper implementation of the laws formulated and the problem of overriding jurisdictions of various legal institutions.

One of the reasons of improper implementation is the various legal institutions working over the same subject matter making it difficult to ascertain the jurisdiction and limits. Govt. of India initiated the National Wetland Conservation Programme (NWCP) in collaboration with concerned State Governments to lay down policy guidelines, monitor implementation and prepare an inventory of Indian wetlands. Ministry of Environment and Forests, Government of India (MoEF) established Salim Ali Centre for Ornithology and Natural History (SACON). The object of SACON is to establish and develop a Centre of Excellence to assist, institute, conduct and promote scientific research of various species in ornithology including their habitats and ecosystems. Their object also includes developing scientific solutions to conservation problems keeping in mind the socio-economic realities and aspirations of the people.

What are the recent developments in the law?

In the past decade, there has been considerable thinking on the need to look at the legal and institutional aspects of wetland management in the country. The Supreme Court of India is still hearing a matter M.K. Balakrishana & Ors. Vs. Union of India & Ors. (M.K. Balakrishana & Ors. v. Union of India & Ors., (2001) Writ Petition (Civil) No. 230 of 2001, the High Court of Delhi) in which there have been several orders of consequence.

Complying with one of these orders Ministry of Environment, Forest and Climate Change notified the new Wetland (Conservation and Management) Rules 2017 on 26th September 2017 replacing the 2010 version. Draft of Wetland Rules first presented in 2016 was highly criticized by the conversationalists and scholars.

What are the flaws in the Wetland (Conservation and Management) Rules, 2017?

Experts felt that the new rules have seriously weakened the existing regulations. They pointed out the following flaws –

Rules fail to mention a national regulator and do not list activities prohibited in Wetlands and surrounding areas.
Rules are vague and can be misused for example, “Central government may consider proposals from the state government or union territory administration for omitting any of the (prohibited) activities on the recommendation of the authority”.
CWRA is to be replaced by a national committee and that too with only advisory role making the whole procedure of appealing against the authorities objectionable.
Rules are silent on the appeal process as in 2010 Rules allowed for an appeal to the National Green Tribunal if aggrieved by the Central Wetland Regulatory Authority’s decision but the same is not provided in new rules.
There are numerous loopholes as the Rules fail to mention details. For instance, a very subjective definition of “wise use” is given in the 2017 Rules and the interpretation of the same is left up to the State Government. No authority to issue directions has been prescribed which are binding in nature to desist from any activity detrimental to wetland conservation.
Definition of wetlands as provided in 2017 Rules is highly ambiguous and hasn’t been clearly explained. Many important types of wetlands are now excluded from the definition.
The new Rules have done away with the six points listed in the 2010 Rules describing protected wetlands, and instead, state that wetlands are limited to and do not include wetlands under forest and coastal regulation zones.
Reclamation isn’t included as one of the restrictions on the activities which is highly disturbing. Also, the Rules provide no timelines whatsoever for phasing out solid and untreated waste from being dumped into Wetlands defeating the very purpose of formulation of the Rules.

What is the judicial attitude?

There are some more recent decisions taken by the Judiciary and Government alike which shows that all hope is not lost. Some of them are –

In March 2018, in the matter of Radhey Mohan Misra v. State of Uttar Pradesh & Ors., the State submitted a report of identified wetlands and tribunal directed MoEF to take further action on the same as per the provisions of Rule 7 of Wetland (Conservation and Management) Rules, 2017. (Radhey Mohan Misra v. State of Uttar Pradesh & Ors , M.A. No. 657 of 2016)
The National Green Tribunal in May 2017 reprimanded the Delhi Government over the poor condition of Purana Quila Lake and directed them to restore the lake and ensure that lake doesn’t become a waste-dumping yard.
In September 2018, India launched a five-year plan to conserve its wetlands as part of the National Action Plan for Conservation of Migratory Birds and their Habitats (2018-2023). It is a multi-state action plan formulated for safeguarding and boosting the population of migratory birds. The plan is structured in six interrelated components and is to be reviewed every three years. If followed through properly, this plan will be able to restore at least some of India’s wetlands crucial for both humans and wildlife.
In September 2018, National Green Tribunal on its own Motion v. Govt. of NCT of Delhi & Ors. directed an oversight committee headed by former high court judge to monitor the issue of restoration and revival of wetlands in Dwarka as it is necessary for recharge of groundwater.
The National Green Tribunal on 6th December 2018 fined the state of Karnataka INR 50 Cr. and the Bruhat Bengaluru Mahanagara Palike, the city corporation, taking issue with the state’s “negligence” in protecting the lakes of Bengaluru. The NGT also asked the government to deposit INR 500 Cr. in an escrow account. This amount would be used for the execution of an action plan specifically focussing on the rejuvenation of the lakes. It has ordered the setting up of a committee which will be headed by Mr Santosh Hegde, former Supreme Court judge. This committee will be required to oversee the implementation of the orders of the National Green Tribunal.

What are the problems?

Improper implementation, unnecessarily prolonging of compliance with the Rules and numerous loopholes in the existing legislation

It cannot be denied that the Government and Judiciary of India aren’t taking any steps to conserve the Wetlands of the country but at the same time the fact of improper implementation, unnecessarily prolonging of compliance with the Rules and numerous loopholes present to benefit the industrialists cannot be ignored. One such instance is of the building of a five-star Hotel in Udaisagar Lake in Rajasthan wherein Supreme Court quashed the PIL filed by an NGO to protect the water body on very frivolous grounds. Wetlands are disappearing at an alarming rate and this is the time to take affirmative action otherwise wetlands will get extinct.

No uniform wetland policy and no Central legislation

The jurisprudence in India reveals that public interest litigations play an active and major role in the management and conservation of wetlands. India should come out of the shell and propose a uniform wetland policy all over the country and a central legislation is necessary to support this policy.

Inefficient and ambiguous rules

The Wetland (Conservation and Management) Rules, 2017 are inefficient and ambiguous which needs to be amended and formulated taking into consideration the recommendations made by the experts.

Conclusion

The wetland protection and development needs are two different sides of the same coin. However, neither can be neglected as both of these are important for the sustainable development of India. There is a lack of strong legislative framework in India which needs to be closely examined.

The long-standing environmental problems are the growing demand for and pressure on natural resources by an ever-increasing population thus we need to get done away with loosely worded laws and start making wise decisions for prevention and conservation of the wetlands of the country.

This article is written by Arkodeep Gorai, a fourth year student of Amity Law School, Noida. In this article he discusses how a person can file for compensation for death caused while boarding a train.

Introduction

Indian Railways is the fourth largest State-owned national transportation service in the world. It is still one of the safest means of the transportation system in India. But still being one of the safest means of transportation Indian Railways is still prone to accidents.

Majority of such accidents are caused by derailments of trains and low-level crossing. Both of them account for almost 90% of the railways related accidents (43.5% and 46.5% respectively). Regardless of how the accident or death occurred or whether it happened on the station, platform or train or any railway premises if it was not the passenger’s fault then the passenger may be entitled to file a train accident claim. Hence, this article will deal with how to file for compensation for death caused while boarding or de-boarding trains.

Liability of Railways Administration under The Railways Act

The liability of railways under accidents or death had been always a conflicting matter. The Supreme Court of India on May 9th, 2018 resolved through the case of Union of India vs Rina Devi. In this case, the Supreme Court held that death or injury in the course of boarding or de-boarding a train will be an “untoward incident”.

An “untoward incident” falls under Section 124A of The Railways Act, 1989. So Section 124A of The Railways Act states that during the working of the railways an untoward incident occurs then the railway administration must pay compensation to the victim or the dependant of the victim regardless of whether or not there was neglect, or any mistake on behalf of the railway’s administration. Absence of ticket with such injured or deceased will not remove the liability of Railways to pay the claim. So any person who has been a victim of “untoward incident” is eligible to receive compensation from the Railway Administration.

People eligible for Compensation

The following people are eligible for compensation under The Railways Act, 1989:

People involved in any form of railway accident including the derailment of rail, low-level crossing (only the people boarding the said train), the collision of rail-car.
Any person involved in any consequential railway accident which may cause injury or death of that person.
Any person who has been exposed to hazardous chemicals or involvement of sabotage, terrorism, explosion or fire.

People not eligible for compensation

According to Section 124A of The Railways Act, certain people are not entitled to compensation and they are as follows:

If a person deliberately tries to kill himself or any attempt of suicide.
Any injury inflicted on oneself.
Injury caused by the person’s own unlawful act
An act committed by the person who was intoxicated or an insane person.

Process of claiming such compensation

Section 125 of the Railways Act, 1989, allows a victim or dependant of a deceased person to make an application for compensation along with the prescribed fee. The following people can file an application to The Railway Tribunal for compensation under Section 125 of the Railways Act, 1989:

A person who has experienced any injury or suffered any form of loss.
Any agent who has been duly authorised by such person in his behalf
A person who is minor, in such case the guardian of such minor can file an application,
A dependant of a person who has died due to an accident caused by the railways or who has sustained grievous injury due to the accident.

However, there are certain restrictions related to the filing of an application for compensation at the Railways tribunal as per section 17 of the Act:

There is a definite “limitation period” for reporting of the incidents. In cases where the goods have been lost, damaged or destroyed or there is non-delivery of an animal then in that case the limitation period is three years.
The incidents which are under the Section 124A of The Railways Act, the “limitation period” for such cases is one year.

Here, the term limitation period means “a legally specified period beyond which an action may be defeated or a right does not continue.” In the claim tribunal claims can be dealt with in person, the claimant does not need to hire any lawyer and the Railways Claim Tribunal acts on the principle of natural justice than the principal of law.

Burden of proof

The initial burden of proof lies on the claimant but it can be discharged by the filing of an affidavit of the relevant facts of the incident. Once the affidavit has been filed the burden of proof shifts on the Railway Administration and it is up to the discretion of the tribunal to decide from the facts or the attending circumstances.

Quantum of compensation and Interim Relief

The railway administration has increased the amount of compensation. The Indian Government has amended such enhancement in The railways Act, 1989. The compensation has been made twice for people who suffered severe physical injury or in case of death.

Under the Railway Accident and Untoward Incidents (Compensation) Amendment Rules, 2016 the initial amount for compensation which was Rs. 4 lakh has been increased to an amount of Rs. 8 Lakh in cases regarding the death of a passenger or the passenger faced any loss of limb. The compensation shall be granted by the Railways Claim Tribunal to the dependants of the victim who has died or suffered serious injuries.

The official notiﬁcation states that, if a person becomes blind or loses his eyesight for one eye or becomes deaf, then that person shall be granted Rs 8 lakh in compensation. A person is also granted the same amount of Rs 8 lakh if that person suﬀer severe facial disﬁgurement, according to the oﬃcial notification released by the railway administration. For injuries, the amount varies from Rs.32,000/- to Rs.8,00,000/- depending on the nature of the injury sustained.

Ex Gratia relief

Ex-gratia relief is granted by the railway board or welfare department just after an accident, and the amount of moral relief is Rs.15,000/- to the next of kin of the dead, Rs.5,000/- if there is a case of grievous hurt and Rs.500/- in the case of injuries which are simple in nature. The Ex-gratia relief is proposed to meet the instant cost and is not considered at the time of final judgement of claims related to the compensation. In case of severe or special circumstances, the quantum can be enriched.

The amount of Ex-Gratia relief for accidents at the level crossing is Rs. 6000 in case of death and Rs 2500 in case of grievous injury.

Steps taken for speedy settlement as per Minister of State for Railways

Minister of State for Railways Shri Rajen Gohain (also a member of the Parliament, Lok Sabha) gave a written statement in Rajya Sabha on 22nd December 2017 inducing various steps that the Ministry of Railways proposes to take regarding the speedy settlement of cases related to compensation in The Railways Claim Tribunal. Some of the steps are:

Directions are issued to all authorities of zonal railways that as soon as there is an occurrence of an accident all information regarding the injured or killed people in the accident must be provided and all the claimants shall be provided with accident claim forms.
The railway administration must assist the tribunals for quick and easy settlement of disputes.
Written statement is essential to be filed by the railway administration in such circumstances under 15 days of notice from RCT.
After the amount of a claim has been approved by the RCT, railways have to make that cheques are issued and transferred under a period of 15 days.
Initial fiscal incidents regarding the accident compensation claims case shall be allocated amongst victims.
The Chief Claims Officer of the RCT has the power to compensate claims up to ₹ 8 lakh.
The claimant can file the application of claim at the tribunals bench having its jurisdiction over the territory of India
If there is a high pendency of cases then in that condition there must be an establishment of Holding Circuit Benches.
Whenever there is presence of any vacancy in the Railways Claim Tribunal then in that case railway administration must fill up those vacancies as soon as possible.
There can be a maximum of three trials regarding the cases of compensation in the RCT.
Railway Claims Tribunal must give their judgement under 21 days of final hearing of the case that was filed before it.
One copy of the order of Railway Claims Tribunal for accident compensation claims shall be supplied for free to the claimant under 3 days of the granting of final judgement.
Relevant Rules & Procedures in connection with compensation claims in respect of “Accident” have been incorporated in the Indian Railways” website. It also contains the format of different application forms which are needed for filing compensation claims.

These steps were released in the press afterwards with the Ministry of Railways insisting on complying with these steps for speedy settlement of trials pending under the Railways Claim Tribunal.

Rights that are given to claimants

Right to Legal Representation

The claimant has the right to take the help of a lawyer of his/her choice and such lawyer can represent the victim or the claimant in the tribunals.

Free Legal-Aid

The railways along with the state provides free legal aid to all the claimants and the victims who cannot afford to hire a legal representative of their own.

The railway administration issues tickets to victims. The railway administration issues travel passes from the address of the victim/claimants to the place of hearing when the claimant is summoned by the Railway Tribunal regarding the matters falling under Sections 124 and 124-A of the Railways Act, 1989.

Particulars required for filing of claim for compensation

The claimant must provide their name and also the name of their father.
The claimant must provide their place of residence.
The claimant must fill their age.
The claimant must provide their profession.
If there is any employer of the deceased then in that case the name and the address of such employer.
The claimant must provide the details of the accident along with the location and the date of the accident.
The claimant must provide the ticket or pass number.
Nature of injuries sustained along with a medical certificate.
Name and address of the Medical Officer/Practitioner who attended on the injured/dead and period and date of treatment.
The claimant must mention if he/she faced any disability due to the accident.
If there is any loss of luggage then the claimant needs to provide the details of such luggage.
If the claimant has lodged any report regarding the accident to any other authority then the claimant must attach the report as well.
Name and permanent address of the applicant/claimant.
If there is any local alternative address of the applicant then it must be stated as well.
If a dependant is filing the application then the dependant must state the relationship he/she had with the deceased or injured.
The claimant must state the amount of compensation that he has claimed.
Any other information or documentary evidence that may be necessary or helpful in the clearance of the claim.

Documents required for the facilitation of the settlement of claim by the Tribunal

If the person had died then post mortem report of his death.
If there is death or injury then a copy of the FIR.
If a person suffered some injuries then there is a requirement of a medical report by a certified doctor and the medical report must contain details of such injuries.
If the passenger has died then in that case the tribunal requires the death certificate of such passenger and the death certificate must be issued by the District Administration.
If there is death of the passenger then there is a need for heirship title.
The registered proof of the victim/claimant. The registered proof must show that the victim/claimant was a passenger of the train and in case if there is no availability of such documentary proof then the claimant must provide ticket number and class of travel (to the extent that the claimant is aware).

Conclusion

So to conclude, the Railway Administration through the means of The Railway Act and The Railways Claim Tribunal aims to compensate victims or the dependants of the deceased. It is very important for a person to be aware of how the railway compensation tribunal functions as it may enable them to fight for their right to claim compensation from Railways due to any untoward incident.

This article is written by Richa Goel of Banasthali Vidyapith. In this article, she has discussed the Right to Information Act, 2005, various important Sections and criticisms of the Act.

Introduction

India is considered as the largest democracy in the world. The basic feature of every democratic setup is transparency, openness and accountability. In India, public authorities or administrative authorities have a wide discretionary power, so feeling has been arisen in the mind of legislators as well public that this may lead to misuse of power which will ultimately result in maladministration and corruption.

For this purpose there should be a right vested in the common people of the country to access the information regarding the conduct or act discharged by public officials, so the system of check and balance can be maintained. Therefore, Right to Information has emerged. Right to Information implies that the public can participate in governance by accessing the information held by administrative or public authorities regarding the function discharged by them for the public welfare.

It is not only a statutory right but also a fundamental right of a citizen to know the information related to the public act performed by public authorities. It is fundamental for good governance and makes governmental authorities more transparent and accountable towards the common people of a country. There is a proximate relation between Right to information and Administrative law as Administrative law can be defined as “branch of public law deals with the operation performed by administrative authorities”, and Right to Information empowers the public to access information held by public authorities.

Need

Right to information is the need of the current scenario because it assists to maintain transparency and accountability in government work. It helps to create a situation where the general public can get details of government action, plans, Yojana, schemes, etc., which aids to enhance the responsiveness of government towards society.

Right to Information Act in India took around 80 years to transform a grimy system of authority, valid by the “colonial officials secrets act”, where people can demand the “right to information”. India having a feeling of self-esteem in being the largest democracy, but with the passing of the recent enactment of the “Right to Information Act, 2005”. India has also become a strong democracy. The remarkable shift for Indian democracy, for the more access to the information by the citizen. Its “main focus on transparency and accountability in relation to the public authorities has been basically financed by the government”. Right to information has constitutional status, also it is enforced from Article 19 (1)(a) which talks about “fundamental rights of freedom of speech and expression”.

This Act is very necessary for each and everyone due to this our government officials and public institutions gathered information and work upon them. It embedded the right of every citizen of India to have access or control of the information related to finance to any authority by the state, thereby responsibility arises on the authority to use the information effectively without including into any corrupt activities. “In one of the cases, the Supreme Court of India ruled that every person has a right to know about expenses and assets against candidates for election, because these candidates offer the public services with their own desire so that they cannot demand exemption from any of the details related to assets or any charges against them.” According to the above case, not only candidates but a political parties, worship places, education centres, but even private schools and public companies fall under this Act.

The Mazdoor Kisan Shakti Sangathen (MKKS) was founded by social activists Aruna Roy and Nikhil Day in the year 1990 in the state of Rajasthen. This organization plays a very important role in the struggle of right to information. With the efforts of activists and international agencies, a large number of states enforced RTI Acts. They were Tamil Nadu (1996), Goa (1997), Madhya Pradesh (1998), Maharashtra (2000), Rajasthen (2000), Karnataka (2000 ), Delhi(2001), Assam (2002), and Jammu Kashmir(2003).

Features of Right to Information Act, 2005

Public authorities have a duty to provide any information which is claimed by a citizen.
Public authorities are under the obligation that they need to circulate the information to the person who demands the information. However, this Act comes with certain obligations relating to the security of the nation, personal information & other person’s information.
There is a time limit on the authority to give information within 30 days.
If the authority denies providing any kind of information then the person has the power to go to the appellate authority. Later they can also go for the second appeal which falls under the “central information commission/state information commission”.
Local court commands cannot be entertained in these scenarios.

There are 25 organizations which are exempted from the right to information under the “second schedule” of this Act. These include Central Economic Intelligence Bureau, Intelligence Agencies, etc., certain bodies which basically perform the research work with regard to the country’s security, special service bureau, narcotics control board, but RTI Act is not applicable to “Dadra and Nagar Haveli & Lakshadweep”. This Act has done marvellous work because it gives the path to access information which earlier remained secret. This Act impacted the system and the people both tangible and intangible. People use this activity as a tool to get their documents and avail services like “passport, death certificate, pension, birth, ration card and income tax return”.

Many people who are incapable, poor or physically disabled get benefits from this Act. RTI Act works with “administration in which there is more transparency with regard to the functioning of public bodies” due to which they maintain all records which are categories as the indexed. If transparency is removed or abolished from this Act then the chances of corruption practices increase and the delaying of work would become slower due to which lower investment means misuse of power, authority and the funds used for private purposes.

RTI helps the administration to take proper action and adopt a policy which helps the government to reduce corruption and work effectively. It also involves the selection of appropriate programmers to achieve government objectives. The largest indicator of “RTI Act” has slowly lowered the level of corruption in India.

Chapter 1 of this Act deals with the definition that is covered under this Act e.g. definition of “information”, “competent authority”, “state public information officer”, “Right to Information”, “public authority”, etc. Chapter 2 deals with the obligation of public bodies against the maintenance of books and records in their interest areas of work and the different procedures related to the application of information.

Section 8 is defined as “exemption from disclosure of information”. Sub-Section (1) states that Notwithstanding anything contained in this Act, there shall be no obligation to any citizen.

Disclosure of the information would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign States or lead to incitement of an offence.
The information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court.
Information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature.
Information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information.
The information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information.
Information received in confidence from a foreign government.
Information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes.
The information which would impede the process of investigation or apprehension or prosecution of offenders.
Cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: Provided that the decisions of the Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the 14 decision has been taken, and the matter is complete, or over: Provided further that those matters which come under the exemptions specified in this Section shall not be disclosed.
Information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied.

The above Section talks about the exemption in which public organization cannot disclose their information because that likely to threaten for the society and the parliament or not mandate to disclose. Only with permission, it can be disclosed.

Complaint

The Act also said that any person may file a written request to an officer (PIO) which is appointed by the authority which is covered by this Act. It is the obligation to entertain the request made by citizens. If the officer is not present then the applicant has the option to file a request in front of state or “central information commission”. It also provides a time limit so that the process can be done speedily. Different time limits are prescribed for different situations:

When an application is entertained by any PIO then they have an obligation to reply to the application within a time limit of 30 days and any application which is presented before assistant PIO must be replied to within 35 days.
The application transfers to another PIO in 30 days which starts or counts from the day on which its application is transferred.
Any application presented in relation to information regarding corruption by any schedule secured agency or any kind of violation of human rights which are covered under schedule II of RTI Act then reply must be given within 45 days with the permission of the central information commission.
PIO is required to give information which includes “right to life and liberty” of the person.

Any person can file an application on any matter which is related to RTI simply by making an account and pay a nominal amount for the filling of application. Right to information is not only a statutory right which emerged from Right To Information Act, 2005 but it is preexisted and considered as a fundamental right enshrined in Part III of the Constitution. Although it is not expressly mentioned anywhere in the Indian constitution but falls within the purview of “Freedom of Speech and Expression” and “Right to life and Personal Liberty”. Through Interpretation of the Supreme Court in various landmark Judgments, we can infer that Right To Information is Fundamental Right.

In the case of Bennett Coleman vs. Union of India[1], the Apex Court stated that “Right to information is our fundamental right falls within the purview of article 19(1)(a) of the Constitution of India”. In Express Newspaper Ltd VS. Union of India[2], the court observed that the foremost purpose of the right to freedom of speech and expression is that people should be able to form an opinion and freely communicate it to others.

In the case of SP Gupta vs. Union of India[3], the court observed that “It is a right of the public to get information regarding public functions performed by the public authorities and authorize public to access the information related to public transactions performed within the scope of the public act”. In RP Ltd. vs. Indian Express Newspaper[4], the court held that “Right to information is a basic right and falls within the purview of Article 21 i.e. right to life and personal liberty”.

In the case of People Union for Civil Liberties vs. Union of India[5], the Apex Court analyzed right to information in the light of human rights which is requisite for making administration and governance accountable and more transparent. Therefore from the above observation of the Supreme Court, we can say that Right to Information is our fundamental right.

There is a famous saying that ‘power corrupts and absolute power corrupts absolutely’. So, no right can be absolute in nature. Every right is subject to certain reasonable restrictions. Hence Right to information is also subject to reasonable restrictions given under Article 19(2) of the Indian Constitution. Certain exemptions from disclosure also given Under Right To Information Act, 2005 which are as follows:

The information which tends to prejudice the international relations, integrity and national security of the country;
The information which is expressly forbidden from disclosure by tribunals and court.
The information which related personal details and not in the interest of the public, and if there is access to information it may violate the right to privacy.
Information related to trade secrets, commercially confidential information and intellectual property.
Confidential information received from foreign government etc.

There is another issue also arise while exercising Right to Information that it may lead to invasion in right to privacy because both these rights are in conflict or position. On one side Right to Information empowers the citizen to access the information held by public authorities, on the other it restricts the access of personal information, therefore a balancing view can be adopted that Right to information cannot be exercised with regard to personal information until and unless it is important for public interest.

In India, the Democratic form of government has established which means that the government has to work according to the “will of the people’. The main focus of the government is to transform people’s will into their actions and take responsibility for it. This democratic system only works properly when people become more aware, alert, and conscious and get information about political agendas, policies, schemes, plans, Yojana, which is introduced by the government. Right to Information Act, 2005 trying to facilitate the general; public to access the information regarding government plans. Act provide modus operandi to acquire information and data related by the public office to affected parties, NGO, co-operation and the general public with the intention of social welfare.

What does it do?

Right to Information Act, 2005 promotes harmonious construction between people and the government of people. Earlier, where situation arose public officer became superior-oriented rather then service-oriented because there were no checks upon them regarding their services. But the RTI Act, provide a straitjacket solution to make public officer again service oriented. Now under RTI Act, people have right to get details of public authorities so, it creates a fear of exposing upon the mind of the public servant, which is changing the attitude of public officers towards their duties and responsibilities.

Role of Right to Information Act,2005 for Good Governance because RTI Act helps to improvement in accountability, the performance of government. The act facilitates a mechanism to access upon information by the public from public office. Any kind of administrative action or quasi-judicial judgment taken by any public authorities so, minute details are required to maintain. The general public or affected parties can collect that information from public office and time. Act also appreciates the participation of citizens in the decision making process. NGO, co-operation, institution or general people have right to get information regarding various yojana, plans, schemes, allocation of resources and funds by the government in a rural and urban area. With the help of those data NGO and social welfare, the institution gets an idea about the problem in the society and their solutions too. Act provides aids to reduce corruption in public offices, now the public officer is not utilizing the fund for their private use, and not abuse their public power.

Critical Appraisal of Right To Information Act

The RTI Act makes the right to information as a tool to check upon the misuse of the discretionary power of administrative authorities but it suffers from several drawbacks which weaken the position of the right to information. The drawbacks are as follows:

Section 2(h) defines the term ‘public authority’ but it does not give a comprehensive and exclusive definition of public authorities which might create confusion. The term ‘Public Authorities’ includes Non-government organization which are funded by the government either directly or indirectly but there are some NGOs which are funded by the public then the question has been arising that whether these NGOs falls within the category of public authorities or not. Temples appeared not as public authorities because they are funded by trusts but in many cases, the Supreme Court considered temple as public authorities. So, here also there is no clear picture in the Act whether the temples considered as public authorities or not.

Another loophole in this Act is absence of contempt provisions, this stated that the information commission shall be binding but the provision of ‘contempt of court’ is absent due to which it cannot force or compliance to the public to follow the rules. the absence of ‘contempt of court’ make the non-compliance of the order passed by the information commission .there must be provision insert in this Act.

And there is no penalty upon appellate authority, the applicant should receive the information requested in the RTI application within 30 days of receiving such application and within forty-eight hours in case of life and liberty as per Section 7(1) of the act. But if that limit exceeds or in no limitation time period this work not done then there is no proviso or concept introduced. It is necessary because it makes the whole process lazy and wasting without any penalty.

It provides that serviceman also become Central Public Information Officer [CPIO] even if they don’t have any knowledge about the Act and work still they appointed as the additional duty. As the dealing with the RTI application is necessary and the relevant information is required and dealing with the applicant is very crucial and important but the qualification of CPIO is not given and not mention anything about the qualification. And training should be provided to the fresher persons and the appellate authority and review them from time to time about the amendment test along with the training should also be conducted so they can get the information and knowledge.

There are various other loopholes in the Right to Information Act, 2005 which create hurdle in better administration and to fulfil the objectives of this Act. RTI Act, 2005 which ensure that information must be delivered to the public within 30 days of application and if the public officer fails to provide information within prescribed time so, the penalty will impose upon officers. It is not practically possible that in each case, that all the information is collected accurately within time, to the applicant. There are various factors which cause delay to deliver information like elections, holidays, emergency, disaster management, and old data from different branches which talk a long time to recover etc.

The information which is providing to the applicant can be any for either soft copy or hard copy. It is also not necessary that each public information office which is situated in hilly, rural and village area have the proper facility of fax, telephone, electricity, internet facility. Lack of infrastructure and facilities may also delay in delivery of information to the applicant. Now, a day’s people started misusing the information which is collected from the Public information office. The primary objective is to provide information for public welfare. But, in today’s era, the aim of the act is defeated and it is becoming the tool of the person with the malicious intention to harass their co-operation and blackmail their colleagues etc.

There are many provisions in RTI Act, which impose obligations, duties responsibilities as well as a penalty upon public officer but no provision for the appreciation for their hard works, which create a situation of de-motivation in the mind of public employees. Act also not provides any kind of protection to the whistleblower. Basically, Whistleblowers get information with the help of right conferred under the RTI Act, from public information office and give the report to Civil Vigilance Commission (CVC) about corruption, illegal works, malpractices etc. Whistleblower Protection Act is introduced by the government in 2014 but that Act has many loopholes and no proper protection provided to a whistleblower in RTI Act which makes the worst condition for a man who raises their voice against injustice. Poipynhun Majaw murder case (2018), Nanjibhai Sondarva murder case (2018), Bhupendra Vira murder case (2016), Nandi Singh murder case (2012) etc. are the example of whistleblower murder cases.

Conclusion

Right to information is a weapon in the hands of citizens of the country to know the functions performed by public authorities, the purpose of the public transaction said to done in the name of the public act and the source of finance to discharge such functions. Right to information exists before the enactment of Right to Information Act,2005 because it is considered as one of the fundamental rights within the purview of Article 19(1)(a). This right promote transparency, accountability in function discharge by public authorities. Although Right to information is considered as advancement in India it suffers from several drawbacks which need to be revised and improved.

References

1973 SCR (2) 757
On 8 January 1958
1982 2 SCR 365
1988 SCR Supl. (3) 212
13 March 2003

The article has been written by Subodh Asthana, a student of Hidayatullah National Law University currently studying in the second year. The author has discussed the custom as source of law.

Introduction

Ever imagined the situation when there were no codified laws, there can be several questions up to one’s mind like would it result to anarchy or how would you govern and regulate the particular class and sect? In ancient times when there were no laws, the people were governed by the customs prevalent in their particular community. Those customs were taken seriously by the community and were enforced and implemented on each and every community of that particular sect. Customs is a very authentic and binding source of law, because of the historic value they have.

Custom is a significant wellspring of law and it is attractive to characterize the equivalent. Custom has been characterized by different legal advisers according to their idea, getting, theories, views and beliefs. According to Salmond, “custom is the exemplification of those standards which have complimented themselves to the national still, small voice as standards of equity and open utility”.

According to Austin, “custom is a standard of direct which the sovereign watch suddenly and not in the compatibility of law set by a political superior. According to Halsbury law “A custom is a specific principle which has existed either really or hypothetically from time immemorial and has received the power of law in a specific territory, though in spite of or not steady with the general precedent-based law of the community”.

Usage of Custom as a source of law

Merely attaching the antiquity clause (i.e. a particular has been followed from time immemorial) doesn’t make it binding. Some of the differences between the application of usage and custom are as follows:

A customary custom or use which does not have outright authority is obviously discernable from a legitimate custom having a power of law.
A custom shall be binding if it is not proved that a particular sect is out of its scope and have no agreement regarding the same.
In the event that custom is a local custom, it is limited to a specific area then again, the utilization need not be kept to a specific region because it would be followed locally.
In that capacity, a ‘legitimate custom’ can’t be comprehended in the feeling of ‘use’ which is additionally founded on time immemorial yet it has not procured authoritative or required character nor a user can be practised starting at right inhering in one individual and official on the other against whom such use is guaranteed.
Custom to be substantial have been in usage from time immemorial. Use of late inception can be given impact by the courts on the ground that parties had contracted with reference to the use.
Local custom can undoubtedly criticize from or precedent-based law of the domain, yet not from drafted statute law. Utilization, notwithstanding can do as such to the extent to which it is conceivable to avoid the precedent-based law by explicit and express contract between the gatherings
In the event that in a specific case, customary law can’t be prohibited by express understanding, it can’t be rejected by use moreover. Be that as it may, custom can supersede the precedent-based law.
On satisfying the essential conditions, a customs works as a wellspring of law either for the whole network or the regional segment wherein it works. Utilisation just adds a term to its usage.
A trade use need not build up relic, consistency, and reputation, which are so necessary on account of custom.
A custom emerges out of its own power, though use does not appear out of its own power but rather is emerging out of an agreement between the gatherings. At the end of the day, a lawful custom has its very own free stand and isn’t an animal of understanding, then again a customary custom or use does not exist or emerge out of any lawful specialist autonomously possessed by it it is formed out of mutual understanding between the people

Types of Custom

Customs can be mainly classified into two types which are as follows.

Customs without sanction
Customs with sanctions

Further, these customs relating to sanction can be classified as follows:

Legal Customs
Conventional Customs

Legal Customs have been further classified as follows:

General Custom/ Customs for all
Particular Custom/ Local Custom

Customs without Sanctions

These are those customs which are merely non- directory. They are altogether seen because of the nearness of the general public beliefs which is contrary to the views expressed by Austin in his positivist theory.

Customs having Sanctions

These are the customs which have been implemented by the State. These customs are upheld by authorization by the different courts in their pronouncements.

Further, these customs have been classified as follows.

Legal Customs

The legal customs are those whose legal authority is absolutely unequivocal. These customs work as the coupling rule of law. They have been perceived by the courts and have turned into a piece of the tradition that must be adhered to. They are upheld by the courts in their judicial pronouncements. It is again classified as under.

Local Custom/ Particular Custom

A local custom is that which is practised in some characterized locality, that is, to an area, town or then again a zone. Be that as it may, they don’t infer land locality as it were. Some of the time, certain groups or families take their customs with them wherever they go. They also are called local customs. Consequently, in India local customs might be separated into two classes; Land local custom‘ and individual local custom. These customs are law just for a specific locality, sects or family.

General Customs/Customs for all

A general custom is what wins all through the nation and comprises one of the wellsprings of the rule that everyone must follow. As indicated by Keeton, ‘a general custom should likewise fulfil certain conditions on the off chance that it is to be a wellspring of law’. It must be sensible, pursued and acknowledged as official and ought not to be in contravention with the resolution law of the nation and must be in presence from the time immemorial.

Conventional Customs

A conventional custom is likewise called “use”. It is a setup whose authority is contingent on its acknowledgement and the organization in the agreement between the gatherings bound by it. In basic words, a conventional custom is a contingent and condition is that it will tie on the parties just, on the off chance that it has been acknowledged and consolidated by them in their agreement.

A conventional custom is authoritative on the parties not in light of any legitimate specialist, but since of the way that it has been explicitly or impliedly incorporated in an agreement between the parties so concerned. In the case of Asarabulla v. Kiamtulla, the Privy Council ruled that where the terms of the agreement are in contravention to the formed contract or agreement enforceable by law then, the same shall not be enforced by the law.

Essentials of Valid Custom

In order to enforce a valid, there are some essentials and grounds which will qualify as a valid custom and therefore could be recognized by judiciary and legislature. The grounds of valid custom as follows.

Antiquity

The primary trial of a legitimate custom is that it must be prevalent from time immemorial. It must be old or old and must not be of the ongoing source. Manu stated, “Immemorial custom is supernatural law”. Days of ancient times imply in the Civil law in the frameworks inferred consequently and initially implied in England and additional time is so remote that no living man can recollect it or give proof concerning it.

In England, a custom must be at the time of the rule of Richard I King of England”. That is in England the time period for a valid custom is 1189, for a custom to be viewed as substantial. The year 1189, was the main year of the rule of Richard I. In any case, the English principle of ‘immemorial inception‘ is not followed in India. In Gokul Chand v. Parvin Kumari, the Supreme Court ruled and denied to measure the validity of Custom from 1189 AD but stated explicitly that it must be of ancient and historical times.

Reasonability/No Arbitrariness

The second significant legal trial of a legitimate custom is that it must be reasonable. It must not be unreasonable. It must be helpful and advantageous to the general public. On the off chance that any parties face difficulties in a custom, the parties must fulfil and convince the court that a particular custom is unreasonable. This means the weight of evidence lies upon the individual who challenges the custom. To find out the reasonableness of custom it must be followed back to the season of its inception. The unreasonableness of custom must be great to the point that its authorization results in more prominent damage than if there were no custom by any means.

A custom ought to be viewed as adequately reasonable when it isn’t against the fundamental guideline of profound quality of the law of the state wherein it exists, standards of equity, morality and arbitrariness. It must not be generally rash, unforgiving or poorly arranged.

The Bombay High Court, in Narayan v. Living, held that a custom allowing a lady to forsake her better half at her pleasure and marry again without mutual agreement to be shameless and arbitrary on one spouse. The topic of reasonability is one of law for the court. The standard which the courts apply has been characterized by the Divisional Court of the King’s Bench in Produce Brokers co. vs Olympia oil and coke co., considered grounds of valid customs as “reasonable and legitimate and for example, sensible, genuine and impartial men”.

Continuance

A custom must be followed with consistency and in continuity from its inception. If it is proved otherwise that there were a break and a pause by a particular community in the following the custom in a court of law, then the court may have the discretion to get the custom annulled. Therefore a custom must be followed in consistency and continuity. In Hampton v. Hono, it was ruled that if a custom is not practised for a significant amount of time, then it would cease to exist as a valid custom.

Certainty

The most important test of a valid and essential custom is that a particular custom must be specific and less from ambiguity. If a particular custom is ambiguous, vague and not understandable by the parties then the particular custom will be declared as null and void by the court, the same was ruled by Privy Council in Wilson vs. Wilson.

Not opposed to Public Policy

Another test for the legitimacy of custom is that it ought not to be against public policy. This test might be incorporated into the trial of reasonability, as it is extensive term and it might incorporate public policy also. In Buldano vs Fasir, a custom, where a woman was allowed to remarry again during the lifetime of her husband was held to null and void by the court as it was against public policy.

Juridical Nature

A custom must be of a juridical nature. A custom must refer to legal relations. A mere voluntary practice not conceived of as being based on any rule of right or obligation does not amount to a legal custom.

No analogical deductions

Custom can’t be stretched out by analogy. It must be set up inductively, not deductively and it can’t be built up by earlier techniques. It can’t involve hypothesis yet should dependably involve reality. In like manner, one custom can’t be inferred and deduced from another custom. Custom in contravention to fundamental rights will be declared as null and void.

Conclusion

In the beginning periods of the general public, the customs were the most significant, and in some cases, the sole wellspring of law. The customs lie in the establishment of the entirely legitimate and lawful framework. They appear with the presence of the general public. Custom is the continuous practice with regards to the primitive society.

Custom is a standard or practice which is trailed by the general population from time immemorial. Customs are supported and are fused and exemplified in legitimate standards. The impact of custom can be followed in any legitimate and legal framework. Custom is a valid and authoritative source of law but the only condition is that it must be valid and a lawful custom.

This article is written by Sarabjit Singh, a student of Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting. He has discussed the procedure for getting a decree in redemption suits.

Introduction

Ordinarily ‘redemption’ means; ‘the action of saving or being saved from sin, error, or evil’. However, judicial courts are not equipped to decide such cases. So, we shall confine ourselves to the more pragmatic meaning ‘the action of regaining or gaining possession of something in exchange for payment or clearing a debt’; and this falls within the realm of our courts of justice. Considering that our rate of success shall be directly proportional to our knowledge on the subject matter. So, it is paramount to get down to brass tacks. To quote Neil deGrasse Tyson, “I know of no time in human history where ignorance was better than knowledge.”

Decree in redemption suit, when defined in layman’s language shall mean a process by which a borrower called mortgagor files a suit in a court of law for repossessing his immovable property that was earlier pledged as security with lender called mortgagee, for money. This shall fructify after payment of principal and interest due to the lender. Sections 58-104 of T.P. Act, deal with mortgages of immovable property and charges.

Relevant terminology

Before we embark on the journey of filing a suit for redemption, it shall be imperative to understand all the associated terms. Though, each of them is defined under ‘The Transfer of Property Act, 1882’. However, it shall be our endeavour to explain and understand the same in layman’s language. These terms are either directly or indirectly connected with redemption. For example, the word mortgage forms the foundation of suits for redemption. Similarly, foreclosure is part of redemption suits, and it is equally essential to understand subrogation and so on and so forth. So, lets us try to comprehend the infra words and phrases one-by-one.

Mortgage [S. 58 (a) T.P. Act.].
Types of mortgage [S. 58 (b) to (g) T.P. Act.].
Charge (S. 100 T.P. Act.).
Foreclosure.
Right to redemption (S. 60 T.P. Act.).
Persons who can sue for redemption (S. 91 T.P. Act.).
Maxim ‘Redeem up and foreclose down’.
Subrogation (S. 92 T.P. Act.).

Mortgage

The word mortgage and other related terms are defined in section 58 (a) of The Transfer of Property Act, 1882, and sub-clauses (b-g) describe the 6 different kinds of mortgages. Briefly, the difference in various kinds of mortgages is with respect to interests in the proprietary property that has been transferred by the mortgagor in favor of the mortgagee. Special emphasis is drawn to ‘Mortgage by Conditional Sale & Anomalous Mortgage’ as it shall have bearing on suits for redemption. Depending upon contents of the mortgage-deed there may be a clause to the effect that in case of a default in payments due by the mortgagor; the mortgagee shall reserve the right for filing a suit of foreclosure which shall then debar the mortgagor from redemption. Likewise, in the case of usufructuary mortgages while computing account due; rents and profits accruing from the mortgaged property shall be considered. Also, a passing reference can be made to the fact that as per section 96 of the ibid act mortgage by deposit of title-deeds is a ‘Simple Mortgage’ [Sec. 58 (b)]. The most salient feature of mortgage is the transfer of interest in mortgaged property from the mortgagor to mortgagee.

Charge

Most often title-deeds are held as security against default of payments. There is no transfer of any interest, thereby it is not a mortgage but charge. Extracted infra are some of the salient features that differentiate a mortgage from charge.

S.No.	Mortgage S.58	Charge S.100
1.	Security for repayment of a debt.	Also security; however it may or may not be debt.
2.	Transfer of an interest in immovable property, mandatory.	No transfer of interest.
3.	Can be created only by act of parties.	By parties or by operation of law.
4.	Creates a right in rem.	Only those having notice of charge are affected.
5.	A mortgagee can follow his security where-so-ever it goes. Even into the hands of a bona fide purchaser for value.	No such right is available.
6.	Can be enforced vide Suit for foreclosure under S.67, suit for money (S.69) or suit for sale (S.69)	Only by virtue of sale that too through court.
7.	Every mortgage is a charge.	Charge is not a mortgage.
8.	Simple mortgage is enforceable within 12 years, and others within 30 years.	Enforceable within 12 years, only.

Foreclosure

Foreclosure many-a-times is not only a part of redemption suit, but it precedes redemption. Simply put, it deprives the mortgagor of his inalienable right to redemption. It shall come into play only if there is a provision inscribed within the four corners of the mortgage deed stating unequivocally that upon default of payment; mortgagee shall reserve the right to sue the mortgagor for foreclosure. And if successful, mortgagor shall be foreclosed and debarred from redeeming his interest in the mortgaged property. However, it is only enforceable through a court decree, and the liability of mortgagor stands discharged and extinguished.

Right to redemption

Right to redemption as defined under section of 60 T.P. Act is a formidable right protecting the interest of mortgagor. Crux of it has been explicitly laid in paragraph 23 of the apex court judgment in case titled L. K. Trust vs. EDC Ltd. & Others.

“23. The mortgagor under Indian law is the owner who had parted with some rights of ownership and the right of redemption is the right which he exercises by virtue of his residuary ownership to resume what he has parted with. In India this right of redemption, however, is statutory one. A right of redemption is an incident of a subsisting mortgage and subsists so long as the mortgage itself subsists. The judicial trend indicates that dismissal of an earlier suit for redemption whether as abated or as withdrawn or in default would not debar the mortgagor from filing a second suit for redemption so long as the mortgage subsists. This right cannot be extinguished except by the act of parties or by decree of a court. As explained by this Court in Jayasingh Dnyanu Mhoprekar and Another Vs. Krishna Babaji Patil and Another, the right of redemption under a mortgage deed can come to an end only in a manner known to law. Such extinguishment of the right can take place by contract between the parties, by a merger or by statutory provision which debars the mortgager from redeeming the mortgage. The mortgagor’s right of redemption is exercised by the payment or tender to the mortgagee at the proper time and at the proper place of the mortgage money. When it is extinguished by the act of parties, the act must take the shape and observe the formalities which the law prescribes. A mortgage being a security for the debt, the right of redemption continues although the mortgagor fails to pay the debt at the due date. Any provision inserted to prevent, evade or hamper redemption is void. Having regard to the facts of the instant case, it is difficult to hold that the Respondent No. 3 had lost its right to redeem the mortgaged property or that by the acts of the Appellant and the Respondent No. 1, the right of the Respondent No. 3 to redeem the property was extinguished.”

Who can sue for redemption

After obtaining a basic understanding of the statutory provisions, the next logical step is to know who qualifies to sue for redemption. Perusal of S.91 reveals that the infra mentioned can file a suit for redemption under Order 34 of Civil Procedure Code, 1908. They are subdivided into two categories those having interest in mortgaged property and those devoid of any such interest.

Persons having interest in mortgaged property

Mortgagor.
Co-mortgagors, or any person who has interest in or charge upon the mortgaged property.
Or any person, who has a right to redeem the mortgaged property.

Persons having no interest in the mortgaged property

Any person who stands surety for the payment of mortgage debt.
Any creditor of mortgagor.,
Creditor with a decree for sale of the mortgaged property.
Legally appointed person, to pay debts of deceased mortgagor.

What is subrogation

This is the right occasion to discuss the word ‘subrogation’ as it also relates to redemption. Subrogation as defined under the Black’s Law dictionary, ‘the substitution of one person in the place of another with reference to a lawful claim, demand or right, so that he who is substituted succeeds to the rights of the other in relation to the debt or claim, and its rights, remedies, or securities’. Alternatively, subrogation means ‘substitution’ but upon venturing into legal terminology it is ‘the right of a person to stand in the place of a secured creditor. And this person can be anyone other than the mortgagor, including co-mortgagor who, for any reason or interest, redeems a share in the mortgaged property, while keeping the security alive. The party who pays off the mortgage gets clothed with all the rights of the mortgagee i.e. redemption, foreclosure or sale of mortgaged property.

Referring to S. 92 of T.P. Act defining subrogation, a subtle difference can be observed between paras 1 & 3. Para 1 relates to any person except mortgagor who redeems property subject to mortgage, while in para 3 it is a person who has advanced money to the mortgagor, and by virtue of this act full share of that mortgagee is redeemed. Under such circumstances right of subrogation shall be transferred in the favor of lender only after written consent of mortgagor vide registered instrument.

Lastly, as enunciated in para 3 of section 92 of T.P. Act, it needs mentioning that subrogation is only possible so long as there is only redemption of mortgage and not redemption of the mortgaged property. For then all rights shall stand extinguished and there shall be none to whom the person advancing money could be subrogated. This fact has been illustrated in case titled Raja Janak Nath Roy vs. Raja PramathaNath Malia. Extracted infra is relevant portion from paragraph 22.

“22. ……..This contention, however, loses sight of the distinction between the redemption of a mortgage and the redemption of the property mortgaged. In their lordships’ opinion, it is clear that the words in the Section ” mortgage has been redeemed ” refer merely to the payment off of the mortgage money and not to an extinction’ of the mortgagees’ rights over the mortgaged property. If such rights had become extinguished there would be none to which the person advancing the money could be subrogated…..”

Redeem up foreclose down

Lastly, coming to the maxim, ‘Redeem up and foreclose down’, which means that whenever there are more than one mortgagee, the later mortgagee can redeem only those prior to him and foreclose those after him.

Synopsis, suits for redemption

Procedure for filing mortgage suits is governed by Or. 34 CPC. To begin with, ‘…..all persons having interest in the mortgaged-security or in the right to redemption shall be joined as parties’ For the mortgagor it is a property of which he is the natural owner, and wants to redeem it at all costs, while for the mortgagee it is simply a security to safeguard his investment.

Plaintiff shall plead for the redemption of his mortgaged property since he is ready to pay all dues to the mortgagee. After the court is so satisfied, it shall pass a preliminary decree. Directing that accounts be taken to ascertain the due amount, which may include principal and interest on mortgage, income if any received from the mortgaged property(usufructuary), costs, charges and expenses incurred, and account of any loss or damage to the mortgaged property etc. To accomplish this task, court may invoke its powers to appoint a commissioner (Or. – 26), or the same can be set in motion on application of either of the parties to the suit.

On submission of commissioner report to court, it shall declare the due amount and countersign it. The plaintiff is required to deposit such sum within 6 months. However, the time can be extended provided good cause is shown, subject to the fact that final decree has not been passed yet.

Similarly, defendant is also directed that on plaintiff’s payment of due sum, he shall deliver to the plaintiff all such documents in his possession relating to the mortgaged property, and additionally do all such acts necessary to restore the plaintiff with the mortgaged property free of all encumbrances.

However, if the plaintiff fails to pay the due sum, the defendant shall exercise his right to apply for final decree praying for foreclosure or sale depending on the terms inscribed in the mortgage deed viz mortgage by conditional sale, or an anomalous mortgage.

In spite of all the above, the court may allow the plaintiff to redeem his property under the infra mentioned two circumstances.

Plaintiff pays all dues before the passing of the final decree of foreclosure, and so informs the court. The court shall accordingly order the defendant to free mortgaged property from all interests in his favor.
Final decree may have been passed ordering sale of the mortgaged property, but the sale is yet to be confirmed. Before that happens here again, if the plaintiff clears all dues then the defendant shall do his part and free the mortgaged property of all legal restrains.

With regards to cases wherein plaintiff fails to pay the due sum, and the court has ordered foreclosure or sale of the whole or part property. Pertaining to the later, any money deposited by the purchaser in court i.e. prerequisite 5% of the sale amount, but the sale is yet to be confirmed. Now in such circumstances, if the plaintiff wishes to redeem his property, he will be required to pay both mortgage sum and prerequisite purchase money deposited into court.

In cases, where sale proceeds obtained after selling the mortgaged property are not enough to pay off all dues. The court shall on the application of an execution application, decree recovery of balance amount provided it is legally recoverable.

Alternatively, in cases where after finalization of accounts due, it is found that there is nothing due from the plaintiff or the defendant has been overpaid, then the court shall decree recovery of such excess amount.

While decreeing costs of suit etc. the conduct of the mortgagee shall be the deciding factor. If in the opinion of the court it is seen that the mortgagee’s only aim is to deprive the mortgagor of his inalienable right to redeem his property, it shall not award costs. Interest to be charged on all due sums shall be as per agreement between the two parties or @ 6 % per annum.

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 skill.

This article is written by Shreya Tripathi of Banasthali Vidyapith, Jaipur. In this article she discusses Breach of Contract, remedies related to it and types of damages.

Breach of Contract

When any contracting parties or two different people who want to deal for any business transaction whether, for car selling or purchase of a house etc., it can be any reason, then both the parties sit together with documents and explain their point of view to each other with specified terms and conditions.

Let’s take an example. Mr ‘X’ wants to purchase a car and the dealer wants to sell the car. The buyer wants to know in how many days will he receive the car or how he has to make payment. Also in further slot how much amount he needs to pay and at the same time dealer also wants to know how he will receive the payment amount and whether in a lump sum or in installments. So, as we see both the parties have discussed there points and will be obliged to follow the conditions.

Here, the dealer and the buyer, both have some of the rights and obligations attached. The buyer has the right to receive the car and ownership right over the car and is obliged to make payment at the specified time. The seller has the right to receive the amount made for the purchase of the car and he is obliged to transfer the possession of the car to the buyer.

This important element makes the agreement a valid contract and, the receiving item by both the parties is known as Consideration.

What is Breach of Contract?

Let us “Breach of Contract” with this example. The date was fixed by both the parties for performing that is on 12th June 2019, the seller will give or make the whole payment and the dealer will pass the car to seller person but suddenly on 7th June 2019, the seller deny from doing the payment before the date of performance. This is known as Breach of Contract. Breach of Contract has 2 kinds of breach-

Anticipatory breach
Actual breach

Where the party breaks, cancels or terminates the contract before the due date, it is known as Anticipatory Breach under Section 39 of the Indian Contract Act. When the breach of contract is performed on the fixed due date it will be known as Actual Breach.

Anticipatory means that you are foreseeing it. That means you know that you cannot perform but when before the contract becomes due. Now, in this case this if the promisor breaches the contract it will become an actual breach. We know that we will not be in a situation to do something on a future day or we might think that he has agreed to do the contract at a very low price and at that price possibility may incur a loss. So, he goes to the promissory and says that he will not be able to start the contract on the due date and he communicates the refusal before the due date.

Remedies against the guilty party

Rescission- The very first remedy for breach of contract is Rescission. When one party breaks the contract then other parties can treat it as revocation, so the party will be liable to pay compensation for damages to suffering party.
Suit for Damages- The compensation for the damages occurred by the aggrieved party will be in monetary form. The object is to recover the loss of aggrieved party rather than punishing the defaulted party in breach of contract.
Suit for Specific performance- Under this case specific performance means seeking an order from the Court that the promising part of the contract should be carried on further. In certain cases where the damages caused due to the breach of contract cannot be measured in terms of monetary value, then Specific performance should be given by the Court of law.
Suit for Quantum Meruit- If one party is preventing or defending other party form completing his obligation under the contract form by both the parties, the aggrieved party may claim for the payment by the part of a contract which he already performed.

For example, a contractor who has started the work and later he has to stop the work because the other party to the contract breach it, here contractor will be liable to receive compensation in the form of Quantum Meruit.

Damages of Contract

Damages, in a simple language, refers to a form of compensation due to a breach of contract. As explained by Fuller and Perdue, damages may seek protection for an exception, restitution and reliance interest.

Let’s say ‘Y’ has to supply 10 bags to mangoes to ‘Z’ for Rs. 10 per bag now, ‘Y’ cancel the contract and said ‘Y’ don’t have bags to deliver but ‘Y’ has contracted with someone else to deliver the bags of mangoes and he purchased the bags from the market but the price has reached peak now ‘Y’ will get purchase at a high price and he suffered the loss of Rs. 5 on every bag of mango. This amount of loss is called Damages.

What is Liquidating Damages?

Liquidating damages are ascertained in the contract while framing the contract, we have to ascertain the situation where the contract is breached and if the contract is breached what will be the expected estimated loss to either party has to be calculated. If this loss is estimated in itself before the performance date, what is the likely loss to either party and when this estimated is put into the contract itself it is called as Liquidating Damages. So, the party now become liable for liquidated damages.

Ordinary damages

The actual loss which the aggrieved party has suffered in the normal ordinary course of business.

Illustration– I have given the example above of bags of mangoes Rs. 5 is the actual loss per bag if ‘Y’ is suffering this loss will be called Ordinary loss because this is the actual loss ‘Y’ is suffering this is not the estimated loss. So, this difference between the two.

So, which one of these will be incurred when the situation of breach will arise? Liquidated damages are decided by both parties, it is ascertained, estimated and put into the contract by both parties.

However, ordinary damages are actual damages that the aggrieved party has incurred because of the breach of contract. The court will award Ordinary damages to the aggrieved party because in liquidating damages it is the estimated loss and court cannot go ahead the estimated loss, the court will always see what is the actual loss the party is suffering from and the actual loss is Ordinary loss which will award the damages to him. The Court is not much worried about liquidating damages he is more concerned about actual damages.

Special damages

Special damages occur in special circumstances only like ordinary damages have been in the ordinary course of business special damages occur in a special situation only. It is not the loss which occurs in an ordinary situation.

Illustration Let’s say ‘X’ agreed to supply 100 bags of wheat to ‘S’ but due to riots in the city ‘X’ couldn’t supply bags of wheat. Now, this is not an ordinary transaction, this is a special event. So, in this case, the Court will investigate that the special event is directly responsible for the breach of contract. So, the Court appoint an officer to investigate more to find the correct and accurate piece, if the cause of the breach of contract is directly related to it then the Court might award special damages otherwise getting the special damages is not the exclusive right. Like ordinary damages are the right of the aggrieved party whatever loss he has suffered it will get but special damages get in a special situation so it might not get in all the situations. Some of the examples of Special damages are:

Loss of business opportunities, contract and profits.
Damage or loss to business reputation.
Loss of time and other inconveniences.
Loss from Operating revenues.
Loss of business product and properties.

For example, in the above illustration if both the party estimated loss and took the difference of Rs. 5 per bags but if he has to suffer the loss of only Rs. 1 per bag then he has to the faceless amount of loss and the particular amount will be recovered under Special damages.

In Cedrick Makara vs. Newmark Realty, Makara claim compensation as he hurt his thumb while leaving the restroom at his workplace, due to injury he was not able to come for 6 months for work. The injury was so bad that he required surgery and jury awarded him a compensation of $ 2 as compensatory damages for pain and suffering and $2,00,000 under special damages for any kind of medical need he might be required in future.

In the case of Bret Michaels vs. CBS, a celebrity sued a company over an accident. At the Tony Award Broadcast in 2009, he was not guided in a correct way on how to exit from the stage due to which he was hit by a set piece in his head and he broke his nose and suffered from a brain haemorrhage. The court has given the decision in favour of Michael but the compensatory and general damage amount was not disclosed in public.

Am I entitled to Special Damages?

Usually, special damages do not occur in a normal situation, failing to request for special damages will occur in losing the right of special damages by the non-breaching party. In order to receive Special damages, some essentials need to be fulfilled.

Foreseeable- The loss can be easily predicted by the parties at the time of forming a contract.

Flowing from the Breach- The losses should not be the direct and ultimate consequences of the breach of contract. Some sort of connection should be present between the breach and losses.

Calculable– Since special damages are not given under the situation of the ordinary contract it is difficult to calculate the loss amount.

For example, the loss incurred due to business reputation to an individual cannot be calculated. It should be calculated during the time of the formation of the contract.

Are Special Damages different in Tort?

Under tort and personal injury also, the claim can be made for special damages. However, in a different condition both damages can be claimed under a contractual term decided by the parties.

For example, special damages claim under personal injury can be easily calculated or determined as it refers to tangible damages and in case of general damages it becomes difficult to determine the pain or suffering faced by an individual. As you can easily observe that below this situation it’s the complete opposite in claim in contract cases. It is important to note down the change because many contract claims include issues also. Thus, the amount of damages recovered by the plaintiff directly depends to attempt that under which head they will file for the violation in contract claim or tort.

Special damages are determined on the market value at the time of the loss arose. But in case of tort claim, the attorney may try to secure the claim by special damages. Such as:

Replacement of damaged property.
Medical expenses.
Loss of wages.
Cost related to home care or domestic services.

In the case of tort claim under general damages, it has a different meaning. It consists of losses which are hard to determine. Such as:

Physical injury or disfigurement.
Mental stress.
Lower the living standard of life.
Anxiety.
Emotional distress like sexual harassment.

Conclusion

In the breach of contract, the suffering party will recover his loss by claiming under compensatory damages, general and special damages in case of Contract and Tort issues. It is very important to note down the difference between General and Special damages under Contract and Tort issues. Special damages are given under special circumstances, it cannot be given in any ordinary situation. In case of tort issues, the general damages cannot be easily determined and in cases of special damage, under personal injury, damages can be easily ascertained by taking into consideration the amount of loss such suffered.

Lɪᴠɪɴɢ ᴡɪᴛʜᴏᴜᴛ Lᴀᴡ ɪs ʟɪᴠɪɴɢ ᴡɪᴛʜᴏᴜᴛ Fʀᴇᴇᴅᴏᴍ

JAY FANASIA

Articles

What is meant by issue of commission by the Court?

Who can appoint a commissioner?

Who can be appointed as a commissioner?

What is the procedure for appointment of commissioner?

When can a commissioner be appointed by the Court?

To examine witnesses: Order 26 Rule 1-8

Appearance is exempted if:

To make local investigations: Order 26 Rule 9-10

To adjust accounts: Order 26 Rule 11-12

To make partition: Order 26 Rule 13-14

To hold investigation: Order 26 Rule 10-A

To sell the property: Order 26 Rule 10-C

To do ministerial work: Order 26 Rule 10-B

Powers of the commissioner: Order 26 Rule 16-18

Whether the commissioner will be entitled to a Remuneration?

What are the limitations on the commissioner?

What is the evidentiary value of the report submitted by the commissioner?

What are the key takeaways?

References

Introduction

Origin

Purpose of the principle

When it can be claimed?

Effect of function

Rules of Natural Justice

Nemo Judex In Causa Sua

Type of Bias

Personal bias

Pecuniary bias

Subject matter bias

Departmental bias

Policy notion bias

Bias on the account of the obstinacy

Audi Alteram Partem

Components

Exceptions

Applicability

Reasoned Decision

Conclusion

Reference

Introduction

Schools of Jurisprudence

Philosophical School

Grotius

Hobbes

Locke

Hegel

Rousseau

Kant

Historical School

Volksgeist Theory

Realist School

Sociological School

Analytical School

Conclusion

PCA (Prompt Corrective Action)

Strategic Debt Restructuring

NPA – Non Performing Assets

ROA – Return on Assets

Mezzanine financing

ECBs (External Commercial Borrowing)

Bridge loans

Revolving credit

Debt Covenants

Debt financing

Corporate guarantee

Letter of Credit (“LOC”)

Shadow banks

Term loan

. Cash credit

Green banking

Consortium lending

Syndicate loan

Letter of commitment

Multiple banking arrangements

What are wetlands and why do we need to conserve them?

What is the Ramsar Convention?