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Office Of Profit: Is Parliament Empowered To Exempt Retrospectively?

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About the Author: Sachin Sachdeva - Student, Fifth B.S.L. Ll.B. ILS Law College

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Article 102(1)(a) of the Constitution of India makes the holding of an office of profit by a member of Parliament a ground for disqualification from the membership of Parliament. The disqualification is the result of breach of the theory of separation of powers (a basic feature of the Constitution) which underlies sub-clause (a) of the said Article. This rule is not, however, without exception. Sub-Clause (a) of the said Article itself carves out an exception by empowering the Parliament to declare (by law) certain offices of profit as exempted from the operation of Article 102(1)(a). In classifying and exempting the offices, the Parliament must adhere to the “objective criterion” and refrain from yielding to the “subjective criterion”. Article 102(1)(a) contains an inherent inhibition on the power of the Parliament to exempt the offices retrospectively. In doing so, the Parliament clearly transgresses the constitutional mandate contained in Article 102(1)(a) and also destroys the basic structure of the Constitution.

The scope of the present article is restricted to those cases where a member of Parliament (“MP” hereinafter) holds an office of profit not exempted by Parliament by law as required by Article 102(1)(a) of the Constitution of India. It further seeks to examine the propriety of the action of the Parliament in retrospectively exempting “office(s) of profit” by giving retrospective effect to law enacted by it under Article 102(1)(a).

Transgression Of Article 102(1)(A) Of The Constitution
Article 102 of the Constitution of India enumerates six grounds for disqualification of a MP from membership of the Parliament. Article 102(1)(a) which lays down “office of profit” as a ground for disqualification reads as under:
“(1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament –
(a) if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder;….”

A succinct understanding of the term “office of profit” becomes necessary so as to be in a position to correctly appreciate the purpose and intention of the constitution-makers for incorporating such a provision. Though used in Article 102(1)(a), the term “office of profit” has not been defined in the Constitution. The Parliament also does not seem to have attempted to confer upon the term, an extensive and definite content in any of the pertinent legislations for the obvious reason that the term occurs in the Constitution and its final interpretation rests with the courts and not with Parliament.

Office of Profit- Meaning
The Supreme Court of India (“SC” hereinafter) has offered an explication of the term “office of profit” and the principle underlying it in umpteen cases. The same has been recently reiterated in the case of Jaya Bacchan v. Union of India and others , where the court held thus:

“An office of profit is an office which is capable of yielding a profit or pecuniary gain. The court further held that, “for deciding the question as to whether one is holding an office of profit or not, what is relevant is whether the office is capable of yielding a profit or pecuniary gain and not whether the person actually obtained a monetary gain. If the “pecuniary gain” is “receivable” in connection with the office then it becomes an office of profit, irrespective of whether such pecuniary gain is actually received or not.”

Having been acquainted with the term, it seems desirable to undertake an analysis of Article 102(1)(a). The tenor of Article 102(1)(a) suggests that for this disqualification to operate, the concurrence of following three ingredients is essential:-
i) A person holds an office;
ii) The office is under the Central or the State Government; and,
iii) The office is one of profit.

Clause (ii) mentioned above alone warrants an elucidation, for, clause (i) is self-explanatory and clause (iii) has already been dealt with in the foregoing paragraphs. It should be pertinent to peruse a SC ruling in this regard. In Satrucharla’s case, the SC has summarized the tests or principles, to determine whether or not a person holds an office of profit under the government, as follows:

“1) The power of the government to appoint a person in office or to revoke his appointment at its discretion. The mere control of the government over the authority having the power to appoint, dismiss or control the working of the officer employed by such authority does not disqualify the concerned officer from being a candidate for election as a member of Legislature.

2) The payment from out of the government revenues is an important factor in determining whether a person is holding an office of profit or not of the Government. Though payment from a source other than the government revenue is not always a decisive factor.

3) The incorporation of a body corporate and entrusting the functions to it by the government may suggest that the statute intended it to be a statutory corporation independent of the Government. But it is not conclusive on the question whether it is really so independent. Sometimes, the form may be that of a body corporate independent of the government, but in substance, it may be the just alter ego of the government itself.

4) The true test of the determination of the said question depends upon the degree of control, the government has over it, the extent of control exercised by other bodies or committees, and its composition, the degree of its dependence on the government for its financial needs and the functional aspect, namely, whether the body is discharging any important governmental functional or just some function which is merely optional from the point of view of the government.”

Thus, in a nutshell it may be said that an MP who holds an office under the Central or the State Government and such office is capable of yielding some profit or pecuniary gain, will be disqualified from membership of the Parliament. However, the general rule of disqualification prevails subject to an exception provided for in Article 102. The latter part of sub-clause (a) of clause (1) which uses the expression, “other than an office declared by Parliament by law not to disqualify its holder”, carves out an exception to the rule of disqualification as embodied in the former part of the same clause.

Inhibition on the power of Parliament to retrospectively exempt offices
The Constitution empowers the Parliament to declare certain “offices of profit” as exempted from the operation of Article 102(1)(a), so that the holders of such offices are not disqualified from its membership. The power conferred on the Parliament in this regard under Article 102(1)(a) is not unbridled or unfettered but must be exercised by it subject to the limitations imposed by Article 102(1)(a) read conjointly with explanation I to clause (1) of the said article. In the exercise of this power, the Parliament has enacted The Parliament (Prevention of Disqualification) Act, 1959 which has been the subject of successive amendments, the last being the fifth amendment brought by The Parliament (Prevention of Disqualification) Amendment Act, 2006. The Amendment Act, 2006 has been given retrospective effect by the Parliament .

Clause (1) of Article 102 employs two distinct expressions –
a) for being chosen as; and,
b) for being,
a member of either House of Parliament, to suggest that a disqualification for parliamentary membership may either exist when a person seeks to become a member of a House, or may arise after he has become a member. He is not entitled to be chosen as a member of a House in the former case and will cease to be a member in the latter case.

A perusal of Article 102(1)(a) suggests an inherent inhibition on the power of Parliament to exempt office(s) of profit retrospectively from being ground(s) of disqualification from membership of the Parliament by giving its legislation retrospective effect. The use of the word “shall” (in clause (1) of Article 102) makes the disqualification of an erring MP mandatory. As per the mandate of Article 102(1)(a), a member of either House of Parliament is disqualified from its membership “from the very moment” he comes to hold an office of profit, except one which has already been exempted by Parliament by law. The effect of assuming, in such a situation, that the Parliament can validly exempt retrospectively) particular office(s) held by the MP(s) by giving its legislation a retrospective effect would, in essence, be nothing but to render the scheme of Article 102(1)(a) relating to disqualification of an MP (sitting) nugatory or ineffective, since there is always an “intervening time gap” between the two events, i.e. the act of holding of an office of profit by an MP and Parliament exempting it by law by giving such legislation a retrospective effect.

The above stated position can be made amply clear with the help of an illustration. A is an MP as on 4th September 2007. On 5th October 2007 he comes to hold an office of profit, which has not been exempted by Parliament by law. In such a situation, as per article 102 (1)(a), A shall be disqualified from 5th October 2007. Later, the Parliament enacts a law on 10th December 2007, exempting the particular office held by A and some other offices, (the latter only to operate as an eyewash) giving its legislation a retrospective effect i.e. from 5th October 2007. The view of the author is that here there is an intervening time gap of 2 months and 5 days between the two events. Article 102(1)(a) has been so phrased as not to permit any intervening time gap, however short it may be. Thus, the Parliament is prevented to give retrospective effect to its legislation by Article 102(1)(a).

A practice of retrospectively exempting offices of profit would set a bad precedent virtually making futile any motion of disqualification of a sitting MP on the ground of holding an office of profit (not exempted by Parliament), if he can lobby a majority in the Houses needed for the no-disqualification legislation. It appears highly unlikely that any member of the government (party in majority) would ever be disqualified on that count at least.

Classification and exemption must be based on the “objective” criterion
Article 102(1)(a) is in the nature of a constitutional mandate to the Parliament to undertake legislation to classify and exempt offices of profit which from the date of entry into force of the Act, shall no longer be grounds for disqualification. Such classification, however, must be based on the “objective criterion” . The Parliament must refrain itself from yielding to the “subjective

criterion”. Article 102(1)(a) demands the application of the “objective criterion” by the Parliament in the process of classifying the offices of profit which are to be exempted.

The action of the Parliament in classifying and exempting an office of profit is objective if it starts by identifying an office and then exempting it without even considering the holders of that office. On the other hand, the action is subjective if the Parliament begins by identifying an office holder and then on that basis identifying the office so held and then exempting it. Here, it becomes necessary to address the question- why, in the first place, will the Parliament ever feel the need to give retrospective effect to its legislation under Article 102(1)(a)?

A situation of this kind is capable of admitting two possibilities. One is that the particular offices which the Parliament seeks to exempt (retrospectively) are held by some MPs and it is in its bid to save the erring MPs from disqualification that the Parliament will intend to give retrospective effect to such legislation . Thus, the Parliament by giving retrospective effect to its legislation provides blanket protection to the erring MPs against disqualification for holding an office of profit not exempted by it by law. Further, it is not to be forgotten that, “Parliament is a politically-oriented organ, it is fragmented in various political and there is every possibility, howsoever, remote that the power of the House may be used by the majority party for political aggrandizement” . Another point worthy of attention is that of adverse public opinion. In such cases, the public opinion stands prejudiced against the erring MPs as well as the political party, to which such MPs are found to belong.

Thus, it turns out to be the case where the Parliament gives retrospective effect to the law solely based on the “subjective criterion” whereas the Constitution mandates it to be other way round.

Diametrically opposed to this situation is the case where no MP holds an office of profit not exempted by Parliament by law. In this kind of situation, the author sees no reason for Parliament to retrospectively exempt the offices. The argument of the author is that in such a case giving prospective effect to the legislation will prove to be as efficacious as giving retrospective effect would have proved. Retrospective exemption, thus, will not serve any significant purpose.

Thus, in light of the propositions stated above it may be said that retrospective exemption to the offices of profit by giving retrospective effect to legislation by Parliament constitutes a clear transgression of constitutional limitations embodied in Article 102(1)(a).

Violation Of The Basic Features Of The Constitution
Another point which calls for discussion is the basic structure doctrine. The retrospective effect to the exemption under the parliamentary enactment also tends to obliterate certain basic features of the Constitution. Here arises the need to understand what constitute basic features or basic structure of the Constitution. Every Constitution has a philosophy of its own. The philosophy, the basis of which is the will of the people is embodied in the form of certain features which pervade the entire Constitution. These features provide the base on which the edifice of Constitution is built and thus are termed as ‘basic features/structure’. The Supreme Court while

interpreting the Constitution in Keshavananda v. State of Kerala held that there are certain basic features of the Constitution ( e.g. separation of powers, parliamentary form of government, judicial review, independence of judiciary, democracy to name a few) which cannot be destroyed. Thus, the basic structure doctrine acts as a serious and effective check on the power of the Parliament by laying down that the Parliament cannot amend, modify, destroy, obliterate, or alter the basic features of the Constitution even by way of a constitutional amendment under Article 368 of the Constitution leave apart a case where it attempts to do so by way of an ordinary legislation . The parliamentary legislation giving retrospective effect to exemption destroys the following two basic features of the Constitution.

1. Separation of Powers
Article 102(1)(a), in effect, incorporates the doctrine of Separation of Powers. It seeks to effectuate the principle that the same person must not simultaneously be a member of Parliament (i.e. the legislature) and hold an office of profit under the Government of India or the Government of any State (i.e. the executive). The basis for such a constitutional provision is the theory of ‘Separation of Powers’ propounded by Montesquieu, wherein he states that, “the functions of government should be differentiated, and that they should be performed by distinct organs consisting of different bodies of persons so that each department should be limited to its own sphere of action without encroaching upon the others, and that it should be independent within that sphere.” The rationale behind such a constitutional provision has been explained by the SC in a case as, “such a person cannot then exercise his functions independently of the executive of which he is also a part”. Alternatively, it may be said that there should not be any conflict between the duties and the interests of an elected member. The aim is to ensure that the elected member carries on his duties freely and fearlessly without being subjected to government pressure. The purpose or rather the intention of the framers of the Constitution in incorporating such a provision is to ensure that Parliament does not consist of persons who may be obligated to the government, and be amenable to its influence, because they are receiving favours and benefits from it.

The Constitution of India in order to give reality and content to the democratic ideals propounded in the Preamble establishes a parliamentary form of government. Adherence to the doctrine of separation of powers in the strict legal sense of the term is not possible in a parliamentary form of government in which the executive is responsible to an elected legislature, and which operates on the principle of co-ordination and co-operation of the two organs. It stands settled that the framers of the Constitution by empowering the Parliament under Article 102(1)(a) to exempt by law certain offices of profit from operating as a ground for disqualification recognize the need and necessity for diluting the doctrine of separation of powers. However, at the same time, there is a clear indication of the intention of the framers of the Constitution as to the extent to which this doctrine may be diluted.

This is reflected in the explanation to clause (1) of Article 102, the text of which runs as under:
“For the purposes of this clause a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State by reason only that he is a Minister either for the Union or for such State.”

The intention of the drafters here is to exempt only those offices of profit from operating as a ground for disqualification, which by their ‘very nature’ or ‘working’ are indispensable or of absolute necessity for sustaining the parliamentary form of government. The explanation carves out an exception with respect to the Ministers. This is so because in a parliamentary form of government, the members of Parliament who belong to the majority form the government (executive) at the centre. The Constitution prescribes membership of Parliament as a condition precedent for a person to become a Minister. Thus, relaxation of the doctrine of separation of powers in such a case/situation which is so fundamental for the existence or sustenance of the parliamentary form of government becomes rather inevitable. The explanation appended to the Article 102 serves a significant purpose. It acts as a guiding star for the Parliament in the process of enacting laws exempting certain offices of profit under Article 102(1)(a).

The concept of objective criteria and the theory of separation of powers are intertwined. Observance of “objective criteria” while enacting the law under Article 102(1)(a) is necessary for the preservation of the theory of separation of powers, the fundamental doctrine which underlies Article 102(1)(a). Any attempt to separate them will result in entire activity to be a futility. They are not to be read as two separate concepts. It may be asserted that the concept of objective criteria found (by implication) in the Constitution is a device or mechanism evolved by architects of the Indian Constitution to facilitate the observance of the doctrine of separation of powers. The objective criteria must therefore always be adhered to by the Parliament while undertaking legislation for exempting certain “offices of profit” from the rigour of Article 102(1)(a). Any attempt to drift away from this criterion will result in violation of the theory of separation of powers which constitutes one of the basic features of our constitution

2. Parliamentary form of Government
Parliamentary form of government is one in which the executive is responsible to an elected legislature. One of the major functions of Parliament in such a system is to control the cabinet/executive. The Parliament effectuates this control by bringing about a discussion and criticism of the policy of the executive on the floor of the House. However, dependence of large number of MPs on government patronage would weaken the position of Parliament vis-à-vis the executive, for such members may be tempted to support the government without considering any problem with an open mind.

This can again be understood in the light of “objective” and “subjective” criteria of classification and exemption of offices of profit. As discussed earlier it may be presumed that the possibility of conforming to the “objective criteria” is higher in cases where the Parliament gives prospective effect to its legislation under Article 102(1)(a). On the other hand, since giving retrospective

effect to law is not the rule, action of the Parliament in doing so must be necessitated by some “special circumstance” . The requirement of existence of “special circumstance” gives rise to the possibility of “subjective criteria” having been followed. The author has affirmed above that the special circumstance in case of legislation under Article 102(1)(a) is saving of the MPs from disqualification. Thus in the latter case as referred to above if the Parliament can validly exempt office(s) of profit retrospectively then it will germinate a feeling of immunity in the minds of the MPs. As a result of this more and more MPs will hold offices of profit and be amenable to the influence of the executive failing to this discharge their functions vis-à-vis the executive efficiently.

Disqualification In India And England: A Comparison
A simultaneous analysis and comparison of the position as regards disqualification in England and India also gives support to the views expressed above. In England, there is no general theory that a disqualification arises from holding an office of profit under the Crown. There disqualifications are specific and disqualification arises only when a person holds a disqualifying office so declared under a parliamentary legislation . The position is, however, different in India as there prevails a general disqualification under the Constitution, but specific exemptions may be granted from it under a law of Parliament. Hence, it may be concluded that the drafters of the Indian Constitution intended to exempt as less a number of offices of profit from not operating as ground of disqualification under article 102 (1)(a) as possible.

Conclusion
India has adopted a written Constitution. A significant feature of written Constitution is the Supremacy of the Constitution i.e. the three organs of the government viz, the legislature, the executive and the judiciary derive their powers (for the discharge of specific functions assigned to them) from the Constitution itself. They are subordinate to it. The powers so conferred are to be exercised to supplement and not to supplant the provisions of the Constitution. Such powers, therefore, must be exercised within the permissible limits prescribed by the Constitution.

The Indian Parliament, unlike the British Parliament, is neither omnipotent nor supreme. The British Parliament is sovereign (supreme) in that it can make or unmake any law and the laws so enacted are not to be tested against the backdrop of the Constitution . The situation is contrary in India. Thus, every law made by the legislature must conform to the constitutional requirements. The Courts (SC/HCs) in India have been entrusted with the function (and also conferred power in this regard) of denouncing the validity of a law, enacted by the legislature which attempts to transgress or actually transgresses the constitutional limitations, as ultra vires the Constitution.

The Parliament by giving retrospective effect to its legislation under Article 102(1)(a) transgresses the constitutional limitation against according (giving) retrospective operation to such legislation under Article 102(1)(a) itself. It also destroys the fundamental doctrines of separation of powers and parliamentary form of government which constitute the basic features of the Constitution.
*****************
1. The article concentrates only on the “office of profit” as a ground for disqualification from membership of the Parliament which is contained in Article 102(1)(a) of the Constitution of India. All other grounds of disqualification which are dealt with in sub-clauses (b)-(e) and clause (2) of the said Article do not form the subject-matter of discussion under this article.
2. The pertinent legislations are: - a) The Parliament (Prevention of Disqualification) Act, 1959; b) The Parliament (Prevention of Disqualification) Amendment Act, 2006.
3. The term ‘citizenship’ which occurs in the Constitution of India may be cited as an example to support the proposition. Neither The Citizenship Act, 1955 nor The Citizenship (Amendment) Act, 2003 define the term ‘citizenship’. The meaning of the term and its distinct and several facets have been enunciated and elaborated by the SC in a number of cases, the landmark amongst which is the State Trading Corporation of India v. Commercial Tax Officer, AIR 1963 SC 1811. Other such examples include the terms ‘Minority’, ‘Religion’, ‘Untouchability’ etc.
4. AIR 2006 SC 2119 at 2120. See also Satrucharla Chandrasekhar Raju v. Vyricherla Pradeep Kumar Dev and another, AIR 1992 SC 1959; Shibu Soren v. Dayanand Sahay and others, (2001 (7) SCC 425.)
5. Satrucharla Chandrasekhar Raju v. Vyricherla Pradeep Kumar Dev and another, AIR 1992 SC 1959 at 1964.
6. Retrospective effect has been given to the Parliament (Prevention of Disqualification) Amendment Act, 2006 w.e.f. from the 4th day of April, 1959.
7. The President has given his assent to the Parliament (Prevention of Disqualification) Amendment Bill, 2006. Passed by both the Houses of Parliament in its on-going session, the legislation exempts the disqualification of MPs for holding an office of profit. The measure was necessitated when 40 or more Members of both the Houses of Parliament held offices of Chairman or were associated with various statutory or non-statutory bodies. They faced disqualification proceedings on the ground of holding an office of profit. It was considered that continuance of such a situation would lead to litigation on a large scale. The resultant vacation of seats in both the Houses of Parliament would end up in bye-elections, a wasteful expenditure increasing the country’s financial burden. Further, see Statement of objects and reasons appended to the Parliament (Prevention of Disqualification) Amendment Bill, 2006 and web source < http://pib.nic.in/release/release.asp?relid=20040.> (emphasis supplied).
8. It is only in the case of (sitting) MPs who are holding offices of profit not exempted by Parliament by law that the Parliament will feel the need to accord retrospective effect to its legislation under Article 102(1)(a), with a view to retrospectively exempt such offices from the operation of the said article. Now, assume a situation which is diametrically opposite to the above situation i.e. where no MP holds an office of profit not exempted by Parliament by law. In this kind of a situation, the author sees no reason for Parliament to retrospectively exempt the offices. The argument of the author is that in such a case giving prospective effect to the legislation will prove to be as efficacious as giving retrospective effect would have proved. Retrospective exemption, thus, will not serve any significant purpose.
9. This is essential to preserve the doctrine of Separation of Powers which is the cornerstone of Article 102(1)(a). In those cases where the law under article 102(1)(a) is enacted in adherence to the objective criterion , the possibility of deviation from the theory of separation of powers is minimized to a very large extent. The reverse can be the case if subjective criterion is followed.
10. See footnote 8 above.
11. M.P. Jain, Indian Constitutional Law, 4th ed. at 123.
12. Keshavananda Bharti v. State of Kerala, AIR 1973 SC 1461.
13. The Parliament (Prevention of Disqualification) Amendment Act, 2006 offends the basic structure of the Constitution by operating against the well-entrenched doctrines of separation of powers and parliamentary form of government, which are the basic features of the Indian Constitution.
14. The Theory of ‘Separation of Powers’ was propounded by Montesquieu in his book ‘The Spirit of Laws’.
15. Ashok Kumar Bhattacharya v. Ajoy Biswas & others, AIR 1985 SC 211.
16. Prospective operation of law is the rule and retrospective operation is an exception. Hence, this presumption. Article 102(1)(a) does not admit of any exception in this regard.
17. Supra 7.
18. In Britain, the disqualification from the House of Commons is governed by House of Commons Disqualification Act, 1975.
19. Britain has an unwritten Constitution which means that their constitution is not contained in a comprehensive legal document as it is in the case of India, the USA, and Canada etc.

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Date of Publication: 24 Feb 2010

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