Rules and Standards

Any point in any situation can be looked at from two different perspectives- one, rules, and two, standards. What is a rule? What is a standard? And, what is the difference?

Rule is any stringent condition on an aspect, while a standard is a highly loose-ended subjective treatment of the matter. Standards are fuzzier than rules. For example, to understand what these terms are and what their difference is, in a much easier way, consider that you need to sell something, and you have to set a price. To regulate the price at which you sell, and the price at which the customer buys, there can be two ways according to the above approaches. 

1. Sell it for Rs. 100. This is what a rule is. There is no power to work around in a rule, and it is very rigid. Such a concrete rule is not feasible in every situation.

2. Sell it at a reasonable price. This is a standard. In contrast to the rule above, the standard describes the price to be reasonable, and that clearly has a reasonably infinite interpretations to it. A standard also cannot be feasible in every situation. 

However, rules and standards in themselves might be polar opposites, but in real life, what we see in the world is a rule-standard continuum, with an optimum middle. Consider this: if instead of selling it for a rigid Rs. 100, or letting every boundary loose by terming it reasonable, what if you hit the middle ground and set the price as "market price of the day". This has both shades of rigidity and fluidity to it, thus making it more friendly for both the sellers and the customers. 

The above was just an example to understand the rule-standard continuum. This spectra of balancing rigidity and fluidity is extremely useful and important for all that we do in life, especially where administration is required. In my opinion, many issues arise due to a lack of balance of these interests on the rule-standard continuum, when one or the other party tries to tip the scale to its advantage.

Maybe, seeking this balance is what we should all look at!

The Devil's Advocate

Title: The Devil’s Advocate: A spry polemic on how to be seriously good in court

Author: Iain Morley

What does it take to argue a case in court? Is it a ‘born-talent’, or can it be learnt? Is studying the law, and knowing it, enough to win a case? Advocacy is an art, not science: says Iain Morley, and it is to be honed through practice of litigation, like a skill that one is passionate about, learning and bettering oneself with every case. 

“And by ‘practise’, with an ‘s’, I mean the verb for getting up and repeatedly doing a thing until you get good at it – note the different spelling from ‘practice’, with a ‘c’, which is the verb for carrying out a profession.” 

The book is called The Devil's Advocate because it may make you see advocacy from a new perspective. It makes you see what makes a difference in court, and what makes a difference in how you think while looking at a case. The book is majorly from the perspective of countries that follow an adversarial system of justice, like India. In such a system, the fight is about whether a set of proofs find a particular person as guilty or not guilty. Going to the bottom of the truth is not kept as the ultimate aim, and our courts only try to draw that much truth that they perceive from the available evidence. 

So, for an advocate in such a system it is all about the test of the evidence adduced and how to control the evidence that emerges in court, and not necessarily the truth. Perhaps it should not be like this, but in reality this is what happens. Therefore, advocacy in an adversarial system is all about using ‘persuasiveness’ to win within these rules. Somewhere inside us a voice might say: perhaps it shouldn't be. But it is. And, the advocate’s goal is to win.

"Every advocate is a salesperson, selling a client's story."

Iain Morley, very precisely and in a way that doesn’t exhaust you but still makes you think, has designed his book in small capsules of thought-provoking interpolations on truth, the psychology of the tribunal, the poise of an advocate, persuasiveness, questions in a case, witnesses, examinations and cross-examinations, the closing speech, and many other such key factors. The book seeks to make you think on those aspects rather than force any lesson on you. As Morley puts it:

“You won't agree with everything you read. Good. At least you are thinking. Thinking about advocacy. About what works and what does not. And why.”

It is a great book, and the best part is the format in which it takes you through the outlines of advocacy. The book recommends itself to any lawyer with 0-5 years of experience, and that’s why it’s a great book for law students-irrespective of whether you are considering litigation as a career or not. I think it’s one that stimulates a certain kind of thinking in the readers familiar with the law. 

I loved the book! I especially loved the chapters on persuasiveness and cross-examinations. And, I think I might go back to it at several points later, just to skim through and keep the ‘thinking’ alive!

Family Court Warning: High Charge Emotion(Melodrama?) Zone Ahead

I can write a huge article, or give it to you in one line: the first time I entered a family court, I felt like I was watching a Tamil serial. Melodrama, melodrama, melodrama. Don't mistake me, it is not a joke. The family court is either highly melodramatic or absolutely boring for me, from the few experiences that I have had as a student of law. But, it is a court that has been made specially to handle the families with a highly charged emotional atmosphere. Family Court is a very sensitive place, and is a fully powered emotional zone. This doesn't come across as surprising, because the matters are of a nature that is deeply connected to the individuals and their families involved in the case. Thanks to a litigation internship that I did with working advocates in the Madras High Court, I was sent to the family court on the very second day of my first ever proper legal internship. 

Section 7(1) and (2) of the Family Courts Act of 1984, describes the kind of disputes over which the family court has the jurisdiction. A family court shall be deemed to exercise the jurisdiction under such law, to be a district court or, as the case may be, any subordinate civil court in the area to which jurisdiction of family court extends.

The suits and proceedings referred in the above-mentioned section are of the following nature between the parties to the petition:

- a decree of nullity of marriage (declaring the marriage to be null and void) or restitution of conjugal rights, or judicial separation or dissolution of marriage.

- the validity of a marriage or the matrimonial status of the person

- the property of the parties or property of either of them.

- order or injunction in the situation arising out of a marital relationship.

- the declaration as to the legitimacy of any person.

- maintenance.

- guardianship of the person or the custody of, or access to the minor.

Cases in the family court involve subjects of high controversy to which usually there is no one right or wrong that can be pinpointed. It may involve mistakes from either one party or both, and the mistakes may be deliberate or unknowing. And, most of the times, there is a lot of fleeting statements by both parties, especially in cases revolving around marriage, and it is next to impossible to determine whether the party actually means it or whether it was said in an emotional fit. 

A good judgment is considered to be neutral, based solely on the facts and evidences available for a case, devoid of bias or emotions overclouding justice. However, cases deal with humans, and when humans are involved it is seldom without at least a tinge of emotion. 

The first time I went into the family court, a woman was crying, loudly, and arguing her case for maintenance by herself without allowing her lawyer to talk to the judge. The judge requested the woman several times to calm down and allow her lawyer to speak, but in vain. There were some in the court laughing at the woman, the lawyer was trying to pacify her and get her to allow him to speak, and the judge was getting irritated. I have never ever seen someone cry that loudly until that day, and she was correcting the judge also when he was trying to talk. The whole air was so charged with high drama that I had to get out for a fresh whiff of air. The case was adjourned to after lunch after a full 45 minutes of drama and overreaction by the woman, and I never went back there after lunch. 

And, a few other times when I had to go to the family court, I overheard conversations and saw scenes that sometimes came across as way too dramatic. But hey, it is not for nothing they have a separate Family Court! As much as you want to appreciate and not mock the sensitivity, sometimes the sequence of events and conversations at the family court can be too funny to not break into a slight amused smile. 

Don't you dare take it further than slight- not unless you want a menacing glare from the judge that can make you hear the words GET OUT without anyone saying it!

I am not a fan of the family court myself. I usually took the first opportunity to exit and visit other courtrooms during my internship. But, if you ever get an opportunity, take a sneak peek into the family court. Not for the drama, but let it teach you the infinite lacunae in the pace of the cases, the inevitable backlogging true to the saying 'justice delayed is justice denied', the huge amount of familial issues that come up every single day, and the sensitivity surrounding it!

I can guarantee you that the high charge atmosphere has very important lessons to teach!

In The Words Of Dickens: The Good Ships Law and Equity

Equity is one legal subject that is easy to study (also, difficult to score in). One week before our mid-semesters, after a preliminary session on bothering to glance through the roughly made notes of what the teacher had taught in the 20 hours of lectures, equity is one subject that you catch on with quickly. 

Equity is a wide concept without a specific boundary but guided by what are known as the maxims of equity. The maxims of equity are legal maxims which serve as a collection of general principles or laws which are said to regulate the way equity functions. By comparison to common law, they seek to highlight the virtues of equity as a more versatile, sensitive approach to the individual's needs, willing to take into account the actions and conduct of the parties. These concepts were evolved by the Chancery Courts in England. If you are interested to take a peek at how the Chancery Courts worked, you should check out Bleak House by Charles Dickens.

There are 12 maxims of equity, and when I list them out here you'd know why I said they were the easiest. 

1. Equity will not suffer a wrong without a remedy.
2. Equity follows the law.
3. Where there is equal equity, the law shall prevail.
4. Where the equities are equal, the first in time shall prevail.
5. He who seeks equity must do equity.
6. He who comes into equity must come with clean hands.
7. Delay defeats equities.
8. Equality is equity.
9. Equity looks to the intent rather than the form.
10. Equity looks on that as done which ought to be done.
11. Equity imputes an intention to fulfill an obligation.
12. Equity acts in personam.

Did any of that need explaining? I'm guessing, not at all. Equity was one subject that we learnt, and then could jokingly use those maxims in day to day life. They make so much sense, and they are something that every prudent man knows. To express in an oversimplified manner: while the common law sticks to the rigidity of the structural and procedural technicalities, equity stresses on what you could classify as using common sense to decide whether the actions of the parties were fair or not. 

In India, law is equity, and equity is law. They go hand in hand. We do not have separate courts of equity, neither do we have separate laws to govern equity. Our courts are in themselves believed to imbibe equity in the judgments, and our law is also considered to be equitable. 

Wouldn't it be an interesting pursuit to observe the actual implications of equity on a rigid law!

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?

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. 

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.

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.

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):

"Yes, there are achievements in the past. They’re nice to bandage up your wounded self-esteem.But “I graduated college magna cum laude” is not the proper answer when the professor has just posed a question and awaits your response with the 140 other persons in the class."-One L

— Sandhya Varadharajan (@sandhya_varadh) March 18, 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 Entitlement	Injunction / Property Rule	Damages / Liability Rule
Resident	Rule 1: Court issues an injunction against Polluter	Rule 2: Court finds a nuisance but permits pollution to continue if the Polluter chooses to pay damages
Polluter	Rule 3: Court finds the pollution not to be a nuisance and permits the Polluter to continue without paying damages	Rule 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 Entitlement	Injunction / Property Rule	Damages / Liability Rule
Plaintiff	Court 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.
Defendant	Court 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.

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.

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.

Forensic Science and Medico-Legal Jurisprudence: A Reflection Since Ancient Times

The use of forensic techniques has been existent throughout history to solve crimes, initiating from the early existence of man. Forensic Science was intact in its simplest forms and kept on expanding throughout the prehistoric era. Prehistoric forensics is also considered as the building blocks of modern forensic techniques. 

Alfred Swaine Taylor’s Principles and Practice of Medical Jurisprudence (1865) expounds the concept of Medical jurisprudence, and also forensic medicine, legal medicine or state medicine, as the science which teaches application of every branch of medical knowledge to the purpose of the law.

The term ‘forensics’ is derived from the Latin word forensis. Forensis essentially means ‘of the forum’, which in ancient sense referred to where civic and legal matters were up for discussion. Though the terms ‘medical jurisprudence’ and ‘forensic medicine’ have been used interchangeably by many at many different places, there is a thin line of differentiation that segregates one subject from the other. 

Medical Jurisprudence essentially refers to all those questions that affect the social right of individuals and brings the one who administers medical advice, the medical practitioner, in contact with law when there is a violation of right that the victim suffers. In simple terms, medical jurisprudence is the legal aspect of medical practice. Whereas, forensic medicine is the application of legal aspect of medical practice to given situations or circumstances. This thin line of difference is usually muddled up, when actually these terms are supposed to be used technically and in a highly discreet manner. 

Another important branch that comes under the wing of forensics and medical jurisprudence is toxicology. Toxicology is the study of symptoms, diagnosis and treatment of poisons, and methods of detecting them. 

Combining the understanding of these basic terms, the application of such technical knowledge can be seen through the ancient Indian medico-legal treatises and works that break down the essentials of these advanced sciences to the minute level.

Ancient India was one of the golden ages of scholarly developments. Various treatises, literature, textbooks and other scholarly forms of original work were written and published during this time period. These intellectual pieces of writing covered a spectrum of issues and topics that was required to aid and guide the people or the government. Also, this was the period where the concept of state formation, and thus a unified regulation, came up and hence, elaborate details on sensitive but highly relevant issues such as crime and justice, were penned down. 

On a similar tone, issues on forensic medicine or examination of sudden death was also elaborately dealt with in the ancient texts. After reviewing the articles and various primary and secondary sources provided by scholars of different time periods since then, we come to acknowledge the fact that ancient India in its time was much ahead in forensic sciences as compared to other countries of that era.

The legal reception of forensic identification science varies from one legal system to another, and one culture to another. The processes and systems that exist today in India in the fields of medical jurisprudence, forensic medicine and toxicology, are derived strongly from the various scholarly texts of its rich and abundant historical literature and culture. It reflects the highly civilized and extremely educated characteristics of the ancient society of India. It reflects that India has always been a progressive nation giving great importance to scientific procedures, logical and legal soundness. Thus, by studying and analysing such primary sources of invaluable knowledge from indian predecessors, the science of forensics must grow and improve to fulfill the prima facie aim of imparting justice, overcoming hurdles such as corruption, to the sufferer.

NOTE: Image is that of Charaka Samhita. 

Work Experience In MLA Office

Avadi is a state assembly constituency in Tamil Nadu, India, newly formed after constituency delimitation by the Election Commission of India in 2008. It consists of a portion of Poonamallee taluk and includes Avadi. It is included in the Thiruvallur parliamentary constituency. Avadi is constituency No. 6 of Tamil Nadu legislative assembly.

In my short-term pro bono internship with the Avadi MLA Office, I was drafted to do help in filing, typing and system-based work. During the internship period, I gained basic knowledge about booths, booth officers and the polling systems as governed by the bye-laws in Tamil Nadu in line with the national norms of conducting free and fair elections.

The MLA Office of Mr. MaFoi K. Pandiyarajan, Minister of Tamil Language & Culture, and the MLA of Avadi Constituency, is highly efficient. It can be boldly stated that it is one of the very few MLA offices that is up and running to cater to the needs of the people from its constituency. The MLA office that works from 9 am to 6 pm everyday attends to the various grievances of the people of its Constituency, and promptly caters to their requirements by providing viable and immediate solutions. This is the only Constituency that has come up with the progressive idea of a “MyAvadi” app. The app works on the basis of the Constituency Information System (CIS) software. The map-location based app and software allows the people to exactly pinpoint the area of problem or nuisance to facilitate immediate and accurate attention to solving the problem. The online interface has been quite successful and seamless. Such developmental measures and progressive ideas for the betterment and the development of the Constituency is what that truly makes this office stand apart. The impact of the good work is clearly visible in Avadi, as the area is one of the most rapidly developing ones in the neighbourhood.

The pro bono sessions under the Office of Mr. MaFoi K. Pandiyarajan, MLA Avadi Constituency, Minister of Tamil Language and Culture, was enlightening as I had an opportunity to understand the process of filing systems and could read the first hand letters that dealt with the grievances of the people of Avadi Constituency. Within the scope of 20 hours of service, I was introduced to basic concepts of electoral services and it’s prime importance in upholding the democratic setup ensuring free and fair trials.

With the completion of this pro bono work I took home with myself an invaluable experience.

The Concept Of An Extended Workplace Under India's POSH Act

The POSH Act, in short for Prevention, Prohibition and Redressal of Sexual Harassment at Workplace Act, 2013, introduces the concept of ‘extended workplace’ covering under its ambit any place visited by the employee arising out of or during the course of employment including transportation provided by the employer for undertaking such a journey. Hence, any form of harassment at a company-sponsored event whether within or outside of the normal working hours would also fall under the scope of the POSH Act.

It is now well accepted that a workplace is any place where working relationships between employer and employee(s) exist, going beyond the physical boundaries of the primary workplace or office building. 

A workplace is defined as- 

“any place visited by the employee arising out of or during the course of employment, including transportation provided by the employer for undertaking such a journey.”

As per this definition, a workplace covers both the organised and unorganised sectors. It also includes all workplaces whether owned by Indian or foreign company having a place of work in India. 

Workplace is any place where “working relationships” exist and, in addition to your office, it also constitutes workplace of an external client, premises of other organisations, hotels, restaurants, and other venues during official functions/events, workstation of other employees, lifts in the building, Restrooms/toilets, corridors, canteens/cafeteria/entertainment zone, official tours/field visits etc.

As per the Act, workplace includes: 

- Government organizations, including Government company, corporations and cooperative societies;
- Private sector organisations, venture, society, trust, NGO or service providers etc. providing services which are commercial, vocational, educational, sports, professional, entertainment, industrial, health related or financial activities, including production, supply, sale, distribution or service;
- Hospitals/Nursing Homes;
- Sports Institutes/Facilities;
- Places visited by the employee (including while on travel) including transportation provided by employer;
- A dwelling place or house. 

The Act defines the Unorganised Sector as any enterprise owned by an individual or self-employed workers engaged in the production or sale of goods or providing services of any kind, or any enterprise which employs less than 10 workers. All women working or visiting workplaces

In Gaurav Jain v. Hindustan Latex Family Planning Promotion Trust and Ors. the court clearly upheld the scope of the act to include protection to women when on an outstation visit with respect to or in relation to work. 

In Jaya Kodate v. Rashtrasant Tukdoji Maharaj Nagpur University, the Bombay High Court pointed out that the definition of 'workplace' is inclusive and deliberately kept wide by the Parliament to ensure that any area where women may be subjected to sexual harassment is not left unattended or unprovoked for.

Though such effective, and clear remedies are available in the laws, it is important for us to be aware of our rights, and the remedies we can seek in case of a mishap. The rate of cases successfully obtaining remedies under the POSH Act has also been proved highly effective. 

Learning the rights and duties under the law is important for all, as these rights and duties are endowed only upon us. As the legal maxim says: ignorance of law is no excuse, and we have a duty to know our rights and obligations.  

Cinema: Copyright Holders, Infringement, and Tests

It is undeniable that a film is the combined effort of many, many people, and also a creative reservoir tanked together. Many people with many roles and aspects are integral for an idea to materialize on the big screen. 

Section 2(d) of the Copyrights Act, 1957, defines author:

"author" means:

(1) In relation to a literary or dramatic work, the author of the work;

(2) In relation to a music work, the composer;

(3) In relation to artistic work other than a photograph, the artist;

(4) In relation to photograph, the person taking the photograph, the artist;

(5) In relation to a cinematograph film or sound recording, the producer; and

(6) In relation to any literary, dramatic, musical or artistic work which is computer- generated, the

person who causes the work to be created.

According to Section 17 of the Copyrights Act, 1957 the first owner of copyright is defined as under: 

Subject to the provisions of this Act, the author of a work shall be the owner of copyright therein. Section 17 statutorily recognizes the author of the work to be the first owner of the copyright. The author is defined under the Act for various works, which come under the law of copyright. 

So, it is fairly clear from the provisions that a producer is the copyright holder of a cinema. But, how can infringement of a copyright be contested or proved? Is it necessary to have scene-to-scene copying? Or, is substantial copying sufficient to prove infringement? If yes, what exactly is "substantial"? 

In the case of R G. Anand v. M/s. Delux Films, the following was held by the Supreme Court that lays down authoritative clarity on the test/necessary factors while considering an infringement. 

Summing up what the Supreme Court held in the case- the details necessary to successfully prove the infringement of the copyright of a film are as follows:

- same form, manner, arrangement and expression of the same idea
- substantial copying, where substantial means "literal imitation of the copyrighted work with some variations here and there"
- viewer, after having read or seen both the works, is clearly of the opinion and gets an unmistakable
impression that the subsequent work appears to be a copy of the original
- there should not be broad and substantial dissimilarities between the two works apart from the
similarities
- clear and cogent evidence

The SC also held in R.G. Anand case- 

"The effect of the dissimilarities pointed out above clearly go to show that they far outweigh the effect of the similarities mentioned in para 9 of the plaint set out above. Moreover, even if we examine the similarities mentioned by the plaintiff they are trifling and trivial and touch insignificant points and do not appear to be of a substantial nature. The mere fact that the name of the Madrasi father was Subramaniam in both the film and the play, is hardly of any significance because the name of a particular person cannot be the subject matter of copyright because these are common names." 

In the above case, the Court found that there was no copyright infringement. So, to conclude, a mere claim is not entertained as a copyright infringement. But, however, a film's portrayal and execution of an idea is protected by copyrights. 

Copyrights, and IPR in general, is a very interesting field. Soon, in a subsequent post, we can explore why revisiting old notions about intellectual property is necessary in the present era of memes, remixes and other revision-creativity that is equally creative, and needs to have an effective protective mechanism.

Rule of Lenity

Rule of Lenity is a judicial doctrine requiring that those ambiguities in a criminal statute relating to prohibition and penalties be resolved in favor of the defendant if it is not contrary to legislative intent.

Justice Ginsburg invoked the rule of lenity. The rule of lenity was especially appropriate here given the draconian sentence in the respective statute relevant in this case. Justice Ginsburg thus adopted the narrow reading of “tangible object,” interpreting it to reach only objects similar to those at the heart of the Enron debacle that spurred the statute’s passage — those used to “record or preserve information.”

I think the rule of lenity should apply to the case if recourse to traditional tools of statutory construction leaves any doubt about the meaning of “tangible object”, as it would be appropriate to invoke the rule of lenity.

The landmark discussion by Justice Ginsburg, led to the rise of nine broad criteria: 

"(1) the nature and seriousness of the offense;

(2) the pervasiveness of wrongdoing within the corporation;

(3) a history of similar conduct;

(4) timely and voluntary disclosure of wrongdoing and willingness to cooperate;

(5) a compliance program;

(6) remedial actions;

(7) collateral consequences, including harm to shareholders, pension holders, and non-culpable employees;

(8) adequacy of prosecution of individuals; and

(9) adequacy of civil or regulatory enforcement actions."

This aspect of legislative history narrows down the reasonably susceptible interpretations. This provides that it is appropriate to invoke the rule of lenity. Thus, it impacts the outcome of the case. If you think about it, rule of lenity is connected to the same basis as the whole basis of the burden of proof described in my earlier post. 

To conclude: a judge needs to be fair and just, and that includes not to waver from the letter of law whatever the popular public sentiment is- whether such sentiment is towards the alleged victim or the accused. Increasingly, as the public finds more media to voice their opinion and sentiments, the judges have to stick to their roles. After all true justice in the sense of law is only possible when they do justice to their role.

Internships

We are back at that time of the semester when everyone is frantically applying to a hundred places for a place in the summer internship slots. And, on a such a momentous frame of time, I present to you an honest report that I wrote after my first day of my first internship ever. 

*

Day One of my month-long internship with the Tamil Nadu Human Rights Commission started off yesterday. I was asked to report to their office at 10.30 AM. Being a punctual girl, I was there right on time to be greeted by a lady staff. She inquired about me and then when she learnt that I was a student, she asked me to wait until “sir” came.

Slowly people trickled into the office room and smiled at me, and I smiled back at them too, expecting one of them to be the “sir”. No such luck. All of them smiled pleasantly and told me that “sir” would instruct me on everything that I had to do. It was eleven and most of the staff had come by then.

Finally, at eleven-thirty, an elderly man walked in and everyone greeted him. The lady staff who first spoke to me signalled that he was the one I was supposed to report to. I, an eager first-time intern, immediately stood up and gave him a bright smile, and informed him I had come for the internship. He smiled and just waved me to sit back in my chair again. And then, for another hour he went on with his job as I sat there just observing the people work.

The office room is a small space with six work desks and a few extra chairs. There are piles and bundles of case files piled up everywhere. There is a computer in one of the work desks that stores details of the cases in an excel sheet. There are also two telephones in the room for calls from the public.

At twelve thirty, “Sir” finally asked me to pull up the chair near his desk, and I got to know his name. He started briefing me about the Human Rights Commission. I am just summarising what I learnt from him yesterday.

The SHRC was divided into three wings- the administrative wing, the legal wing and the investigation wing. These three wings operated in sync. The Commission is headed by the Chairperson who is a retired High Court Judge. Also, it has two members- one of whom is a High Court Judge and the other is an IAS officer.

The State Human Rights Commission is for lodging any sort of complaint on the working of any government official. The complaint should be such that it is on something that is within the scope of their duties as an employee of the government. These cases that are filed on the officials are then sent to the Investigation wing of the HRC from the legal wing. After analysis, a report is sent back to the legal wing. Then a date is set for the trial and the petitioner and the defendant are allowed to present their case, they are questioned, witnesses are examined and cross examined, and finally orders are passed. The judges do not have the power to give out a punishment for the official found guilty as they are protected by the state powers. So, instead the order authorizes the HRC to send out a recommendation to the official which is filed on his name. Such recommendations for being found guilty of an offense can cut out incentives such as promotions and retirement benefits for the government official.

Sir gave me a bare act of the 2006 amended version of The Protection of Human Rights Act, 1993 with State Human Rights Commission, Tamil Nadu (Procedure) Regulations, 1997. I was pretty proud to read the bare act as I could now, after one whole semester at law school with Legal Methods as a subject, could identify parts of a statute such as the short title, long title, definition clauses, provisos and non-obstante clauses. It felt like something that I learnt was being put to use.

Sir then detailed me on how I should make an entry of the cases and their statuses (Pending/Closed) into the case book classified year-wise and case number-wise. I did this job for sometime. And then, I was asked to attend the phone calls and take down the name, district, case no. and the petition date from the caller. This was a lot of fun and I liked doing it. For every case, the entry must also be made in the excel sheet. I did this job also for sometime. The jobs that they made me do were kind of repetitive but that is all the job there is.

They also told me that I could go through some of the case files when I was making the entry if I was interested. I did try to do that but since all of the cases that I dealt with yesterday were in Tamil, and in quite unintelligible handwritings, I gave up after sometime.

There are also three trial courts in the campus and I would be able to see some of the proceedings in the future.

Overall, Day One went good.

*

Reading this now, I realised that none of my other internships were this chilled out. They were all hectic, and mostly with extended working hours, sometimes even on a Sunday.

But hey, they're all good, good memories, and I've met some of the most brilliant people thanks to the stints of internship.  And, looking forward to more!

On Balance: An Autobiography

Title: On Balance: An Autobiography

Author: Leila Seth

Leila Seth, in her autobiography On Balance: An Autobiography, starts with the story of how she took up legal studies because of the fact that it could be conveniently combined with taking care of her son and husband. She then delves into her life in field of litigation talking about the difficulty she faced as a woman barrister in Calcutta in trying to find a senior, of her lighter moments as the sole woman judge on the otherwise all-male bench of the Delhi High Court, and her general courtroom experiences. She also portrays her views regarding corruption, discrimination and delay in the legal system. Some judgments dealing with education and with inter-personal and constitutional law have been highlighted by Leila Seth. She also, in great detail, narrates and reminisces her experiences as a member of the 15th Law Commission of India. The spirit of the book deals with taking India forward in its judicial journey. 

The title of her book, “On balance”, fits Leila Seth, as depicted by herself in the book. It was her balanced and sensitive approach of life around her that helped her become the first woman judge of the Delhi High Court, and then the first woman chief justice of a high court, paving the way for other women chief justices. She was judicious on the bench, but however retained the humanity in her. Her devotion to gender justice was evident in her book dealing with every law governing women, regardless of religion.

Injustice, death and discord are given their due but dignified place in the book. Having twice declined the offer of becoming a judge of the Patna High Court, because Patna held no career opportunities for her husband Prem Seth, this dedicated professional has also proven that you can be a committed homemaker simultaneously. What separates this book from others is that Justice Seth understands straight away how difficult it is to balance the demands of a high-pressure career in law, and the constant sacrifices that Indian wives and mothers anticipate, keeping it real.

The law was, and remains still, a male bastion. She, with great humour and vivid memories, describes an incident where a group of people entered the High Court to "sight-see" the woman judge! Justice Seth describes early tribulations faced by her as a rare woman lawyer. 

“I was used to arguing and doing the best for my client and case and then ‘letting the damn judge decide’. I soon realised that I was now that damn judge; and that the tremendous responsibility stopped with me.” 

“On Balance- An Autobiography” was a beautiful read. It teaches us many life lessons penned in the most impacting and real way. For all of us, this inspiring book is definitely in the must read category!