What is the Lemon Law?

For many people, their vehicle is the only way to get where they need to be. When it breaks down on a busy freeway or other important road and cannot be repaired quickly by an authorized dealer then you may have been sold what’s called a “lemon.” Lemon laws are regulations that protect consumers in this situation. Typically, if your car can’t be fixed after its first few attempts at attempted repairs under warranty rights (or even outside those), then the manufacturer must either repair it for free or give you trade-in value for another new one from them.

Is My Car A Lemon?

Lemon cars are vehicles that seem to have constant issues with one or various of their major systems. As you might imagine, these vehicles can cause their owners a great deal of frustration and stress. But the worst part is that lemons will cost you some serious money. Dealing with lemon makes it difficult for many people as they try to go about everyday activities without facing any interruptions. 

The easiest way to tell you’ve got a lemon is whether your car suffers from a recurring problem or defect. This issue must affect the car’s…

• Usability
• Safety
• Value 

…within a specific period of time for it to be considered as such. A vehicle that has received service three to four times or more in its warranty period would qualify for being classified as one under these criteria and could become subject to state law protections against any further repairs on behalf of the company selling them.

A car with a malfunctioning steering or engine would be considered a lemon. Whereas, malfunctioning windows or a radio won’t make your car be considered a lemon.

Can You Make a Lemon Law Claim Yourself?

You can resolve it on your own if you’re feeling confident enough in the matter at hand but most people who try to handle this without an experienced lawyer’s help usually come out getting less than they deserve from their difficulties. Lemon Law lawyers are experts of what is needed for these cases so make sure that someone like them represents your case properly or else all will be lost by not having the right representation available.

Many lemon vehicle victims may feel confused about the law and what to do. They don’t know how long the process will take or why there hasn’t been an answer yet, but they want some relief from this whole scenario so that things can start getting better again as quickly as possible. The best California lemon law attorney is a great choice for you if you want your claim to get approved and get the most out of your recovery.

How Can A Lemon Law Attorney Near Me Help?

Free Legal Representation

Whenever you start talking about hiring a lawyer of any kind, it makes sense to worry about costs. However, the good news is when it comes to Lemon Law cases that claimants do not need to pay legal fees.

The law enables lawyers fighting for consumers to receive payment from the manufacturer or dealer, meaning that they are able to fight on behalf of their clients without taking any money themselves. This is a win-win situation as it ensures not only should manufacturers and dealers cover consumer’s interests but also provide legal representation free of cost.

Build a Strong Case

A lemon law attorney can take the stress and confusion out of your case. They will know every type of scenario that might arise, so they have a plan for whatever situation you may face. Whether it’s days or months before filing suit, with their guidance you will get the maximum compensation.

Get the Most Out of the Recovery

Your lemon law attorney San Diego is an expert that has years of experience in handling lemon law cases under their wing. This is why you should get their help as they specialize in the lemon law. Negotiating with your manufacturer yourself can be tough as they will have their own team of professional attorneys and you can get way less than what your attorney could have got you.

The California lemon law attorney has the expertise regarding the lemon law, and they also have a good reputation in the courts as well. This will make sure that your lemon law attorney gets the most out of your claim and provides you the best recovery possible.

Final Words

The Lemon Law is designed to protect consumers from purchasing cars that are defective. If you think your car may be a lemon, it’s best to consult with an experienced San Diego Lemon Law attorney who can help you understand what legal options are available and how they work.

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Today, COVID-19 continues to disturb the worldwide supply chains and revenues. Companies continue to lose profits and incur additional costs. Several businesses are turning to their commercial insurance policies, hoping to claim alleviation.

Many have claimed business interruption insurance as it is the most plausible provision. Technically, a pandemic like COVID can be ruled as an unexpected natural calamity.

However, whether or not a business is entitled to a payout significantly depends on its policy’s language and the circumstance of the loss. Claiming with COVID as a rationale can be complicated and difficult.

Business coverages technically require physical damage to validate a claim. When an infection happens, employees might be covered for by health insurance, but the company itself might not regain its financial losses.

If you own a ranch and the cows die of disease, you could claim for loss of revenue that amounts to the potential profit you would’ve acquired. If your employees get ill, they could receive money from your health insurance, but your revenue loss from employee absences would be a different story.

Also, there is a thin but ever-present line separating damage from contamination like how COVID will be considered as any of such when a claim is made significantly depends on the policy and situation.

Business Interruption Insurance – What is It?

A business interruption policy is an insurance service whose goal is to secure a business owner from encountering financial losses that result from a company’s inability to put an insured asset or property that has been impaired by a peril-in-contract to its regular and profitable use.

A business interruption insurance claim typically covers revenue loss that an owner could have acquired if the “business interruption” in question hadn’t taken place. It also provides coverage for the continual operating expenses incurred in the period required to restore the property from its damaged state.

Physical Property Damage – The Trigger for Business Interruption Coverage

Usually, you can only regain revenue loss from your business insurance policy when physical damage to your property happens. When products, hardware, employees, and others suffer damages, then you are entitled to claim money from your insurer.

Thus, property damage insurance is a minimum requirement, and the policy is commonly part of a commercial property insurance contract. Hence, physical damage is often required for any coverage to be given, and business interruption for reasons other than physical damage is not enough for a claim.

Here’s an example.

There was a company whose business was supplying cooking oil and products made from beef tallow. When the USDA disallowed the importation of beef products from Canada because of mad cow disease, the company made a claim for business interruption coverage.

After investigating the damage, the embargoed product was declared uncontaminated, leading the court to justify that the policy in question may not cover any loss. If the property, cooking oil and shortening, had evident contamination or damage, the company would have succeeded the claim.

When it comes to commercial property insurance, policies may cover losses incurred by a government-enforced property closure.

Coverage typically applies when an insured is disabled to utilize its property for operations and profit because of a civil authority’s order. The usual reason is physical damage to a nearby property.

The principle tells us that civil authority claims usually require physical damage to trigger coverage – just like with business interruption policies and general commercial property insurance.

If any physical damage evidence does not back up a business closure or revenue loss, coverage typically will not occur.

Business interruption insurance policies can also secure an insured from financial loss that results from damage to a customer or supplier’s property. Still, the trigger will be physical damage.

Whether business insurance should cover a company’s economic loss incurred by COVID can be a technical complexity. One would have to make proof of the ‘damages’ for a claim to be successful.

How COVID Triggers Coverage

Luckily, the court has recognized the emergency and severity of COVID-19. Court decisions have ruled that when a threat of contamination or actual infection happens in an insured property or an adjacent property, a claimant must receive insurance from the business interruption or commercial property policy.

When the government orders a lockdown, an insured can claim for coverage of financial loss from the insurer.

COVID damages are now equal to physical damages.

If you own a business or company and are needing to regain lost revenue, cover for affected salaries, or recovery from losses that resulted from a total shutdown of business operations, and other unfortunate effects of the pandemic, you can hold your insurance carrier accountable. All you need is to have a strong claim.

You will need the help of an expert public adjuster like allcityadjusting.com to get the most out of your insurance policy because an insurance company’s natural motive is to pay you less or nothing. Insurance companies do not earn by giving money.

Suppose you have a business or company that has business interruption or commercial property insurance coverage and are suffering losses because of the pandemic. In that case, you need to call a lawyer as soon as possible so that you can claim money for your recovery.

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Section 32 (1) of Indian Evidence Act, 1872 makes relevant and admissible evidence a Dying Declaration i.e., a statement made by a person who is dead and statement relates to cause of a death or to the circumstances of transaction resulting in his death.

Dying Declaration is an exception to Hearsay Rule of Evidence. As a general rule hearsay evidence is excluded and the best evidence is given in every case [Myers v DPP][1]. Section 60 of Indian Evidence Act, 1872 also declares that evidence in all cases must be direct. However, Dying Declaration creates an exception to this rule and the objective behind making Dying Declaration relevant in spite of it being a hearsay , can be found in the maxims – “NEMO MORITRUS PROESUMITUR MENTICE” which means that a person will not meet his maker without a lie in his mouth.

Dying Declaration is permissible on the principle of necessity as the person whose statement is offered is either dead or not available and no better evidence can be had.

 The general principle on which this species of evidence is admissible is that these are declaration made in extremity, when the party is at the point of death, when every hope of this world is gone, when motive to falsehood is silenced and the mind is induced by the most powerful consideration to speak the truth [R v Woodcock][2]

In the above case it was observed that ‘it is situation so solemn considered by the law , as creating an obligation equal to that which is imposed an obligation equal to that which is imposed by an oath administered in a court of justice’.

Essential element for invoking Sec.32 (1)

ü There should be a statement oral/written of a person who is dead.

ü The statement have been made as to cause of his death or as to any circumstances of the transaction which resulted in his death

ü The cause of that person death must be in question i.e., it must be in fact in issue.

ü It is not necessary that when the statement were made the person was or wasn’t under an expectation of death what matters is that the person making the statement must eventually die.

ü Dying Declaration will be relevant whatever may be the nature of proceeding i.e., under section32 (1) in civil as well as criminal proceedings

The testimony of an ordinary witness is an admissible as evidence only when other party is given the opportunities to cross examine such witness. This opportunity of cross examination is not possible under section 32(1) because the person making the statement is dead

However, by virtue of sec 158 IEA the statement can be contradicted or the credibility of the maker of the statement can be impeached in the same manner as that of an ordinary witness

A statement would be relevant under sec. 32(1) only when the death of a person making statement is proved. This is provided under section 136 IEA which state that if the fact proposed to be true is one of which evidence is admissible only upon proof of some other fact. Such last mentioned fact must be proved before evidence is given of the fact first mentioned. This implies if Dying Declaration has to be proved then party proving Dying Declaration will have to first prove the death of a person. Death has to be proved and even be presumed under section 107 & 108 IEA.

Corroboration of Dying Declaration

The S.C in Atbir v. Govt. (NCT of Delhi)[3] has summed up the legal proceedings governing dying declaration.

ü  The dying declaration can be sole basis of conviction if it inspires full confidence of the court.

ü  The court should be satisfy that the deceased was in a fit state of mind at the time of making the statement and it was not the result of tutoring, prompting or imagination.

ü   When the court is satisfied that the declaration is true and voluntary it can base its conviction without any further corroboration.

ü  It can be laid down an absolute rule of law that Dying Declaration cannot firm the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.

ü  Merely because a Dying Declaration doesn’t contain all the details as to the accordance it is not rejected.

ü  If after careful scrutiny the court is satisfied that it is true and free from any error and coherent as well as consistent. There shall be no legal impediment to make it the basis of conviction even if there is no corroboration.

Difference between English Law & Indian Law in Dying Declaration

1.      In India, Dying Declaration is relevant. Whether the person who made it was or wasnot at the time when the statement was made under expectation of death. However. In England the statement would be relevant as Dying Declaration only when it has been made in a settled, hopeless expectation of eminent death.

2.      In England, the admissibility of Dying Declaration is confined to homicidal cases only. This is not position in India and it would be relevant whatever the charge may be provided the cause of death comes under inquiry.

3.      In England, a Dying Declaration is relevant in Criminal Proceeding only; in India it is relevant in civil as well as criminal proceedings.

Conclusion

No doubt, Dying Declaration is an important piece of evidence to guide the courts in the onerous task of finding the truth. That’s why it is an exception to hearsay rule. And it is permissible on the principle of necessity. Such an important piece of evidence must carry sufficient weight as to the truthfulness of the contents therein. Thus, courts suggested for due caution and if the statement stands to meet the parameters there is enough scope to rely upon it. Section 32(1) of the Act has been intelligently designed in such a manner as to cover any eventuality in respect of a statement which happens the last words of a person who directly perceived the offender.

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1.   Never Negotiate in Front of Your Children

Everyone deserves some innocence in their childhoods. You and your soon to be ex should not discuss issues concerning your relationships in front of the children. You should pick a time to settle your differences when they’re not around.

2.   Go to a Family Counselor

A licensed marriage and family therapist can help you and your children cope with a divorce and your plans for the future. They are trained in talking to children about divorce. They can also help you learn how to communicate respectfully with your ex-spouse.

3.   If Either of You Has Substance Abuse Problems, Get Treatment

The end of any relationship is hard and it can be tempting to self-medicate. However, if you have a problem with drugs or alcohol, it may affect your ability to parent your children effectively and it may affect your custody arrangement.

There is no shame in seeking treatment. A treatment center will be staffed with trained professionals, who can help you to detoxify. They can also provide group therapy and individual counseling.

4.   Hire a Divorce Attorney

No matter how amicable your divorce might be, you wouldn’t be getting divorced if you agree on everything. Hiring a divorce lawyer is always a good idea especially if your spouse has one. An attorney will know the law well and be able to act as an objective third-party.

5.   Decide Who the Custodial Parent Will Be

The parent the child lives with should be the one who can provide the best care. Circumstances such as location, economic stability, and work schedule should be taken into consideration. Both your attorney and your marriage and family counselor can help you with this.

6.   Make a Child Support Arrangement

The non-custodial parent will be expected to pay child support. Child support payments may be made through the Kansas Payment Center. The payments are based on income and assets. Your attorney can help you determine the exact amount.

7.   Strive to Let Your Children Stay in Their Home

If it is possible, the custodial parent should stay in the family home with the children. It will give the children a sense of stability during a time that can feel uncertain.

8.   Do not Communicate Through Your Children

Children should never be used as a go-between in the divorce. You should always remain on speaking terms with your co-parent and discuss anything having to do with custody with one another.

9.   Do not Bad Mouth Your Ex-Partner to the Child

Your kid is not your confidant. You should never gossip about your spouse or make them seem like the enemy to your child.

10.                 Listen to Your Kids

Like anyone else, children want to feel heard. Ask them what their concerns are. Never make any assumptions about their thoughts or feelings.

Divorce is never fun for anyone but it can go more smoothly with the proper planning. Visit thebrightfamilylawcenter.com for more information.

Authoritative Sources:

http://www.dcf.ks.gov/services/CSS/Pages/default.aspx

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‘If the legislative and executive authorities are one institution, there will be no freedom. There won’t be any freedom anyway if the judiciary body is separated from the legislature and executive’ – Charles de Montesquieu

The concept of ‘doctrine of separation of powers’ or ‘trias politica’ was first introduced by a French philosopher, Charles de Montesquieu. According to him, there should be a three-tier machinery of the government i.e. legislature, executive and judiciary.

The idea behind this doctrine was that each organ/branch should have its own set of functions and responsibilities and must not overlap with the functioning of other organs. This would ensure that one organ doesn’t acquire too much power to pass tyrannical laws and would prevent misuse of power.  Montesquieu asserted that in order to effectively promote liberty in its true sense, the three powers should function independently.

It is believed that in order to maintain a stable political system, power needs to be balanced off amongst the various government bodies. The principle of separation of power tries to establish mutual relationship among the organs of the government while ensuring exclusiveness in their functioning. Thus, a strict demarcation of power is sought to be achieved by applying this principle. However, a strict demarcation of powers is not a very feasible idea and thus, the system of ‘checks and balances’ was introduced in the modern day approach towards the separation of power doctrine.

In India, the doctrine of separation of powers has acquired a contemporary approach and doesn’t follow strict separation of powers both in principle and practice.

Even though three organs of government (legislature, executive and judiciary) exist in India and have their own specific functions, they tend to overlap each other’s powers while working in their own ambit. This overlapping of powers is also recognized by the constitution of India.

Many countries follow the separation of power principle in current times; however, not all countries follow it in its strict sense. Around forty state constitutions specify the division of the government into three branches: legislature, executive and judiciary.

EVOLUTION

Montesquieu published a book in 1747, called ‘De L’esprit des Lois’ (The spirit of the laws) in relation with the doctrine of separation of powers.

The origin of the concept of separation of power can be traced back to ancient Greece. In 384-322 BC, Aristotle in his book, Politics, stated that there are three elements in each constitution and the balance between these reflect the balance of the Constitution. According to him, these three elements were the deliberative, the official and the judicial element.[1] He focused on the Constitutional forms of city-states of ancient Greece.

From Greece, it became widespread in the Roman Republic and derived its place in the initial Constitution of the Roman Republic. According to Polybius, the Roman Senate, Consuls and the Assemblies showed an example of a mixed government[2].

Later, during the reign of Edward I (1272-1307), this concept emerged in England, however, took force much later in time. In England, the three divisions were in the form of Parliament, the Council of King and the Courts. In the 16^th and 17^th century, a British politician, John Locke, expressed his views on the doctrine of separation of powers. However, Montesquieu was the first person to articulate this principle systematically, accurately and scientifically.

During the English Civil War, the composition of the English system of government was viewed as the division of powers between the King, the House of Lords and the House of Commons, where the king exercised the executive powers while the other two had control over the legislative powers.

In 1653, English General Sir John Lambert wrote one of the first documents that proposed a tri-partite system of separation of powers and was adopted as the Constitution of England for few years. A further development was observed with the separation of judicial powers from the other to branches. This was executed by giving juridical powers to the Crown to prosecute.

Montesquieu promoted the ‘tripartite system’ in England from 1729-1731. He tried to ascribe the tri-partite system (division of political power between legislature, executive and judiciary) to the British model of separation of power between the Monarch, Parliament and the Courts. However, the close knit connection between the executive and legislative branch led to its failure. From there, the doctrine of separation of powers became widespread due to the colonialism effect of Britain.

John Calvin (1509–1564), a French theologian, suggested setting up of different political institutions that complement and control each other through the system of checks and balances, to ensure a democratic setup and reduce the threats of misuse of political power.[3] Another French philosopher, Justice Bodin also presented his views on the doctrine of separation of powers.

Countries like USA did not have a model of strict separation of powers until the 18^th century. While some states of the USA like New Jersey showed a mixture of powers, the others like North Carolina and Georgia had clear and distinct separation of powers. However, in present times, the doctrine of separation of powers is applied in the strict sense.

Various countries like Uzbekistan have incorporated the concept of separation of powers between legislature, executive and judiciary in their Constitutional structure.

India also incorporated this feature as a part of their Constitution while framing the Constitution in the 20^th century.

Whereas, some countries like China reflect separation of powers in more than three branches. China has five branches of government, namely, the Legislative Yuan, Executive Yuan, Judicial Yuan, Control Yuan and Examination Yuan. This however does not signify a better political system in China as compared to other countries like Uzbekistan or UK.

 MEANING OF THE CONCEPT OF SEPARATION OF POWERS

The concept of separation of power reflects the principle propounded by Lord Acton that says that, ‘power corrupts and absolute power corrupts absolutely’. The reason why the doctrine of separation of power came into existence was that if more and more power is vested in the hands of a single person or a single body then that power becomes highly vulnerable to misuse. Thus, division of power ensures that no organ is able to pass arbitrary decisions by misusing the power.

This doctrine has been defined by various authors over the period of time. However, a general meaning that can be derived is categorized into three features as mentioned below:

a.      One person shall not be a part of more than one organ

b.     One organ should not interfere with the functioning of other organs

c.      One organ shouldn’t encroach on the functions of other organs i.e. it should not exercise the functions of other organs

The concept of separation of powers is based on a tripartite system, in which powers are distributed among the three organs of the government. These powers highlight the jurisdiction of each organ and each organ has to work within the boundaries outlined by their jurisdiction.

The three-tier mechanism of government as prescribed by this doctrine is explained below;

i.                 Legislative

The legislative organ is primarily responsible for enacting laws that express the ‘will of the state’. It wouldn’t be wrong to say that the legislative organ frames the basis of the structure and the functioning of executive and judiciary is dependent on it as until a law is framed, its implementation and application is not possible. The judiciary, in some cases, might act as an advisory body to the legislature but cannot control or function it.

ii.               Executive

The executive branch is in charge of implementation and enforcement of laws framed by the legislature. It also acts as an administrative head of the government and is the impetus of the government. An imbalanced executive can exhaust the government and might lead to its collapse.

iii.             Judiciary

The judiciary is vested with the power to apply the laws and ensure that they are being enforced in a proper manner. The foundation stones of the judiciary are the principles of natural justice, liberty and fairness. The judiciary is often kept independent from the other two organs in order to uphold the principle of a fair judiciary that is free from any sort of bias.

SIGNFICANCE

As mentioned earlier, the highlight of the doctrine of separation of powers is the division of power in order to prevent misuse and abuse of power by one organ.

While introducing the concept of separation of powers, it was widely believed that it would reduce the possibilities of corruption and other forms of maladministration. It plays a vital role in the formation of a balanced government.

The significance of the doctrine of separation of powers can be encapsulated in the following points:

·       Curbs arbitrary rule

·       Protects individual liberty, even in the cases where the government is the violator

·       Puts an end to autocracy

·       Efficiency in the administration is ensured as the power is divided among various individuals

·       Exhibits a ‘government of law’ that doesn’t work according to the whims and fancies of certain people who are in the position of power

·       Independence of judiciary leads to the establishment of a free and fair justice delivery mechanism

 AMERICAN MODEL OF THE SEPARATION OF POWERS

As Jefferson quoted, ‘The concentration of legislative, executive and judicial powers in the same hands in precisely the definition of despotic Government’.

The Founding Fathers of the United States of America (USA) believed that the American states had suffered a highly due to the broad abuse of power by the British Parliament and the Monarchy during colonialism. Thus, a new concept of the system of checks and balances was introduced as a hard-learned lesson from the colonialism.

As a remedy to this abuse of power, they decided to limit the powers of the federal government through different strategies. The branches of the federal government are divided by the exercise of different functions. The executive and the legislative branch were separated in origin by way of separate elections while the judiciary was kept independent.[4]

In USA, the doctrine of separation of powers is applied in a strict sense as the word ‘shall’ is used in the Constitution which implies that it is mandatory to follow the separation of powers in a strict sense.[5]

The works of Montesquieu inspired a number of statutes and legal documents of USA. Some of the most prominent ones are ‘Declaration of the Rights of Man’ and ‘The Constitution of the United States of America’.

Three departments have been established under the Constitution of USA to ensure adequate division of powers. These are:

a.      The United States Congress, comprising of the House of Representatives and the US Senate, with legislative power[6]

b.     The President with the executive power[7]

c.      The Supreme Court of the United States of America along with other US Federal and District Courts, established by law, with judicial power[8]

The case of Madbury v. Madison[9] is often highlighted when it comes to the development of the doctrine of separation of powers in USA. This case established the system of judicial review in USA.

Even though the application of the doctrine of separation of powers in USA is followed in a strict sense, some exceptions to this are seen in the form of the system of checks and balances. These checks and balances include the power of the President to veto a bill passed by the Congress, approval of Senate in the treaty-making powers and the power of judicial review.[10]

Hence, it is true that the application of this theoretical maxim was a difficult task but USA has observed a significant development in the past few years. The efficiency of this maxim when applied, gives rise to the administrative system of the United States of America, keeping in mind the practical implications of the same.

 SEPARATION OF POWERS – INDIAN PERSPECTIVE

The Indian adaptation of the separation of powers model is a classic example of application of the doctrine with various modifications. In India, the focus is laid on ‘separation of functions’ rather than ‘separation of powers’.

The basic postulate under the Indian Constitution is that the legal sovereign power has been distributed between the legislature to make the law, executive to implement the law and the judiciary to interpret the law within the limits set down by the Constitution.[11] Each branch in India has some overlapping powers that ensure harmonious working between all three organs in a democratic manner;

1.     Executive function of the legislative organ – election of President by forming an electoral college

2.     Judicial function of the legislative organ – impeachment of President and Vice President of India, Judges of Supreme Court and High Court and the Chief Election Commissioner

3.     Legislative function of the executive branch – the legislature can delegate its law-making power to the executive branch by way of delegated legislation

4.     Judicial functions of the executive branch – the authority of the president to grant pardon, suspend or lessen the punishment of a person convicted by the courts. Tribunals (quasi-judicial bodies) also exercise judicial functions.

5.     Legislative power of the judiciary – the India judiciary is not only a redressal forum but is also responsible for interpreting the meaning of laws enacted by the legislature which includes expanding the scope of such laws and rights. Judicial precedents also hold a binding value on the lower courts and can be equaled to laws.

6.     Executive powers of the judiciary – the power of judicial review enables the judiciary to review any action of the executive and issue directions in case of dispute. The Supreme Court can also exercise advisory jurisdiction.

The Indian Constitution has expressly adopted some Articles in relation with the doctrine of separation of powers as listed below:

a.      Article 50 – separation of judiciary from executive

b.     Article 122 and 212 – validity of Parliamentary proceedings cannot be questioned in Courts

c.      Article 121 and 211 – conduct of judges cannot be discussed in the Parliament or State Legislature except for the procedure of impeachment

d.     Article 361 – President or Governor are not answerable to courts for exercise of their powers

e.      Articles 53 and 154 – President and Governor enjoy immunity from civil and criminal liability

While applying the doctrines of constitutional limitation and trust in the Indian scenario, a system is created where no organ can usurp the functions or powers assigned to another organ by express or necessary provision, neither can they divest themselves of essential functions which belong to them as under the Constitution.

Apart from this, the Indian constitution has a well established system of checks and balances that prevents capricious and arbitrary use of power.

The essence of the Constitution of India is that it produces a system which is the result of amalgamation of the principle of separation of powers with the doctrine of parliamentary sovereignty in a manner to give effect to both, yet without the rigidity of the two systems. The Parliamentary democracy is cemented as the corner stone of constitutional edifice in preference to the Presidential system of governance.

Therefore, axiomatically it can be said that Indian Constitution does not contemplate separation as embodied in the ‘pure doctrine’, it rather perceives and accords to it in its central sense and not in its literal sense, rather in its purposive sense, i.e. non conferment of unfettered powers in a single body of men and to motivate checks and balances.

In the Constituent Assembly Debates of 1948, a clear vision of the ideal of separation of powers and the reasons for adoption of this ideal is obtained. The development of this doctrine in India has a deep connection with the bitter past experiences, like that of England, where the concentration of all power in the name of one, known as the king, had many evils culminating in a Civil War.

Thus, a common view of the importance of separation of powers in order to ensure Civil Liberties and the Rule of Law[12] was derived. Furthermore, the normative nature of the doctrine, in euphemistic parlance, can be understood as being committed to the achievement of political liberty, as essential part of which depends upon restraining the power of the government and providing for checks and balances.[13]

Judicial Pronouncements in India and Separation of Power Theory

‘The executive is derived from the legislature and is dependent on it, for its legitimacy’, was the observation made by the Hon’ble Supreme Court in the case of Ram Jawaya v. State of Punjab[14].

In the case of I.C. Golakhnath v.  State of Punjab, the Constitution brings in actuality the distinct constitutional entities i.e. namely, the Union territories, Union and State. It also has three major instruments namely, judiciary, executive and legislature.

In the landmark judgment of Keshavananda Bharati[15], the amending power of the Parliament was curtailed in matters of the basic structure of the Constitution. Any alteration to this was prohibited by resorting to Article 368 of the Constitution.

This principle was later reiterated in the case of Indira Nehru Gandhi v. Raj Narain (1975) [16], where the court was of the view that adjudication of a dispute is a judicial function and parliament can never be competent to exercise this function.

Another interesting case is the Swaran Singh case (1998)  where the Supreme Court declared the Governor’s pardon of a convict unconstitutional.

CRITICAL ANALYSIS

The doctrine of separation of powers clearly runs on the lines that a single person or body should not be conferred with the responsibility of all the powers of the government. It acts as a safeguard against tyranny or oppression that might arise as a result of arbitrary decision making.

The essence of this doctrine is derived from the ‘Doctrine of Non-Delegation’ which states that one branch of the government must not delegate its power to another by authorizing the other entity to exercise its own functions or powers.

This doctrine reflects both explicit and implicit forms in the Constitution of countries that impose a strict structural Separation of Powers.

The following interpretations can be drawn from the critical analysis of the doctrine of separation of power:

·       It is highly utopian to imagine a democratic system exercising absolute structure of Separation of Powers. At the same time, complete absence of a structure of separation of powers in a democratic system is also not possible. Thus, a middle way is created in the form of ‘check and balances’ to apply this doctrine into practice.

·       The powers, functions and responsibilities of various organs of the government and mutually inclusive and thus tend to overlap and intersect each other. This often creates confusion in proper allocation of responsibility.

·       There exists an inherent competition among the organs of the government due to the complex nature of powers and responsibilities and this might end up leading to conflicts among the organs in many cases.

·       Important information obtained through this analysis is that the extensive application of this doctrine into our political, social and legal structure is a constantly evolutionary process and is not finite.

·       The modern day states are very different from the state that used to exist few decades ago. They have witnessed drastic changes from being minimal, non-interventionist states to welfare states. This had lead to increase in the number of roles that the state has to cater to.

·       These multifarious roles include protector, arbiter, controller and provider. This omnipresent nature has diversified the functions and has increased interdependence within the organs.

·       This has also developed a key notion of essential and incidental functions of each organ. The primary aim of this distinction is to prevent encroachment of an organ into the essential sphere of activity of the other.

·       The judicial review power acts as a preventive measure to strengthen the foundations of democracy and prevent the administrators and law-makers to exercise their whims and caprices, turning it into a despotic regime.

·       However, the power of judiciary to review shouldn’t be exercised arbitrarily too. An important aspect in this regard is that the power of judicial review doesn’t establish the judiciary as a ‘super-legislature’ or a ‘super-executive’ as stated by Sir A.K. Aiyar.

Hence, it wouldn’t be wrong to say that the doctrine is undesirable and impractical when applied in strict sense. However, this does not render the doctrine invalid and the logic behind the doctrine stills holds immense value. The polarity between various organs is meant to avoid absolutism and bring-in stability.

Thus, a balance between the doctrine of separation of powers and the doctrine of checks and balances should be established for better outcomes.

CONCLUSION

Thus, it can be concluded that the above discussion of the doctrine does not tilt in favor of the ‘pure doctrine’ of Separation of Powers. The principle of the doctrine of separation of power has been accepted by most of the Constitution in a modified and broader sense and has been accepted as an idea functional separation of powers, rather that inculcating the idea of structural separation.

The goals of a democratic country are enshrined in their Constitution and the state machinery is set in a way that it reflects upon those goals. By providing absolute power to a small group of people, the idea of arbitrary rule and tyranny comes into the picture. Thus, separation of powers is very essential to ensure democratic governance in a state. However, this should not be interpreted in a sense that the doctrine of separation of powers is applied strictly or rigidly.

Constitutionalism, the philosophical concept of the constitution also insists on limitations being placed upon governmental power to secure basic freedoms of the individual. Hence, the conclusion drawn out of the study is that there is no strict separation of powers but the functions of the different branches of the government should be sufficiently differentiated in order to cater to the needs of the society.

All three branches of the government; the legislature, executive and judiciary constitute the powerful ideology of effective political system in a country and its importance can be observed while monitoring the political system and advocating new measures when the rights of people are threatened.

The post Application of Separation of Power Theory in India appeared first on Legal Desire Media and Insights.

It’s not just students who are risking their lives if they attend in-person classes. Professors are in danger, as are staff members such as janitors, cafeteria workers, on-campus healthcare workers, etc.

Maybe you got into a university, and you’re starting this year, or you’re returning to school. Either way, you should take a little time to think about the legal ramifications if you get sick, regardless of whether your school currently offers in-person classes or not.

Can You Sue if You Catch Covid-19 at School?

If you have something like a product liability lawsuit while attending a higher learning institute, your victory path is pretty straightforward. All you have to do is:

• Prove what product made you ill
• Get some expert testimony to back up your claim
• Collect the judgment that should come your way     

A case like catching Covid-19 at a university is a more complicated legal matter that will likely require the expertise of a personal injury attorney.  The short answer is that you could indeed sue a school if you contract the coronavirus while attending in-person classes there. 

What’s not so clear is whether you have any chance of winning.

The Difficulty of Winning this Court Battle

Perhaps in a few weeks or a couple of months down the line, we’ll see a class-action lawsuit from some students who:

• Caught Covid-19 from attending in-person university classes
• Are now experiencing some severe health problems

Because the coronavirus impacts people differently, it would be unrealistic to say that young people who get it at school will all recover with no ill effects. Some of them might have preexisting conditions.

Besides, not all college students are 18 or 19 years old. There are plenty of older adults who attend university classes, as well.

If one of these class-action lawsuits hits the courts, or even if a single student tries to sue the school, they will likely find it an uphill struggle. To have a chance, they would have to prove that they caught the coronavirus in class or at a university-sanctioned event.

That would be almost impossible to do. Contact tracing is in place, but you wouldn’t be able to say definitely that you caught it in class, at a basketball game, or anywhere else, since you’re probably moving freely back and forth between many other locations.

The School Will Deny Liability

The university will look for the lawsuit’s dismissal in short order, and the court would probably grant them that. To win this type of suit, you would have to prove negligence. The school would argue that even if they allowed classes to take place, you should have known about the potential risk that you were taking.

It’s hard to argue with that logic, either. Everyone knows about the coronavirus and what it can do at this point unless you’ve been living under a rock for the first half of 2020.

Also, it seems likely that even with universities that allow in-person classes to take place, before too long, they’ll probably make students sign something indemnifying the college of any wrongdoing if they catch Covid-19 there.

If you do end up signing something like that, then you won’t have a leg to stand on legally if you do catch it and want to sue.

Choose for Yourself

Like Notre Dame and the University of North Carolina, as we progress into the fall season, it’s a virtual guarantee that some schools will halt in-person classes, either for a while or for the entire semester. It’s going to be a mess, with administrators having to figure out how and whether to refund tuition money.

If you’re a student right now, then you need to think very hard about whether you want to attend in-person classes if your school offers them. Even if they do, getting your higher education isn’t worth it if it means putting your life on the line.

Also, you have to figure out that schools will offer online solutions. That’s not an ideal substitute for in-person classes, but this is an unprecedented circumstance, and everyone is doing the best they can.

If you’re going to class this year, take all precautions that you can and don’t rely on the law to help if you get sick. It’s just unrealistic.

The post Legal Considerations if You’re Going to College this Year appeared first on Legal Desire Media and Insights.

“It is the spirit and not the form of law that keeps the justice alive” – LJ Earl Warren

Private Judging is a dispute resolution process between two or more parties through an independent third person; mainly a retired or former judge who is expertise in the area of dispute hears the case and analyzes the evidence and resolve the matter out of the court. This is an alternative dispute resolution (ADR) method which is prevailing in India for a very long time in the form of Puga, Sreni, Kula, and also in Panchayats. This method is generally used for settling civil disputes which ensures practical, inexpensive, flexible, and speedy resolution of disputes in accordance with the parties.

There are some types of alternative dispute resolution like Arbitration, Conciliation, Mediation, negotiation, Lok Adalat, online dispute resolution in which some of them are practiced in India effectively because of the huge pendency of cases in the court and some of them are not. On the other hand, there are also some loopholes in some of the alternative dispute resolution methods in India.

Modes and Practices of ADR in India

• Arbitration
• Conciliation
• Mediation
• Negotiation

Arbitration

 According to section 2(a) of Arbitration and Conciliation Act, 1996 “Arbitration means any arbitration whether or not administered by permanent Arbitral institution”.

 Arbitration is a useful compliment to the judicial process which offers an alternative forum to the time consuming and expensive court proceedings and resolves the dispute with the consensus of the parties. It is a dispute resolution method in which the parties keep away from the court measures and as an alternative decide to resolve their dispute through appointing a third person, who is known as an arbitrator. All matters relating to private rights and obligations which civil court may take cognizance of (sec 9 of civil procedure court, 1908) may refer to arbitration like damages in case of breach of contract, validity of marriage, maintenance, separation between husband and wife etc. Indian law with the introduction of the Arbitration and conciliation Act, 1996 that came into force with effect from 25^th January, 1996 is now trending the path walked upon by other developed nations.

In Guru Nanak Foundation v. Rattan Singh and Sons, the court stated that the court procedures are interminable, time consuming, complex, and expensive which impelled jurists to search for an alternative forum which are less formal, more effective, and speedy for resolution of disputes.

The reason due to which it is more preferable is because of its some of the advantages like avoidance of publicity, simplicity of procedure, Avoidance of delay, Reduction of expenses, savings of time etc.

Conversely, there are also certain challenges where the arbitration lacks in providing proper arbitral awards and claims. Along with some advantages, it also has loopholes along with it.

However, the way in which the proceedings under the Act are conducted and without exception challenged in Courts, has made Lawyers laugh and legal philosophers weep…Informal Forum chosen by the parties for expeditious disposal of their disputes has by the decisions of the Court been clothed with ‘legalese’ of unforeseeable complexity.” Stated by Justice DA Desai in Guru Nanak Foundation v. Rattan Singh and Sons,

·         The arbitrator may act sometimes incompetent or biased in some cases.

·         The procedure is informal which results to injustice to the parties.

·         If it is made mandatory by the parties entering into contact that the dispute is resolved through arbitration, then their right to approach the court is waived.

·         Arbitration does not provide for the grant of interlocutory applications.

·         Arbitration awards are not directly enforceable. They are executable subject to judicial approval.

·         Lack of domain expert.

Conciliation

Like Arbitration the word “Conciliation” is not defined in the Act. As compared to the court system Arbitration is considered private but Conciliation is mote private than Arbitration. In Conciliation proceedings the parties have the privilege to negotiate and arrive at a harmonious settlement.

Conciliation is an informal method during which the third party (Conciliator) tries to bring the disputants to the agreement. The party presents their case to neutral judge i.e. the conciliator who assists in settlement, which is normally satisfactory to the disputing parties as it is coming from neutral sources. The conciliator is not an arbitrator and is not bound by law in order to do, what he thinks just and reasonable. This is an accepted method of resolving difference and disputes across the developed world.

·         The method of conciliation is not binding upon the parties to the dispute.

·         There is no avenue for appeal.

·         The parties may not come to an end.

·         Procedure is so informal that the parties will not take it seriously.

Mediation

Mediation is a method by which a third party persuades the other disagreeing parties to hear one another in order to find a common area of agreement, thus enabling the parties to reach a mutually agreed outcome.

·         Since the decision is at the discretion of the parties, there is the possibility that a settlement between the parties may not arise.

·         It lacks the support of any judicial authority in its conduct.

·         Mediation proceedings are lacking in any procedural formality since they are not based on any legal principle.

·         The truth of an issue may not be revealed.

Negotiation

Negotiation is a dialogue proposed to resolve disputes, to produce an agreement upon courses of action, to bargain for individual or collective advantage, or to craft outcomes to satisfy various interests. It is the principal technique of alternative dispute resolution.

·         The parties to the dispute may not come to the settlement.

·         Lack of legal protection of the parties to the conflict.

·         Imbalance of power between the parties is possible in negotiation.

 Conclusion

Private judging in the form of some of the Alternative Dispute Resolution is present in India from the past times in which Arbitration and Conciliation Act, 1996 is made with not a satisfying provisions in India which is also amended in 2018 but still is not satisfactory and not capable enough to run in an efficient manner to resolve all the disputes because of many reasons like its informal procedure, or lack of expert domain. Even now days the Arbitrators demand a high price for their expertise which is not possible for the small companies to resolve it through arbitration. Even the method of Mediation and negotiation does not govern in India through any Act. There is also many loopholes in all these private judging method. Therefore, I think there is a need for better provision to be made in India for making India an Arbitration Hub and there is lots to do for the efficient working of private judging in India. Also, there is a need of private judging because of the pendency of cases in judicial system of India and it will work in India until and unless better provision to be made.

References

https://blog.ipleaders.in/arbitration-mediation-and-conciliation-different/

https://www.lawctopus.com/academike/arbitration-adr-in-india

https://www.iosrjournals.org/iosr-jhss/papers/Vol4-issue3/A0430107.pdf

https://www.barandbench.com/columns/50-landmark-decisions-on-arbitration-law-in-india-2018-2019-part-i

https://www.scribd.com/document/439923162/Business-Law-NMIMS-doc

http://www.legalservicesindia.com/article/245/Negotiation-Mode-Of-Alternative-Dispute-Resolution.html

The post The Concept of Private Judging; would it work in India? A critical analysis appeared first on Legal Desire Media and Insights.

Some of the salient features of the Competition (Amendment) Bill,2020 are being listed down below:

• Changes in the role of the Competition Commission of India (CCI)

The role of the CCI is multifarious which includes investigation, control and evaluation of restrictive business practices, abuse of dominance by large scale businesses to ensure that competition prevails.

The key amendment introduced in the bill is the formation of a Governing council to bring about more robustness and efficiency in the functioning of the CCI. The Governing body would be constituted  of the Chairperson of the CCI, the six whole time members of the committee, Secretary of the Department of Economic Affairs, Ministry of Finance or his nominee, Secretary of the Ministry of Corporate Affairs and his nominee, and four other part-time members to be nominated . This council would be empowered to pass regulations, take measures to promote awareness and create a National Competition policy. It will also supervise the functioning of the CCI.

• Appointment of the Director General 

The CCI is to exercise the power to appoint the Director General and not the central government. The office of the Director General (DG) which is constituted under Section 16 of the Competition act is to now act as an investigation branch of the CCI which makes the DG answerable to CCI who was earlier answerable only to the central government.

• Introduction of the settlement and commitment mechanism

 A development that the bill introduced is a regime for settlement and commitment mechanism which permits the CCI to close the investigation on basis of an application for settlement and commitment which is moved by the investigated party.  The objective behind the adoption of such mechanism was to enable the CCI to resolve the anti trust cases faster which would the help the businesses to prevent themselves from long investigation procedures and also reduce the uncertainty However some aspects remain unattended as to whether the settlement and commitment regime would apply to existing cases or not, whether the right to claim compensation survives in case of a settlement. The  bill also mentioned that the commitments are to be made only after the CCI passes an order for investigation prior to the receipt of the  Director General’s report.

This development in the act enables the party which is to be investigated to admit the anti competitive conduct. The commitment and settlement procedure is to take place in the non cartel cases as well. The mechanism of settlement and commitment is non appealable but can be revoked by the CCI under certain circumstances.

• Definition of control

With the various amendments coming the bill also introduced an amendment where the a new definition of control was given. Now the control means to recognize the exercise of material influence[1]. This development has twofold advantages, firstly, the decisions would be more reliable and consistent a large number of transactions will be perused while an investment friendly economy sustains. However the minimum standards to establish such control are not defined in the act itself.

• Streamlining the process for regulation of combinations

There are substantive changes brought in with the bill which includes the number of changes to the modulation of combinations. The principal act stipulated certain specific grounds which would constitute a combination altogether and the parties which are involved in such transactions would be under an obligation to notify the Competition Commission of India before the execution of any such agreement . The time limit for a deemed approval is decreased from 210 days to 150 days. The central government in consultation with the CCI is now empowered to identify any other ground which would constitute a combination [2]. This increases the judicial threshold of the CCI which would help include a number of digital transactions which were currently out of the scope of CCI’s scrutiny.

• Inclusion of new age technology and digital marketing 

The main purpose behind the development of the act is to include in its scope the digital markets which explicitly recognizes the buyer’s cartel and hub and spoke cartels.[3]After this development the transaction in tech and digital space will now come under the CCI jurisdiction. The CLRC  conceded the ways which were used by various companies to escape CCI’s scrutiny and also considered the orders which were issued by the CCI in the Hyundai motor’s case [4] and Uber case [5] and held that knowledge and intention is not to play any major role in these cases. The bill clearly mentions the control over data and specialized assets The rationale behind such inclusion was to expand the scope of the section to online businesses collecting customer data through user feedback loops 

• The provision for penalties guidance

The CCI is now entrusted with the power to impose prohibitive penalties on the companies and the manner in which the penalties are to be imposed . These penalties are expected to give recognition to the relevant turnover principles and lay down the percentage for the imposition of the penalties.

• Definition of a cartel

The definition of cartel now includes the buyer’s cartel as well. The AEEC stated that “though the act covers the buyer’s cartel Within the purview of Section 3(1) read with section 3(3) of the act treating buyer’s arrangement/cartel at par with seller’s cartel may not be appropriate”[6]

Bibliography

[1] Under explanation of clause a of section 5

[2] Proviso to section 5

[3] Section 3(3) Competition act

[4] http://www.scconline.com/DocumentLink/eJSPg4yX

[5] 2018 SCC online CCI 86 

[6] https://www.google.com/amp/s/www.barandbench.com/amp/story/columns%252Fa-look-at-the-draft-competition-amendment-bill-2020-clarity-transparency-robustness-and-bit-more-to-be-desired

Submitted by- Shefali Yadav

The post Salient features of the Competition (Amendment) Bill, 2020 appeared first on Legal Desire Media and Insights.

Familiarize Yourself with the Test

Before you find prep materials to help you succeed in passing the LSAT, you should first familiarize yourself with the mechanics of the test. You can then know what to expect and plan your learning accordingly. For instance, you need to know what the test looks like, what will be asked of you, and how to provide answers physically. You can acquaint yourself with the test format on the Law School Admission Council’s website. And you can use other online resources to find copies of past exams.

LSAT Prep Courses

One of the best ways to prepare for the rigorous LSAT is to enroll in an LSAT prep course. Choosing the right prep course can determine how well you score on the exam. There are many different courses available, and each one contains different features and various price points. So, it’s important to review and compare each one to find the course that provides the best prep materials for your learning style and background. Thankfully, you do not need to spend countless hours finding the different courses and comparing them yourself. Instead, you only need to check out this list of courses.

Free Resources

On top of your LSAT prep course materials, you can use some free and personalized prep resources via Khan Academy. Free materials available include timed practice tests, tips, and strategies.

LSAT Prep Books

In addition to books that come with an LSAT prep course, it can also be beneficial to purchase LSAT prep paperbacks or eBooks. Upon request, some of the Law School Admissions Council’s official publications are available in formats like English Braille and HTML. LSAT prep books enable you to build additional levels of knowledge to ensure you stand a good chance of passing the test.

Sample Tests

You can take practice tests on the Law School Admission Council’s website under time constraints. Practice makes perfect. And it also enables you to work out how much time you can afford to spend on each question and section. Completing a sample test will also identify what questions you need help with. Knowing in advance what the questions and test instructions look like will minimize distractions on the test day and not waste any of your valuable time.

Preparation Methods

It’s not only preparation materials you need to get yourself ready for the LSAT. You also need to ensure you prepare for how, where, and when you study. Having a study schedule is vital. So, you should spend some time planning your timetable. You then need to ensure you stick to it. Ideally, you should study for the LSAT for three months in advance of the test. Indeed, don’t spend less than two months studying. You should study for two to three hours a day for four or five days a week.

Although you need to spend time studying for each part of the LSAT, you need to devote more time to Logical Reasoning. That is because the section makes up half of your LSAT score. So, study-time spent on Logical Reasoning has twice the value of studying for the Logic Games and Reading Comprehension sections.

The post Guide to LSAT Prep Materials appeared first on Legal Desire Media and Insights.

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