Bar Council of India www.lawtool.net Constitution: The following persons are the members of the Bar Council of India. 1. One member from each State Bar Councils. He will be elected by the members of the respective State Bar Councils. 2. Attorney General of India-Ex Officio member. 3. Solicitor General of India-Ex officio member. Ex-officio members will continue as members so long as they hold the offices of Attorney General and Solicitor General posts. The other members will continue as members so long they are continuing as members of the State Bar Council. Powers: Bar Council of India is empowered with the following powers. 1. It is a body corporate. 2. It is legal persons having the autonomus status. 3. It has a common seal and perpetual succession. 4. It can do the following things in its own name. Buying and selling properties, Entering into agreements, Filing cases etc. 5. Transfer the name of the Advocate from one state roll to another state roll on his application. 6. It can constitute executive committee, disciplinary committee, legal aid committee etc. 7. To hear and decide appeal, review and revision against the orders of the disciplinary committee of the State Bar Council. 8. Frame rules relating to day to day administration. Functions: S.7 of the Advocates Act empowers the Bar Council of India to perform the following functions. 1. Frame the rules relating to the professional ethics. 2. Frame the rules of procedure to be followed by the disciplinary committee of the State Bar Councils and the Bar Council of India. 3. Protect the rights and the privileges of the Advocates. 4. Encourage legal reforms. 5. Decide the repute relating to professional misconduct which is transferred from the disciplinary committee of the State Bar Council to the Bar Council of India. 6. Decide the appeal against the disciplinary committee of the State Bar Council. 7. Supervise the functions of the State Bar Council. 8. Prescribe the syllabus of the law course in consultation with the State Bar Councils and the universities. 9. Inspect the universities for the purpose of giving recognition to the law degrees of the universities. 10. Spend the Funds of the Bar Council of India for the proper purposes. 11. Conduct elections for the purpose of electing its members. 12. Allow the persons studied abroad to practice in India. 13. Do all other acts which are necessary for the effective implementation of the above said function.

State Bar Council www.lawtool.net Constitution : S.3 of the Advocates Act empowers for the creation of State bar councils for every state. Number of members of the Bar Council varies from state to state, depending upon the number of Advocates on the State roll. 1. If the number of Advocates in the state roll is less then 5000 then the number of Bar Council members are 15. 2. If the number of Advocates are 5000 to 10000 then the number of Bar Council members are 20. 3. If the number of Advocates are more then 10000 then the number of bar Council members are 25. Members are elected by the Advocates whose names are there in the state roll by a single transferrable vote. The members hold office for a period of 5 years. The Advocate General of the Concerned State is an ex-officio member of the State Bar Council. So long as he is holding the office as Advocate General he can act as the member of the Bar Council. Powers: The State Bar Council is empowered with the following powers. 1. It is body corporate. 2. It is a legal body having the autonomous status. 3. It has a common seal and perpetual succession. 4. It can do the following things in its own name. Buying and selling properties, Entering into agreements, Filing cases. 5. It can constitute executive committee etc. 6. It can frame rules and regulations relating to day to day administration. Functions: Advocates Act empowers the State Bar Council to do the following functions. 1. Enroll the qualified persons as Advocates. 2. Prepare the Advocates roll. 3. Take disciplinary action for professional misconduct. 4. Protect the rights and privileges of the Advocates. 5. Encourage law reforms. For this purpose it organize seminars, talks and publish journals. 6. Constitute executive committee, enrolment committee, disciplinary committee, legal aid committee etc. 7. Manage the funds of the Bar Council. 8. Conduct the election for electing the members of the State Bar Council. 9. Prepare legal aid programmers and allot separate funds for the implementation of such schemes. 10. Prepare Schemes for helping the poor Advocates and allot separate funds for the implementation of such schemes. 11. Grant recognition to the law colleges. 12. Do all other acts which are necessary for the effective implementation of the above said functions.

Federal Structure :States are classified into federal and unitary. In a Unitary State, the Sovereign power to legislate is vested in one Central Legislature, i.e., the Parliament. E.g.: The United Kingdom, France etc. In a Federal State, the Federal State and the Federating Units share the Sovereign power of the State. The essential feature of federalism is that there is the distribution of executive legislative and judicial authority among bodies which coordinate with and are independent of each other (Dicey). Eg. USA, Switzerland, Australia, Canada etc. Features: (i) Supremacy of the Constitution : A Federation is brought into existence with a 'Compact' among the federating units.This 'Compact' is the sheet-anchor on which the Consti- tution is framed. Hence, the Constitution is supreme and all acts—legislative, executive or judicial—are to be in conformity with the Constitution. (ii) Division of Powers: The distribution of the Sovereign powers between the Federal State and the federating units is the second feature. Each State has provided for this, in its own way in its Constitution. The residuary powers may be vested in the States as in the U.S., Australia and Swiss Constitutions—or with the centre as in Canada and India. (iii) Participation in Amendment: In amending the Con- stitution, there is the participation of both the Union and the States. This gives certain amount of rigidity to the Consti- tution. As Prof. Wheare points out, it is not the Constitution but ultimately the people who are rigid or flexible. The essence of participation of the Centre and States is that the amending power is beyond the powers of the Centre alone or States alone. (iv) Judicial Review : The Supreme Court is the final interpreter of the Constitution and the law. Hence, any question of competency of the Centre or the States is decided by the Courts. Quasi Federal Structure: Cases : (i) In Keshavananda Bharati's Case the Supreme Court held, that inter alia, Federalism is the 'basic structure' of the Constitution. (ii) In State of West Bengal V Union of India (1977) after the 1977 General Elections, the Janata government wrote to 9 chief ministers to advise the Governors to dissolve the Assemblies. This was challenged as a 'threat'. The suits were dismissed. Held, Indian Constitution is Amphibian (both Unitary and Federal) in nature. Distribution of Legislative Powers : (i) One of the essential features of a federal State, is the distribution of the sovereign power to legislate between the Union and the States. The Indian Constitution is modelled on the federal structure, but there are more unitary powers than federal. This has led to hold the Indian federalism as quasi federal or Amphibian (both Unitary and Federal). This is evident from Keshavananda Bharati's Case, State of West Bengal V.Union of India and State of Rajastan V.Union. (ii) Distribution : Arts. 245 to 253 deal with distribution of legislative powers and the special circumstances when the Union may make law in the State list. (a) Union List: The Parliament may make law for the whole or any part of the territory of India, and has exclusive power to legislate on any matter enumerated in List 1 of 7th Schedule called the Union List :This has 97 items. Eg.: Defence, Foreign affairs, Extradition, Railways, Air- ways, Census, currency, foreign exchange, War and Peace, Diplomatic and Consular representation, citizenship, aliens, Reserve Bank of India, Banking, Insurance etc. (b) State List: Legislatures of State may make law in the State List of the 7th Schedule and the law made by the State is applicable throughout the territory of that State. This has 66 items. Eg. : Agriculture, Fisheries, Markets and Fairs, Theatres, Sales Tax, Land Revenue, Public Health Sanitation, Hospitals and Dispensaries Taxes on Agricultural Income, Entry Tax, Profession Tax etc. (c) Concurrent List: Parliament and State Legislatures may make law in the Concurrent List of the 7th Schedule. This has 47 items. Eg. : Contracts, Trusts, Trade Unions, Charities, Price Control, Factories, etc. But Education was added from State List: 42nd Amendment. (d) Residuary:After distributing the Sovereign power to legislate between the Union and the State, according to Union List, State List and Concurrent List, the Constitution vests the residuary in the Union [Art. 245(4)]. This is called the Residuary. In the U.S., Australian and Swiss Constitutions, the resi- duary is with the local States. As Prof. Wheare points out, in his "Federal State" the vesting of the residuary tilts the balance in favour of federalism. But, in Canada and India, the residuary is with the Union and hence, they have more slant towards Unitary Statehood. The leading case on residuary is Union of India V. Dhillon (1975). It was held that to test the Union Law, we have to find out whether that Law is encroaching any of the items of State List.If it does not, then it is within the power of the Union. The reason is, the Union List, the Concurrent List and the residuary are with the Union. Hence, Wealth tax imposed on Agricultural Land by the Parliament was upheld by the Supreme Court as this did not encroach State List. (iii) Powers of the Parliament to Legislate in State List: There are Four circumstances when the Parliament may make law in the State List: and, in such a case, the federal structure gives way to the Unitary State. Of course, all the 4 circumstances are specific and are limited. (1) Art. 249 : National Interest : If the Rajya Sabha declares with a 2/3 majority that in National Interest Parliament should make law in a particular item in the StateList, then such a law may be made by the Parliament. The life of such a resolution is one year and may be renewed if not so renewed, such a law operates for 6 months after the resolution ceases. Eg.: Essential Commodities Act. (2) Art. 250 Emergency : When a proclamation of Emer gency is in operation, Parliament shall have the power to make law in the State List. Such a Law will be in operation during emergency and 6 months after the emergency is lifted.Eg.: Defence of India Act and Rules. (3) Art. 252. States delegation: If Two or more States, in their legislatures pass resolution empowering the Parliament to make law in a specified item in the State list, then Par liament may make law in that item. That law is applicable to those States only. State have no power to amend such law. Eg. : Prize Competitions Act. (4) Art. 253. Treaties : Parliament is empowered to make law to implement any treaty, agreement or convention with any other Country or with International Organisations. Doctrine of 'Occupied field': In the Concurrent list, both the Parliament and the State may make law. If there is any repugnancy or conflict between the State law and the Union law, the Union law prevails. Parliament may make law in an item in the Concurrent list. State may also make law in the same item. In such a case, if a conflict arises the Courts have applied the doctrine of 'Occupied field'. The leading case is State of Orissa V. Tolloch & Co. The Orissa Legislature made a law levying taxes on all minerals for the better development of mining areas.Later, the Parlia- ment in 1957, made the Mines and Minerals Act. This was a comprehensive law empowering the Central Government to take measures for developing the entire Indian mineral re- sources. Held, the Parliament had shown its intention to cover the entire item of legislation. There was no place for Orissa law. Hence, the Orissa law is superseded and Parliament's law prevailed. In Forbes V. Manitoba, (Canada) a Province and the dominion (Centre) had made income tax laws. Question was whether occupied field applied. Held, the two taxes could co-exist, without any conflict. Hence,occupied field would not apply. Doctrine of 'Pith & Substance': Parliament has the power to make law in the 'Union List' & the States in the 'State List'. Either Parliament or the States should not trench upon (invade) each other's field of legisla- tion. If Parliament makes law in State list, it would be ultra vires.But, how to test the trenching ? This is done by applying the doctrine of pith and substance (or pith and marrow). The court considers the true nature and character of legislation. Case : (1) Prafulla Kumar V. Bank of Commerce.Bengal Money lenders Act was passed to protect agricul- turists . It was challenged on the ground that it affected promis- sory note. 'Money Lending' is in State List, 'Promissory Note' is Central Subject.Hence, the question was whether the State law was invading Central Subject. Applying pith and substance, the court held that the true character was Money- lending,and promissory note was incidentally affected. Hence, the law was valid. Case : (2) State of Rajastan V. Chawla (1959).The State made a law regulating the use of amplifiers. This created a conflict between State List (public health) and Union list (Communications). Hence, there is an overlap. The Court applied 'pith and substance'. The pith was 'Noise, injurious to public health.' Hence, it came under public health. The encroachment on Union list is incidental.Hence, the Act was held valid. Case : (3) Gujarat University V. Srikrishna (1963). State List: 'Education'.Union List : 'Standards in institutions for higher education' .The Gujarat State prescribed Gujarati and Hindi as medium of instruction under 'Education'. This was challenged as violative of Union List.The true essence was higher education and hence, the State law was held Ultra Vires.

U.P.S.C. & SERVICES www.lawtool.net The Union Public Service Commission (Arts. 315 to 320) (i) Status : The Union Public Service Commission is a constitutionally constituted independent body under the Con- stitution.lt is an advisory body to help recruitment in Government Services.(Central) (ii) Composition : It consists of a Chairman and other members appointed by the President. The total number is fixed by the President. At least half of them should be with 10 years Government Service or experience. The tenure is 6 years. Retiring age is 65 years. (iii) Removal: The President may remove a member on a report of the Supreme Court given on a reference by the President to it. The grounds are Adjudged insolvency, inde- pendent engagement, or misbehaviour.However, infirmity is not a ground. Where a professor known to be blind was appointed, a member of the Bihar State Public Service Com. ,the Supreme Court held he cannot be removed under infirmity. Shankar Prasad V.St of Bihar 1993. (iv) Independence: The Union Public Service Commis- sion is independent because: (a) Its members cannot be removed except under a special procedure - by an enquiry conducted by a Supreme Court judge. (b)The service conditions of members should not be varied. (c) Its expenses are charged on the Consolidated Fund. (d) Future appointments are restricted to the members, (v) Duties : (a) It is the duty of the Commission to conduct examinations for appointments to Union Services. (b) To advise on any matter referred to it by the President. (c) To exercise statutory functions. (d) To present the annual report to the President who shall place it before the Parliament. (vi) Consultative Functions : The Union Public Service Commission shall be consulted : (a) On all matters relating to methods of recruitment to Civil Services. (b) On the principles to the followed in making appoint ments, transfers, promotions etc. (c) On all disciplinary proceedings. (d) On any claims relating to expenses spent by an official in defending legal proceedings of the Government. (vii) Binding nature of Commission's advice : (a) The Supreme Court has held in D'Silva V. Union of India (1962) that the recommendations of the U.P.S .C. are not binding. The President is to place the annual report before the Parliament. If any of the recommendations are not followed the Govern- ment should give specific reasons. This has kept the non- acceptance of the recommendation at a minimum.In respect of recruitment, if a list of merited candidates is submitted to the Government., such a list is not absolutely binding. On grounds of health, police report etc., even a merited person's name may be omitted,at the discretion of the Government. The Supreme Court has made it clear that the recommendations should not be taken in a light vein. They must be respected and followed.Other leading cases: State ofU.P. V. Srivatsava; Ram Gopal V. State ofM.P. (b) According to Art.320(c), the U.P.S.C. should be consulted by the Government. The Supreme Court, in U.P. V. M.Lai has held that this was not mandatory. Constitutional Safeguards of Civil Servants : (i) Introduction : In a Parliamentary System of Govern- ment, the policy is decided by the Cabinet. It is a body of officials—the Civil Servants—who actually put the policy of the State into operation. These are 'Permanent' officials whencompared to the political heads, the ministers, whose tenure is'temporary' (maximum : 5 years). As the Civil Servants system has a tendency to be tied to 'red-tape' and to routine work, and also lacking in responding to fresh ideas, the political head, the minister is expected to cure these evils, as he is responsible to the Legislature. (ii) Rules and Safeguards : Civil servants are the back- bone of the Administration. The success lies in selecting the right type of men, who are honest, impartial, efficient, sincere and disciplined. The best available talents can be attracted by offering security of service and safeguards against arbitrary dismissals or terminations. The Constitution aims at this objective. Articles 309 to 311 have provided for the safe- guards which are beyond the ordinary powers of the Parliament. (iii) Art. 309 : Recruitment and Conditions of Service of the Union and State Civil Servants may be regulated by the Acts of Parliament or State Legislatures. Until then, the President and the Governor may make rules regulating the recruitment and conditions of service. (iv) Tenure : Art. 310 provides that the Civil Servants, Union or State, hold their jobs during the pleasure of the President or the Governor as the case may be. This is the doctrine of pleasure having its origin in England. 'The pleasure of the Crown' means that Crown is not subject to any restrictions and hence such a person can be terminated, at any time without giving any reasons. This doctrine has undergone some changes in England. Our Constitution has imposed some limitations in Arts. 310 and 311. Contract Services : The President or the Governor may appoint persons with special qualifications under contract of service: compensation is to be paid if the post is abolished or the person is made to vacate. (v) Dismissal, Removal or Reduction in Rank : These are major penalties. Protection is given only against them. (Minor Penalties like censure, admonition etc. are not within Art.311. Similarly "suspension order" is not a penalty and is not within Art.311) Two conditions have been imposed. (a) Under Art. 311 (1), no Civil Servant should be dismissed or removed by an authority subordinate to the appointing authority.In Rangachary 's Case, the Sub-Inspector had been appoin- ted by the I.G.P., but was dismissed by the D.I.G. Held, Dismissal was bad. (b) Procedural Safeguards : Art. 311(2). A Civil Servant may be dismissed, removed or reduced in Rank, but the procedure to be followed is : 1. He should be given a show cause notice stating clearly the charges; 2. An Enquiry is to be conducted; 3. He must be given an opportunity to defend himself. This requires that the principle of natural justice must be followed, i.e., there should be no BIAS, and the rule audi alterem partens (Hear and decide) must be followed. Otherwise, the enquiry becomes ultra vires. 42nd Amendment: After the above enquiry, if a penalty was proposed against the Civil servant, he was given the opportunity of being heard against such proposed penalty. This second opportunity is dropped by the 42nd Amendment. Exceptions : (1) The protection under Art. 311 will not apply to a Civil servant who has been convicted on a criminal charge. (2) Where the concerned authority is satisfied that for some recorded reason it is not reasonably practicable to conduct the enquiry, he may not conduct the enquiry. (3) Where the President (or Governor) is satisfied that in the interests of the Security of the State it is not expedient to hold the enquiry.In these three circumstances, Art. 311 may not be followed. In Union of India V. Tulsiram Patel, the Supreme Court held that these were Constitutionally prohibitory injunctions and no enquiry need be held. These were made in public interest and for public good. Hence, enquiry need not be conducted and principles of natural justice need not be followed. Leading Cases : Shyamlal V. State of U.P. S, an Engineer in Government service was compulsorily retired on comple- tion of 25 years of qualifying service, as per rules. S contend- ed that this was removal. Held, compulsory retirement did not amount to removal. Moti Ram V. Frontier Railway. A permanent railway employee under Rule 149(3) of the Railway Code could be terminated without following the procedure of Art.311(2). The Supreme Court struck down this rule.Dingra V. Union. D was a Class III employee. He was allowed to officiate in Class II. Subsequently, he was reverted to Class III. Held, Art. 311 did not apply. It applies, if the reduction in rank is by way of punishment. Appeal dismissed. State of Punjab V. Raj Bahadur. A probationer comes within Art. 311, if his termination is by way of punishment (Stigma Doctrine).

Independence of the Judiciary: (i) Meaning : The Constitution has provided for a single hierarchy of courts with the Supreme Court at the Apex. The Supreme Court is the Guardian of and the protector and theguarantor of the rights of the individuals. It is considered as a sentinel on the 'qui vive'.Independence of the judiciary is one of the cardinal principles of democracy and our Constitution has placed the Supreme Court at the highest pedestal as the final interpreter of the law and of the Constitution. It’s decisions are binding on all the Courts in India (Art. 141). Independence means freedom from interference of the Legislature and the Executive. This is in contradiction to the'Committed Judiciary', where the judges decide, subject to certain circumscribed limitation. (ii) Origin : One historical incident in England which hastened the independence of the judiciary is relevant. Charles I, rushed to the House of Lords, when it was hearing a case and put three questions to the Judges. All the judges, agreed to the first two questions. Then the king asked 'know ye thou the judges, that whatever we sayeth and do is law!'All Judges agreed. But, Chief Justice Coke said that he would decide that when it came to the Bench!. The consequence was that he was dismissed. But, this had such a tremendous impact that in the few years to come, the judiciary became free from the Executive. (iii) India : The Constitution makers provided for the independence of the judiciary by making suitable provisions in the Constitution. (a) Appointment: Art 124—Judges of the Supreme Court and of the High Courts are appointed by the President of India. In appointing a Supreme Court Judge, the president consults the Chief Justice of India and the Judges of the Supreme Court and of the High Courts as he may deem necessary. (b) Qualification: These are prescribed in the Constitution and not left to the will of the Executive. The person must be: (1) a judge of a High Court for at least 5 years; (2) an Advocate for 10 years or, (3) a distinguished jurist. (c) Tenure: Every judge holds his position until he reaches the age of 65 (in case of Supreme Court) and 62 (in case of High Courts). (d) Salaries etc. The salaries are fixed and prescribed in the schedule to the Constitution and are charged on the Consolidated Fund of India. This is not a subject to vote in the Parliament. (c) Removal: Art. 124(4) -The procedure for removal of a judge on the ground of proved misbehaviour or incapacity is as follows. Each House of the Parliament with a 50% strength of its total membership and with a 2/3 majority must decide by presenting an address to remove the judge, and the President must issue the order for removal of the judge, in the same session. Parliament may make law as to how the investigation and proof of the misbehaviour or incapacity is to be proved. (f) Conduct of the judge should not be discussed in any State Legislature (Art. 211), or by the Parliament (Art. 121). (g) Restriction: After retirement, no judge of the Supreme Court should plead or act in any Court or before any authority in India. These provisions have made the judiciary independent. The judges may deliver judgements in a free and calm atmosphere, without aspiring for any favour of the Government. Recent Development : The seniority-rule followed in appointing the Chief Justice of India was deviated in appointing Judge Ray as the Chief Justice, ignoring the seniority of the 3 judges of the Supreme Court (1973). The consequence was that the 3 senior most Judges Hegde, Grover and Shelat resigned. There was a nation-wide resentment to the attitude of the Central government in the appointment of the Chief Justice.Transfer of Judges Case (1982) is a landmark case. The Supreme Court interpreting Art.222 stated that the President may after consulting the Chief Justice of India, transfer a judge from one High Court to another. This must be for public interest and not by way of punishment. Personal inconvenience, language problem of the concerned Judge should be considered. Prior consent of the judge for transfer was held not necessary. The Court has held that the concept of the independence of the judiciary is one of the cardinal values of our Constitution. Hence, it has a status free from capricious and whimsical interference from outside. In 1977, Mr. Justice Khanna was superseded and his junior Mr. Justice Beg was appointed as Chief Justice of the Supreme Court. Criticism mounted against this. Mr. Palkivala said the judge had to pay his price for his integrity and independence. When Janata Government came to power, it revived 'seniority rule' and is followed since then. The Lok Sabha, on March 2012 passed The Judicial Standards and Accountability Bill, [Constitutional 114th Amendment Bill, 2010,] This is yet to be passed by the Rajya SabhaIt provides for accountability of judges, and, to establish credible and expedient mechanism for investigating into individual complaints for misbehavior or incapacity of a judge of the Supreme Court or of a High Court. It also provides to regulate the procedure for such investigation; and for the presentation of an address by parliament to the president in relation to proceeding for removal of a judge and for matters connected with such matters.The standing Committee , recommendation that seeks to "restrain" judges from making "unwarranted comments" against other constitutional bodies or personsThe author opines that the proposed Amendment is against the independence of the Judiciary which is part of the basic structure of the Constitution. Jurisdiction of the Supreme Court: The jurisdiction of the Supreme Court is the largest compared to any other Supreme Court including the U.S. Supreme Court. Its jurisdiction: (i) Original jurisdiction—Arts.32 (Writs) and 131. (ii) Appellate Jurisdiction: (a) Interpretation of the Constitution—Art. 132. (b) Civil Appellate Jurisdiction—Art. 133. (c) Criminal Appellate Jurisdiction—Art. 134. (d) Special Leave to appeal—Art. 136. (iii) Advisory Jurisdiction—Art. 143. (iv) Contempt of Court Jurisdiction—Art. 131. Original Jurisdiction: Art. 131. The Supreme Court has exclusive Original Jurisdiction in (a) Disputes between Government of India and any one or more States. (b) Disputes between the Government of India and any one or more States on the one side, and one or more States on the other. (c) Disputes between two or more States.This is confined to Inter-State disputes. State of Bihar V Union of India. State of Bihar had filed nine suits for short supply of Iron caused by the Railways. It had filed against Union Government as first defendant and, Hindustan Steels or Iron and Steel Co. Ltd. as second defendant. Held, the suit would not lie to the Supreme Court underArt. 131, as it is confined only between Union and States. If one of the defendants is a person, firm or association, the suit would not lie. State of West Bengal V. Union of India. In this case under the Coal Bearing Areas Act, the Union had the power to acquire coal bearing land including lands belonging to the States in India. The Supreme Court held the Act was valid. The suit could be entertained under this Article. Civil Appellate Jurisdiction : Art. 133. This was amended in 1972 (30th Constitutional Amendment Act).An appeal lies to the Supreme Court from any judgment, decree or final order in a Civil proceeding of a High Court, if the High Court certifies : (a) that the case involves a question of law of general importance and (b) that in its opinion the said case needs to be decided by the Supreme Court. Certificate of fitness may be granted by the High Court, on its own motion, if it deems fit to do so. It may certify even on an oral application made by the aggrieved party, after passing the decree, judgment or final order. The appellant may urge as one of the grounds that a substantial question of law as to the interpretation of the Constitution is involved. No appeal lies to the Supreme Court from the judgment,decree or final order of a Single Bench of the High Court. Before 1972 : Before the 30th Amendment, the value of the subject matter was Rs.20,000/- or above. The consequence was that there was an automatic right to appeal to the Supreme Court. But now me certification by the High Court which is discretionary and unless it certifies, no appeal is allowed under this Article. This has, in fact, reduced the number of appeals. Criminal Appellate Jurisdiction: Art. 134. This has been enlarged by the Enlargement of Criminal Appellate Jurisdiction Act 1970. An appeal lies to the Supreme Court from any judgment, final order or sentence of the High Court, in the following cases: (a) When the Sessions Court acquits, and on appeal by the State, the High Court reverses the order of acquittal and sentences the accused to death, or life imprisonment or imprisonment for 10 years and above, an appeal lies to the Supreme Court. (b) If the High Court has withdrawn the case for trial before itself, and has in such cases sentenced the accused to death, life imprisonment, or 10 years imprisonment and above, an appeal lies to the Supreme Court. (c) If the High Court certifies that the case is a fit one for appeal to the Supreme Court. Under Art.l34A, the High Court may, on its own motion, issue a certificate in suitable cases. It may also issue a certificate, on an oral application of the appellant, after the passing of its decree, final order or sentence.The Supreme Court Rules have provided for a detailed procedure. Special Leave Jurisdiction: Art. 136.: S. L. P. (Special Leave Petition) The Supreme Court, in its discretion, may grant special leave (permission) to appeal from any judgment, decree, sentence or order in any cause or matter passed by any court or tribunal in India. Exception : Cases covered under the Armed Forces. In Pritam Singh's Case, the Supreme Court laid down that special leave would be given in only exceptional circumstances and when grave injustice is done. In this case special leave was not granted as the conviction was based on the concurrent findings of the two lower courts. There was no violation of natural justice. Mohinder Singh V. State (1953): M had been convicted by the Sessions and sentence confirmed by the High Court. But, the High Court had expressed doubt whether the murder was with a Gun or Rifle. Thus, there was doubt about a material evidence. Hence Special Leave was granted. Advisory Jurisdiction : Art. 143. Under Art. 143(1), the President may refer a question to the Supreme Court for its Advisory Opinion, and the Court may after such hearing as it thinks fit, report its opinion to the President.The question of law or fact which has arisen (or likely to arise), must be of such a nature and of such importance that it must be expedient to get the opinion of the Supreme Court. The Court's jurisdiction is discretionary [Art. 143(1)]. Art. 143(2): If there is any dispute arising out of any treaty, agreement, covenant or sanad or other similar instrument, made before the commencement of the Constitution, then the President;may ask for an advisory opinion. The Supreme Court shall give its opinion in such cases [Constitution 7th Amendment1956]. Under Clause (1), the Supreme Court has given Advisory opinions in a number of cases : 1. In re Kerala Education Bill; 2. In re U. P. Tangle Case; 3. In re Special Courts; 4. In re Beruberi Union; 5. In re Presidential Election etc. 6 In re Keshav Singh Case 1964 7 In re Cauvery Dispute 1998 8 In re 2 G case 2012 Nature of Advisory Opinion:The question whether the Advisory opinion is binding on the President is not clearly answered.The American Supreme Court does not render advisory opinions at all. The Australian High Court and Canadian Supreme Court have declined to give advisory opinions as such opinions might prejudice the rights of future litigants.Our Supreme Court has given its advisory opinion in all cases referred to so far. As to its binding nature it is a declaration of law per Bhagavathi J. : In Mehta V. Gujarat Legislative Assembly.In re Special Courts, the Supreme Court said that the opinion was binding on all the Courts in India. Such a'considered opinion', cannot be a mere recommendation, and prudence demands that the advice is followed.

Emergencies www.lawtool.net There are three types of Emergencies contemplated under the Constitution. These are : (1) National Emergency Art. 352. (2) State Emergency Art. 356. (3) Financial Emergency Art. 360. National Emergency Art.352 (i) Proclamation : The President, if he is satisfied that a grave emergency exists, or there is an imminent danger thereof, whereby the Security of India (or any part) is threatened by war, external aggression or armed rebellion, may issue a proclamation of National Emergency. This may extend to the whole or any part of India. The President may vary or revoke by a subsequent proclamation. (ii) Conditions : (a) The President should not issue the proclamation unless the Union Cabinet communicates its decision to him in writing. (Union Cabinet includes the Prime Minister and other Cabinet Ministers.) (b) The proclamation has one month's duration. It must be placed before each House of Parliament and must be approved by both Houses: otherwise, it ceases to operate on the expiry of one month. The proclamation must be approved by the Rajya Sabha and Lok Sabha within one month (by the Lok Sabha within one month of its reconstitution, if it had been dissolved). (iii) Special Majority : The proclamation must be approved by the Houses with at least 50% of total membership and 2/3 majority in both the Houses (as in the case of Amendment). (iv) Duration :Such an approved proclamation would be in force for 6 months. It may be continued for 6 months at a time (no maximum duration is fixed). (v) Revocation: (a) The President may revoke the proclamation which he has issued under Art. 352(1). (b) He may revoke, if the Lok Sabha disapproves the proclamation or of its continuation. (vi) Initiation for Revocation : A special provision is made (a) At least l/10th of the total members of the Lok Sabha, may give notice in writing to the Speaker (if the House is in Session) or to the President (if the House is not in Session). (b) The notice must express the intention to move a resolution, disapproving the proclamation or of its continuation. (c) A special sitting of the House must be held within 14 days of such notice. (d) This enables the House, to make an appraisal of the circumstances, and to pass a resolution to continue or dis continue the Emergency. (vii) Amendments : 42nd and 44th Amendments have ultimately given Art. 352, a final shape. These changes were largely due to the experience we had during the emergencies, especially the National emergency declared on 25-6-1975. (viii) Proclamations issued :(a) Chinese aggression, 1962; (b) Pakistani aggression, 1971; (c) Internal disturbance, 1975. (ix) Effect of Proclamation: (a) Extension of Executive Power :The Executive Power of the Union extends to the giving of directions to the States, as to the manner of exercise of the executive power. (b) Extension of Parliament's Power :The power of the Parliament extends to make laws conferring powers and imposing duties, in any matter including those in State list. (c) Suspension of Art. 19 : Art. 358 When the proclamation is in regard to War or external aggression only, Art. 19 is suspended and not with respect to Armed rebellion. Parliament may make law and the Executive may operate, uncontrolled by Art. 19, but there must be a recital (reference) to the Emergency. (d) Suspension of Remedy: Art. 359 The President may by order suspend the remedy for any of the Fundamental Rights stated therein in Part HI except Arts. 20 and 21. The order is operative only during the pendency of the Emergency. (c) Habeas Corpus :44th Amendment prohibits the suspension of Habeas Corpus and Arts. 20 and 21 (Life and Personal Liberty). Hence, the evils of the Habeas Corpus Case (A.D.M. Jabbalpur V. Shukla) cannot be repeated (34,630 persons had been detained in the 1975 Emergency without a remedy). (x) Leading Cases :(a) Makhan Singh V. State of Punjab; (b) The Habeas Corpus Case; (c) Bennett Coleman V. Union of India. State Emergency : Failure of Constitutional Machinery : Art. 356 : (i) Duty : One of the duties fixed on the Union by the Constitution (under Art.355) is to protect the States against internal disturbance and to ensure that the government is carried on according to the Constitution. (ii) Proclamation : The President may issue a Proclamation of State Emergency on the report of the Governor of the State or otherwise. In order to issue such a proclamation a situation must have arisen, in which the government of that state may not be in a position to run according to the Constitution. (iii) Nature : (a) The President assumes to himself all or any of the functions of the State Government and the powers vested in the Governor or any other authority. (b) He declares that the power of the legislature become vested in the Parliament. (c) He may make any incidental or consequential provi sions as he deems necessary. Exception : The President has no powers to assume to himself any powers vested in the High Court or to suspend them. (iv) Duration : (a) The President may revoke the proclamation at any time. (b) If not so revoked, it must be passed by the two Houses of Parliament within 2 months. Otherwise it lapses. (If the Lok Sabha had been dissolved, the proclamation must be approved by it within 30 days of its reconstitution). (c) The duration is 6 months from the date of proclamation. (d) The duration may be extended, 6 months at a time by the Parliament, but the maximum duration is 3 years. (v) Limits on Duration: The Parliament should not extend the proclamation beyond one year from the date of issue,If it is to be extended a) there must be the National emergency in the whole of India. or in the State. and b) the Election Commission should certify that on account of difficulties conducting election to that State Assembly,is not possible. Effect of Proclamation i) The Parliament may confer on the President the power of the State Legislature to make Laws. ii) It amy authorize him to delegate such powerson any other authority. iii)The Parliament or the President may by law confer powers on other officers iv)If the Lok Sabha isa not in session , the President may authorize the expenditure on the Consolidated Fund of the State pending sanction of the Parliament. Operation of State Emergency Law: Any law made during State Emergency continues until it is amended by acompetent legislature. (viii) Instances : There are scores of instances when Art. 356 has been pressed into service. State Emergency was proclaimed in Punjab (1951), Pepsu (1952), Andhra (1954), Travancore-Cochin (1956), Orissa (1961) etc. (ix) Courts Interpretation : In Rao Virendra Singh V.India (1968), the Supreme Court held that the power given to the President is not discretionary but he must act according to the advice of the Cabinet. This was approved in Jyotirmoy Basu V India (1971). Financial Emergency : (i) Introduction :The framers of the Constitution visualised a possibility of financial depression requiring Central Government's intervention. The experience of U.S. in 1930's depression was recalled by some members. Suitable provisions were made in Art. 360, to meet such situations. (ii) Proclamation : If the President is satisfied, that a situation has arisen whereby the financial stability, or credit of India is threatened,he may issue a proclamation of financial emergency. (iii) Satisfaction : The President's satisfaction cannot be questioned in any Court (31st Amendment.) (iv) Duration : (a) The President may revoke the proclamation at any time. (b) It operates for two months from the date of procla mation. But, within this period, it must be placed before each House of Parliament and duly approved. (If the Lok Sabha is dissolved, it must be approved within 30 days of its recon- stitution). (c) Maximum duration is not fixed by the Constitution, (v) Effect : Union Executive power becomes enlarged.lt may give direction to the States to follow rules of financial propriety.lt may give other necessary directions. These directions include : (a) The reduction of salaries and allowances of the Civil servants of the State. (b) A proviso to reserve for consideration of the President all Money Bills after they are passed by legislatures of the States. (c) The President may give directions for the reduction of salaries of Union Civil servants, and, also the Judges of the Supreme Court and the High Courts. This article has not been pressed into serve at any time so far.

Cabinet Responsibility: (i) Origin & Development: Our Constitution has provided for a 'Council of Ministers' with the Prime Minister at the Head, to aid and advice the President. One of the essential features of the English Parliamentary System is the cabinet. It is the core of the British Constitutional System.lt is the supreme directing authority that provides unity to the British System of Government . 'It is a hyphen that joins, a buckle that binds the executive and the legislature together.' Our Constitution has followed the British System. Jennings in his 'Cabinet Govt.' has discussed elaborately the position and working of the Cabinet in England. 'Cabinet' has come from 'Cabin' a secret place when the King of England used to have confidential meetings to discuss state matters with his advisors. However, George I stopped going to the Cabinet as he did not know English well. The meetings were allowed to be held without the King. These advisors (Ministers) selected one of them (the first=Prime), as the Prime Minister to preside. Thus, started the office of the Prime Minister with the Cabinet. Cabinet responsibility developed in later years. (ii) Functions: It is the Cabinet that finally determines the policy of the Nation, it has the supreme control of the National Executive, and provides continuous co-ordination to the various ministries. The powers vested in the President are exercised by the Cabinet. (iii) Collective & Individual Responsibility : As Dicey pointed out 'Ministerial Responsibility means two utterly different things'. Collective and Individual responsibilities. The Cabinet is collectively responsible to the Lok Sabha, and, hence if a no confidence motion is passed, the Prime Minister should resign. All other Ministers go out of gear. All sail or sink together. This is called the moral and political responsibility. Similarly, if a Bill is defeated on the floor of the House, the Prime Minister should resign. Apart from the above, the individual ministers are also responsible. In the Cabinet, if a minister does not agree to the Majority decision concerning his department, he may resign. This is because, he should not blow hot and cold in the same breath. If he accepts the Cabinet decision, he must follow the same in his dept. But if he does not accept, he may resign. Sri Chagla, resigned as Education Minister on Language issue. Smt.Tarakeswari Sinha resigned on Cabinet's non acceptance of prohibition of intoxicating liquors. Apart from the above, each minister is individually responsible for whatever happens in his department. Sri Jagjivan Ra resigned following the Kothagudi Railway Tragedy. However,if there are cases of unpopularity or maladministration, the Prime Minister may ask the minister concerned to resign. The Defence Minister resigned in England in the famous Profuma affair. Sri Krishna Menon resigned as Defence Minister on some defence matters. Recently,’sri Kalmadi and Sri Raja resigned due to their alleged involvement in corrupt practices. The concept of Cabinet responsibilit y is a product of British conventions. India is closely following this system with great success. The Speaker of the House : (i) Origin : 'The Speaker' was the recognized spokesman of the House in England to speak to the King on the deliberations of the House. He was elected by the House. During the period of Charles I. on one occasion [On 4 January 1642] the King himself entered the House of Commons when it was in full session. He demanded the surrender of a few members of the House. The Speaker William Lenthall replied I have neither eyes to see, nor ears to hear except what the House commands me. The King understood this and returned. The office of the Speaker is held in great esteem, much dignity, honour and power. (ii) Speaker in India: He is elected by the Lok Sabha. He is an elected member of the House. But, once he is elected, he must divest himself of the party character, i.e., he must become nonpartisan. He may be removed after giving 14 days notice, and, by passing a resolution in the House with a majority vote. (iii) Powers & functions: (a) He presides over the session of the Lok Sabha. All speeches are addressed to him. As Speaker, he plays the part of an impartial and non-partisan presiding officer. (b) He preserves and protects the rights, privileges and immunities of the House and of its members. (c) He safeguards the rights of the minority. (d) All points of order are decided by him. He may or may not allow an 'adjournment motion'. (e) He conducts the deliberations according to the procedures of the House (May's Parliamentary Practice is an authoritative work followed by the House). He preserves the orderly conduct of debate .He maintains the dignity and decorum of the House. He may expunge 'un-parliamentary' language, from the deliberations. (f) He certifies a 'money bill'. (g) His rulings are final and serve as good precedents to the successors. (h) The standing orders and rules of procedure have vested a number of functions on him. (i) With the authority of the House, he exercises the privilege of the House to punish a person for contempt of the House. (j) He may nominate members to the various Standing Committees and Sub-Committees. (k) Publications of debates are made with his authority. The 33rd Amendment to the Constitution provides the Speaker has the power to test the genuineness of letter of resignation of a Member and the termination is subject to the acceptance by the Speaker [Union of India V.Gopal 1978 S C ] (iv) Conclusion: The Office of our Speaker, is on the British model. The chief characteristics are his authority and of his impartiality. Money Bills : (i) Introduction: Bills are divided into (a) money bills and (b) Bills other than money bills. The Constitution has provided a separate procedure in respect of each category. There is a special procedure for money bills in Art. 109. The Special Status given to the money bill in respect of its initiation and of passing is predominantly due to the constitutional struggle between the two Houses in England. In 1909 attempt was made by the House of Lords to assume power over money bills. But this was resisted by the House of Commons. This struggle came to an end with the passing of the Parliament Act 1911. Major provisions of this bill are incorporated in Arts. 109 & 110. (ii) Definition: Art. 110 define a money bill. (a) It is a bill dealing with the imposition,abolition,remission,alteration or regulation of any tax. (c) It is a money bill if it contains matter of regulation of borrowing of money, giving of guarantee by Government; (d) Amendment of law in respect of government financial obligations. The custody of the Consolidated Fund or contingency fund, payment into it, or withdrawal from it. (e) Appropriation of money from the consolidated fund. (e) Decreasing or increasing the charges on the consolidated fund. (f) The receipts of the money on account of consolidated fund or public accounts. The custody and auditing thereof. (g) Any matter incidental thereto.The Constitution also provides that it is not a money bill by merely including matters in the bill relating to imposition of fines or penalties, payment of licence fee or service fee etc. Further it is not a money bill if it deals with certain matters of alteration, imposition of a tax which is purely by any local body or authority for local purposes. (iii)Procedure: (1) A money bill is initiated only in the Lok Sabha. (2) The recommendation of the President is essential before introduction. (3) In respect of a question whether a bill is money bill or not, the Certificate of the Speaker is final. (4) After passing the money bill the Lok Sabha sends it to the Rajya Sabha. The Rajya Sabha should pass within 14 days. If the bill is not returned within 14 days it is deemed to have been passed by both Houses. The Rajya Sabha may pass and send back with recommendations. If the recommendations are rejected by the Lok Sabha partially or totally it is deemed to have been passed. If the recommendations are accepted by Lok Sabha the bill is said to have been passed by both the Houses.The bill is then sent to the President for his assent, who shall give his assent. The rules of the procedure of the two Houses, have provided for a detailed procedure incorporating these provisions. Privileges & Immunities of Parliament and of Members: (i) Contents: Art. 105 of the Constitution deals with the privileges and immunities of the Parliament and of the members of the Parliament. (a) Freedom of Speech in Parliament. (b) Members are immune from any court proceedings for anything said or vote given in Parliament. (c) Right of publication by the House. (d) In all other respects, the privileges and immunities are, as may be defined by Parliament or those as are in vogue before the 44th Amendment 1978.This means as D D Basu opines until these privileges and immunities are defined by Parliament ,there cannot be a vacuum and so the existing privileges and immunities would continue. (ii) Historical note : These privileges and immunities originated in England. Originally they were intended to protect the King, but later became customary rights of the commons, and, in due course crystallised into privileges, from the 15th and 16th centuries. They are based on Lex et consuetudo Parliamenti (Law and custom of Parliament) (iii) Definition : Privileges, according to Anson, are the fundamental rights of the House of Commons and of its members, against the Prerogatives of the Crown, the authority of the ordinary courts of law and, the special authority of the House of Lords. Without these the House cannot discharge its functions effectively and efficiently. Each House has its own privileges and immunities. (iv) Procedure: These are claimed as a custom, by the Speaker in England at the commencement of each new Parliament. In India, these are provided for in Arts. 105 and 194 of the Constitution. (v) Privileges etc. explained: According to Anson (The Law and the Custom), Privileges are of 3 kinds. (a) Exclusive Jurisdiction within the walls of the House; (b) Certain personal privileges attached to the Members; (c) To punish for contempt of the House. (a) Exclusive Jurisdiction within the House : (1) The House may discuss any subject of its choice and frame its own rules of procedure. It is the sole judge of its proceedings. In Bradlaugh V. Gossetee, B was elected but he refused to take the oath. The House barred him from sitting as a Member, and the Sergeant prevented him as per the directions of the House. B sued the Sergeant. Held, by Blackstone J., that whatever matter arises within the House ought to be examined, discussed and adjudged in the House, and not elsewhere. All the proceedings of the House are absolute and privileged. B's case was dismissed. Exception : Crimes are not part of the proceedings and hence, the House has no jurisdiction. (2) Freedom of Speech : The leading case is—Sir Eliot's case : Eliot was convicted for seditious speeches made in the House, but the House of Lords reversed this. It said the matter must be decided in the House itself. The Bill of Rights 1688 was passed. The House is the sole judge in all cases. In the Searchlight case our Supreme Court held that Art.lO5(l) was a special right and hence prevailed over the general right under Art.l9(l)(a) freedom of speech and expression. (3) Right of Publication : The House has the right to publish its debates, reports, paper etc. No proceedings can be taken to any court, for anything published under the authority of the House. This was declared in the Parliamentary Papers Act 1840, in England. Art 361 A inserted by the 44 th Amendment provides that publication of substantially true report in newspaper of the parliamentary proceedings is protected against any civil or criminal liability.. Exception publication made with malice. The same rule applies to publication of State Legislative proceedings. Leading Case: Stockdale V. Hansard. Hansard, a publisher had published the debates under the authority of the House. This contained certain defamatory matter against Stockdale. S sued and was awarded damages. Hansard published again. S sued. Held, republication was also defamatory. This led to the Sheriffs of the Middlesex case. Under these circumstances, the parliamentary Papers Act 1840 was passed. Courts have no jurisdiction over the Parliamentarypublications. Expunged (removed) portions should not be published by anybody (Searchlight case). Such publication amounts to contempt of the House. (b) Privileges of the Members : Every member of the Parliament is entitled to certain privileges and immunities. (1) Freedom from Arrest: A member cannot be arrested in any civil case 40 days before, during and 40 days after the Session of the Parliament. This does not apply to arrests under Criminal Law. (ii) Freedom from service as Jurors: As the jury system is abolished in India, this has no relevance. (iii) Exemption from attendance as witnesses in courts during the Session. (c) To punish for contempt of the House:The power to commit is the key-stone of parliamentary privileges. The objective is to uphold and maintain the dignity of the Parliament and to defend it against disrespect and affronts. Modes of Punishment : Censure, Admonition, Imprisonment, Expulsion from the House etc. Leading cases: (1) John Wilks Case : He was expelled for writing libel against the Parliament (1764). (2) Garry Alighan was expelled for selling secret information. (3) Mrs. Indira Gandhi was expelled from the House for the contempt of the House in obstructing 4 officials from doing their duties in respect of Maruthi Ltd. Her seat was declared vacant. (4) In re U. P. Tangle Case (1965), the U.P. Legislature gave 7 days' imprisonment to Keshav Singh for distributing pamphlets (committing the breach of the privilege of the House). Advocate Solomon moved a habeas corpus before the Division Bench. The two judges Beg and Saigal ordered the release of the petitioner. The U. P. legislature passed a resolution to admonish the Advocate and two judges. The judges moved the Full Bench of 27 judges of the Allahabad High Court which issued an order to the Speaker not to proceed further. This created a serious situation and the President referred this question to the Supreme Court which held that the U.P. Legislature had no power to take proceedings against a judge. (5) Blitz Case : Mr. Karanjia was called before the House and was admonished for his writings in his weekly against a member of the House (he had written : Kripa Loony etc.). 6. Other cases Ramalingam V.daily Tanthi 1975 Mad.. Kiran Jain V.Sanjiva Reddy 1970 S C.

Amendment of the Constitution www.lawtool.net Amendment of the Constitution: Art.368 : A Constitution may be rigid or flexible. It is flexible when the procedure is simple and capable of being changed easily.lt is rigid when there is a special proce- dure and hard to achieve in practice. As Prof. Wheare points out, it is ultimately the people who are rigid or flexible, and hence, it is they who determine the nature of the Constitution. There are some Articles like 5, 6 & 239A which can be amended by a simple majority of Parliament. But, these are not strictly amendments under Art. 368, which has prescribed a different procedure. Power to Amend: Art. 368 deals with the power of the Parliament to Amend the Constitution. Initiation : Art. 368 (1): A Bill to amend the Constitution may be initiated in either of the Houses of Par- liament. But, it must be passed by a majority of the total strength of each House, with 2/3 majority of the members present and voting. The President shall give his assent to sucha Bill. Thereupon, the Constitution stands amended. Entrenched Provisions : Art. 368 (2): This incor- porates the federal principle of participation of State in amending the Constitution. If the amending Bill is in respect of the following provisions, it should be passed as above, and also approved by at least half of the total number of States in India. (a) Election of the President Arts. 54, 55. (b) Executive power of the President or the Governor Arts.73, 162 & 241. (c) Provisions relating to the Supreme Court and the High Court of India. (d) Distribution of Legislative Powers and any of the Lists in the 7th schedule. (e) The representation of States in Parliament. (f) Article 368 itself. The Bill is then sent to the President who shall give his assent. 24th Amendment—Art. 368 (3) Nothing in Art. 13 shall apply to any amendment under this Article (i.e., Law does not include Constitutional Amendment Act). This has been upheld in Bharathi's Case. 42nd Amendmen Art. 368 (4) & (5) provided that No Amendment shall be questioned in any Court of law, on any ground; There is no limitation on the Power of Parliament to amend, repeal any provision of the Constitution. Both Arts. 368 (4) and (5) have been struck down by the Supreme Court in Minerva Mills Case (1980). Non-amendability of Basic Structure The leading cases dealing with the interpretation of Art. 368 may be briefly summarised. 1. Shankari Prasad V. Union (1951). The 1st Amendment was challenged in this case. The Supreme Court held that the Parliament was empowered under Art. 368 to amend the Constitution. 2. Sajjan Singh V. State of Rajasthan (1965). The 17th Amendment was challenged. The Supreme Court held that the Parliament had the 'constitutional power' and hence, it could amend. 3. Golaknath V. State of Punjab (1967). Law in Art. 13 was held to include Constitution Amendment Act. As Law against the Constitution was void, it held the Amendment was against Art. 31 (property) and hence void. 1st, 4th and 17th Constitution Amendment Acts were held void. (Court applied prospective overruling to save the situation.) Held, Parlia- ment has no power to amend Part HI of the Constitution. But 24th Amendment declared that Parliament has the power to amend any part of the Constitution including Part III. 4.Keshavananda Bharati 's Case (1973). Held, 24th, 25th Amendments were valid. Golaknath's case was overruled. Held, Parliament has the power to amend any Article in the Constitution but subject to 'Basic Structure' principle. This means the supremacy of the Constitution, Republican and Democratic form of Government, Federal character etc.The court has the power to decide what basic structure includes. 42nd Amendment (1976) introduced 368(4) and (5). 5. Minerva Mills Case (1980). The Supreme Court struck down Art. 368(4) and (5) as against the 'basic structure' principle. Art. 368(4) damaged the basic structure, as it reduced the power of Judicial review of the Supreme Court. Under Art. 368(5), the Parliament has arrogated to itself the power to abrogate or even to destroy the Constitution. Hence both these were ultra vires and unconstitutional. 6. Keshavananda Bharati's Case : Facts : The Swamiji who was affected as a result of Kerala Land Reforms act challenged this Act. Further, 24th, 25th and 29th Constitu- tional Amendments were also challenged by him before the Supreme Court. (i) The Supreme Court overruled Golak Nath's Case. (ii) It held that Art. 368 (Amending provision) does not enable Parliament to alter the basic structure or the framework of the Constitution. (iii) 24th Amendment (Parliament's power to amend Part and any other provision) was held valid. (iv) 25th Amendment, First Part—that Art. 39(b) and (c) of Directive Principles prevail over Part III (Fundamental Rights) was valid, it declared.Second Part—which made the law based on the policy of Part IV-the Directive Principles of State Policy non-justiciable, was held bad. Therefore 31(c) was held invalid. (v) 29th Amendment, which included 9th Schedule, Kerala Land Reforms Act was valid, it held. (vi) Amending Power:The Supreme Court held that Constitution so as to destroy Art. 368 does not include the power to abrogate or take away any Fundamental Right or to completely change the fundamental features of the its identity. The basic theory of our Constitution is that it is Poulvir Constituent (Constituent power) which is vested in the people and this was exercised by the Constituent Assembly in framing the Constitution. (vii) No narrow or wide interpretation can be given as regards the amending power. Certain checks and balances are built within the Constitution. Hence there are implied limitations on the power of the Parliament to amend. (viii) The 'basic essentials' of the Constitution should not be Amended. Art. 368 contains the power to amend. To amend is the 'Change', change for the better.It does not include the power to destroy or abrogate the basic essentials or the basic structure of the Constitution. The limited amending power is a basic feature. Parliament cannot arrogate more or absolute powers to destroy the essential features of the Constitution. Basic Essentials : Examples— (a) Republican form of Government; (b) Democratic rights like Civil right to vote (c) Office of the President; (d) Judiciary (e) Federal Struc- ture (f) Rights of the State, Rule of Law, Judicial Review etc, are basic and form part of the structure. Hence these cannot be abrogated or changed by the Parliament. In Indira Gandhi V. Raj Narain (1975), the Supreme Court held that Equality (Art. 14) and free and fair elections were basic essentials. In Waman Rao V. Union (1981) it held that Acts included in the 9th Schedule of the Constitution before 1973 (Bharati's case) were valid; but, those added after 1973 were ultra vires if they are against the basic structure.In Kihota v Zochilhu 1992, the Supreme Court struck down Para 7 of the 10th Schedule, which had ousted the jurisdiction of the courts to decide disqualification of members of the House.

President of India-Election: (i) India, being a Republic has provided for an elected President as the Head of State, and has vested in him the Union Executive power. (ii) Qualification: Any citizen of India, who has completed 35 years of age, not holding any office of profit and who has the qualifications to be elected to the Lok Sabha is eligible. (iii) Electoral College: The President is elected by an Electoral College consisting of :- (a) the elected members of both Houses of Parliament; (b) the elected members of the Legislative Assemblies of the States. The llth Amendment provided that an election could be held even if there are vacancies among the members of the Electoral College. The Supreme Court held in re Presidential election that election could be held when the Gujarat Legislative Assembly was dissolved. (iv) Manner of Election: Election is held according to the system of proportional representation by means of a single transferable vote: voting is by secret ballot. Both parity and uniformity are secured. This means the votes cast by all the elected MLAs of all Legislative Assemblies shall be equal to the total number of votes cast by the elected MPs. Hence, the votes that can be cast by each M.P.= Total No. of votes of all M.L.A.'s together / Total No. of elected M.P's Also, votes cast by each M.L.A's of a State Total population of the State/ Total number of M.L. A.s of that State (v) Election Disputes: Art. 71 : All doubts and disputes are subject to the jurisdiction of the Supreme Court. Acts done by the President during the pendency of the case are valid. (vi) Tenure: The President holds the officer for a term of 5 years. There is no bar on re-election. (vii) Impeachment: Art. 71 : Provisions have been made to impeach the President. The President may be removed for violation of the Constitution. The procedure is as follows: (1) At least one fourth of the members of one House of Parliament must after giving 14 days notice, move a resolution to impeach the President. (2) This must be passed by at least 2/3 majority of the total membership of that House. (3) The other House of Parliament must investigate such a charge. The President has a right to be present. (4) This House must pass a resolution by at least 2/3 majority of the total membership of the House. The President stands removed when that resolution is passed. Powers and functions of the President: The framers of the Constitution intended that the President of India, should be a nominal (titular) head like the Crown in England. Like the Crown he acts on the advice of the Council of Ministers (Cabinet). He represents the Nation but does not rule the Nation. His place in administration is that of a ceremonial device or seal by which the Nation's decisions are made known. (Constituent Assembly Debates). The American President is a real Executive, elected directly by the people for 4 years and is advised by his Secretaries, who are not members of the Legislature and whom he can appoint or dismiss at his direction. He has the 'Pocket Veto' powers. Our President and his office are modelled on the irish Constitution. President to act on the advice of the Cabinet: (a) Whether our President is a mere rubber stamp or is having some powers under the Constitution, remains a question often debated. However ,he may exercise his considerable influence in shaping the policies. His personal dynamic participation is not limited. Dr. Rajendra Prasad wrote to the Prime Minister Mr. Nehru (1951), stating that in giving assent to Bills, he would act independently. Further he did not readily sign the Hindu Code Bill. The Attorney General's views were sought. He stated that under Art. 74(1) the President was to act according to the advice of the Cabinet. The President gave his assent. The Supreme Court has held that Art 74(1) is mandatory. (U.N. Rao V. Mrs.Indira Gandhi). (b) 42nd and 44th amendments: The 42nd Amendment provided that the president shall in the exercise of his functions act in accordance with the advice of the Council of Ministers. The 44th Amendment provides that the President may require the Council of Ministers to re consider such advice, either generally or otherwise, and he shall act in accordance with theadvice tendered after such reconsideration. These two amendments are based on Samsher V St of Punjab 1974.S.C ., Powers : (a) Head of State : The Union Executive Power is vested in him (Art.53), and all Executive actions are exercised by him,in accordance with the Constitution. He represents theNation abroad. He appoints Ambassadors & diplomatic officials. All treaties are made in his name. (b) Supreme Commander: Art. 53(2). He is declared as the Supreme Commander of the Defence Forces. The exercise of this power is regulated by law. (c) Appointing Power : He appoints the Judges of the Supreme Court and of the High Courts, Attorney General for India, Comptroller and Auditor General, Governors, Chairmen and Members of U.P.S.C., Finance Commission etc. (d) Pardoning Power : Art 72. The President has powers to grant pardon, reprieves,(i.e., suspend temporarily), respites (to postpone), commute (reduce from rigorous to simple imprisonment), remit (to reduce), the sentence of any convicted person. Cases covered: (1) Those coming under Court Martial (2) Allthose coming within the Union Executive Power (3) Cases of deathpenalty. (Governor has no power to grant pardon for death penalty). In Billa-Ranga Mercy petition case, the Supreme Court held that the Court would not go behind the refusal of the President to grant pardon under Art. 72. In Mrs. Indira Gandhi Murder Case, the Supreme Court has held that pardoning power was independent and could be exercised by the President, in the exercise of his highest executive authority. This is not controlled by the Supreme Court and also not subject to review. (e) Powers in relation to Cabinet: He appoints the Prime Minister and the other Ministers. However under the concept of Cabinet responsibility ,the Cabinet continues in power as long as it commands the confidence of the Lok Sabha and hence, the President has no powers to dismiss or remove the Prime Minister or any other Minister. (f) Legislative Powers : Parliament means the President & and Two Houses (the Rajya Sabha and the Lok Sabha). (1) He has the powers of summoning, proroguing and dissolving the Parliament. The Rajya Sabha is not subject to dissolution. (2) He acts on the advice of Prime Minister. (3) He has the powers to address the Houses of Parliament. At the commencement of the first session of a new Parliament he addresses a Joint Session, and, at the commencement of the first session each year. (4) He gives assent to the Bills. (He may send to the Cabinet for reconsideration but shall give his assent when presented after reconsideration.) (g) Ordinance-making Power : Art. 123 empower the President to issue an Ordinance. This is a Legislative power exclusive to the Parliament, but he is allowed to exercise subject to certain conditions. The Houses of Parliament should not be in Session: he must be satisfied that circumstances exist which render it necessary to take immediate action. He must issue the Ordinance only in respect of those matters or items in which Parliament has the power to make laws. (He may withdraw the ordinance if he so desires). Duration: The Ordinance should be laid before both the Houses of Parliament. It must be passed by both the Houses within 6 weeks from the date of such reassembling of the Parliament. It will become an Act on receiving the assent of the President. If so not passed, by the Houses, the ordinance lapses after 6 weeks of Parliament's reassembly. Satisfaction of President: 38th Amendment had provided that the satisfaction of the President was final and shall not be questioned in any Court .The 44th Amendment has omitted this amendment. National Emergency (Art.352), State Emergency (Art. 356) or Financial Emergency (Art.360). or details of Emergency power .

Citizenship | Definition, History, & Facts www.lawtool.net It deals with the membership of a person in a State and of his Civic Status. It enables him to certain rights and obligations. He owes allegiance and is entitled to the protection (Salmond) Citizens of India as on 26-1-1950 : Articles 5 to 8 deal with the Citizenship of India at the commencement of the Constitution. (i) Art. 5: Citizenship by birth and parentage: A person, domiciled in India on 26-1-1950 and born in India, or either of his parents born in India or ordinarily resident in India for 5 years immediately before 26-1-1950 is a Citizen of India. (ii) Art. 6 : Migration to India from Pakistan : A person who has migrated from Pakistan is a citizen as on 26-1-1950 if— (a) He or either of his parents or grandparents was born in India; or (b) Migrated to India before 19-7-1948 (but resident thereafter), or (c) Migrated to India after 19-7-1948, but has duly registered his name fulfilling 6 months residential qualification. (iii) Art. 7 : Migrants to Pakistan but returning back : A person who has migrated to Pakistan after 1-3-1948 is not a Citizen of India. However, if he has returned to India under a permit for resettlement or permanent return, he is a Citizen of India. In Kulathil V. State of Kerala, the Supreme Court held that the word migrated is to be understood in a wider sense and hence there must be voluntary movement from Pakistan to India; and not for a specific purpose or for a short and limited purpose. (iv) Art. 8: Deemed Citizens resident abroad: A per son, either of whose parents was born in India, but ordinarily residing in a Foreign Country becomes a Citizen of India by registration with Indian Diplomatic or Consular office abroad. This may be before or after 26-1-1950. (v) Termination: By voluntarily acquiring citizenship of a Foreign country, an Indian Citizen's citizenship is terminated. Citizenship under the Citizenship Act 1955 : Art. 11 empowered the Parliament to make law governing Citizenship and the Parliament enacted the Citizenship Act in 1955, dealing with acquisition and termination of citizenship after commencement of the Constitution. Modes of Acquisition: (i) By Birth : (Jus Soli) Sn.3. Persons born in India after 26-11950 are citizens by birth. (ii) By Descent : (Jus Sanguinis) Sn. 4. A person born outside India on or after 16-1-1950 is a Citizen if his father was a Citizen of India by birth. (But if that father was a citizen by descent, he should have registered at the Indian Consulate Office or be in Indian Government Service.) (iii) By Registration : Sn.5 provides for registration as a Citizen.Application may be filed by : Women married to Indian Citizens, minor children of Indian Citizens, persons from Commonwealth Countries etc. They are registered by the prescribed authority. (iv) By Naturalisation : Sn.6. Any person from any country other than the Commonwealth countries, with full age and capacity may file an application for naturalisation and if the Central Government is satisfied that the applicant is duly qualified, it may grant a Certificate of naturalisation. (v) Distinguished Personality : The Central Government may waive the above conditions and grant Citizenship to any person who has rendered distinguished service to the cause of science, philosophy, art, literature, world peace or human progress. (vi) Incorporation of Territory: If any territory is acquired by India, the Central Government may notify in the Official Gazette, specifying who would be citizens of India. Termination of Citizenship: (i) By Renunciation : Sn.8. If a Citizen of India who is also a National or a Citizen of another country, makes a declaration renouncing his Indian Citizenship, it shall be registered by the prescribed authority. On such registration, that person's Indian Citizenship is terminated. (ii) By Termination : By operation of law this happens when a person voluntarily acquires citizenship of another country. State of A. P. V.Abdul Khader. A, born in India in 1924, went to Pakistan in 1954, returned to India with a Pakistan Passport in 1955. He outlived his stay and hence was arrested and convicted. It was held that the conviction was wrong as the Magistrate considered 'A' as a foreigner. Held, A was a Citizen by birth under Art. 5. (iii) By deprivation: Sn. 10. The grounds on which a citizen may be deprived of his citizenship are as follows: (1) Fraud, false representation etc. in obtaining the Certificate of Registration or Naturalisation; (2) Disaffection towards the Indian Constitution; (3) Unlawful trading or communicating with the enemy during war; (4) Imprisonment in any foreign country for 2 years and above; (5) Staying outside India for over 7 years without registration in Consulate's office (A student or persons in government service or in International Organizations need not register). 'Company' whether a citizen : Question whether a juristic person like the 'Company' was a citizen arose in State Trading Corporation of India V.C.T.O. The S.T.C. was a registered company, and its sales were taxed. The company challenged this tax, as infringement of its fundamental right to do business in Art.l9(l)(g). As Art 19 (1) (g) is a fundamental right available to a citizen, question arose whether the company was a citizen. Held, the company was not a citizen. The fundamental rights were available only to natural born persons, and not to companies. Sn.5 provides for registration as a Citizen.Application may be filed by : Women married to Indian Citizens, minor children of Indian Citizens, persons fromCommonwealth Countries etc. They are registered by the prescribed authority. The Supreme Court held in British India Steam Navigation Company V. J. Singh that this shipping company was not a citizen. In Tata Engineering & Locomotive Co. V. State of Bihar it was argued that if all the share-holders are citizens of India, then the company's veil can be lifted and the fundamental rights of the citizens be protected. Held, with this the company would achieve indirectly what it cannot do directly. Held company was not a citizen even if all shareholders were citizens. New Trend : However, the above cases are neutralised by the Supreme Court in Bank Nationalisation Case (1970). The reason was : Shareholders are citizens and are entitled to Fundamental rights of Art. 19. If they associate themselves, and form a Company, their rights are not lost. If the shareholders' rights are to be protected, it necessarily means that the company's rights should be protected. In Bennette Coleman's Case (1973), the Court held the shareholder, editor, printer etc. had a right under Art. 19(l)(a). They speak to the public through the editor. These rights are manifested and protected by the newspaper company. Hence, they have a locus standi through the company. In DC & GM V Union of India (1983), the Court held that writ by the company was maintainable for violation of Fundamental Rights under Art. 19. Denial of right to the company would be denial to the shareholders. Hence, a company can maintain a writ petition.

Preamble to the Constitution of India www.lawtool.net (i) The Preamble indicates the source of the Constitution i.e., the Sovereign will of the people and also states the great objects of the Constitution (Corwin). In fact, as was observed in Keshavananda Bharati's case: "it is of 'extreme' importance that the Constitution should be read and interpreted in the light of the grand and noble vision expressed in the Preamble." (ii) Major written Constitutions of the world have preamble to their Constitutions. For example, the U.S. Constitution, provides as follows: "We, the people of the United States, in order to form a more perfect Union, establish Justice .secure the Blessings of Liberty to ourselves and to our posterity, do ordain and establish this Constitution for the U.S.A." Our Constitution in its Preamble declares 'We, the people of India having solemnly resolved to constitute India into a Sovereign, Socialist, Secular, Democratic Republic, and to secure all its citizens : Justice, Liberty, Equality, Fraternity and Unity and Integrity of the Nation, in our Constituent Assembly this 26th day of Nov. 1949, do hereby adopt, enact and give to ourselves this Constitution. 'We, the people of India . . . give unto ourselves this Constitution.' This speaks to the Sovereign will of the people, which is the source of the Constitution. (iii) Objectives: (a) The major objective is to constitute India into a 'Sovereign, Socialist, Secular Democratic Republic'. Sovereign refers to India's International Status as a Sovereign State with Sovereignty within and without. Socialist does not mean any ism, but means absence of any 'Exploitation'. 'Secular' indicates that all religions are equal (these two were inserted by the 42nd Amendment). Democracy is a reference to the way of life, to a system of government by discussion. It is a government by the people, of the and for the people. Republic is a reference to the Executive Head—the President—being elected. It is opposed to a hereditary office, (b) Certain basic values are enshrined in the Preamble. 1. Justice : Social, Economic and Political. 2. Liberty : Of thought, expression, belief, faith and worship. 3. Equality : Of status and opportunity. 4. Fraternity : Assuring the dignity of the Individual. 5. Unity and Integrity of the Nation (42nd Amendment), (iv) Interpretation : The spirit of the Constitution is embodied in the Preamble and serves as a guide to interpret the Constitution. The Preamble is a useful handy instrument to the Judges in interpreting the Constitution. (a) According to Dyer C. J., the Preamble is "the key to open the minds of the makers of the Constitution". The Supreme Court had held in Beruberi Union case that the preamble was not a part of the Constitution, but this has been overruled in Bharti's case. Hence, the preamble is part of the Constitution and if the words in the body of the Constitution are capable of two meanings—i.e., ambiguity—that which fits into the preamble is preferred by the Courts. (b) If there are specific provisions in the Constitution, then they are not controlled by the Preamble (Gopalan's case). (c) The preamble is not a source of power. It cannot restrict a power given in the Constitution. (d) The preamble is part of the Constitution and may be amended under Art.368. But amendment should not affect the 'basic structure' of the Constitution (Bharati's case). (e) The objectives enshrined in the preamble contain the basic structure of the Constitution like the Supremacy of the Constitution, Equality, Republican and democratic form of Government, Secular Character, Separation of powers ,Federal character etc [Bharathi case and Excel Wear case]

Standard of Care www.lawttol.net Negligence Negligence is culpable carelessness. That means the absence of such care as it was the duty of the defendant to use. It does not necessarily consist in thoughtlessness or inadvertence. A is guilty of negligence, if he drives furiously into a crowd. A may know that he is exposing others to risk. Negligence is failure to use sufficient care. Carelessness may exist to any degree. The degree depends on the risk to which others are exposed. The risk depends on: 1. The magnitude of the threatened evil and 2. The probability of it. What is the yard stick of care required by Law ? The answer is mat the "Standard of care" of which nature is capable. 'A' is not liable for the harm ignorantly done by him. This harm he could have avoided with fore-thought. A is liable if he knowingly fails to take steps to stop the harm. The facts which help to find out the standard required are: 1. The magnitude of the risk. 2. The dangerous form of the activity. By driving the train at 50 miles per hour, a railway company may cause a fatal accident. But, if the speed is 10 miles per hour perhaps no accident happens. But his saving is done by causing great inconvenience. Hence, the company is not liable. In professions, want of skill or competence amounts to negligence. The person is expected to use such skill & knowledge, as is necessary for reasonable efficiency. If he is below this, he is negligent and hence liable. An ignorant physician who kills his patient is liable not because he is ignorant, but because being unskillful he ventures to do an act which calls for qualities which he does not possess.

Penal Liability www.lawtool.net 1. Liability 2. Mens rea Liability or responsibility:- Liability or responsibility is the word or tie that comes into existence as a result of the wrongful act of an individual. This is called Vinculum juris by which a man who is under it, must do certain things. A man's liability consists in these things which he must suffer. It is the ultimatum of the law. It has its sources in the Supreme will of the State. According to Salmond, liability or responsibility is the bond of necessity that exists between the wrong doer, and the remedy. "He who commits a wrong is said to be liable or responsible for it". Liability may be divided either as civil or criminal or as remedial or penal. In the case of civil or remedial liability, the object of the law is the enforcement of right, whereas in case of criminal or penal liability the purpose is the punishment of the wrong-doer. All criminal liability is penal. Civil liability on the other hand may be either penal or remedial. Measure of Penal liability : Mens rea: The basic principle of a liability is embodied in the legal maxim. "Actus non facit reum nisi mens sit rea". [The act alone does not amount to guilt, it must be accompanied by a guilty mind, "mens rea"]. Hence, there are two conditions to be fulfilled before penal liability can be imposed on a person. It is not enough that a man has done some act. Before the law can justify punishment, an enquiry must be made into the mental attitude of the doer. It is the combination of physical and mental elements that constitutes penal liability. It is not enough to •convict an accused charged of the offence of murder to prove that he has killed another. It should further be proved that he did it intentionally, wilfully and deliberately. According to Salmond, generally a man is penalty responsible for those wrongful acts which he does either wilfully or negligently. There are three aspects of penal liability viz., conditions, incidence and measure of penal liability. According to Salmond these threeelements should be taken into consideration in determining the measure of criminal liability, namely, motive of the offender, the magnitude of the offence, character of the offender. Where there is no inadvertence or negligence, punishment is generally unjustifiable. Hence in inevitable accidents or mistake it is in general a sufficient ground of exemption from penal responsibility. Ex. A driver knowing fully well, that the bus is not having the breaks, insists to drive the bus; In consequence the bus has gone out of control and has resulted in an accident injuring B. This is an act committed intentionally and hence the driver is liablefor punishment. Here the "Mens Rea" (blame worthy mind) is there. But if the bus has been in good condition as regards breaks system, then while driving, if the accident happens, it could have been said that the accident is inevitable. It has taken place accidentally. Here the driver has no idea of accident but it is due to failure of the breaks the accident has inevitably occurred. Father was sleeping in a room which was dark and there was a gun kept loaded in that room. His son entered the room, in darkness; the son pressed the trigger of the gun thinking it to be a switch which resulted in firing of the gun resulting in the death of the father. Father was the victimof the bullet but the son had no intention to kill his father. This is inevitable accident not murder.

THEORIES OF PUNISHMENT www.lawtool.net Theories Deterrent Preventive Retributive Reformative Theories of punishment and their relative Merits & Demerits: There is a complexity of social phenomena which is the main cause for commission of crimes. There are certain important social and personal facts which are mainly responsible for crimes. These are :- Physical Causes, mental forces, economic causes, political reasons, personal causes etc. There are many theories concerning the justification of the punishment.As Salmond observes the ends of criminal justice are four in number: Deterrent, Preventive, Reformative and Retribution. The preventive theory concentrates on the prisoner, but seeks to prevent him, from offending again in the future. The reformative theory sees, in the readjustment of the prisoner to the demand of society as the greatest need of the criminal law. The deterrent theory emphasises the necessity for protecting society, for so punishing the prisoner that he will be barred from breaking the law. i) Deterrent theory : The chief end of the law of crime is to make the evil-doer an example & a warning to all persons who are like minded with him. According to this theory offences are the result of conflicts of interests, between that of the wrong-doer and the society. Punishment makes the commission of an offence .an ill bargain for the offender, and debars the potential offender from the commission of crimes. Creation of "fear" in the mind of persons is the essence of this theory. This theory is criticized as ineffective. During Queen Elizabeth's time, when severe punishment was publicly given to pick pockets, it was found that other pick pockets were busy in. the crowd which had come to see the punishment! ii) Preventive theory : The object of punishment is to prevent repetition of the crime by rendering the offender incapable of again committing the offence. Preventive theory of punishment aims at physical restraint. Prison became an institution because of this theory. In modern times, thedisability aspect has been emphasised by statutes conferring power to sentence habitual offenders to preventive terms of imprisonment, penalties, forfeiture or suspension of driving license etc. iii) Retributive theory : This theory is based on "evil for evil". An offence creates an imbalance in the society, and punishment or suffering is the medium through which the balance is restored. It is simply the theory of private vengeance. Revenge is the right of the injured person according to Salmond. It means that a man should be so dealt with as he has done with others. The basis of this theory is, that evil should be returned for evil. To suffer punishment is to pay a debt due to the law that had been violated. The rule is "A head for a head, a tooth for a tooth and a nail for a nail". iv) Reformative theory: The object of this theory is to reclaim the offender, to make him a useful member of the society by bringing about a change in his character and to give a chance to him to lead a free life in Society. According to this theory criminals are generally abnormal persons and the interest of the society is subserved by leaving these persons to the normal law abiding individuals. The stress, here is shifted from crime to the criminal. We must cure our criminals and not kill them. E.g. Educational discipline of the criminal. Corporeal (physical) punishment is deemed to be brutal and degrading both to the offender and to those who inflict it. Preventive punishment turns the offender into a hard headed criminal. The treatment of the criminal should be humane, his case history should be studied and appropriate measures taken to keep him away from the wrong-doing. Eg. The cases of juvenile offenders First offender's and sex offenders, should be dealt with carefully. Nothing is gained by sending them to the prison to the company of hardened criminals. Rather they must not be sent to reformative schools which are houses of corrections. The theory is against all types of corporeal punishment; it commends education, training & proper social moral instructions when in prison. Modern techniques should be used to reform him, to change his attitude and approach to life. Punishment is not an end itself. It is a means to reform and torehabilitate the prisoner. Hence, the prisoner should be cured, and not killed. Conclusion : Salmond is of the opinion that primary importance is to be given to the deterrent elements is criminal justice. The reformative element should not be over-looked. But neither must be allowed to assume prominence. It is a question of time, place, circumstance and nature of the offence, that should be applied on each case.

LEGAL - PERSONALITY www.lawtool.net LEGAL- Personality 1. Natural Persons 2. Legal Persons 3. Dead Man Personality:- The personality of a human being means the possession of certain characteristics particularly belonging to mankind. E.g.; Power of thought, of speech etc. Hence, there are certain attributes which make a human being a person having the personality recgnised by law. If these attributes are absent then that human being is not a person at all. E.g. Slaves are like chattels (things) and therefore not persons at all. Conversely, in law there are persons who are not men; e.g., a municipal corporation, A joint stock company etc. are 'persons' though they are not human beings. Similarly an idol is a person. According to jurisprudential theory a person is any being who is capable of rights and duties. Hence any being who is capable of rights and duties is a person. Persons are the substances. The rights and duties are attributes. This is the juridical significance of personality which has gained legal recognition capable of rights and duties is a person. Persons are of two kinds: 1. Natural persons. 2. Legal persons. A human being is a natural person. Legal persons are beings who are treated for purposes of law as human beings. In olden days if an ox gored a person to death, the ox was guilty of homicide and it was stoned to death and its flesh not eaten. This is no longer the law to-day. A beast is incapable of legal rights and legal duties. Its interests have no recognition in law. Today if an animalcauses hurt to a person, there is no wrong. But the responsibility is no the owner of the animal. However, cruelty to animals is a criminal offence and to that extent the animal has a legal right. A 'Trust' may becreated to benefit a particular class of animals. Eg. Race horses, tigers etc. as beneficiaries. They are entitled to treatment according to the trust dead. However, if the interests of the animal conflict with the interest of human beings, the interest of the human being will prevail. Dead Man: In so far as dead human beings are concerned, the principle is that personality commences on birth and ceases to exist at death. Therefore dead men are not persons in the eye of law. Actually they have laid down their legal personality with their lives. They are destitute of rights and liabilities. They have no rights because they have no interests. A dead man will notcontinue to be the owner of his property after death. In fact, he is not a owner in the interval between his death and the entry of an executor or an administrator or a successor. But this does not mean that law will ignore the desires and interest of the dead man. There are three spheres where a man has anxieties after his death. These are the dead man's body, his reputation and his estate. Hence law wants to protect such interests. In respect of the dead body the corpse is the property of nobody. It cannot be disposed of by will; and, wrongful dealing with it will not amount to theft or hurt. But criminal law, secures a dead man, a decent burial and the violation of the dead body or the grave amounts to a criminal offence. Hence the dead man is protected in respect of his body. A trust for maintenance of a tomb is void. The property is for the use of the living, not of the dead. Similarly the reputation of the dead is protected under the criminallaw of defamation. Libel or slander of the dead is punishable. In respect of the estate of a dead man, he is allowed to regulate the action of the successors under a will. En vetre as mere: (literally "in womb its mother", corruption of the original French en ventre de sa mère "in the womb of its mother") In respect of unborn persons law does not prevent a man from owning property before he is born. Of course his ownership is contingent because he may not be born at all! Hence, a man may settle property on his wife and unborn persons. Of course, restrictions have been imposed on such powers so as not to arrest property for generations ( Transfer of Property Act , Refer Unborn person, perpetuities etc). A child in the mother's womb is already born for purposes of law. As Justice Coke pointed out, law has conferred certain consideration on the apparent expectation of birth. Thus in respect of property, an unborn child is considered as a child born for the purposes of: a) Acquisition of property. b) Acquisitions, subject to the law against perpetuities The problem is not solved whether an unborn person can have a personal and proprietary right. It has been held that a posthumous child is entitled to damages for the-death caused by the defendant. Wilful or negligent injury inflicted on the child which dies after being born alive amounts to murder. A pregnant woman cannot be condemned and executed to death until the mother is delivered of the child. There is a conflicting decision of the English Court. Due to the negligence of a Railway company there was a collision.There was a child in a mother's womb which received certain injuries. The court held: That the company was not liable. The unborn child has a contingent right and it must be born as a living human being. If the child is born dead the legal personality falls away ab initio. If the child dies in the womb or is still-born, his inheritance fails but the gets all the rights even if he is alive for an hour after birth. Law wants to protect the interests of unborn person.

LEGAL RIGHTS www.lawtool.net Legal Rights and Duties : Rights are concerned with 'interests'. Rights are defined as interests protected by moral or legal rules. But yet rights are different from interests. Interests are things which are to a man's advantage. Eg. He has interest in his freedom or his reputation. If we say that a person has an interest in his reputation, what we mean is, that he stands to advantage of good name in the society, But, if we say that the person has a right to his reputation what we mean is, that others should not take this from him. Duties: A duty is an act which one ought to do. Not doing of, amounts to a wrong'. A duty may be moral or legal. It is a legal duty not to sell adulterated milk. If a person is curious, about his neighbours, there is no legal duty not to be so curious, this is a moral duty and therefore cannot be enforced through the courts. Legal Rights : Characteristics ; According to Salmond every legal right has the following basic characteristics: 1. It is vested in a person, that person may be called the owner of it, or the subject of it. i.e, the person entitled. E.g. A buys a house from B. A is the owner of the house acquired. 2. It avails against a person. It is on that other person that a corresponding duty is imposed. That person may be called the person bound, or as the person of incidence. E.g. A is the owner of the house. All others are bound by duty not to interfere etc. 3. Right obliges the person bound, to an act or omission in favour of the person entitled. This is the content of the right E.g.others not to interfere with the enjoyment of the house property, by A. 4. The act or omission relates to a thing. It is called as the object or subject matter of the right. E.g. land, house, goods etc. 5. Every legal right has a title. This means certain facts or events by reason of which the right has become vested in the owner E.g. The sale deed executed by vendor B, in favour of A (the vendee). Title vests in A. A buys goods from B. A becomes the subject or the owner of the goods so acquired. The person, bound by the duty are the persons in general (against the world i.e., right in Rem). The content of the right is non-interference with the enjoyment of goods. The object or the subject matter is the house. The title of the right is the conveyance or sale deed by which A has acquired from B. An ownerless right does not exist and is not recoginsed by law. Legal rights in a wider sense: In a wider sense the legal rights do not necessarily correspond with duties. Here a rule of law confers a benefit or advantage over a person. There are four classes of rights. 1. Rights in a strict sense. 2. Liberties. 3. Powers. 4.Immunitie Each of the above has corresponding : 1. Duties. 2. No rights. 3. abilities. 4. Disabilities. 1. Rights and duties: Legal right in the 'strict sense' has all the 5 characteristics, and bears a corresponding legal duty. Right to reputation, right to landed property, right to service under a contract etc. These form the bulk of the rights in the legal world, there are corresponding duties on others. 2. Liberties and no rights: Legal liberty is a benefit which a person derives without legal duty on others. A is at liberty to express his opinions on public affairs. But A has 'no liberty' to publish a defamatory matter. A may defend himself against violence but he has 'no right' to take revenge upon B who has injured him. 3. Powers and liabilities: The power to make a 'Will, or the power of appointment of an executor. The powers vested in the judges to discharge their functions. These powers have no corresponding duties on others. But, it may be noted that liability may be correlative of power. e.g. i) An unfaithful spouse may be divorced, ii) Right or power to marry. iii) Tenant under liability, as tenancy may be terminated by reentry of owner. 4. Immunities and disabilities: It is an exemption, i.e., non-subjection e.g. immunity from ordinary criminal courts given to ambassadors. Therefore an immunity creates no disabilities. Disability is the absence of power. He who has no title cannot pass a title. This is a disability of the transferor. A Minor is under a legal disability to be a party to a contract. Kinds of Legal Rights: Perfect and Imperfect rights: A perfect right is one which corresponds to a perfect duty (The duty is recoginsed by law and is enforceable) Eg. Breach of contract. The rightis protected and can be enforced by suing for compensation or for specific performance. Imperfect right is one which is recoginsed by law but is not enforceable. E.g. Time barred debts. Such a right to recover exists but not through the courts. It may be noted that an imperfect right is a good defense: e.g. when time barred debt is paid by debtor, the creditor may defend his position. An imperfect right may be a sufficient security, E.g. Pledge or mortgage, though the debt is barred still the property remains a security. Further an imperfect right may have the capacity to become perfect eg. acknowledgment of a debt barred by limitation. Rights against State, are considered imperfect though they are legal rights. In one sense, they are not enforceable against the State, as the State is the strength of it. From lawyer's view, they are enforceable against the State. Positive and Negative rights: A positive right corresponds to the positive duty under which the person should do some positive act. A has a right not to be pushed into water, if pushed into water there is a negative duty on others to pull A out of water. A negative right corresponds to a negative duty; The right gives a benefit; Acts & Omissions belong to this group. Rights in Rem and right in personam: Right in rem is a real right available against the world at large. A has a right in rem to the peaceful enjoyment of his property i.e., no-body should interfere. Right in personam is a personal right available against a particular person or persons. If A leases out his house his right to receive the rent, is the right against the tenant only. The right of C, a creditor to receive the loan amount from the debtor B, is a right in personam. Rights in Re-propria and rights in Re-aliena: Right in re-propria means right over one's own property; title, ownership etc. Right in re-aliena means right of a person over the property of another. Eg. tenants rights encumbrance right etc. A right in re-aliena is an encumbrance on the property imposing restrictions on the owner. Eg. Mortgage or charlge. In respect of a right in re-aliena, there is an encumbrance, but the ownership and other rights are vested in the owner. The right of a tenant or a mortgagee in possession of the property etc. are rights in-aliena. However, the ownership remains with the owner who has the rights in re-propria. Hence, all encumbrances, are rights in re-aliena: Leases, servitudes, securities and trusts. In respect of bailor and bailee, the right of the bailee is right in re-aliena but the bailor has rights in re-propria .

SOURCES OF LAW www.lawtool.net The major sources of law are: Legislation, Precedents, Custom. 1) Legislation: as a superior source: over Precedent: Salmond opines that 'Case law is gold in the mine, a few grains of the precious metal to the ton of useless matter, while Statute law is the coin of the realm ready lor immediate use'. Legislation is the main source of law. It consists of the declaration of legal rules by a competent authority like the Parliament or the other legislative bodies. It is an enunciation of principles having the force of law. The courts recognise these as law. Legislation also called Statute Law has become the standard form of law. The earlier forms, that is precedent, custom based on religious faith or practice or revelations of men have lost much of their efficacy. The result is that legislation is the most powerful and the latest instrument in legal growth. Advantages or virtues of Legislation: i) Abrogative and Reformative Powers: The first virtue is its abrogative power. It can abolish an existing law or make a new law. But, a precedent has constitutive efficacy-it is capable of producing very good law. But its operation is irreversible. Once it is stated it stands But, legislation can bring about reforms. Hence, legislation has destructive and reformative power. i) Efficiency: The duty of the judiciary is to interpret the law and apply it . The legislature is superior as its duty is to make the law; administrators operate the law. Thus, there is a division in the labour and hence much efficiency. iii) Prospective Operation: Statute declares the law before the commission of any act to which it applies, thus it fulfills the principles of Natural Justice. Law will be known before it is enforced. A judicial precedent creates and declares in the very act of applying and enforcing it (e.g .Ryland V. Fletcher). iv) Law of future: Legislation can make Acts to meet circumstances not yet arisen. Precedent requires definite circumstances before the court. Legislation can fill up any vacancy i.e., settle any doubt that may come to the attention of the legislature. But, a bad precedent remains until another case comes up before the court for solving the doubt or for overruling it. v) Superiority in form: The legislature produces the law in the Statute form i.e. as Acts which are of standard form. Statute law is*brief, clear and easily know-able and accessible. But, case law is hidden deep and buried from sight in the huge records of litigation & Reports. Hence, case law is like gold that is in the gold mine, hidden in the rocks. But, Statute law is like a coin ready for immediate use. Salmond appreciates the perfection of the form of Statute Law. Statute Law is authoritative, and it is the duty of the Courts in interpret the words and their true meanings. But, in applying case law, the courts are dealing with the ideas and principles. Statute law is rigid, but case law has the merit that it appeals to reason and justice and hence flexible and adaptation is possible. Only when the words in the Statute are not clear, that the courts will have to interpret with reference in social purpose. 2) Precedent: For the purpose of jurisprudence the sources may be divided into 'legal and historical source's. The legal sources are authoritative, have a right in the courts and have helped the course of legal developments. E.g. The statutes, precedents writings of eminent jurists like Bentham, Austin etc. The historical sources are not authoritative, cannot have claim as a right in the courts. Precedent therefore is a legal source. The distinguishing characteristic feature of English law is the judicial precedent. The unwritten law or the common law is purely aproduct of decided cases, from 13th Century. English judges have contributed considerably for the development of common law. A judicial precedent speaks in England with authority. It is not merely evidence of the law but a source of it, and the courts are bound to follow the law that is so established. Precedent means 'anything said or done furnishing a rule for subsequent conduct'. Judicial decisions speak of truth and hence are followed in later cases. If so followed, such a decision becomes a precedent. The doctrine of precedent has two meanings. In the first place in a loose meaning, it means that precedents are reported, may be cited and will probably be followed by the courts. In the second i.e. in the strict sense it means that precedents not only have great authority but in certain circumstances they must be followed. The two theories have many supporters. Sometimes a precedent may be unsatisfactory. The rule so laid down may be be reversed by the Parliament in making the law. Further, the judges have power to reverse their own decisions and correct the mistakes. Broadly speaking precedents are: 1. Authoritative and 2. Persuasive. This perhaps is the solution for the controversy between the two theories. An authoritative precedent is one which judges must follow whether they approve of it or not. A persuasive precedent is one which the judges are under no obligation to follow, but must take it into consideration and attach such weight as it deserves i.e. it must by itself merit consideration in the eyes of the judges. Hence, it is true to say that authoritative precedents are legal sources of law but persuasive precedents are historical sources. 1. Authoritative precedent: The decisions given by the superior courts are the authoritative precedents which must be followed. Hence the decisions of the House of Lords are authoritative in England. In India the decisions of the Supreme Court are binding on all the courts and authorities within the territory of India. (Art.141 Constitution of India). A High Court decision is binding on the lower courts under its jurisdiction in that State. 2. Persuasive precedent: Persuasive precedents in England are the following: Foreign decisions e.g. Decisions of U.S. Supreme Court. The decision of other superior courts in the commonwealth countries. Privy council decisions. Judicial dicta.(Means observation stated by the way). In. India, so far as the Supreme Court is concerned, the decisions of the foreign courts, of the Privy Council and of the U.S. Supreme Courts etc. are persuasive in character. To the High Courts in India, decisions of the Privy Council, U.S. Supreme Court and decisions of other foreign courts are persuasive. When a precedent is referred to in a court, it is accepted or disregarded. But if it is authoritative, it is binding and should be accepted. If it is persuasive the court may accept or disregard it. Disregarding may be of two kinds: 1. It may over-rule it or 2. It may refuse to follow it. Such a overruled precedent is null and void. The courts of equal authority have no power to over-rule each other's decisions. If two High Courts have given conflicting opinions a legal anomaly is created. This can be resolved only by the Supreme Court. The meaning of over-ruling is that 'the supposed rule in that decision was not allowed at all. 'Hence the intermediate transactions will be governed by the new rule decided. Overruling is retrospective subject to certain exceptions. Circumstances which destroy or weaken the binding force of precedents. 1. Abrogation of decisions i.e. over-ruling of decisions. 2. Reversal of a precedent on a different ground. 3. A precedent given in ignorance of the relevant statue. 4. A precedent which his inconsistent with a decision of a High Court or Supreme Court. 5. Precedent sub silentia (not fully argued) 6. Erroneous decisions. 1. Abrogation: This may happen when the legislature makes a statute to negative the precedent. There is abrogation when the higher judicial authority either over-rules or reverses a precedent. There is overruling when the Supreme Court declares that a 'precedent' (of a High Court or Supreme Court) is wrongly decided. E.g. The Supreme Court over-ruled Golaknath's case, in Bharati's case. The position is that a case cannot be over-ruled by an obiter dictum (said by the way). Over-ruling may be express or implied. Implied over-ruling is a doctrine of recent origin. In such a circumstances, the earlier case is deprived of its binding authority. 2. Reversal on a different ground. It may happen that on appeal, a case may be affirmed or reversed on a different ground. This means, that if the appeal is on ground A, the decision of the appellate court may be on ground B. Nothing is said about ground A. This may create some difficulty. According to Salmond, in such cases, the decision is deprived of its absolute binding nature. 3. Ignorance of Statute. A decision is not binding if it is given on ignorance of a statute or a subordinate legislation. This was decided by the House of Lords in Young V. Bristol. This is so even if the court knew the existence of a provision in a statute or rule. Even a lower court may refuse to follow a precedent on such grounds. 4. Overlooking the decision of higher courts. If a decision is given by a High Court, overlooking the Supreme Court precedent, then the High Court decision is a bad precedent 5. Inconsistency among earlier decisions of the same court. The general rule is that a court is not bound by its own previous decisions if they are conflicting. This may happen when the counsels have not referred to relevant authorities, or it may be that the court has acted in ignorance or forgetfulness of the cases. The binding force of such precedents is weakened. The subsequent court may over-rule the decision. 6. Precedents sub silentio: If the decision of the court does not perceive or look to the particular point of law involved, then there is sub silentio. If there are two points of law A & B and decision is given deciding on point A & not on point B(not argued) then there is sub silentio. The leading case is Gerard V. Worth. If the previous court decides a case without argument, with reference to the point of law, without any citation or authority, such a decision is not binding. 7. Decisions of equally divided courts: Where the court is equally divided, in the technical sense there is no decision at all. Hence, such a precedent, has no force at all. Ratio decidendi : What the Court decides generally, is the ratio decidendi or rule of law in a case before it. What it decides between the parties to the case, is binding on the parties. The parties under Res Judicata are barred from reopening the case after the final Court of authority makes the decision between them. If A sues B for negligent driving, parties A and B are bound by the decision of the final court. There are circumstances, when the judgment will be against all the world i.e, in rem. That is it is binding on all third parties. For example, a nullity declaration of a marriage by the Court, determines the status of the parties, but the decision is binding on all. Development: The Ratio decidendi or rule of law is produced by the Court in its process of application by the judges. It should have been applied to the'parties in respect of live issues, argued on both sides. ' In the course of his judgment, the judge may refer to hypothetical situations, or may give his general reasoning. These are therefore not binding. They are called obiter dicta (observations made by the way) and hence, have no binding force. (Blackburn's dicta are exceptions) The Court declares the ratio, and, applies that to the facts determined by it. Later Courts, may not follow the ratio. They may distinguish or state exceptions to the earlier rule. For example, in Bridges V. Hawkesworth the plaintiff P found a bundle of currency notes on the floor of the shop of the defendant. The Court applied the principle of "finding is keeping" and held that P was entitled to the notes. However, in S.S. Water Company V.Sharman two golden rings were found by D in the mud pool owned by P. The court, distinguished the earlier case and said, in that case, the notes had been found on the floor of the shop (public place), whereas, in this case, the rings were in the mud owned by P (private place). The Court held that P was entitled/ Difficulty in finding ratio : It is always not easy to find out what the ratio is in some cases. Cases are there where the Court may not have supplied the reasons.There are other extreme cases, where the decision is too lengthy, and very difficult to find the ratio. Methods to determine ratio : Prof. Wambaugh has suggested the "reversal test". This means, we must take the proposition of law (i.e.ratio) & reverse it (i.e., put the opposite of it) and, see whether that would change the decision. If it did, it is a ratio. This test is good but has its own limitations. The second method is stated by Dr.Goodhart. This is the material facts theory. This means we must ascertain all the relevant facts of the case, as determined by the judge and also look to the decision in respect of them. That is the ratio. This test is more theoretical than practical according to Salmond. When several separate judgments are given by the judges in a case, the difficulty in finding the ratio is all the more difficult for the Court. In such a case Lord Dunedin says, it is not the Courts duty to find out with great difficulty, the ratio, to be bound by it. Obiter Dicta : Means "what is said by the way". This is opposed to ration decidendi. A ratio decidendi, is a proposition of law or a rule, enunciated by the Court. It should have been applied to the parties, in respect of live issues, and also argued upon in the case. Such a ratio is binding on the later Court. In suitable cases, that court may distinguish the earlier decision. The importance of the "ratio" is that it is binding on the later Court. However, "obiter" is different. It refers to hypothetical situations or reasoning or circumstances referred to by the judge in his decision. These are generally the observations, made by the judge. The significance is that they are not binding. The Courts will not follow these observations. It goes to the credit of Blackburn J, for his dicta, in some leading cases, are followed with respect, by the Courts. But, the universal rule is that the obiter dicta are not binding on the later Courts. 3) 'CUSTOM' Requirements of valid custom: 'CUSTOM' observes Salmond 'is to society what law is to the State'. 'Each is the expression and realisation and the measure of the society's insight. The principles commend themselves to the community Custom embodies them, as acknowledged and approved not by the power of the state but by the public opinion of the society at large'. A custom may be legal or conventional. Legal Custom has the force of the law is conventional in usage. The following are the requirements of a valid custom, i) Immemorial Antiquity : The local custom should be long standing or of a fixed period which can be determined. Immemorial means beyond the memory of any living person. Hence, the custom must have been observed over a period, beyond the memory of any living person, i.e., for over 100 years. ii) Continuity : The custom must have been enjoyed continuously. If no living man can contradict the custom set up, it must be presumed to be valid. iii) Enjoyment as of right: The custom must have been enjoyed as of right. If the custom has only been mentioned or followed by force or by stealth or with license it can have no claim to stand as a right. It must have been followed openly. iv) Certainty : The custom must be certain, clear and definite. That which is vague or not impressive will fail. v) Reasonability : The custom must be reasonable. This is the most complex and difficult of the requirements of a valid custom. What is reasonable or not is to be decided by the court in accordance with the prevailing notions of natural justice and public morality. Custom must not be either immoral or contrary to public utility. vi) Conformity with the general law : A local custom will not be admitted if it conflicts with the fundamental principles of the law of the land. vii) Conformity with statute law : The local custom must not conflict with any statute or any rule thereunder. ' viii) Compatibility with other customs : It must not be incompatible with other customs within the same locality. The court cannot sanction two hostile rules or customs. ix) Opinio juris sive necessitates : "Jurists opinion as necessary". The necessary mental element that the custom is obligatory and not merely optional. Such a conviction of mind is obligatory. Reasons for reception of customary law as law : 1) Custom frequently contains principles of justice and public utility. 2) Backing custom, there is an established usage which is the basis of its continuance for the future.

JURISPRUDENCE : MEANING & VALUE www.lawtool.net Jurisprudence: Meaning: Jurisprudence is derived from the Latin terms ‘Juris’ meaning legal and prudentia meaning "knowledge". It is that science which deals with the "Knowledge of law". It is defined as a study of the fundamental legal principles including their philosophical, historical and sociological bases, and, an analysis of legal concepts. It is a type of investigation into the essential principles of law and the legal systems (Salmond). It is the science of the first principles of civil law. The legal concepts like contracts, torts or criminal law consist of a set of rules. It has no such legal authority and further it has no practical application. The jurists have a free approach in their investigations. Further, the method of enquiry in jurisprudence is different from other legal subjects. The questions answered are: What is law ? What it is ,for a rule , to be legal rule ? What distinguishes law from morality, etiquette etc., The main fields of investigation are the following: i) The nature of law, its sources: Administrative of Justice, statutory interpretation etc., ii) An analysis of: a) The legal concepts of right and of its kinds and b) Concepts like "intention", "negligence" "ownership" "possession" "persons" "liability", "obligations", Substantive and procedural laws" etc. Value of Jurisprudence: Jurisprudence does not contain a sets of rules as in contracts or torts and also has no practical application. However, it has its own values, unique and distinctive. i) The subject has its own intrinsic interest. ii) Its researches have influenced other subjects in the field of political, medical, and social thinking. iii) It is educative, as it sharpens the lawyers own techniques. iv) Its method and explanations help resolve the complexities of law. Thus, theory helps law to solve problems and, v) Professional lawyers may get a glean into the sociology of law i.e., the realities of time, and, make them look-forward with a orientation. Schools: There are three main schools of jurisprudence: They are 1. Analytical 2. Historical 3. Ethical Schools. Analytical School: Also called English School. It aims at a systematic legal exposition of the various principles. The approach, is dogmatic. The founder of this school is Austin. The school aims at analyzing the contents of the various legal notions past or present. Main topics dealt with are: i) Analysis of the concept of civil law. ii) Analysis of the relationship between systems of law iii) Analysis of sovereignty, administration of justice, theory of legislation, precedents, customs iv) An analysis of the concepts -of property, possession, ownership, contracts, trusts, obligations, etc. Historical School: The founder of this school is Savigny. It is also called continental school. It aims at examining the general or philosophical part of the legal theory. The approach is historical. The purpose is to examine the historical evolution or the processes which ultimately lead to legal system. In other words, it examines 'what it is, from what is was'. It deals with the origin and development of those fundamental principles and conceptions so essential in the philosophy of law. These are the same as those dealt with in the analytical school, but the approach is Historical. The influence of social conditions on legal conceptions is emphsised. It examines now these concepts evolved through generations. Ethical School: It deals with the general or philosophical part of the science of legislation. The purpose is to set forth the law, not as it is or has been, but as it ought to be. It does not deal with the present but deals with the ideals for the future. The theory of Justice in relation to law is the concept of this ethical school. Emphasising the ethical or moral significance of various topics is its main concern. Grotius is called the father of this school. Kant and Hegel followed him, and developed further the ethical concepts. In order to understand jurisprudence, as Salmond says, "A study of all the schools is essential because the three schools are closely related and interwoven."

INTERNATIONAL ENVIRONMENTAL REGIME The United Nations Conference on Human Environment 1972 was a remarkable achievement as 114 participating nations agreed generally on a declaration of principles and an action plan. After an initial conflict between the need to prevent pollution and conserve nature on the one hand, and the stress on social and economic development on the other, the conference evolved the concept that environmental protection was an essential element of social and economic development. It was agreed that environmental protection and development were inseparable, and were, in fact, two sides of the same coin. The Stockholm Declaration emphasizes that the world has just one environment. It states that man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well - being. Man bears a solemn responsibility to protect and improve the environment for present generations.

Narmada Bachao Andolan www.lawtool.net Narmada Bachao Andolan (NBA) is an Indian social movement spearheaded by native tribals (Adivasis), farmers, environmentalists, and human rights activists against a number of large dam projects across river Narmada, which flows through the states of Gujarat, Madhya Pradesh, and Maharashtra. Sardar Sarovar Dam in Gujarat is one of the biggest dams on the river and was one of the first focal points of the movement. It is part of the Narmada Dam Project, whose main aim is to provide irrigation and electricity to people of the above states. The mode of a campaign under NBA includes court actions, hunger strikes, rallies and gathering support from notable film and art personalities. The Narmada Bachao Andolan, with its leading spokespersons Medha Patkar and Baba Amte, have received the Right Livelihood Award in 1991. After India's independence in 1947, under the newly formed government headed by Jawaharlal Nehru, investigations were carried out to evaluate mechanisms for using water from the Narmada River, which flows into the Arabian Sea after passing through the states of Madhya Pradesh, Gujarat. The formation of the Narmada Water Disputes Tribunal was triggered by interstate differences in implementing schemes and sharing of water by the Government of India on 6 October 1969 to adjudicate over the disputes. The tribunal investigated the matters referred to it and responded after more than 10 years. The Narmada Tribunal aimed to set out conditions regarding the resettlement and rehabilitation of those displaced by the dams.[4] On 12 December 1979, after ten years of investigation, the decision as given by the tribunal, with all the parties at dispute binding to it, was released by the Indian government.

Meaning and Definition of Environment www.lawtool.net world environment day 5 june You must have heard the term "environment," but have you ever thought exactly what "environment" means? The term "environment" does not have a single dimension, but has several aspects - besides the physical and biological aspects, the environment has multiple other aspects, including social, political, economic, cultural and religious, to name a few. At' the fundamental level, environment means the three basic elements of the earth - air, water and land - and the inter-relationships that these elements share with human beings and, in fact, all living organisms. The elements and their interaction with living beings constitute the physical and biological aspects of the environment. All these aspects surround every organism and interact not only with the organism, but also among them selves. Thus, the environment is a blend of all factors, and constitutes all the external conditions that influence the life and development of living organisms, including plants, animals and human beings. Let's look at some other definitions of the term "environment" in the statutes of various countries. According to the Indian Environment (Protection) Act, '1986, the "environment" includes water, air and land, and the inter-relationship that exists among and between water, air and land, and human beings, other living creatures, plants, micro-organisms, and property. The Canadian statute defines "environment" as components of the earth and includes air, land and water, all layers of the atmosphere, all organic and inorganic matter and living organisms, and the interacting natural systems that include these components. The European Economic Community defines environment as water, air, land and the inter-relationship between them and any organisms. The Australian Environment Protection defines "environment" as aspects of the surroundings of human beings, whether affecting them as individuals or in their social groups. The definition of the term "environment" establishes the philosophical basis of any legislation drafted and implemented to protect it. Besides, Way that environment is defined indicates the value placed on its various a e is and the perceptions that policy-makers have of the environment, particularly human's place in it. Such a definition also reflects the focus of the environment legislation and the commitment of the State towards protecting it. Some other terms related to the environment are ecosystem ,ecology and biodiversity. Ecosystem means a system in whit nature interact with each other and survive and such system may exist at a highly localized level. For example, a lake or a forest Ecology means the study of such intricate web of relationships .A biome means a larger ecosystem or a combination of several ecosystems that hive similar climates and share similar characteristics and nature vegetation. For example, grassland or a desert .The biosphere consists of the' earth, the water and air that surround the earth and give it life, and all living things within .Biodiversity, or biological diversity, means the variety of species of living beings plants, animals and microorganisms - within an ecosystem or ecological process.

Chapter 1 introduction of banking Definition of banking –banking is a kind of business the banker in deal in money he accepted deposit from the member of public Commercial bank – commercial bank are conducting all type of banking business ,and accepting deposit from the public ,banking advance issuing bank guarantees foreign exchange ,financing ,import and export trade ancillary business like executer and trustee business safe deposit of valuable ,sale and purchase of shares and securities investors management etc. Chapter 2 nationalization The nationalization bank play a new and pioneering role in helping the public sector get on its fact it should be possible to cut the link that binds the public sector to government and to for a new commercial and techno-economic –nexus the public and public sector . Chapter 3 bank and customer Customer – customer means a person who has an account with the bank old a person maintained an account with the bank Chapter 4 special types of bankers customers Every person who has competent to contract can open an account with a bank provided the bank is satisfied regarding his bonafide and willing to enter into necessary business relation with him but there are certain types of person (e.g. minor ,lunatic ,,married woman ,Pardanshin woman ,etc. whose capacity to enter into valid contract is subject to certain legal restriction . Chapter 5 control ombudsman The ombudsman means a person appointed a legislative body to receive ,investigate against government official but banking ombudsman scheme 1995 was formed by reserve bank of India and issued under section 35-A of the banking regulation Act 1949. Chapter 6 control banking theory and RBI Reserve bank of India – in the year 1926 the commission of India currency finance which know as Hilton young commission suggested the establishment of reserve bank of India a bill was introduced in the Indian legislative assembly in 1927 and the bill was dropped on constituted grounds A fresh bill was introduced on September 8.1929 and reserve bank of India Act was passed in September 1934 and reserve bank of India started working 1st April 1935 Chapter 7 lending by bank (loan and advance) Landing of found to the constituent mainly trades business and industrial enterprises constitute the main business of a banking company The major portion of a bank fund is employed by May of fund and advance The major part of bank income earned from interest and discount on the found so lent . Principal of sound lending · Safety · Liquidity · Profitability · The purpose of a loan · The principal of diversification of risk . Chapter 8 contract of indemnity and guarantee Contract of indemnity and guarantee is a special signification for banker in course of their business dealing bank may have to enter into contract of indemnity with other parties Contract of indemnity and guarantee are specific contract and are governed by the provision of the Indian contract Act 1872 Contract of indemnity section 124 A contract of indemnity is a contract by which one party promises to save the other from the loss caused to him by the contract to the promissory himself or by the conduct of 3rd party section 124 0f the Indian contract act 1872 Contract of guarantee A contract of guarantee is contract to perform the promise of discharge of liability of third party person in case of his defaultThe person who give the guarantee is called the surety is given is the principal debtor A person to whom the guarantee is given is called creditor the contract is either written or oral section 126 of the Indian contract Act 1872 Chapter 9 the recovery of the debts due to banks & financial institution Act 1993 · Establishment of tribunal and appellate tribunal · Jurisdiction power and authority of tribunal · Procedure of the tribunal · Appeal of the appellate tribunal · Recovery of debt determinate by tribunal Chapter 10 investment in non –banking finance institution Non-banking finance institution (NBFCs) representing companies engaged in transferring the funds from lender to borrowers name came to recognized all over the globe. Non-banking finance company consist mainly of finance companies which carry on hire purchase finance ,housing finance ,investment loan ,equipment leasing ,mutual benefit financial companies but do not include insurance companies or stock exchange or stock banking companies Chapter 11 foreign exchange control regime in India Foreign exchange regulation Act (FERA) 1973 It this Act regulate certain aspect of the conduct of business outside the country by India companies and induce by foreign companies The FERA was widely described as a draconian and obnoxious law Main object of FERA framed against the back ground of service of foreign exchange problem and controlled economic regime. Modification economic liberalization and improving foreign exchange reserves position · According a new Act the foreign exchange management Act (FEMA) 1999 · FEMA which came into effect from January 1st 2000 Chapter 12 negotiable instrument Act 1881 In the term negotiable instrument means a document in writing which creates a right is favor of some persona and which is freely transferable by delivering accordingly to section 13(a) of the Act A negotiable instrument means a promissory note, bill of exchange or cheque payable either to order or to bearer Chapter 13 the banker book evidence Act 1891 Chapter 14 ancillary services of a banker Chapter 15 state bank of India

CUSTOMER AND BANKER www.lawtool.net Relationship : "The relation of banker and customer is primarily that of debtor and creditor" says Sir John Paget. The money deposited by the customer is absolutely at his disposal. But so far as the bank is concerned it is a debtor, with an obligation that it should honour the customer's cheques drawn on it upon his balance as is available and sufficient. The bank becomes the owner of money on deposit. It is not a lien, it is not a bailee. The money is used by the Bank to earn profits and to pay interest. The bank need not pay with the same currency notes and coins as deposited by the customer (Hanuman Bank Ltd. V.K.P.T.) There is no debtor-creditor relationship when the bank is entrusted with money to pay certain amounts to specified persons under an agreement, as then the bank will be a trustee. The bank is not a bailee* not an agent but only a debtor, when a customer deposits money. It was so held in Foley V. Hill. In Shanti Prasad V. Director of Enforcement,the Supreme Court held that the relation in case of deposits by a customer with the bank is that of a creditor and debtor and not of a trustee and beneficiary. Bank is sometimes called a dignified debtor as the bank borrows as a borrower but is called in a dignified way as "deposit"; customer goes to the "bank" and not the bank to the customer; repayment by bank is done when customer demands, the place is the bank's branch office, not any other place. Further, bank does not give any security to customer for the deposits made. Bank is to repay only when a demand is made by the customer. In Jokinson V. SwissBanking Corpn., Lord Atkin (Privy Council) pointed out that there was "one and indivisible"contract created between the bank and the customer. The bank undertakes to receive money, collect bills, repay at the branch during office hours and honour cheques (prbills) issued by the customer. The customer undertakes to take reasonable care in issuing cheques and not to mislead the bank. It was held in Clare and Co. V. Dresdner Bank, that the payment by bank is confined to the, particular branch where account is kept. The reasons are one of convenience and of verification of signature and state of affairs of the customer's account. However, special arrangements may be made for payment in other branches by agreement. Though the primary relationship of debtor-creditor is created by thecustomer opening an account in the Bank, there may be other subsidiary relationships created by agreement such as : bailor-bailee, trustee beneficiary, principal-agent etc. Points of difference between, bank-customer relationship and commercial creditor-debtor are Salient Features of Banker's Relationship : 1. Honouring customer's cheques When a customer opens an account there is an the customer. Not otherwise. undertaking by the Bank to honour the cheques of the customer. The cheque should be presented, within 6 months[now 3 months] from the date of issue to the branch concerned.If there is any order of court or any competent tax authority etc. the amount need not be paid. There are other legal grounds for the bank to dishonour its customers' cheques. Otherwise dishonor becomes wrong and the bank becomes liable to pay damages, for lossof credit or injury to reputation of customer. Leading cases : (i) Marzette V. Williams; (ii) Canara Dank V.Rajagopal. P issued the cheque for Rs.294/- to telephone department. This was wrongly dishonoured and the department disconnected the phone and P lost his job. The court awarded Rs. 10,000 for loss of salary and Rs,4,000 for loss of reputation and mental agony 2. Lien of Banker : The general rule is that the banker has a "general lien" on securities etc. of the customer and can draw on them to liquidate the balance of account due by the customer. This rule applies unless there is a contract to the contrary between the customer and the banker. Banker has no lien over "Safe Custody Deposit" of customer or on the deposit made for special purpose. 3. Maintenance of Secrecy of Accounts : In Tousier's Case (1924), it was declared that there was an implied legal condition that the account of the customer must not be disclosed. This obligation to maintain secrecy continues even if the account is closed by the customer. , . „ However, to guarantor introduced by the customer the state of the account may be disclosed to the extent necessary; to the court, as per its order, the bank may disclose, and no further. 4. Levying Incidental Charges : The banker has a right to claim incidental charges from the customer especially when the account is not remunerative. !n recent years, the banks are closing the account when the balance is less than minimum for years in customer's accounts. 5. Duration : Formerly there must have been some recognisable course of habit in dealing between the person and banker. Hence a single banking transaction or by merely opening an account the account holder would not become a "customer". This was so held in Mathews V. William Brown & Co. But this is discarded and today, as per Ledbroke V. Todd, therelationship begins as soon as a cheque is paid in and accepted for collection. In Central Bank V. Gopinathan Nair, the court held that so far as banking business is concerned the customer is a person whose money has been accepted by the bank on the condition that the bank will honour the customer's cheques to the extent of credit available, irrespective of his connection being of short or long standing. Hence, the general relationship commences, from the time the customer .opens his account. 6. Demand essential for payment: There should be a demand by the customer for payment. The period of limitation of 3 years starts from the date of demand. Hence, for Fixed Deposit, the period starts when ED. receipt is produced and demand made. Similarly in case of current account, savings bank accounts etc. Banker's General Lien It is an established fact that the relationship between a banker and its customer is one of debtor and creditor. The salient features of this relationship are ; (i) The bank undertakes to honour the cheques etc, of its customer for the money deposited by the customer in his accounts. (ii) Banker has a lien on securities etc. of the customer. (iii) Banker should maintain secrecy of the Customers accounts. (iv) Banker may levy incidental charges, and (v) Customer's demand is necessary for payment. Banker's lien is one such feature. "Lien" is a right to hold or retain goods, securities etc. and the banker's lien is called General lien, i.e., to hold or retain all securities for a general accounts of the customer. Hence, the.bank may adjust or draw on them toward payment due by the customer. This right extends to all securities, including goods etc., unless there is an agreement to the contrary (Brandae V. Barneit). This lien is an implied pledge. The banker has a right to sell the securities on default of payment. In regard to immovable property, the banker has a right to retain the deeds. Banker's lien extends to all funds, securities and amounts that come to banker's hands, According to Sir John. Paget,, "General lien extends only to customer's own securities." | Creation of Lien : As per Sn.171 of Contract Act, the banker's lien is implied. However, (i) the banker should get the property of customer as a banker; (ii) The possession should be obtained lawfully; iii) The property should not be for a particular purpose and there should be no agreement against the General lien. Safety Vaults The banks are providing in their own premises specially built safety vaults for use by the customers, on payment of a special fee. This is a special service available. The Bank in such a case is a bailee in respect of articles deposited by the customers. Though as per Sn.171 of Contract Act, there is a general lien of the banker, this rule will not apply to safety vaults. The reason is, this is not banking, but a special, service for a particular purpose, i.e., safe custody. Hence, the banks will have no lien. It was held in Lease V. Martin that the banker (in London) who had advanced loans on security of share certificates could not. exercise lien on a safety box deposited by customer for custody. No Lien on B/E or document: For specific purposes, a customer may deposit in the bank B/E or other documents. In such cases, the banker cannot exercise a general lien. Trust Account: There is no right of lien over trust account as the trust is for a particular purpose. Firms : For loans due from a firm, the bank cannot exercise a lien over partner'sunless there is acceptance by the partner. If money is deposited for a particular specified purpose, there is no general lieu. Problem : Can a bank exercise general lien on the following : (i) Sealed box or a bar of gold deposited in safety vault. Ans : No general lien can be exercised. The bank acts as a bailee; the purpose of deposit is specific and hence no general lien. (ii) Documents of title to goods, fixed deposit receipts, life insurance policy, cheques and bills deposited for collection. Ans: The bank has a general lien as these have come to .his hands as a banker. In the case of cheques and bills, they are deposited for collection. The banker has received in his capacity as a banker. Hence, there is general lien. (iii) Dividend and interest warrants or coupons deposited for collection. Ans /There is general lien as these are received by the bank in its capacity as banker. (iv) Money deposited for a particular purpose. Ans : There is no general lien, as the purpose is specified and accepted. (v) Securities left by customer by mistake. Ans : There is no general lien as the bank has not received lawfully. (vi) Fixed deposits by X and Y jointly. Ans: X is due certain amount to the Bank. Hence, X and Y are not having debit and credit account in the same right. Hence, bank cannot have general lien for arrears from X. Secrecy of Customer's Account: In the relation of the banker and customer as a debtor and creditor, there is an obligation on the banker to maintain the secrecy of the customer's financial position as the disclosure may harm his creditworthiness. From Tousier's case, this secrecy is considered as an "implied condition" of the relationship. This obligation continues even when the accounts are closed by the customers. Exceptions : To the general rule of secrecy, there are exceptions. (i) The status or condition of the account of a customer may be disclosed when there are proper and reasonable circumstances. (a) Court Order: When there is a court order to the bank summoning the bank to disclose the state of affairs of the customer's standing, the bank is justified in testifying to the accounts of the customer. The Civil Procedure Code has made provisions for productions of evidence before the court as for eg. discovery and inspection, examination of bank officials under oath, production of books of accounts or documents or under commission. Similar provisions are in the Income Tax Act, the Wealth Tax Act etc. Under Criminal Procedure Code, the police and under the Customs Act, the officials may call for any information from any person including a banker. (b) Enemy Character : In case of war, if the bank comes across its customer's transactions dealing with a country having Enemy Status, it may disclose the status to the government in public interest. (c) Recovery by Civil Action : When the bank, for recovery of loans, sues the customer in a civil court, it may disclose to the court the status of the account of the dependent customer. (d) Guarantor : When the customer brings in a guarantor to stand as surety, and if the guarantor makes enquiry about the state of affairs of the customer's credit status, the bank may disclose the information as may be necessary for the purpose. Normally, the bank takes permission of the customer in such circumstances. (ii) Limited Disclosures : (a) Status or Credit Information : This gives general information regarding the status of the customer. This is based on courtesy between banks as when a person stands as guarantor or surety. The bank of such guarantor may by courtesy give information but it must be given very cautiously and to the extent necessary. It must be general otherwise the bank may be liable, in damages for libel to its customer. (b) Disclosure under direct use of I,.T. Dept.: Shankar Lai V SBI The customer remitted 261 currency notes of 1000 Rs, denomination to a SB1 branch. The branch reported to the I & T department which issued a notice to the customer and attached. Question was whether this was a proper or legal disclosure. The High Court held that de-monetization was made by law and directives had been duly issued by the department. Hence, disclosure was proper, (i.e., the amounts were released later as per I.T.Act) (c) Foreign Exchange Regulations Act authorises the R.B.I, to inspect the books of accounts of the banks. (d) The Companies Act empowers Inspector of Central Government to inspect the books of accounts for investigation purposes. (e) Customer himself authorising a reference in which case the bank may disclose as may be necessary.Consent by the customer may be express or implied. Cases : (1) Sutherland V. Barclay's Bank. A cheque issued by wife W was dishonoured by the bank. At the instance of the husband H, W phoned to the bank to know the reason and when conversation was in progress, H took the phone and expressed his displeasure for dishonouring but the manager told H about W's cheques being issued to betting in horse race etc. W sued the bank. Held, W by giving phone to H, had given her implied consent and hence not liable to the bank. (2) Hadley Byrne & Co. V. Heller & Partner Ltd. (3) Banbery V. Bank of Montreal Hence, the general rule is that secrecy of the customer's financial status should be maintained by the Bank as an implied condition of-its relation with the customer. However, only in exceptional and defined circumstances disclosure is allowed. The bank becomes liable for damages for the tort of libel if disclosure is beyond these limits. Honouring Customer's Cheques : (i) Obligation : When a customer opens an account there is a super head obligation or an undertaking by the bank to honour the cheque of the customer.The cheque should be presented within 6 months from the date of issue to the branch concerned. There are certain legal grounds on which the bank may refuse to honour the cheque of its customers. These are : 1. Insufficient funds of the drawer. 2. Post dated cheques. 3. When the form of cheque is of doubtful legality. 4. Cheque not presented during banking hours. '5. When the funds cannot be applied to the cheque. 6. Material alterations, signature irregular etc. 7. Death of drawer, bank having notice. 8. insolvency of drawer, bank getting notice. 9. Countermanding of cheque. 10. Cheque drawn on different branch. 11. On receipt of Court order, prohibiting payment. 12. When the customer's account is held under general lien by the bank. (ii) Nature of the obligation to honour: There is a 'Contractual obligation' on the part of the bank to honour its customer's cheque, and hence, the bank is bound by this obligation. As per Sn.31 of Negotiable Instruments Act, there is also a statutory obligation in as much as this section imposes an obligation to pay if there are sufficient funds properly applicable and 'in default of such payment, must compensate drawer for any loss or damage caused by such default'; (a). Sufficiency of funds : The funds available in customer's account (i.e., Current Account) must be sufficient. Having credit balance in another branch of the bank is of noconsequence. Overdraft given, if any , must be taken into consideration. (b) Proper application : The funds must be available for payment in Customer's accounts and should be capable of being appropriated. Credit balance in other accounts as for eg., Trust account, specific amounts deposited for a purpose etc. are not funds properly available. (c) Within 6 months : The cheque should be presented in 6 months from the date of issue. (d) No legal bar : If a court has issued a 'general order' attaching the funds of the customer, the bank may dishonour the cheque of its customer. (iii) Consequences of Wrongful dishonour : If a bank refuses to pay or dishonour a cheque without justifiable reason, there is wrongful dishonour (Hopkinson V. Forester). The bank will become liable to compensate the customer for' injury to his credit'. The leading , case is Marzette V.Williams (1830). Marzette, a wine merchant had opened an account in Williams (Bank). On a particular day, the balance was £ 69 and on the same day £ 40 was remitted. A cheque of Marzette drawn in favour of Mr. Sampson came up for collection, and, was dishonoured. Marzette sued the bank. Held, Bank liable, even though there was no financial loss to Marzette. There was injury to his credit or reputation. In Sterling V, Barclay's Bank, Mrs. Sterling sued the bank for dishonouring her cheque. Her cheques had been dishonoured twice for insufficient funds. Only nominal damages were granted. For non-traders special loss or injury should be proved. In Gibbon V. Westminister Bank, nominal damages of £ 2 were awarded. Held, special damage should be proved to recover substantial damages. However, in case of a trader or businessman, substantial damages will be awarded, without proof of special loss or injury. Leading cases : (a) New Central Hall V. U. C.Bank .-The cheque was dishonoured stake but the bank wrote letters explaining the mistake. The court held 'First unjustly spitting on a person, and then washing it with a bucket of water' will not in any way reduce the liability. Substantial damages were awarded. (b) Canara Bank V. Rajgopal : R, a non-trader had issued a cheque for Rs.294/- to telephone department which was wrongly dishonoured by the bank. The telephone was disconnected and R lost his job. The court awarded Rs.14,000 towards loss of salary, prestige and for mental agony. (c) In Davldson V. Barclay's Bank, a trader was awarded £250 for wrongful dishonor of his cheque of £ 2.15., Is wrongful dishonour defamatory ? According to leading cases 'Yes'. Hence, when a cheque is wrongfully dishonoured with the reason 'No Account', 'Not sufficient funds', 'Refer to drawer', 'Present again' are held by the courts to be a libel and hence, substantial damages, will be awarded by the courts. In Wilson y Midland Bank, endorsement by Bank 'no account' was held libelous. In Davidson V. Barclays Bank, 'not sufficient funds' was held as defamatory. In Sterling V. Bare lays Bank, 'refer to drawer' was held libelous. Of course in all these cases, the dishonour was wrongful. Conclusion : The bank is under a contractual and statutory obligation to honour the customer's cheques. The legal grounds for dishonoring are well defined, However, for wrongful dishonour, the bank, is made liable and, substantial damages are awarded as detailed above, to the traders, but to others, only nominal damages are awarded. The law on this is well defined.

Reserve Bank of India The Reserve Bank of India, which is the central bank of our nation, was established in 1935 under R.B.I.Act 1934. It took over the currency issue authority and credit control from the then Imperial Bank of India. The Bank was nationalised in 1948. Composition: Central Board of Directors : 20 Members; Headquarters : Bombay. This consists of: (i) A Governor and not more than 4 Deputy Governors appointed by the Central Government. The Governor is the Chief Executive Authority or Chairman of the Bank. (ii) 4 Directors nominated by Central Government from local Boards of Bombay, Calcutta, Madras, Hew Delhi. (iii) 10 Directors nominated by Central Government as per Sn.8(i)(c). (iv) One Government official nominated by Central Government. Functions : Many important functions are saddled on R.B.I. Briefly they are : (i) It issues and regulates "Currency" in India (Issue Department). (ii) It acts as a banker to the Central Government and also to State Governments, and also manages the public debts. (iii) It acts as bankers bank i.e., as banker to all commercial Banks. All commercial Banks keep and maintain their accounts with R.B.I, i.e., they keep deposits with R.B.I, and borrow when necessary. (iv) It controls credits to ensure price stability. (v) It maintains the "internal value" of the " Indian Rupee" in India and also its "external value" i.e., against foreign currencies. (vi) Promotional activities or functions: It promotes sound economic growth by issuing guidelines to all Banking Institutions in India. In this regard it has (a) established a"Bill Market Scheme", (b) helped in establishing financial corporations in the field ofagriculture, Industry, etc, also extending Banking facilities to rural areas. (c) has helped thecommercial Banks to open branches -in foreign countries and also in promoting exports andimports by opening EXIM Bank etc. (vii) It controls the activities of all commercial Banks under the Banking Regulations Act 1949. It has the power of issuing Licences, to open branches.to inspect the banks : It has wide powers leading to over-all control of the banks... It has the power of "Select Credit Control" i.e., Advancing Policies, Rates of interest etc (viii) It controls the volume of total credit given by the Banks by resorting to (a) fixation of rate of interest; , (b) by open 'market operation and (c) by specifying reserve requirements. (ix) It may require commercial banks to maintain Statutory Liquidity Ratio (SLR), Cash Reserve Ratio (CRR) etc. (x) It may issue! directions and orders to the Banks andthese are final and binding. Conclusion: An assessment of the working of the RBI shows that though there are both achievements and failure largely it has been a success. It is rightly claimed that the inauguration of the RBI has "inaugurated a new era of financial stability. Banking reform. and extension and re-orientation of the money market". The recent scam scandal has shown how the RBI is still in the process of becoming perfect, and, it is now working with alertness to peg up loop-holes and to make the system fool-proof to gain the confidence of the people. Banking Companies : The Banking Regulations Act 1949 regulates the functions of the various banking companies and corporations. in India and also provides for the social control over banks. The act applies to (1) all nationalised Banks (2) non-nationalized Banks and (3) co-operativeBanks. Functions and services Banking means accepting of deposits of money from the public for the purpose of investment, repayable on demand or otherwise (sn.5 (b) Banking Regulations Act. Banking company means any company which transacts the business of banking in India Sn 5(c) .It further clarifies that if a company is formed for trade or manufacture and accepts " deposit from the public”, it is not a banking company. Functions Sn .6" i)Business of banking is the major business of the Banking company. ii) Borrowing of money, lending of money, with or without security, dealing with Bill of Exchange, hundis, Bill of Lading [ B/L] or other such instruments. (iii) Issuing of LC (letter of credit ) and travellers cheques, Credit cards. (iv) Buying and selling of Foreign Exchange. (v) Purchasing or selling of debentures, shares etc (vi) Providing safe-deposit vaults, (vii) Acting as agent of Government or local authority, clearing of goods. (viii.) Participating in issuing of public or private issues or other shares, stocks etc. of Corporations. (ix) Carrying on every kind of guarantee and indemnity business (x)Undertaking and executing trusts , (xi) undertaking the administration of estates as executer, trustee, etc;, (xii) Making payments towards pensions, insurances, electric Bills.water (xiii) The Banking company may acquire construct and maintain buildings in running its business. (xiv) Se!l ,lease, ,mortgage or exchange the property of the Company. General : The Banking company is empowered to do all things incidental or conducive to the promotion or advancement of the business of the company. Prohibition : The Banking company is prohibited from engaging itself in any activity other than what is stated in the Banking Regulations Act. Nationalization of Banks : 1969—Concept of Social Control : "Social Control" with reference to Banks and Banking companies came into vogue in 1967,with the Government at the centre proposing io impose social controls over Banks by (i) establishing the N.C.C. (National Credit Council) and (ii) introducing legislative measures and controls in "Banking Regulation Act". After India became independent, the Government at the centre enunciated its policy of "Socialistic Pattern of Society"—meaning equitable distribution of wealth, through democratic means.It introduced the mixed economy : (i) public sector controlled by Government and (ii) private sector to function on its own. The private sector was controlled by M.R.T.P.Act (Monopolies & Restricted Trade Practices Act 1969). The public sector could grow by nationalisation of Industries and Institutions. The banking system in India in the private sector had many basic weaknesses : (i) There were complaints that the commercial banks were giving priority to large and medium scale industries and had neglected small scale industries. (ii) Exports from India, to earn valuable foreign exchange had not been given top priority by Banks. (iii) Small scale industries and imports were also neglected. (iv) Banks' top officials who were framing the policies were directing the funds to big and established business houses. (v) Banks were under the control of mostly industrialists. They were influencing in advancing to companies, firms or institutions where the Bank directors were substantially interested. There were cases of credit giyen to hoarders, speculators-etc. (vi) In some banks there were cases of mismanagement calling for immediate intervention by Government. (vii) Agricultural and rural sectors had been much ignored by the commercial banks. (viii) The Management of banks lacked professional expertise in many Banks. Nationalisation : The panacea, to cure the ills of the commercial hanks, was nationalisation of these banks. This was done at two stages. By the Parliament passing the Banking Companies (Acquisition and Transfer of Undertaking Act 1970) which came into force from 19-7-1969. 14 Major commercial banks each having deposits of 50 crores and above were nationalised. The aggregate deposits were 2632 crores with 4130 branches. (ii) 6 more banks were nationalised on 15-4-1980. Process of Nationalisation : Prior to nationalisation, the central government announced in 1967 its decision to impose "social control" over banks.For this twq.steps were taken, (i) Establishment of National Credit Council (N.C.C.) (ii) Amending Banking Regulation Act to introduce legislative controls. The N.C.C. did a commendable job in . (a) assessing the credit demands from various sectors; (b) identifying the priority sectors and their requirements; (c) finding out ways and means to guarantee the optimum and effective use of the overall resources. Controls : The Banking Regulations Act was amended. It provided for (a) Board of Directors having special qualifications in Banking in addition to industrialists; (b) Appointment of whole time Chairman; (c) Restrictions on loans and advances to relatives of Directors etc. Soclul Revolution : By an ordinance issued by the President on 19th July 1969,14 Banks were nationalised and taken over and this was called "Social Revolution" in the Banking system, The reason,for this sudden step was that public ownership of Banks would help mobilisation and development of national resources. These could be used on the basis of plans and priorities. Further, in many banks, the influence of the retired chairman and others was patent. They were hardly obeying the government's directions in implementing social control measures. Direct control was the solution. As the Government stated "the country cannot afford a trial and error" method, and hence, "an element of dynamism and new vigour" was needed in Banks. The Government further justified its stand stating that credits would be properly channelised on priority basis, banks could expand to rural areas. Legal Mode : The Nationalisation was effected by an ordinance issued on 19-7-69. This was challenged before the Supreme Court (Rustom Cowarji Cooper V. Union of India) The court held that: , . (i) Art 14 : There was discrimination as foreign and other Indian Banks were permitted but only 14 Banks were nationalised. LAW OF BANK1NO& INSURANCE (ii) Art 19(i)(g) : Though the 14 Banks were allowed to do business, their assets, premises, staff and names are taken away and hence it was impossible to do business. The restriction was unreasonable. (iii) Compensation provided were illusory. These constitutional loopholes were suitably plugged by making amendments and providing for : (a) mode of transfer of 14 banks; (b) payment of compensation; (c) management of the 14 banks. : Effect of Nationalisation : . The result of nationalisation is very significant and impressive. (a) There is a rapid expansion and dispersal of branches of banks in cities, urban towns, and semi urban and rural areas. (b) There is a significant mobilisation of deposits. (c) Banking facilities have been extended to the length and breadth of the country. There is banking habit growing in the people. (d) Banking advances and loans are being given on priority basis. (e) The infra-structure in management is capable of taking quick decisions and implement them down the line etc. Conclusion : There is complete re-orientation in banking system after nationalisation. There is ashift from "class" banking to "mass" banking, "asset-based" lending to "production-based" lending and from "elite" banking to "social banking". Criticism: Many eminent persons and economists have opposed nationalisation : (i) The commercial banks were significantly responding to the social control concept, in a spirit of cooperation.- (ii) There could be some evils in the private sectors, but nationalisation was not a solution. This has only substituted one evil for another. (iii) There is no dynamism in public sector. There is room for corruption and favoritism. There is delay, there is lethargy in work. Service is poor. Evils in banks arerampant. . (iv) Lack of competition in Banking has resulted in employees becoming public sector minded, quality of service has dropped down. (v) Due to government restraints, bank officials are afraid of taking decisions. This has badly hit the customers. The pros and cons of nationalisation have been recently studied by the Narasimhan Committee and many suggestions have been made. The latest trend is towards privatisation. Bankers Books Evidence Act: Banker's Books' Evidence Act 1891, is a very important law made exclusively for Bankers in India. This Act was amended in 1983. The Act has provided for special privileges to bankers as regards the mode of proving bank entries in their books and their production in Courts, and no further. According to the Evidence Act, the contents of a document are to be proved before a court by producing the Original. The Bankers Evidence Act provides for a privilege and a Certified copy may be produced. (i) Banker's Books mean ledgers, day books, cash books, account books and all other books used in the ordinary business of the Bank. (ii) Certified Copy means a copy of any entry in the books of the bank together with a certificate at the foot that it is a true copy duly signed by the manager or chiefaccountant of the branch. Further, there must be a certification that the entry is made in the ordinary course of banking business etc.Such a certificate is admissible in evidence in the court. It is a prima facie evidence of the existence of such entries as they are in the originals. The presumption is that these entries are genuine. But this is a rebuttable presumption. In C, Goswami V. Gauhati Bank Ltd., the bank had produced a certificate copy from its branch that Rs. 10,000 had been advanced to plaintiff. Petitioners challenged the entries. The Supreme Court held, that the' certified copy was admissible, but when challenged the entries are to be proved by the Bank with the originals. The provisions contained in the Bankers Books Evidence Act have been upheld by the courts (Punjab National Bank V.Vmod Kumar). Restrictions: When the Bank is not a party to a suit, no officer of the Bank shall be compelled to give evidence ,to appear or produce documents except under court orders. Investigation by police officer : Police, not be below the rank of Superintendent of Police may compel the bank to produce the books for investigation purposes, under the Cr.P.C. A party to a legal proceedings may apply to the Judge requesting him to issue an order to the other party to produce the certified copies as required by law.

BANKING LAW IMP- QUESTION WITH ANSWER part 2 www.lawtool.net Q7 trace the evolution of banking institution History of modern banking or evolution of Bombay in India first time English agency house establish by the east India Company. The agency house were basically trading firms and carrying on banking business as part of their main business The east India Company laid the foundation for modern banking in first half of 19 the century with establishment of the following 3 banks. 1) Bank of Bengal 1809 2) Bank of Bombay 1840 3) Bank of madras 1843 These banks are also known as presidency bank and foundation well as independent units 20th century swadeshi movement the establishment of a number of bank with India management E.g. Punjab bank Ltd 1895, canara bank Ltd in 1906 Imperial bank of India Act passed 1921 In 1920 the imperial bank of India Act was passed amalgamating the three presidency bank and imperial bank of India was established in 1921 power to holds government found and manage the public debt. Reserve bank of India 1935 Reserve bank of India Act was passed in 1934 and constituted in 1935 to regulate and issue of bank securing monetary stability in India. State bank of India Act 1955 In 1995 the state bank of India act was passed Q 8 Explain special relationship between banker and customer Special relationship of banker’s customer Every person who as is competent to can made contract and open account with a bank provided the bank is satisfied regarding his bonafide and willing to enter into the contract or enter necessary business relation with him certain type of person . E.g. minor, lunatic, marred woman, etc. enter in to valid contract is subject to certain legal restriction 1. Minor a person who has not complete his 18th year age A banker open saving bank account Recoding the date of birth of a minor 2. Lunatic All contract made by lunatic are valid those made during lucid interval No banker would knowingly like to open account in name of a person of unsound mind because difficulty of choosing between the risk 3. Marred woman 4. Pardanshin woman 5. Illiterate person 1) Thumb impression 2) Identification mark 3) Photograph 4) General Trustee Executer and administrator Customers attorney Joint accounts Joint Hindu family Partnership firm - section 4 of partnership act define partnership as the relations between person who have agreed to share the profit of business carried on by all or any of them for all Joint stock company · Explanation of document certification of incorporation · Certification of commencement of business memorandum of association · Article of association · Copies of annual account · Copy of boards resolution · Borrowing power of the company registration of change under the companies act Clubs, societies, charitable institution:- In case clubs, society, charitable, institution and religious institution school, college etc. not engaged in trading activity The society must be incorporated (the society registration Act 1860) Rule and by –laws of the society Resolution of the managing committee Death or registration Care to be exercised in case of personal account Q 9 discussed the function commercial bank of India or different function of the bank. Function of the commercial bank _ a bank is an institution which deals in money this earlier banks were goldsmith, merchant and money lander main three function of bank 1) receiving deposit 2) advancing loans and 3) discounting bills A) Accepting deposits Fixed deposit Saving bank deposit Current deposit B) Giving loans and advancing money Overdraft Loans Cash credits Discounting bill C) Agency services :- collect cheque ,dividend or interest on stock buy and sell security D) Others services :- issue personal loan and commercial letters of credits ,transaction of foreign exchange ,supply trade ,information and statistics Define banking :- banking is kind of business the banker deals in money or he accepted deposit from the members of the public agreeing to repay then either on demand or after the expiry of a fixed period of time surplus money of the public they deal on credit instrument and the wheel of progress Function of bank or feature of bank · Deal in money · Deposits must be withdrawable · Dealing with credit · Commercial in nature · Nature of agent Commercial banking:- Q10 what is cheque? What are its essential feature? Distinguish between cheque and bill of exchange Define cheque: - according section 6 of the Act a cheque is a bill of the exchange drawn on a specified banker and payable on demand. Essential feature That it is always drown on a banker and That it is always payable on demand all cheque are bill of exchange but all bill of exchange are not cheque . Distinguish between cheque and bill of exchange A cheque · A cheque is always draw on a bank or banker · A cheque does not required any acceptance · Payable immediately on demand · A cheque may be crossed Bill of exchange · Drawn any person including a banker · Acceptance require before the drawer · 3 days of grace unless it pay able on demand · No such provision in case of bill of exchange Q 11 crossing of cheque Cheque are two type 1) open cheque and 2) crossed cheque Open cheque – which are paid over the counter of the bank open cheque are liable to great risk in course of circulation in case lost or stolen and finder or theft . Crossed cheque – protect the owner of the cheque a system of crossing was introduced crossing is a direction to the banker not to pay the cheque across the counter but to pay to a bank only or to a particular bank in an account with the bank. Crossing provides a protection and safeguard to owner Modes of crossing Two modes of crossing a provided by the negotiable instrument Act A) General crossing: - two parallel transverse line with or without word not negotiable B) Special crossing :- a special crossing makes the cheque more safer than general crossing Q12 what do you means by e-banking? State the e-banking services · Information only system · Electronic information transfer system · Fully electronic transaction system · Credit card /debet card · Smart card · Bill payment service · Fund transfer · Credit card customers · Railway pass · Investing through internet banking Q13 Garnishee order In case debtor failed to pay the money due to is creditor the latter may apply to court to issue a garnishee order on the debtor banker · Result debtor account with the bank is frozen and the bank cannot make any payment out of the account · Order is issued is called -judgement creditor · Account is frozen is called –judgment debtor and banker who has customer account is called the garnishee 1. The amount attached 2. Banker claim to set off 3. Amount not covered by the garnishee order 4. Serving of garnishee order Q14 The state bank of India 1955 The state bank of India came into existence when the three presidency bank the bank of Bombay the bank of madras the bank of Bengal were merged into imperial bank of India There after the same was nationalized in 1955 to become the state bank of India State bank Act 1955 are governed he Act and empowered to transact business on behalf of control center and state government and union territories SBI is the Agent of RBI state bank is premier Bank of the country due to size and large number of branches IDBI 1964 (industrial development Bank of India) · IDBI is the apex banking institution in field of long –term industrial finance .setup in 1964 · Reserve bank on 16th Feb 1976 when its entire share capital was transferred to the central government · Function as the principal financial intuition for coordinating the function and activates of all India term –lending intuition and to some extent the public sector banks · The assistance provided by IDBI Two broad categories 1. direct assistance to large and medium industries IDBI provides soft loans for the modernization of all industries In 1984 IDBI introduced Equipment finance scheme Foreign currency loans are made available import of capital goods and equipment not related any specific project 2. indirect assistance to major portion of the direct assistance is provided in the form of Project loans to industries Indirect assistance is provided by the bank to tiny small and medium enterprises By the way refinance loans granted by state finance corporation (SFCs) State industrial development corporation (SIDCs), commercial bank, co-operative bank, and reginal rural banks IDBI also subscribes to share and bonds of SFC, and SIDC and national small industries corporation LTD Exim Bank in March 1982 IDBI established (finance for exports UTI (unit trust of India) The unit trust of India (UTI) is statutory public sector investment institution set up 1964 Mobilized saving of the community through the sale of its units under its various unit schemes Mobilized are invested by UTI mainly in the share and debenture bonds of the companies The unit’s trust of India has introduced a number of schemes · The unit scheme 1964 · United linked insurance planed 1971 · United scheme of charitable and regional trust and registered societies 1981 · The income unit scheme 1983 · The monthly income unit scheme 1983 · Growth and income unit scheme 1983 Mutual fund unit scheme In September 1986 the unit trust of India introduced a new mutual fund unit scheme wherein master share of RS 10 each have been issued .

BANKING LAW important question with answers www.lawtool.net Q1 define banker and customer state general relationship between banker and customer with suitable case law. Define banker and customer:- Banker :- banker is a person who has managed bank and provides service to customer Customer :- customer means a person who has an account with the bank Relationship between banker and it customer Banker and customer relationship divided into two categories as follow A) General relationship Debtor and creditor B) Special relationship Bailor and Bailee Principal and agent Trustee and beneficiary Case –hanuman bank ltd v/s v.k.pt nadir Q2 define endorsement, described the various type of endorsement ENDORSMENT –endorsement means the writing of one’s name the on the back of the instrument or any paper attached to it with the intention of transforming the right there in the endorsement is signing a negotiable instrument for the purpose of negotiation . A person who effected and endorsement is called endorser and a person whom negotiable instrument is transferred is called the endorsee Essential of valid endorsement (Type or class of endorsement) 1) Blank or general endorsement 2) Special or full endorsement 3) Partial endorsement 4) Restrictive endorsement 5) Conditional and qualified endorsement a) Sans recourse b) Facultive c) Sans frais Liberty deprived upon a contingency Q3 define lending elaborate the principal of good lending Lending define _ (loan and advance )landing of fund to the constituent mainly trader ,business and industrial enterprises company the major portion of banks fund is employed by way of loan and advance Principal of sound lending or good landing Safety Liquidity Profitability The purpose of the loan The principal of diversification of risk Precaution and procedure (advance money on security of good) Selection of the borrowers Selection of the commodities Charging the security Storage of goods Conduct of the account Legal requirement Q4 Define promissory note distinguish it from bill of exchange:- Define promissory note :- section 4 of the act define a promissory note as a promissory note is an instrument in writing (not being bank note or currency note ) containing an unconditional undertaking signed by the maker to pay a certain sum of money only to or the order of a certain person or the bearer of the instrument Essential of promissory note · It must be in writing · It must be expressed · The promise to pay must be unconditional · Signed by the maker · Maker must be certain · Promise must be to pay a certain sum · Pay money Meaning of bill exchange section 5 of the negotiable instrument Act define of exchange as an instrument in writing containing an unconditional order signed by the maker directing to certain person to pay a certain sum of money only to or to the order of a certain person or to the order of the bearer of the instrument Writing acknowledgment of the debt written by the creditor and accepted by the debtor 3 parties to bill of exchange 1) drawer, accepter, or drawee and payee Essential element of bill of exchange · It must be in writing · Signed by the drawer · parties to the instrument Difference between bill of exchange and promissory notes cheque and clam and drafts Promissory notes Promissory notes 2 parties maker and payee Promissory note does not required any acceptance it is signed by the person who is liable to pay Unconditional promise to pay In promissory note liability of maker is primary Promissory note cannot be draw in sets Bill of exchange 3 parties drawer ,accepter ,drawee and payee Acceptance is required of the drawee before it is presented for payment Unconditional order to pay But in case bill of exchange liability of drawer of bill exchange is secondary Bill of exchange be drawn in sets Q5 discuss the function and promotional role of RBI explained the constitution and management of RBI Reserve bank of India – (RBI) - reserve bank of India was a fresh bill introduced in the India legislature assembly on September 8, 1929 and reserved bank of India Act was passed in September 1934 the reserve bank of India started functioning from 1st April 1935 Reserve bank of Indian constitution The reserve bank was originated constituted as a shareholder bank with a capital of RS 5 crore divided into 5 lakh fully paid up share of RS 100 each with the expansion of the nominal value of RS 2.2 lakh subscriber by the central government Nationalization After independence the public opinion was stronger in favor of nationalization of the reserve bank a decision was taken in the regarded in 1947 reserve bank of India (transfer to public ownership) Act was passed in 1948 and from 1st January 1949 it being to functioning as a government owned institution Management of RBI The management of reserve bank of India is vested within the central board of director comprising 20 members appointed by central government 1) 1 governor and 4 deputy governor 2) 4 directors one from each local board 3) 10 directors 4) 1 government official 5) Term 5 years governor and deputy governor Local board For each of the regional area of country, western, eastern, north, southern area Head quarter Bombay, Calcutta, madras and Delhi, consist 5 members appointed central government Function of the central board · Right to notes issue –every country central bank issue notes sole right · Banker to the government _RBI government bank · Bankers bank _ empowered to supervise the working of member banks · Lender of last resort-financial accommodation (help) to members bank · Control of credit – 3 ways · Custodian of reserves of international currency Relationship between reserve bank of India & commercial banks · Apex bank and customer bank · Commercial bank are bound to take permission for opening there branches · Commercial bank operation and account book etc. subject of inspection of RBI · RBI can issue direction to commercial bank · Power to interfere in the management · RBI as controller of credit Q6- write a detailed note on banking ombudsman ombudsman: - ombudsman is a person appointed by a legislation body to receive investigate and report on complained by private individual against government officialBanking ombudsman scheme 1995 was formed by the reserve bank of India and issued under section 35-A of the banking regulation Act 1949 . Applicability of the scheme: - the banking ombudsman scheme 1995 applies to the business in India of every commercial bank Object of the scheme :- satisfaction and satisfaction settlement of such complaints Appointment of banking ombudsman RBI appoint one or more person to be known as banking ombudsman hold office during the pleasure of the governor, reserve bank of India . Banking ombudsman have been appointed in capital and big cities only Location of office Office will be located at such place as may be specified by the reserve bank of India. Qualification for banking ombudsman A person of high standing in the legal banking financial services public administrative or management sector Tenure of banking ombudsman 3 years age limit of 65 years Power and duties To receive complaint relates banking service to consider such complaint and facilities the satisfaction or settlement by agreement by making recommendation and Jurisdiction of banking ombudsman · The authority of banking ombudsman relates to matter to banking services and lone and advances Procedure for redressal of grievance:- Any person who has a grievance against a bank may himself or through an authorized representative makes complaint in writing to banking ombudsman within the jurisdiction branch or office Settlement of dispute Banking ombudsman tries to promote settlement between the complaint and bank through conciliation or mediation Rejection of complaint:- Banking ombudsman complaint made without any sufficient cause or not perused or no loss or damages. Annual report of functioning and working Evaluation of banking ombudsman scheme

OPENING OF ACCOUNTS www.lawtool.net Precautions to be taken by the Bank before opening an account: (i) Proper introduction of the customer is essential. The manager should'verify whether the new customer is a person with integrity and reputation to be'a "desirable customer", to open the Account. This is to prevent any fraud, (ii) The bank manager may make enquiries from references given by the customer or banks about the status of the customer. He should make 'reasonable enquiry' as is necessary in the circumstances, to convince himself that the person is n bonn fide customer. He need not act like a master detective and put the new customer to serious cross examination. (iii) The manager should not act negligently in making enquiries; if proper enquiries are made, he gets protection under Sn.131 of the Negotiable Instruments Act. Minor's Account: (i) General : As a minor has legal incapacity (incapax) to enter into contracts, generally he cannot open a Bank account. This rule is made only to give protection and to safeguard the interests of the minor. Hence, there should be a guardian according to law to deal with minor's property. The father is the natural guardian, and after his demise, the mother. The court in suitable cases may appoint a court guardian, Hence, the general rule is. that the Guardian may open and operate the Bank Account on behalf of the minor. He ceases to act, on the minor attaining majority. (ii) Practice: In practice, the banks allow a minor above 12 years, to open an account in his own name and to issue cheques as per Sn.26(a) of the Negotiable Instruments Act. This is valid and the minor may continue his account on attaining majority at 18 (or if under Court of Wards, age 21).No overdraft can be given to a minor, as overdraft involves a contract which would be void ab initio A minor may be admitted to the benefits of a partnership firm, as per Sn.30 of the Partnership Act, but he will not be liable for the debts of the firm. Joint Account: While opening the joint account, all the concerned persons should sign the application form. The necessary forms are filled up and signed to specify how the account is to be operated and also who is authorised on all matters including cheques, bills, securities, advances etc. Operation of the account may be by one or more persons but clear instructions are essential to draw cheques etc. Instructions regarding survivorship are also a part of the process of opening of accounts. Generally the account is made payable to either or survivor and the survivor is entitled to the amounts standing to the credit. The joint holders may nominate a person, if they so desire. Example of Joint Account is Husband and Wife. In a case of an account with instructions payable to either or survivor it is held that on the demise of the husband, the wife would be entitled to the amount if the husband had such an intention to benefit her, but, if there is no intention, it becomes part of the estate of the husband and hence heirs will be entitled as per law. Death of the husband, will not constitute a gift to the wife. The burden of proving the intention is on the wife (Marshall V. Crulwell; Foley V. Foley; Panikar V. TWQ Bank Ltd.) Partnership Account A banker may open a Current Account in the name of the Partnership, Firm onapplication made and duly signed by all the Partners along with the partnership deed (original or certified copy). The banker should make enquiries as usual and also about the nature of the business, names' and addresses, of partners etc. He should get an authority letter signed by all partners authorising a partner or two or more partners to draw cheques and other documents, to endorse bills or to accept bills etc., to mortgage, and sell property of the firm.The partnership deed is an important document to know the nature of the authorityof the partners including implied authority of a partner. The number of partners is limited to10 in Banking business and 20 in other businesses. From the provisions of the Partnership Act: (i) A partner's act will bind the firm if such an act is done in usual business of the firm or on behalf of (he firm, with an intention to bind the firm. This authority is implied. (ii) Registration under Sn.69 of the Partnership Act is optional. However, if the firm is not registered, it gets no locus standi to sue an outsider. Partner cannot sue the firm or other partners. But, third parties may sue the firm. To maintain a suit, (a) the firm should be registered; (b) names of Partners are to be on records of Register of Firm. (iii) Implied Authority does not enable a partner to open an account on behalf of the firm in his own name.Hence, the manager should ensure that the acts of the partner bind the firm, and that a partner does not act on his own behalf. According to Sn.4 of Partnership Act, "a partnership is the relation between persons who have agreed to share the profits of a business, carried on by/all or any of them acting for all." In Abbas Bros. V, Chetandas, the signatures on two pronotes were (1) for M. M. Abbas & Bros., Mohsin Bhai, Partner; (2) Mohsin Bhai, Partner, M. M. Abbas & Bros.The second was held as one that does not bind the firm or the partners, as it is not done on behalf of the firm. The first was held to bjnd the firm and the partners.Partners' Private Accounts: Transfer of funds from the private account of a partner to the firm may be done by the bank, but not vice versa.On retirement of a partner, the liability of such partner continues up to the date of retirement and notice thereof. The Bank may close the account and open a new account with the reconstituted firm, but to avoid the operation of Clayton's ease, a continuing guarantee by the retiring partner becomes essential. Joint Stock Companies : Public Limited Companies and Private Limited Companies : The manager should take the usual precautions while opening a Current Account. Application for opening the current account should be filled up and signed by the duly authorised director or officer of the company. The following documents are essential: (i) Certified copy of the latest Memorandum of Association; (ii) Certified copy of the latest Articles of Association; (iii) Certificate of incorporation of a private company, as that itself is the certificate of commencement in case of Private Companies; (iv) Certificate of Authority, to commence business, issued by the Registrar of Joint Stock Companies, for Public Limited Companies; (v) Copy of the extract of the Resolutions passed by the Board of Directors, authorising the opening in the Bank, a current account (and such other accounts) in the name of the company mentioning the names of directors authorised to operate the account, to draw or endorse cheque, bill of exchange etc.; (vi) A complete list of current directors (with addresses) ot the company duly signed by the Chairman of the Company; (vii) Balance Sheet of 3 years (if not a new company) of the company. On a perusal of the M/a& A/A, the manager will get a picture of the objects,Capital (authorised and paid-up) nature and functions of Board of Directors, the borrowing powers of the company etc. with the other documents he will be in a position to ascertain whether the company has already commenced its business, if so with what results, its financial status, profits and losses etc* The certified copy of resolution enables the manager to restrict the operations of the accounts of the company strictly according to the resolutions. As was observed by the learned judges in Royal British Bank V. Turquand, all those who have dealings with the company are expected to know the contents of its M/A and A/A. When the company puts up a proposal for a loan or overdraft, the bank should follow a number of formalities. The company should have the powers to borrow; it should submit a certified copy of resolution of the Board, authorising the borrowing and the amount, terms, and conditions etc. (within the limits allowed). Balance sheets for 3 years should be submitted. This would give a clear picture of the financial status of the company. When there is a charge on the assets of the company, the charge should be registered within 30 days of its creation etc. with the Registrar of Joint Stock Companies.In case of a Private company, the manager should enquire the antecedents to ascertain whether there was any conversion from a partnership firm or proprietor concern to private company. This will help to prevent any fraud or misrepresentation. Married Woman : . A married woman (Hindu) has the contractual capacity (if about 18 years of age) and has the right to acquire or dispose of her personal property called "Strjdhana" in Hindu Law. The manager should make the usual essential enquiries in opening the account of a married woman. In the application (account opening form), she should fill up in addition to her name, address etc., the name of her husband,, his address (and the address of the employer of the husband). Proper introduction is necessary.As a competent person, she can draw and endorse cheques and other documents and these can be debited to her account. As long as credit balance is there in her account, there will be no risks, but, if loan or overdraft is to be given the Bank should ascertain her credit worthiness, her personal properties (Stridhana) the nature of the properties held by her etc. The Husband is not liable for her debts, except for those loans incurred for "necessaries of life" for her and her family. Precautions in granting loans or overdraft are necessary as (i) she may have no property as stridhana (ii) Her Husband's property is not liable except for necessaries, (iii) she may plead undue influence or ignorance of the nature of loan transaction, (iv) she cannot be committed to civil prison. Purdanashin Woman: She is one who wears a veil (Purdah), as per her customs, and is secluded except the members of her family. Some Muslim women observe this as custom in their community. The Manager should of course follow the preliminary enquiries as usual and may allow such a woman to open an account .Her identity and that she is opening the account out of her free - will are essential. To be on the safer side the manager may require a responsible person known to the bank attest her signature. Better if he insists such attestation in respect of her withdrawals also. Trust Account The Manager of the Bank should make his usual enquiries in regard to the trust, the nature of the trust, its objectives, the trustee, his status etc. The application for opening the trust account should be filled up and signed by the trustees duly authorized. The Manager should get the original Trust Deed ,examine it and collect a copy along with the application. The trust deed gives-an idea about the nature the trust, whether registered or not, who is the author (or settler) of the trust, who is appointed as the trustee, what are his powers, functions etc, who is the beneficiary, what is the trust property etc. He must examine the Registration Certificate and satisfy himself about registration. All the trustees should sign the account opening form and subscribe to a declaration that they will operate the account as per the terms of the Trust deed in the interests of the beneficiary. If there are more than two trustees, the manager should get a resolution passed as to who is the chairman and by whom the accounts are to be operated, (whether Jointly or otherwise) as per the Trust deed, and get their specimen signature.If the trustees desire to borrow there should be specific powers mentioned in the Trust Deed to borrow and to charge the trust property. If care is not taken, the manager becomes liable to the beneficiary. In case of retirement, insanity or death of a trustee the manager should refer to the Trust deed and proceed accordingly. H.U.F. (The Hindu Undivided Family) The Hindu Undivided Family, is governed by the Hindu Mithakshara school, and consists of the propositus, his sons, grandsons, and great grandsons (up to 3 degrees) their wives, unmarried daughters, widows, etc. The coparceners, are all male descendants and get their status by birth, not by contract. The Kartha is the head of the family. He is entitled to foil possession of the H.U.F. property and is absolute in its management. He is a sui generis. He has a legal right to represent the H.U.F. and to bind the H.U.F. He has absolute discretion to spend the family income for the purposes of the family and for "legal necessity". The Bank Manager should get all the details of the H.U.F. before opening the Account. In the account opening form, the names and addresses of the Kartha and all coparceners should be filled up and they should give their mandate in the declaration, by putting their signatures. On behalf of minors, the signature of the guardian should be taken. The date of birth of minors should be noted and when they attain majority their signatures should be taken to cover their earlier transactions. When a charge is created on the property by the H.U.F. the coparceners should execute the Bank documents. The Kartha no doubt has the capacity to sign, but his powers to alienate the H.U.F. property is limited to legal necessity and hence to be on the safer side, all should sign. Further, the burden of proving that the overdraft or loan was for legal necessity or for family business would be on the manager. The loan should not be for speculative, business or for immoral purposes. The leading ease is Ramdayal V. Bhanwarlal.i It was held that the alienation should be for the benefit of the estate or for legal-necessity. However, the burden is on the transferee. He should have made reasonable inquiries and be satisfied with the purpose of the. loan as for H.U.F. business. The liability of minors is limited to the extent of their interest; but adult male coparceners are personally liable with the Kartha ,if they sign the documents. This was so held in Jivan Das V. Peoples Bank, The Manager should therefore take maximum care in getting the loan documents duly executed in the light of the above position of H.U.F. in Law.

TYPES OF ACCOUNTS www.lawtool.net Current Account (Current Deposit) : The Current Account facilitates commercial and industrial undertakings (Companies, Firms etc.) and public bodies and authorities in attending to their numerous and frequent transactions. Deposits and issue of cheques are continuous processes and bank's role is appreciable. No interest is payable by the Bank under this account, as per R.B.I. regulations, but Banks may levy incidental charges. The obligations on the bank is onerous in respect of current accounts as customers cheques are to be answered as long as there are. funds to their credit. Further the bank should keep sufficient funds to meet such cheques In Fixed Deposit, the Bank may be aware of the maximum the customer may demand, but in respect of Current Account, the bank should make available large funds to meet all emergent demands. Fixed Deposit: The bank is a debtor to the depositor in fixed deposits. This is so even after the expiry of the date of maturity. The legal relations of depositor-bank is that of creditor-debtor in fixed deposits. The relations continue even after the F.D. receipt matures and until it is paid up or discharged. The bank in order to accommodate the depositor may allow withdrawal subject to R.B.I, directives (regarding interests) but F.D.R. is to be discharged by the depositor. This affects the cash-reserves of the Bank. After due date, interest is payable as per R.B.I, directives, if the F.D.R. is renewed. The F.D.R. issued by the Bank is not negotiable. But it can be assigned. The F.D.R. is not a negotiable instrument. This was so held in Abdul Rahaman V, Central Bank. An assignment may be made with due notice to the Bank. The Bank should obtain a .letter of authority from the depositor for making payment, in such cases. The F.D.R: is a debt or an actionable claim and hence a gift of it may be made by making an instrument of transfer.. If an F.D.R. is lost the Bank may issue a duplicate or make the payment on maturity to the depositor by obtaining an indemnity bond in either case. Under a garnishee order the F.D.R. may be attached if there was a real "debt" of the judgment-debtor. The Income-tax Assessment officer (or T.R.O.) may issue a notice to the Bank demanding payment or attachment of F.D.R. If the notice is received before maturity of F.D., the bank is bound to make payment to the Department on date of maturity of the F.D. The F.D.s may be made payable to "either or survivor" or Former or survivor. In such a case the appointment of a nominee is not necessary, S. B. Accounts : , The Banks had not evinced much interest in S.B. Accounts earlier, but when banking services became extensive and savings started becoming a movement among people, banks found this to be a paying business Of the total bank deposits of 56 lakh crores, nearly 14 lakh crores were in savings bank deposits. (2011 March) This is not a small amount to be ignored ! Further it fosters savings habit. The S.B. account holder, should leave a fixed minimum as balance in his account and may withdraw by cheques or withdrawal forms. Cheques payable to the customer are sent for collection. These deposits earn interest as per Bank regulations. Banks provide special services and also privileges of safety vaults etc. to such account holders, to have good customer-bank relations. From the Banker's stand point maintenance of these accounts does not involve much expenditure and hence less expensive. Closing of Account or Stoppage of Operation : The customer - banker relation is not only that of a creditor - debtor and hence contractual, but it is also statutory in view of the Negotiable Instruments Act and other statutes. As such there are well-defined principles in regard to closing of Accounts of 'stoppage of operation by the Bank. The Bank may close or stop operation of an account on the following grounds : (i)customer's notice to close the account; (ii) customer's death; (iii) customer's insanity; (iv)customer's insolvency; (v) Garnishee order from Court; (vi) Assignment of Credit balance and notice thereof by customer. Every customer has a right to close his Account and the reasons may be varied. It may be in respect of Bank's services, rate of interest, incidental charges, lack of facilities, and lack of confidence in the Bank etc. Similarly the bank may close the account if the customer is "undesirable" or is convicted of forgery etc. Notice necessary : The customer may give notice to close his account, but he is not bound to do so. But so far as the Bank is concerned adequate notice should be given. It was held in the "snowball" scheme case i.e. Prosperity Lid, V Lloyd Bank Lid., that as the scheme had spread world-wide and bank had full knowledge of the wide spectrum of operations, a month's notice given to the company was inadequate and amounted to violation of contract by the Bank. Closing an account by the Bank without notice is invalid and against the Banking Code. Generally, one month's notice suffices. Customer's death : The death of a customer and notice or knowledge thereof is sufficient for the Bank to close the account, in UBI V Devi, the Supreme Court held that notice to one branch is not a constructive notice to all other branches. Customer's insanity: The general presumption by the Bank is that the customer insane unless there is conclusive proof of his insanity and based on this if there is notice of Insanity the Bank may stop operation of the account (Young V Toynbee). Insolvency: In the case of individual customer, on notice of insolvency the Bank should stop the operation of the Account and should not honour cheques etc. In the case of a company (private and public) when the winding-up proceedings start and the Liquidator is appointed, the Bank should transfer the balance in the account to the Liquidator. Gurnishee Order : On receipt of the order of the civil court, the Bank should take steps, as per the order. If an amount is specified, such amount is to be earmarked for the purpose and the balance may be subject to honour customer's cheque. If the entire account is to be garnished the Bank may do so and stop all further payments. Assignments : The assignee gets a right and hence, when the Bank receives notice of the assignment (transfer), the assignor (customer) will have no right to the balance in his account, and the Bank is justified in closing the account.

TIPS TO GET PROTECTED FROM CYBER CRIME www.lawtool.net Some easy tips to protect computers from the growing threats: Terminate Online Session Completely: Closing the browser window or typing in a new website address without logging out may give others a chance of gaining access to your account information. Always terminate your online session by clicking on the "Log out or Sign Out" button. Avoid using the option of "remember" your username and password information. Create Backup of Important Data: Backup of all the important files whether personal or professional should be created. Getting used to back up your files regularly is the first step towards security of your personal computer. Use Security Programs: If your system does not have data protection software to protect online, then by all means buy internet security program for your computer. Today, almost all new computer systems come with some kind of security programs installed. Protect Your Password: Try creating a password that consists of a combination of letters (both upper case and lower case), numbers and special characters. Password should be changed regularly. Do not share your password with other people. Participation in Social Networking: While participating in most social networking sites do not expose the personal information to others and all of these sites have a certain intensity of control over security issues. Use privacy settings to prevent personal information being broadcast. Use Your Own Computer: It's generally safer to access your financial accounts from your own computer only. If you use some others computer, always delete all the "Temporary Internet Files", and clear all your "History" after logging off your account. Update Your Software Package Regularly: Frequent online updates are needed for all the Internet security software installed on your computer system. Using Email: A simple rule in using this communication tool is not to open any links in emails from people you do not know. Hackers do use E-mail as the main target seeking to steal personal information, financial data, security codes and other. Do not use the link sent to you. If you need access to any website, visit the website by typing the address in your menu bar. Cyber crime, being a burning issue around the world, many countries is beginning to implement laws and other regulatory mechanisms in an attempt to minimize the incidence of cybercrime. The laws in many countries on effectiveness of the punishment and prevention of computer crime requires a robust number and scope of the regulations, and even the proceedings, which lags far behind the reality of demand for computer crime in judicial practice.

Cyber Space and Cyber World www.lawtool.net Cyber Space and Cyber World Cyber space or cyber world is a world full of electronic deuces where only optical fibres , digital signals , data , bytes , and such other dements may be thought of . It is a virtual space where you cannot see so many actities, and so many things you can see but cannot touch. It is a world away from the world we live in. It is a virtual world that has drastically changed the real world. It has immense potential and holds infinite possibilities for man. So much so that living in this electronic world has become an obsession for him. He tries to find, and entertains a belief that he is sure to have, what he could not have even dreamt of in the real world. Hence his fascination and infatuation for this is growing with each moment that meets his life. IT and India responding to the aforementioned initiative, India drafted her first law on electronic commerce: the Electronic Commerce Act, 1998 with Electronic Commerce Support Act, 1998. It recalled the rapid development of information and communication technologies revolutionizing the business practices; the transactions accomplished through electronic means - collectively termed as “electronic commerce “. Creating new legal issues; the shift from paper - based to electronic transactions raising recognition, authenticity and enforceability of electronic documents and signatures, and the challenge before lawmakers of striking a balance between conflicting goals of safeguarding electronic commerce and encouraging technological development. Questions concerning The Draft Electronic Commerce Act , 1998 The Electronic Commerce Act , 1998 aimed to " facilitate the development of a secure regulatory environment for electronic commerce by providing a legal infrastructure governing electronic contracting , security and integrity of electronic transactions , the use of digital signatures and other issues related to electronic commerce’s Another draft known as Electronic Commerce Support Act , 1998 had eight sections which were mainly concerned with necessary amendments to other Acts to bring the latter in complete harmony with Electronic Commerce Act , 19982 . The above drafts had been prepared by the Ministry of Commerce. Parallel drafts had also been prepared by the Department of Electronics. Out of these four drafts the Law Ministry had to make a final Draft and to put it before Parliament. However, with the birth of the Ministry of Information Technology, the job was undertaken by it, and what came forth was the Information Technology Bill, 1999. The Bill was introduced in Parliament in December 1999, was passed in May, 2000, and got the Presidential assent on June 09, 2000. It came into effect from October 23, 2000. Information Technology Act, 2000 The Information Technology Act, 2000 aimed to provide legal recognition for transactions carried out by means of electronic data exchange and other means of electronic communication, commonly referred to as ' electronic commerce ‘, which involve the use of alternatives to paper - based methods of communication and storage of information, to facilitate electronic filing of documents with the Government agencies ‘. To this end, it also had to amend the Indian Penal Code, the Indian Evidence Act, and Banker’s Books Act Realities of a Virtual World and the Reserve Bank of India Act. ‘The Act had 13 chapters spread over 94 sections; and four schedules. As against the parent Act, the IT Act, 2000 extended to whole of India and, in some cases, even outside India. Following the passage of Negotiable Instruments Amendment Act, 2002, the IT Act, 2000 underwent some major changes with effect from February 06, 2003. Information Technology Amendment Act, 2008 However, it was not enough. In the year 2001, the UNCITRAL had come out with its model law on electronic signature with an aim to make it technology - neutral. Like the model law on electronic commerce, this too had to be taken care of by concerned nations who were supposed to bring their information technology laws in tune with the model law on electronic signature. On the domestic front also, the problems had surfaced on a scale that had made the amendment in the IT Act, 2000 inevitable. New forms of cybercrimes had appeared on Indian scene posing a challenge before the law makers who were faced with two hard options, namely, either to drastically amend the existing law to give it some teeth or to helplessly see it openly outraged and violated by the cyber criminals and others. At this critical juncture was brought the draft of the Information Technology Amendment Bill, 2006 which was introduced on December 15, 2006 in the Lower House of Parliament. It was scrutinized by an Expert Committee which suggested several changes. The gravity of the issue of emerging cybercrimes on national and global scales had worried the law makers so much that they referred it to the Standing Committee of Parliament to finally suggest changes necessary to make the enactment more effective and in agreement with India's international obligations as an IT power . It took a couple of years before the Amendments could see the light of the day. The Information Technology ( Amendment ) Bill , 2006 was further amended by the Information Technology ( Amendment ) Bill , 2008 ; and in the process , the underlying Act was renamed as the Information Technology Amendment Act , 2008 ( ITAA , 2008 ) . The Information Technology Amendment Act, 2008 was passed by the Lower House on December 22, 2008; and by the Upper House on the following day i.e. December 23, 2008.

TYPES OF CYBER HACKERS www.lawtool.net White hat hacker: A white hat hacker is an ethical hacker who ethically oppose to the abuse of computer systems. A white hat generally focuses on securing IT systems, whereas a black hat (the opposite) would like to break into them. The term white hat hacker is also often used to describe those who attempt to break into systems or networks in order to help the owners of the system by making them aware of security flaws, or to perform some other altruistic activity. Many such people are employed by computer security companies; these professionals are sometimes called as sneakers. Groups of these people are often called as tiger teams. Black hat hackers: A black hat is a person who compromises the security of a computer system without the permission of authorized party, typically with malicious intent. The somewhat similar activity of defeating copy prevention devices in software which may or may not be legal in a country's laws is actually software cracking. The primary difference between white and black hat hackers is that a white hat hacker claims to observe ethical principles. Like black hats, white hats are often intimately familiar with the internal details of security systems, and can delve into obscure machine code when needed to find a solution to a tricky problem. Some use the term grey hat and fewer use brown hat to describe someone's activities that crosses between black and white. Grey Hat Hackers: A Grey Hat in the computer security community, refers to a skilled hacker who sometimes acts legally, sometimes in good will, and sometimes not. They are a hybrid between white and black hat hackers. They usually do not hack for personal gain or for malicious intentions, but may or may not occasionally commit crimes during the course of their technological exploits. Internet Crime Hackers: Internet crime hackers commit crime on the internet, using the Internet and by means of the Internet. Internet crime is a general term that includes crimes such as phishing, credit card frauds, bank robbery, illegal downloading, industrial espionage, child pornography,kidnapping children via chat rooms, scams, cyber terrorism, creation and/or distribution of viruses, Spam and so on. All such crimes are computer related and facilitate crimes. The different types of Internet crime vary in their design and easy accessibility to be committed. It can be separated into two different categories. Blackmail Hackers: Blackmail is a long-established illegal act that has been given a new twist in the modern age. The blackmailer may threaten to release embarrassing or other harmful information via the Internet or a private network if the victim does not comply with the demands of the criminal. A cybercrime of this type may go as far as having the victim transfer funds to an untraceable bank account using some type of online payment program, thus making full use of modern technology to commit the crime Blackmail Hackers hack i) Official government websites. ii) On line credit card scam iii) Work on cyber crime operations and they make money.

HOW CYBER CRIMINALS WORK www.lawtool.net Cyber crime has become a profession and the demography of the cyber criminal is changing rapidly with the type of organized gangsters who are more traditionally associated with drug-trafficking, extortion and money laundering. The question of how to obtain credit card/bank account data can be answered by a selection of methods each involving their own relative combinations of risk, expense and skill. The probable marketplace for this transaction is a hidden IRC (Internet Relay Chat) chat room. Gaining control of a bank account is increasingly accomplished through phishing. All of the following phishing tools can be acquired very cheaply. Coders The cyber criminals works in the following ways: They are the comparative veterans of the hacking community. With a few years' experience at the art and a list of established contacts, ‘coders’ produce ready-to-use tools (Trojans, mailers, custom bots) or services (such as making a binary code undetectable to AV engines) to the cyber crime labour force – the ‘kids’. Coders can make a few hundred dollars for every criminal activity they engage in. Kids It is called so because of their tender age, most are under 18. They buy, trade and resell the elementary building blocks of effective cyber-scams such as spam lists, PHP mailers, proxies, credit card numbers, hacked hosts, scam pages etc. ‘Kids’ will make less than $100 a month, largely because of the frequency of being ‘ripped off’ by one another. Drops These individuals convert the ‘virtual money’ obtained in cyber crime into real cash. Usually located in countries with lax e-crime laws (Bolivia, Indonesia and Malaysia are currently very popular), they represent ‘safe’ addresses for goods purchased with stolen financial details to be sent, or else ‘safe’ legitimate bank accounts for money to be transferred illegally, and paid out of legitimately. Mobs These are professionally operating criminal organization which combines all of the above covered functions. Organized crime makes particularly good use of safe ‘drops’, as well as recruiting accomplished ‘coders’ onto their payrolls.

INFORMATION ON CYBER CRIME www,lawtool.net INFORMATION ON CYBER CRIME In the beginning of certain development era, people were well motivated to attain a good progress in existing technological activities. Since the start of civilization period, the man has been always motivated by need to make better progress in the existing technologies. According to the Department of Defense in America in 1969, the design of parallel super network known as ARPANET (Advanced Research Project Agency) was commissioned. It consisted of more than 50 computers that were connected with web links for the purpose of military operations. These networks steadily grew and then it was called online Internet activity for sharing business regime where communication was done in both modes Cyberspace. Cyber law is a common term which refers to legal jurisdiction and other ways of preceding regulatory aspects in the internet. It is a constantly generic process. Whenever an internet development strategy follows, numerous amendments are enforced while it is developed, consequently numerous legal issues are also gets developed by illegal activists. In the Internet, Child Pornography is one of the serious Cybercrime and online pedophiles track to indulge children into sex activities using Internet. The traffic hazards, allotment in distributions, dissemination of obscene material, and posting includes pornography with all its filthy exposure constitutes the most important known criminal cyber offence today. This is one which threatens to challenge the development of technology of the younger creation in cybercrime and also leaving permanent scar and damage on the younger generation, if can’t restricted. Cyber annoyance is a unique form of harassment in cybercrime. Various categories of harassment take place in cyberspace or with the use of cyberspace to attain criminal offence. Harassment can be sexual, religious, racial or other. People who involve perpetuating such harassment are guilty of cybercrimes. Cyber harassment brings us to another related offending area of violation of privacy of netizens. Another Cybercrime against persons is Cyber stalking. Harassments and Stalking are problems that many people especially like women face in their real life. Another category of Cybercrimes is Cybercrime against property in diverse forms. These offences include unauthorized computer trespass through cyberspaces,computer destruction, and broadcast of injurious programs and unofficial tenure of computerized data. Hacking and cracking are in the midst of the largest Cybercrimes known until this day. Hacking is entering a computer system without knowledge and consent of the authorized person, tampering with the precious and confidential data or information. Using one's own programming abilities and also various programmers with the intention to gain access to computer or network through unauthorized access are very serious crimes. Likewise, the dissemination and creation of harmful computer programs or other malicious virus which causes irreparable harm to computer systems is another category of Cybercrime and this Software piracy is also another distinct variety of Cybercrime. It is perpetuated by many people of cyber world for online who distributes unauthorized and illegal pirated copies of software products. Another category of Cybercrime is against administration. Cyber Terrorism is a kind of crime which is distinct in this category. The increase of Internet has shown that the standard of Cyberspace is used by either group or individual to threaten the worldwide governments and to frighten the citizens of the country. This crime manifests when an individual "cracks" a government or military maintained website. The cyber crime may be broadly classified into three groups . They are 1. Crime against the Individuals a. Person b. Property of an individual. 2. Crime against Organization 3. Crime against Society a. Government b. Firm, Company and Group of Individuals. The following are the crimes that have been committed against the followings group: AGAINST INDIVIDUALS a. Harassment via electronic mails b. Dissemination of obscene material. c. Cyber-stalking. d. Defamation. e. Indecent exposure. f. Cheating. g. Unauthorized control/access over computer system. h. Email spoofing. i. Fraud. AGAINST INDIVIDUAL PROPERTY a. Computer vandalism b. Transmitting virus. c. Netrepass. d. Unauthorized access / control over computer system e. Intellectual Property crimes f. Internet thefts AGAINST ORGANIZATION a. Unauthorized access / control over computer system. b. Cyber terrorism against the government organization. c. Possession of unauthorized information. d. Distribution of Pirate software. AGAINST SOCIETY a. Child pornography c. Indecent exposure of polluting the youth financial crimes. d. Sale of illegal articles. e. Trafficking. f. Forgery. g. Online gambling. The Department of Justice for computer crime categorizes the use of computer in cyber crime into three ways as follows: The computer as a weapon - using a computer as a tool to commit "conventional crime" in the physical world (such as illegal gambling or fraud). The computer as a target - attacking the other computers (spreading viruses is an example). The computer as an accessory - using computer a "fancy file cabinet" used to store an ornament like illegal information.

Silent feature of information technology act 2000 Legal recognition to e-commerce Recognize record kept in electronic form Provide legal recognition to digital signature Cyber law appellate tribunal has been set up to hear appeal against adjudication authority No application to negotiable instrument power of attorney trust will be will end any contract for sale conveyance of immovable property act applies to any cyber offence for contravention committed outside India by the person irrespective of his/ her nationality As provided under section 90 of the act the state government may by notification in official gazette make rule to carry out the provision of the act SEBI had announced that reading to security on the internet will be valid in India Act amendment Act 2008. AIM AND OBJECT OF THE INFORMATION TECHNOLOGY ACT 2000 main aims and objective of the information technology act 2000 suitably amend existing law in India to facilitate E-Commerce provide legal recognition of electronic records and digital signature and electronic data interchange EDI and business contract regulates body to supervise certifying authority issuing Digital Certificate /digital signature certificate and prevent misuse of e-business transactions related e-governance electronic records and digital signature and to encourage the use and acceptance of electronic records and digital signature in government officials and agencies. to make consequently amended in Indian Penal Code 1860 and the Indian Evidence Act 1872 provided to necessary changes in various provision which deals with the offence relating to document and paper-based transaction tournament to amend the Reserve Bank of India Act 1934 and bank and the banker book Evidence Act 1891 to make a law tune with model law and electronic, United Nation commission and international trade law UNCITRAL adopted by the General Assembly to resolution on 30 January 1997. VARIOUS AUTHORITY UNDER ITS ACT CERTIFYING AUTHORITIES a system of digital signature of an electronic communication per suppose that the sender must create a public-private key pair the private key which kept confidential is used by the signer to create the digital signature the public which more widely known as it is used by relying party to verify the digital signature to associate a key pair with the certifying prospective signer the certifying authority issue the certificate to the subscribe section 35 certifying authority section 17to 30 expected reliable identify person applying for the signature key certificate verifying digital signature application of the certifying authority are also set out in Act of section 34 -34. APPOINTMENT OF THE CONTROLLER of certifying authorities appointed by the central government by issuing a notification to this effect in the official get Deputy controller and the assistant controller may be appointed as a central government team deems fit subject to direct control and direction of the central government supervision and control. FUNCTION OF CONTROLLER important function in it at the controller of the certifying authority role in public infrastructure is indispensable he acts as a central controlling body. Exercising supervision over the activities of the certifying authority. Certifying public keys of the certifying authorities. Standard to maintain. POWER OF THE CONTROLLER the controller of the certifying authority is a chief administrator and act as a Watchdog for the certifying authority. · POWER TO FOREIGN CERTIFYING AUTHORITIES · POWER TO ISSUE LICENCE · POWER TO RENEW LICENCE · POWER TO SUSPEND OR REVOKE LICENCE · POWER TO DELGATE AND INVESTIGATE · POWER TO HAVE ACCESS THE COMPUTER AND DATA · POWER TO ISSUE DIRECTION · POWER TO DECRYPT INFORMATION ADJUDICATION OFFICER Adjudication officer the central government has power to appoint one or more adjudication officer the adjudication officers of pointed shall not be below the rank of director to the Government of India or an equivalent officer of the state government. Experience in the field of Information Technology and legal or judicial experience as may be prescribed by the central government. adjudication officer shall conduct any enquiry will be prescribed by the central government and where more than 1 adjudication officer are appointed by the central government the adjudication officer shall not make any final decision. POWER OF THE EDUCATION OFFICER same power as vested in a civil court under the code of procedure act 1908 summoning examine him on oath. Discovery and production of document. Receiving evidence and affidavits. Issuing Commission examination of witnesses or documents. Reviewing its decision dismissing an application for default. REGISTRAR POWER FUNCTION AND DUTIES register of the cyber appellate Tribunal is the custodian of the record of the Tribunal. Presiding officer of the Tribunal he shall exercise all power assigned to him under the rule of by the presiding officer of Tribunal .presiding officer following power and duty namely .receive all applications .decide all question arising out of application present to the Tribunal. Direction to the Tribunal fixe the date of hearing .order grant of a copy of documents. All matter relating to the service of notice. Receive and dispose of the application by the party from Return of the document. DUTY OF THE CERTIFYING AUTHORITIES the nature of the internet technology and the transaction over it have assigned a pivotal role of certifying authority. Meticulously and diligently follow procedure every certificate authority has to maintain a trustworthy sister that means that itself make use of hardware software and procedure that are secured from intrusion and misuse CERTIFYING AUTHORITY MAINTAINED TRUSTWORTHY SYSTEM information originality of data. Availability of the information and the sources maintain and protect the system ensure that system security and operation should not be e made dependent upon a single person to prevent loss in cases any eventually failure of the primary security measures. · system security depend upon the nature of the job certifying authority off in the time Stamping service me bi need to trust for the System different from the one required by the certifying authorities showing the digital signature certificate. THE CYBER REGULATION APPEALLATE TRIBUNAL Section 48 ESTABLISHMENT OF CYBER APPELLATE TRIBUNAL the central government shall by notification establish one or more appellate Tribunal to be known as the cyber regulation appellate Tribunal cyber appellate Tribunal main exercise solution jurisdiction SECTION 49 COMPOSITION OF CYBER APPELLATE TRIBUNAL a cyber Appellate Tribunal shall consist of one person only appointed by notification by central Govt SECTION 50 QUALIFICATION FOR APPOINTMENT AS PRESIDING OFFICER of the cyber appellate Tribunal judges of High Court are member of the Indian legal service holding or has held a post of grade one of the service for the last 3 years SECTION 51 TERM OF OFFICE term of the office 5 years for age of 65 years whichever is early SECTION 54 -REGISTRATION AND REMOVAL writing under his hand address to Central Government resign his office .Central Government to relinquish his office Sooner continued to hold office until to expiry of 3 months from the date of the notice .removed from his office except by the order by the central government on the ground of proved misbehavior or incapacity after an enquiry made by judges of the supreme court. .Central Government maybe rules regulate the procedure for the investigation of his misbehavior or incapacity of the aforesaid presiding officer. SECTION 57 APPEAL TO CYBER APPELLATE TRIBUNAL any person aggravated by an order made by the controller for adjudicating officer under the act may prefer and appeal to Cyber Appellate Tribunal having jurisdiction in the matter. No appeal shall cyber appellate Tribunal from and order made by an adjudicating officer with the consent of the party. every appeal under the subsection 1 shall be filed within the period of 45 days from the date on which copy of the order made by controller or adjudication officer is received by the person aggravated and it shall be in such form and be accompanied by such fee as may be prescribed .appeal after the expiry of the said period of 45 days if it is satisfied that there was a sufficient cause for not filing within that period. SECTION 58 PROCEDURE AND POWER OF THE CYBER APPELLATE TRIBUNAL (1) The Cyber Appellate Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 but shall be guided by the principles of natural justice and, subject to the other provisions of this Act and of any rules, the Cyber Appellate Tribunal shall have powers to regulate its own procedure including the place at which it shall have its sittings. (2) The Cyber Appellate Tribunal shall have, for the purposes of discharging their functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908, while trying a suit, in respect of the following matters, namely – (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents or other electronic records; (c) receiving evidence on affidavits; (d) issuing commissions for the examination of witnesses or documents; (e) reviewing its decisions; (f) dismissing an application for default or deciding it ex parte; (g) any other matter which may be prescribed. Every proceeding before the Cyber Appellate Tribunal shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purposes of section 196of the Indian Penal Code and the Cyber Appellate Tribunal shall be deemed to be a civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973. 59. RIGHT TO LEGAL REPRESENTATION.-The appellant may either appear in person or authorise one or more legal practitioners or any of its officers to present his or its case before the Cyber Appellate Tribunal. 60 Limitation The provisions of the Limitation Act, 1963, shall, as far as may be, apply to an appeal made to the Cyber Appellate Tribunal. 61 Civil court not to have jurisdiction No court shall have jurisdictions to entertain any suit or proceeding in respect of any matter which an adjudicating officer appointed under this Act or the Cyber Appellate Tribunal constituted under this Act is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act. 62 Appeal to High Court Any person aggrieved by any decision or order of the Cyber Appellate Tribunal may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Cyber Appellate Tribunal to him on any question of fact or law arising out of such order : Provided that the High Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days.

CRYPTOGRAPHY-DIGITAL SIGNATURE AND PKI www.lawtool.net MEANING OF DIGITAL SIGNATURE The cryptography a digital signature for digital signature scheme is a type of asymmetric cryptography used to simulate the security signature schemes normally give to algorithm one of the signing involving the users secret key and one for verifying signature involving the public key the output of the signature process is also called a digital signature like written signature are used to provide authentication of the associated input usually called a message maybe anything form of electronic mail to a contract or simple message sent in a more complicated cryptographic protocol public key infrastructure PKI digital signature is one type of electronic signature and electronic data that carry in intent signature but not all electronic signature is a digital signature. United states and in the European Union electronic signature have a legal signification. The electronic signature does not always make clear their applicability towards Cryptography digital signature. DIGITAL SIGNATURE CERTIFICATE DSC the E-form is required to be authenticated find the authorized signatories using a digital signature as defined under the information technology act 2000 electronic signature duly issued by the certifying authority that shows the authority of the person signing the same. it is an electronic equivalent of the written signature submission with the MCA is required to obtain a digital signature certificate for MCA 21 following four types of users are identified as a user of digital signature and required to obtain digital signature certificate 1) Government employees 2) professional CA CS CWA and lawyers 3) authorized signatories of the companies /MD,directors, managers or security .4) representative of bank and financial institution .a person requiring a digital signature certificate can be approached any of the certifying authorities.requirement for the digital signature certificate physical documents are signed manually and electronic document for example if forms are required to sign digitally using a digital signature certificate issuing authority license certifying authority CA issue the digital signature section 24 of the Indian IT Act 2000 time required to issue a digital signature certificate time taken by CA to issue a digital signature certificate may be vary from 3 to 7 days validity period of digital signature certificate 1 or 2 years legal status of digital signature are legally admissible in court of law as provided under the provision of IT Act 2000 digital signature as per information technology act 2000. Digital signature recognized as a valid method of authentication. Asymmetric cryptosystem and Hash Function verification of electronic record is done by the use of public-key the private key and the public key are unique to the subscribe and Institute off Function key pair. electronic governance legal recognition of electronic records the two main legal impediments of e commerce and legal governance were the requirement of recording and information of tangible medium of handwritten signature legal recognition of digital signature digital signature have been a legal reorganization by the IT Act 2000. These are now as good as orthodox signature on paper affixing and electronic signature to Electronic document is known now identical in law to placing a manuscript signature on paper writing authenticated by Means a digital signature affixed in such manner as may be prescribed by central government. Use of Electronic Record and Digital Signature in Government and Its Agencies Central Government Aim to Undertake an Ambitious Program of E-Government ELECTRONIC FORMS FOR E-FORMS MEANING OF E-FORM- an e-forms is only for Re-engineered conventional form notified and represent a document in electronic format for filing with the various authorities through the Internet. this may be either a form filed for the compliance or information purpose are an application seeking approval from the government, for example, filing return over the income tax via internet required e-forms generally e-forms are of PDF files which are operated by Adobe reader software. IMPORTANT POINTS REGARDING E-FORM an e -form is contain a number of compulsory fields, marked with the red colour stars which are required to fill in instruction kit are available for each e-form and e-form may be filed in either online or offline mode. BENEFIT OF DIGITAL SIGNATURE AUTHENTICATION - digital signature can be used to authenticate the source of message INTEGRITY - in many scenarios the sender and the receiver of a message may have a need to confidence that the message has not been altered during the transmission. SPEED - business no longer have to wait for a paper document to will send by courier contract are easily written completed and signed by all concerned party in a title amount of time no matter how far parties are geographical COST - using a postal courier service for a paper document is much more expensive compared to using a digital signature on the electronic document TRACKING - a digitally signed document can easily be tracked NO REPUDIATION - singing and electronic document digitally identify us the signatory and that cannot be related in it IMPOSTER PREVENTION - no one else can for your Digital Signature or submit an electronic document falsely claiming it was signed by you TIMESTAMP - by time stamping your digital signature you will clear known as when the document was signed DRAWBACK OF DIGITAL SIGNATURE - despite their usefulness digital signature do not alone solve all problem we might wish them to EXPIRY - all Technology product are a short shelf life CERTIFICATE - new Digital Certificate SOFTWARE- do verification software at a cost LAW - law regarding cyber law and Technology based issue are weak or even non existence COMPATIBILITY - most business today are embarrassing the idea of paperless office advantage of using them AUTHENTICATION OF ELECTRONIC RECORDS always concerned about the security confidential and integrity of the electronic record its authenticity of the addresses .any person interested in an executed commercial relationship over the internet will always be particular about, example who sent this message? when was it sent ,to whom was it sent through it received when was it received and did arrive in the same form in which is which it didn't have it reminded confidential Data security is the protection of data against the accidental or International destruction disclosure a modification computer security refers to technological safeguard and managerial procedure which can be applied to computer hardware programs and data to assure the organized Ascent and individual privacy of protecting CRYPTOGRAPHY practice and study encryption and decryption encoding data so that it can only be decoded by specified individual a system for encrypting and decrypting data is a Cryptosystem these usually involve algorithm for combining the original DATA PLAINTEXT with one or more keys number of Strings of characters known only to the sender and or recipient the resulting output is known as cheaper text. ENCRYPTION AND DECRYPTION is the scrambling of digital message in such a way that only the sender and receiver can read this message it is a fundamental mechanism for the many forms of security and is a very effective way of securing the content of electronic data even Julius Caesar use Cryptography and he used to shift by three methods replacing every alphabet by the third letter ahead of it secret key cryptography involve the use of one key and public key Cryptography involve the use of two keys in the case of Hash Function Nokia used encryption uses a court or a cheaper. SECRET KEY CRYPTOGRAPHY encryption can be private key or public-private key Cryptography and tell the coding and decoding of data with the same key for both the encryption and decryption data the key must be known by the sender and receiver location using private key encryption does provide good security because the receiver must have the key if it is to decrypt a message. THE OBJECTIVE OF CRYPTOGRAPHY Cryptographic Concerns Itself with Four Objectives · CONFIDENTIALITY · INTEGRITY · NON-REPUDIATION · AUTHENTICATION CONCEPT OF PUBLIC KEY INFRASTRUCTURE PUBLIC KEY INFRASTRUCTURE PKI is a set of hardware-software people policies and procedure need to create manage distribute use store and revoke Digital Certificate. Digital Certificate the user identity must be unique each CA domain. Under human supervision the PKI role that assures this binding is called the registration authority. METHOD OF CERTIFICATION Broadly Speaking There Are the Three Approaches to Getting This Trusted 1. certificate authority CA 2. Temporary certificate authority and single sign-on. 3. web of trust WOT and 4. simple public key infrastructure SPKI THE APPLICATION USES OF PKI Encryption and surrender authentication of email messages Encryption and authentication of documents Authentication of users to applications Secure communication protocols Mobile signature are an electronic signature that is created using a mobile device.

INTERNET SECURITY CONCEPT www.lawtool.net Security issue security is very important for information system personals since 1983 computing facility and information system they support have become increasingly accessible because the intention facility since confidential information is transferred or increasing traversed to modern network security privacy and authentication of information is the commonly discussed issue in e-commerce. Protection against a typical hacking attack ETHICS ISSUE OF INFORMATION TECHNOLOGY the ethical issue for computer users are mainly and helpful to focus on the just to as the listed below software piracy or are unauthorized access SOFTWARE PIRACY users are operating over the software without a license unauthorized duplication copying of the software is called a pirated software the use of pirated software is the violation of the IT Act 2000 from many year software piracy has taken many different forms primarily started as a CO workers illegally copy software from floppy disc and past legal copies to the friend. UNAUTHORISED ACCESS the other issues related to the ethics is unauthorized access of information in case of the information literacy campaign everyone has a right to known as the information but it must be the access from the authentic source intellectual skill to deal with information these are skill such as a reading writing reasoning and calculating this may be a task for education. SECURITY security refers to the protection of the system resource against the intentionally or accidentally disclosure destruction is the modification source is to infrastructure hardware-software application file directory data store in database unauthorized users are unable to misuse and authorized users. FIREWALL firewall most organization now depend on the Internet to undertake and enhance business transaction proper security measures need to be taken without which the internal network of the organization is too vulnerable to attacks this can lead to loss of confidential data of the critical service that would be very damaging for the organization. A firewall is a security mechanism to protect a Local Network from the threats that the network might face while interacting with other network a firewall can be hardware component of a software component or a combination of both it prevents the computers within one network domain from the come communicating directly with the computer in the other network domain. The main purpose of the firewall is to protect the computer of an organization for the unauthorized access some of the basic function of Firewall are SECURITY, AUDITING, USER AUTHORIZATION, NETWORK ADDRESS TRANSLATION NAT, IP MASQUERADING · SECURITY- Firewall prevents unwanted data from getting into the Local Network from the internet or from any other external network · AUDITING - firewall can be used to log the network traffic passing through it · USER AUTHORIZATION- user authentication is another functionality provide by firewalls · NETWORK ADDRESS TRANSLATION NAT –A firewall can be used for hiding the structure and content of the local network from the external users · IP MASQUERADING- IP masquerading is to the feature in which the client network use a single network interface to the interact with the server network client use IP address that are not attached to any computer TYPES OF FIREWALL all the data packets that enter into network must come through the firewall in order to maintain the security of the network. The type of Firewall used to various form network to network. The following are the various types of Firewall generally used PACKET FILTERING FIREWALL - packet filter Firewall are usually deployed on router. Primary Defence mechanism used in Firewall protection. Data pocket is checked based on a set of rules. CIRCUIT-LEVEL FIREWALL - circuit-level Firewall provides more protection than packet filtering firewall it is also known as the state full inspection fireworks a circuit-level firewall ensure that the user behind the firewall has access to the internet PROXY FIREWALL- a proxy Firewall protects all the client application running on a network from the internet by using the firework itself as a gateway. NETWORK ADDRESS TRANSLATION FIREWALL- the firewall that uses NAT completely conceal the true identity of the network behind the firewall so as to secure the network from the internet NEW IP addresses and port address translation (PAT) new port number Biometric biometric is concerned with the identifying a person based on his or her psychological or behavior characteristic example for biometric system include fingerprint and face eyes Iris or retina and speech recognition. Why are biometric secure 1. Unique unique character of individual the probability of two-person sharing the same biometric data is Virtually nil 2. Cannot be shared because a biometric property is true intrinsic property and individual 3. Cannot be copied biometric character are nearly impossible to Forge or spoof especially with the new technologies. 4. Cannot be lost a biometric property of individual. 5. Cannot be lost only in case of serious accident. 6. What is biometric system used for reliable user authentication is essential. EXISTING USER AUTHENTICATION TECHNIQUE INCLUDE somethings you know example password of pin code the issue is that many password is easy to guess and can also be easily forgotten something you have example car or key can be a lost stolen or duplicated something you know and have card + pin something u r example fingerprint hand Iris retina voice cannot lose them are unique for each individual and are difficult to Forge. INTERNET SECURITY PRODUCT SOFTWARE cybercrime is a profitable business to estimate very cybercrime is expected to extort as much as a trillion-dollar next year from the government business and the individual get more business government agency are entertainment company are making a left of online Access at a record pace. CRITERIA FOR INTERNET SECURITY PRODUCT internet protection the Internet security software application should be consistent reliable and proactive internet security detecting suspicious behaving applications protection but also privacy protection social network protection filter spam filter website rating and more security feature security feature include Parental Control password manager wants laptop tools and safe browsing security software that not only provides a variety of protection option but also the ability of customize the settings help and support nearly instant protection protection through online documentation.

HISTORY OF ENVIRONMENTAL PROTECTION IN INDIA www.lawtool.net The history of the evolution of law to handle pollution and other environmental problems in India can be studied under four periods; I. In ancient India. 2.In Medieval India; 3. During the British period; and 4. The post Independence period. .......... ENVIRONMENTAL PROTECTION IN ANCIENT INDIA Forests, Wild_life, and more particularly trees were held in high esteem and held a lace of Special reverence in HINDU theology The Vedas, Puranas, Upanishads, and other scriptures of the Hindu religion gave a detailed description of trees, plants and wild life and their importance to the people. The Rigveda highlighted the potentialities of nature in controlling the climate, increasing fertility, and improvement of human life emphasizing intimate kinship with nature. A considered trees as the abode of various gods and goddesses. Yajur Veda emphasized that the relationship with nature and animals should not be that f dominion and subjugation but of mutual respect and kindness. During the Vedic period, cutting of live trees was prohibited and punishment was prescribed for such acts. For example, Yajnayall6a, Smriti,, has declared cutting of trees and forests, as a punishable offence and has also prescribed a penalty of 20 to 10-Rani.2The Hindu society was thus conscious 'of adverse environmental effects caused by deforestation and the extinction of animal species. In Srimad Bhagavatam, it has been rightly pointed out that a man who with exclusive devotion offers respect to sky, water, earth, heavenly bodies, living beings, trees, rivers, and seas and all created being and considers -them as a part' of the body of the Lord attains_the state of supreme peace and God's grace. Yajnavalkya Smriti and Charak Samhita gave many instructions for the use of water for maintaining its purity. In addition to forests and other components of nature, animals stood to human beings in a relationship of mutual respect and kindness. Ancient Hindu Scriptures strictly prohibited the Wing of birds and animals. In yajur veda , it is said that no person should kill animals, but being helpful to all and by serving them, should obtain happiness -In ' Yalhavalkya Smriti it is said that "the wicked persons who kills animals has. to live in Ghor Narak (hell-fire) for the days, equal to the number of hair on the body of t at–animal", In Vishnu Samhita, it is observed that "he who for his own pleasure, kills harmless beasts, should be regarded as dead in life; such a man shall know no happiness, here or hereafter. He who desists from inflicting pain on any animal either of death or confinement is really the well wisher of all the creatures such a man enjoys extreme felicity" From the above, one can understand the enviromental protection has been an important facet of hindu way of life . It appears that the civilizations of Mohenjo Daro Harappa, And Dravdhani civilization lived in consonance with its eco-system and their small population and their needs maintained the harmony with the environment The Mauryan period was perhaps the most glorious-chapter of the Indian History environmental. protection point of view. It was in this period that we find detailed and' Perceptive legal provision found in Kautalya Arthashaitra written between 321 BC _and 309.BC „ The necessity ,forest admistration " was realized in this period and the process Of administration was actually put into action with the appointment of superintendent of forest and the classification of forest on a functional basis. The-Sate assumed the functions 'of. Maintance Of forest regulation of forest produce and protection of wild life Under the Arthashastra various panishments were prescribed for cutting trees, damaging forest and for killing animal deers, etc." For cutting the tender sprouts of trees in city parks that bore flowers or fruits or yielded shade, the fine was 6 panas , for cutting small branches 12 panas and for cutting stout branches 24 panas. For destroying trunk the. fine prescribed was the first amercement and for uprooting the tree The middle most amercement. Similarly, for cutting of plants which bore flowers or fruits or provided shade forests of hermits and trees or pilgrimage or of cremation grounds the fine imposed was half of the above fine. Whereas destruction of trees at the boundaries Or that were worshiped or in sanctuaries, entailed a penalty double the above fines The superintendent of forest was authorised to cause forest produce to be brought in by–guards in produce-forests'; to establish factories for forest produce and fix adequate fines. and compensation for damage to any productive forests. Spies in the guise of traders were entrusted with a duty to ascertain the quantity and price of the royal merchandise obtained from forests. With regard to protection of wiled life there were probation on killing of animals and birds. Tile–officer in charge (superintendent o slaughter house) was authorised to impose a fine upto 1000 panes on those who were found guilty of killing deers, birds and fish declared to be under state protection. Care was taken that animals from reserved parks or protected areas if found grazing in a field, were to be driven out without being hurt or killed, after intimating the forest officer. For causing injury to them, fine was imposed. Wild life in sanctuaries enjoyed complete protection from. being killed except when they turned harmful." Arthshastra also precribed punishment for causing pollution and uncivic sanitation. It provided that the Officer in charge should punish those who threw-waste on the roads by 1/8th pana, for causing muddy water 1/4th pana and if both acts were committed, the punishment should be double. If faecal matter is thrown or caused to be piled up near temple, well or pond, Sacred place or state building, then the punishment was to increase'gradually by one pana in each case. For urinating 1;1 such places the punishment prescribed was half of the above punishments.''' The environment conservation, as it existed during Mauryan period continued more or less unaltered in subsequent reigns until the end of Gupta empire in 673 A.D. prohibitions for forest destruction and animal killings were announced by other Hindu Kings. For, example, the King Ashoka. in Pillar edict had expressed his viewpoint about the welfare of creatures in his state. He prescribed various pecuniary punishments for killing animals, which included even ants, squirrels, parrots, red headed'ducks, pigeons, lizards and rats as well.' To sum up ancient India had a philosophy of environmental management principally ensured in old injections as they were contained many scriptures and smrities abuse and exploitation of nature for immediate gains was considered unjust irreligious and against environmental ethics under the culture the environmental ethics of nature conversion were not only applicable to common man but also the ruler and they also bound king despite injunction in the scriptures and preaching of saints resource conversion was not taken very seriously as the natural resource under a common belief were considered to be inexhaustible and too formidable for man and his tools to need any protection themselves ENVRONIVIENTAL PROTECTION IN MEDIEVAL INDIA From the point of law of environment conservation, a significant contribution of mogul emperors as been the establishment of magnificent gardens fruit orchard and green parks roundabout their palaces, central and provincial headquarter, public places, on the banks of the rivers and in the valley and dales which they used as a holiday retreat, places of retreat or temporary headquarters during the summer season._ Among the officials empowered for the administration of justice by the Sultans a d the emperors of India, `mutasibs (censor) were vested with the duty of prevention of pollution, His main duty among_other_was to remove obstructions. from the streets and_to,.stop the commission of nuisance in a public place, The instructions given to a newly appointed Muhtasib by the emperor ' Auranga-Zeb throws a flood of light on the functions of this officer: "In the bazaars and lanes observe if anyone, contrary to the regulations and customs, has screened off (abru) a part of the street, or closed the path or thrown dirt atilt sweepings on the road, or if anyone has seized the portion of the bazaar area reserved for public traffic and opened his shops there; you should in such cases urge them to remove the violation of regulations." There is one opinion's that "the Moghul empire, were great lovers of nature and took delight in spending their spare time in the lap of the natural environment, made no 'attempts on forest conservation!!. ... Another writer has observed that "To Moghul rulers, forests meant no more than wooded lands where they could hunt. To their governors, the forests were properties, which yielded some revenue. A few species of trees were specified in their reign as 'royal trees' and enjoyed patronage from being cut except upon a fee. There was, however, no restriction on cutting other trees. In the absence of any protective management, forests during this period shrunk steadily in size on account of felling made for cultivation both shifting and-settled ." As regards the position of the forest economy during the Mughal. Empire the rural communities by enjoyed untrammeled-Use Of forest and other natural resources however did not mean that they, use of forest and other" natural resources, however; did not mean that they could be used or misused by one and all without any restrain Rather they were quiet effectively managed with the help of a complex range of rules and regulations woven around the socio-cultural features as well as., the. Economic activities of local communities.' ENVIRONMENTAL PROTECTION DURING THE BRITISH RULE IN INDIA The early days of British rule in India were days of plunder of natural; resources. There was a total indifference "The needs of forest conservancy. They caused a "fierce onslaught" On the Indien' forests. The onslaught on. the forest was mainly due to the increasing demands of milnilitary_puposes, for the British navy, for local construction (such as roads and railways), supply of teak and sandalwood for export trade, and extension of agriculture in order to augment revenue. The British Government started to exercise control over forests in the year 1801 when a commission was appointed to enquire into the availability of Malabar and Travancore by way of appointment Conservator of Forests This move failed to conserve forests as the appointed conservator plundered the forest wealth instead of conserving it. Consequently, the post of conservator of the forest was abolished in the year 1823, The second half of the 19th century marked the beginning of organized forest management in India with some administrative steps taken to conserve forest the formulation of forest policy and the legislations to implement the policy decision the systematic management of forest resources began with the appointment of the first Inspector General of Forest in,1864. Dietrich Brandis was the first Inspector general of the forest. Protection of forest department under the supervision of Inspector General was that of exploration of resources, demarcation of reserves, protection of forest from fire and assessment of the growing stock in Valuable reserve by sample enumeration and prescription of yields which could be sustained: The objective -of management of forests thus changed from obtaining of timber for various-purposes to protecting and improving forests ant treating them as a biological growing entity. The first step of the British overturned to assess state monopoly right over the forest was The were closed to the people and by empowering the forest administration to impose penalties for an) transgression of the provision of the Act, The British Government declared its first Forest Policy by a resolution on the 19th October 1884. The policy statement had the following objectives: 1. Promoting the general well-being of the people in the country; 2. Preserving climatic and physical conditions in the country; and 3. Fulfilling the need of the people. The policy also suggested a rough functional classification of the forest into the following four categories; 1. Forests, the preservation of which was essential on climatic or physical grounds; 2. Forests which offered a supply of valuable timber for commercial purposes; 3. Minor forests which produced only the inferior sorts of timber; and 4. Pastures which were forests only in name. To implement the Forest Policy of 1884, the Forest Act of 1927 was enacted. The implementation of the forest policy of 1884. the forest act of 1927 was enacted this act is very comprehensive and continued all the major provisions of the earlier act and the amendment made there to including those relating to the duty on timber .the act of 1927 also embodies land use policy where by the British could acquire all forest land village forest and other common property resource . This Act is still in_force, together with several amendments made by the State Governments. Till 1935, the Government of India enacted the Forest Acts. In 1935 the British Parliament, through the Government of India Act 1935 created provincial legislatures and the subject of the forest was included provincial legislative list. Thereafter, several provinces make their own...laws to regulate forests. Most of these laws were within the framework lockdown in the 1927 Act. Apart from the management of forest resources the British Government also concentrated on certain other areas like water pollution, air_pollution, wildlife, and land use by..enacting numerous legislations: — The Shore Nuisance (Bombay and Kolaba) Act of 1853, Oriental Gas Company. Act, 1857, the Indian Penal Code, 1860, the Indian Easement Act of 1862, Indian Fisheries Act, 1897 were some of the important legislation made by the. British Government. These legislations contained provisions for the regulation of water provision and also prescribed punishments for the violation of these legislations. The British Government for controlling Air Pollution enacted the Bengal smoke Nuisance Act of 1905, and the Bombay-Smoke Nuisance Act of 1912. Likewise, for protection...wildlife–the British Government made certain legislations. In 1873, We the Madras Government enacted the first wildlife statute for the protection of wild elephants. The Elephants Preservation Act Of 1879, the Wild Birds and Animals Protection Act of, 1912 and the Forest Act of 1927 were other, legislation that aimed at the conservation of biodiversity. From the above it is clear that legislative measures were taken by the British Government for the prevention, of pollution and for conservative Though the critics point out that the British enacted these legislations not with the object of _protecting the environment but with the aim of earning revenue for themselves, it should be regarded as the first step towards conservation of natural resources. Though made with ulterior motives this legislation has contributed significantly to the growth of environmental jurisprudence. India. ENVIRONMENTAL PROTECTION DURING THE POST, INDEPENDENCE ERA The post independence era witnessed a lot of changes in the policies and attitudes of the Governments with respect to environmental protection, The Constitution of India, which came into force on 26th January...1950. had few provisions regarding environmental management. Article 39(b). provides that "the State shall direct its policy towards securing that the owners-flip and control of the material resources of the community are so distributed as best to sub serve the common good"- Article-47.provides that the State shall regard the rising of the level of nutrition and the-standard of living of its people and the improvement of public health as __among its primary duties. Article-48.directs that "the State shall endeavour to organize agriculture and animal husbandry on modern and scientific lines and take steps for preserving and improving the breeds and prohibiting the slaughter of cows and calves and other milch mid draught cattle. Article-49....directs that "it shall be The obligation of the State to protect every monument or place or object of artistic or historic interest, declared to be of na-tional importance, from spoliation, disfigurement, destruction, removal, disposal or export as the case may be".

The Family Court is a form of Alternative Dispute Resolution. www.lawtool.net Krishna Veni Nagam v Harish nagam, Civil Original Jurisdiction, Transfer Petition (Civil) No 1912 OF 2014, Supreme Court of India judgment dated March 9, 2017: In matrimonial or custody matters or in proceedings between parties to a marriage or arising out of disputes between parties to a marriage, wherever the defendants/respondents are located outside the jurisdiction of the court, the court where proceedings are instituted, may examine whether it is in the interest of justice to incorporate any safeguards for ensuring that summoning of defendant/respondent does not result in denial of justice. Order incorporating such safeguards may be sent along with the summons. The safeguards can be:- i) Availability of video conferencing facility. ii) Availability of legal aid service. iii) Deposit of cost for travel, lodging and boarding in terms of Order XXV CPC. iv) E-mail address/phone number, if any, at which litigant from out station may communicate. Bhuwan Mohan Singh v Meena and Others, Criminal Appeal Jurisdiction, Criminal Appeal No. 1331 OF 2014, Supreme Court of India judgement dated July 15, 2014.Section 89 and Order X, Rules 1A, 1B and 1C of Civil Procedure Code.

PERMANENT LOK ADALAT FOR PUBLIC UTILITY SERVICES www.lawtool.net In order to get over the major drawback in the existing scheme of organisation of Lok Adalats under Chapter VI of the Legal Services Authorities Act 1987, in which if the parties do not arrive at any compromise or settlement, the unsettled case is either returned to the back to the court or the parties are advised to seek remedy in a court of law, which causes unnecessary delay in dispensation of justice, Chapter VI A was introduced in the Legal Services Authorities Act, 1987, by Act No.37/2002 with effect from 11-06-2002 providing for a Permanent Lok Adalat to deal with pre-litigation, conciliation and settlement of disputes relating to Public Utility Services, as defined u/sec.22 A of the Legal Services Authorities Act, 1987, at the pre-litigation stage itself, which would result in reducing the workload of the regular courts to a great extent. Permanent Lok Adalat for Public Utility Services, Hyderabad, India The Lok Adalat is presided over by a sitting or retired judicial officer as the chairman, with two other members, usually a lawyer and a social worker. There is no court fee. If the case is already filed in the regular court, the fee paid will be refunded if the dispute is settled at the Lok Adalat. The procedural laws and the Evidence Act are not strictly followed while assessing the merits of the claim by the Lok Adalat. Main condition of the Lok Adalat is that both parties in dispute should agree for settlement. The decision of the Lok Adalat is binding on the parties to the dispute and its order is capable of execution through the legal process. No appeal lies against the order of the Lok Adalat. Lok Adalat is very effective in settlement of money claims. Disputes like partition suits, damages and matrimonial cases can also be easily settled before Lok Adalat as the scope for compromise through an approach of give and take is high in these cases. Lok Adalat is a boon to the litigant public, where they can get their disputes settled fast and free of cost.

The Lok Adalat is a form of Alternative Dispute Resolution. These are set up with an aim of providing cheaper and speedier justice flowing out of compromise between the parties. These are set up by following the provisions of the Legal Services Authorities Act, 1987. Lok Adalats are organized at regular intervals and places. Within its Jurisdiction, it can deal with cases related to:Any case pending before or Any matter which is falling within the jurisdiction of and is not brought before any court for which the Lok Adalat was organized Lok Adalat will not have jurisdiction on any case or matter related to an offense not compoundable under law. Lok Adalat gives an Award. It is equal to a Decree as given by a civil court. An Award by a Lok Adalat can be challenged only by filing a Writ Petition and not by way of separate suit - Supreme Court Etymologically, Lok Adalat means "people's court". India has had a long history of resolving disputes through the mediation of village elders. The current system of Lok Adalats is an improvement on that and is based on Gandhian principles. This is a non-adversarial system, whereby mock courts (called Lok Adalats) are held by the State Authority, District Authority, Supreme Court Legal Services Committee, High Court Legal Services Committee, or Taluk Legal Services Committee, periodically for exercising such jurisdiction as they think fit. These are usually presided by a retired judge, social activists, or members of the legal profession. It does not have jurisdiction on matters related to non-compoundable offences. While in regular suits, the plaintiff is required to pay the prescribed court fee, in Lok Adalat, there is no court fee and no rigid procedural requirement (i.e. no need to follow the process given by [Indian] Civil Procedure Code or Indian Evidence Act), which makes the process very fast. Parties can directly interact with the judge, which is not possible in regular courts. Cases that are pending in regular courts can be transferred to a Lok Adalat if both the parties agree. A case can also be transferred to a Lok Adalat if one party applies to the court and the court sees some chance of settlement after giving an opportunity of being heard to the other party. The focus in Lok Adalats is on compromise. When no compromise is reached, the matter goes back to the court. However, if a compromise is reached, an award is made and is binding on the parties. It is enforced as a decree of a civil court. An important aspect is that the award is final and cannot be appealed, not even under Article 226 of the Constitution of India [which empowers the litigants to file Writ Petition before High Courts] because it is a judgement by consent.All proceedings of a Lok Adalat are deemed to be judicial proceedings and every Lok Adalat is deemed to be a Civil Court.

Tribunal is a special court, convened by the government to inquire into a specific matter. Tribunals do not follow Law of Evidence but follow Principles of Natural Justice instead.Tribunals cannot determine legal questions unless empowered by an Act of the Parliament.Tribunals have to follow judicially as opposite to administratively. They should function impartially and judicially without regard to the executive policy. Kinds of Tribunals · Statutory Tribunal: These are set up by statutes · Constitutional Remedies by way of Writ of Prohibition, Certiorari and Mandamus are available · They get the force of law directly. · Generally solve the problems between members or between a member and a third party · Judicial review for the decision is possible. · Example: Bar Council of India setup under Advocates Act, 1961, Medical Council of India set up under Medical Council Act, 1956 etc. · Non-Statutory Tribunal: These are set up by members by way of contracts, expressed or implied. · Constitutional Remedies are not available · They get the force of law indirectly. · They generally solve the problems within themselves and cannot solve a problem between a member and a third-party. · No judicial review for the decision is possible. · Examples: Clubs, Trade Unions, Societies etc. Salt v Cooper (1880) 16 Ch D 544: "The main object of the Judicature Act, 1873, was to assimilate the transaction of equity business and common law business by different courts of judicature. It has been sometimes inaccurately called 'the fusion of law and equity'; but it was not any fusion or anything of the kind; it was the vesting in one tribunalthe administration of law and equity in every case, action, or dispute which should come before the tribunal. That was the meaning of the Act. Then as to that very small number of cases in which there is an actual conflict, it was decided that the rules of equity should prevail. That was to be the mode of administering the combined jurisdiction."

What Are The Essential OF Arbitral Award www.lawtool.net Arbitral award the term award is not defined in the arbitration act 1940 are the arbitration and conciliation act 1996 according to the section 2 of the arbitration and conciliation and the arbitration award includes on the interim award its means decision of the person to whom a dispute is referred to by the parties to the dispute in other words award is a decision of an arbitrator which is binding and party to the dispute The privy Council Laldas V/S Bailal Bom LR20 laid down that “an arbitral award is the equivalent to the judgement of the court” An arbitration makes/ passes the award after taking into the caused direction various factor settlement of the parties and witnesses concerned examine the relative document etc. ESSENTIAL OF AWARD section 31 of the arbitration and conciliation act 1996 provide for from and content an arbitral award as stated below An arbitral award shall be made in writing and shall be signed by the member of the arbitral Tribunal. For purpose of the sub-sections (1)in the arbitral proceeding with more than one arbitrator the sign nature of the majority of act the member of the Arbitral Tribunal shall be sufficient so long as the reason for any omitted signature is stated. the award shall state the reason upon which it is a based a) the party have agreed that no reason are to give or b) the award is an arbitral award on agreed under Section 30. it must state /contain the date and place of the arbitration in an in accordance with section 20. after the award is made a signed copy of it shall be delivered to the each party. the arbitral Tribunal may be at any time during the arbitral proceedings make and interim arbitral award on any matter with the respect to which it mean make final arbitral award.

Alternative Dispute Resolution Advantages & Dis-Advantages www.lawtool.net Alternative dispute resolution (ADR), or external dispute resolution (EDR), typically denotes a wide range of dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement short of litigation: a collective term for the ways that parties can settle disputes, with the help of a third party. India Alternative dispute resolution in India is not new and it was in existence even under the previous Arbitration Act, 1940. The Arbitration and Conciliation Act, 1996 has been enacted to accommodate the harmonization mandates of UNCITRAL Model. To streamline the Indian legal system the traditional civil law known as Code of Civil Procedure, (CPC) 1908 has also been amended and section 89 has been introduced. Section 89 (1) of CPC provides an option for the settlement of disputes outside the court. CHARACTERISTICS Alternative dispute resolution (ADR) is generally classified into at least four types: negotiation, mediation, collaborative law, and arbitration. Sometimes, conciliation is included as a fifth category, but for simplicity may be regarded as a form of mediation. ADVANTAGES AND DISADVANTAGES OF ADR SYSTEM 1) ADVANTAGES OF ADR SYSTEM ALTERNATIVE DISPUTE RESOLUTION ADR PROCEDURE HAVE SEVERAL ADVANTAGES Reduce time in dispute it take less time to reach final decision. reduce cost is related to the dispute resolution it requires less money and it is cheap flexibility Party have more flexibility in choosing what rules will be applied to the dispute produce good result settlement rules of up to 85% improve satisfaction with the outcome or manner in which the dispute is resolved among disputed increase compliance with agreed solution 2) DISADVANTAGES OF ADR SYSTEM Some disadvantages of alternative dispute resolution are it can be used as a stalling tactic parties can are not complied to continue negotiation on mediation does not produce legal presidents exclusion of pertinent parties weakness final agreement party may have limited bargaining power party do not have much of a say little or no check on power imbalance between parties may not protect parties legal right the right of the parties may not be protected by the alteration dispute resolution.

The term arbitration literally means a settlement for determination of dispute outside the court by the private individual party to the dispute without the approaching the court of law may be referred their the matter to a person whom they trust on in whom they have a good faith to suggestion and amicable solution such persons who acts as a mediator between the disputant to settle the matter dispute is called arbitrator. A Written agreement to be submitted a present or future dispute to be arbitration weather and arbitrator is named therein or not called arbitration agreement the decision which is binding on the party to the dispute is called are award or arbitration award. ARBITRATION AGREEMENT the parties to dispute without approaching the court of law may be entered into on the agreement to refer their matter is proved to be settled by a third person called arbitrator such agreement is called arbitration agreement in simple word it is a written agreement entered into between the party to a dispute to repair the matter be settled by third person. DEFINITION according to section 2 clause 1 of the arbitration and conciliation act 1996 arbitration agreement means an agreement referred to section 7 which contains the ingredient of the arbitration agreement. INGREDIENTS OF THE VALID ARBITRATION AGREEMENT 1. arbitration agreement means agreement by the party to submit to arbitration all or certain dispute which have arisen or which may arise between the introspect of a divine legal relationship whether contractual or not. 2. an arbitration agreement may be in form of an arbitration clause in contract law in the form of the separate agreement 3. an arbitration agreement shall be in writing 4. arbitration agreement is in a writing it is a contained in a document signed by the parties an exchange of letter an exchange of the statement of claim and Defence 5. Reference in a contract to a document containing an arbitration clause constitution and arbitration agreement in the contract is in writing and the reference is such as to make that arbitration clause part of the contract.Section 7 clause 3 and 4 of the act state that the arbitration agreement must be writing and signed by the party. Gopal Chand v/s Madan Lal AIR 1992 Aurangabad LR 139 Fact of this cases In this case was held that oral submission cannot be the basis of the suit. the law required that arbitration agreement must not being uncertain and it should be capable of being ascertained certainly as to the one dispute two parties and three identity of the arbitral Tribunal and it compensation in the arbitration agreement....

Arbitration meaning the term arbitration means a determination of settlement of a dispute by the decision of one or more persons called arbitration or arbitral Tribunal. arbitration is a mean by which party to dispute get the same settled through the intervention of third-person or person but the without recourse to a court of law dispute is settled by the judgment of the arbitrator called an arbitral award or award the party repose confidence in judgement and hence the award is binding on them. This arbitration is considered to be an available affirmative to court litigation which is more consuming and may also adversely affected the reputation of the parties TYPES OF ARBITRATION ARE: AD HOC ARBITRATION An ad hoc arbitration is one which is not administered by an institution and therefore, the parties are required to determine all aspects of the arbitration like the number of arbitrators, manner of their appointment, etc. Provided the parties approach the arbitration in a spirit of cooperation, ad hoc proceedings can be more flexible, cheaper and faster than an administered proceeding. The advantage is that, it is agreed to and arranged by the parties themselves. However, the ground realities show that arbitration in India, particularly ad hoc arbitration, is becoming quite expensive vis-à-vis traditional litigation. INSTITUTIONAL ARBITRATION An institutional arbitration is one in which a specialized institution with a permanent character intervenes and assumes the functions of aiding and administering the arbitral process, as according to the rules of that institution. It is important to note that these institutions do not arbitrate the dispute, it is the arbitrators who arbitrate, and so the term arbitration institution is inapt and only the rules of the institution apply. Incorporation of book of rules in the “arbitration agreement” is one of the principle advantages of institutional arbitration. Institutional Arbitration, throughout the world, is recognized as the primary mode of resolution of international commercial disputes. It is an arbitration administered by an arbitral institution. Further, in many arbitral institutions such as the International Chamber of Commerce (ICC), before the award is finalized and given, an experienced panel scrutinizes it. As a result, the possibilities of the court setting aside the award is minimal. STATUTORY ARBITRATION When a law specifies that if a dispute arises in a particular case it has to be referred to arbitration, the arbitration proceedings are called “statutory arbitration”. Section 2(4) of the Arbitration and Conciliation Act 1996 provides, with the exception of section 40(1), section 41 and section 43, that the provisions of Part I shall apply to every arbitration under any other act for the time being in force in India. FAST TRACK ARBITRATION Fast track arbitration is a time-bound arbitration, with stricter rules of procedure, which do not allow any laxity for extensions of time, and the resultant delays, and the reduced span of time makes it more cost effective. Sections 11(2) and 13(2) of the 1996 Act provides that the parties are free to agree on a procedure for appointing an arbitrator and choose the fastest way to challenge an arbitral award respectively. The Indian Council of Arbitration (ICA) has pioneered the concept of fast track arbitration in India and under its rules, parties may request the arbitral tribunal to settle disputes within a fixed timeframe.

Arbitration agreement The process of arbitration can start only if there exists a valid Arbitration Agreement between the parties prior to the emergence of the dispute. As per Section 7, such an agreement must be in writing. The contract regarding which the dispute exists, must either contain an arbitration clause or must refer to a separate document signed by the parties containing the arbitration agreement. The existence of an arbitration agreement can also be inferred by written correspondence such as letters, telex, or telegrams which provide a record of the agreement. An exchange of statement of claim and Defence in which the existence of an arbitration agreement is alleged by one party and not denied by other is also considered as a valid written arbitration agreement. An arbitration agreement is a written contract in which two or more parties agree to settle a dispute outside of court. The arbitration agreement is ordinarily a clause in a larger contract. The dispute may be about the performance of a specific contract, a claim of unfair or illegal treatment in the workplace, a faulty product, among other various issues. People are free to agree to use arbitration concerning anything that they could otherwise resolve through legal proceedings. Any party to the dispute can start the process of appointing an arbitrator and if the other party does not cooperate, the party can approach the office of Chief Justice for the appointment of an arbitrator. There are only two grounds upon which a party can challenge the appointment of an arbitrator – reasonable doubt in the impartiality of the arbitrator and the lack of proper qualification of the arbitrator as required by the arbitration agreement. A sole arbitrator or a panel of arbitrators so appointed constitute the Arbitration Tribunal. Except for some interim measures, there is very little scope for judicial intervention in the arbitration process. The arbitration tribunal has jurisdiction over its own jurisdiction. Thus, if a party wants to challenge the jurisdiction of the arbitration tribunal, it can do so only before the tribunal itself. If the tribunal rejects the request, there is little the party can do except to approach a court after the tribunal makes an award. Section 34 provides certain grounds upon which a party can appeal to the principal civil court of original jurisdiction for setting aside the award. The period for filing an appeal for setting aside an award is over, or if such an appeal is rejected, the award is binding on the parties and is considered as a decree of the court.

Various Kinds of ADR & Types Of Alternative Dispute www.lawtool.net INTRODUCTION The most common types of ADR for civil cases are Arbitration, Conciliation, Mediation, Judicial Settlement and Lok Adalat. In India, the Parliament has amended the Civil Procedure Code by inserting Section 89 as well as Order 10 Rule 1-A to 1-C. Section 89 of the Civil Procedure Code provides for the settlement of disputes outside the Court. It is based on the recommendations made by the Law Commission of India and Malimath Committee. It was suggested by the Law Commission of India that the Court may require attendance of any party to the suit or proceedings to appear in person with a view to arrivingat an amicable settlement of dispute between the parties and make anattempts to settle the dispute between the parties amicably. Malimath Committee recommended to make it obligatory for the Court to refer the dispute, after issues are framed, for settlement either by way of Arbitration, Conciliation, Mediation, Judicial Settlement through Lok Adalat. It is only when the parties fail to get their disputes settled through any of the alternate disputes resolution method that the suit could proceed further. In view of the above, new Section 89 has been inserted in the Code in order to provide for alternative dispute resolution. THE FIVE DIFFERENT KINDS OF ADR CAN BE SUMMARIZED AS FOLLOWS: - 1. Arbitration 2. Conciliation 3. Mediation 4. Judicial Settlement & 5. Lok Adalat ARBITRATION: Arbitration, a form of alternative dispute resolution (ADR), is a technique for the resolution of disputes outside the courts, where theparties to a dispute refer it to one or more persons – arbitrators, by whose decision they agree to be bound. It is a resolution technique in which athird party reviews the evidence in the case and imposes a decision that is legally binding for both sides and enforceable. There are limited rights of review and appeal of Arbitration awards. Arbitration is not the same as judicial proceedings and Mediation. Arbitration can be either voluntary or mandatory. Of course, mandatory Arbitration can only come from s statute or from a contract that is voluntarily entered into, where the parties agree to hold all existing or future disputes to arbitration, without necessarily knowing, specifically, what disputes will ever occur. The advantages of Arbitration can be summarized as follows: - 1) It is often faster than litigation in Court. 2) It can be cheaper and more flexible for businesses. 3) Arbitral proceedings and an arbitral award are generally nonpublic, and can be made confidential. 4) In arbitral proceedings the language of arbitration may be chosen, whereas in judicial proceedings the official language of the competent Court will be automatically applied. 5) There are very limited avenues for appeal of an arbitral award. 6) When the subject matter of the dispute is highly technical, arbitrators with an appropriate degree of expertise can be appointed as one cannot choose judge in litigation. However, there are some disadvantages of the Arbitration, which may be summarized as follows: - 1) Arbitrator may be subject to pressures from the powerful parties. 2) If the Arbitration is mandatory and binding, the parties waive their rights to access the Courts. 3) In some arbitration agreements, the parties are required to pay for the arbitrators, which add an additional cost, especially in small consumer disputes. 4) There are very limited avenues for appeal, which means that an erroneous decision cannot be easily overturned. 5) Although usually thought to be speedier, when there are multiple arbitrators on the penal, juggling their schedules for hearing dates in long cases can lead to delays. 6) Arbitration awards themselves are not directly enforceable. A party seeking to enforce arbitration award must resort to judicial remedies. In view of provisions of Section 89 of the Civil Procedure Code, if the matter is referred to the Arbitration then the provisions of the Arbitration and Conciliation Act, 1996 will govern the case. CONCILIATION: Conciliation is an alternative dispute resolution process whereby the parties to a dispute use a conciliator, who meets with the parties separately in order to resolve their differences. They do this by lowering tensions, improving communications, interpreting issues, providing technical assistance, exploring potential solutions and bring about a negotiated settlement. It differs from Arbitration in that. Conciliation is a voluntary proceeding, where the parties involved are free to agree and attempt to resolve their dispute by conciliation. The process is flexible, allowing parties to define the time, structure and content of the conciliation proceedings. These proceedings are rarely public. They are interest-based, as the conciliator will when proposing a settlement, not only take into account the parties' legal positions, but also their; commercial, financial and /or personal interests. The terms conciliation and mediation are interchangeable in the Indian context. Conciliation is a voluntary process whereby the conciliator, a trained and qualified neutral, facilitates negotiations between disputing parties and assists them in understanding their conflicts at issue and their interests in order to arrive at a mutually acceptable agreement. Conciliation involves discussions among the parties and the conciliator with an aim to explore sustainable and equitable resolutions by targeting the existent issues involved in the dispute and creating options for a settlement that are acceptable to all parties. The conciliator does not decide for the parties, but strives to support them in generating options in order to find a solution that is compatible to both parties. The process is risk free and not binding on the parties till they arrive at and sign the agreement. Once a solution is reached between the disputing parties before a conciliator, the agreement had the effect of an arbitration award and is legally tenable in any court in the country Most commercial disputes, in which it is not essential that there should be a binding and enforceable decision, are amenable to conciliation. Conciliation may be particularly suitable where the parties in dispute wish to safeguard and maintain their commercial relationships. MEDIATION: Now, worldwide mediation settlement is a voluntary and informal process of resolution of disputes. It is a simple, voluntary, party centered and structured negotiation process, where a neutral third party assists the parties in amicably resolving their disputes by using specified communication and negotiation techniques. Mediation is a process where it is controlled by the parties themselves. The mediator only acts as a facilitator in helping the parties to reach a negotiated settlement of their dispute. The mediator makes no decisions and does not impose his view of what a fair settlement should be. In the mediation process, each side meets with a experienced neutral mediator. The session begins with each side describing the problem and the resolution they desire – from their point of view. Once each sides’ respective positions are aired, the mediator then separates them into private rooms, beginning a process of “Caucus Meeting” and thereafter “joint meetings with the parties”. The end product is the agreement of both the sides. The mediator has no power to dictate his decision over the party. There is a win – win situation in the mediation. The chief advantages of the mediation are: - 1. The agreement which is that of the parties themselves; 2. The dispute is quickly resolved without great stress and expenditure; 3. The relationship between the parties are preserved; and 4. The confidentiality is maintained. JUDICIAL SETTLEMENT: Section 89 of the Civil Procedure Code also refers to the Judicial Settlement as one of the mode of alternative dispute resolution. Of course, there are no specified rules framed so far for such settlement. However, the term Judicial Settlement is defined in Section 89 of the Code. Of course, it has been provided therein that when there is a Judicial Settlement the provisions of the Legal Services Authorities Act, 1987 will apply. It means that in a Judicial Settlement the concerned Judge tries to settle the dispute between the parties amicably. If at the instance of judiciary any amicable settlement is resorted to and arrived at in the given case then such settlement will be deemed to be decree within the meaning of the Legal Services Authorities Act, 1987. Section 21 of the Legal Services Authorities Act, 1987 provides that every award of the Lok Adalat shall be deemed to be a decree of the Civil Court .There are no written guidelines prescribed in India as to judicial settlement. But in America, ethics requiring judicial settlement has been enumerated by Goldschmidt and Milford which are as under: JUDICIAL SETTLEMENT GUIDELINES The following are guidelines for judicial settlement ethics: 1. Separation of Functions: Where feasible, the judicial functions in the settlement and trial phase of a case should be performed by separate judges. 2. Impartiality and Disqualification: A judge presiding over a settlement conference is performing judicial functions and, as such, the applicable provisions of the code of judicial conduct, particularly the disqualification rules, should apply in the settlement context. 3. Conference Management: Judges should encourage and seek to facilitate settlement in a prompt, efficient, and fair manner. They should not, however, take unreasonable measures that are likely under normal circumstances LOK ADALAT: The concept that is gaining popularity is that of Lok Adalats or people’s courts as established by the government to settle disputes through conciliation and compromise. It is a judicial institution and a dispute settlement agency developed by the people themselves for social justice based on settlement or compromise reached through systematic negotiations. The first Lok Adalats was held in Una aim the Junagadh district of Gujarat State as far back as 1982. Lok Adalats accept even cases pending in the regular courts within their jurisdiction. Section 89 of the Civil Procedure Code also provides as to referring the pending Civil disputes to the Lok Adalat. When the matter is referred to the Lok Adalat then the provisions of the Legal Services Authorities Act, 1987 will apply. So far as the holding of Lok Adalat is concerned, Section 19 of the Legal Services Authorities Act, 1987 provides as under: - Section 19 Organization of Lok Adalats . (1) Every State Authority or District Authority or the Supreme Court Legal Services Committee or every High Court Legal Services Committee or, as the case may be, Taluka Legal Services Committee may organise Lok Adalats at such intervals and places and for exercising such jurisdiction and for such areas as it thinks fit.

TRANSFER OF ANY KIND OF PROPERTY www.lawtool.net Property of any kind may be transferred'. Explained. Under Section 6 of the T.P.Act provides for the exceptions to the rule that property of any kind may be transferred. The exceptions are: a) Spes Successionis. b) Transfer of Right of Re-entry and Easement. c) Religious Office. d) Serving of Inams. e) Maintenance Right. f) Mere right to sue. g) Public Office, stipends and pensions, h) Illegal transfers. Explanation: a) Spes Successions means 'chance of succession' such an in terest cannot be transferred. b) Right of re-entry as easement: A lessor may reserve to himself a right of re-entry on breach of a convenant by his, lessee. This right cannot be transferred apart from the estate. A leases his land blackcare to B on Rs.1,000/- per annum with the right of re-entry on default by lessee. B commits default. A has a right of re-entry. This right cannot be transferred by itself to another person. An easementory right of way cannot be transferred by itself without the transfer of the dominant heritage. c) Religious Office, cannot be transferred d) Serving of Inams: An interest in property restricted in its enjoyment to the owner personally cannot be transferred by him. Service of Inams is an example. A was entitled to an Inams, for his 'Swastivachakam' service at a temple. 'A's successor x sold this interest to B. Held: That the alienation was void. Similarly, a religious office also cannot be transferred. e) Right to future maintenance in whatsoever manner arising, secured or determined, cannot be transferred. W, the wife of H was receiving a maintenance of Rs.3,000/- per year. W is not entitled to recover her maintenance for the next year in advance. But, if H has defaulted in payment she has a right to recover the arrears. This right can be transferred by her to C. Hence, a past maintenance can be transferred but not the future right to maintenance. f) A mere right to sue cannot be transferred. A has right to recover damages from B for a tortious liability (e.g. Assault), this right cannot be transferred as it is a mere right to sue. Similarly a mere right to sue for breach of contract, cannot be transferred. g) Pensions, stipends, public office etc. cannot be transferred, h) Illegal Transfers: No transfer can be made if it is i) having unlawful object or consideration, ii) opposed to the nature of interest effected, iii) to a legally disqualified transferee. Transfer of property to future illicit cohabitation is void. Transfers made for past cohabitation are not bad as the past cohabitationwas not the 'object'. In Nagaratnamma Vs. Ramaiah the supreme Court upheld such a transfer.'Champertous transfer' by itself is not void in India. Achal Ram Vs. Kasim. A moiety created to person in a civil suit was held asgood, as it is not opposed to public policy.

PRELIMINARY TOPICS - Transfer of Property www.lawtool.net Transfer of Property : Sn.5 of Transfer of Property. Act defines Transfer of Property'. It means an act by which a living person conveys property in present or in future to one or more living persons, or to himself, or to himself and to one or more other living persons. Living person includes a Company, Association or body of individuals. The T.P. Act deals with sale, mortgage, gift, lease and exchange. Hence, abandonment is not a transfer. Partition is not a transfer. Transfer to himself and others: This is possible in case of trust. Future property can be transferred (subject to Sn.6.). The persons must be competent to make a contract. The transfer of property passes all the interests of the transferor and the legal incidents, to the transferee. Registration, under the Registration Act is compulsory if the value of. the immovable property is worth Rs.100/- and above. Attestation: The T.P. Act defines attestation in Sn.3. Attesting in respect of an instrument means that the documents must be attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the document. Further each of them must have signed the instrument in the presence of the executant. The attestors must have animus attestandi (intention of attesting). It is not necessary that more than one should be present at the same time. Law also does not prescribe any particular form of attestation. The usual procedure is that the attestors must sign with address and date. The Privy Council in Shamu Vs. Abdul Khandir, resolved the controversy whether the attestors should have actually seen he execution or not, of the document. It held that the attestors who sign the document must have actually seen the document executed. This was accepted in Sn.3. but it is given retrospective effect. In English law attestors should all be present at the same time and must have seen the execution. But it is not so, according to Indian Law. Attestors should be a sui juris (person legally capable) Even thumb impression is allowed. Attestation does not mean that attestors have notice of the contents of the document. But attestation estops from denying the factum of execution. They vouch to the execution, not to contents. Immovable Property: The Transfer of Property Act deals with various transfers relating to immovable property. S.3(2) says, Immovable Property does not include standing timber , growing corps or grass. The General Classes Act says, Immovable Property includes lands, benefits that arise out of land and things attached to the earth. 'Attached to the earth' means rooted to the earth i .e., trees, shrubs etc., imbedded in the earth i .e., walls or buildings, attached to what is so embedded. Further right to receive future rent is Immovable Property. Marshall V Green: Sale of trees to be cut and taken away. Held: sale was not for Immovable Property, if the intention of the parties is that the trees should have further nutriment from the land, then it is Immovable Property otherwise not. In English Law, there is the doctrine of fixtures. Whether a chattel is resetting merely, by is weight on the floor, it is not immovable. In Holland V. Hodgson : a mortgage of a mill was made. Held: Certain looms attached to the stone of the mill, was also covered by the mortgage. Constructive Notice. Section 3 defines notice. A notice may be actual or constructive. There is actual notice, when knowledge of a fact is brought directly to the person concerned. It is constructive when there is a presumption of the knowledge of the fact. The following are its different kinds: i) knowledge is presumed when the party wilfully abstains from making enquiry. ii) Gross negligence of the party. iii) Registration: The privy council had held that registration was not a constructive notice to subsequent transferees. (Thilak Devilal's Case). This is now superseded by T.P.Act. Hence, registration of a transfer amounts to notice, from the date of registration. iv) Possession as notice: If a person is actually in possession of a property, then the acquirer of the property is deemed to have notice of the title, if any, of the person in possession of the property. v) Notice to agent is treated as notice to the principal. The agent must have notice during the course of his business. If an agent fraudulently conceals the fact, then there is notice to the principal. The principal should not be a privy to the fraud. Spes Successionis: Means 'Chance of Succession'.S.6. of the T.P.Act provides that the chance of an heir succeeding to an estate, or the chance of a relation obtaining a legacy of a Kinsman or such a mere possibility cannot be transferred. E.g.: The interest of a reversionary on the death of a Hindu widow. In Amrit Narayana Vs. GayaSingh: 'A' hoping to succeed to the property of his material grandfather B, sold to C, his such interest, during the life time of B. Subsequently B died. A sued for recovery of property from C. Held: The sale was of a spes successions and therefore void. Future interests in properties such as contingent interest or executory interest are transferable, as, here, the possibility is coupled with an interest. Similar to spes successions, the possibilities of a like nature are: i) Chance of a person deriving income from scavenging work, which he expects to get in future. ii) Right of a priest to a share in the offerings at the temple. There is a mere chance and hence inalienable. The leading case is Allcard V. Walker. Actionable Claim: Actionable claims include claims recognised by the courts to grant relief either(a) as to unsecured debts or (b) as to beneficial interest in movable property not in possession (actual or constructive), whether present or future, conditional or contingent.This definition has solved many difficulties that had arisen earlier to 1900. The leading cases are:Colonial Bank V, Whinney and Muchiram V.Ishan Chandar. sn.130 of the T.P.Act deals with the transfers of Actionable claims. It says that a transfer of an actionable claim (whether with or without consideration) should be made only by the execution of an instrument. Thereupon, all the rights and remedies of the transferor become vested in the transferee, whether notice is given or not. The transferee may sue or proceed in his own name without obtaining the consent of the transferor. Eg.: (a) A is the debtor and B is the creditor. B transfers the debt to C. B then demand from A to pay; A pays without notice of the transfer. The payment is valid. C cannot sue A for the debt. The debt is an actionable claim and may be transferred by B to C. But, C as. transferee has those rights and remedies as B. Hence, C cannot sue 'A' for the debt. b) A has a life insurance policy. He assigns it to a Bank B for securing a loan. A dies. B is entitled to receive the amount of the policy. B can sue without the consent of A's executors. The following are actionable claims : i) Share in a Company ii) Mortgage debt iii) Claim to copyright iv) Claim to mesne profits v) Mere right to sue. Exchange: (T.P. Ac t Sn.111) When two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things money only, the transaction is called an 'Exchange'. Any such transfer can be made in the same manner as is done in respect of sale. A partition of H.U.F. is not an Exchange. The parties to Exchange are subject to the same rights & liabilities of the Vendor and the Vendee. Any defect in the title of the property exchanged, is to be set right by that party whose property had the defective title. A transfers his house to B and B transfers his wet land and pays cash of Rs.5,000/- to A as consideration. This is an Exchange. If B had given money only, then it is not an Exchange. Charge : Sn.100 Where immovable property of a {person is by act of parties, (or by operation of law) made a security |or the payment of money to another, the latter person is said to hav£ a charge on the property. Conditions: i) The transaction should not amount to a mortgage. ii) All matters relating to the rights and liabilities of the parties to the charge are governed by those applicable to a simple mortgage.(Sn.59 T.P.Act). iii) This will not apply to a trustee^ who makes a charge on the trust-property.

GIFT www.lawtool.net Requisites of a valid gift: Section 122 of T.P.Act defines a gift. 'It is the transfer of certain existing movable or immovable property made voluntarily and without consideration and accepted by or on behalf of the donee'. The person who makes the gift is the donor. The donee must accept the gift: a) during the life time of the donor and b) While the donor is still capable of giving the property gifted. But if the donee dies before acceptance the gift is void. Gift of movable property may be registered or may be effected by delivery. However gift of immovable property of any value requires registration under sections 17 (a) of the Registration Act. It must be signed by the donor and must be attested by two witnesses. Gift to God Almighty may be oral or may be in writing or may be registered. A makes a gift of his jewels to B. This may be done by delivery. A makes a gift of a piece of land worth Rs.50/-. This is to be registered. The property must be existing at the time of the gift. A gift of future property is void. When a gift is made to several persons and one or more donees does not accept, then it is void respect of those who do not accept. Revocation of gift: (i) Conditional gifts: The fundamental rule is that 'A resumable gift is not a gift at all.' A gift once given cannot be revoked at the mere will of the donor; such a gift if made, is void ab initio. But, a conditional gift is void.A conditional gift which attaches a condition subsequent is valid if the condition is not vague or illegal or immoral or opposed to public policy or impossible of performance. Hence conditional gifts may be made. Ex.: A gifts to B a plot of land, reserving to himself with the consent of B, to take back the plot if B or his descendants die before A. B dies without any descendants during A's life time. The condition is valid and A may take back the plot. b) A make a gift to C, a concubine, for her continued relation ship with the donor. The condition is immoral therefore gift is void. c) A gives Rs. 1 lakh to B reserving to himself with B's consent,the right to take Rs. 25,000 at his pleasure. Gift is valid upto Rs.75,000/ - only. It is void in respect of Rs.25,000/-. (ii) Gift made under coercion, fraud undue influence or misrepresentation may be revoked by the donor. Protection of Transferees: Transferees who take the property for consideration and without notice are protected against any prejudice that may result due to revocation by the donor. The leading case is: Allcard Vs. Skinner A, a sister executed a gift to S, the lady superior under undue influence. Later A sued to set aside the gift. A would have won but there was too much of delay is suing. Hence, her claim was dismissed. Onerous Gift : Section 127 of T.P.Act deals with onerous gift. It means a single transfer made to the donee but some of the properties gifted are burdened by obligations. The donee must take the entire gift. If he accepts only to take those which are without obligations, then the gift is void. But if the gift is in two or more separate and distinct transactions, the donee may select at his liberty and refuse those which are not beneficial to him. Eg. : A gifts in one transaction, 200 shares of X & Co. a prosperous company and also 100 shares of Y & Co. a company in difficulties. Heavy calls are expected from Y & Co. A may take the entire gift. He is a onerous donee. He cannot take the gift of the shares of X & Co. only. A minor may repudiate the onerous gift after attaining majority. Effect of Onerous gift: The donee is liable to the extent of the total gifted property in his hands. Universal Donee: Here a gift of the entire property of the donor is made to a donee. The donee is liable for all the debts, dues and liabilities of the donor at the time of the gift. This liability extends to the extent of the property in the hands of the donee. Such a person who takes the entire rights and liabilities is called a universal donee. Property means here movable and immovable. If A makes a gift of his immovables only and not movables to B, B is not a universal donee. The universal donee is liable only to the extent of the immovable and movable property comprised in the gift. The liability is with reference to the tune of gift by the donor, that is universal donee is not liable for debts & liabilities incurred by the donor after the universal gift is made.