Showing posts with label Acts. Show all posts
Showing posts with label Acts. Show all posts

 


In the present 21st century, women worldwide have entered various spheres of professional life like medicine, teaching, technology, finance, economics and even politics where they have set incredibly high benchmarks for the once male dominated patriarchal society and have proved that they are an equal stakeholder of the resources of this planet and can perform as good as their male counterparts if given proper resources, trainings and opportunities.

In every sphere of professional world, women have brought significant positive reforms and made every effort to stand at an equal pedestal with men, making full effort to mitigate the gaps and discriminative mindset that women cannot work at par with men and their role can be merely limited to the domestic sphere. Even in the legal fraternity, women like Justice Leila Seth, Justice Indu Malhotra, Justice Indira Banerjee and many others have made the presence of women felt in the courtroom by breaking the societal gender norms and temperament that the legal fraternity can be best served only by the males.

However, still after 74 years of Indian independence, the status, participation and role of women in the Indian judiciary stands on a shaky ground with less than 7.2% of female judges in the entire judicial system. The Courts of India also sees lack in presence of women as designated senior advocates with only around 420 females designated as senior advocates from its inception.

WOMEN IN JUDICIARY – THE NEED OF THE HOUR

The courts have, at many instances, echoed with the voices of eminent jurists, lawyers, judges and many other pillars of the Indian Judicial System seeking an active participation of female members in both the bar and the bench. In a submission before the apex court, the Attorney General K.K Venugopal made remarks about the need of higher representation of women in the judiciary to ensure a better sympathetic and humanitarian approach towards female victims of sexual assaults, crime against women and a lot of harassments that women face in society, domestic arena and workplaces. Also, taking into cognizance the patriarchal mindset of senior judicial officers including the Supreme Court Judges, advocates and other officials, he also filed a written submission seeking a mandatory training for all lawyers on gender sensitization and improvement of trials pertaining to sensitive issues towards women.

Moreover, since the inception of Supreme Court of India nearly 70 years ago, only eight women judges have been appointed to the supreme court with the first Judge Ms. Fathima Beevi who was too appointed after 40 years of its establishment in 1989. It is not only the apex court but also the high courts which have shown a negative reflection of the share of women in the participation of carrying the judicial burden. Out of the total 1079 judges of 26 High Courts across the country, there are merely around 80 females occupying the office of a judge in the courts just below the apex court.

With the recent unfortunate trends of increasing cases of crimes against women in forms of domestic violence, rape, attempt to rape, dowry harassment etc., the need of women judges and advocates has been felt more than ever to get hold of and take cognizance of matters pertaining to interests of women and moreover, preventing judicial miscarriage by taking a balanced view of the cases brought up by the appellants and provide justice in line with the laws of the country. Still, there is even a lack of women advocates in the bar to take up these issues to the doorstep of the courts and women judges to provide justice to the needy and ensure at least an equal representation in the collegium.

REASONS BEHIND SORRY STATE OF GENDER PARITY IN THE JUDICIARY

The Indian judiciary has always stood on slippery grounds whenever the topic of representation of women has been raised as judges in the courts of law. In various high – profile cases pertaining to crimes against women, sometimes there have been no female judges to hear out the appellants’ pleas and help them in their pursuit to tryst with justice. For instance, in the famous case of Rupan Deol Bajaj vs Kanwar Pal Singh Gill in 1995, just 26 years ago, there was no female judge in the entire collegium of supreme court to hear out the plea of Ms. Rupan Deol Bajaj who was not only a senior IAS officer but also a woman first. Scenarios like these have proven to be a dark spot on the system of representative judiciary enshrined in the core and spirit of the Indian Constitution.

In a recent note by the Ex – CJI Bobde, issues like domestic responsibilities, raising children, burden of fulfilling various roles assigned to women like Homemaker, wife, mother etc. and the patriarchal mindset of the society creates a wall of hindrance between women willing to take up judicial positions and the vacancies. Many a times, the judicial roles and the legal profession demands a huge devotion of time and unparalleled dedication towards fulfilments of targets and duties which cannot, very often be met along with the domestic burden which snaps the chance of women entering into the profession. Moreover, many a times there has been a huge bias against women by the collegium in promotion of women from posts of lower judicial officers to higher offices like judges of hon’ble high courts or supreme courts.

Even in the farewell speech by one of the most revered judge of the Hon’ble Supreme Court, Justice Indu Malhotra, she quoted that “Society benefits when gender diversity is found in the bench.” Also, the ex CJI Bobde had rightfully remarked in the case of M/s PLR Projects Pvt Ltd. v. Mahanadi Coalfields Ltd. that it is high time India should get it’s first woman Chief Justice. Following the same line of thought, eminent justice R.F Nariman also quoted that the time isn’t very far off when India will get it’s first lady chief justice.

Whereas various reasonings and justifications have been given for lack of women in the Indian legal framework like domestic responsibilities, commitments towards children and family, risks associated with the profession etc., we can note a significant difference between representation of women in the workforce in equally tedious and demanding sectors of employment like medicine, education, engineering, finance and many more with women even becoming the CEOs and CFOs of multi-billion dollar MNCs and corporates. However, the share of women in corporate law firms or other alternative legal fields especially dealing with out of court settlements is slightly higher than those joining litigation or entering courtroom practice. The reason behind this difference is that even after 75 years of Independence and 72 years of the Constitution coming into force, the courts in India which are the workplace of majority of lawyers and judges still continue to be very less women-friendly and gender sensitivity is quite low.

WHAT CAN BE DONE TO IMPROVE THE SITUATION?

Nearly 50% of the students who take up the study of law in India are females. Promoting women to higher positions in the judiciary as well as giving them the chance to get appointed as Senior Advocates or eminent lawyers in the country would act as a huge source of inspiration and motivation and make them look up to various female role models in the country, something which is absent in the present age. Not only this, this step would act as a huge initiative towards breaking the shackles and stereotype associated with women and the legal profession which would make both the judiciary and the legal profession more representative and ensure that Article 14 and Article 15 of the Indian Constitution are upheld in both letter and spirit leading to fulfillment of the dream of representative judiciary in India in a true sense.

Even in the western countries like United States of America and Britain and even ICJ has seen huge contributions made by women either as judges or Chief Justices of Supreme Court leading to not only an improved status of women and their higher stake in the judiciary but also formation of a plethora of laws which have promoted women empowerment and helped to uplift the economic, social and political status of women. In India too, though women have enjoyed a very less rate of participation in the judicial decision-making process and practice of law, several landmark judgments have been passed by eminent jurists and even matters pertaining to highly controversial issues like LGBTQ+ rights, Sabarimala Judgment and many other cases have been taken by women judges and have garnered a huge support from the legal fraternity.

Thus, it is high time Indian Judiciary wakes up to the need of having a greater percentage of females present in the courts and acting as advocates and judges, thus leading to solutions of a huge bundle of social and legal problems women face and ensure that both the genders get equal say in formation and interpretation of laws equally affecting them and seek justice from the courts of law.

AUTHORED BY:  AKASH SHARMA

REFERENCES

https://theprint.in/judiciary/only-2-woman-judges-in-sc-and-82-of-1079-judges-in-hcs-judiciary-has-a-gender-problem/557564/

https://theprint.in/judiciary/3-women-lawyers-resolved-indias-biggest-insolvency-case-now-they-want-more-women-in-courts/518381/

https://indianexpress.com/article/india/improve-representation-of-women-in-judiciary-sensitise-judges-ag-to-sc-7079925/

https://thewire.in/women/women-domestic-responsibilities-and-indian-judiciarys-grand-patriarchy

https://www.theleaflet.in/time-to-bring-in-gender-parity-in-indias-courts/

https://www.article-14.com/post/the-higher-judiciary-s-gender-representation-problem

https://www.ili.ac.in/pdf/uss.pdf

https://www.barandbench.com/columns/no-one-asks-why-women-lawyers-decline-offers-to-become-judges

https://www.scobserver.in/beyond-the-court/justice-indu-malhotra-adjudicated-decisive-constitutional-rights-and-arbitration-law-cases

Image Source: https://ms-jd.org/blog/article/issues-affecting-women-in-the-legal-profession

 


“Sexual Orientation is natural. Discrimination on the basis of sexual orientation is violation of freedom of speech and expression”

-Supreme Court of India in Navtej Singh Johar vs. Union of India

According the Census 2011, 0.4% of the population accounts for Third Gender, however the real figure might be different due to fear of social stigma.Historically, members of the Transgender community have faced oppression and stigmatization in our country. As per reports of NHRC, only 2% of trans individuals live in family. In regard to education, reports states that about 15% were harassed by their teachers and 52% by their peers which leads to discontinuation of the education. Trans individuals are also excluded from economic activity, Report states that 92% of individuals were denied of jobs being completely educated due to their gender solely. After the rigorous protests and activism by various social organizations. The much-awaited legislation in respect of transgenders was enacted namely, Transgender Persons(Protection of Rights) Act, 2019 and the rules framed within. The TPPR Act is a milestone for India it plays a vital role in defining and guiding rights of transgender community and obligations of various stakeholders. The Act has been enacted on the footsteps of the NALSA Judgement where the Supreme Court conceded the fact that Indian laws function in a binary i.e.; male and female and it recognized the Transgender individuals as distinct from the two and gave the name as “THIRD GENDER” under the Constitution. The Apex Court while doing so upheld their Right to privacy by stating that these persons need not go under any examination or biological test. “Sexual Orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to dignity and self-worth of the individual. The right to privacy and protection of sexual orientation lie at the core of the fundamental rights guaranteed under Article 14,15, and 21 of the Constitution”[i]. All fundamental rights available to every citizen under Part III of the Constitution are available to them as well and quoted that – “Everyone has Right to Life. No one shall be arbitrarily deprived of life, including by reference to considerations of sexual orientation or gender identity.” Various directions were given by the court to respective state governments to develop proper mechanism to realize the rights of the transgender persons by developing social welfare schemes, recognizing them as “socially and educationally backward class of citizens”, public awareness programs to tackle the stigma and provisions for legal recognition of the “third gender”.

 

 

Key Features of the Law:

1.      Scope of “Establishment”-In its wide ambit includes any company, association, firm, cooperative, trust agency or institution and there is no requirement of minimum number of employees.

2.      “Transgender Person” – Include all the people whose gender does not conform or match gender assigned to them at birth. Includes both trans-man and trans woman (whether or not they have gone under Sex-reassignment surgery or any therapy) Also, it includes socio-cultural identities such as “kinner”, “hijra”, “aravani” and “jogta”.

3.      Non-Discrimination of Transgenders in terms of Employment- All people and organizations’ have a duty to ensure that transgender persons are not discriminated or unfairly treated in employment matters such as recruitment, promotion etc. A transgender person cannot be terminated just on account of being a transgender.

4.      Non-Discrimination of Transgenders in terms of Access to Education, Healthcare and services for public- It marks the prohibition from denying, discontinuing, or treating a transgender unfairly in respect of access to and enjoyment of any goods, services or privilege that is meant for public purposes.

5.      Penalties to Employer for Non- Compliance of Law- Anyone in violation of the provisions of the TPPR Act, 2019 can be imprisoned for minimum of 6 months which may extend up to 2 years and with fine.

 

Obligations created by Law for Employers:

1.      Formulate and widely disseminate on “Equal Opportunity Policy” which would also be published on website as well as in the work area for public access.

2.      Make structural and infrastructural changes in establishment to make friendly environment. Provisions related to gender neutral restrooms, hygiene products and provision of other health services that employee with intersex variation might need.

3.      Reviewing the Anti-Harassment Policies formulated by them in the spirit of the TPPR Act, 2019 to ensure that transgenders are not subjected to any kind of Sexual Harassment. It imposes duty upon the employer to keep code of conduct in check.

4.      Appointment of a Complaints Officer and have a grievance redressal mechanism. Details of the complaints officer shall be displayed on the website or on conspicuous places of office premise.

5.      Conduct awareness/sensitization programs for employees for the purpose of Nuances of the law and penalties under it. To ensure this organizations can have workshops, seminars and talk related to the diversity and inclusion.

6.      Adopting Gender-Neutral language at Workplace.

 

It is peculiar to take note that Employers should not see the Compliance thorough narrow lens of just evading with the Penalties and legal consequences. Rather, true spirit of law should be realized and hence ensured.

 

The Judiciary is the Guardian of Constitution it can always guide us about what path to follow but the implementation is always left open at our end and it has long way to.Key initiatives are required from our side to bring a full stop to the social stigma such as changing our mindset and stop seeing transgenders as someone different from you on an individual level. Companies can also take up various practices such gender-neutral dress codes, gender neutral restrooms, security guards round the clock, well-li complex which even include transportation and parking spaces.

As quoted in the NALSA Judgement- “Members of LGBT Community and their family members owe an apology from society for being denied equal rights over the years”[ii]and now is the time we should pledge to not to repeat the mistakes done in past and take corrective measures to witness diversity in workplaces and transgender at Economic front as well.

Authored By: Advocate Somya, Practicing at District Courts, Gurugram.

[i]Justice K.S. Puttaswamy (Retd.) and Anr Vs Union of India and Ors (2017) 10 SCC 1

[ii]AIR 2014 SC 1863

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Battered Women Syndrome[1] (BWS) is a pattern of psychological and behavioral symptoms found especially in women who have been victim of an abusive relationship for a very long period of time. In order to end this chain of domestic violence, these women kill their abuser, instead of terminating this unhealthy relationship.

Most of the common law countries have recognized the gender-sensitive issues by accommodating the experience of battered women and bringing social changes, however the situation in India is a little different.[2]The article will highlight that as a feminist model of jurisprudence, Battered Woman Syndrome needs to seek judicial recognition in India and needs to be incorporated in Indian Criminal Framework.

Stages of Battered Women Syndrome

The cycle of BWS consist of three stages namely, tension building phase, battering phase and honeymoon phase.

Stage one is tension building phase where women experience minor physical violence and verbal attacks by her abuse. At this stage she attempts to pacify the attacker however tension slowly builds and causes low-level conflict.

Second stage is the battering stage; the abuser subjects the women to extreme physical and mental violence. Here acute battering incident takes place and this is the reason which creates most stress for the women and causes her to behave in a particular way.

The second stage is followed by a final stage which is the “honeymoon phase” where the batterer expresses regret, remorse and exhibits “contrite loving behavior.” The batterer at this stage tries to win the confidence back

 “Why doesn’t she leave?”

The most prominent reasons she stays with her abusive husband is that she endures psychological and physical violence for so long that she develops a phenomenon called ‘’learned helplessness’’[3] which transforms her into a submissive woman which results in her accepting battering as a part of her life.

It was argued by Lenore Walker that the development of “learned helplessness” in the battered women leads them to become impervious to the serious phenomenon of death. Continuation of the BWS cycle eventually results in making women believe that either they will be killed by the batterers or the batterer will kill them.[4]

As per the National Domestic Violence Hotline, the person who leaves the relationship experience long lasting complications to the extent that they consider up to several times before they finally leave.

In majority of the cases women lack physical and mental strength to fight back with their abusers so when violence reaches them, these women kill their batterers in non-confrontational circumstances or in a provocative stage.

Moreover, the three stage of battering sometimes provide positive reinforcement from the batterer and leaving the house would have adverse economic consequences in many cases where women have no means of earning money. Leaving the husband’s house would mean placing herself and her children in adverse economic and physical position.

Historical Perspective of BWS

During colonial times, husband was seen as the master of his household which empowers him to control his property, and in earlier times women were given the status of property. Moreover as per the common law doctrine of family privacy, the judiciary decided not to intervene into marital relationship and left the woman on her own fate. The justification of values of marital privacy invoked immunity from prosecution and in-turn justified the prerogative of husbands beating their wives.

BWS was developed as a reaction to the fact that women perceive situations differently from men. The doctrine of self-defense in traditional times was based upon the experience of mainly men and there was hardly any accommodation of the self-defense for battered women[5] and their encounter with the provocative situation which were different from those of men. There was heightened sensitivity observed in battered women regarding the impending violence. Furthermore they perceive danger more frequent and sooner than men.  

Judicial recognition of BWS in US and UK

(A) UNITED STATES

The BWS system was first recognized in USA where the nature of domestic violence within the families raised the political concern which helped in bringing out the concrete policy reform in the legislations and criminal justice systems. Initially BWS was used only for testimony purpose and to claim justification for self-defense.

In a popular case of Ibn-Tamas v. United States,[6] where the defendant’s behavior were found matching with the woman exhibiting BWS thus the trial court was granted to consider the BWS testimony.

Similarly in the case of State v. Leidholm,[7] it was ruled by the court that the expert testimony is admissible and the prior history of the abuse need to be taken into consideration in order to determine the guilt of the accused, i.e. wife.

The same principle of law was further applied in the case of State v.Wanrow,[8] where the abusive husband was large, intoxicated and standing just behind his wife, who was on crutches. It was observed by the court that the circumstances pertaining to the defendant becomes major factor in determining whether the amount of force used was reasonable and honest belief.

The ratio of physical strength is relevant information for objective determination of the perceived subjective threats in the mind of the battered woman. Hence the expert testimony was allowed in this case and it was based on the theory of cyclical violence for the admission of self defense.

(B)  UNITED KINGDOM

The jurisdiction of BWS is different in UK; here the partial defense of provocation is taken into account.  R v. Ahluwalia[9] was the first case in UK to accept BWS as reliable evidence, wherein the wife, Kiranjit Ahluwalia, sprinkled petrol on her sleeping husband and set the bed on fire. It was found out that she was subjected to frequent and severe abuse. The Court was of the view that mental state of the accused is a pertinent factor to be taken into account to determine whether the defense of provocation to be granted or not.

However the traditional English Law defines provocation as an act which is so sudden and provocative that causes any reasonable man to lose his self-control for a certain time period.

Based on the traditional notion of provocation, the court in the case of R v. Thornton,[10] convicted the wife who stabbed her long-time abusive husband. Moreover this standard application was upheld in several cases with the reasoning that a cooling-off period after provocation would indicate a premeditated intention on the part of the accused.

Nonetheless, in English Court, the testimony of BWS was given serious consideration to the provocation even on a delayed response by the battered defendant.

BWS in Indian Criminal Court

The position of BWS is not recognized in India, women in the criminal court are portrayed as mentally deficient, irrational creatures and despite the fact that such actions are taken due to provoking circumstances. There is a need to overview cross-jurisdictional cases in order to evolve a set of fundamental principles for the inclusion of BWS in Indian Criminal Code.

BWS was first recognized in India in the case of Manju Lakra v. State of Assam,[11] wherein the husband was killed by his wife when he came home in a drunken state and started abusing and beating her. She was held guilty of murder by the trial court; however, when appealed before Guwahati High Court, it referred to BWS and observed that the victim in this case is not the husband but the wife.

Various contentions were raised where battered women kill her abusive husband in non-confrontational circumstances and fail to fall under the ‘heat of the moment’ condition for the defense of provocation. The courts in Poovammal v. State of Tamil Nadu[12] have considered “sustained provocation” as an extension of first exception of section 300 of IPC, which is having grave and sudden provocation to deprive the accused the power of self-control.

Similarly, in the case of Amutha v. State, it was held by the Madras High Court that the wife tried killing her daughter and herself due to the provocative conduct of her husband. When the wife survived, the court granted her anticipatory bail because it recognized the BWS. Recently, in 2016 in the case of State v. Hari Prashad, an accused husband was convicted by the Delhi High Court due to his provocation which led the wife to commit suicide.

Conclusion

It is a need of an hour that Indian Criminal Court should recognize the history of the abuser, its resultant psychological impact and links it with the atrocities that a battered woman had to suffer. Such a measure will not only have a huge positive impact upon woman but also provide justice to her children.



[1] Lenore E. Walker, The Battered Woman Syndrome 45 (Harper, 1980).

[2] Lenore E. Walker, Who are Battered Women?, 2(1) Frontiers: A Journal of Women’s Studies 52-57 (1997).

[3] Abramson et al., Learned Helplessness In Humans: Critique and Reformulation, 87 J. Abnormal Psychol. 49, 50 (1978).

[4] Lenore E. Walker, supra note 1, at 86.

[5] David L. Faigman, The Battered Woman Syndrome And Self-Defense: A Legal and Empirical Dissent, 72 Virginia L. Rev. 619 (1986).

[6] Ibn-Tamas v. United States, 407 A 2d 626 (DC 1979).

[7] State v. Leidholm, 334 NW 2d 811 (ND 1983).

[8] State v. Wanrow, 88 Wash 2d 221: 559 P 2d 548 (1977).

[9] R. v. Kiranjit Ahluwalia, (1993) 96 Cr App R 133.

[10] R. v. Thornton (No. 2), (1996) 1 WLR 1174.

[11] Manju Lakra v. State of Assam, 2013 SCC OnLine Gau 207: (2013) 4 GLT 333

[12] Poovammal v. State of T.N., 2012 SCC OnLine Mad 489.

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Authored By: Nimisha Mishra

 


INTRODUCTION :

Lien is recognized as a remedy and is taken into consideration as a right. The foremost purpose of the contract of lien was that it had been not between the parties and also the party had its rights because it absolutely was imposed law by the common law courts.

Lien is that the proper to detain the possession of another person's property till the person meets strain of the person in possession. The demand is also any- performing an obligation and paying a due sum of money. When there was further progress in trade and commerce, the Court observed that leaving such remedies freely can cause all and varied recklessly holding on to whatever he had. And as a result, it can hamper trade and commerce.

The Honorable Supreme Court explained the character of the right of Lien by stating that “Lien in its elementary sense could also be a right of a private to retain the possession of products until the strain of the possessor is satisfied.”

In the Judgment of Diplock in Tappenden V. Artus, the character of Lien is described. There is one of the rights that Bailee has i.e. Right of Lien.

WHAT IS THE IMPORTANCE OF LIEN?

Lien is that the right to retain the possession of another person's property till the person meets the stress of the person in possession. Lien had the remedy and it had been recognized as a right. The idea of the contract of lien was that it absolutely was not between the parties, and also the party had its rights because it absolutely was imposed law by the common law courts.

RIGHT OF LIEN :

Lien is a term that means “to retain the possession of some goods [[i]]”.The right of lien is one of the rights of an unpaid seller against the goods the property is transferred to the buyer. Lien can only be exercised when the price of the goods is not paid not for any other charges due against the buyer. The rights can only be employed on the attainment of the following conditions:

1.      The goods must be in the possession of an unpaid seller.

2.      The goods can only be retained when the payment of the price of the goods is unpaid [[ii]].

The right of a lien subsists only for the cost of stock as explicitly put in Section 46(1) (a) as held in the case of Transport & General Credit Corp. v. Morgan[[iii]]the rights completely depend upon the statutory provisions and not upon any equitable consideration

TYPES OF LIEN :

There are two types of lien which are as follows:

1.      Particular Lien (Sec-170)

2.      General Lien (Sec-171)

In a Particular lien, the person reserves the correct to retain the possession of the products until the costs due in respect of the property are paid.

In the General lien, the person features a right to retain the possession for the payment of the sum which is owed and whether or not the payment isn't connected with the property in possession

.GENERAL LIEN (SECTION-171) :

The right of “General Lien”, as provided in sec 171, means the proper to carry the products bailed as security for a general balance of the account. Lien allows a bailee to keep any goods bailed to him for any amount given to him whether in respect of those goods or the other goods.

For Example, Two securities are given to a banker, but a loan has been taken only against one amongst them, the banker may detain both securities until his dues are paid. Under  general terms of a trade, a number of imported meats was stored with a warehouse keeper, it has been given that he has a right to keep meat under his custody due in respect of other good [[iv]].

SECTION-171 OF INDIAN CONTRACT ACT, 1872 :

General lien: Bankers, factors, Wharfingers, attorneys of the supreme court and policy brokers may, in the truancy of any particular contract to the contrary, keep as collateral for a general balance of the account, any goods bailed to them; but no other persons have a right to retain, as security for such balance, goods bailed to them unless there's express consent thereto effect.

In a case of Rushforth v. Hadfield, particular carrier goods made an attempt to mention a lien on rock bottom for its usage of practice for trade and commerce. He carefully noted that there is an obstacle within the case of a lien when there is a case of insolvency. During this particular case, it had been also noted that lien causes a superb deal of inconvenience when it involves the generality of the traders because they supply many advantages to certain individuals, a special privilege who claim to possess the special privilege against the body of the creditors instead of coming with them for the sake of insolvent of the state.

PARTIES ENTITLED TO GENERAL LIEN :

The right of a general lien is a benefit and is particularly given by Section 171 on certain kinds of bailee only. They are:

1.      Bankers

2.      Factors

3.      Wharfingers

4.      Attorneys of a High Court

5.      Policy- brokers

We will discuss all the above-mentioned rights of the general lien in detail.

1.      BANKERS:The final lien of bankers, as judicially recognized and restrained in Section 171, attaches to all or any goods and securities deposited with them as bankers by customers or by a 3rd person on a customer’s account, provided there's no contract, express, or implied, inconsistent with such lien[[v]]. The Supreme Courtcited the subsequent passage from CHALMERS ON BILLS OF EXCHANGE [[vi]]on the concept of banker’s lien: “A bankers’ lien on negotiable securities has been judicially defined as ‘implied pledge’.

2.      FACTORS: The word “Factors” in India, as in England, means an agent entrusted with possession of goods for the purpose of selling them for his principle[[vii]]. He has a general lien on the stocks of his principal for his balance of the account. Thus where a motor car was delivered for sale, he was entitled to retain the car until his charges were paid [[viii]].

3.      WHARFINGERS: “Wharf means a place adjoining to water, pre-owned for the motive of loading and unloading goods, and over which the goods pass in loading and unloading. The primary idea is that it is a place used, not for storing goods, but in the process of transit to or from water.” “The fact that a manufacturer has a wharf upon which he receives goods brought to him by customers, does not entitle him to claim lien as wharfinger upon such goods [[ix]].”

4.      ATTORNEY OF HIGH COURT: The attorney or a solicitor also reserves a right of general lien when it comes to his payment of fees for the services which he has rendered. It is mentioned in the landmark case of R.D Saxena v Balram by The Supreme Court that no right will be given to the advocate’s paper over the fee which is unpaid.

5.     POLICY BROKERS: A Policy Broker is an insurance agent who is employed to effect a policy of marine insurance. His lien extends to any balance on any insurance account due to him from the person who employed him to affect the policy. A right is given to the insurance agent with respect to a general lien.

 

CONCLUSION :

Lien is one in each of the rights available to someone to retain possession of products owned by another person until the assertion of the person having the control is satisfied. Under the Indian Contract Act, 1872 the bailee is unengaged to employ or operate the correct of Lien during a Contract of bailment.

Basically, if there's a general operator who is seeking to exercise a lien so resolve to determine the matter through something which is potentially difficult as a matter of economic negotiations to a successful conclusion. A lien may be subjected to an outsized number of risks, but behind these risks liens actually continue huge assistance and support to operators.

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Authored By: Palak Nigam & Prashant Shukla



[[i]] RSN Pillai, Bagavathi, Business Law, S Chand, 3rdedn 2010, p.262.

[[ii]]Section 47(2) SOGA.

[[iii]] 1939 1 Ch 531

[[iv]]  Jowitt & Sons v Union cold storage Co,(1913) 3KB 1.

[[v]]  Merchantile Bank of India Ltd v Rochaldas Gidumal & Co, AIR 1926 Sind 225.

[[vi]]  (13th Edn) 91.

[[vii]]  STUART CJ in E.H. Parakh v King Emperor, AIR 1926 Oudh 202.

[[viii]]  E.H. Parakh v King emperor, AIR 1926 Oudh 202.

[[ix]] Miller v Nasmyths Patent press Co, ILR (1882) 8 CAL 312.