Criminal law in Canada essentially governs all criminal procedures, evidence, investigations, and substantive law about all sorts of crimes in the country. Criminal law, in essence, covers all matters and instances of conduct that are prohibited by law, and not adhering to which can cause repercussions and be stated as a criminal offense.

These laws are put into place keeping in mind the safety and security of the general public, protecting societal norms and morals, and protecting people’s lives, property, and peace. They also focus on the protection of law and order in all public and private institutions and the overall preservation of the state. 

If you are someone interested in understanding Canadian criminal law or what a criminal lawyer in Canada navigates through , keep reading to find a brief guide and introduction:

Provincial vs Federal: Who does what?

While the constitution of Canada rests the power of forming criminal laws and procedures with the federal government, provincial governments also have the power regarding creating laws on certain subjects. However, if the statutes for provincial offenses ever contradict those of federal statutes, the latter always prevails in determining the verdict for the offender. 

Additionally, while provincial governments are charged with the responsibility of policing, hiring prosecutors, and handling administrative works in courts, federal governments are responsible for the appointments of supreme and county court judges. 

Can laws in Canada be changed? 

Laws pertaining to criminal offenses in Canada are also subject to amendments in light of changing societal values such as laws relating to sexual offenses and marriage. They may also change in light of technological advancement such as laws regarding telecommunication, identity theft, and credit card fraud.

Recently, there have been large-scale changes in sentencing in Canadian courts, and much more changes are anticipated. Due to growing awareness in Canadian society regarding the benefits of sentencing offenders with sentences other than imprisonment, these changes have been presenting themselves in courts. Sentences that feature rehabilitation and community service are now preferred over capital punishments.

What is the presumption of innocence?

Under Canadian criminal law, every criminal proceeding and case begins with the essential presumption that the individual that stands on trial is innocent. If court cases begin with the belief that the accused is guilty, the proceedings would be unjust. Counsels that represent the overall community are hence then held responsible to prove beyond a reasonable doubt whether or not the accused party is guilty.

Another concept related to the presumption of innocence is due process, which essentially refers to the thorough examination of all facts of each case. Due process ensures that the legal rights of all parties involved in a case are protected and that no undue damage is done to any party.

What is meant by an independent judiciary?

Any individual who is accused of a crime reserves the right to have their plea and their case be decided by an independent and impartial judge. That is to say, the judiciary should be independent of all other branches of the government so that any verdict or sentence is not influenced by any other irrelevant party in any way.

While decisions under an independent judiciary may not always make all parties happy, judicial systems must run inherently to ensure the safeguard of Canadian law. Canadian courts also believe in the openness and accessibility of courts which ensure public confidence.

Conclusion

The Canadian criminal code and pertaining laws have been established keeping in mind the safety and security of Canadian residents and the public. All of these laws have been put into place after careful consideration, and this is proven by Canada’s high rehabilitation rate for criminal offenders. 

A controversy is raging in America over Justice Alito's leaked draft judgment proposing to overturn the US Supreme Court's verdict in Roe vs Wade delivered in 1973 regarding the right of abortion.It is believed 4 other judges in the court intend to concur with Justice Alito, making it a majority judgment.

I believe Justice Alito's view is correct,and would like to give my reasons. Of course it is only a draft opinion, but knowing the judicial philosophy of the majority judges it is highly likely it will be confirmed in the final verdict.

In Roe vs Wade the US Supreme Court set up a trimester system of pregnancy in women. In the first trimester ( the first 3 months of pregnancy ) no restrictions could be placed on a woman to abort. In the second trimester, too, abortion was permissible, though the state could put some restrictions e.g. it should be done by qualified medical personnel, in licensed clinics, etc.In the third trimester no abortion was permissible unless a qualified doctor certified that the life of the woman would be in danger without abortion.

In Planned Parenthood vs Casey, 1992, the right to abortion enunciated in Roe was accepted, but the trimester system was replaced by the viability test ( i.e. at what stage of the pregnancy would the foetus be able to survive outside the woman's womb ), and the undue burden test ( i.e. does the restriction on abortion place an undue burden on the pregnant woman e.g. taking the husband's consent ).

I am not going into the questions as to when does life begin, when is a foetus viable, what are undue burdens, etc. My simple point is that under the separation of powers theory ( that each of the 3 organs of the state have their own spheres of operation and should not encroach into each other's domains ), it is for the legislature, not the judiciary, to make laws, and both Roe vs Wade as well as Planned Parenthood vs Casey made laws.

I am personally in favour of the right to abortion, but then this right should be enacted by the legislature, not created by judges. There is nothing specific in the US Constitution which gives a right to abortion. Some states in America have enacted this right, but others have not.

The rights of people in the US Constitution are mentioned in the Bill of Rights and several Amendments to the Constitution, e.g. the 14th Amendment, but the right to abortion is nowhere contained therein.

Of course there is a theory of 'unenumerated rights', i.e. there are some rights which though not expressly mentioned in the Constitution can be said to be part of it, but I do not subscribe to this view. To accept it would mean that any judge, according to his whim and fancy, can declare anything as an 'unenumerated right' and enforce it. This would lead to chaos.

In his book, ' The Nature of the Judicial Process ' Justice Cardozo of the US Supreme Court observed " A judge is not a Knight Errant roaming at will in pursuit of his own ideal of beauty and goodness ".

In his dissenting judgment in Griswold vs Connecticut, Justice Hugo Black warned that ' unbounded judicial creativity will make this Court a day to day National Convention '.

In Lochner vs New York the celebrated Justice Holmes of the US Supreme Court in his dissenting judgment criticised the majority of the court for becoming a super legislature by inventing a 'liberty of contract' theory thereby enforcing its particular laissez faire economic philosophy.

The job of a judge is to interpret the law made by the legislature, and apply it to specific cases, but not to make law. Roe vs Wade ( and Planned Parenthood vs Casey ) clearly made law, which was the function of the legislature. Hence it should be reversed.

By Justice Markandey Katju, Former Judge, Supreme Court of India

Lok Adalat has no jurisdiction to decide a matter on merits

The Lok Adalat is a dispute resolution procedure used as an alternative to the traditional court system. To put it another way, it is one method of settling disagreements. It is a venue for the peaceful resolution of disputes/cases pending in a court of law or at the pre-trial stage. Lok Adalats have been accorded legal recognition under the Legal Services Act passed in 1987. A judgment made by Lok Adalats is considered a public court decision and is final and enforceable by all parties. A Lok Adalat verdict cannot be challenged in a court of law because of the Act's provisions.

The Apex Court, in Estate Officer vs. Colonel HV Mankotia (Retired) in Civil Appeal No. 6223 of 2021, delivered a clear and convincing judgement on October 7, 2021, stating unequivocally that Lok Adalat has no authority to rule on the merits if the parties are unable to achieve a compromise or agreement between the parties. It should be noted that an Apex Court bench comprised of Justice MR Shah and Justice AS Bopanna said that the Lok Adalat's jurisdiction would be to determine and reach a compromise or settlement between the parties to a dispute. Following an examination of the provisions of the Legal Services Authorities Act, 1987, the Apex Court also observed that the Lok Adalat's jurisdiction would be limited to determining and reaching a compromise or settlement among parties to a dispute, and that if the aforesaid settlement / compromise fails and no compromise or settlement can be reached between the parties, the Lok Adalat must return the case to the Court from which the reference has been received for disposal, i.e. the High Court.

The original writ petitioner filed this appeal in light of his dissatisfaction with the impugned order dated 30.11.2013 passed by the Madhya Pradesh High Court, Indore Bench in Writ Petition No. 8074 of 2011, in which the Lok Adalat members considered the merits of the writ petition and dismissed it on those grounds.

The following is stated in para 2.1: "Following that, the appellant filed a restoration appeal before the High Court, contending that the order made in the Lok Adalat is beyond the Lok Adalat's authority and, thus, is not valid in the eyes of the law." However, the High Court denied the application, resulting in the current appeal.

The Bench addresses the issue in para five, stating that: "The brief question before this Court is whether, in the Lok Adalat convened by the High Court, was it permissible for the Lok Adalat members to consider the merits of the writ petition and to dismiss it on those grounds in the absence of any settlement between the parties? The Bench states in para six that: In determining the question mentioned above, the relevant sections of the Legal Services Authorities Act, 1987, which would have had an impact on the Lok Adalat's jurisdiction, must be resorted to, which are as follows: -

Following Section 19, sub-section (5), a Lok Adalat has the authority to determine and reach a compromise or settlement between the parties to a dispute in respect of any case pending before it; or any matter falling within the jurisdiction of, but not filed in any court for which the Lok Adalat is responsible;

Sub-section (1) of Section 20 provides that, in any case referred to in clause I of sub-section (5) of Section 19: I (a) the parties agree, or I (b) one of the parties makes an application to the Court for referring the case to the Lok Adalat for dispute settlement, and the Court is prima facie satisfied that there is a possibility of settlement; or I (ii) the Court is satisfied that the matter is appropriate for the Lok Adalat to take cognizance, the Lok Ad

Furthermore, the Act states that no matter shall be submitted to the Lok Adalat under sub-paragraph (b) of clause I or clause II by such Court unless and until the parties have been given a fair and timely chance to be heard.

According to sub-section (3) of Section 20, when a case is referred to a Lok Adalat according to sub-section (1) or when a referral is made under sub-section (2), the Lok Adalat shall proceed to resolve the case or issue and reach a compromise or settlement between the parties. Additionally, sub-section (5) of Section 20 provides that if the Lok Adalat does not make an award because no compromise or settlement could be reached between the parties, it shall return the case record to the Court from which the reference was received under sub-section (1) for disposition in accordance with the law.

According to the provisions of the Act, the Lok Adalat's jurisdiction would be to determine and reach an agreement on a compromise or settlement between the parties to a dispute, and once the settlement above / compromise fails or if no agreement on a compromise or settlement could be reached between the parties, the Lok Adalat would be required to return the case to the Court from which the reference had been received for disposal in accordance with the law.

Accordingly, the Bench concluded in paragraph 9 that, "In light of the above, the challenged decision rendered by the Lok Adalat rejecting the writ petition on merits is unsustainable and needs to be overturned and set aside." According to the experienced counsel appearing on behalf of the respondent, once the case was referred to the Lok Adalat with permission, the Lok Adalat was justified in disposing of the matter on merits. However, his contention is devoid of substance and must be dismissed entirely by the Court. The agreement to bring the case before the Lok Adalat was made to facilitate settlement and/or compromise between the parties, rather than to bring the matter before the Lok Adalat to adjudicate it on its merits. As indicated in Section 20's sub-section (5), if the parties fail to reach a compromise and/or settlement before the Lok Adalat, the case must be remanded to the Court from whence the matter was referred to Lok Adalat for determination on the merits.

As a result, the impugned judgement of the Lok Adalat, Madhya Pradesh High Court dated 30.11.2013 in Writ Petition No.8074 of 2011 is quashed and set aside. The matter has been remanded to the High Court, which will decide the merits of Writ Petition No. 8074 of 2011 in accordance with the law. As a consequence, the appeal before us is allowed. No costs order will be made based on the facts and circumstances of the case. Any outstanding petitions must also be dealt with.

Finally, the inevitable conclusion from the above reasoning is that the Lok Adalat lacks jurisdiction to hear the issue on its merits if the parties cannot negotiate a compromise or settlement. This is precisely what the Apex Court Bench of Justices MR Shah and AS Bopanna declared unequivocally, as previously discussed in detail above.

*****

Early disposal of pending cases by the High Court – Time limit to dispose Civil Cases

In multiple cases across multiple courts, the constitution of India recognises the need and right to speedy justice, which can only be achieved by quick disposal of cases from the court. In the past years, there has been an increase in the sudden need for speedy justice due to the increasing number of pending cases at all levels of the judiciary, starting at the lowest and going up to the Supreme Court. The Supreme Court has recognised a matter of fundamental right as a speedy trial, but there is no such redressal. By 2021 more than four crore cases were pending in the Subordinate courts.[1] There is a state of helplessness amongst the courts and the people due to the lack of a substantial number of judges and the large pendency of courts. The concept of speedy trial roots in the idea of a reasonably expeditious trial that follows all the essentials of a trial but is faster than the usual course of litigation. In this case, the judiciary would need centuries to clear its backlog. With the tremendous backlog in pending cases, the legal and judicial systems have agreed that the judicial system cannot cope until the number of judges is expanded by two or three. It looks as though it has been decided that a legal system capable of delivering timely justice is improbable.

Speedy justice and judiciary

Lord James Bryce once said that “There is no better test of excellence of a government than the efficiency of its judicial system, for nothing more merely touches the welfare and security of average citizen than his sense that he can rely on the certain and prompt administration of justice”.[2] Faith in the judiciary as an essential organ of the government stems from its cost-effective, accessible and speedy administration of justice. Speedy justice should create a sense of security among the citizens by assuring them that the one who does the wrong or goes against the laws of the country will be punished, and all their just grievances will be redressed so that they may not be tempted to resort to violent self-help and take law in their own hands.

The courts and tribunals of the country, in multiple cases, have established that it is essential as a matter of right of its people that speedy justice is rendered to them. However, to put into the context the utter practicalities of the functioning of the courts, the case is subjective, and so is the idea of speedy justice. This idea or right of speedy justice is primarily discussed in the context of Criminal cases, especially when imprisonment or custody is involved. It is crucial and necessary to maintain a reasonable balance between the considerations of speed and justice. A speedy trial of cases favours both the prosecution and the accused. It favours the prosecution as it does not face the problem of the disappearance of witnesses, evidence, etc. And it is in favour of the accused because if he is innocent, he will not suffer for a more extended period.  There have been cases in the past that have emphasised the need and importance of the right to Speedy justice: -

1.      In the case of Vakil Prasad Singh v. State of Bihar[3], the court has emphasised the judicial protection of the right enshrined in the constitution under Article 21 through speedy investigation and speedy justice. They believed that it is essential for the right to life and personal liberty to be protected, especially in the judicial sense and, as previously mentioned, to put into context the criminal cases pending before the courts.

2.      In the case of Santosh De v. Archana Guha,[4] the court observed that the case had been going on for 14 years, and hence, they were quashed. Furthermore, there was an unexplained delay for eight years, and the court held that it infringed the right to a speedy trial. This case well explained the need for speedy justice in such cases where there is no advancement in the proceedings for an extended period, and the accused/convict has been suffering due to the lag in the proceedings in regards to their case, which violates a person's fundamental right to life and personal liberty.

3.      In the case of Raghubir Singh v. State of Bihar[5], the court held that the infringement of the right to speedy trial could not be inferred merely from delay in the police investigation. The court pointed out that the delay was due to the nature of the case and the general situation prevailing in the country. Through the way of this case, the court rightly mentioned the need for more judges throughout the fraternity along with better redressal mechanisms and alternate redressal forums for disputes of different regards so that it can reduce the burden of the courts and increase their efficacy of work along with the lessened pendency of the cases and better quality of the judgement, since, the court will have more time to pay attention to disputes grave in nature.

Assume an in-depth examination of the evolution of swift justice. In that case, it highlights a highly pertinent and unresolved issue of pendency and a sense of confusion among the courts regarding the gravity of cases and which ones do and do not require a more rapid functioning of the law, which is caused by the judiciary's overwork at the subordinate levels. As a result, measures were enacted allowing a party to petition the High Court for an order directing the early disposition of a matter in the interest of expedited justice.

Procedure to move to HC for fast disposition of a case

There have been multiple tries to lessen the burden of the courts and the pendency of the trials, so there has been increasing focus on the idea of speedy justice in recent times. Such emphasis on this matter was done taking the help of the upper courts to help with the problem of delayed justice.

In the case of Anil Rai v. State of Bihar,[6] the Hon’ble Supreme Court laid down that if the judgment, for whatever reason, is not pronounced within six months, any of the parties to the case shall be allowed to bring an application before the Chief Justice of the High Court with a motion to withdraw the said matter and to hand it over to any other Bench for new arguments. It is up to the Chief Justice to grant the abovementioned petition or give such a different ruling as he thinks proper under the circumstances.

Sethi, J., has enumerated certain points as remedial measures that have to be considered as instructions for courts to be followed that are:

1.      Appropriate directions to the Registry may be issued by the Chief Justice of the High Court; in cases where a judgement is reserved and subsequently pronounced, a column be added to the judgement on the first page, after the cause-title, where the date of reserving the judgement and the date of pronouncing be separately mentioned by the court officer concerned.

2.      The Chief Justices of the High Courts should instruct the Court Officers/Readers of various Benches in the High Courts to provide a list of cases in which the reserved judgments have not been pronounced within that month.

3.      The concerned Chief Justice will bring the pending matter to the attention of the concerned Bench if the judgement is not pronounced within two months after the conclusion of the arguments. The Chief Justice may also determine that it is necessary to circulate the statement of such cases in which judgments have not been rendered within six weeks of the conclusion of the arguments among the High Court Judges for their information. This type of communication is sent in a sealed envelope with "confidential" written.

4.      Where a judgment is not pronounced within three months from the date of reserving judgment, any of the parties in the case is permitted to file an application in the High Court with prayer for early judgment. As and when filed, such application shall be listed before the Bench concerned within two days, excluding the intervening holidays.

Application to be made to the HC

A person can file an early application before the High Court, seeking to dispose of a certain case within a specific time limit. The High Court can give directions to the subordinate to dispose of the case quickly and can even prescribe directions to the subordinate to conclude a case within a certain time limit.

After receiving such directions from the High Court, the subordinate court considers such a case as a priority case and will make sure that such a case is disposed off at the earliest, without compromising the due care taken by the courts and following the requisite procedures. However, an exemption to this clause exists if the matter has been pending before the court for an extended period of time and has been stagnant or if the case has made no definitive progress.

The stage of the case is also essential because the application can only be moved after evidence has been gathered, cross-examination has been completed, and the case has reached its final argument stage. The Constitution of India under Article 227 empowers every High Court should have authority over all courts and tribunals in the territories over which it has jurisdiction.

Karnataka Case Flow Management Rules

The said circular bears No. LAW 294 LAC 2005 dated 18.03.2006 issued by Law, Justice and Human Rights Secretariat, Government of Karnataka, Bengaluru

SIMILAR RULES ARE FRAMED BY ALL THE HIGH COURTS
the Karnataka High Court has launched the Case Flow Management system.

The Karnataka (Case Flow Management in Subordinate Courts) Rules 2005, as it is called, was gazetted by the State Government almost two years ago. Subsequently, the High Court framed the rules applicable to all suits and civil proceedings before the subordinate civil courts and tribunals.

It divides cases into four tracks. 

Disposal in 9 months:

In Track 1 the High court has included suits on maintenance, child custody, appointment of guardians and wards, visiting rights, letters of administration, succession certificate, recovery of rent and permanent injunction. All cases under this category will have to be disposed of within nine months.

Disposal in 12 months:

In Track 2, cases on execution, divorce and ejectment will have to be disposed of within 12 months.

Disposal in 24 months:

Cases to be disposed in 24 months relate to partition, declaration, specific performance, possession, mandatory injunction, appeals, damages, easements, trade marks, copy rights, patents and intellectual property rights. 

Disposal in 24 months:

Cases that are not in any of the three categories are included in the fourth category and they too have to be disposed of in 24 months. The presiding officer, however, has the right to dispose of the case earlier. 

The rules prescribe a mandatory time limit for various court procedures such as issue of summons/notices. Proceedings shall indicate a maximum of 30 days for filing statement or objection from the date of service.

The procedures for IAs and interim orders and reference to mediation, conciliation or Lok Adalat, appointment of commissioners for recording of evidence, proceedings for perjury, adjournment and even first appeals have also been spelt out.

Conclusion

To conclude, it is essential to mention that inordinate delay has become a common feature of the Indian legal system. There is a need to enact a new comprehensive law on the speedy trial of cases, and laws should be suitably amended to achieve the object of speedy trial of offences. There should be an awareness campaign for speedy trials of offences.

Delay in the dispensation of justice is not good for any society. It leads to distress, damage, and resentment. It can ultimately lead to anarchy and chaos. As a result, people take the law into their hands and try to be vigilant. So justice in general and speedy justice, in particular, is essential for the system to survive and run.

******

[1] https://prsindia.org/policy/vital-stats/pendency-and-vacancies-in-the-judiciary.

[2] https://thenationonlineng.net/imperative-of-an-independent-judiciary/.

[3] Criminal Appeal No. 138 of 2009.

[4] 1994 SCR(1) 549, 1994 SCC(2) 420.

[5] 1987 AIR 149, 1986 SCR(3) 802.

[6] Appeal (crl.) 389 of 1998.

The world revolves around the motto of 'pay and work.' All big multinational companies or small businesses work on this. They hire people, pay them, and get the required work. This payment is a reward for a worker, which depicts his hard work and perseverance. Money a person, earns manifests his struggle and endeavor. 

The company pays a person throughout his working period. However, that person also receives some cash to bid farewell when he retires. That gesture of gratitude by the company could be either money, land, or any reward. This monetary benefit that a person gets is his legal right not only granted by the company but by the government also. Hence, he must get what he deserves. If he has to opt for the path of negotiations, then he mustn't be reluctant to do so. 

What is a severance package? 

A severance package is an individual's payment when he leaves the company or gets retirement. This financial benefit would help him live the rest of his life with ease. This accord that a person makes with his company is negotiable. A person must know that this package would provide him with a financial cushion and relieve his stress. Hence, he must know his legal rights and should never hesitate to procure them. 

A severance package includes a whole sum of payment that a person gets when he leaves employment. The company gives him a pension plan and stock options. The company also gives him employment opportunities by helping him get a new job to earn his bread and butter. 

What is included in the severance package? 

A severance package is a complete package that guarantees individual financial security for the rest of his life. The package includes the following reliefs for the retiring or leaving employees: 

• A whole lump sum of money is given to an employee when he leaves the job

• A person gets monthly income in the form of a pension. 

• Employee unused sick days or holiday pay is also given at the end.

• He also receives insurance and medical facilities. 

• A stock option is given to him.

• The company also carries the responsibility to seek a job for its leaving employees.

Negotiating your severance package

Only a few of the employees know that the severance package is negotiable. A person could do this negotiation with the company if he knows the valid route to carry out this discussion well. Following are some guidelines that will illustrate how a severance package should be negotiated authentically and legally: 

A deep understanding of the severance package

A person should know what is included in his severance package. If he has inadequate information, he cannot forward his proposal and preferences. Initially, he must know the approximate pension after retirement, his share of stock, his unused holidays, etc. He must gather all his facts and figures and prepare a rough report on them. 

A planning

A person should prepare in advance for well-led negotiations on a severance package. He must prepare a list of his future financial needs. Evaluate the severance policy of the company. He may take assistance from the former employees of the company. Furthermore, he must prepare a list of points that he thinks are negotiable with the company.

Hiring a labor lawyer

Labour lawyers take cases related to disputes between the employees and employers. They could lead the negotiation by working as a mediator among the parties. If the employee cannot understand the language of the severance accord or if the agreement is several pages long, he could hire a labor lawyer. The lawyer could help in understanding that accord from a legal perspective. He would ensure the application of laws related to a severance package. In this way, the person would get the required money that he deserves. 

Seeking unemployment insurance.

This point must be negotiated well with the company as he is unemployed and needs another job. Hence, according to unemployment insurance, the company will bear its expenses for around 26 weeks. 

Conclusion

A severance package ensures financial security. As it is a legal right of the employee, he must get what he deserves. In the context of above mentioned guidelines, it is crystal clear that it is the right of the employee to negotiate on those points which are his right. Hence, he should strive to procure benefits to earn a good living.

When is a gig worker working? Is it only when they’re driving with people or goods in their car? What about time when they’re on their way to a pickup, especially if it’s in a different neighborhood or city? And what about so-called ‘idle time,’ when a worker is available to accept a job?

The answer, if you look closely at the state-level laws in place in California and Washington, is: all of them, maybe… sometimes? The law has effectively equivocated by using different definitions for ‘working time’ for different purposes, and in different states. As a result, this has created a labyrinth of laws that gig workers need to navigate to understand what they’re entitled to.

There are several other issues with these laws, such as Washington’s preemption of local laws on gig workers, the poor state of healthcare benefits, and California requiring a supermajority to amend its law. But in this article, we’ll investigate some of these big discrepancies in the way that ‘working time’ is defined across and within these laws.

A Brief Breakdown of Work Time

Researchers have already documented the different components of work time for active drivers (once they mark that they are “Online” on their app). For example, in order for Seattle to set minimum pay standards for rideshare companies in 2020, it commissioned an academic study of rideshare drivers and their effective pay. We can glean a lot of interesting statistics from it. As expected, nearly half of drivers’ time is spent in passenger time, or time when the passenger is physically in their car. The other half of the time is formed by dispatch time (when a driver has accepted a trip and is en route to a pickup) and platform time (when a driver is available but in between trips).

Lok Adalat has no jurisdiction to decide a matter on merits

The Lok Adalat is a dispute resolution procedure used as an alternative to the traditional court system. To put it another way, it is one method of settling disagreements. It is a venue for the peaceful resolution of disputes/cases pending in a court of law or at the pre-trial stage. Lok Adalats have been accorded legal recognition under the Legal Services Act passed in 1987. A judgment made by Lok Adalats is considered a public court decision and is final and enforceable by all parties. A Lok Adalat verdict cannot be challenged in a court of law because of the Act's provisions.

The Apex Court, in Estate Officer vs Colonel HV Mankotia (Retired) in Civil Appeal No. 6223 of 2021, delivered a clear and convincing judgement on October 7, 2021, stating unequivocally that Lok Adalat has no authority to rule on the merits if the parties are unable to achieve a compromise or agreement between the parties. It should be noted that an Apex Court bench comprised of Justice MR Shah and Justice AS Bopanna said that the Lok Adalat's jurisdiction would be to determine and reach a compromise or settlement between the parties to a dispute. Following an examination of the provisions of the Legal Services Authorities Act, 1987, the Apex Court also observed that the Lok Adalat's jurisdiction would be limited to determining and reaching a compromise or settlement among parties to a dispute, and that if the aforesaid settlement / compromise fails and no compromise or settlement can be reached between the parties, the Lok Adalat must return the case to the Court from which the reference has been received for disposal, i.e. the High Court.

The original writ petitioner filed this appeal in light of his dissatisfaction with the impugned order dated 30.11.2013 passed by the Madhya Pradesh High Court, Indore Bench in Writ Petition No. 8074 of 2011, in which the Lok Adalat members considered the merits of the writ petition and dismissed it on those grounds.

The following is stated in para 2.1: "Following that, the appellant filed a restoration appeal before the High Court, contending that the order made in the Lok Adalat is beyond the Lok Adalat's authority and, thus, is not valid in the eyes of the law." However, the High Court denied the application, resulting in the current appeal.

The Bench addresses the issue in para five, stating that: "The brief question before this Court is whether, in the Lok Adalat convened by the High Court, was it permissible for the Lok Adalat members to consider the merits of the writ petition and to dismiss it on those grounds in the absence of any settlement between the parties? The Bench states in para six that: In determining the question mentioned above, the relevant sections of the Legal Services Authorities Act, 1987, which would have had an impact on the Lok Adalat's jurisdiction, must be resorted to, which are as follows: -

Following Section 19, sub-section (5), a Lok Adalat has the authority to determine and reach a compromise or settlement between the parties to a dispute in respect of any case pending before it; or any matter falling within the jurisdiction of, but not filed in any court for which the Lok Adalat is responsible;

Sub-section (1) of Section 20 provides that, in any case referred to in clause I of sub-section (5) of Section 19: I (a) the parties agree, or I (b) one of the parties makes an application to the Court for referring the case to the Lok Adalat for dispute settlement, and the Court is prima facie satisfied that there is a possibility of settlement; or I (ii) the Court is satisfied that the matter is appropriate for the Lok Adalat to take cognizance, the Lok Ad

Furthermore, the Act states that no matter shall be submitted to the Lok Adalat under sub-paragraph (b) of clause I or clause II by such Court unless and until the parties have been given a fair and timely chance to be heard.

According to sub-section (3) of Section 20, when a case is referred to a Lok Adalat according to sub-section (1) or when a referral is made under sub-section (2), the Lok Adalat shall proceed to resolve the case or issue and reach a compromise or settlement between the parties. Additionally, sub-section (5) of Section 20 provides that if the Lok Adalat does not make an award because no compromise or settlement could be reached between the parties, it shall return the case record to the Court from which the reference was received under sub-section (1) for disposition in accordance with the law.

According to the provisions of the Act, the Lok Adalat's jurisdiction would be to determine and reach an agreement on a compromise or settlement between the parties to a dispute, and once the settlement above / compromise fails or if no agreement on a compromise or settlement could be reached between the parties, the Lok Adalat would be required to return the case to the Court from which the reference had been received for disposal in accordance with the law.

Accordingly, the Bench concluded in paragraph 9 that, "In light of the above, the challenged decision rendered by the Lok Adalat rejecting the writ petition on merits is unsustainable and needs to be overturned and set aside." According to the experienced counsel appearing on behalf of the respondent, once the case was referred to the Lok Adalat with permission, the Lok Adalat was justified in disposing of the matter on merits. However, his contention is devoid of substance and must be dismissed entirely by the Court. The agreement to bring the case before the Lok Adalat was made to facilitate settlement and/or compromise between the parties, rather than to bring the matter before the Lok Adalat to adjudicate it on its merits. As indicated in Section 20's sub-section (5), if the parties fail to reach a compromise and/or settlement before the Lok Adalat, the case must be remanded to the Court from whence the matter was referred to Lok Adalat for determination on the merits.

As a result, the impugned judgement of the Lok Adalat, Madhya Pradesh High Court dated 30.11.2013 in Writ Petition No.8074 of 2011 is quashed and set aside. The matter has been remanded to the High Court, which will decide the merits of Writ Petition No. 8074 of 2011 in accordance with the law. As a consequence, the appeal before us is allowed. No costs order will be made based on the facts and circumstances of the case. Any outstanding petitions must also be dealt with.

Finally, the inevitable conclusion from the above reasoning is that the Lok Adalat lacks jurisdiction to hear the issue on its merits if the parties cannot negotiate a compromise or settlement. This is precisely what the Apex Court Bench of Justices MR Shah and AS Bopanna declared unequivocally, as previously discussed in detail above.

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When the owner of a vehicle allegedly implicated in cattle smuggling was acquitted by the trial court under Madhya Pradesh Prohibition of Cow Slaughter Act, 2004, the Supreme Court stated that confiscating the vehicle would be arbitrary deprivation of property and it would infringe his right provided under Article 300A of the Constitution. The truck was allowed to be released by Supreme Court.

The counsel for the appellant Mr. Pulkit Tare, Adv. Submitted that the confiscation of the vehicle is unjustified because the allegation of slaughter is not proved and the criminal proceedings have culminated into acquittal. Further, Article 300-A of the Constitution of India provides that no person shall be deprived of his property save by authority of law. Therefore, for the State to deprive any person of their private property, it is necessary to establish, (a) that the said property was illegally obtained; (b) is part of the proceeds of crime; (c) the property has become a Government property under the process of law.

“In the present case, the appellant’s truck was confiscated on account of the criminal proceedings alone and therefore, under the applicable law, the vehicle cannot be withheld and then confiscated by the State, when the original proceedings have culminated into acquittal, ” the Apex court observed.

"In a case where the offender/accused is acquitted in the Criminal Prosecution, the District Magistrate should consider the judgement given in the Criminal Trial when deciding the confiscation proceeding," the bench of Justices KM Joseph and Hrishikesh Roy observed.

Abdul Vahab's appeal against the Madhya Pradesh High Court's decision was allowed by the Supreme Court.

Even after the accused individuals were acquitted from the criminal case, the High Court of Madhya Pradesh upheld the orders of the lower courts, holding that the District Magistrate did not make an error in ordering the truck's confiscation. 

The Supreme Court stated that in cases when the offender/accused is acquitted in a criminal prosecution, the District Magistrate should consider the criminal trial result while resolving the confiscation process.

The truck owner filed a petition in the High Court of Madhya Pradesh under section 482 CrPC, in which the High Court asserted the orders of the forums below, while holding that the District Magistrate made no error in ordering the truck's confiscation, even after the accused persons in the criminal case were acquitted.

The appellant has challenged a confiscation order issued by the District Magistrate of Agar Malwa on 09.08.2017 for the appellant's truck, seeking to exercise powers under Section 11(5) of the MP Prohibition of Cow Slaughter Act, 2004 and Rule 5 of the M.P Govansh Vadh Pratishedh Rules, 2012. The Court of Additional Commissioner, Ujjain, upheld the confiscation order on 22.9.2018. In the Criminal Revision, the Additional Sessions Judge, Ujjain dismissed the Revision Petition contesting the confiscation judgement.

The appellant's truck, which was loaded with 17 calves, was stopped, and the driver, Surendra, and one other person, Nazir, who was sitting in the truck, were arrested. Following that, a case was filed at Police Station Kannad in the district of Agar Malwa for violations of Sections 4 and 9 of the 2004 Act, as well as Section 11 (d) of the Prevention of Cruelty to Animals Act, 1960 (for short, 'the 1960 Act'). The truck was seized, and the accused, including the truck owner, were charged with the offences.

The trial determined, however, that the prosecution had failed to prove the primary element of the accusation, that the calves were being transported "for the purpose of slaughter," and that no violation had been committed under the Act.

Significance of a Police Clearance Certificate (PCC) in a pending Accident Case

A Police Clearance Certificate (PCC) is an official document issued by the Indian Police or government authority in India. It acknowledges any criminal records that an individual may have against their name and, if such records are clear, it issues a clearance certificate, which may be required for Indian or foreign citizens who are currently or have resided in India for the following reasons:

1. Pursuing professional positions that need independence;

2. Looking to relocate or obtain visas for other countries;

3. Taking care of an organization's demand;

A PCC from India does not have the time of legitimacy to back up its assertion. For the most part, it is legal for six months.

A valid Police Clearance Certificate, whether for employment, study, or travel, indicates that the individual has no criminal convictions throughout their time or stay in the country. Assume the individual was involved in criminal activity or were apprehended due to a law violation in any manner. In that instance, specific notices from the concerned country will appear on their PCC, including the infringement details. Therefore, possessing a Police Clearance Certificate demonstrates their morality and prudence as guests or residents. Employers and travel specialists may raise concerns if they cannot provide PCC, implying that they are unlikely to be well-behaved citizens of the country.

Definition of Petty case as per Karnataka Police Act

Many sections in the Motor Vehicle Act are compoundable. It means if you commit a traffic violation, are booked for the same, and if the offence is compoundable, you can pay fine and get the case closed. Since you have paid fine, doesn’t seem it would affect you in anyway.

Alternative Remedies to come out of pending Moto Vehicle Accident Cases:

Alternatively if offences are punishable under sections of 278, 279 and 304A of Indian Penal Code, then the accused may approach the Hon’ble High Court by filing quashing petition under section 482 of Criminal Procedure Code by convincing the complainant and thus such case may be quashed getting clear acquittal for getting PCC.

1) Having a substantial criminal record: If a person has been punished or incarcerated, their PCC will reflect this. It is essential to note that being held for more than a year may affect police checks. Additionally, outstanding advances or service bills would make obtaining a PCC more difficult.

2) Association with a criminal organization: If a person is a member of an association, club, or sorority and has a criminal past, this may impact the credibility of their PCC. Any contribution to the gathering, especially those involving criminal activity, may arouse suspicions.

3) Record of unethical behaviour: A person's lengthy-time records demonstrate their upstanding reputation as a resident. If the experts believe that they are not decent or may threaten the country in any way, shape, or form, they are authorized to reject a police leeway declaration. Individuals seeking an Indian PCC can be divided into the following categories according to their nationality and present residence:

a) Indian citizens residing in India;

b) Indian nationals residing outside of India;

c) Nationals from other countries who have settled in India;

d) Indian citizens residing in India.

For Indian citizens living in India, the Indian government has modified the PCC application process to a self-improved approach in which individuals may apply for a PCC online through the Passport Seva Kendra (PSK).

In the case of Biju T.C. vs The Station House Officer[1], the Kerala High Court ruled that police officers could not refuse to issue a Police Clearance Certificate (PCC) to a citizen based on his involvement in a criminal case and that the PCC must be given after considering the case's nuances. Justice K Vinod Chandran issued the decision after reviewing an appeal filed by T.C. Biju of Airport Nagar in Vappalassery, Ernakulam. Biju is a taxi driver employed by Cochin International Airport Ltd (CIAL), and CIAL has requested that he construct a PCC to continue working there.

As a result, Biju documented a request before the Nedumbassery police headquarters sub-monitor to get the PCC. Despite this, PCC was denied to him because he was involved in a criminal case. Following this, Biju filed an appeal before the high court, questioning the Police's denial of PCC and designating the sub-overseer and Ernakulam country S.P. as inverse responsible for the situation.

In contrast to the Police's argument that PCC cannot be granted to people involved in criminal proceedings, the court ruled that if the applicant is engaged in wrongdoing, authentication must be provided specifying the nature of the crime the solicitor is involved in. The police authorities cannot refuse the applicant's testimony.

Minor traffic offences (such as speeding and running a stop sign or red light) are often dealt with separately from more severe law violations. Minor tiny criminal offences are punished less harshly, and the judicial procedures are less formal. Furthermore, the municipal court, which hears minor traffic violations, is separate from the criminal court in many jurisdictions.

In the case of The State of Arunachal Pradesh vs Ramchandra Rabidas[2], the Supreme Court ruled that a person who commits offences under the Motor Vehicles Act, such as speeding and reckless driving, can also be charged under the Indian Penal Code because both statutes operate independently. It went on to say that, as India's mechanization accelerates, the number of street traffic accidents and fatalities will rise. A panel of Justices Indu Malhotra and Sanjiv Khanna overturned a December 22, 2008 judgement of the Gauhati High Court holding that an individual was arrested for over-speeding, dangerous driving, and other connected offences under the Motor Vehicles Act could not be charged under the IPC. While, according to Section 6 of the Passports Act, 1967, an individual's identity application may be denied if they have a criminal past or have proceedings pending. It is possible to ensure that they are available for the preliminary duration. If they were involved in a criminal investigation, but the accusations against them were dropped, they may be required to submit an endorsement stating the same. It will also cover circumstances when warrants have been issued in their name.

 In any event, Commissioner of Police Dr K Venkatesham warned in 2018 that traffic offenders in Pune would not receive a police declaration (PCC), which is required to obtain a visa. PCC is also required by many firms when employing new employees. Venkatesham stated that they were compiling a list of traffic offenders and would forward their information to the appropriate authorities, adding that such individuals would not be given a PCC.

Road accidents have been a significant source of concern in India; therefore, individuals should double-check and follow traffic laws. A Police Clearance Certificate is essential since it demonstrates that a person does not have a criminal record and also assists an individual in establishing their innocence. However, the procedure of obtaining a PCC certificate is complex, so it is always advisable to contact a professional who can lawfully get such a certificate. In criminal cases, where the hearing is ongoing in court, the Police will refrain from immediately giving a PCC for obtaining a visa until the judgment has been given and the accused has been acquitted.

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[1] WP(C). No. 14360 of 2015.

Digital Rupee – It’s Understanding

Central Bank Digital Currency (CBDC), as per the Reserve Bank of India (RBI), is a digital representation of legal tender money issued by a central bank. It is a digital version of the Indian Rupee, fiat currency. Consequently, it may be traded for fiat money on a one-for-one basis. Fiat money is a type of currency that the government of a nation issues. Historically, it was distributed by banknotes and coins. It is regarded as legal currency and may be used to purchase and sell goods and services. Governments and financial organisations have transitioned away from physical fiat money and toward a credit-based fiat paradigm in which balances and transactions are recorded digitally.

According to Union Finance Minister (FM) Nirmala Sitharaman, the Reserve Bank of India (RBI) would establish a central bank digital currency (CBDC) around 2022-23. This is the Union government's first official statement on the much-anticipated digital money.[1]

According to the FM, the development of CBDC would improve the digital economy and be based on blockchain technology. Despite the central bank's opposition to private virtual currencies, the Reserve Bank of India (RBI) has previously declared that CBDC is on the cards.

Given India's world-class digital payments infrastructure, the FM believes that the introduction of CBDC will further strengthen India's position as a digital economy.

The current buzzword in the realm of digital assets is Central Bank Digital Currency (CBDC). According to a BIS poll from 2021, 86 per cent of central banks were exploring the possibilities of CBDCs, 60 per cent were experimenting with the technology, and 14 per cent were conducting trial programmes.[2]

CBDC, being a digital representation of fiat money, may seem to be comparable to its decentralised equivalent, Bitcoin. There is, however, a technical difference between the two. While CBDCs and Bitcoin are built on distributed ledger technology (DLT), the former is distinguished by permission identification. The permissionless blockchain of Bitcoin enables any user to run the programme and execute transactions, while CBDC's permissioned blockchain operates as follows:

• In the case of a CBDC, the DLT includes several copies of financial records of transactions, rather than a single central database;

 • Each copy in this ledger is maintained and held by a separate financial company, which in turn is supervised by the country's Central Bank. These organisations collaborate on distributed DLT.

• The central monetary authority maintains control over access to the blockchain containing financial data, which may be viewed or changed by only a select few.

How does the digital rupee work?

A CBDC is a digital version of fiat currency that will make transactions more convenient. CBDC was previously described in a paper by the RBI as a "secure, resilient, and convenient alternative to physical currency." According to the RBI, it can also take on the complicated shape of a financial instrument, depending on numerous design decisions. The digital rupee will represent real currency issued by the Reserve Bank of India and guaranteed by the sovereign. By contrast, a government or central bank does not ensure cryptocurrencies and may function as an asset class or a payment system.

How is CDBC different from cryptocurrency?

CBDC is a public cryptocurrency, not a private cryptocurrency. It is a digital type of legal tender instead of private virtual currencies. Private virtual currencies are opposed to the traditional understanding of money. Because they have no intrinsic worth, they are not commodities or claims on commodities. In contrast to Bitcoin, Ethereum, and other cryptocurrencies, the government will support the digital rupee. Since the government backs the digital rupee, it will have inherent worth. Possessing a physical rupee equivalent will be comparable to holding a digital rupee.

Types of CDBC:

1.      Retail CBCDs – Retail CDBC is the most common type of CBCD. Individuals, homes, and businesses may all benefit from CBCDs.

2.      Wholesale CBCDs: Wholesale CBCDs are intended for financial firms to employ.

According to the Reserve Bank of India (RBI), technological breakthroughs are rapidly changing the payments environment, encouraging central banks throughout the world to contemplate using technology to create fiat money in digital form. Central banks throughout the globe are now examining the advantages of digital currencies in terms of financial inclusion, economic development, technology, innovation, and improved transaction efficiency. The Reserve Bank of India has stated that a feasibility study on forming a government-backed digital currency is conducted.

1- Real-time money transfer: Without the need for intermediaries such as banks, money transfers and payments may be made in real-time from the payer to the payee.

2- Easy currency tracking: When a country implements CBDC, its central bank will trace the precise location of each unit of currency.

3- Income Tax: Tax evasion and avoidance will be nearly impossible, as tactics such as offshore banking and unreported employment will be unable to conceal financial activity from the central bank.

4- Combating Crime: Criminal acts such as terror funding, money laundering, and so on may be readily identified and stopped.

5- A modern alternative to physical cash: Central bank-issued digital currencies would give a modern alternative to physical currency.

6- Seigniorage revenue: The issuance of digital money would prevent governments from losing seigniorage income if physical cash disappeared. The discrepancy between the value of currency/money and the cost of production is called seigniorage. It is the profit the government earns from money printing.

7- Volatility: CBDCs will be tied to assets like gold, so they will not experience the same level of volatility as cryptocurrencies.

In May 2020, China began testing the Digital Yuan (Digital Renminbi) (RMB). CBDC research and pilot trials have begun in Canada, the United States, and Singapore, among other places. In addition, with the introduction of new-age financial goods, China and the US are vying for market dominance, and India may become engaged in this digital proxy war.[3]

Furthermore, in India, there is a significant disparity in the number of bank accounts and mobile phone connections, which CBDC may be able to close.

1-      The Digital Rupee gives India the potential to build the Digital Rupee as a superior currency for commerce with its strategic partners, eliminating India's reliance on the dollar.

2-       It would also assist India in combating malpractices such as tax evasion, terror funding, money laundering, and other financial crimes, as the central bank will monitor each unit of digital currency.

3-      The CBDC will give the RBI more influence over monetary policy. Instead of depending on commercial banks to make modifications when they see appropriate, these consequences of monetary policy may be promptly reflected.

4-      It would also enable the RBI to track transactions and credit flows across the Indian economy, eliminating scams and frauds in real-time and protecting depositors' funds.

5-       CBDC will also divert investors' attention away from the existing high-risk crypto assets.

6-      It will also transform every significant technology firmly into a fintech firm, eliminating the need for authorisation or a bank collaboration. It will give financial support to those at the mercy of banks and provide incentives for businesses.

7-       It will also use programmable smart contracts to make loans, insurance, stocks, and other financial products a natural extension.

The notion of a central bank digital currency, or CBDC, has piqued attention throughout the world, with most central banks actively studying and examining CBDCs, which experts believe might be the currency of the future.

The Reserve Bank of India (RBI) is in the process of developing a staged implementation approach for a CBDC, with the pilot expected to begin by the end of this year.

Mihir Gandhi, partner and leader–payments transformation, PwC India, and Vivek Belgavi, partner and leader, fintech, PwC India, have published a paper titled 'Central Bank Digital Currency in the Indian Context,'[4] in which they analyse several CBDC concepts and use cases.

In the Indian context, the financial advice company has outlined four significant CBDC use cases.

1.      Payments that can be programmed- CBDC might be used to create 'fit-for-purpose' money that can be used to pay for social benefits and other specific payments in a country. In such circumstances, the central bank can pay pre-programmed CBDC to the authorised recipients, which can only be used for a certain purpose. For example, pre-programmed CBDC might be delivered as a direct benefit transfer for LPG subsidies (DBT).

2.      Cross border remittance- CBDCs might be utilised for speedier cross-border remittance payments, according to PwC India. Collaboration among the world's major economies, including India, might aid in the development of the essential infrastructure and arrangements for CBDC transmission and conversion.

3.      Payments in the retail sector- Payment instruments might be accessible for CBDC-based payment transactions. Furthermore, a CBDC's universal access features might include making payments offline. CBDC's underlying technology, along with the currency's digital character, makes it superior to existing digital payments, according to PwC India. Because of its irrefutable character can give irrefutable proof of ownership when paired with ownership record transfers.

4.      MSME financing- With the aid of CBDC, instant financing to micro, small, and medium companies (MSMEs) in India is available. Banks will create a more realistic borrower risk profile as more MSMEs employ CBDC. This may be utilised to address MSME finance needs quickly. Furthermore, the central bank may promptly transfer stimulus to MSMEs, according to Gandhi and Belgavi in their article. Cyber-attacks and threats, danger to monetary sovereignty, disintermediation of banks, the risk to financial inclusion, and harm to privacy are all possible hazards, according to PwC India.

The Digital Rupee will assist RBI in attaining financial inclusion, transitioning to a cashless society, and lowering the cost of producing and managing currency, among other things. As a result, establishing a Digital Rupee is required since it will empower citizens and enable them to build the digital economy, effectively ending the present banking system.

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