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Tuesday, March 31, 2020

North And South

Title: North and South
Author: Elizabeth Gaskell

Margaret Hale, eighteen, lives in London with her cousin Edith and her affluent Aunt Shaw for over 10 years. And, when Edith marries Captain Lennox, Margaret happily returns to the southern village of Helstone, which she had been missing for quite a while during her stay in London. Margaret refuses an offer of proposal of marriage by the Captain's brother, Henry, training underway to become a barrister. Her life is taken around on an unexpected spin when her pious father, the local pastor, leaves the Church of England and the rectory of Helstone involving certain issues, as a matter of conscience. Father and daughter leave the comfort of their village, and shift into a town in Milton-Northern. 

The story follows Margaret as she gets involved with the brash life of the industrial society of the town, and how her abject dismissal of the town turns to a growing fondness for it over the eighteen months that she stays in the town. Love and life hits a young, determined and happy Margaret as she involves herself with the hard-working but poverty stricken people of the town. 

This classic has one of the strongest leads that I have ever read. First published in 1854, Elizabeth Gaskell's Margaret is an example of the then emerging modern day woman, who is solid in her opinions and intuitions, and puts a strong foot forward to lead others. Gaskell neatly ties up all the confronting themes of her society, and deals with modernity, tradition, rebellion, authority, love and hope with elegance.

I am fan of classic fiction. And, this one is an invaluable addition to my wonderful library of classics. It proves to us that strength, be it in a woman or a man, is not a new concept, and in fact is age old and gold! I am forever amazed by these wonderful authors who could portray a storm of a character like Margaret in this book, and Daisy Miller in Daisy Miller by Henry James. Books like these undeniably draw me closer to devour classic fiction. 

I loved North and South, and so will you! 

Monday, March 30, 2020

Catching A Vibe

Music is something that I have been introduced to very young. My mom loves listening to Carnatic music, a classical South-Indian genre, and she watches a lot of concerts, they are called 'katcheri'. I learnt South Indian Carnatic music for a long time during my schooldays from a professional classical Carnatic music guru. Being in Chennai, music is found everywhere in the December 'margazhi utsavam season'. Almost in every household, the kids learnt, when I was in school, classical music in some form- either vocal or instrumental. Our own school had two dedicated periods for music- one traditional and the other western, where we learnt a mix of swaras and jingles- all in the same spirit!

However, apart from the jingles that I learnt in school, and the trendy scores, I never had the opportunity, nor bothered to explore other genres of music. Words like poprockjazz, rap were just words to me, really, and I didn't have a great sense about them. But, college opened up a lot of new music to me. Initially (and still actually, haha), I shied away from conversations about music because of the worry that I didn't really know much about it. And then slowly, I started looking at it the other way: I don't know anything is the best place to start a conversation from! And wham-bham: my friends were always asking me to check out this and that, and they were constantly sending me song suggestions. I kind of got into a groove about it. 

Over the semesters (since I've come to identify time in the scale of semesters like any college student), I have explored quite a bit, and I have to admit I found out ones that clearly weren't favourites, and then ones that I really loved.

There are so, so many songs that I listened to and liked over the semesters, but here are five songs which are special to me because a) I loved them, and b) they actually opened me up to other songs and music. Note, there is no order of preference. 

1. Someone New - Hozier : Have to give Hozier the first place. A dear friend made me listen to Someone New as we were walking through our University campus, and that's the story of how I met Hozier without even knowing what I was listening to. It kept playing in my head so often, I was compelled to go back and ask from her what song it was. And from there, I started listening to most of his songs.

2. Wake Me Up Before You Go-Go - Wham! : Can't say no to 80s pop.

3. Bennie and the Jets - Elton John : Looks like can't say no to 70s either.

4. B-A-B-Y - Carla Thomas : When I saw Baby Driver, apart from all the car stunts that left me glued to the screen, this was the one song I wanted to go back and check out again. And then, before I knew it I was listening to it on repeat.

5. Taro - Alt-J : This was one song that I stumbled upon on someone's suggestion (I think), and I actually never forget who told me about a song. But, this one here is an exception. I absolutely love it, but can't remember who told me about it. Maybe, no one did and I just stumbled upon it myself. 

6. Dancing Queen - ABBA : Like I already told you, we don't listen to English songs much at home. But, my dad pulled out a list of ABBA songs from one of his friends once, and Dancing Queen just came right to my heart. Loved it then, and love it now. 

7. 24K Magic - Bruno Mars : This was the first Bruno Mars song I ever heard. And, we all got to accept, it does make us dance!

8. Come Together - The Beatles :  This was something I listened to for the first time while cleaning up my room, when my Spotify artist radio just played it. I didn't even know it was by the Beatles! But, the song caught on to me and I went back and checked it out, and since then it has always been in the playlist!

Oops, I said 5 songs but looks like I have a lot of special ones! This is obviously a list I can keep adding to. But, just like I wrap up my research papers in college: the list is beyond the scope of this blog post!

Which songs are special to you? Would you like to add a suggestion, or two? Let me know in the comments!

Sunday, March 29, 2020

What Is A Valid Agreement?

To begin understanding the concept and validity of an agreement, the baseline requirement is to fully understand the essence of the definition of this term. Agreement is defined as “a negotiated and typically legally binding arrangement between parties as to a course of action” in the Oxford Dictionary. 

Section 2(e) of the Indian Contract Act, 1872, defines agreement as thus: “Every promise and every set of promises, forming the consideration for each other, is an agreement”

According to Black’s Law Dictionary, the term “agreement” has been expounded as the following:

“A concord of understanding and intention, between two or more parties, with respect to the effect upon their relative rights and duties, of certain past or future facts or performances. The act of two or more persons, who unite in expressing a mutual and common purpose, with the view of altering their rights and obligations. A coming together of parties in opinion or determination; the union of two or more minds in a thing done or to be done; a mutual assent to do a thing. Agreements are of the following several descriptions, viz.: Conditional agreements, the operation and effect of which depend upon the existence of a supposed state of facts, or the performance of a condition, or the happening of a contingency. Executed agreements, which have reference to past events, or which are at once closed and where nothing further remains to be done by the parties. Executory agreements are such as are to be performed in the future. They are commonly preliminary to other more formal or important contracts or deeds, and are usually evidenced by memoranda, parol promises, etc. Express agreements are those in which the terms and stipulations are specifically declared and avowed by the parties at the time of making the agreement.”

I am not sure whether all of you read that or skipped it, so here's a summary of what an agreement is:
it is the result of proposal from one side and its acceptance by the other. 

Since a “valid agreement”, that is enforceable by law, is the basis for any contract, it is pertinent to look into the components or the elements that validate an agreement and make it possible to make it a contract enforceable by law. 

Section 10 of the Indian Contract Act, 1872, lays down the key points that make an agreement valid and enforceable as a contract in the eyes of law. The main validating features in an agreement, that can be understood through Section 10 of the Indian Contract Act, 1872, are the following: 
1. free consent of all parties entering into the contract
2. competency of all the parties entering into the contract
3. a valid consideration
4. a valid object
5. consensus ad idem or meeting of minds of all the parties entering into a contract
6. the act not being expressly declared to be void
Any agreement that we make that do not satisfy these criteria cannot be a valid agreement in the eyes of law. And, these are just the most basic and sine qua non of any valid agreement. Sometimes, an agreement that fulfills all of the criteria under Section 10 may need something more to make it valid in the eyes of law. 

For example, any agreement and contract for the transfer of a piece of land, or any other immovable property is to be registered compulsorily. A contract that does so without registration is invalid in the eyes of law even if it fully complies with Section 10.

So, we come back to the question: what is a valid agreement?

A valid agreement is one that
a. complies with Section 10 of the Indian Contract Act
b. complies with all mandatory requirements attached to the nature of the contractual agreement under any Indian Law
Fun question: Doesn't consensus ad idem remind you of 'A Horse and Two Goats' by R K Narayan? Or, is it just me every time I hear it?

Saturday, March 28, 2020

Termination On Grounds Of Non-Performance

You are a huge company. Mr. A has been working for you since the early years of the Company, and is one of the most honest, trustworthy employees, and he used to be hard working. But now, Mr. A is under-performing, and not an asset to the Company. He hasn't done anything wrong to the Company. No fraud, no gimmicks. Can you fire him because he didn't perform?

Termination of non-workmen category of employees who are working in a shop or commercial establishment are broadly governed by the provisions of Shops & Establishments Act being applicable to the respective employee. 

In a Mondaq article on the subject, under TN Shops & Establishments Act,

"an employee is entitled to notice of one month or wages in lieu of notice if the employer wishes to dispense with the services of that employee except in case of misconduct. Where an employee's services are terminated on account of misconduct, an employee is not entitled to any notice or payment in lieu thereof. Generally, the said enactments define misconduct to include acts of theft, fraud, misappropriation or dishonesty in connection with the employer's business or property. The scope of the said definition has however not been extended to capture the circumstance of inefficiency or unsatisfactory performance by the employee." 

The Madras High Court dealt with the issue of whether the notice period requirement is manadatory or not in the event of termination on the grounds of inefficiencyin the case of Miss T.N. Chandra v. South India Corp (Agencies) Ltd. and another. The Hon'ble Supreme Court in this case held that an employee cannot be thrown out of job on the ground of "extremely unsatisfactory conduct" if the procedure established by law is not followed and if the employee is not put to notice.

“Section 41(1) of the Act is both prohibitory and mandatory and it stipulates in categorical terms that no employer shall dispense with the services of a person employed continuously for a period of not less than six months, except for— 
(a) a reasonable cause; and 
(b) without giving such person at least one month's notice or wages in lieu of such notice."

Therefore, notice period is a pre-requisite for terminating an employee, even including the cases of termination due to of inefficiency or unsatisfactory performance.

In the year 1983, in Karnataka State Road Transport Corporation v. M. Management, the issue came before the Supreme Court , in which it was held that termination of employee on the ground of services not found satisfactory falls within the framework of retrenchment.

In Punjab Land Development and Reclamation Corporation v. The Presiding Officer, Labour Court, Chandigarh, a full bench held that the phrase "for any reason whatsoever" needs to be interpreted and understood in a much wider and literal sense. Accordingly, the term "retrenchment" was eventually considered to mean the termination by the employer of a worker's services for any cause whatsoever, without restricting the retrenchment criterion to the extent of the superfluity of a worker or employee, except for those expressly excluded from the concept.

It falls under retrenchment. However, courts have also discouraged firing employees solely on the basis of under performance. They have made mandatory the following of due procedure, and have tried to shift weight on the company to discourage the practice in a mass scale. 

Answer: Therefore, Mr. A can be fired. You have to give him exact notice of how he under performed, and also satisfy the court. 

Friday, March 27, 2020

Give Yourself Goosebumps

Series: Goosebumps
Author: R. L. Stine

R. L. Stine was a great children's author. He knew exactly what his target readers wanted, and we got it. 

This is not a book review. This is just a reminiscent piece about a book that dominated a lot of my childhood reading in school. I was never a fan of Goosebumps for a long time. What was supposed to be a children's horror story in the series, was at the most just disgusting, not at all one bit scary. But, the boys in my class loved it. There was set in my class that looked down upon the people who read Famous Five instead of Goosebumps (Blyton is better any day, duh, come on, whom were they kidding)! But, Goosebumps was one of the first books that I came across where you could maneuver the story. Yes, nothing but the famous Give Yourself Goosebumps series. 

I came across an article on Brainpickings that reminded me of this, and hence the post. Have to admit, I enjoyed the Give Yourself Goosebumps series like no other. We would try and take the stories as dangerously as possible, and try not to get killed in the end. They were called game books. Sitting there, and making that choice at the bottom of the page as to which page to proceed next, I swear we felt like we were making a top secretive, important billion-dollar decision that the world depended on. 

Goosebumps was a weird series. But the Give Yourself Goosebumps series was plain fun. I rarely came across other books that incorporated such a style. It was new, fun and different. 

Also, thinking back now, that must have been one nice challenge to write a book like. Where any page that your reader chose across the book, they had a logical flow and conclusion. If I attempted something of the sort, it would be ambitious. R. L. Stine was a great children's author. He knew exactly what his target readers wanted, and we got it. 

Rushing through those corridors leading to the library to grab the most wanted Give Yourself Goosebumps series book is still a fond memory!

Thursday, March 26, 2020

We Need Rights, And We Need A Procedure To Get Our Rights In Case Of Violations

Law has two aspects: a procedural part, and a substantive part. 

According to Albert Kocourek, a well known jurist, the pairs of terms, Substantive Law and Procedural Law, and Substance and Procedure, are not synonymous. The first pair of terms is useful in a classification of the law, while the second pair of terms is limited to a determination of the rights of the parties, in litigation.

In his paper, Prof. Kocourek concludes that there is a clear logical distinction between "substance" and "procedure". There is no intermediate zone which affects the conceptual clarity of either of the terms, or the line of distinction between them. In the administration of justice in courts, this clarity was sometimes difficult. Also, historically it may have emerged as a generalization of practical experience, but in the background of human experience and cerebration, like other valid logical categories, it remains wholly independent of experience or application. English and American courts have, in the main, applied the distinction with remarkable logical consistency.

In Gacek vs. American Airlines, the judgement reads thus:
"A substantive law is one motivated by a desire to influence conduct outside the litigation process, such as a desire to deter accidents, while a procedural law is one motivated by a desire to reduce the cost or increase the accuracy of the litigation process, regardless of the substantive basis of the particular litigation." 
Substantive and procedural aspects both go hand in hand in law. Without one, the other would be meaningless and cannot be claimed or enforced. As much as it is a necessity to strengthen substantive laws that give the rights and obligations, equally important is the necessity to have a feasible and foolproof procedural law that can ensure such rights. For example, during an empirical study conducted by me and my friends for a Criminal Law project, we found that the gross under-reporting of cases are directly connected with the long and faulty loopholes in the procedural law for crimes for certain natures. Even though there is a substantive right and remedy available, they are not attainable due to the procedural lapses.

And, therefore, I conclude, that it is important to remember again that law has two aspects, and one cannot do without the other.

Wednesday, March 25, 2020

Unconscionability In Contracts

Unconscionability can be seen as the use of context, not to interpret the promise, but to decide whether the promise should be enforceable. It is generally considered the buyer's responsibility or the responsibility of the person who carries out the contract to fully understand the terms of the contract (caveat emptor). But, according to Walker-Thomas II (US Case), "When a party of little bargaining power, and hence little real choice, signs a commercially unreasonable contract with little or no knowledge of its terms, it is hardly likely that consent was ever given to all the terms."

Unconscionable contracts are structured in such a way as to benefit one party and to place harsh, unfair, unreasonable conditions on the other. The unconscionable contract is one which is so gross and unfair in the light of the time and place, and the market standards that it can not be implemented. The unconscionability doctrine enables the court to interfere in the parties' contractual arrangements and change such agreements.

The 199th Law Commission report talks about two kinds of unconscionability in contracts:
1. Procedural Unconscionability: A contract or a term is procedurally unfair if it has resulted in an unjust advantage or unjust disadvantage to one party on account of the conduct of the other party or the 5 manner in which or the circumstances under which the contract has been entered into or the term thereof has been arrived at by the parties. (Recommendation of Law Commission of India, 199th Report)  
2. Substantive Unconscionability A contract or a term thereof shall be treated as unfair if the contract or terms thereof are by themselves harsh, oppressive or unconscionable. If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result. (Recommendation of Law Commission of India, 199th Report)
In several cases, where the transactions are absolutely unconscionable, Indian courts have stringently come out with a firm hand to annul such transactions. For example, consider a situation when one party is in an extremely powerful and controlling position, and the other is a very weak party, for a consideration that is manifestly poor and grossly insufficient. If they enter into an arrangement to transfer a land in a way that even a common man would not hesitate for a moment to comment that the weaker party has been fully duped, then the unconscionability rule has been used by the courts to ensure that the strong party is not permitted to push the weaker party to the ground.

Unconscionability is a valuable and necessary defense for smaller groups of businesses/producers, especially when they are entering into contracts with huge companies. I have personally come across a case of a small client overridden by a big company, that I worked on closely in my previous internship, and the unconscionability of their contractual clauses was one of the key pleas that the firm placed on behalf of the client.

Sunday, March 22, 2020

What To Read: At A Time Of "Social Distancing Due To Virus"

COVID-19, for familiarly known by all as Coronavirus, has pushed us all into our homes and now is not the time to step back out. Probably (or, definitely?) not for a couple of weeks at least. You can't have one single activity to do, that is going to bore you out. So, may be it's time we shake things up, mix things up, and keep ourselves and others entertained. 

One, of them can be to read books.Read books. Oops, I am biased on this one. Finally, we have the time to tick that un-ticked bucket list of pending books. If you're not a reader, this social distancing exercise may just push you to the edge of boredom, and you might just have to grab a book to make sure you don't fall. So, check out and pick one that seems interesting to you. And, what are you waiting for? Give yourself an unputdownable ride.

Maybe, at times like these, you'd want to check out the adrenaline pumping rides with Jack Stapleton in Robin Cook's Contagion? Or, how about you give company to Brian as he wades through life for 53 days in a forest by himself in Gary Paulsen's Hatchet? Also, check out other titles by Cook, that'll give you all the medical thrillers you need.

If you want to binge some good, unputdownable series this couple of weeks, check these out: Ender's Game by Orson Scott Card, Foundation Saga by Issac Assimov, Ponniyin Selvan by Kalki. R. Krishnamoorthy (English translations), Inkheart trilogy by Cornelia Funke, Lord of The Rings by Tolkien, A Wrinkle In Time by Madeleine L' Engle, and check out my blog Index for more.

And hey, I gave you a few examples assuming you have read Harry Potter, Hobbit, Chronicles of Narnia and the rest! If not, finish them off this break before they pile up more work on you!

If you want some cool animated films, I have a list under the movies tab!

Stay indoors, chill at home, try out things you've always wanted to try out, read and write (a lot), finish writing a book, or making a music album maybe, but don't go out! Social distancing is important, and it is not without reason that the greatest doctors from all over the world urge you to stay at home! 

Stay safe, and keep yourself engaged!

Saturday, March 21, 2020

Fahrenheit 451

Title: Fahrenheit 451
Author: Ray Bradbury

In a dystopian future American society where books are banned, Guy Montag works as a fireman, whose job is to burn down the books when there is an alarm intimation that somebody possesses copies of outlawed books. In this dystopian culture, people do not read books, do not enjoy nature, do not spend time alone, and don't think individually or have meaningful conversations. Instead, they drive really fast, watch large quantities of television on wall-sized sets, and listen to the radio on "Seashell Radio" sets that are hooked to their ears. It is also a time of impending war on the society, and destruction.

Montag's views about his job is in for a change when he unintentionally strikes a conversation with his seventeen year old neighbour Clarisse McClellan, who pushes him to question his own idea of happiness, and whether books and their perceptions really warrant burning. A series of troubling events further make Guy Montag resolute about the goodness of books. His wife attempts suicide after constant TV watching. Clarisse dies in a car accident. And, when the alarm blares for the firemen to burn down the stocks of books with an old lady, Montag is assigned the duty. He reaches the old lady's house to find out that she has an old, secret collection of literature. The old lady asks Montag to burn her also along with her books, in a teary-eyed hopeless state. Montag exits the house without burning.

The rest of the story follows Montag as he rebels against the senseless laws, gets into a habit of reading secretively until the day his own wife betrays him and sounds the alarm of books at home. After an adventure of hide and seek with the police officers that come to arrest him, Guy Montag meets a group of people who read and memorize the literature in the hope that they can reprint them in circulation some day. A war plane drops bombs recklessly across the city, and it brings the city down to shambles. Guy Montag and his group set out to look for survivors, and build a civilization where there will be books again.

It is an extremely weird, dystopian novel. But I really liked it. The pace of the story, and the sequence hooks you to it. If you are wondering why were even books banned in the first place, a monologue by Guy Montag's boss in the fire department, somewhere in the middle of the book, gives you a background to the main story line.  

The book stresses on the monotony induced by constant TV, and how they dumb down our brains. Ray Bradbury's other short sci-fi stories also promote the ideas of enjoying nature, thinking deeply, reading books, connecting with people, and being the social beings that humans are even in the world of technology. Even though the book is set in a highly dystopian and fictional society, somewhere we feel that it is that much closer to reality that it would have been 20 years ago!

It was a good read. I really liked it!

Friday, March 20, 2020

One L: The Turbulent True Story of a First Year at Harvard Law School

Title: One L: The Turbulent True Story of a First Year at Harvard Law School
Author: Scott Turow

Do you, or did you, ever feel, "I am a law student in my first year at the law, and there are many moments when I am simply a mess"? Pick up this amazing book of experience by a "1L" in the first year of HLS (Harvard Law School), and every line would be something that you would relate to at a very personal level. When I opened the book, and I saw the first line, my brain went: woah, this has happened to me! And, I quoted the book on twitter and put up how I relate to it. And, then I read the next line, and the next, and the next, till the very last line of the book, and there wasn't a dull moment as I went on a surprisingly funny and relatable ride of reliving through the anguish, nervousness, excitement and the free-falling fear of a first year at law school.

Written beautifully, and honestly, Scott Turow captures the small things that dominate through your law school experience as he joins as a married 26 year old in HLS: the nervousness of being called by the professor to answer a question, the gross inadequacy of confidence to answer even when you have a well-rounded knowledge and reading about the subject, the struggle of making notes, and the conflict between referring voluminous works of authorities and the summarized guide/help-book versions that seem doable one day before the examinations, the change every student undergoes as a person, and the shift of perspectives as we learn the law.

Some of our professors themselves have written books on the subject they teach, and I have personally had such experiences, and we tend to read from their own books for their subject because as the book aptly captures it:
“Two buddies of mine say that the dude’s whole course is in there.”
Till our schooldays, we were the topper of the class: our ego boosted. And, when we enter law school, we are humbled to realize that almost every single other person is probably better than us, has a different perspective, and though it is hard to struggle with the hit on our ego, it's best to learn and move ahead! An excerpt from the book beautifully captures the feeling.
"All your life you’ve been good in school. All your life it’s been something you could count on. You know that it’s a privilege to be here. You’ve studied hours on a case that is a half page long. You couldn’t understand most of what you read at first, but you have turned the passage inside out, drawn diagrams, written briefs. You could not be more prepared. And when you get to class that demigod who knows all the answers finds another student to say things you never could have. Clearer statements, more precise. And worse—far worse—notions, concepts, whole constellations of ideas that never turned inside your head."
Unlike other courses of study, law is difficult not only because of its volume and concepts, but because of its indefinite derived terms and maxims from French and Latin, and also the never ending set of jargons. On top of this, the judgments are the least easy to read. A lot of days, during my internships, I have personally struggled with the long-winding, meandering sentences that conjunct multiple concepts in a single line, even though I consider my English and comprehension skills pretty decent.
"In reading cases, I soon discovered that most judges and lawyers did not like to sound like ordinary people. Few said “I.” Most did not write in simple declarative sentences. They wanted their opinions to seem the work of the law, rather than of any individual. To make their writing less personal and more impressive, they resorted to all kinds of devices, “whences” and “heretofores,” roundabout phrasings, sentences of interminable length."
Examinations are a big deal in law school. Concepts thorough, you feel so? Try giving the paper. Your preparations are, more often than not, reduced to nothing. The exams not only test what you have learnt, but some papers of some professors are impossible to answer unless you have internalized the concept to an extent you are prepared to answer any such far fetched application in less than half an hour. Scott Turow captures its essence aptly as he describes how cheated he felt after his exams, where his elaborate daily preparation for classes had not been worthwhile, and the fine analysis of every case were not merely irrelevant to the exams, but had also proved to be beyond the grasp of his memory.

I loved the book to its every word. It's a must read for every law student. I enjoyed the book so much, and there was so much truth in it. I just shared a few excerpts here, and I had my friends already texting me after looking at the tweet quotes that they wanted to read it!

It is a wonderful, honest book, and Turow has absolutely and aptly captured the experiences of every law student. Thank you Turow for this amazing book!

Here's one more excerpt from the book that I really, really loved (and, it is so true, hahaha):

Thursday, March 19, 2020

Calabresi's 2-by-2 Box: On Property and Liability

Damages in contracts, and how it is calculated, can be interestingly explained by Calabresi's 2-by-2 box. His 2-by-2 chart is based on the property, liability and inalienability. 
Initial EntitlementInjunction / Property RuleDamages / Liability Rule
ResidentRule 1: Court issues an injunction against PolluterRule 2: Court finds a nuisance but permits pollution to continue if the Polluter chooses to pay damages
PolluterRule 3: Court finds the pollution not to be a nuisance and permits the Polluter to continue without paying damagesRule 4: Court permits Polluter to continue unless Resident chooses to pay Polluter damages in order to enjoin further pollution

In the Common Law of Contract, there are 3 ways to calculate damages.

1. Expectation Damages meaning that the damages will be equal to that value "as good as if contract has been performed".
2. Reliance Damages meaning that the damages will be equal to that value "as good as if no contract was made". 
3. Restitution Damages meaning that the damages will be equal to that value where "breach party would be as good as if no contract was made".

How do we say that these three rules derive and fit under Calabresi's 2-by-2 box? Let's redraw the box with the titles specific to contractual damages.
Initial EntitlementInjunction / Property RuleDamages / Liability Rule
PlaintiffCourt issues an injunction against Defendant. This means that the damages will be equal to that value "as good as if contract has been performed". Expectation Damages.Court finds a nuisance but permits it to continue if the Defendant chooses to pay damages. Here, the damages will be equal to that value "as good as if no contract was made". Reliance Damages.
DefendantCourt finds the it not to be a nuisance and permits the defendant to continue without paying damages. This is not possible. Court will not allow the Defendant to get away, and therefore this box is empty with respect to contractual damages.Court permits Defendant to continue unless Plaintiff chooses to pay Defendant damages in order to enjoin further nuisance. Here, the damages will be equal to that value where "breach party would be as good as if no contract was made". Restitution Damages.
Contract Law is one of the most basic, and most interesting subject! Hope you had some fun with the 2-by-2 rule. And, I think, this rule and logic can be fit in a lot more situations apart from law!  Where the claimant/plaintiff needs the property back, it would be futile to claim reliance damages, and expectation damages may be better. Therefore, understanding the rule and logic behind the types of damages can be useful while claiming for them. Not every type fits the needs of the claimant.

Wednesday, March 18, 2020

Normative, Positive, Others: In The Analysis Of Law

Dear Friends (studying law),

The normative or what ought to be, and the positive or what is, are two schools of analysis and research that are parallel, and yet so often crisscross each other. As Oliver Wendell Holmes Jr. puts it: "the life of the law has not been logic: it has been experience".

Evaluating and finding a legal scholarship to be interesting can be based on many criteria of which normative clarity is one. The other criteria are persuasiveness of arguments in a argumentative scholarship, significance determined by the work’s relationship with the recent developments in the field of law, and the applicability of the work to present day situation as knowledge without applicability is meaningless.

Normative scholarships are just one type of model. The other interesting types are doctrinal, analytical and critical, realistic and interpretative models which may or may not be merged with normative premises.

One of the other factors that makes a legal scholarship very interesting is well formulated arguments. These not only can provide convincing ways to apply the initial premise, but also can lend plausibility to the normative premise.

No one factor is solely responsible for the determination of the importance, or the interesting nature of a work of scholarship. For example, Guido Calabresi’s ‘A Common Law For The Age Of Statutes’ is a very important landmark work in the field of legal scholarships but it lacks in the tone of persuasiveness.

Since, law was, is and will always be a “practice” rather than just a theoretical field, it makes a work highly interesting when it produced not only a normative hypothesis but also a descriptive or expressive argument facilitating it to have a practical base.

It is true that all interesting legal scholarship engages normative questions, but that definitely does not underplay the importance of other criteria that make a scholarship interesting, and serves the key purpose of value addition to both the subject and its practice. 

Written at a time of impending due of research paper submissions for this semester, 
Yours truly,
A fellow law student with an interest in legal research.

Tuesday, March 17, 2020

How Many Characters Should A Book Have?

Image from pexels
Have you ever read a book and thought- woah, woah so many characters! And, have you read a book and felt there are way to less characters? So, how many characters should a book have? There really is no answer. Here are two examples to understand.

HatchetGary Paulsen weaves for you a story that is bounty with adventure, thrill, and leaves you mindblown and spellbound. A city boy named Brain goes in a plane with a pilot. He is the only passenger in the plane. His plane crashes, and the pilot dies in a heart attack. He learns to survive alone by making fire, catching fish, building a home in the forest. After his 53rd day alone in the forest, he makes a hole in the plane which had crashed and takes out the survival bag from it. The same day he sees a plane land and come his rescue. But by then, he learns to live alone and save his life. That's it. Yeah, that's a full blown adventure with just one single, small kid as the only and main character. 

Bleak House. It is an elaborate, family drama involving around twenty main and impacting characters, and more than forty supporting characters, who also have a key role in how the story moves. 

This is just an example. There are other books, with a set of characters that is not unusually low or high. But, even though there is no definite rule to find how many characters a book should have, here are two rules that I follow as a general concept, more out of common sense than anything else, to guide me: 

1. Every character in the book must have a role in the story or the plot.  If you want to know what is the difference between them, and what they mean, check out my earlier post on a Screenplay and Story Ideas

2. Every character you introduce must have an ending. It is easy for writers to get lost in the story so much that they forget about certain characters that they introduced in the beginning. A simple way to look at this is run the book in your mind like a play. Every character who enters the stage needs an exit. They cannot be left standing without a purpose in the story. 

Depending on the timeline, tone, story, plot and scope of the novel, the number of characters that can satisfy these conditions vary. And, no number is too less or too much, as long as they have a purpose, and they have an ending in the story. 

Now, what if your whole purpose is to leave the character without an ending? That's creativity, too! No doubt. If your whole plan is to purposefully to leave a character hanging to let your readers take on it, that clearly doesn't violate the rule because that exactly is the purpose and the exit of the character. 

You can write a gigantic epic, or you can write a short story, but the same two rules apply with respect to characters for any form of storytelling. So, next time you read a book, why don't you observe if these rules play out! Are there any other visible patterns? Or, does some brilliant book break this pattern? It's all about creativity, and it's best when they keep evolving!

And, hey, have you ever read or heard the stories of the Indian epic Mahabharata? Finding out the number of characters, their role in the story, their entry and exit would be an interesting exercise! 

Monday, March 16, 2020

Regulation Of Seed Sale Price In Tamil Nadu

Tamil Nadu has a population of approximately 6.8 crores. Of the total population of Tamil Nadu, around 51.60% live in the villages. With more than half the inhabitants of the state living in a rural setup, it is logically inferred to any prudent mind how important the sphere of agricultural balance and prosperity is, knowing well that agriculture is the primary rural occupation, and is the backbone foundation of economic development in the rural areas.

When it has such stature and importance in the running of the lives of all, it is only natural that there is a genuine and considerable legislative effort to protect the occupation, and those primarily involved in it, from any gross and unconscionable injustice that would severely affect the flow of the occupation and hinder development.

In India, various laws exists to protect the rights and interests of the farmers, who are the primary subjects involved with agriculture. Some of the Acts and Rules include the following: Seed Act, Seed Rules & Amendments, Seed (Control) Order, New Policy on Seed Development Plants, Fruits and Seeds Order, Plant Quarantine Order, Protection of Plant Varieties and Farmers Rights Act, the Protection of Plant Varieties Rules, National Seed Policy, Seed Bill Regulatory measures specific to transgenic seeds, etc. These are primarily National legislations applicable to the whole of India, which intend to regulate and protect various aspects of this field such as quality, production, sale of agricultural products and necessities. It is pertinent to note that each state has their own commissions/rules/procedures, adhering and under these national frameworks, to suit the requirements and demands of their land.

Through careful, diligent and active steps, India has managed to become self-sufficient and has achieved the goal of food security. But, the state of farmers in India and their condition of poverty has neither improved nor shown any sign of progress. A shocking study published in The Tribune (updated as on 2017) reveals that every third farmer in India belongs to the Below Poverty Line (BPL) category. It is high time for us to stop a moment and reflect why and how, when the national food security has been achieved, the primary role players in the scene- the farmers- are left to be in still in the condemned state of extreme poverty. 

Therefore, it is to be kept in mind that the aim of the legislations are double-fold:

  1. to work towards achieving a goal in the line of progressive national interest,

  2. to work in the interest of the betterment and development of the primary stakeholders, the farmers (specifically small and marginal farmers). 

Seeing there is a clear lack of legislations to regulate the prices set by the private sector industries in the sphere of seed production and sale, there is very little scope for remedy through a judicial seeking. Therefore, to remedy the gross loopholes of the present situation, the best possible route would be to approach the Government for sensible regulations of the same. 

The Seeds Bill, 2004 which seeks to replace the Seeds Act, 1956, and to provide for regulating the quality of seeds for sale, import and export and to facilitate production and supply of seeds of quality and for matters connected therewith or incidental thereto, has still not been passed. 

PSCA has recommended setting up a statutory body for fixation of price of seed by incorporating appropriate provisions under Clauses 5, 11, 15, 22 and 25 of the Bill. 

Therefore, a plausible solution to this growing problem would be:

  1. To set a dynamic upper limit for the costs for the private sector seeds considering their gains from the patenting of hybrid varieties and appropriation of gains;

  2. To not allow arbitrary setting of prices that are unconscionably greater than the prudent market prices;

  3. To make provisions for a said legal authority to analyse technical developments by the private sector companies to the seeds, and supervise the price regime. It is to be noted that the what is advocated is not a complete and iron-hand control of the prices of the private sector that will work as disincentive to healthy competition, but only a prudent regulation with more than decent scope for their profits;

  4. To enhance the powers of the Seed Inspector to be able to check and report grossly high prices;

  5. To regulate the royalty fee in the cases of proprietary technologies and GM seeds, taking into consideration costs for R&D, etc.

These would not only work towards national interest of food production and security, but also the greater interest of the farmers who are the primary stakeholders. 

Thus, the balanced aims of the upcoming policies between these two will ensure a steady progress in not only in agricultural development, but also economic development and better human standards of living.

Sunday, March 15, 2020

Forensics In Arthashastra

My previous post on Forensic Science and Medico-Legal Jurisprudence, and how it reflects the practices of ancient times, was read and appended with a request to also give an example! So, here's a an example from the research I did in my college when I had the subject of Forensic Science.

Kautilya wrote the Arthashastra originally in Sanskrit. Later, it was translated to English by R. Shamasastry. Rudrapatna Shamasastry was a Sanskrit scholar and librarian at the Oriental Research Institute Mysore. He discovered and published the Arthashastra, an ancient Indian treatise on statecraft, economic policy, and military strategy. Thus, now we shall look at the provisions that Kautilya had provided, in the English translation for better understanding. 

The seventh chapter in the fourth book of the treatise of Arthashastra deals with the concept of Criminal Investigation. Arthashastra specifies in great detail the modus operandi of criminals and criminal intentions or motives. It states very clearly and simply the various inferences that has to be drawn from the minutest clues left behind by perpetrators. Even, discretionary details that may vary highly from case to case has been rigidly dealt with by Kautilya in his treatise. For example, whether a death due to hanging was homicidal or suicidal, and whether the injuries were self inflicted or otherwise, were mentioned by Kautilya in the Arthashastra. He did not leave anything to the discretion of the examining officer to seal justice for the victim. 

The first ten verses from this chapter of Arthashastra which deals with post mortem examination has been discussed below. Every point contains the original verse from the Arthashastra, the literal translation as provided by R. Shamasastry (in quotes and italics), and a small text from other supplementary readings from various sources that can help us understand the verse better.
1. “In cases of sudden death, the corpse shall be smeared over with oil and examined.”

It has been put down by Kautilya that it is required by the magistrate to conduct a post-mortem on any case of sudden or unnatural death after smearing the body with oil for the purpose of bringing out bruises, swellings and other injuries if any. 
2. “Any person whose corpse is tainted with mucus and urine, with organs inflated with wind, with hands and legs swollen, with eyes open, and with neck marked with ligatures may be regarded as having been killed by suffocation and suppression of breathing.”

The essential symptoms of death due to asphyxiation or suppression of breathing as put down by Kautilya are swollen hands, feet or abdomen, sunken eyes and inflated navel. These pointers help in identification of a special case of unnatural death due to restraint in breathing.
3. “Any person with contracted arms and thighs may be regarded as having been killed by hanging. Any dead person with swollen hands, legs and belly, with sunken eyes and inflated navel may be regarded as having been killed by hanging.”

The symptoms of death by hanging has been identified as urine and faeces being thrown out, the skin of the abdomen being inflated with wind, swollen hands and feet, eyes being open or sunken, marks visible on the throat, apart from contacted arms and thighs.
4. “Any dead person with stiffened rectum and eyes, with tongue bitten between the teeth, and with belly swollen, may be considered as having been killed by drowning.”

The symptoms are generally protruding eyes or anus, bitten tongue and swollen abdomen for death by drowning due to the osmotic pressure of water and turgidity of bodily cells due to osmosis.
5. “Any dead person, wetted with blood and with limb, wounded and broken, may be regarded as having been killed with sticks or ropes.”

Symptoms for death succumbed when beaten with sticks or ropes are fractured body parts, muscles in spasm, and body being covered in blood. 
6. “Any dead person with fractures and broken limbs, may be regarded as having been thrown down.”

The signs of death due to being hurled down from a height can be summed up as shattering of the bones of limbs and bursting of passage canals such as pharynx and oesophagus. 

7. “Any dead person with dark coloured hands, legs, teeth, and nails, with loose skin, hairs fallen, flesh reduced, and with face bedaubed with foam and saliva, may be regarded as having been poisoned.”

During the time of this treatise and the time that followed, apart from the above mentioned signs, the other signs that were considered as an essential pointer towards death by poisoning was drooling, excessive tearing, low blood pressure or hypotension, and loss of muscle control and muscle twitching. Even factors such as loss of eyesight or retinal malfunction was considered important evidences in post mortem forensics. 
8. “Any dead person of similar description with marks of a bleeding bite, may be considered as having been bitten by serpents and other poisonous creatures.”

The above mentioned symptoms along with signs that were considered for poisoning was duly looked for in cases of death by insect or snake bites also. 

9. “Any dead person, with body spread and dress thrown out after excessive vomiting and purging may be considered as having been killed by the administration of the juice of the madana plant.”
After the dealings of post mortem, Arthashastra also enlightens on the tests to be carried out to confirm or cross check the results obtained from the post mortem of the victim.

A portion of the translated version of Arthashastra by R. Shamasastry reads:
“Death due to any one of the above causes is, sometimes under the fear of punishment, made to appear as having been brought about by voluntary hanging, by causing marks of ligature round the neck.

In death due to poison, the undigested portion of meat may be examined in milk. Or the same extracted from the belly and thrown on fire may, if it makes ‘chitchita’ sound and assumes the rainbow colour, be declared as poisoned.

Or when the belly (hridayam) remains unburnt, although the rest of the body is reduced to ashes, the dead man's servants may be examined as to any violent and cruel treatments they may have received at the hands of the dead. Similarly such of the dead man's relatives as a person of miserable life, a woman with affections placed elsewhere or a relative defending some woman that has been deprived of her inheritance by the dead man may also be examined.

The same kind of examination shall be conducted concerning the hanging of the body of an already dead man.”
Therefore, there existed such methodical techniques through which the outcome of the post mortem test results could be verified with scientific and practical proof. There are many more such texts that talk about surgery, medicines, and other things- so, the scientific knowledge of the ancient times is still reflected in present day practices, though it may not be in the same form. 

Hope you enjoyed reading it!