Subject : All Law subjects
Law of Torts
What is a Tort ?
Introduction
The word tort has been derived from the Latin term ‘Tortum’ which means ‘to twist’.Thus, ”tort” means ”a conduct which is not straight or lawful, but on the other hand , twisted, crooked or unlawful”. It is equivalent to the English term wrong.
It consists of the various ‘torts’ or wrongful acts whereby the wrongdoer violates some legal rights vested on the other person.
It is a breach of duty which amounts to civil wrong. The law imposes a duty to respect the legal rights vested in the members of the society and a person making a breach of that duty is said to be doing the wrongful act.
Section 2(m) of the Limitation Act, 1963 says “Tort means a civil wrong which is not just exclusively a breach of contract or breach of trust.
Essential Elements of Tort
Essential elements of tort
1. Act or omission
2. Legal damages
Wrongful act or omission
The first essential ingredient in constituting a tort is that a person must have committed a wrongful act or omission that is, he must have done some act which he was not expected to do, or, he must have omitted to do something which he was supposed to do. The wrongful act or a wrongful omission must be one recognized by law. If there is a mere moral or social wrong, there cannot be a liability for the same.
For example, if somebody fails to help a starving man or save a drowning child. But, where legal duty to perform is involved and the same is not performed it would amount to wrongful act.
Legal Damage The second important ingredient in constituting a tort is legal damage. In order to prove an action for tort, the plaintiff has to prove that there was a wrongful act, an act or omission which caused breach of a legal duty or the violation of a legal right vested in the plaintiff.
The maxim expresses this,
“Injuria sine damnun ‘Injuria’ refers to infringement of a legal right and the term ‘damnum’ means substantial harm, loss or damage.
Injuria Sine Damno This maxim means infringement or violation of a legal private right of a person even if there is no actual loss or damage. In such a case the person whose right is infringed has a good cause of action. He doesn’t need to prove any special damage. The infringement of private rights is actionable per se.
In Ashby v. White, the plaintiff was a qualified voter at a Parliamentary election, but the defendant, a returning officer, wrongfully refused to take plaintiffs vote. No loss was suffered by such refusal because the candidate for whom he wanted to vote won the election. Plaintiff succeeded in his action.
Lord Holt, C.J., observed as follows,
“If the plaintiff has a right he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it, and indeed it is a vain thing to imagine a right without a remedy, for want of right and want of remedy are reciprocal”
“Every injury imports a damage, though it does not cost a party one penny and it is impossible to prove the contrary, for the damage is not merely pecuniary, but an injury imports a damage, when a man is thereby hindered of his right. As in an action for slanderous words, though a man does not lose a penny by reason of the speaking of them, yet he shall have an action.
So, if a man gives another a cuff on his car, though it costs him nothing, not so much as a little diachylon (plaster), yet he shall have his action. So, a man shall have an action against another for riding over his ground, though it does him no damage, for it is an invasion of the property and the other has no right to come there.”
Damnum sine injuria
Damnum sine injuria means an actual and substantial loss without infringement of any legal right. In such a case no action lies. There are many harms of which loss takes no account and mere loss of money’s worth does not by itself constitute a legal damage.
Gloucester Grammer School Case, Held. The defendant, a schoolmaster, set up a rival school to that of the plaintiff. Because of the competition, the plaintiff had to reduce their fees. Held, the plaintiff had no remedy for the loss suffered by them. Hanker J. said “Damnum may be absque injuria as if I have a mill and my neighbour builds another mill whereby the profits of my mill is diminished… but if a miller disturbs the water from going to my mill, or does any nuisance of the like sort, I shall have such action as the law gives”.
Law of Contract
CHAPTER I
OF THE COMMUNICATION, ACCEPTANCE AND
REVOCATION OF PROPOSALS
Meaning definition and essentials :
Introduction :
The contract act was enacted in 1872. The Indian Contract Act, 1872 , was officially enacted on April 25, 1872, and it started taking effect on September 1 of the same year. Before the Indian Contract Act, 1872, contractual relationships were primarily governed by the personal laws of various religious communities. This meant that Hindus and Muslims followed different sets of laws regarding contracts, which often led to inconsistencies and confusion in legal matters. The introduction of the Act aimed to unify these diverse legal frameworks and provide a standardized approach to contracts across the country.
The Contract Act deals with the basic essentials of a contract and classifies it into valid, void and voidable contracts. Sns. 1 to 75 are to be read in a sequence and each principle is to be studied with points and the cases.
Definitions of Contract
According to Pollock: Every agreement and promise enforceable by law is a contract.
According to Salmond: A contract is an agreement creating and defining obligation between two or more persons by which rights are acquired by one or more to act or forbearance on the part of others.
According to Section 2(h) of the Indian Contract Act 1872: “An agreement which is enforceable by law is a contract”.
There are two very important things for the formation of a contract.
(Contract= Agreement + Enforceable)
Illustration– There is an agreement between A and B that X will construct a house for B, and B will pay Rs. 20 Lakhs to A. The agreement between A and B is a contract because it is enforceable by law.
Essential Elements of Contract
According to Section 10 of the Indian Contract Act, 1872, an agreement is a contract if it meets certain conditions: it must be made with the free consent of parties who can contract, involve lawful consideration, have a lawful purpose, and not be declared void.
The essential elements of a valid contract are as follows :
Offer
An offer is also termed as proposal. An offer is a proposal made by one person to show that they are willing to enter into a contract. This means they are ready to do something in exchange for a promise, action, or choice not to act from another person.
As per Section 2 (a) of the Indian Contract Act, when one person signifies to another his willingness to do or abstain from doing anything with a view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal or offer.
The person making the proposal/offer is called the proposer or offeror and the person to whom the proposal is made, is called the offeree.
Acceptance
A contract emerges from the acceptance of an offer. Acceptance is the act of agreeing to an offer made by the offeror. This means that the offeree is willing to engage in the terms proposed, leading to a binding agreement between both parties. Under Section 2 (b) of the Contract Act, When a person to whom the proposal is made, signifies his assent thereto, the proposal is said to be accepted.
Mutual Agreement
A meeting of the minds happens when both parties understand the contract and agree to its terms.
Lawful Consideration
The term “consideration” refers to something of value exchanged between parties in a contract (quid pro quo). For a contract to be legally enforceable, it must include legal consideration. A meeting of the minds happens when both parties understand the contract and agree to its terms.
According to Section 2(d), consideration is defined When at the desire of the promisor, the promisee or other person has done or abstained from doing, or does, abstains from doing, or promises to do or abstain from doing something, such act or abstinence or promise is called consideration for the promise.
Also visit https://lawbhoomi.com/law-of-contracts-meaning-nature-and-important-definitions/ -This site also explains the topic very well and in easy language.
Definition of : Proposal/offer in Indian Contract Act
According to “Indian Contract Act 1872” -“When one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other, to such act or abstinence, he is said to make a proposal (offer).
The person who makes the proposal is called a “promisor”,
the person accepting the proposal is called a “promisee”.
When the promisee gives his assent, it becomes “Acceptance”, (i) The offer must be definite and give rise to legal consequences.
A proposal must be definite and specific in its terms, and it should be communicated to the other party with the intention of obtaining their acceptance. Once the other party accepts the proposal, it becomes a promise, and the terms of the contract bind the parties. If the proposal is not accepted, it will be considered a mere invitation to offer, and it will not create any legal obligation between the parties.
Illustrations :
- A company (X) offers to sell its products to another company (Y) for a certain price. The offer is made in writing and sent via email to company Y. This offer is a proposal, and if company Y accepts the offer, it becomes a binding contract.
- A person (A) offers to sell their car to another person (B) for a certain amount. The offer is made orally during a conversation between the two parties. This offer is also a proposal, and if person B accepts the offer, it becomes a binding contract.
Essentials elements of a valid offer :
1.There must be two parties: There must be atleast two parties, the first person who will make the offer and the other person who will accept the offer/proposal.
2.Their must be intention to create legal relation : Both the parties agreeing to the offer/proposal must have the clear intention to create the legal relation.
3.The proposal must be communicated: There must be a communication of the offer between both the parties. The communication should be either express or implied.
According to Section 4 of Indian Contract Act 1872 – The communication of a proposal is complete when it comes
to the knowledge of the person to whom it is made.
Example: b) B accepts A‟s proposal by a letter sent by post. The communication of the acceptance is complete,
as against A when the letter is post; as against B, when the letter is received by A
4.It must be certain and definite : The terms of offer must be certain and clear in order to create a valid contract, it must not be ambiguous. i.e. everything should be transparent in the terms of transaction or others , must not be hidden.
5.It may be specific or general : The specific offer is an offer that is accepted by a particular person or by an group to whom it is made. Whereas, general offer are accepted by any persons.
What is an invitation to offer?
An invitation to offer is a communication that encourages someone to make an offer or proposal. It is not an actual offer itself. Instead, it opens the door for negotiation and discussion, which may lead to a contract being formed.
In simple terms, an invitation to offer is a way to invite someone to start negotiations or discussions. It doesn’t legally bind anyone to accept any offers that come out of those discussions.
Examples of an invitation to offer include advertisements, price lists, catalogues, and displays of goods in a shop window or online store. These do not constitute a binding offer but rather an invitation to customers to make an offer to purchase the goods or services. Essentially, when you see a product advertised, it’s an invitation for you to express your interest, which may lead to a negotiation or transaction.
For example, when a shop owner showcases goods in their store window, it serves as an invitation for customers to make an offer to buy those items. If a customer decides to make an offer at a specific price, that action becomes a proposal. Once the shop owner accepts this proposal, a binding contract is established between them.
Landmark cases dealing with invitations to treat/offer :
Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern ) Ltd.
Hon’ble Judges:
Lord Justice Somervell, Lord Justice Birkett and Lord Justice Romer
Counsels:
MR H.V. LLOYD-JONES, Q.C. and MR H. THOMAS DEWAR (instructed by Mr A.C. Castle)
appeared as Counsel on behalf of the Appellants (Plaintiffs)., MR G.G. BAKER, Q.C. and
MR G.D. EVERINGTON (instructed by Messrs Masons) appeared as Counsel on behalf of
the Respondents (Defendants).
Facts: In 1951, Boots Cash Chemists Ltd. started a self-service system in one of their pharmacies. Before, all medicines were behind the counter, and customers had to ask a pharmacist for help. With the new system, products were placed on open shelves so customers could pick items themselves and put them in a basket. They then took the items to the cashier’s counter, where a registered pharmacist supervised the sale and could approve or reject it.
On April 13, 1951, two women purchased products containing poison, which were regulated under section 18 of the Pharmacy and Poisons Act, 1933. The Pharmaceutical Society of Great Britain objected to this self-service method, arguing that it breached the Act because the sales were not supervised by a registered pharmacist at the point where the customers selected the items. The society contended that the display of goods constituted an offer, which the customers accepted by placing items in their baskets, thus completing the sale before reaching the cashier.
The Pharmaceutical Society of Great Britain sued Boots. They argued that the sales were illegal under the Pharmacy and Poisons Act, 1933. The society claimed that transactions happened without proper supervision by a registered pharmacist, which broke the law meant to protect people from harmful products.
Issue : The issues raised in Pharmaceutical Society of Great Britain v Boots Cash Chemists Ltd. are:
- Whether the display of drugs in the shop involved an offer or an invitation to offer.
- Whether Boots Cash Chemists Ltd. violated section 18(1)(a)(iii) of the Pharmacy and Poisons Act, 1933, by allowing customers to select items without the immediate supervision of a registered pharmacist.
Judgement :
In this case, both the Queen’s Bench Division and the Court of Appeal ruled in favor of Boots Cash Chemists. The Court explained that displaying goods is not an offer; it’s an invitation for customers to make an offer. When customers select items and put them in their basket, they are making an offer. At the cash counter, the pharmacist can choose to accept or reject that offer. The sale is completed at the cash desk with a registered pharmacist present. This follows the Pharmacy and Poisons Act, 1933, which requires supervision when selling certain drugs. So, the two women bought the packages containing poison under the supervision of a pharmacist.
Justice Somerwell saw the new process introduced by Boots as a more organized way to do business. Customers can choose what they want, and the contract is completed when the supervising pharmacist accepts the chosen item. Normally, in the case the plaintiff presents, once a customer selects an item, they cannot replace it or choose another one without just paying for it. Therefore, this situation should not be considered.
The Lord Chief Justice stated that the situation is similar to regular shop transactions. In this case, self-service is advertised. Picking up a bottle of medicine from the shelf does not mean the customer accepts an offer to buy. Instead, it’s the customer making an offer to purchase. He also pointed out that the sale was supervised by a registered pharmacist. Therefore, the appeal should be dismissed.
Conclusion
The Court of Appeal’s decision in Pharmaceutical Society of Great Britain v. Boots Cash Chemists Ltd. is a landmark case in contract law that clarified the distinction between an offer and an invitation to offer.
Harvey v Facey
From The Supreme Court Of Judicature Of Jamaica
Citation: (1893) AC 552
Delivered On: 29th July 1893
Bench: The Lord Chancellor, Lord Watson, Lord Hobhouse, Lord Macnaghten, Lord Morris, Lord Shand. [Delivered By Lord Morris]
Law Applied: Offer, Acceptance And Invitation To Treat (Offer) In Contract Law
The case of Harvey v. Facey [1893] UKPC 1 is a significant ruling in English contract law by the Privy Council. It originated from an appeal against the Supreme Court of Jamaica’s decision. The case began on November 17, 1892, and the final judgment was delivered on April 7, 1893.
The parties in the case were :
Thomas Harvey – The appellant, who claimed that a binding contract for the sale of a property had been established
Horace Facey – The respondent who owned the property known as Bumper Hall Pen
Facts :
- Facey owned a property called Bumper Hall Pen in Jamaica, which he was interested in selling
- Harvey sent a telegram to Facey asking if they would be willing to sell Bumper Hall Pen and to telegraph back the lowest cash price.
- In response to Harvey’s inquiry, Facey sent a telegram stating, “The lowest price for Bumper Hall Pen is £900.”
- After receiving Harvey’s inquiry, Facey promptly sent a telegram in response, stating, “The lowest price for Bumper Hall Pen is £900.” Following this, Harvey sent another telegram agreeing to purchase the Bumper Hall Pen for the sum of £900 as requested by Facey.
- However, in the meantime, Facey had sold the Bumper Hall Pen to another purchaser.
- This led to Harvey suing Facey, claiming breach of contract. The main legal issue was whether Facey’s telegram stating the price was a valid offer that could be accepted, or if it was just an invitation to treat.
Harvey’s Reply :
Harvey sent a telegram to Facey, saying, “We agree to buy your Bumper Hall Pen property for the £900 you asked for.” Harvey thought this telegram made a valid contract to buy the property.
It seems like Harvey believed that by stating “we agree to buy” at the price quoted in Facey’s initial telegram, he was effectively communicating acceptance and concluding the contract.
Harvey thought that by saying “we agree to buy” at the price quoted in Facey’s first message, he was accepting and finalizing the contract. However, the court ruled that simply quoting a price doesn’t necessarily mean making a clear offer that can be accepted. Facey’s first message didn’t show intent to be legally bound or have enough specific details. Therefore, there was no offer for Harvey to accept. His response was an offer that still needed to be accepted by Facey.
It’s important to understand the distinction between offers and invitations to treat, as established in this case. Harvey’s belief that his telegram formed a binding contract was mistaken, as it was actually just an offer requiring further acceptance. This was because Facey’s initial message did not constitute a valid offer, as determined by the court.
Decision :
The court decided that there was no valid contract between Harvey and Facey. Facey’s initial telegram stating the price was not an offer to form a contract, but just an invitation to make an offer. For a contract to be valid, there must be a clear offer with the intention to be legally bound. Facey’s telegram did not meet these requirements. It was simply quoting a price in response to Harvey’s inquiry and did not show an intent to enter into a binding agreement.
Since Facey’s telegram was an invitation to make an offer, Harvey’s subsequent reply trying to accept the price did not create a contract. There was no offer that could be accepted. Therefore, the court found that no contractual relationship existed between the parties in this case.
Environmental Law Notes
Environmental Law Notes
Introduction :
Environmental laws are important because they protect the environment from damage caused by human activities. These laws give guidance on how to carry out actions that might harm the environment. They can change based on the problems a country faces, showing that environmental laws are always evolving.
Both lawmakers and judges have worked hard to create and improve these laws by passing key legislation and making important court decisions. Before we look at the specific laws related to the environment, let’s first understand what we mean by “environment.”
Environment
The word Environment has been derived from the Latin term meaning “Environ” which means around. Environment is an essential element in the life of humans. Environment plays a very crucial role in our day to day life. Destruction of environment can effect the livelihood of people in many ways.
It has two components biotic and abiotic. Biotic includes -relating to life, surrounding plant & animal communities and microorganisms. Abiotic includes- soil, sunlight, topography, water, atmosphere, nutrients (i.e) physical and chemical aspects of organisms. Environment could virtually include anything and everything.
Definition- According to Environmental Protection Act, 1986:-
According to Black’s Law Dictionary, environmental law is defined as, “A collective body of rules and regulations, orders and statutes, constraints and allowances that are all concerned with the maintenance and protection of the natural environment of a country”.
Section 2(a) states that environment includes water, air and land and the inter-relationship which exists among and between water, air and land, and human beings, other living creatures, plants and property.
Significance- The environment and human life are closely connected. The quality of a person’s environment greatly affects their quality of life. The Supreme Court of India has said several times that everyone has the right to a clean environment, which includes access to clean water and air. This right is an important part of the right to life stated in Article 21 of the Indian Constitution.
Environmental issues faced in India :
The main environmental issues faced in India are pollutions namely air pollution, water pollution, noise pollution, disposing chemical waste improperly, leakage of harmful gases, etc. are just few among the environmental problems.
Pollutions refer to imbalance caused in the environment through the actions of humans. This imbalance can lead to health-related issues which can affect the future generations. It is caused by man-made activities. It is necessary to protect the environment because the present generations are mere care-takers of the future generations
. It is their responsibility to give the earth to the future in a proper and healthy manner. Let us try to understand the different types of pollution and their effects on the environment.
Factors responsible for Environmental Problems and Pollution:
Human activities directly or indirectly affect the environment adversely. Domestic sewage, effluents from tanneries contains many harmful chemicals, stone crush, usage of automobile are few examples.
Pollution means addition of undesirable material into the environment as a result of human activities. The agents which cause environmental pollution are called pollutants.
The main factors contributing to environmental pollution and associated problems are:
(i) Urbanization, driven by relentless population growth, exacerbates soil erosion and degrades land quality. As more people flock to cities, the pressure on our natural resources intensifies.
(ii) Industrial runoff significantly contaminates topsoil, with the regular disposal of waste effluents leaching into the soil, polluting groundwater and resulting in barren landscapes. We are compromising our most vital resource: the earth beneath our feet.
(iii) Practices such as mineral extraction and strip mining devastate thousands of acres of land annually. This widespread deforestation not only destroys ecosystems but also creates severe erosion issues that threaten agricultural productivity.
(iv) The rampant use of harmful chemicals, including pesticides, insecticides, and fertilizers, poses a serious threat to our environment and ultimately to human health.
(v) Polychlorinated biphenyls (PCBs), man-made chemicals prevalent in manufacturing, contaminate our surroundings and accumulate in the food chain, affecting wildlife and human populations alike.
(vi) Oil spills from cargo tankers and pipelines are catastrophic events that ruin soil fertility for generations, pushing ecosystems to the brink of collapse.
(vii) The surging use of detergents in both households and industries is leading to the degradation of our rivers and seas, endangering the aquatic life that relies on these water sources.
(viii) The excessive application of fungicides further harms our ecosystem, as their residues leach into soil and water systems, disrupting natural balances.
(ix) Pesticides and insecticides, though intended to protect crops, are inflicting hidden damage on biodiversity and human health.
(x) The release of chlorofluorocarbons (CFCs) from everyday appliances is gradually destroying our atmosphere, eroding the ozone layer and accelerating global warming—an urgent issue we can no longer ignore.
(xi) Emissions from vehicles and smoke from burning organic materials release harmful pollutants, affecting the air we breathe and the climate we share.
(xii) Deforestation continues to accelerate, diminishing our planet’s lungs and altering climates while threatening countless species.
(xiii) Rapid industrial development, if left unchecked, contributes ghastly levels of pollution through industrial waste and greenhouse gas emissions, drawing us closer to environmental catastrophe.
(xiv) Urbanization not only creates waste but also increases resource consumption, deepening the crisis we face.
(xv) Lastly, poverty compounds these issues by driving population growth and environmental degradation. Those in poverty have no choice but to exploit natural resources unsustainably and often live in unsanitary conditions, further exacerbating health problems.
We must confront these challenges with urgency and commitment, as the health of our planet and future generations depends on our actions today.
Penology and Victimology
Penology
Criminal science is classified into 3 parts:
Criminology
Penology
Victimology
Criminology– study of crime and criminal behaviour
Penology– It is firstly coined by Auguste Forel in his book “ The science of crime
and punishment” in 1885.
Victimology– It basically focuses on seeking justice for victims who are facing
multiple problems after a crime.
Meaning-
The term “penology” comes from the word “punishment or penalty.
” Penology is a branch of criminology dealing with prison management and the treatment of offenders.
Penology is the discipline of criminology that studies punishment and the
management of criminally convicted individuals. It includes sentencing, jail,
probation, parole, and other kinds of punishment and rehabilitation in theory and practice.
Definition –
Penology is the study of punishment in relation with crime. It is science which deals with the principles and methods of punishments. So it is about theories and methods of punishment for criminal acts. Dr P.K. Sen defines it,
‘penology lay down the fundamental principles that should guide the state, or the sovereign authority in framing the schemes of punishments.
The Oxford English Dictionary defines penology as “the study of the punishment of crime and prison management”
Types of Penology
Penology encompasses various theories and approaches, each focusing on different aspects of criminal justice and punishment, with main branches including:
1. Retributive Penology: Retributive penology focuses on the idea of punishment as retribution or revenge for the harm caused by the offender. It emphasizes the moral and philosophical aspects of justice, with punishment seen as a way to balance the scales and satisfy society’s demand for justice.
2.Rehabilitative Penology: This approach emphasizes the rehabilitation of
offenders rather than punishment for its own sake. It sees criminal behavior as a result of social, psychological, or environmental factors, and aims to address these root causes to reintegrate offenders into society.
3.Restorative Justice: Restorative justice is an alternative approach that
emphasizes repairing the harm caused by the offense and involving both victims and offenders in the resolution process. It seeks to heal relationships and reintegrate offenders into the community.
4.Critical Penology: Critical penology takes a critical and often sociological
perspective on the criminal justice system. It examines the power dynamics,
inequalities, and social structures that contribute to crime and punishment, and advocates for systemic changes to address these issues.
5.Comparative Penology: Comparative penology involves the study of different
penal systems and practices in various countries. It aims to understand how
different approaches to punishment and criminal justice impact crime rates,
recidivism, and social outcomes.
Objective of Penology
Penology focuses on effective methods for punishment, rehabilitation, and crime prevention in the criminal justice system. Its main goals are:
1.*Punishment*: Set fair and appropriate punishments that fit the seriousness of the crime.
2.*Rehabilitation*: Help offenders change by addressing issues like addiction and lack of education.
3.*Deterrence*: Discourage crime by making the consequences clear, using the
fear of punishment.
4.*Restitution and Restoration*: Repair harm caused by crime through victim
compensation and reintegration of offenders.
5.*Prevention*: Stop future crimes by tackling root issues like poverty and social inequality, often through community programs.
6.*Human Rights and Fairness*: Ensure the justice system respects human
rights and provides fair treatment.
7.*Cost Efficiency*: Find cost-effective ways to achieve goals and use resources wisely.
8.*Public Safety*: Improve safety by reducing crime rates and helping offenders not to reoffend.
Difference Between Penology and Criminology:
Penology and criminology are two different areas of study within the criminal justice system.
*Criminology* studies crime and criminal behavior. It looks at what causes crime,the effects of crime, and patterns in criminal activity. Criminologists examine social,psychological, and environmental factors that lead to crime.
Their goal is to understand why crime happens and how to prevent it.
*Penology* focuses on punishment and the penal system. This field looks at how offenders are treated within the justice system, including prisons, rehabilitation programs, and punishment methods. P
enologists study how effective punishment is instopping crime, helping offenders change, and keeping the public safe.
In summary, criminology tries to understand the reasons for crime and how to reduce it, while penology looks at how to manage punishment and rehabilitation for offenders. Criminologists work to prevent crime, and penologists aim to improve the justice system’s response to crime.
Alternative Dispute Resolution
ADR (Alternative Dispute Resolution) notes
Alternative Dispute Resolution (ADR)
Introduction
Alternative dispute resolution (ADR) offers to settle disputes outside of the courtroom with the help of an impartial third party. Outcomes may be non-binding and advisory in nature or enforceable without the right to appeal. ADR is not advised in situations of criminal law or situations where one party has excessive power over the other party.
Meaning
Alternative dispute resolution (ADR) helps settle disputes without going to court. An unbiased third party assists in the process. ADR usually occurs after the client and the insurer have tried to resolve their differences directly but can’t reach an agreement.
Alternative dispute resolution (“ADR”) refers to any method of resolving disputes without litigation. ADR regroups all processes and techniques of conflict resolution that occur outside of any governmental authority. The most famous ADR methods are the following: mediation, arbitration, conciliation, negotiation, and transaction.
Process
When both parties in a dispute agree to use alternative dispute resolution (ADR), the ADR process begins. This agreement can come from a court order, a clause in a contract, or it may be voluntary. The parties choose the best ADR method for their situation, often with the help of a lawyer. The different methods are explained in the next section.
Negotiations begin the next stage of the ADR process by setting up the procedure’s structure and rules. This includes making confidentiality agreements, outlining the schedule and expectations, and defining the roles and responsibilities of each party. At this stage, the parties can also share relevant information, documents, and evidence.
During the last part of the ADR process, the parties discuss a settlement for the conflict. If they agree on a settlement, they will create a written agreement that details their arrangement. Then, the parties need to follow through on the agreement and fulfill their commitments, such as making a settlement payment if they are found liable.
Types of Alternative Dispute Resolution
Mediation
Mediation involves a neutral third party who helps the insured and insurer communicate to find a solution that works for both. The mediator guides the conversation but does not decide who is right, allowing the parties to reach an agreement together.
Arbitration
Arbitration occurs when a neutral independent party called an arbitrator listens to arguments from both sides, collects evidence, and then decides on the outcome of the dispute, similar to a court ruling. Arbitration can either be non-binding or binding.
Negotiation
Negotiation occurs when there is direct contact between the parties to a dispute. In order to arrive at a solution that is acceptable to both parties, it enables the parties to debate their views, interests, and prospective solutions. The parties may choose to negotiate informally amongst themselves or with the aid of lawyers or other representatives.
Conciliation
Conciliation means the attempted resolution of issues raised by a complaint, or by the investigation of a complaint, through informal negotiations involving the aggrieved person, the respondent, and the Assistant Secretary.
Need for ADR:
The system of dispensing justice in India has come under great stress mainly because of the huge pendency of cases in courts.
In India, the number of cases filed in the courts has shown a tremendous increase in recent years resulting in pendency and delays underlining the need for ADR methods.
Advantages of ADRs
The resolution of disputes usually takes place privately, which helps maintain confidentiality.
It is more viable, economical, and efficient.
Procedural flexibility saves valuable time and money and the absence of stress from a conventional trial.
This often results in creative solutions, sustainable outcomes, greater satisfaction, and improved relationships.
The possibility of ensuring that specialized expertise is available on the tribunal in the person of the arbitrator, mediator, conciliator, or neutral adviser.
Further, it offers greater direct control over the outcome.
Disadvantages of ADR
Decisions made in ADR do not set a legal precedent
In some forms of ADR, such as binding arbitration, the opportunities for appealing the decision are limited.
While court judgments are enforceable by law, enforcing the outcome of an ADR process can sometimes be more challenging.
Lack of Legal Representation
Since ADR processes are less formal and more flexible, there can be inconsistency in how disputes are resolved.
In Renusagar Power Co Ltd vs. General Electric, AIR 1985 SC 1156
the Supreme Court said that the object of this legislation was to facilitate and promote international trade by providing for speedy settlement of disputes arising in trade through arbitration. It was stated that ordinarily, as a rule, an arbitrator had no authority to clothes himself with power to decide the question of his own jurisdiction unless parties expressly conferred such a power on him.
‘
Further the Court held that the question as to the validity of the contract was also for the court to decide under Section 33 and not for the arbitrator. If there was no arbitration clause at the time of entry of the arbitrators on their duties, the whole proceedings would be without jurisdiction.
Prison Administration
ntroduction
The crime rate in India is escalating at an alarming rate. However, the facilities available in various prisons within the country are inadequate, failing to provide humane living conditions for incarcerated individuals. Despite the existence of regulations and guidelines governing the prison system and its administration, many of these protocols are not implemented effectively due to the current conditions prevalent in Indian prisons.
Prison
The original term for prison is jail or gaol. A prison is a place designed to hold people who have been legally placed there for safe custody while they wait for trial or to serve a punishment. In prison, people are confined and do not have certain freedoms because of actions taken by the state as a punishment.
Section 3 of Prisons Act, 1894 (Act IX of 1894) defines prisons as Prison means any jail or place used permanently or temporarily under general or special orders of the State government for the detention of prisoners and include all lands and buildings appurtenant thereto, but does not include any place for the confinement of prisoners who are exclusively in the custody of the police.
History
Prisons today hold both people waiting for trial and those who have been convicted. In ancient times, however, prisons were different. They mainly served to keep offenders until their trial, not as places for punishment.
During the Mughal period, authorities closely monitored prisoners. When the British took control of India, prison conditions were poor. Lord Macaulay then reformed criminal law, leading to the Indian Penal Code (IPC). After this, jail committees made recommendations to improve the prison system.
After India’s independence, prisons became a state topic in the Constitution. The government took steps to reform the prison system. In 1951, United Nations expert W.C. Wreckless made recommendations for improvement. A committee held an All India Conference of Inspector Generals of Prisons. From 1980 to 1983, the All India Jail Reforms Committee, led by A.N. Mulla J., created a draft national policy on jail reforms. Several laws have been passed to improve prison conditions. Today, prisons aim to rehabilitate and reform inmates, with special attention to children in the system.
The Supreme Court of India has been active in responding to human right violations in Indian jails and it recognized a number of rights of prisoners by interpreting Articles 21, 19, 22, 32, 37 and 39 A of the Constitution in a humane way. The Supreme Court of India in the recent four decades has been very active against violation of the Human Rights of the prisoners. The Jail Reforms Committee 1980-1983 has also make recommendations regarding prisoners rights.
Rights for prisoners
- Right to speedy trial
- Right against solitary confinement, handcuffing and bar fetters and protection from torture
- Right to meet relatives, friends and consult legal practitioner of his choice
- Right to reasonable wages in prison
- Right to expression
- Right for reasonable health care