“Safety and security don’t just happen, they are the result of collective consensus and public investment. We owe our children, the most vulnerable citizens in our society, a life free of violence and fear.”

-Nelson Mandela

Since time immemorial the condition of women and children has been a matter of great concern as they have suffered due to the social practises prevailing since early ages. Children being one of the most vulnerable sections of society have been subjected to various kinds of maltreatment and in order to safeguard their interests, various legislations have been passed. It is really disheartening that despite multiple legislations being framed for the purpose of safeguarding the interest of Children, the ill-treatment hasn’t stopped and the various laws have not been able to save the children.

There are multiple types of abuses that children face including physical, emotional or psychological, verbal, and sexual. All of the aforementioned abuses in one way or the other destroy the child in such a manner that the child is unable to recover from the trauma and eventually affects its psyche for life. The main types of abuses can be categorized into the following:

1. Physical abuse: The physical abuses include beating, burning, excessive punishments by parents, manhandling, forcing to work beyond the reasonable standards set up by various legislations, child labor, trafficking, bullying, etc. Physical abuse takes place irrespective of the economic conditions and is faced by children at an early age; it may or may not get detected.

2. Emotional or psychological abuse: The most common form of abuse is emotional abuse which mostly goes undetected. The same can be a result of strained relations between parents or between family members. Stigmatizing the child or isolating or not providing the appropriate environment or subjecting a child to reach unreasonable expectations or even to select a career of parents’ choice. It impacts the mental health of the child beyond repair.

3. Verbal abuse: Such kind of abuse is common in lower-income families, wherein the children are subjected to foul language regularly by their parents and other members of their society. The same is mostly acquired by children and is ultimately imbibed in their behavior.

4. Sexual abuse: The most common form of abuse amongst children is sexual abuse. Activities such as kissing or holding in a sexual manner any body part of the child, or forcing to touch genital areas, vaginal or anal intercourse, sexual exploitation, incest, rape, obscene remarks, virtual sex, online solicitation, exposure to pornography, sexually intrusive comments, voyeurism, etc. amounts to sexual abuse and children from all the income groups are subjected to such abuse. Generally, this abuse gets undetected as children are unable to express the trauma and suffer in silence. In order to protect children from the aforementioned offenses, the Protection of Children from Sexual Offences Act, 2012 was enacted.

Despite time and again trying to protect the children from such an abuse, and providing various constitutional protections in terms of Article 23 & 24 of the Constitution of India, the children continue to suffer.

Causes

Abusing a child is a crime that is highly derogatory and alarming in all forms of social institutions. A child is the most innocent beings of all and misleading it into the stratagem of abuse is extremely facile. Mostly, the abuse happens when a caretaker, a person of trust or faith, a confidant, or any other individual
performs such malicious conduct with a child. The causes can range between the abuser’s past, his/her present, or the child’s present or permanent conditions. The economic, emotional, physical condition of the abuser, who might be a parent, or a relative or societal pattern that allows physical punishment as a means to make children disciplined is also a cause for child abuse, along with unhealthy and failed relationships, domestic violence, etc. Certain forms of behavioral patterns are normalized in some households which further causes trouble for children.

Consequences

The impact of child abuse is lifelong, irrevocable and the victims of abuse, i.e., the altruistic children, generally have an emotional, psychological, and physical impact on their lives which harms their present as well as future. The impact of child abuse is not only over the abused child but affects the bonds/relations the child makes in the future.

All in all, the most vulnerable section of the society needs proper consideration not in terms of laws, as appropriate legislations already exist in the country but in terms of execution/implementation of the existing legislations along with special programs in order to educate people about the abuses faced by children, and the consequences therein. For achieving the growth and development of the country this vulnerable section needs to be protected from all kinds of abuses. If You  like This Blog I Hope You Will like This  also Anti-Defection Law in India

WELFARE OF MINOR TO BE THE PARAMOUNT CONSIDERATION: SUPREME COURT

Introduction-

Happy are those, who have a heart of gold and no one can claim to own this purity except that it can only be seen in children. This calls for an inevitable duty of the society to give prime importance to the welfare of children. The word “welfare” includes physical and mental welfare. The facet of welfare of the children has been eloquently put forth in plethora of judgments by the Hon’ble Supreme Court and various High Courts of the country, wherein the aforementioned principle has been defined as the luminous pole star in the entire gamut of the laws relating to custody and guardianship of children in India. The Courts of the country have time and again reiterated that the welfare of the children is of paramount consideration and the same cannot be premised on the convenience or pleasure of the parents.

Statutory provisions-

Section 17 & 19 of the Guardians and Wards Act 1890 and Section 13 of the Hindu Minority and Guardianship Act 1956 are complementary to each other and contain some guidelines for the welfare of the minor. Under the Guardians and Wards Act 1890, Section 17 lists the matters to be considered by the Court in the appointment of a guardian. The dominant matter for the consideration of the Court is the welfare of the child and it will not be taken into consideration merely by some silver chunks, or just by the physical comfort of the minor. The word ‘welfare’ must be taken in its widest sense. The moral and religious welfare of the child must be considered, other than its physical well-being, and the ties of affection should not be disregarded. The term ‘welfare’ also includes both material and spiritual welfare. In fact, the question of the true welfare of the minor is of such paramount importance that the recognized right of guardianship under the law to which the minor is subject to, must if necessary, be assigned a relatively subordinate position. This particular Section lays down the real test which the Court has to apply in appointing a guardian of a minor and the test is whether the appointment will be for the welfare of the minor.

Recent Developments-

Recently, a three-judge bench of the Hon’ble Supreme Court in Ritika Sharan vs Sujoy Ghosh reiterated that the welfare of the minor child is of paramount concern in matters concerning custody of the child. Stating the obvious, parents raise their child but after separation, irrespective, which parent wins the

• 1. Rosy Jacob vs. Jacob A. Chakramakkal, AIR 1973 SC, 2090
• 2. 2020 SCC OnLine SC 878

custody battle, the question of custody of the child becomes a ‘tug of war’; and it is the child who has to bear the cost of unprecedented and unwelcomed situations. However, on the perusal of the precedents, the role of the Courts has been to safeguard and protect the interests/welfare of the child. Generally, the Courts award physical custody to the parent who has adequate parental skills, financial security, environment for the proper growth and development of the child. Legal custody means that the parent has all the rights to make decisions for the holistic growth and development of the child. However, a parent who doesn’t get custody is not barred to meet or see the child, as the Apex Court in a catena of judgments has given visitation rights whilst holding that in order to achieve holistic growth and development of the child, it is extremely vital that both the parents should work as one unit. Moreso, whilst determining the welfare of the child it is equally imperative to keep morale and ethical welfare on the same footing to match the physical wellbeing of the child.

The Apex Court while considering the welfare of the child in one of its landmark judgments has held that the moral and ethical welfare of the child must also weigh with the Court as well as his physical wellbeing. The child cannot be treated as a property or a commodity and therefore, such issues have to be handled by the Court with care, caution, love, affection, and applying a human touch to the problem.

In determining the question of the welfare of the minor, the Court may take into consideration the nearness of the relationship of the applicant with his/her child which is a matter of main concern since the beginning. It is generally seen that the nearer the relationship of the guardian to the child, the more likely it is that the interest of the child will be looked after.

It is a well-settled principle of Law that agnates are preferred over cognates by the Hindu Sages alike, Mohammedan law provides for a list of kins and near relations that have preference under the English law. In modern times, the welfare of the child prevails over all the factors which can be influenced by personal laws.

The word “Welfare” has the widest amplitude. It is to be understood in its widest sense so as to cover the material and physical wellbeing, education, health, happiness and moral welfare of the child. The welfare of minor has to be determined by the Court after a careful consideration of the facts and circumstances of the each and every case, as the Indian laws do not lay down any test or guidelines to determine the aforesaid issue. The Court may, in determining what is for the welfare of the child, take into account the age and sex of the child, the character and capacity of the guardian, the needs of the child along with the wishes of the child where he or she is of sufficient age and discretion to express his or her preference, though in appropriate cases the wishes may be disregarded.

Conclusion-

The Hon’ble Apex Court has again quoted that the welfare of the child to be the paramount consideration in Smriti Madan Kansagra vs. Perry Kansagra⁵ which must be considered by every court while deciding custody matters:

“The welfare principle is the public interest that stand served with the optimal growth of the children. It is well recognized that children are the supreme asset of the nation. Rightful place of the child in the sizeable fabric has been recognized in many international covenants, which are adopted in this country as well. Child-centric human rights jurisprudence that has been evolved over a period of time is founded on the principle that public good demands proper growth of the child, who are the future of the nation…”

“…It hardly needs to be emphasized that a proper education encompassing skill development, recreation and cultural activities has a positive impact on the child. Children are the most important human resources whose development has a direct impact on the development of the nation, for the child of today with suitable health, sound education and constructive environment is the productive key of the society. The present of the child, links to the future of the nation, and while the children are the treasures of their parents, they are the assets who will be responsible for governing the nation. The tools of education, environment skill and health shape the child thereby moulding the nation with the child equipped to play his part in the different spheres aiding the public and contributing to economic progression. The growth and advancement of the child with the personal interest is accompanied by a significant public interest, which arises because of the crucial role they play in the nation building.” if You  like this blog I hope You will like this also Child Abuse In India

A CRITIQUE ON INDIA’S MORAL COMPASS IN RELATION TO RELIGION, FAITH & EQUALITY

India has always been the land of diverse cultures, religions and faiths with so many people of different cultures living together that it comes with its own set of boundaries and limitations. Till date one of the biggest problems that India faces is ‘inter-faith marriages.’ The most common reason given by people who are against inter-faith marriages is that two different religions and cultures cannot co-exist in one house. If that anti- Muslim emotion wasn’t not causing enough problems, the Government and the State went on to pour more petrol to this fire and recently took out an Ordinance which prohibits marriages between Hindu’s and Muslims.

In which ideal world is it anyone’s business as to who marries whom? What is it about inter-faith marriages that makes the nation so cynical and hesitant about the match? What stage did the state feel the need to step in to protect the women?

Recently, Uttar Pradesh became the first ever state to pass laws against “involuntary” or “deceitful” religious conversions. Following the foot steps, Madhya Pradesh, Haryana, Karnataka and Assam are now planning to bring in laws against “Love Jihad”. Going by the Public Statements and opinions of various ministers in the country, the dire need for the laws to control the ‘alleged’ cases of “love Jihad”, a term used specifically to discredit marriages between Muslim Men and Hindu Women. This Ordinance not only disregards the decisions made by two consenting adults but also is a gross violation of the constitutional rights.

The right to marry a person of one’s choice is a fundamental right guaranteed under Article 21. At the same time, freedom of conscience, practice and propagation of a religion of one’s choice, are guaranteed under Article 25; needless to say that one set of rights absolutely cannot invalidate the other.

CASE THAT STARTED THE DEBATE OF LOVE JIHAD IN RECENT TIMES

Hadiya Case or Shafin Jahan case also known as Kerala Love Jihad case

Hadiya (formerly Akhila Ashokan) is a 24-year-old homeopathic medical student from Vaikom, Kerala. She informed her parents later that she had converted to Islam and married a Muslim man Shafin Jehan. He is an active member of PFI affiliated Social Democratic Party of India (SDPI). Her family alleged that she was brainwashed and her marriage was forced, but Hadiya says she did the same of her own volition.

In May 2017, Hadiya’s marriage was annulled by the High Court of Kerala on the grounds of a report submitted by the National Investigation Agency (NIA) to the Supreme Court of India (SC), saying that Hadiya was a victim of indoctrination and psychological kidnapping, and that their claims of their marriage being arranged through a matrimony website were “bogus”. The High Court of Kerala then handed over Hadiya’s custody to her father, Ashokan, arguing that “As per Indian tradition, the custody of an unmarried daughter is with the parents, until she is properly married.” Shafin Jahan appealed against the Kerala High Court order, and moved the Supreme Court. In November 2017, the Supreme Court of India directed Hadiya to resume her internship, and further directed that she was free to meet whomever she wanted. In March 2018, the Supreme Court restored Hadiya’s marriage; 10 months after the Kerala High Court annulled it.

Another incident which managed to antagonize the whole country was an advertisement by a popular Jewellery brand ‘Tanishq’, where the ad portrayed that a Pregnant Hindu woman was escorted by her Muslim Mother-in-law to her baby shower ceremony, when the woman enquired that ‘this ceremony is not at your house…’ to which she replied, ‘isn’t it a tradition to keep daughters happy everywhere? As soon as the ad went viral the netizens slammed it for promoting inter-faith marriages. Some went on to question as to why always the Hindu woman marries into a Muslim family and not the other way around. Following this unnecessary uproar, Tanishq was forced to take down the advertisement.

Following such irrational and erroneous public outrage, various state governments, having being consumed with anti-muslim emotions, went on to not only draft an ordinance banning inter-faith marriages, but also penalising it under Section 5 of the UP Ordinance with an imprisonment of up to 10 years, further under section 6 of the Ordinance; it grossly termed any marriage of an Indian woman and Muslim man as a ‘Void marriage’.

It is bizarre that when two adults exercise the freedom under Article 21 and 25 to marry someone of their choice and during that process, and they choose to change their religion, how did the same become a matter of concern for the State, the Government or even the public at large? Not only is it an infringement of fundamental rights, but it also denies and interferes with a person’s basic ‘right to choose’. Isn’t it sufficient for the State that two consenting adults and their decision to marry each other is enough?

This Ordinance even further goes on against the principals of equality under Article 14 of our Constitution, when inter-faith couples can marry in other parts of the country without the State’s intervention, then why only in India there are such Ordinances cropping up which prohibit such marriages?

In a landmark judgement, the Hon’ble Chief Justice of India Dipak Misra had very well-articulated “when two adults marry out of their volition, they choose their path; they consummate their relationship; they feel that it is their goal and they have the right to do it, and it can unequivocally be stated that they have that right and any infringement to the said right is a constitutional violation”.

The former Supreme Court Judge, Justice Madan B Lokur in a written statement to NDTV said “it will require a miracle to uphold its constitutional validity and further went to call it one of the strangest legislations he had ever seen”.

It amazes me that how can a marriage be performed as an unlawful conversion? If any Hindu woman chooses to convert into another religion, how does the marriage become void? Why does the state need to be informed of such conversion? Why an Individual is required to give notice to the District magistrate for such marriage? What is so special about a conversion, which need permission and needs to be part of public information.

Considering the gravity of this Ordinance, the State or the Government should also answer to facts that these days a lot of famous Muslim actors, cricketers, politicians marry our Indian women? Where does the ordinance come to play here?  Then is it correct to say that such Ordinances are only applicable on common men with common lifestyle and not to the famous Richie riches of the Society; which I certainly feel amounts to a different sort of violation of fundamental rights altogether.

CONCLUSION

Our Constitution ensures that every citizen not only has a right to freedom of religion, but also has the right to his own beliefs and these beliefs need not necessarily be religious beliefs- one could be an atheist, or an agnostic- there can be no opinion or judgment against any such belief whatsoever.

Furthermore, what is more worrisome is that such laws and ordinances are being passed that specifically target women’s rights, as if women do not understand their own rights or religion or faiths. Not only should Indian women have the right to choose their own husbands, but they should also have the right to decide if they want to change their faith. The idea that there is a widespread Muslim conspiracy to prey on innocent Hindu girls and convert them to Islam is ludicrous.

I particularly fear that such type of non-sense and baseless Ordinance which in its own whims and fancies is allegedly trying to protect the people of U.P may soon be adopted by the whole country and create more diversions between Hindus and Muslims which will forever be beyond repair. The concept of marriage is for two people to come together and celebrate their life, why should anyone may it be state or Government or public at large be allowed to cross that threshold of privacy of two Individuals.

EFFORTS OF GOVERNEMNT OF INDIA FOR THE DEVELOPMENT OF MICRO, SMALL AND MEDIUM ENTERPPRISES

INTRODUCTION

Due to the ongoing pandemic issue of Covid-19 in India and worldwide the economy of India and all over the world like U.S.A, Italy etc. are seriously affected and most of the businesses, Industries and Companies are closed, for they have suffered huge loss. So, for the aforesaid reason, Ministry of Finance of Government of India has provided various schemes/packages for Micro, Small Enterprises and Medium enterprises.

OBJECT TO DEVELOPM MICRO, SMALL AND MEDIUM ENTERPPRISES

The object to develop Micro, Small and Medium Enterprises are (i) promoting e-Governance for empowering citizens, (ii) promoting the inclusive and sustainable growth of the Electronics, (iii) promoting Information Technology (IT) and Information Technology Enabled Service Industries (ITeS), (iv) enhancing India’s role in Internet Governance, (v) adopting a multipronged approach that includes development of human resources, (vi) Promoting Research and Development and innovation, (vii) enhancing efficiency thorough digital services and ensuring a secure cyber space.

WHAT ARE MICRO, SMALL AND MEDIUM ENTERPRISES

As per the Section 7 of Micro, Small and Medium Enterprises Act, 2006 and recent notification1 issued by the Ministry of Micro, Small and Medium Enterprises on 01.06.2020, following criteria for classification of Micro, Small and Medium enterprises were notified, namely:-

1. a micro enterprise, where the investment in Plant and Machinery or Equipment does not exceed one crore rupees and turnover does not exceed five crore rupees.

2. a small enterprise, where the investment in Plant and Machinery or Equipment does not exceed ten crore rupees and turnover does not exceed fifty crore rupees.

3. a medium enterprise, where the investment in Plant and Machinery or Equipment does not exceed Fifty crore rupees and turnover does not exceed two hundred and fifty crore rupees.

Aforesaid notification shall come into effect from 01.07.2020

MAJOR SCHEMES PROVIDED BY THE MINISTRY OF MICRO, SMALL AND MEDIUM ENTERPRISES, GOVERNMENT OF INDIA FOR MICRO, SMALL AND MEDIUM ENTERPRISES

1. Prime Minister Employment Generation Programme and other Credit Support Schemes
2. Development of Khadi, Village and Coir Industries
3. Technology Upgradation and Quality Certification
4. Marketing Promotions Schemes
5. Entrepreneurship and Skill Development Programme
6. Infrastructure Development Programme
7. Scheme of Surveys, Studies and Policy Research
8. National SC-ST-HUB
9. Scheme of Information, Education and Communication

LEGAL FRAMEWORK FOR MICRO, SMALL AND MEDIUM ENTERPRISES

In India laws governing the Micro, Small and Medium Enterprises is the Micro, Small and Medium Enterprises Development Act, 2006 (hereinafter referred to as Act of 2006) and following are the main objects to enact the aforesaid Act:

1. to provide for statutory definitions of “small enterprise” and “medium enterprise”
2. to provide for the establishment of a National Small and Medium Enterprises Board, a high level forum of stakeholders for participative review of and making recommendations on the policies and programmes for the development of small and medium enterprises;
3. to provide for classification of small and medium enterprises on the basis of investment in plant and machinery, or equipment and establishment of an Advisory Committee to recommend on the related matter;
4. empower the Central Government to notify Programmes, Guidelines or instructions for facilitating the promotion and development and enhancing the competitiveness of small and medium enterprises;
5. empower the state Governments to specify, by notification, that provisions of the labour laws specified in clause 9(2) will not apply to small and medium enterprises employing upto fifty employees with a view of facilitating the graduation of small enterprises to medium enterprises;
6. make provisions for ensuring timely and smooth flow of credit to small and medium enterprises to minimize the incidences of sickness among and enhancing the competitiveness of such enterprises, in accordance with the guidelines or instructions of the Reserve Bank of India;
7. empower the central and state governments to notify preference policies in respect of procurement of goods and services, produced and provided by small enterprises, by the Ministries, Departments and Public Sector Enterprises;
8. empower the Central Government to create a Fund or Funds for Facilitating promotion and development and enhancing the competiveness of small enterprises and medium enterprises;
9. empower and promote harmonized, simpler and streamlined procedures for inspection of small and medium enterprises under the labour laws enumerated in clause 15, having regard to the need to promote self- regulation or self certification by such enterprises;
10. provide for maintenance of records and filing of returns by small and medium enterprises with a view to reduce the multiplicity of often-overlapping types of returns to be filed;
11. Making further improvements in the Interest on delayed Payments to small Scale and Ancillary Industrial Undertakings Act, 1993 and making that enactment a part of the proposed legislation and to repeal that enactment.

LEGAL REMEDIES PROVIDED BY ACT OF 2006 IN CASE OF DELAYED PAYMENTS BY SUPPLIER TO THE BUYER

As per the Act of 2006, ‘Supplier’ means a micro or small enterprise , which has filed a memorandum with the authority referred to in sub-section (1) of Section 8, and includes,-

(i) The National Small Industries Corporation, being a company, registered under the Companies Act, 1956 (1 of 1956)
(ii) The Small Industries Development Corporation of a State or a Union territory, by whatever name called, being a company registered under the Companies Act, 1956 (1 of 1956)
(iii) Any company, co-operative society, trust or a body, by whatever name called, registered or constituted under any law for the time being in force and engaged in selling goods produced by micro or small enterprises and rendering services which are provided by such enterprises

As per the Act of 2006, ‘Buyer’ means whoever buys any goods or receives any services from a supplier for consideration

The Act of 2006 is providing the legal remedies to the suppliers who fall in the above definition.

1.1. LIABILITY OF BUYER TO MAKE PAYMENT TO THE SUPPLIER- Section 15 of the Act of 2006 provides that any supplier (who filed a memorandum with the authority referred to in sub-section (1) of section 8) supplies any goods or renders any services to any buyer, after that the buyer has liability to make payment within an agreed date between buyer and supplier or in case no particular date is agreed between buyer and supplier, the buyer must make payment to the supplier within 45 days from the day of acceptance or the day of deemed acceptance.

The relevant provision reads as under:-

“15. Liability of buyer to make payment.- Where any Supplier, supplies any goods or renders any services to any buyer, the buyer shall make payment therefore on or before the date agreed upon between him and the supplier in writing or, where there is no agreement in this behalf, before the appointed day:

Provided that in no case the period agreed upon between the supplier and the buyer in writing shall exceed forty- five days from the day of acceptance or the day of deemed acceptance.”

1.2. INTEREST PAYABLE BY BUYER TO SUPPLIER- Section 16 of the Act of 2006 provides that in case any buyer fails to make payment to the supplier as per the provisions under section 15 of Act of 2006, the buyer shall be liable to pay compound interest with monthly rests to the supplier on whatever due amount from the date of appointed day or in case of an agreed date between Buyer and Supplier, the interest is calculated on the basis of three times of the bank rate notified by the Reserve bank of India.

The relevant provision reads as under:-

“ 16. Date from which and rate at which interest is payable.- Where any buyer fails to make payment of the amount to the supplier, as required under section 15, the buyer shall, notwithstanding anything contained in any agreement between the buyer and the supplier or in any law for the time being in force, be liable to pay compound interest with monthly rests to the supplier on that amount from the appointed day or , as the case may be, from the date immediately following the date agreed upon, at three times of the bank rate notified by the Reserve Bank.

1.3. REFERENCE TO MICRO AND SMALL ENTERPRISES FACILITATION COUNCIL- Section 18 of the Act of 2006 provides that the supplier (who filed a memorandum with the authority referred to in sub-section (1) of section 8) has the right to make a reference to the Micro and Small Enterprises Facilitation Council (hereinafter referred to as MSME Council) for Recovery of due amount from buyer.

(i) Once the reference is made by Supplier before MSME Council, the MSME Council may either itself conduct Conciliation or may refer to any institution or centre providing alternate dispute resolution for conducting Conciliation proceedings and aforesaid Conciliation proceedings conducted by MSME Council or any institution or centre providing alternate dispute resolution must adhere to the provisions provided under Section 65 to Section 81 of the Arbitration and Conciliation Act, 1996.

(ii) If Conciliation proceedings are not successful or are terminated without any settlement between buyer and seller, then the MSME Council may either itself take the dispute for Arbitration or may refer to any institution or centre providing alternate dispute resolution for Arbitration proceedings and aforesaid arbitration proceedings conduct by MSME Council or any institution or centre providing alternate dispute resolution must adhere to the provisions of the Arbitration and Conciliation Act, 1996. The aforesaid Arbitration proceedings shall be in pursuance of an Arbitration Agreement referred to in sub-section (1) of Section 7 of the Micro, Small and Medium Enterprises Development Act, 2006.

1.4. JURISDICTION- Section 18 of the Act of 2006 provides that the MSME Council or the Centre providing Alternate Dispute Resolution shall have Jurisdiction to act as an Arbitrator or Conciliator as per the Section 18 of Act of 2006 to decide the dispute between supplier and buyer where the supplier is located within its jurisdiction and a buyer is located anywhere in the Territory of India.

1.5. LIMITATION FOR MSME COUNCIL TO DECIDE THE DISPUTE BETWEEN SUPPLIER AND BUYER- Section 18 of the Act of 2006 provides that the MSME Council shall decide the dispute between supplier and buyer within a period of 90 days from the date of making reference by supplier before MSME Council.

1.6. APPLICATION FOR SETTING ASIDE DECREE, AWARD OR ORDER PASSED BY MSME COUNCIL OR BY ANY INSTITUTION OR BY CENTRE PROVIDING ALTERNATE DISPUTE RESOLUTION- Section 19 of the Act of 2006 provides that both supplier and buyer have a right to file application for setting aside decree, award or order passed by MSME Council or by any institution or by centre providing Alternate Dispute Resolution but in case of buyer the application shall only be entertained for setting aside decree, award or order passed by MSME Council or by any institution or by centre providing Alternate Dispute Resolution if the buyer should deposit seventy five percent of the amount in terms of decree, award or, as the case may be, the other order in the manner directed by such court. Further, during the pendency of the aforesaid application the court shall order that such percentage of the amount deposited by buyer shall be paid to the supplier. In this regard, reliance is being placed on the case of Goodyear India Limited Vs. Norton Intech Rubbers (P) Ltd. And Ors. wherein the Honb’le Apex Court did not interfere with the decision passed by the Division Bench of Hon’ble Madras High Court and considered the decision of Honb’le Madras High Court. Therefore, in case of buyer the application shall only be entertained for setting aside decree, award or order passed by MSME Council or by any institution or by centre providing Alternate Dispute Resolution if buyer should deposit seventy five percent of the amount in terms of decree, award or, as the case may be, the other order in the manner directed by such court.

1.7. WRIT PETITION UNDER ARTION 226 OF THE CONSTITUTION OF INDIA IS NOT MAINTAINABLE – Writ Petition under Article 226 of the Constitution of India is not maintainable for setting aside decree, award or order passed by MSME council or by any institution or by centre providing alternate dispute resolution because alternative Remedy is available under Section 34 of Arbitration and Conciliation Act, 1996. Therefore, buyer or supplier has only remedy available under section 34 of Arbitration and Conciliation Act, 1996 to set aside decree, award or order passed by MSME Council or by any institution or by centre providing alternate dispute resolution. In this regard, reliance is being placed on the case of Sanghi Industries Limited and Ors. Vs. Micro Small Enterprises Facilitation Council, Department of Industries Rajasthan and Ors. wherein the Hon’ble Rajasthan High Court, Bench Jaipur held that the writ petition filed by the petitioner was not maintainable on account of the alternative efficacious remedy available under section 34 of Arbitration and Conciliation Act, 1996 against the award passed by MSME Council.

1.8. OVERRIDING EFFECT- Section 24 of the Act of 2006 provides that the Section 15 to Section 23 of the Act of 2006 (i.e. Chapter 5 – Delayed Payments to Micro and Small Enterprises) is over any other prevailing inconsistent laws.

CONCLUSION

Thus, the efforts of Government of India for promoting the Micro, Small and Medium enterprises and legal framework for Micro, Small and Medium Enterprises could be understood from the background discussed above. Further, the Ministries of Finance, Government of India announced various economic packages, schemes for the development and operations of Micro, Small and Medium Enterprises on 13.05.2020; it is clear that the Government of India is doing major efforts and is playing very important role for development of Areas of Micro, Small and Medium enterprises.

2018 (2) WLN 146 (Raj.)

(2012) 6 SCC 345

Notification No. S.O. 1702 (E) – Dated 01.06.2020

Anti-Defection Law – Tale Of The Notice Which Irked Rajasthan Political Crisis

The Rajasthan political crisis has once again brought the Anti-defection law to the fore. The issue boiled over with the Speaker’s three day show cause notice to the MLAs premised on the ground that the refusal to attend party meetings as per the party whip directive attracts defection under Para 2(1) (a) of the Tenth Schedule. In this backdrop, this piece attempts to examine the following substantial questions of law related to the Tenth Schedule:

• What amounts to voluntary giving up of membership under the Tenth Schedule?
• Whether the show-cause issued by the Speaker can be declared illegal merely on irregularity of procedure?
• Whether the High Court can scrutinize the Tenth Schedule for being violative of Article 19 of the Constitution?
• What is the scope of judicial review with respect to the order issued by the Speaker under Schedule X?

The famous “Aaya Ram Gaya Ram” case wherein excessive political horse trading, multiple floor crossing and counter horse trading were exercised by the members of the Haryana Legislative Assembly resulting in the dissolution of the Haryana Legislative Assembly triggered serious concerns about the lacunae in the Constitutional provisions for regulating such defections and serial turncoat politicians.

With an attempt to regulate such defections, the 52nd Constitution Amendment Bill based upon the recommendations of Y.B. Chavan Committee was introduced in the Lok Sabha. The proposed Bill was accepted and was inserted vide 52nd Constitutional Amendment Act, 1985.

The 52nd Amendment Act changed four Articles of the Constitutions i.e. 101(3) (a), 102 (2), 190 (3) (a) and 191 (2) and inserted the Tenth Schedule in the Constitution. The Tenth Schedule is often referred as ‘Anti Defection Law”.

The Hon’ble Supreme Court in the case of KIHOTO HOLLOHAN v. ZACHILLU observed that the purpose of the Schedule 10 “is to curb the evil of political defections motivated by the lure of office or other similar considerations which endanger the foundation of democracy. The remedy proposed is to disqualify the Member of either House of Parliament or of the State Legislature who is found to have defected from continuing as a member of the House.”

As stated, the provisions in Anti-Defection Law are intended to strengthen the Indian Parliamentary Democratic fabric by curbing the unprincipled and unethical political defections. Further, the law seeks to recognise the practical need to place the proprieties of political and personal conduct above a certain level which in reality has fallen into a morass of personal and political derogation.

The Schedule 10 lays down the process by which legislators of both the Parliament and State Assemblies may be disqualified on grounds of defection by the Presiding Officer of a Legislature (the Speaker). The grounds for defection are mentioned under Para 2 of the Schedule and the power of the Speaker to disqualify a member is mentioned under Para 6 of the Schedule. It is relevant to note here that as per Article 191 of the Constitution “a member is deemed to be disqualified for being a member of the Legislative Assembly if he is disqualified under the Tenth Schedule”.

According to the provisions of Schedule 10, a legislator is deemed to have defected under the tenth schedule if he, expressly or impliedly, voluntarily gives his membership or when he votes against or abstains from voting against the whip issued by his political party.

It is germane to mention that in India, the issues for the Parliamentary Democratic Form of Governance and the role of Political Parties were dealt by the Hon’ble Supreme Court of India. In Kesavananda Bharati vs Union of India1, it was observed that “Further a Parliamentary Democracy like ours functions on the basis of the party system. The mechanics of operation of the party system as well as the system of Cabinet Government are such that the people as a whole can have little control in the matter of detailed law-making.” on practically every issue in the modern State, the serried millions of voters cannot do more than accept or reject the solutions offered. The stage is too vast to permit of the nice shades of quantitative distinctions impressing themselves upon the public mind. It has rarely the leisure, and seldom the information, to do more than indicate the general tendency of its will. It is in the process of law-making that the subtler adjustments must be effected.” (Laski: A Grammar of Politics, Fifth Edn., pp. 313-314).”

Voluntary Giving Up Of Membership

Para 2(1) (a) of the Tenth Schedule states that a member of a House belonging to any political party shall be disqualified for being a member of the House if he has voluntarily

given up his membership of such political party. The term ‘voluntary resignation of membership’ has not been defined under Schedule 10 of the Constitution. However, the Hon’ble Apex Court, in case of RAVI S. NAIK v. UNION OF INDIA, well explained the scope and extent of Para 2(1) (a) and observed that “The words voluntarily given up his membership” are not synonymous with “resignation and have a wider connotation. A person may voluntarily give up his membership of a political party even though he has not tendered his resignation from the membership of that party. Even in the absence of formal recognition, an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs”.

The term ‘voluntarily resignation’ is of wide connotation, thereby the application preferred before the Speaker under Para 2 (1) (a) and the respective State Disqualification Rules has to be determined according to the facts and circumstances of each case. The Speaker while deciding upon the issue of defection under Para 2 (1) (a) i.e. due to ‘voluntary resignation of member’ is empowered to examine the factual matrix and evidences procured from media reports, video clippings, newspaper reports etc.

Further, the burden of proof that there was no intention to give up his membership is on the legislator against whom such proceedings have been initiated.

Irregularity Of Procedure

In recent times, the Hon’ble Courts of the land have been made to examine the show-cause notices issued by the Speaker under Disqualification Rules whereby, he had given opportunity of less number of days to the non-applicants than as provided under the Rules.

It is relevant to note here that the Disqualification Rules are framed to regulate the procedure to be followed by the Speaker for exercising the power conferred upon him under Para 6(1) of the Tenth Schedule. The Disqualification Rules are, therefore procedural in nature and any violation of the same would amount to an irregularity in procedure which is immune from judicial scrutiny.

Further, the Hon’ble Apex court in the case of Dr. MAHACHANDRA PRASAD SINGH v. CHAIRMAN, BIHAR LEGISLATIVE COUNCIL & ORS.., observed that the purpose and object of the Disqualification Rules is to facilitate the job of Speaker in discharging his duties conferred by Para 6 and thereby, the Rules being in domain of procedure are intended not to frustrate or obstruct the holding of inquiry by introducing innumerable technicalities but to facilitate the same. Hence, a mere irregularity in the procedure cannot make the order of the Speaker under Para 6 of the Tenth Schedule amenable to the writ jurisdiction of the courts and cannot be declared illegal merely on the basis irregularity in procedure.

Right To Dissent And Power Of The High Court To Put The Tenth Schedule Under Scrutiny

There had been several controversies such as a bill being proposed seeking an amendment in the Tenth Schedule and several cases were also reported where the validity of the Tenth Schedule was challenged for being violative of the freedom of speech and expression as envisaged under Article 19 of the Constitution1 and for being against the ethos of the democracy as the members of the Legislatures attracted defection for deserting the leadership, party discipline and policies. Before entering into the discussion, it is relevant to note here that the Right to dissent falls under the scope of freedom of speech and expression as envisaged under Article 19 of the Constitution.

From the bare reading of the provisions of Para 2(1) it can be ascertained that the ‘Dissent’ by the legislative members attracts defection. As per Para 2(1), a legislator is deemed to have defected if he either voluntarily gives up his membership of his political party or disobeys the directive of the party leadership. This implies that a legislator disobeying the party whip or any issue can lose his House membership.

Though it is accepted that dissent within the party members on the floor of the Legislature and outside shows lack of party discipline and loyalty towards the leadership. Further, the dissent among members did not put up a united front in the Legislature and the party appears as a divided party. Thus, disagreement with the party shared beliefs and deserting the leadership by any single member attracts defection as it raised suspicion about the loyalty of the member towards the party and harms the reputation of the party with voters.

Despite these assertions, it is pertinent to mention that there can be no democracy without dissent and for a country to grow in a holistic manner where citizens’ civil rights are to be protected, disagreement should be encouraged and permitted to improve transparency. It is only with the discussion and disagreement that a better way to run the country can be ascertained.

Recently, in a speech delivered by Hon’ble Dr. Justice D.Y Chandrachud propounded “The blanket labelling of dissent as anti-national or anti-democratic strikes at the heart of our commitment to protect constitutional values and the promotion of deliberative democracy”. Thus, according to him, dissent by the members is essential for democracy to survive. If the members of the party cannot show their dissent, there will be concentration of power and the same will lead to the authoritarian form of government. Therefore, he expressed the need of amending the Tenth Schedule of the Constitution in order to strike a fair balance between the Right to Dissent and the preservation of Parliamentary Democratic Form of Government.

Power of the High Court to Scrutinize Tenth Schedule for Violation of freedom of Speech

In this regard, it is pertinent to note that the Hon’ble Supreme Court in the case of KIHOTO HOLLOHAN v. ZACHILLU, wholly examined the Constitutional validity of the Tenth Schedule and declared Para 7 as invalid which imposed a complete baron the exercise of jurisdiction of the Court and had further declared Tenth Schedule as non-violative of the Fundamental Rights. The Apex Court observed “That the Paragraph 2 of the Tenth Schedule to the Constitution is valid. Its provisions do not suffer from the vice of subverting democratic rights of elected Members of Parliament and the Legislatures of the States. It does not violate their freedom of speech, freedom of vote and conscience as contended.” Moreover, these provisions are intended to strengthen the fabric of Indian Parliamentary Democracy.

Hence, in so far as the scrutiny of the Tenth Schedule is concerned, the Hon’ble High Court should hesitate to envisage upon the validity of the Tenth Schedule in the aforementioned context as the matter had been duly dealt by the Apex Court in the Kihoto case and is no

more Res Integra. Further, the power of the High Court is restricted because of the bar imposed by Article 141 of the Indian Constitution. Article 141 of the Constitution states that “the law declared by the Supreme Court shall be binding on all courts within the territory of India”1. Moreover, any observation of the High Court contrary to that of the Apex court will have an effect of the implied overruling of the High Court orders.

Thus, seeing the exigencies the Hon’ble Supreme Court should take active steps to alter the arbitrary provisions of the Tenth Schedule and ensure that the powers do not suppress the dissent.

Scope Of Judicial Review

Under the Constitution of India, the Legislature, the Executive and the Judiciary all have their broad spheres of operation and it is improper for any of these organs of the State to encroach upon the domain of another. If restraint over the spheres is not maintained, the delicate balance in the Constitution will be upset and will lead to crisis.

It is pertinent to note here that as per Para 6 of the Tenth Schedule the decision of Speaker on a question whether a member of House has become subject to disqualification would be final. However, the apex court in a catena of judgements has clarified that the power of the decision of the speaker would be final but not conclusive. Henceforth, the Speaker decision is subjected to judicial review but the Court’s power of judicial review is limited to jurisdictional infirmities. The limited grounds on which jurisdiction of Courts can be invoked are Violation of Constitutional Guarantees/Mandates, Principles of Natural Justice, Mala-fides and Perversity.

In case of SHRIMANTH BALASAHEB PATIL v. SPEAKER, KARNATAKA LEGISLATIVE ASSEMBLY & ORS, the Apex Court has stated that the Speaker being a constitutional functionary is presumed to have adjudicated with highest traditions of constitutionalism and therefore, the Judiciary can review the order of the speaker under writ jurisdiction only on the grounds of violation of constitutional mandate, non-compliance with the provisions of the natural justice and mala-fides.

If the Hon’ble Speaker duly performed the functions endowed to him through the Constitution of India, the mere procedural irregularity would not be sufficient to declare the decision passed by him as invalid. This needs to be noted that the Disqualification Rules are made by the Speaker under the powers enumerated under Para 6 of the Tenth Schedule. Such Rules are enacted and enforced to supplement the disqualification proceedings, and therefore, mere procedural irregularity is not sufficient to be regarded as non-compliance of the constitutional mandate.

Further, concerning the non-compliance of principles of natural justice, it is relevant to note that the principles of natural justice cannot be put in a straitjacket and there is no hard and fast rule for the same. The adequate opportunity of being heard is the essence of same and thereby it is not possible to accept that the principles of natural justice were breached when the Speaker provided three day notice or any other period, wherein a maximum period of seven days is prescribed. The yardsticks of judging compliance of natural justice depend upon the facts and circumstances of each case and in the present case, the question is not the number of days that were given by the Speaker for answering the show cause notice, rather to see whether an effective opportunity of hearing was provided.

Further, as observed by the Apex Court in the cases of STATE, HARYANA VIDHAN SABHA v. KULDEEP BISHNOI & OTHERS and KIHOTO HOLLOHAN v. ZACHILLU, having regard to the constitutional intendment and the status of the repository of the adjudicatory power of the Speaker the judicial review cannot be available at a stage prior to the making of a decision by the Speaker and thereby any interference at the interlocutory stage of the disqualification proceeding is not permissible.

Moreover, the compliance with the prevalent laws and principles of natural justice by the Speaker gives a presumption of application of mind by the Speaker and judicially exercising the power endowed to him by the Constitution. Hence, any intervention by the judiciary at a stage before the final adjudication by the Speaker and without any instance of violation of constitutional mandate, non-compliance with the principles of natural justice, mala-fides and

perversity would tantamount to encroach upon the domain of the legislature which is against the basic structure of the Constitution of India.

KihotoHollohan v. Zachillu, 1992 Supp (2) SCC 651 (India).

Kesavananda Bharati vs Union of India (1973) 4 SCC 225

Ravi S. Naik v. Union of India, 1994 Supp (2) SCC 641 (India).

Jagjit Singh v. State of Haryana, (2006) 11 SCC 1 (India).

Ravi S. Naik v. Union of India, 19) 94 Supp (2) SCC 641 (India).

India Const., art. 19.

Deepak Gupta, The Right to Dissent is the Most Important Right Granted by the Constitution: Justice Gupta, Available at https://thewire.in/law/right-to-dissent-constitution-justice-deepak-gupta(Last visited July 26, 2020).

KihotoHollohan v. Zachillu, 1992 Supp (2) SCC 651 (India).

India Const., art. 141.

Himangni Enterprises v. Kamaljeet Singh Ahluwalia, (2017) 10 SCC 706

Indian Drugs Pharmaceutical Ltd. v. Workmen, (2007) 1 SCC 408 (India); Divisional Manager, Aravalli Golf Club &Anr.v. Chander Hass &Anr., (2008) 1 SCC 683 (India).

ShrimanthBalasahebPatil v. Speaker, Karnataka Legislative Assembly &Ors., (2020) 2 SCC 595 (India).

ShrimanthBalasahebPatil v. Speaker, Karnataka Legislative Assembly &Ors., (2020) 2 SCC 595 (India); Smt. UjjamBai v. State of Uttar Pradesh, AIR 1962 SC 1621(India).

State, Haryana VidhanSabha v. KuldeepBishnoi&Ors., (2015) 12 SCC 381 (India);

KihotoHollohan v. Zachillu, 1992 Supp (2) SCC 651 (India).

SECTION 482 CRPC, QUASHING OF FIR: GUIDELINES SET OUT BY THE HON’BLE SUPREME COURT OF INDIA

“Nothing in the Code of criminal procedure shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice”

The powers of the High Court under section 482 Cr. P.C are partly administrative and partly judicial. The section was added by the Code of Criminal Procedure (Amendment) Act of 1923. The Hon’ble Supreme Court in State of Karnataka v. Muniswami held that Section envisages 3 circumstances in which the inherent jurisdiction may be exercised, namely, ” to give effect to an order under CrPC, to prevent abuse of the process of the court, and to secure the ends of justice”.

The Hon’ble Allahabad High Court subsequently opined that “The section is a sort of reminder to the High Courts that they are not merely courts in law, but also courts of justice and possess inherent powers to remove injustice”. The inherent power of the High Court is an inalienable attribute of the position it holds with respect to the courts subordinate to it. They are necessarily judicial when they are exercisable with respect to a judicial order and for securing the ends of justice. The jurisdiction under section 482 is discretionary, and therefore, the High Court may refuse to exercise the discretion if a party has not approached it with clean hands.

The inherent jurisdiction of the High Court could be exercised to quash the proceedings -:

1.Where there is a legal bar against the proceedings;
2.Where the allegations in the first information or the complaint do not constitute the offence alleged;
3.Where either there is no legal evidence adduced in support of the charge or the evidence adduced clearly or manifestly failed to prove the charge.

The High Court does not have the power to quash the proceedings in the police investigation consequent upon a first information report made to the police in a cognizable case. It has no power to interfere with the statutory rights of the police to investigate a cognizable case.

The inherent powers of the High Court under section 482 can be invoked only in three situations-:

1.In order to give effect to an order passed under the code.
2.To prevent the abuse of the process of the court.
3.To secure the ends of justice.

In the famous case of State of Uttar Pradesh vs. Mohd. Naim, it was held by the Hon’ble Supreme Court that this Section (482) does not confer any new powers on the High Court. It merely safeguards all existing inherent powers possessed by the High Court necessary to secure the ends of justice. But when any alternative remedy is available to the Petitioner in the Court which is seized of the matter, it is not proper for the High Court to exercise its jurisdiction under section 482 or even under the revisional jurisdiction.

It is well settled that the inherent powers under section 482 can be exercised only when no other remedy is available to the litigant and not where a specific remedy is provided by the statute. If an effective alternative remedy is available, the High Court will not exercise its powers under this section, especially when the applicant may not have availed of that remedy.

As such, if no offence has been made out on the facts alleged but the process has been issued, the High Court, in the exercise of its inherent power under Section 482, can quash the proceedings for the ends of justice. But once the proceedings have commenced, the High Court will be justified in quashing it without sufficient grounds and without stating the reasons for it.

There has been no limitation prescribed for making an Application under section 482, Cr.P.C. However, the Application is to be filed within a reasonable period of 90 days .

High Court will not interfere at an interlocutory stage of criminal proceeding in a subordinate court but High Court is under an obligation to interfere if there is harassment of any person (Indian citizen) by illegal prosecution. It would also do so when there are any exceptional or extraordinary reasons for doing so. The Supreme Court, in Madhu Limaye v. Maharashtra, has said:

“Nothing in the Code, not even Section 397 can affect the amplitude of the inherent power preserved in Section 482. Where the impugned interlocutory order clearly brings about a situation which is an abuse of the process of the court then for the purpose of securing the ends of justice, interference by the High Court is absolutely necessary and nothing contained in Section 397 (2) can limit or affect the exercise of the inherent power of the High Court”.

In the landmark case State of Haryana v. Bhajan Lal a two-judge bench of the Supreme Court of India considered in detail, the provisions of section 482 and the power of the High Court to quash criminal proceedings or FIR. The Supreme Court summarized the legal position by laying the following guidelines to be followed by High Courts in exercise of their inherent powers to quash a criminal complaint:

1.Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
2.Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
3.Where the allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
4.Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
5.Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which, no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
6.Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or, where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
7.Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

Section 482 in terms of cancellation of bail-: The code of criminal procedure makes no express provision for the cancellation of bail granted under section 436. Nevertheless, the High Court has under section 482 inherent powers to cause any person accused of a Bailable offence to be arrested and to commit him to custody if it is found that he was intimidating, bribing or tampering with the prosecution witnesses or was attempting to abscond. However, the overriding inherent power should be invoked in exceptional cases only when the High Court is satisfied that the ends of justice will be defeated unless the accused is committed to custody.

Quashing of FIR-: In a recent decision of the Hon’ble Supreme Court held that it is no more res integra that exercise of power under Section 482 Cr.P.C to quash a criminal proceeding is only when an allegation made in the FIR or the charge sheet constitutes the ingredients of the offence/offences alleged. The Court opined as follows:

“…Interference by the High Court under Section 482 CrPC is to prevent the abuse of process of any Court or otherwise to secure the ends of justice. It is settled law that the evidence produced by the accused in his defence cannot be looked into by the Court, except in very exceptional circumstances, at the initial stage of the criminal proceedings. It is trite law that the High Court cannot embark upon the appreciation of evidence if a prima facie case is made out disclosing the ingredients of the offence alleged against the accused, the Court cannot quash a criminal proceeding, the Supreme Court was even more emphatic: “while considering the petition filed under Section 482 CrPC for quashing criminal proceedings. It is clear from the law laid down by this Court that.”

The Hon’ble Supreme Court has set out the above broad principles to prevent an abuse of the process of the Courts or to secure the ends of justice and therefore one should approach the High Courts only with clean hands so as to enable the High Courts to prevent an abuse of the process of the court and to prevent the gross miscarriage of justice.

Section 482 Cr.P.C has a very wide scope and is an essential part of statue to meet the end of justice where injustice can take place but at the same time the said power is too wide and hence, it is important for the courts to use it wisely and according to the guidelines laid down by High Courts and Supreme Court time to time. Section 482, in its current form has seen several changes with the changing times and need of the hour and by the Guidelines framed by the Supreme Court in several of its judgments. Section 482 has made its space in Cr.P.C in order to enable the High Courts to provide proper justice and at the same time to curb filing of fictitious complaints just to avenge personal grudges.

AIR 1977 SC 1489

1962 CrLJ 125

Bata vs. Amana Behara, 1990 Cr LJ 1110 (Orissa)

1978 AIR 47, 1978 SCR (1) 749

1992 Supp.(1) SCC 335

Ratilal Bhanji vs. Astt. Customs Collector, Bombay, AIR 1967 SC 1659

Rajeev Kourav v Baisahab (Cr Appeal no. 232 of 2020)

THE ARBITRATION AGREEMENT AND ITS ENFORCEMENT ON NON-SIGNATORIES –INTERNATIONAL AND NATIONAL PERSPECTIVE

The concept of the privity of contract though codified in 1872 vide the Indian Contract Act is rooted in the uncodified common law principles through the decisions passed by the Courts of England. The term privity of the contract would mean that the terms and conditions and the consequences of the contract are to be borne by its’ signatories only and not the third party alias the non-signatories. In the year 1833, in the case Price vs Easton the court of appeals held that, “No one may be entitled to or bound by the terms of a contract to which he is not an original party”. This further, got certain in the famous Tweddle vs Atkinson wherein the High Court of justice Queen’s Bench division held that no stranger to consideration may enforce contract even when the contract is made for its benefit. In other words, it became clear through the law settled by Courts that the Contract is enforceable by and against the signatories of the contract and no other.

With the passage of time and increasing commercialization parallel to globalization, the legislatures in both the international and national platform valued the imperativeness of the various methods of the alternate dispute resolution which included the well-liked concept of Arbitration. In India, the evolution of the concept of Arbitration has been progressive since the old age Panchayat System to 1940’s Arbitration Act to the Arbitration and Conciliation Act 1996 formulated in the lines of the provisions recommended by the UNCITRAL Model Law on International Commercial Arbitration in 1985 (In Short “Model Law”). The parties in dispute are increasingly leaning towards the Arbitral Proceedings for resolution of their disputes as it takes shorter duration to get concluded instead of the never ending contemporary adversarial system and for its possibility to conduct the proceedings in camera thus protecting identity and the bone of contention between the parties. Not to mention that without the codification of the Arbitration Act, the same would have been governed by the Indian Contract Act, 1872 as according to Section 2(h), all Agreements enforceable in law are a contract. Nevertheless due to the enactment of the Special Law i.e. the Arbitration Act 1940 and subsequently and highly prevalent Arbitration and Conciliation Act 1996, the same is not guarded by the Indian Contract Act, 1872 and therefore, the issue arises, whether the Arbitration Agreement can be made to be enforced against or by the non signatories or not?In order to deliberate over the settled legal principles in India on the enforceability of the Arbitration Agreement by and against the non signatories, it would be of significance to consider various laws enforced in the international platform. The Article II of the New York Convention 1958 (See First schedule of the Arbitration and Conciliation Act 1996) mandates that the Arbitration Agreement shall be in writing. Similarly the Model Law following the New York Convention, 1958 states that the Arbitration Agreement shall be in writing of its content is recorded in any form whether or not the Arbitration Agreement or Contract has been concluded orally by conduct or by other means vide the Article 7 (2). This suggests that where the non signatory is bound to arbitrate, they need to enter into the Arbitration Agreement which shall be in written form. This further suggests that vide the New York Convention, the non-signatories cannot be ruled by the Arbitral Tribunals without such written Arbitration Agreements. But the issue herein worth discussion is, what shall be the consequences if the Arbitration Agreement to which the third party is not a signatory, gets affected by the Arbitration proceedings triggered by such Arbitration Agreement.

The Arbitration Rules enforced in the various national platforms other than India do fill the lacunae by allowing the non-signatories to be joined as a party to the Arbitration proceedings with the written request of the signatories or/and with the consent of the non signatory. The London Arbitration Rules provide for the joinder of the non signatory to be the party in the Arbitration proceedings with the application of the party submitted along with the consent of the non-signatory for such joinder. The ICC Arbitration Rules expound in Article 7.1 that the party wishing to join an additional party to Arbitration shall submit its request for Arbitration against additional party. In addition to Article 7.1, Article 9 permits claims arising out of or in connection with more than one contract may be made in a single Arbitration, irrespective of whether such claims are raised under one or multiple Arbitration Agreements under the Rules. Therefore, there is no ambiguity to believe that the situation where there are multiple contracts interlinked and entangled with each other, common in present scenario where multiple companies are in legal contractual relationships, either directly or indirectly, can be proceeded in a single Arbitration proceedings as according to the ICC Arbitration Rules. The Singapore International Arbitration Centre Rules 2013, provides the Additional Powers of the Tribunal which allows the third party to be joined as the party subsequent to the application made by the party only with the written consent of the third parties after which the Arbitral Tribunal may pass a single final award or the separate awards in respect of all parties. Stepping ahead of the Rules of 2013, Rule 9 of the Singapore International Arbitration Centre Rules 2016 allows not only for the joinder of the Third Party but it also entitles the Third Party/non-signatory with the right to appoint the Arbitrator by making an application to the already appointed Arbitrators. Article 27 of the Honk Kong International Arbitration Centre Arbitration Rules 2018, provides for the powers of the Arbitral Tribunal to order for the joinder of the third party provided they have consented to be joined in the proceedings.

Therefore, it would be safe to summarize that though the Arbitration Agreement is an Agreement between the signatories only to enter into the Arbitration proceedings in case an apple of discord arises, but the issue remains no more Res Integra that there are circumstances, situations and the inter-linked contracts and contractual legal relationships, which make the non-signatories either effected by the Arbitration decisions or it might be of complete injustice to make any decision without they being given the opportunity to be heard

In India, the laws for Arbitration are sub silentio as to the joinder of parties whereas the Supreme Court of India and the High Courts have attempted to settle the principles for the enforceability of the Arbitration Agreements against the non-signatories through its various decisions. In Sukanya Holdings (P) Ltd v. Jayesh H. Pandya , the Supreme Court of India had for the very first time considered whether the non-signatory to the Arbitration Agreement be referred for the Arbitration under Section 8 of the Arbitration Act 1996 or not? The Division Bench held that from the reading of the Section 8 which says “in a matter which is the subject matter of an Arbitration Agreement” it is clear that the Courts are bound to refer only when the suit contains ‘a matter’ which apparently has to be the subject matter of the Arbitration Agreement, and therefore, the Hon’ble Apex Court negated the applicability of Section 8 on to the non-signatories meaning thereby that the non-signatory to the Arbitration Agreement cannot approach the Court with the plea to refer the matter for Arbitration. Consequently the Hon’ble Apex Court upheld the decision of the Bombay High Court which had also held that the Act did not confer any power on the judiciary to refer the Non-Signatories in the Arbitration proceedings. The Division Bench of the Apex Court also made it clear that Section 89 of the Civil Procedure Code, 1908 will also not be of any help to the non-signatories as Section 8 and Section 89 stand on different footings and Section 89 would be applicable in cases where there are no Arbitration Agreements In Indowind Energy Ltd. v. Wescare (I) Ltd. &Anr , the Apex Court partly dismissed the decision of the High Court of Judicature for Madras and held that the appointment of the Arbitrator at the instance of the non-signatory under Section 11 is invalid as the non signatory though had a reference in the Arbitration Agreement yet they had never signed or acknowledged in any written form or by any correspondence that they are the signatories to such Arbitration Agreement. It is of utter relevance to reproduce the relevant part which says, “It is no doubt true that if Indowind had acknowledged or confirmed in any correspondence or other Agreement or document, that it is a party to the Arbitration Agreement dated 24.2.2006 or that it is bound by the Arbitration Agreement contained therein, it could have been possible to say that Indowind is a party to the Arbitration Agreement.”

In Firm Ashok Traders vs Gurmukh Das Saluja , the Hon’ble Supreme Court of India enunciated that the Non-Signatories cannot approach the doors of the Courts for the Interim orders under Section 9 of the Arbitration and Conciliation Act 1996. The Court held, “The qualification which the person invoking jurisdiction of the Court under Section 9 must possess is of being a party to an Arbitration Agreement. A person not party to an Arbitration Agreement cannot enter the Court for protection under Section 9. This has relevance only to his locus standi as an applicant.” Therefore, it is apparent that the Indian Judiciary has settled the legal preposition that the Non-signatories have no locus standi to make an Application under Section 9 of the Act for the interim measures. The rationale behind such decision is that Section 9 can be invoked only by the party who is a signatory to the Arbitration Agreement as they are the one who may invite the other party or approach the Court for the Arbitration Proceedings to begin

In Chloro Controls India Pvt. Ltd. v. Severn Trent Water Purification Inc. & Ors. , the Apex Court changed the position of law set before and held that Section 45 in the Arbitration and Conciliation Act 1996 is a self contained code. Therein, “the expression ‘person claiming through or under’ would mean and take within its ambit multiple and multi-party Agreements, though in exceptional case. Even non-signatory parties to some of the Agreements can pray and be referred to Arbitration provided they satisfy the pre-requisites under Sections 44 and 45 read with Schedule I.” The Hon’ble Court expounded by acknowledging that the non-signatory parties are neither unknown to the Arbitration jurisprudence nor it is impermissible. Therefore, it is evident that by 2013, the Indian judiciary inclined itself towards the Arbitration jurisprudence which with its rationality has acknowledged that there could be such an interlocking and inter-linked legal contractual relationships between the parties that though one may not be the signatory of the Arbitration Agreement, but it might be directly or indirectly affected by the adjudication. The aforesaid judgment also made clear of the approach of the Indian Judiciary in recognizing that the non-signatories may resort to the doctrine of the ‘group of companies’ or the composite references, when in need. One of the primary reasons for the shift of the approach of the Indian Judiciary was the literal interpretation of Section 8 and Section 45 of the Act (Article II of the New York Convention). The language of Section 8 refers to the Party in simplicitor whereas Section 45 refers the request made by the party or the person claiming through or under. This also needs to be considered that post the Arbitration and Conciliation (Amendment) Act, 2015, Section 8 has been amended and it now includes, the phrase “party claiming through or under”. Thus subsequent to the Amendment Act 2015, in Ameet Lalchand Shah vs Rishabh Enterprises , the Hon’ble Supreme Court enunciated that the several parties involved in several contracts inter-linked with each other may be referred to the Arbitration under Section 8 even if the few of many contracts do not contain the Arbitration clause. This judgment holds value in cases where the party is a non-signatory to one Agreement but a signatory to another even when such signed contract does not contain the Arbitration Clause. With the progressive and practical interpretations of the Hon’ble Supreme Court of India, the High Courts have also commenced the applicability of the provisions of the Act on to the non-signatories. For instance, the High Court of Bombay, in Prabhat Steel Traders Private Limited vs Excel Metal Processors Pvt Ltd has held that the word ‘Party’ is in absentia in the Section 37 and therefore, an appeal may be preferred under Section 37 of the Act by the non-signatory also. It is germane to mention that though Section 9 and Section 17 has been enunciated to be not applicable to the Non-Signatory but they have been made to be entitled to appeal against such applications under Section 37.

In the end, it suffices to conclude that the non-signatories of the Arbitration Agreement are capable of enforcing such Agreements though there remains uncertainty that whether the Agreements are enforceable against the non-signatories even when the principle of Audi Alteram Partem is not followed. More so, the applicability of the doctrine of the ‘group of companies’ in the Arbitration proceedings indicates that the Indian judiciary acknowledges the inter-linked commercial relationships transacted between the parties, wherein they might not be in direct contract with each other but the decision in one Arbitration Agreement may affect the other unseen spheres of the legal contractual relationship. However, such judicial precedents remain restricted to the interpretation by the Indian Judiciary and the need of an hour is that the definition of the ‘party’ under Section 2(1)(h) should be amended including the non-signatory as its constituent and the provisions for the joinder of the party should be introduced in the Arbitration and conciliation Act 1996 so that the affected parties may not be forced to knock the doors of the judiciary in order to determine the effectiveness of the Arbitration Agreement on the non-signatories.

Price vs Easton (1833) 4b. & Ad. 433

Tweddle vs Atkinson (1861) 1 B&S 393

Sukanya Holdings (P) Ltd v. Jayesh H. Pandya (2003) 5 SCC 531

Indowind Energy Ltd. v. Wescare (I) Ltd. &Anr AIR 2010 SC 1793

Firm Ashok Traders vs Gurmukh Das Saluja (AIR 2004 SC 1433)

Chloro Controls India Pvt. Ltd. v. Severn Trent Water Purification Inc. & Ors. (2013) 1 SCC 641

Ameet Lalchand Shah vs Rishabh Enterprises (2018) 15 SCC 678

Prabhat Steel Traders Private Limited vs Excel Metal Processors Pvt Ltd 2018 SCC OnLine Bom 2347

Due to the outbreak of COVID-19 pandemic across the world, Governments across the states in India have put various restrictions in order to combat the spread of the deadly virus. So, the terms to describe the state of affairs in different states are interchangeably used by the public and by the officials. While general public often uses lockdown and curfew as synonymous terms; it is significant to note that the terms ‘lockdown’ and ‘curfew’ both have not been defined anywhere under Indian law. This article mainly focuses on the slight differences between ‘lockdown’ and ‘curfew’ along with their implementation which the general public ought to know.

LOCKDOWN:- A lockdown is an exigency protocol implemented by the Government in order to keep the general public indoors. It is a state wherein the Government orders temporary shutdown of all the non-essential establishments, educational institutions, places of worship, hospitality services, cinema halls, shopping malls etc. All social/ political/sports/entertainment/academic/cultural/religious functions/other gatherings and large congregations are prohibited throughout the country and also a temporary suspension of metro and rail services as well as domestic air traffic1 but there are certain exceptions such as ration shops, banks, ATMs, media services, medical facility, petrol pumps etc. The main reason behind the lockdown is to restrict the movement of public and maintain social distancing with the purpose of preventing the spread of the deadly virus. Government may also seal the borders of each State if need be, so that the non-urgent traffic can be stopped from moving freely from one state to another.

IMPLEMENTATION:- The two laws in India which provide a legal basis for acting against the pandemic are the Epidemic Diseases Act, 1897 (EDA) and the Disaster Management Act, 2005 (DMA). Section 2 and 2A of the EDA give power to the State and Central Governments to take necessary action in the situation of an epidemic to control its outbreak. In India National Disaster Management Authority (NDMA) was established in the year 2005 under the Disaster Management Act, 2005, with the PrimeMinister as its Chairperson having a mandate to lay down policies for disaster management. Prime Minister Shri Narendra Modi, in exercise of the powers under section 6(2)(i) of the Disaster Management Act, 2005, to enforce lockdown had issued an Order dated 24.03.2020, directing the Ministries/ Departments of Government of India, and the State/Union Territory Governments and State/ Union Territory Authorities to take effective measures to prevent the spread of COVID-19 in the country.

In compliance of the said Order of National Disaster Management Authority (NDMA) under the Disaster Management Act, Ministry of Home Affairs (MHA) has issued an Order dated 24.03.2020 under Section 10(2)(l) of the Disaster Management Act, directing the Ministries/Departments of Government of India, State/Union Territory Governments and State/Union Territory Authorities to take effective measures for ensuring social distancing so as to prevent the spread of COVID-19 in the country.

Section 2(d) of the Disaster Management Act which was used to enforce the lockdown read as : “Disaster means a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or man-made causes, or by accident or negligence which results in substantial loss of life or human suffering or damage to, and destruction of, property, or damage to, or degradation of, environment, and is of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area.” This section deals with causes such as earthquakes and tsunamis etc. and is not meant to deal with epidemics, pandemics or any kind of diseases. However, the Ministry of Home Affairs (MHA) declared the spread of COVID-19 as a “notified disaster”, thus Section 2(d) of the Disaster Management Act comes into play.

Violation – : Any person violating lockdown rules and making false claims will be liable to be proceeded against as per the provisions of Section 51 to 60 (Offenses and Penalties) of the Disaster Management Act, 2005, besides legal action under Section 188 of the IPC which provides for the punishment for disobedience to order duly promulgated by a public servant.

CURFEW- ‘Curfew’ again is not a legal term, and hence, is not defined anywhere in law. A situation when the Government imposes Section 144 of the CRPC in any state or in the entire country along with the essential services shutting down, this is when it is said that a Curfew has been implemented. By way of this order people are instructed to stay indoors for a particular period of time. It can be a public order to gain control of violent situations, or can be also be directed to a specific group. The government puts a complete restriction on traffic; also markets, schools, colleges and offices remain closed under the curfew beside few emergency services like hospitals. Banks, ATMs, Petrol pumps, grocery stores, vegetables and milk shops are all shut. Prior notice is issued whenever the curfew is lifted for few hours for people to access essential goods. Only police personnel are allowed on the streets. If one needs to leave the house during a curfew, prior approval is required from the local police.

IMPLEMENTATION: Curfew order is issued by the District Magistrate which is generally an enhancement of an order passed under Section 144. However, according to former Madras High Court Judge K Chandru, curfew is imposed by the administration using inherent executive powers vested in the state government. That is, a state government has the power to issue executive orders under any subject it is competent to make laws. In the case of curfew, this would be public order.

Violation – : Violation of curfew can lead to your immediate detention by the police under Section 188 CrPC. Further, if people endanger the health of others, other provisions of the law could be invoked; such as Section 269 of the IPC punishes those who negligently spread infection and Section 270 of the IPC will be invoked if people malignantly fail to act during an epidemic and Section 271 of the IPC will be invoked in case of disobedience to quarantine rule.

https://www.mha.gov.in/sites/default/files/MHAOrderextension_1752020_0.pdf
https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1607997

https://www.who.int/docs/default-source/wrindia/situation-report/india-situation-report-7.pdf?sfvrsn=cf4a7312_2

“ Globalization has posed multiple challenges to the future of legal education in India, but it has provided an opportunity to challenge the status quo, which is an essential condition for seeking any reform ”- Tarunima Pandey

From Hairpin to Aeroplane, everything in India is facing the effects of globalization, how can the legal system be left behind?

Global Legal education has played a vital role in the development of all the lawyers/ Advocates/ Students who act as social engineers and work towards the cause of nation building. In a globalized world, law schools face the challenges of increased foreign competition and reduction of the role of the state. In the recent years, the meaning of Globalization has come out in open on a very large scale, specially focusing on the future of global education. Until few years ago, Indian legal system only taught laws on the basis of traditional laws and their implementation, but today emancipation of laws have evolved, International Laws, Intellectual property rights, environmental laws, anti-terrorist laws, anti-corruption laws, Copyright laws, Cyber laws, bankruptcy laws, and real estate laws are all framed in the modern time that suits the needs in the new legal changes in India.

INTRODUCTION

The meaning of Globalization has come out in open on a very large scale, Until a few years ago, The Indian legal system had only taught laws on the basis of traditional laws and their implementation, but today emancipation of laws have evolved, International Laws, Intellectual property rights, environmental laws, anti-terrorist laws, anti-corruption laws, Copyright laws, Cyber laws, bankruptcy laws, and real estate laws are all framed in the modern time that suits the needs of the new legal changes in India.
It is abundantly clear that during these recent years, many foreign universities has come to India as private universities and vis versa, these institutes have immensely contributed in expanding knowledge of legal education worldwide.

Today, our legal system has to not only meet the necessities of the Indian Bar Association but also need expert adverse knowledge in the subjects like Global merger and Acquisition, Corporate laws for Multinational industries or Intellectual Property laws for protections against one’s designs, patents etc. These New kinds of legal disputes with international dimensions investing billion dollars of investments to our growing economy. These are some significant results for global legal education: global reforms of law, global lawyers, and global trade.

IMPORTANCE OF GLOBAL LAW EDUCATION

Globalisation has immensely helped India, it has provided an opportunity to challenge the status quo, which is an essential condition for seeking any reform .

It has become a vital necessity in today’s competitive world. The social, legal and economic context makes it imperative that lawyer and Advocates not only acquire the skills, but more importantly apply these new global laws, that are applicable across domains to compete with the advancing world.

While specific Indian laws are important but they are not be sufficient in an age where one has to quickly transition from one job profile to another. It is mandatory to acquire advances new laws, as it increases the ability of lawyers to participate in the social and legal discourses of our time.

Hence, as much as the traditional educational is bases on customs, precedents, the future of the legal system is to emphasise on analytical knowledge which alone will enable lawyers and advocates to cope with uncertain, contingent and varied legal problems as a part of the Indian Judicial System.

The contemporary social, political, economic and legal context makes it imperative that lawyers acquire the skills, but more importantly the conceptual tools that are applicable across domains, and also across cultural spaces.

While specific Indian laws are important but they are not be sufficient in an age where young lawyers have to quickly transition from one job profile to another. This will required to acquire transferable intellectual resources that they could apply in dynamic and complex situations. Also, to have ability to participate in the social and political discourses of our time places a premium on their ability to quickly grasp socio-economic issues in all their multiple dimensions and be able to draw meaningful conclusions that enable action.

PROS OF GLOBALISATION OF LEGAL EDUCATION

1) One of the greatest merits of globalization is the connection or inter exchange between various countries in the world for legal administration policies, economic policies, trade, commerce, cultural and other social aspects pertaining to a nation that provides international security and solidarity to the citizens. Through the globalisation in the legal field particularly in the legal education, different legal systems and frame works of other countries in the world were introduced to the Indian legal system. It provides flexibility that ensures liberty, equality and fraternity to all citizens of India, ensured by the Constitution of India imparting justice through criminal and civil laws .

2) Global education becomes extremely necessary because of the awareness to international laws, now that all big MNC’S and famous Indian law firms opening their branches aboard are flourishing in India and outside, global knowledge of as become a survival necessity, without global laws, these big MNC’S and companies will never be able to solve the legal issues as they are not restricted to just Indian laws and Jurisdiction.

3) CONS OF GLOBALISATION OF LEGAL EDUCATION
As there are many advantages of a global education, there are many flaws too:

1) Global education is a very new kind of a concept which has come along in a last few decades, therefore awareness is still a lot less and there are very few who can possess an all-round education in all kinds of law in and outside of this country .

2) Global education is very expensive, take Jindal global law school as an example, it is a completely global law school, Professors and teachers are from all over the world who come here to teach, but simultaneously for this kind of an education a lot of capital should be involved.

3) Simultaneously I feel with the haze of Global education, local laws and Indian legal laws might lose its own traditional touch and everything can simultaneously just be adopted instead of our traditional approach.

CONCLUSION

The legal education for at the law schools should be streamlined from the conventional to the contemporary needs of the legal profession. The quality of education has a direct impact on the prestige of the Legal Profession. We must, therefore, identify the areas of weakness and initiate progressive methods to fill the gaps.
A concerted action on the part of bar, the Bench and the law teachers is called for to improve and take standards of Legal education and a set a new in the world. We must to equip ourselves better so that we will not only keep pace with the current developments but also meet the demands of the future .

Kumar, C. Raj (2013) “Legal Education: Globalization, and Institutional Excellence: Challenges for the Rule of Law and Access to Justice in India,” Indiana Journal of Global Legal Studies: Vol. 20: Is. 1, Article 8. Retrieved from: https://www.repository.law.indiana.edu/ijgls/vol20/iss1/8

V.S Deshpande, Nature of the Indian Legal System, retrieved from:

“… Because of social pressure, individualism is rejected by most people in favor of conformity. Thus the individual relies mainly upon the actions of others and neglects the meaning of his own personal life. Hence he sees his own life as meaningless and falls into the “existential vacuum” feeling inner void. Progressive automation causes increasing alcoholism, juvenile delinquency, and suicide…”- Viktor E. Frankl

Children have always been one of the most vulnerable sections of the society; as most of the offences are either committed against them or by them. In last 20 years the crime rate has increased at a very fast pace in India, and in order to control the same 2 major acts were enacted that specifically deal with offences by and against Children. The Juvenile Justice (Care and Protection of Children) Act, 2000 was initially enacted and was subsequently replaced by The Juvenile Justice (Care and Protection of Children) Act, 2015, which specifically deals with the offences/delinquent behaviour by the Juveniles, whereas another Act i.e. the Protection of Children from Sexual Offences (POCSO) Act, 2012 was enacted to protect Children from various sexual offences and safeguarding their interest. A Juvenile as per the Act of 2015, is a child below the age of 18 years. A Juvenile can be categorised into 2 categories in terms of the Act of 2015;

1. A CHILD IN CONFLICT WITH LAW: It means a child who is alleged or found to have committed an offence and who has not completed eighteen years of age on the date of commission of such offence; [Defined-Section 2(13)]

2. A CHILD IN NEED OF CARE AND PROTECTION: It means a child who is found without a home or a guardian or is a surrendered or abandoned child who has a very high chance of being exploited. [Defined- Section 2(14)]

The Act of 2000 clearly stated that a child below the age of 18 cannot be tried and treated as an adult accused, but an incident in 2012 shook the entire nation, when a girl was gang raped and brutally murdered by 6 men on a moving bus, which is infamously called as the 2012 Delhi Gang Rape and Murder Case, wherein one of the accused was a minor. Debates were sparked all over the country regarding the juvenile, as to whether he should be made equally liable and treated as an adult or should be tried like a juvenile in terms of the Act of 2000, as in terms of the Act of 2000, a person below the age of 18 years (Juvenile) could not be tried as an adult. The accused being a little less than 18 years of age got the benefit and was released in the year 2015, whereas the other 4 living accused were sentenced to death. Due to this incident the Juvenile Justice (Care and Protection of Children) amendment bill was passed in 2015, wherein in case of heinous offences the age bracket reduced i.e. if a juvenile being between the age of 16-18 commits a heinous offence, the board (Juvenile Justice Board) shall conduct a preliminary assessment with regard to the mental capacity of the child and ascertain whether the juvenile committed the offence with an intent of a child or was capable of understanding the consequences and committed the offence like an adult. This very change in the law paved a way for both increase and decrease in the crimes committed by the Juveniles. Punishing a juvenile like an adult can lead to very far-fetched consequences.

Consequences: The pros- If a juvenile between the age group of 16-18 years is treated and tried like an adult the crime rate would fall as they no longer can evade the punishment if they commit a heinous offence. In the 2012 Delhi Gang Rape and Murder case the juvenile accused got scot free due to the fact that his age was a little less than 18 years despite the accused being totally aware of the act he was committing and its consequences. The law was amended keeping in mind such a situation, so as to avoid such an escape by another accused which happened in the 2012 Delhi Gang Rape and Murder case.

The cons- The law was amended in 2015 so as to cover the existing loopholes but at the same time started another debate regarding the conditions/situations which a juvenile between 16-18 years would face if tried like an adult. Juveniles confined in jails and prisons face serious threats to their health and well-being as they face a high risk of physical and sexual abuse from other inmates, and such an abuse may have long-term consequences on the mental and physical health of the juveniles. Being confined with adult inmates, their development and chances for reformation is minimised and they become vulnerable to criminal socialization.

The law was amended keeping in mind the situation but at the same time the threat of the juveniles being scarred for life with no scope of reformation will further create a situation which will create a bigger threat to the society. The very question as to whether the juveniles should be treated at par with the adult offenders is a question which cannot be answered in a yes or no as the consequences of either are detrimental to the interest of the society in general.

What are the steps that can be taken to minimise the plight of the juveniles and at the same time what can be done to punish them for the offence(s) committed? This very question is very difficult to answer as there is no optimum solution wherein both can be controlled at the same time; the question now is that what a country like India would choose in order to safeguard the interest of the juvenile. As of now, in terms of the Act of 2015, in wake of the 2012 incident, the juveniles between the age of 16-18 years committing heinous offence are to be tried as adults (subject to the preliminary assessment) and the consequences of this change cannot be ascertained at this point of time; only time will decide whether the decision taken by the legislature served the purpose or created a bigger threat to the society.