As scenes of chaos, misery and rapidly mounting death tolls emerged from China in December 2019 the world watched in concern. Covid- 19 was first detected in China's Hubai province, but by January 2020, the World Health Organization had declared the Novel Corona Virus outbreak as a public health emergency. This was the viral spread of this potent virus, which was detected in at least 29 countries as of February 2020. Covid-19 has rapidly evolved from a local threat to a global one with tragic human losses which take precedence over its economic impact. Nevertheless, severe economic losses were triggered by the extraordinary steps taken to contain the virus outbreak such as workplace shutdown, disruption of production, closures of ports and suspension of air travel. The pandemic creates a profound impact on industrial sector and underlying contractual relations. It has often been highlighted that historically in the current socio-economic scenario that the world is witnessing. The concept of force majeure has significant role to play. Economic considerations become secondary when it comes to human health and security. Organizations also use their contracts and insurance plans to assign the responsibility for unanticipated business interruptions. There are few important principles to remember when you are exploring recovery options or are defending against breach of contract claims. As far back as 1592, Thomas Nashe proclaimed "Dear lord save us from winter, plague and pestilence." If he added earthquakes, war, government interference, and a couple of others to that list, he would have had the development of a clause of modern day force majeure. OBEJECTIVE OF A FORCE MAJEURE CLAUSE IN A CONTRACT The object of a force majeure clause in a contract is usually to exempt all parties from liability if an unusual occurrence or situation outside their control prevents one or both of them from meeting their obligations under that contract. On 17 February 2020, more than 200 representatives from sectors such as pharmaceuticals, textiles, electronics, solar power, automobiles, surgical equipment, paints, fertilizers, telecommunications, metals, mobile manufacturing, edible oils, hygiene, tourism and shipping met with the Ministry of Finance to discuss the effect of Covid-19 outbreak on government contractors. A report by the Confederation of Indian Industry (CII) said "45 % of total electronics imports in India come from China." "One-third of the machinery and nearly two-fifths of the organic chemicals that India purchases from the world come from China," the report added. It further added that China's share of imports is more than 25% for automotive parts and fertilizers, while 60-percent for automotive parts and fertilizers, respectively. Many Indian companies are dealing with an unexpected pandemic event and are examining old contracts to see whether force majeure clause can be exercised and whether it will allow them to walk away from deals that they feel is unfair and one-sided, said legal experts. Although many of the cases that are being checked are legitimate in nature, lawyers and consultants said a few businesses are finding refuge in the current situation to avoid bad contracts that are now seen as one-sided and weighted against them in view of the overall downturn in the economy. For non-governmental and other agreements where there is a force majeure clause in a contract, the yardstick is that theCovid-19 outbreak will fall under the meaning of that provision. If the contract does not contain a force majeure provision, or whether the occurrence of the Covid-19 falls beyond the scope of that agreement, the parties will have to determine whether the doctrine of frustration applies to release them from their contractual obligations Covid-19 has caused a raw material shortage, impacted consumption and affected pre-agreed deadlines, resulting in a situation where businesses are now finding a route to cancel contracts. In a report on March 9th, multinational consulting company McKinsey & Co said the situation is close to the global slowdown. "This scenario results in a recession, with global growth dropping from –1.5 per cent to 0.5 per cent in 2020," the study said. In the past, some courts have interpreted force majeure clauses narrowly; that is, excusing misconduct within the meaning of the clause in specific circumstances and/or incidents, but courts must also consider the factors concerning the incidents mentioned. For instance, while "disease" may be a defined force majeure event in a contract, adverse parties may claim that the performance of a party is not excused because of the possible impact of the coronavirus, especially if your company is in the United States only. However, if your company is in China alone, or areas that are most affected by global health issues, excused performance might be more likely at this point. The Ministry of Finance and Government of India, informed on 19 February 2020 that corona virus will be protected by the above force majeure clause (FMC) and should be considered a natural disaster. Furthermore, the ministry has clarified that this provision can be used where appropriate, subject to due process being followed. It should be noted that the provision does not completely justify the non-performance of a party but only suspends it for a period of time. One of the requirements for this clause is that the agency must inform force majeure for any such exceptional occurrence as soon as it occurs. The China Council for the Promotion of International Trade on March 3 said the country had issued 4,811 force majeure certificates because of the pandemic. The total value of those contracts that invoked this provision was around $53.79 billion, and the number is expected to increase as days pass. According to the ministry of commerce and industry, China is India's second-largest trade partner after the United States.

As scenes of chaos, misery and rapidly mounting death tolls emerged from China in December 2019 the world watched in concern. Covid- 19 was first detected in China's Hubai province, but by January 2020, the World Health Organization had declared the Novel Corona Virus outbreak as a public health emergency. This was the viral spread of this potent virus, which was detected in at least 29 countries as of February 2020.

Covid-19 has rapidly evolved from a local threat to a global one with tragic human losses which take precedence over its economic impact. Nevertheless, severe economic losses were triggered by the extraordinary steps taken to contain the virus outbreak such as workplace shutdown, disruption of production, closures of ports and suspension of air travel. The pandemic creates a profound impact on industrial sector and underlying contractual relations. It has often been highlighted that historically in the current socio-economic scenario that the world is witnessing. The concept of force majeure has significant role to play.

Economic considerations become secondary when it comes to human health and security. Organizations also use their contracts and insurance plans to assign the responsibility for unanticipated business interruptions. There are few important principles to remember when you are exploring recovery options or are defending against breach of contract claims.

As far back as 1592, Thomas Nashe proclaimed "Dear lord save us from winter, plague and pestilence." If he added earthquakes, war, government interference, and a couple of others to that list, he would have had the development of a clause of modern day force majeure.

OBEJECTIVE OF A FORCE MAJEURE CLAUSE IN A CONTRACT

The object of a force majeure clause in a contract is usually to exempt all parties from liability if an unusual occurrence or situation outside their control prevents one or both of them from meeting their obligations under that contract.

On 17 February 2020, more than 200 representatives from sectors such as pharmaceuticals, textiles, electronics, solar power, automobiles, surgical equipment, paints, fertilizers, telecommunications, metals, mobile manufacturing, edible oils, hygiene, tourism and shipping met with the Ministry of Finance to discuss the effect of Covid-19 outbreak on government contractors. A report by the Confederation of Indian Industry (CII) said "45 % of total electronics imports in India come from China." "One-third of the machinery and nearly two-fifths of the organic chemicals that India purchases from the world come from China," the report added. It further added that China's share of imports is more than 25% for automotive parts and fertilizers, while 60-percent for automotive parts and fertilizers, respectively.

Many Indian companies are dealing with an unexpected pandemic event and are examining old contracts to see whether force majeure clause can be exercised and whether it will allow them to walk away from deals that they feel is unfair and one-sided, said legal experts. Although many of the cases that are being checked are legitimate in nature, lawyers and consultants said a few businesses are finding refuge in the current situation to avoid bad contracts that are now seen as one-sided and weighted against them in view of the overall downturn in the economy.

For non-governmental and other agreements where there is a force majeure clause in a contract, the yardstick is that theCovid-19 outbreak will fall under the meaning of that provision. If the contract does not contain a force majeure provision, or whether the occurrence of the Covid-19 falls beyond the scope of that agreement, the parties will have to determine whether the doctrine of frustration applies to release them from their contractual obligations

Covid-19 has caused a raw material shortage, impacted consumption and affected pre-agreed deadlines, resulting in a situation where businesses are now finding a route to cancel contracts.

In a report on March 9th, multinational consulting company McKinsey & Co said the situation is close to the global slowdown. "This scenario results in a recession, with global growth dropping from –1.5 per cent to 0.5 per cent in 2020," the study said.

In the past, some courts have interpreted force majeure clauses narrowly; that is, excusing misconduct within the meaning of the clause in specific circumstances and/or incidents, but courts must also consider the factors concerning the incidents mentioned. For instance, while "disease" may be a defined force majeure event in a contract, adverse parties may claim that the performance of a party is not excused because of the possible impact of the coronavirus, especially if your company is in the United States only. However, if your company is in China alone, or areas that are most affected by global health issues, excused performance might be more likely at this point.

The Ministry of Finance and Government of India, informed on 19 February 2020 that corona virus will be protected by the above force majeure clause (FMC) and should be considered a natural disaster. Furthermore, the ministry has clarified that this provision can be used where appropriate, subject to due process being followed. It should be noted that the provision does not completely justify the non-performance of a party but only suspends it for a period of time. One of the requirements for this clause is that the agency must inform force majeure for any such exceptional occurrence as soon as it occurs.

The China Council for the Promotion of International Trade on March 3 said the country had issued 4,811 force majeure certificates because of the pandemic. The total value of those contracts that invoked this provision was around $53.79 billion, and the number is expected to increase as days pass. According to the ministry of commerce and industry, China is India's second-largest trade partner after the United States.

India is currently undergoing its epidemiological transition period. Our health care system is forced to tackle chronic non-communicable diseases while struggling to reduce the burden of communicable diseases. In India the burden and scope of infectious diseases is massive as they already contribute around 30 per cent of the disease burden currently prevailing in the nation. The epidemics of communicable diseases place a severe economic burden on individuals, families, societies and the nation at large. There is an immediate need for reviewing of the health systems which are operating in India.

Analysis of the health systems won't be complete without evaluating existing legal provisions. In India, the statute governing this particular area is the Epidemic Diseases Act, 1897 (hereinafter referred to as “the Act”). The Act is the only statute allowing for legal action in the case of a sub national outbreak.

Introduction of the Act and the need behind the same

As a response to the plague outbreak in Bombay, the Act came into force on 4 February 1897. This act confined the plague to Bombay through a series of tough steps that prohibited crowds from gathering together. The Act being one of the most concise acts, has four parts, the first section specifies the title and scope, the second section authorizes state and central government to take special steps and enforce regulations that are to be enforced by the public in order to prevent disease transmission. The third section specifies punishment for violating the laws, while the fourth section offers legal protection for individuals working under the act.

Criticism of the Act with respect to modern world

The Act is a 113-year-old, archaic statute. Over the years, the century-old Act has acquired quite a few shortcomings that can be traced to the shifting priorities of emergency services and public safety in the nation. The Act is silent on describing a serious infectious disease. As an act which was enacted almost a century ago, its geographical borders require an amendment. In addition to the measure of exclusion or quarantine, the act remains silent on the legal system for the provision and delivery of vaccines and medicines, and the enforcement of response acts. There is no clear reference to the ethical considerations or the values of human rights during an outbreak response.

The Act does not adhere to the current scientific understanding of prevention and response to outbreaks, but rather represents the medical and legal principles that existed at the time the Act was drafted. The country's political situation and the Centre-state relationships have changed. In the present situation, the Act as such is not adequate to deal with the prevention and control of communicable diseases.

Also, while the evaluating the Act, it can be further said that it is silent on the rights of the general public and only emphasizes on the powers of the government in taking the preventive steps. It does not take the interest of the public into account. People-centeredness is about taking into account the interests, beliefs, social conditions and lifestyles of people and working together to establish appropriate solutions.

The recent Coronavirus (COVID-19) pandemic is the best example to explain the incompleteness of the Act with respect to modern era. Though the Government has taken preventive measures to contain the disease, but it can be contended that those steps were taken reactively instead of pro-actively. Also, under the Act the operations of various public institutions like Gymnasiums, Spa’s, Cinema Halls, and night clubs have been suspended till 31^st March 2020 in the National capital. Further, gathering of more than 50 people have been prohibited only except in the case of a marriage.

Conclusion

 We definitely need a concrete legal structure which is applicable to the current context. A strong framework for public health law develops not only the powers of Government but also forms the role of government in disease prevention and control. Therefore, it is well beyond doubt that this century-old Act requires a full revision to meet the shifting priorities of public health. Undeniably, it is difficult to rule out the role of public health experts in this regard. An integrated, extensive, actionable and specific legal framework is required for controlling outbreaks in India that should be expressed in a rights-based, public-focused and public health-oriented way.

Quality education is a must for a complete and successful life. For many, it is equivalent to graduating from a top institution. With opportunities growing across the globe, more and more Indian students are aspiring to study abroad at various universities. The cost of education is, however, increasing rapidly. In fact, the cost of studying at reputed institutions is already quite high. Banks in India offers various schemes depending on the institution selected and the course of study. Most education loan schemes come with flexible repayment options and allow the borrower to plan their finances accordingly.

 Types of Education Loans:

Ø Secured Loans ­– A loan given out by a financial institution wherein an asset is used as collateral for the loan. The bank or financial institution will hold on to the ownership deed of the asset until the loan is paid off. Secured loans are provided by government banks like SBI, Punjab National Bank, IDBI etc.

Ø Unsecured Loans ­– Like the name suggests, it is a loan that is not secured by collateral such as land, gold, etc. These loans are comparatively riskier to a lender and therefore associated with a high interest rate. NBFC’s like HDFC CREDiLa, TATA Capital, Avanse Financial etc. provide unsecured loans.

Repayment period offered by government banks, providing secured loans is 7-15 years. Whereas, NBFC’s provide unsecured loans with a repayment period of 10 years. Repayment period usually varies depending upon the financial institutions and their rules.

PAY BEFORE YOU HAVE TO:

Education loans carry a moratorium or loan holiday which is very beneficial for the borrower. It is usually the duration of the course, plus 1 year after the course, or 6 months after being employed, whichever is earlier. During this period you do not have to make payments on your loan, but interest will accumulate throughout this period. You are allowed to pay off the interest during the moratorium period. This will help lessen the burden of the loan. It will also make the loan cost less when you finally have to start paying your EMIs.

TAX BENEFITS:

You can avail tax benefits under Section 80E of the Income Tax Act, 1961 on the interest you pay on your educational loan. To be eligible for this deduction, your loan should be taken from an Indian scheduled bank or a gazetted financial institution. The deductions are available only for initial assessment years and 7 years after, or till you pay off all the interest. Maximum deduction period is capped for 8 years.

EDUCATION LOAN SUBSIDY:

One of the major factors of availing a government bank education loan has been the education loan subsidy which is applicable to the interest rates of government bank education loans. The government of India had introduced three very important education loan interest subsidy schemes which allow students belonging to certain communities to claim an exemption on their education loan interest payment. The terms and conditions to avail this provision is different for each of these education loan interest subsidy schemes.

The education loan subsidy 2020 is applicable to the following schemes:

1.    The Central Sector Interest Subsidy Scheme (CSIS)

2.    The Padho Pardesh Scheme of Interest Subsidy for Abroad Education Loans.

3.    The Dr. Ambedkar Central Scheme of Interest Subsidy on Education Loans for Other Backward Classes and Economically Backward Classes.

This benefit can only be availed by students who have borrowed a government bank education loan to support their higher studies.

CHOOSING YOUR BANK:

A number of banks offer educational loans for different courses in India and abroad. They offer unsecured loans for small amounts. Security is required for loans that are required to fund expensive courses. Choose a bank that will provide you with the best moratorium period, interest rate and terms to pay back the loan. Also make sure you have the option of repaying the loan early. Choose the bank that offers you the best loan terms rather than the most finance. Also check if you are allowed to pay EMIs in advance or make part payments towards the loan. Know about processing fees that are applicable on your loan. Here are some examples of banks that offer education loan with good interest rates and other services.

·     STATE BANK OF INDIA:

Loan Amount Offered: 20lakhs – 1.5Crore

Interest Rate: 10.20% p.a.

Repayment period is 15 years after course period + 12 months of loan holiday. Repayment will commence one year after completion of course and loan should be repaid in 15 years after the commencement of repayment.

Processing Charges for loans up to Rs.20 lakhs: NIL whereas, when the loan is above Rs.20 lakhs processing charges is Rs.10000 (plus taxes)

·     AXIS BANK:

Loan Amount Offered: 50,000 – 5Crore

Interest Rate: 0.75% of differential loan amount above 20 lakhs + GST (Non Refundable).

Repayment Tenure: Repayment period is given on loans starting from 12 months – 240 months i.e. 20 years.

Processing Charges for loans up to 20 lakhs is Rs.15000 + GST (Refundable Fee)

·     HDFC BANK:

Loan Amount Offered: For students who have secured the admission it is up to 20 lakhs for studies overseas.

Interest Rate: 9% - 14.1%

Repayment Tenure: Up to 15 years.

Processing Charges up to 1.5% of the sanctioned amount plus any tax.

·     CANARA BANK (UDAAN):

Loan Amount Offered: For Education Overseas Canara Bank Udaan scheme offers Up to Rs.20lakh.

Interest Rate: If the loan amount is less than 4lakhs, no interest will be levied. If it is more than 4 lakhs then the interest rate is 15%

Repayment Tenure: Starts a year after the course is completed or six months after landing a job, whichever is earlier.
Loan with interest can be repaid in EMIs i.e. you can take 10 years to repay your loan amount up to Rs.7.5 lakhs and 15 years if the amount is more than that.

·      PUNJAB NATIONAL BANK:

Punjab National Banks offers different schemes for education loans such as:
PNB SARASWATI – To provide financial support to meritorious students for pursuing higher education in India.

PNB PRATIBHA – To provide financial support to meritorious students who get admission in Premier Institutes in India.

PNB UDAAN – To provide financial support to meritorious students for pursuing higher education abroad.

Repayment Tenure: Maximum Up to 15 years.

Repayment Holiday (Moratorium Period): Course Period + 1 Year

Interest Rates:

·      Loan for pursuing education from premier foreign universities and educational institutes under PNB Udaan scheme up to 7.50 lakh covered under CGFSEL: MCLR + 0.60%

·      Loans irrespective of amount (where 100% Tangible collateral security in the shape of IP, enforceable under SARFAESI Act, and/or liquid security is available): MCLR + 1.10%.

(Where MCLR is Marginal Cost of funds based Lending Rate)

Processing Charges: Rs.250/- + GST

Introduction

In a well-established democratic state or society everyone must enjoy the right to communicate freely his or her convictions, thoughts, opinions, judgments, information and ideas and share the same before the public in whatever from they want either communicable medium or visible representation, especially based on the trending issues of public importance. In context to Human Rights this is called as “Freedom of Expression”. On the other-hand, Freedom of Expression forbid the State and other citizens of the State from censorship and can only be forbidden on serious circumstance, i.e., lawful restriction. Further, it is the mother of all other liberties or freedom.

International Perspective

The term “Freedom of Expression” is broadly recognized as a basic Human Rights, Under Article 19 of the Universal Declaration of Human Rights, 1948, i.e., (UDHR) and also recognized as an International Human Rights Law in the International Covenant on Civil and Political Rights, 1966, i.e., (ICCPR). Article 19 of the UDHR states that "everyone shall have the right to hold opinions without interference" and "everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice". The version of Article 19 in the ICCPR later amends this by stating that the exercise of these rights carries "special duties and responsibilities" and may "therefore be subject to certain restrictions" when necessary "for respect of the rights or reputation of others" or "for the protection of national security or of public order (order public), or of public health or morals".

Indian Perspective

Under Article 19(1)(a) of the Constitution of India, 1950, found in Part III, which enumerates the Fundamental Rights, provides all the citizens of India the right to freedom of Speech and Expression. Even, the Preamble of the Indian Constitution itself reflect to secure to all the citizens, the “liberty of thought and expression”. To be noted, Freedom of Expression not only propagandize one’s view only but the same includes the freedom to propagandize or promote and publish the views and opinions of other people, thus it includes the “Freedom of Press”.

A reasonable human being wishes to do many things, but it may not be acceptable by a civil society. Thus, the same need to be regulated, controlled or reconciled by the authority for the sake of other citizens to not jeopardize their public interests. Therefore, Under Article 19(2) of the Constitution of India, reasonable restriction is been imposed on the right to freedom of expression.

Grounds of Limitation on Freedom of Expression under Constitution of India

As discussed above, apart from the liberty of expression under Article 19(1)(a), reasonable restriction is imposed under Article 19(2) on the following grounds for the interest of the public at large:

1) Security of the State: Security of State includes provoked or aggravated formation of public order, for example unlawful assembly, riots, affray, waging war against the State, etc. Thus, where an individual’s expression or speech by way of any medium incites, provoke or encourage to the commission of violence shall be a threat to the State. Therefore, reasonable restriction needs to be imposed to the interest of the nation’s security.

2) Friendly relations with Foreign States: The purpose behind this provision is to restrict unrestrained malicious propaganda against a Foreign friendly State, which mat threaten the stability of good between the native and other state.

3) Public order: The concept of public order is much broader than the ordinary prolongation of law and order. Any act of an individual which generally mess up with the public peace and tranquility disturbs public order. Thus, acts including communal disturbances and promoting strikes with an object to induce agitation among society are offences against public order.

4) Decency or Morality: This provision is enumerated to prohibit the exhibition or distribution or sale of obscene objects, words, etc. in public places. In the interest of decency and morality under Section 292 and Section 294 of the Indian Penal Code, 1980, enumerates the instances of restriction on the freedom of Speech and Expression.

5) Contempt of Court: Reasonable restriction can be imposed if an individual’s acts amount to contempt of court, it may be either civil or criminal contempt.

6) Defamation: When a person’s reputation is hampered or injured by way of publishing any statement, amounts to defamation. The term defamation is defined under Section 499 of the Indian Penal Code, 1980.

7) Incitement to an Offence: An act conferring inciting or instigating people to commit an offence under liberty of expression is restricted.

Grounds of Limitation on Freedom of Expression under ICCPR

As discussed above, Article 19(1) & Article 19(2) of the International Covenant on Civil and Political Rights, 1976, enumerates that, “everyone shall have the right to hold one’s own opinion and ideas without interference and shall also have the right to freedom of expression which includes freedom to seek, receive and impart information and ideas of any kind, either in written or print or in form of art or pictures or through any media of their individual choice.”  Whereas, Under Article 19(3) of the International Covenant on Civil and Political Rights, 1976, enumerates that, “the exercise of the rights given under Article 19 (1) & (2) carries with it special duties and responsibilities, which are subjected to certain limitations and shall be provided by law for rights and reputation of others and protection of national security or public order or public health or morals.

Application of Restrictions to the Right of Freedom of Speech and Freedom of Expression in Europe and South American Nations

The scope of limit in respect of freedom of speech in several countries are addressed by their constitutions. All this constitutions are unanimous on a single argument and that is thought the freedom of speech is a constitutionally guaranteed fundamental right, it is not an absolute right either, therefore limitations are applied to the right of freedom of speech at varied levels.

Freedom of Speech as it has never been intended to be an absolute right, in contrast to the First Amendment of the United States Constitution, the definition in the Declaration of Human and Civic Rights,1789, provided limits to the right of freedom of speech and expression. Article 10 of the Constitution states – “no one may be disturbed on account of his opinions, even religious ones, as long as the manifestation of such opinions does not interfere with the established Law and Order.” (DÉCLARATION DES DROITS DE L'HOMME ET DU CITOYEN DE 1789 art. 10.) Article 11 provides that, “any citizen may therefore speak, write and publish freely, except what is tantamount to the abuse of this liberty in the cases determined by Law.” The European Convention on Human Rights also mentions that freedom of speech and expression are associated with the sense of duties and responsibilities, therefore such rights are “subject to formalities, conditions, restrictions or penalties as are prescribed by law.” It further states that such restrictions are required for a democratic nation considering the issues of “interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 

Such restrictions are widely found in the legislations of China and Ukraine. The Chinese cybersecurity Law imposes restrictions on usage of internet if it is found that such a use is satisfying the criteria of – “endanger the sovereignty, overturn the socialist system, incite separatism, break national unity, advocate terrorism or extremism, advocate ethnic hatred and ethnic discrimination, . . . [and] create or disseminate false information to disrupt the economic or social order.” Similar prohibited expressions apply under China’s Regulation on the Administration of Publishing, including a prohibition on the destruction of “public order or . . . public stability.”

Ukraine has started putting restrictions to the right to freedom of speech in the context of Euromaidan Revolution in the year 2014 and with the conflict of Russian Federation. Ukrainian law along with the provisions of censoring, it also has the penal provisions to restrict in the form of language quotas for broadcasting, print and publishing media in languages other than Ukrainian. The law also puts ban on films which contain propaganda of an “aggressor state”, because this aggressor state image of Ukraine is prohibited from being exhibited by the law. Article 10 of the Constitution states – “as the manifestation of such opinions does not interfere with the established Law and Order.” Article 11 of the Constitution provides that “any citizen may therefore speak, write and publish freely, except what is tantamount to the abuse of this liberty in the cases determined by Law.”

France has an outstanding standard of legal parameters to limit the freedom of speech and expression which is adopted by other constitutions of several nations. French laws seek to balance freedom of speech with other imperatives, as shown by extensive jurisprudence on this topic. The Cour de cassation, France’s highest court for civil and criminal matters, established the general principle that “restrictions to freedom of expression should be interpreted narrowly.” It also emphasizes that such restrictions must also be proportional to the expected harm which is assumed to be detrimental for the society. A decision in the year 1933 decision by the Council of State, which is the highest judicial authority in France regarding administrative law. In that case, the mayor of the City of Nevers prohibited the plaintiff from holding a public meeting, in response to protests from teachers’ unions. The Council of State struck down the mayor’s order prohibiting the meeting on the grounds that it was disproportional to the risk of public disorder that the meeting presented. While this decision was a classic case of freedom of assembly of which the principle of proportionality applies to freedom of expression as well. The decision of this case was cited in a 2014 decision in which the Council of State upheld the prohibition of a public performance by controversial comedian Dieudonné M’bala M’bala, because it was justified by the high risk that he would disturb public order by engaging in illegal hate speech. The French law has set a standard of imposition of restrictions given the yardsticks of Freedom of Speech, Limits Related to the Rights of Others, Limits Related to Public Order.

Several other countries such as Argentina, Brazil, Canada, Germany, Israel, Japan, Netherlands, New Zealand, Sweden, Ukraine, United Kingdom have imposed similar restrictions on freedom of speech and expression on the similar note with France.

Conclusion

To conclude this article, it can be easily understood from the above discussion that among all the Fundamental Rights the most important is the Right to Freedom of Speech and Expression. Where it includes broadcasting of one’s view by script writing or in words or through audiovisual instrumentalities or advertisement or any other communication channel. It also widens its scope towards the right to information, freedom of press, etc.

In the light of the limitation or restriction imposed on the right to freedom of expression should be reasonable and with proper nexus i.e., there should be a rationality of relationship between the restriction imposed and achievements of the grounds of restriction. The restriction imposed on liberty of expression in the interest of the public at large include not only utterances as are directly provokes to lead to disturbances but also include those that have the propensity to lead to disturbances.

The Right to Freedom of Speech and Expression are guaranteed by the constitutions of nations and with this guaranty the reverse effect of such guaranty is reflected through the limit which are imposed to such right because right is associated with due responsibilities and duties. The concept of Limits to the right of Freedom of Speech and Expression is thus a vast thinking perception which is interrelated and an essential feature of a civilized democratic society.

INTRODUCTION

Identity thefts make a standard headline that we read almost every day. What is the real picture? It's not where a person steals an identity but the same person uses that stolen identity to extort money. It is a facial crime that makes the victim vulnerable both financially and emotionally. It's a crime that could happen to anyone and could shamble the life of the victim. There is an increasing danger of identity theft and the rate of crime is high at all the times. A recent 2003 report by the FTC indicated that approximately 9.3 million adults have suffered from identity thefts in some form or the other.

According to Oxford Dictionary, Identity Theft is defined as “using somebody else’s name and personal information in order to obtain credit cards and other goods or to take money out of the person’s bank accounts”.

Identity theft is a crime of opportunity which is generally committed by impersonating a victim to acquire valuable things that a victim possesses, such as credit cards, loans or other valuable things. The theft might happen when the information of the victim is easily accessible to the public in general or if the relevant credentials of the victim have been left unattended.

Identity theft is not a recent phenomenon; it has been unfortunately practiced since the invention of the Internet and computers.

Social networking is a must now-a-days and not being active on such sites is considered a taboo. Using their true identity has become a standard practice for users but it has also given rise to pseudonym users who use borrowed identity which leads to such crimes.

TYPES OF IDENTITY THEFT

·        Criminal Identity Theft- If a person fraudulently presents himself as a police officer at a point of arrest this amounts to what is known as theft of criminal identity.

·        Identity Cloning- Here the individual impersonates himself as another individual, this leads to Identity Cloning in order to hide his identity from others.

·        Medical Identity Theft- When an individual tries to receive medical treatment under another person's identity this leads to theft of medical identity.

·        Financial Identity Theft- This is one of the most popular identity thefts occurring when a person attempts to gain economic advantage in the name of another person.

·        Tax identity theft- When someone gains another person’s information and uses that to receive a tax refund, this amount to Tax Identity Theft.

MAIN VICTIMS

Senior citizens- Elders often become a victim to these crimes because they tend to trust easily, have more accumulated savings and don't regularly track their finances. In addition to this, they can easily be fooled into transmitting confidential key information through telephone calls or email replies and because of these characteristics they are simple victims.

The Massachusetts Institute of Technology conducted a study where people belonging to different age groups were asked, if they felt that they could easily trust most people. As per the same study most of those born between 1946 to 1964, gave the highest percentage of Yes as an answer.

Children- Children have no credit activity and serve as a blank slate for thieves. Criminals are using knowledge from children to open up new lines of credit. They are really easy targets because they do not track their credits and their accounts on regular basis. For years these crimes go undetected, and years later if and when it is discovered then the only thing that can be done is to control the damage that has already been made.

According to the Javelin Strategy & Research report of 2017, more than 1 million children were victims of identity theft or fraud in 2017 and two-thirds of those affected were aged 7 or younger.

ALARMING SIGNS

Most victims ignore the potential signals that can function as indicators and prevent identity theft. Some of these alarming signs are:

• Verification calls from a bank or a service provider
• A warning/notice from a bank/service provider
• Credit report showing unexplained entries
• Small amounts being debited from your bank accounts in regular intervals
• Purchases in your card statement that you have not authorized
• Receiving a statement or bill for a service, you have not purchased/used

STEPS TO RECOVER YOUR MONEY

1.      Analyse what's been stolen- Try to find out what you were a victim of before you start to panic. Seek to find out what all is missing.

2.      File a complaint with the police-You need to lodge a report immediately with your nearest police station or cyber-crime cell that can help you prove that you have been a victim of theft / crime. The police may merely file a written report and do not investigate the matter so you cannot obtain legal redress such as bank reimbursement, etc. without the complaint. It will also be required for other procedures such as opening a new account and insurance renewal etc.

3.      Inform a National Credit Reporting Agency (CRA)-Contacting one of the CRA's mentioned below will further reduce the risk of opening an account on your behalf without your permission.

3.There are 6 major credit reporting agencies in India under the Security and Exchange Board of India (SEBI):

•ICRA
•Equifax

•CRISIL
•CRIF
•CIBIL
•Experian

4.      Checking Financial Accounts- Make sure you close all accounts opened under your name or with your personal details without your permission, and close all of your current accounts that have shown any unauthorized activities.

5.      Credit Reports for Review- After you have placed a fraud report, the CRAs will send you confirmation letters that will further instruct you on how to order a free report. Under the law, one free report from each CRA is required once every 12 months. You may apply for credit report online or by calling on their helpline number.

LEGAL PROVISION IN INDIA

An identity theft is a crime involving both fraud and theft, which is why the provisions of the Indian Penal Code, 1860 (IPC) are sometimes used in combination with the Information Technology Act, 2000.

Some of the Sections of the IPC such as Section 464 (Forgery), Section 465 (Making False Documents), Section 468 (Forgery for Purpose of Cheating), and Section 474 (possession of a document known to be Forged and intending to use it as Genuine) can be combined with those of the Information Technology Act, 2000.

In India, the IT Act, 2000 (the Information Technology Act) deals with cybercrime. The Sections dealing with Cybercrimes are as follows:

Section 43-Punishment by penalty and reimbursement for harm to the information / computer network, etc.,

Section 66-Computer related crimes,

Section 66B-Punishment for obtaining dishonestly stolen computer resource or communication device,

Section 66C-Punishment for identity theft,

Section 66D- Punishing a person for cheating by personating by using a computer

The Government has made certain recommendations that 2 new sections must be included in the IPC, 1860 (Indian Penal Code), i.e. Section 147A and Section 419A.

Section 147A deals with cheating by using any unique identification feature of any other person shall be punished with imprisonment for a term, which may extend to a period of three years, or with fine or both.

Section 419A deals with cheating by impersonating using a network or computer resource shall be punished with imprisonment for a term, which may extend to a period of five years, or fine or both.

CONCLUSION

It is safe to say that identity theft is one of those crimes which could top the criminal charts in the near future, and that is why one must always be careful about their sensitive key details and not leave their important mails or devices containing personal data unattended. One should be vigilant about the warning signs and act upon them as soon as possible.

Introduction

Nowadays, there is a large backlog of cases pending before the Indian courts and, in order to resolve cases quickly and efficiently, the courts need all the tools to allow them to fulfill their responsibilities and obligations. There has been continuous development in modern technology, and it is not mandatory for judges to have knowledge of all the issues involved. It is important to note that, for every judicial reform in India or outside India, it is up to the judges and the advocates to collect the facts and testimony of each and every witness, as the witness is the primary source of proof in the courts. This is therefore for the bench of justice to form their own view on the basis of that view. A witness is a person who gives an oath or testimony before some judicial body, e.g. an expert opinion. The child witness is the one who, at the time of the testimony, is below the age of 18 years. In particular, the legislation in India has not accepted the age limit of a child in order to be a qualified witness. In India, any child who may be able to meet the test of competence may become a witness, and there is no law banning children from being witnesses.

Analysis

As per Section 118 of the Indian Evidence Act, any person, including a child or an elderly person, other than a tender year, an extreme old age, a disease, whether of body or mind, or any other similar cause, is competent to be considered a witness in the court of law if he or she is able to understand the questions put to him or to provide reasonable answers to those questions.

In order to recognize a child's competence as a witness, the court is performing a examination called the "Voir Dire" examination. In this test, the judge directly asks the child questions which are not applicable to the case before the start of the trial, in order to determine whether or not the child is reasonable and of a sound mind. Any of the questions put to the court are the name of the child, Residence, date of birth, name of school, etc. When the Court of Justice is completely pleased with the responses it has provided and with the investigation it has carried out, it shall be granted permission to testify as a witness before the court of law.

Despite arguments made by the Supreme Court in various cases, the provisions of Section 114 of the Indian Evidence Act include a certain amount of corroboration of the testimony of witnesses. Section 114 indicates that the requirement for corroborating proof is higher if a child, in particular a tender year, is unable to remember and a man of ordinary prudence (sound person) provides an response when a certain investigation / investigation is made. In other words, it is often called poor proof. At the other hand, the proof needed is much lower for a child witness if he or she is able to understand and provide a reasonable answer to the questions posed to him or her.

For most cases, the child witness is admissible as testimony for criminal cases before the court of law. For example, the Juvenile Justice Act 2012, and the Protection of Children from Sexual Offences Act,2019. A child witness shall be held under separate judicial protection, so as not to damage either of the accused or any of the perpetrators by bringing them to trial. In order to identify the accused in the court of law, the child witness is admissible as evidence. For certain cases, they are not in a position to recognize the perpetrators, and so, in these situations, if the judges find fit and necessary, they provide the victim with the benefit of doubt.

A multidisciplinary team including the prosecutor, executives and social activists will be educated by the government and used in the investigation and prosecution of cases where the child is believed to be a victim or witness of violence. An officer who specializes in criminal cases must be assigned to deal with all aspects of a case involving an alleged child victim or witness in order to minimize the number of times a child is called upon to recall the incidents involved in the case and to build a sense of confidence and faith in the child.

Every action taken by the court, whether the Juvenile Justice Court or the Protection of Children from Sexual Abuse Court, will be taken by the court to ensure a speedy trial in order to minimize the difficulty and overall strain of the case on the part of the victim. Such a rapid trial is required in order to prevent adverse effects on the parties concerned. The court will conclude the trial within a reasonable amount of time, not only for the social and moral well-being of the infant, but also for society as a whole. It is up to the judges to ensure the timely and successful application of the law after hearing the arguments of all parties so as not to prolong the granting of justice as it is claimed that "Justice delayed is justice denied."

In order to enforce some constitutional or procedural changes to the laws passed under the Indian Evidence Act, 1872 on the admissibility of child witness testimony, where a child may have been abused, threatened or harassed by an attacker or may have been deemed a witness in a court of law, such a bill should be introduced in both houses of Parliament. The State Government and the Central Government should devise and enforce these awareness programs in order to develop their mental ability, handle stress and the the trauma experienced by them during the court proceeding. If required, the rules and procedures in Parliament should also be amended.

The media as a whole plays a very important role in each and every nation in this world. It is their duty to report any incident in every part of this country on the social, economic, political and cultural well-being of citizens. It is their responsibility to report and publish news on crimes committed against women and children and also, where they have been witnesses in court, on any general awareness programs developed for them by any state or central government. The public has the right to know and even to lodge a FIR in the police station against any attackers for misbehavior against these juveniles.

It is also recommended that the court should create its own investigation / monitoring committee to collect the facts and documentation supporting the written statements and records submitted by the counsel of the parties concerned. All papers, either with a lawyer or with a court of law, must be kept private. The Special Investigation Team (SIT) is also appointed by the central government to collect a significant amount of valuable information from the child in such cases where he / she has suffered a mental trauma after finding such an accident. The Central Bureau of Investigation (CBI) and the Central Vigilance Commission (CVC) are also named. For certain cases, if the child witness is admitted to the hospital because of the injuries he sustained when he was at the victim's accident site, the high court can also move the bench for the testimony of the child witness. This is also proposed that the State and the central government set up fast-track courts to conclude the trial (fast trial) within 3 mts from the date of such an accident. 

Introduction

An agreement pursuant to Section 29 of the Indian Contract Act, 1872, is void when its terms are vague and unclear, and cannot therefore be made clear. For example: X agrees to exchange one ton of oil. This agreement is unenforceable because it is ambiguous because the expected classification cannot be ascertained.

A contract to negotiate the terms of an agreement is not an "agreement to agree" in appearance or in substance. If despite their bonafide effort, the parties fail to arrive at an ultimate agreement on the terms in effect the contract to negotiate is deemed performed and the parties are released from their obligations. Failure to acknowledge is not itself a contractual violation of the contract of negotiate.  A party will only be responsible if a failure to attain ultimate agreement emerged from a breach of that party’s obligation to negotiate in good faith.

"Agreements to Agree" is a concept wherein any party say a Company will  come to an agreement on the basis of an understanding (whether explicit or implied) that a further arrangement will be reached at some scheduled time, when the commercial grounds for and proposed terms of that further agreement may have become more manifest.

As a consequence, instead of negotiating their proposed secondary agreement at the main contracting stage, the parties slightly agree that some or all of the contractual terms of that agreement will be decided in the future.

R&D Construction Group Limited v. Hallam Land Management Limited, [2010] CSIH 96

Hallam had entered into a 5 year optional agreement with a landowner in 1999 to purchase land once Hallam had obtained planning permission. Hallam were obliged to use all reason endeavours to obtain planning permission. In 2002, Hallam entered into a contract in which R&D contracted to buy part of land. This contract was subject to Hallam agreeing a purchase price with the landowner in terms “all reasonable acceptable” to the landowner. The contract also include a longstop provision whereby Hallam had seven months to complete the purchase from the landowner after receiving written notice from R&D solicitors. Hallam could within the 7 months.

Due to the rising land market and a disagreement regarding access Hallam were unable to agree a price within the seven months period and decided to withdraw from the contract. In March 2005 Hallam finally bought the land and resold it to a third party. R&D then brought an action for breach of contract against Hallam. Two questions arose:

1.      Was the proviso requiring the landowner to use all reasonable endeavours to agree the price enforceable given that it was an agreement to agree?

2.      If the provision was enforceable were Hallam in breach of contract?

Indicators of Agreement to Agree

An agreement to agree shall constitute the following:-

1.      Clarity for such agreements is crucial

If the subject matter of the agreement cannot be easily ascertained, the agreement is likely an agreement to agree. When legality comes to court, it is impossible that the judge can substitute or incorporate terms to make it legally binding in the agreement.

2.      Intention of parties

If the intention of the parties are made unclear by the lack of an arbitration clause, for example, the insertion of which would indicate an intention to agree, then the contract may be legally enforceable.

3.      Word used

If the terms such as “shall”, which conveys an absolute obligation to agreement, are missing, then the agreement is more likely an agreement to agree.

If the above measures are absent, an agreement can also be a completely enforceable that must include clearly defined terms and adequate consideration, but leaves some specifics to be worked out by the parties. While the parties intend to respond to an agreement on the missing words, what they expect is often uncertain about their failure to reach an agreement.

Mentioned below are several keys takeaways available for anyone who wants to ensure that their agreement is enforceable in the future-

1.      Certainty in a contract

If a party wishes to enter into an enforceable agreement, the contract’s clauses should be drafted to avoid uncertainty.

2.      Methods to settle uncertainty

Uncertainty is a crucial element that may cause the agreement to be unenforceable. A well-drafted contract should set out methods or express ways to overcome uncertainty. This may include outing steps to follow if negotiations break down or requiring specific dispute resolution processes.

3.      Provide specific descriptions for “negotiating in good faith “or using reasonable endeavours”

If the contract include express definitions and examples, a court will be more likely to consider the agreement binding. This can be as the parties taking part in two meetings or attending a mediation session. 

QUO WARRANTO: A CRITICAL ANALYSIS

Introduction

The literal meaning of quo-warranto is “by what authority”

Initially, the quo warranto was a writ of law for the King against the subject who asserted or usurped any office, franchise, rights or privilege belonging to the Crown to ask by what basis he accepted his argument to determine the right. Edward I used this writ to keep his rights and privileges from being infringed.

Therefore, quo warranto was a tool in the King's hands against the usurpation of a Crown prerogative, but it had long been extended beyond that point and used by private suitors as well.

”It is said that quo warranto was only made available to the subject on modern times, but this view is wrong. Under Edward I it became a patent royal weapon against the usurper of franchise jurisdictions, but it had been used by private suitor long before that time”. Says De Smith

You will grant the writ of quo warranto against the holder of a public office. The writ is increasingly calling him to trial under what jurisdiction he holds the office. If the occupant does not have authority to hold the office, he may be disqualified from enjoying it. Unless, on the other hand, he has the authority to hold it, the quo warranto writ protects him against being stripped of the same.

As well as being well known in England, India has adopted the principles and limitations. It is a letter of technical character given against an office usurper or against a person who has the right to make an appointment to that office.

Historical Development

Initially, a letter of quo warranto was only available for use by the king to protect the king from the violation of the royal prerogative or the privileges, franchise or independence of the crown, and knowledge in the existence of quo warranto, which had taken the place of the old letter of quo warranto, was similarly limited in the usefulness as a remedy. It was considered a cilil writ.

Under section 9 of the Law on the Administration of Justice, knowledge in the nature of Quo Warranto was abolished in 1938 and there was an injunction to prohibit any person from working in an office where he is not entitled to act

In the form it was a criminal proceeding and it retained this dimension for some time after the writ was replaced by the quo warranto information inasmuch as there was also a fine, albeit nominal, in addition to trying the civil rights to seize the franchise or evict the wrongful owner

Now it is stipulated by Section 48 of the 1925 Supreme Court of Judicature Act that trials in quo warranto shall be deemed to be civil proceedings, whether for appeal purposes or otherwise.

Quo Warranto under Indian Constitution

Specific provision has been made in Article 32 and 226 of the Constitution of India for the issuance of directions, orders or writs in the nature of quo warranto by the Supreme Court and the High courts. Quo Warranto is considered an appropriate and sufficient remedy for the determination of the right or title to a public office and the dismissal of one who unlawfully usurped or intruded into that office. The object of proceeding in quo warranto against a public officer is to decide whether he is entitled to hold office and exercise his duty, and the quo warranto provides for a judicial inquiry into this matter.

Quo Warranto has been considered a discretionary prerogative writi and under certain conditions, it can be declined. Therefore, the writing of quo warranto is, of course, not a writing, it is a discretionary writing, and the High Courts may refuse to write on the grounds of delay and amusement, acquiescence, waiver, availability of alternative remedies or where the office usurper has ceased to hold the offense by the time written petition is lodged.

In the Sasibhushan Roy v. Pramathnath Banerjee case, the Calcutta High Court held that the specific crime must be of a public nature in order to lie in the writ of quo warranto, i.e. includes a delegation of some of the government's sovereign roles, executive, legislative or judicial, to be exercised by it in the public interest. Such a public offense must be essentially real, not terminable at will. The officer who occupies the office must be autonomous and not just one who performs the duties of a deputy or assistant at the behest of another officer who must be in the office's actual position. Mere declaration that a person is appointed to an office or mere appointment to a particular office is not enough. He must accept such office. The office must be held in contravention of law and if there is a clear irregularity in the appointment, writ of quo warranto will not lie. Quo warranto to lie too when the legitimacy of the individual occupies the office but later acquires a disqualification. The above conditions for granting a writ of quo-warranto will co-exist.

Limitations

1.      Offence must be of public character

Writ of quo warranto is issued only in respect of a public offence. A lawsuit is not lying against a private corporation offence. It can not be assumed that the post of a corporate manager incorporated under the Companies Act is a public office. Even the writ of quo warranto can not go against the management board of a private educational institution not formed by statute or statutory-force law.

A Writ of Quo Warranto would not lie even against a person holding post in a government company which may be an ‘authority’ and, therefore, ‘state’ within the meaning of Article 12; as, such post is not a civil post, nor it is a post or offence held under the state. Where the entity is ex facite private, a writ of this nature cannot be issued- validity of an election to the membership of the working committee of an association like Arya Pratinidhi Sabha is not amenable to writ of Quo Warranto.

2.      No collateral attack

One significant drawback in this regard is that the appointment can not be collaterally attacked

Introduction

Exclusion is fundamental to the system, and therefore a consequence of its basic feature. Social Exclusion is caused by endogamy practices and social division between caste and classes. Every caste has suffered from unfair and hierarchical assignment of privileges, excluding those at the top of the caste hierarchy. The men who were at the bottom of the caste hierarchy previously marginalized are the ones who suffered most. For instance, apart from manual labor and certain jobs considered impure and polluting, the right to do business or own property was denied to the poor communities. The right to education and the civil cultural and religious freedoms were even denied to them. In addition they were made to suffer from residential discrimination and social isolation because the high castes found them impure and polluting and not fit for social association. The father of Indian constitution Dr. B.R. Ambedkar had introduced the system of democracy in the constitution after independence.

India is the largest democratic system. Equal representation in all parts of the country should be the right of democracy citizens. Based on the principle of democracy, reservation policy is a set of affirmative actions pursued by reserving access to seats for equal representation in government jobs, higher educational institutions and politics to provide social and educational backward quotas in India. Reservation policy had not aspired to the results, as it was not supported by a more comprehensive plan that actually tackles systemic injustice and inequality.

Reservations are regulated by constitutional laws, and municipal regulations and rules. Scheduled castes, scheduled tribes and other backward groups, and backward classes among Muslims in some states under a category called BCM, are the primary beneficiaries of constitutional reservation policies. In the Indian constitution the principle of equal representation pervades the provisions. The fundamental aim of the Indian constitution was to establish an egalitarian society in which social, cultural, and political justice prevailed and status and opportunity equality was made available to all.

Concept of Reservation

According to Justice Chinappa Reddy : "Reservation is not a charity it is a representation." Reservation in common terms refers to an act of reserving or withholding reservation in Indian law. It is a form of an affirmative action whereby a percentage of seats are reserved in the public sector union and state civil service union and state government departments as well as in both public and private education. The reservation scheme is also applied for the scheduled castes, scheduled tribes and other backward classes  for representation in the parliament of India.

Pursuant to Article 16(4) and Article 335 there is no time limit for reservations in facilities provided by government resolutions. India's constitution is against any form of discrimination in both the public and private sectors. Though  the Government has a right under the Constitution  to take special steps to uplift the deprived classes. The Constitution speaks only about jobs reservation. It does not address any specific percentage of job reservations, so the percentage varies from time to time depending on census.

The reservation of seats in the legislatures was initially for ten years, as specified in Article. 334,  the Constitution of India. Subsequently, a series of constitutional amendments expanded it for more years. Therefore, in every 10th year, the issue of political reservation comes up for extension in Parliament.

Reservation in Employment :

Under Article16(4), Indian Constitution provides for reservation in jobs. It gives the State the power to make certain provisions for reserving positions or jobs in favour of any backward class of citizens who, in the State's view, are not adequately represented in the services provided by the State.

Therefore, Article 16(4) shall apply only if two conditions are fulfilled:

1.      Citizen class is retrograde.

2.       The class is not adequately represented in the services provided by the State.

Article. 16(4), must be read in the light of Art. 335 which states that the representations of Schedule Castes and Schedule Tribes shall be taken into account in a manner consistent with the maintenance of administrative efficiency. The reservation for backward classes should not be unreasonable. It should be regarded with respect to the general public's employment opportunities.

In Article. 16(4) the word "reservation" means a specific quota reserved for a special category of individuals. It has been held that the very object of reservation is to shield the weaker section of society   against competition  from the candidates of the general category. It has also been accepted that reservation meant the selection of less meritorious men. If the constitutional pledge of social justice is to be fulfilled, this expense must be paid.

It is a settled law that reservation provisions may be made either by law enacted by the legislature or by an executive order issued by the State in the exercise of its executive power without any legislative assistance.

It was also claimed in Valsamma Paul v. Cochin University's ct., 1996 (3) SCC 545 that acquiring the status of Scheduled Caste etc. by voluntary mobility in these categories or transplantation in backward caste by adoption, marriage or other voluntary act would not, as the case may be, entitle a person to take advantage of the reservation either under Article. 15(4) or Article. 16(4).

Article. 16(4) is not an Exception to Article. 16(1):

Article. 16(1) states that “There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State”.

Art. 16(4) is an enabling provision which gives the State the power to make reservations for appointments in favor of backward classes of citizens who are not adequately represented in the State's services either numerically; 0* 7 or qualitatively. It does not confer on citizens the right to claim reservation. Art 16(4) on has not been considered necessary.

Reservation in Promotion - [Article. 16(4A)] :

In S. Rly. V. Rangachari AIR 1962 SC 36, the Supreme Court held that reservation could be made pursuant to Art. 16(4) not only at the initial stage of recruitment but also in matters of promotion from the lower to the higher post or office. It was a rule that lasted for more than 30 years. Nevertheless, after taking all the circumstances into account, the majority in Indira Sawhney v. U.O.I  (supra) said that Article. 16(4) did not consider or authorize reservations in promotions, although the term "appointment" in Article. 16(4) included appointment by direct recruitment or promotion or transfer.

Conclusively, it was held that Article. 16(4) envisaged not only quantitative but also qualitative protection of the disadvantaged class of citizens. This question had to be resolved, the court said, not by reading Article. 16(4) alone,  but by a combined reading of Article. 16 (4) and 335.

Nevertheless, the court agreed that it would be appropriate for the State to extend compromises and relaxations in promotional matters to representatives of reserved groups without undermining the administration's efficacy.

In Ashok Kumar Gupta v. State of UP. JT 1997(4) SC 251, the Supreme Court clarified that, according to Articles 16(1) and 14, Article. 16(4A) provided a right to promotion of Dalits and Tribes as a fundamental right where they did not have adequate representation compatible with administrative efficiency. Accordingly, the Court ruled that the right to reserve was a fundamental right under Article. 16(1) and that a promotional reservation could not be deemed either unfairly or unconstitutionally.

In Jagdish Lai v. State of Haryana, AIR 1997 SC 2366 the Supreme Court ruled that if reserved candidates (Dalits or Tribes) had been promoted to a general candidate earlier, their seniority in the new framework would rank on the date of their admission to the promotion and this seniority would not and could not have the effect of being wiped out from their respective data after the promotion of the general candidate. The court observed that the protective discrimination provided for in Articles 16(4) and 16(4A) was the armor "to establish the equilibrium between equality in law and equality in results as a fact to the disadvantaged." The Court stated that the principle of reservation in promotion provided equality in results.

A five Judges Constitution Bench of the Supreme Court in Ajit Singh v. State of Punjab, JT 1999(7) SC 153 overruled the case of Ashok Kumar Gupta46 and Jagdish Lai’s case and held that they had not been correctly decided. The court clarified that the primary purpose of Article. 16(4) and Article. 16(4A) in certain posts was due representation of certain groups. The court held: “The Constitution has laid down in Article. 14 and Article. 16(1), the permissible limits of affirmative action by way of reservation under Article. 16(4) and 16(4A). While permitting reservations at, the same time, it has also placed certain limitations by way of Articles 14 and 16(1) so that there is no reserve discrimination.” The court ruled that both Articles 16(4) and 16(4A) neither grant any fundamental right nor impose any constitutional duties, but are purely in the nature of enabling clauses at the discretion of the State to consider making a reservation if the circumstances set out in those Articles so warrant. The court upheld the decision in the cases of U.O.I. v. Virpal Singh,  AIR 1996 SC 448 and Ajit Singh Juneja v. State of Punjab, AIR 1996 SC 1189, with their support.

The basic purpose of providing employment reservations is not merely to give jobs to some people in the committees (which are considered to be inferior) and to increase their representation in the services, but to elevate people socially and educationally in order to enable them to take their place in society. In the absence of legitimate protection, certain communities and Tribes would not be able to compete successfully with their more fortunate brothers and sisters in the matter of admissions to various study courses and the securing of public employment.

SUPREME COURT ON RESERVATION

In the present case, the controversy concerned reservations to SCs and STs in promotions for the post of assistant engineer (Civil) in the Department of Public Works of the Uttarakhand government.Initially the reservation was made under the Uttar Pradesh Public Services Act, 1994 (Reservation for Scheduled Castes, Scheduled Tribes, and Other Backward Classes). Section 3(7) of this Act provided that, unless amended or repealed, the government orders providing for quotas in promotions that were in force at the time the Act was passed in 1994 will continue to operate.

The Act was made applicable to the new state after Uttarakhand was established in 2001, with a few modifications. Nevertheless, Section 3(7) was subsequently held by the Uttarakhand High Court as unconstitutional in 2011.

The State Government then formed a committee to collect quantifiable data on the backwardness of the reserved communities in Uttarakhand and the inadequacy of their representation in public posts, in order to satisfy the requirement of Article 16(4A).

In 2012, the then state government announced that all public service positions would be filled out for SCs and STs without reservation. We have abolished all government orders calling for such reservations. This was questioned again at the high court.

Then, in April last year, the Uttarakhand High Court struck down the state's 2012 decision. A review petition against this order was filed in the high court, which did acknowledge that Article 16 (4A) is an enabling provision.which stated that Article 16(4A) was an enabling clause.But it instructed the state government to collect quantifiable data about the inadequacy of the representation of SCs and STs in state services, and then to take a decision to make reservations in promotional . this opinion was challenged in the Supreme Court.

The apex court has now reiterated that Articles 16(4) and 16(4A) grant no fundamental rights to claim reservations in promotions. It is up to the state government to decide if reservations are required for appointment and promotions to public posts, it said.

“It is settled law that the State Government cannot be directed to provide reservations for appointment in public posts. Similarly, the State is not bound to make reservations for Scheduled Castes and Scheduled Tribes in matters of promotions,” it observed. 

It further ruled that since Articles 16(4) and 16(4A) do not confer fundamental right, courts cannot issue a direction to the state government to provide reservations. This explained that since the state government had decided not to make reservations, it did not have to collect quantifiable data at all.

“DOWRY CRUELTY AND DOWRY DEATH”

Introduction

In India, marriage is steeped in rituals, and deep-rooted cultural values are conveyed by word of mouth, and in some cases, with changing times. There is one tradition, however, that stubbornly opposes changing the dowry system in India, it has origins in medieval times when her family gave a gift in case or kind to a pride in preserving her freedom after marriage. It became the only legal way to get married during the colonial period, with the British making the custom of dowry compulsory.

A dowry is transfer of parental property, gifts or money in the case of a daughter's marriage. Dowry is in contrast to the associated bride price and dower definitions. Although bride price or bride service is a contribution to the bride's parent's dowry by the groom or his family, it is the wealth transferred from the bride's family to the room or his family, ostensibly for the bride. Likewise, dower is the property that was settled on the bride herself by the groom at the time of marriage and remains under her ownership and control. Dowry Prohibition Act, 1961, was enacted to outlaw dowry and related offences

Enactment of Legislation related to Dowry –

The Dowry Prohibition Act, 1961.

The first national dowry-related law was enacted as the Dowry Prohibition Act, 1961. The act sets out a range of preventive and corrective measures but, as could be expected, the objectives were not met. The failure is not primarily due to a few law flaws, but also due to the government's compliance, but due to the fact that the custom of dowry is too well etched among all the cross-sections of society. The lack of government compliance is that no action is taken on reported incidents as well as people are not aware of the regulations. Although the law and the courts continue to provide assistance, the situation has not improved.

In the year 1961, the dowry prohibition act was revised twice to extend the meaning of the term "dowry" and to intensify punishment for the various breaches of the act's provisions. Section 2 of the Act states that any property or valuable protection provided or agreed to be given directly or indirectly in connection with marriage in the future amounts to dowry from one hand to another. The phrase used in the original Act was translated by the court as "as consideration for the marriage of such parties" to give a specific sense to the word "dowry. ' In Inder Sain v. State, it was held that "consideration" was limited to intent or intention, compensation or reward for marriage and would therefore not include any property sought or rendered after marriage. The expression “any time after the marriage” has been brought to replace “after marriage” to eliminate a restricted interpretation of the statute. Gift concepts are only allowed in Indian marriages which are customary in nature, which does not create a financial burden on a family. A list of such presents is to be prepared along with the value and description and must be signed by the bride and bridegroom.

In the case of Sanjay Kumar Jain v. Delhi State it was said that "The practice of dowry is a great slur and curse on our culture, democracy and land. It is unbelievable how often in our culture these tragic and condemnable instances of death by dowry occur. Every effort has to be made to tackle and curb the growing threat of dowry death. The legislature was seriously concerned with this unfortunate reality of our society and the Dowry Prohibition Act, 1961, was enacted to curb the increasing threat of dowry deaths with a firm hand.

Some strict penal laws were passed or amended from time to time to stop taking dowry and demanding it. Under section 3 of the act giving and receiving dowry is punishable with a minimum term of 5 years and a fine of Rs 15,000 or dowry amount, whichever is greater. Similarly, dowry demands are also punishable under section 4 for the period of six months to five years, and fine up to Rs 15,000. After a few changes the act aims to curb this social threat. Section 7 includes persons and organizations that may initiate the proceedings :

·         Police

·         Aggrieved person

·         Family, Relatives and Friends

·         Any recognised welfare institution or organization

Section 8 attempts to make act harder by incorporating crimes that are not non-bailable and cognizable. Section 8(a) further notes that the burden of proof lies with the individual denying the offence.

A traditional practice in marriages is that bride's articles and ornaments are immediately taken into possession by the husband or his family may be transferred to the wife or her heirs by virtue of section 6, with a period of three months breaching such an act amounting to imprisonment from six months to two years and a fine of five to ten thousand rupees. In the case of Pratibha Rani v. Suraj Kumar, the Supreme Court held that taking possession of bride articles would lead to a criminal breach of confidence punishable under section 405 of the penal code.

The faulty definition of dowry and lack of compliance instrumentality is a joint parliamentary committee that investigated the workings of the act in 1982 and provided two reasons for abject failure of act. While, the definition of dowry was updated and the compliance provision was actively worked out after the 1982 committee report.

Indian Penal Code, 1860.

Not only dowry problems are the appropriate target of criminal law, but dowry-related violence often falls under the purview of criminal law. Failure to dowry legislation and rise in dowry death rates contributed to the 1983 and 1986 Statutory Amendment by introducing section 304(b) and section 498(a). In short, we may assume there are four cases in which married woman is exposed to violence and abuse leading to an offense being committed.

 First, Dowry Death-Section 304(b) IPC:- The crime referred to in section 304(b) describes "Dowry Death" as the death of a woman caused by burns or physical injury, or under unnatural circumstances within seven years of her marriage, where it is shown that she has been raped or abused by a husband or his family in relation to dowry who is punishable by a term of seven years imprisonment for life. The seven-year period would be considered to be a cut-off date due to seven steps taken by the bride and bride groom of the holy nuptial fire for marriage completion where one step is considered to be one year. In Punjab v. Iqbal Singh case, the Supreme Court clarified the seven-year period as it is called tumultuous one after which the legislature believed the couple would have settled in life.

The term dowry was not specified in the Indian Penal Code, whereas the clarification in section 304(b) stated that dowry is to have the same significance as that defined in section 2(1) of the Dowry Prohibition Act, 1961.

Essential of Dowry Death under section 304(b) of IPC :

·         Death was caused by burns or damage to the body, or other than in normal circumstances.

·         Death was to have taken place within seven years of her marriage.

·         Woman must have been exposed to husband or his family being brutalized or abused.

·         Cruelty or abuse should be linked to dowry demand, and soon before death.

In Satbir Singh v. State of Haryana, the Apex Court held that the prosecution is in a position to define the ingredients of section304(b), IPC as the burden of proof of innocence shifts on defence. The rules laid down in section304(b), IPC are stricter than those laid down in section498(a) of the Penal Code. The crime is clear, unassailable, and triable by a Sessions judge.

Second, Cruelty on woman by Husband or Relatives-Section 498(a), IPC:- When the woman is exposed to abuse or violence by her husband or family member. His husband's or relatives ' cruelty has been punishable by imprisonment for up to three years and 498(a) has been fined. The term cruelty is both mental and physical torture. It consists of any wilful conduct likely to drive the woman to commit suicide or to cause danger to her life, limb or health, mental or physical or harassment to coerce her or any other person by making an unlawful demand for dowries such as property or any goods.

In the case of Vijeta Gajra v. State of NCT Delhi, it was held that, within the context of section 498(a), IPC, the foster sister is not "relative" to attach liability for causing cruelty against the applicant.

In the case of Arnesh Kumar v. State of Bihar the petitioner approached the Supreme Court by way of a special request for leave to issue an anticipatory bail in which he had previously been unsuccessful. Section 498(a) of the IPC was enacted with an avowed purpose to counter the danger of husband and his close relatives harassing a woman. Supreme Court said it is a fact that section 498(a) is a cognizable and non-bailable offense that has earned it a dubious position of prestige in the law used as a weapon rather than shields by disgruntled women, the simple way to harass is to arrest the husband and his relatives under this provision.

In a quiet number of cases, old and bedridden fathers and mothers of husbands, their sisters living abroad who have never met each other will also be arrested so the Apex Court gave the following instructions before arrest under section 498(a) of the IPC:

·         Government of the State to instruct the Police not to arrest without a warrant unless they feel the need to comply with all the parameters set out in section 41 of the Cr. P.C.

·         All police officers shall provide a check list containing the sub-clauses referred to in paragraph 41(1)(b)(ii) and shall file and provide the reason and material for the arrest.

·         The magistrate, while authorizing the detention of the accused, shall examine the report provided by the police and, after recording his satisfaction, may authorize the detention.

·         The decision not to be arrested was forwarded to the magistrate within two weeks from the date of the institution of the case with a copy that the arrests were not made on the basis of the offense referred to.

·         If the person fails, at any time, to comply with the terms of the notice or refuses to identify himself, the police may arrest him for the offense referred to in the notice.

Third, Intentional Death of women-Section 302 IPC:- If the person intentionally causes the death of a woman, it is punishable under section 302 of the IPC.

Fourth, Abetment of Suicide of Woman-Section 306 IPC:- If the husband and his relatives create a situation that led to the suicide of a woman within seven years of marriage, they fall within the scope of section 306.

Code of Criminal Procedure, 1973

Sections 174 and 176 deal with investigations and investigations concerning the causes of unnatural police and magistrate deaths. The 1983 amendment makes it mandatory for the police to send the body for a post-mortem examination if the death of a woman occurred within seven years of marriage in a case of suicide or any question of doubt.

Indian Evidence Act, 1872

A new rule, section 113(b), on the burden of proof in the event of a dowry death has been established, according to which the court must conclude that a dowry death has been caused by a person who has been shown to have subjected a woman to cruelty or abuse shortly before her death.

In view of the essence of the dowry offenses that are usually committed in the privacy and secrecy of residential homes, it is not easy to obtain the clear and direct evidence required for the prosecution. Accordingly, amendment Act 43 of 1986 introduced section 113(b) in the evidence act of 1872 in order to strengthen the hands of the prosecutor by enabling a certain assumption to be raised if certain basic facts are identified and the unfortunate incident of death occurred within seven years of marriage.

Section 113(b) of the Indian Evidence Act provides that if it is determined that, shortly before the death of a woman, such a woman has been subjected to cruelty or abuse for, or in connection with, any request for the death of a woman under section 304(b) of the IPC.

In the case of State W.B. v. Orilal Jaiswal, it is argued that, given the assumption, the standards of proof and protection will remain the same.

Police and Law Enforcement

Throughout culture, the role of the police is to serve as a protection for the general masses, but in fact, by functioning as a police force, they create fear in the minds of the general public. Police are also accused of actions, behaviors and beliefs that reduce the likelihood of the legislation being applied effectively in the present context. The typical allegations made by the public to the police are: arriving too late on the scene of the crime, distorting the facts in the First Information Report, always choosing to equate dowry deaths to suicide, and carrying out the investigation in a less appropriate manner and in a more leisurely manner. The police treat violence against women as a family affair, and they are always unable to report the case themselves. Several police lacunas can be seen in several Supreme Court cases, such as Bhagwant Singh v. Commr. Police Delhi The Apex Court claims that the rate of accidental deaths is much higher than that suggested by the police. Police diaries are not adequately kept and produced before a magistrate. The investigating officer has sometimes changed, which has a serious effect on the investigation. Corruption is due to the shortcomings of the police.

The police have their own justification that the case is unsatisfactory. Next, insufficient evidence on the basis of independent witnesses. A dying declaration, which is a significant piece of evidence, often contradicts the declaration of the related individuals. Forensic evidence is also generally helpful, and it would be better if experts were brought to the victim at the sight of the occurrence. Inordinately pause in medical reports.

The Judiciary

Normally, on a number of occasions, the Supreme Court expressed sorrow and disturbing view of the deaths of young brides. In Virbhan Singh v. State of U.P, the apex Court claimed that, in view of the that deaths of the brides, these lethal crimes must be enforced whenever they have been discovered and then proven to be merciless and dissuasive. The Supreme Court is concerned about the acquittement of some of the supposed guilty parties, but the State cannot bring an appeal to the apex Court. In Samunder Singh v. State of Rajasthan the court held that anticipatory bail could not be given in cases of bride burning and dowry deaths. There was some frustration at the level of the trial itself with the conclusion by the courts that a person with a 100 percent burn was not eligible for a dying declaration. If there is any other matter stated on behalf of the victim of abuse, the matter does not emerge which creates a lacuna in the Indian legal system.

Conclusion

Dowry Death is a social curse that is a burning issue in Indian society. Organized strategy by women's welfare groups, the military, public servants and the judiciary through the use of dissuasive penalties for dowry deaths. It can be noted that the Government of India, along with the Indian judiciary, has introduced cooperative and compassionate legislation to safeguard the life rights and dignity of women and to provide more justice for victims of abuse or violence by their husbands and relatives. The reform in the education system has led to an increase in the educational status of women, and the door-to-door job service would reduce dowry deaths. However, some corrective measures need to be taken to eliminate or at least reduce this social danger of dowry death, but most importantly, it requires the public will and determination to avoid the materialistic greed of dowry demands. In cases involving a decrease in the incidence of dowry deaths, abuse or brutality, more female police workers should be held in such a way as to be eligible in situations involving unexplained deaths of women. In the interests of proper investigation and justice, the inquiry can not be carried out below the level of Assistant Commissioner. Punishment for suicide alleviation must be increased to a maximum of seven years. It will certainly be helpful to have a logical and practical approach to the above-mentioned problem.