In this article, Pradipta Nath discusses Frequently raised queries on The Minimum Wages Act.

In this article, I would like the state the primary query which we may face or had already faced while dealing with the Minimum Wages.

Let this be settled through the stated below:-

Definition of Minimum Wage

The Minimum Wages Act did not specify actually the definition of minimum wages. Whereas as per the Fair Wages Committee, minimum wage must provide for a bare livelihood. In addition, it must also allow the preservation of efficiency of the worker. Statutorily the minimum wage is the wage rate that the law prescribes and/or notify from time to time.

Apart the Minimum Wages Act, neither there mentioned the term DA. Though the same got its significance in the term ‘Cost of living allowance’.

In the gist, the understanding may be substantiated that Minimum Wages Act includes the basic, special allowance and the cost of living or better termed in the HR and economy terminology as Dearness Allowance.

Whereas, it is expedient to mention that Govt. notifies the increased rate of only Basic or DA and at some instance both the Basic as well the DA.

In this context specified above, the relevant sections of the Minimum Wages Act are quoted below,

Section 2(h) of the Minimum Wages Act

“Wages” means all remuneration capable of being expressed in terms of money which would if the terms of the contract of employment express or implied were fulfilled be payable to a person employed in respect of his employment or of work done in such employment and includes house rent allowance but does not include –

(i) the value of –

(a) any house accommodation supply of light water medical attendance or

(b) any other amenity or any service excluded by general or special order of the appropriate government;

(ii) any contribution paid by the employer to any person fund or provident fund or under any scheme of social insurance;

(iii) any travelling allowance or the value of any travelling concession;

(iv) any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment; or

(v) any gratuity payable on discharge;

Section 4 of Minimum Wages Act – Minimum rate of wages

(1) Any minimum rate of wages fixed or revised by the appropriate government in respect of scheduled employments under section 3 may consist of –

(i) a basic rate of wages and a special allowance at a rate to be adjusted at such intervals and in such manner as the appropriate government may direct to accord as nearly as practicable with the variation in the cost of living index number applicable to such workers (hereinafter referred to as the “cost of living allowance”); or

(ii) a basic rate of wages with or without the cost of living allowance and the cash value of the concessions in respect of suppliers of essential commodities at concession rates where so authorized; or

(iii) an all-inclusive rate allowing for the basic rate the cost of living allowance and the cash value of the concessions if any.

(2) The cost of living allowance and the cash value of the concessions in respect of supplied of essential commodities at concession rate shall be computed by the competent authority at such intervals and in accordance with such directions as may be specified or given by the appropriate government.

Queries related to its application

Now coming to the most complicated one, i.e. related to its application. Here please be noted that the Minimum Wages Act is only attracted to the list of employments as appended at last of the Act. The lists of employments are often known as per the Act u/s 2(g) as the Schedule employment’. This means an employment specified in the Schedule or any process or branch of work forming part of such employment.

However what the designation varies whether its ‘Manager’ or ‘Senior Executive’ or ‘Trainee’, if the same hits the schedule, will naturally come under the purview of the Minimum Wages Act and the Company is ought to provide the minimum wage.

Again, as the Act is silent on the terms ‘skilled’, ‘unskilled’ and so on, the definition varies from state to state. As implementing the provisions of the Act is the administrative authority of the ‘Appropriate Government’.

In this context specified above, the relevant sections of the Minimum Wages Act are quoted below,

Section 2(i) of the Minimum Wages Act

“Employee” means any person who is employed for hire or reward to do any work skilled or unskilled manual or clerical in a scheduled employment in respect of which minimum rates of wages have been fixed; and includes an out-worker to whom any articles or materials are given out by another person to be made up cleaned washed altered ornamented finished repaired adapted or otherwise processed for sale for the purposes of the trade or business of that other person where the process is to be carried out either in the home of the out-worker or in some other premises not being premises under the control and management of that other person; and also includes an employee declared to be an employee by the appropriate government; but does not include any member of the Armed Forces of the Union.

Section 2(g) of the Minimum Wages Act

“Schedule employment” means an employment specified in the Schedule or any process or branch of work forming part of such employment;

But in the normal course, the HR decided the skill category, and whereas the Govt. may also serve the definition through the notification whereby it will provide mandate. Like say what happened in the Delhi few months back, where the highly skilled means the graduates and above as so on.

Every Employer may not be tried for the offences under the Minimum Wages Act. But practically it is not at all possible to prove his innocence in front of the Minimum Wages Act inspector. Once the employer denies the levels of charges and opts for an appeal through the Judiciary, the employer has to chance to plead innocence U/s 23.

Section 23 of the Minimum Wages Act

Exemption of employer from liability in certain cases

Where an employer is charged with an offence against this Act he shall be entitled upon complaint duly made by him to have any other person whom he charges as the actual offender brought before the court at the time appointed for hearing the charge; and if after the commission of the offence has been proved the employer proves to the satisfaction of the court-

(a) that he has used due diligence to enforce the execution of this Act and

(b) that the said other person committed the offence in question without his knowledge consent or connivance.

that other person shall be convicted of the offence and shall be liable to the like punishment as if he were the employer and the employer shall be discharged :

Provided that in seeking to prove as aforesaid the employer may be examined on oath and the evidence of the employer or his witness if any shall be subject to cross-examination by or on behalf of the person whom the employer charges as the actual offender and by the prosecution.

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In this article, Pradipta Nath discusses the Labour laws related to Trainees in India.

The law related to trainees in India is one of the most complicated subjects has ever evolved. The reason is that they are trainee and employee at the same time. Organizations which engages the trainees should better know the following scenario before engaging any trainee in his organization.

The application of Apprentice Act is applicable to the companies who are registered under the Act. Private sector players do not come under the purview of this Act unless the trainee is engaged under the Apprentice Act.

ESIC for the Trainee

The trainees are generally not paid salary, in spite they are paid stipend. Whether the person is trainee but if the trainee is satisfying S. 2(9) of the ESIC Act, the person will naturally called as ‘Employee’ under the section. Though specifically S. 2(9) has exempted and ignored the apprentices engaged under the Apprentices Act, 1961, therefore from here the conclusion can be drawn is that ‘Trainee’ may be treated as ‘employee’ but apprentice engaged under the Apprentice Act will not be treated as ‘employee’ under the ESIC Act.

Wages under the ESIC is defined u/s 2(22) and includes all the remuneration paid or payable in cash to an employee.

In Andhra Prabha (P) Ltd. vs E.S.I. Corporation on 5 February 1996 Equivalent citations: 1996 (2) ALT 301, (1996) IILLJ 389 AP the principle was laid as under:-

• The Employees State Insurance Act is a beneficial piece of legislation to protect the interests of the workers.
• Therefore, the interpretation of the provisions of the Act has to be made keeping in view the objects of the Statute.
• The employer cannot be allowed to circumvent the provisions of the Act in the disguise of ambiguous designations. Though the designation ‘Apprentices’/Trainees gives an impression at the first blush that they are not regular employees, but if the veil is lifted and the real facts are ascertained, they are in fact found to be working as regular employees. Thus, the employer cannot be permitted to flout the Law.

Link: https://indiankanoon.org/doc/204620/

Hence, on the basis of above analysis from ESIC point of view, to state that ‘trainees’ are subjected to ESIC contribution, provided in consideration to the ceiling limit i.e Rs 21,000/- as of now.

EPF for Trainees

Unusual like ESIC, the trainee for EPF has been suitably answered by our Apex Court. In The Regional Provident Fund Commissioner, Mangalore Vs. M/S Central Aercanut & Coca Marketing and Processing Co-Op [2006] Insc 39 (30 January 2006), the Apex Court held that trainees are apprentices engaged under the Standing Order of an organisation or under the Apprentices Act and will not come within the ambit of the Employees Provident Fund and Miscellaneous Provisions Act, 1952. The Bench noted that Section 2 (f) of the EPF Act “defines an employee to include an apprentice, but, at the same time, makes an exclusion in the case of an apprentice engaged under the Apprentices Act or under the Standing Orders. Under the Model Standing Orders an apprentice is described as a learner who is paid allowance during the period of training.” Therefore, employers are not obliged to contribute to the PF for them.

The apex court further held that “in the case at hand, trainees were paid stipend during the period of training. They had no right to employment, nor any obligation to accept any employment, if offered by the employer. Therefore, the trainees were apprentices engaged under the “Standing Orders” of the establishment.

Link:http://www.advocatekhoj.com/library/judgments/index.php?go=2006/january/39.php

But again a ‘trainee not being a student’ who is engaged not under the Apprentice Act, will be covered under the Act and will be subjected to EPF deduction as well if attracts S. 2(b) and S. 2(e)of EPF.

In case the students often do internship as a part of their curriculum; in this case however the EPF authority has given clarification that ‘Students’ getting stipend need not to contribute for EPF. Hence it is the option for both employer as well as the employee whether to or not to contribute in EPF. (Ref. circular no. coord/40(5) 2015/Misc/clarification dated 12-10-2015)

Link: http://economictimes.indiatimes.com/wealth/invest/students-getting-stipend-need-not-contribute-for-epf/articleshow/49675195.cms

Further, it may be noted that trainees were recruited under a particular Training Scheme and there was no guarantee of employment after completion of the training period and that they were not entitled to other benefits, which were available to other permanent employees. These aspects have been decided in Sri Rama Vilas Service Ltd. V RPFC 2000 –I-LLJ-709(Mad) and Gandhi Vinita Ashram v PFC 1996 (1) CLR 1140 (P&H).

Link: https://indiankanoon.org/doc/1942367/

Bonus for Trainee

The trainee who is engaged under the Apprentice Act will not be entitled for the statutory bonus, as by virtue of S. 2(13) of the Payment of Bonus Act, 1965, an apprentice is not an employee, hence not eligible for bonus.

But where the trainee is engaged other than the Apprentice Act, the trainee if satisfies S. 8 of the Payment of Bonus Act regardless his designation.

Gratuity for Trainee

In Chairman-Cum-Managing Director, Orissa Mining Corpn. Ltd. V. Controlling Authority, Payment of Gratuity Act & Ors. 1995-(001)-LLJ -0381 –ORI it was held that the period of traineeship will not be excluded for counting the minimum 5 yrs of service for the purpose of payment of gratuity.

Link:https://www.citehr.com/101305-whether-gratuity-payable-trainee-confrimed-subsequently.html

Furthermost the trainee is eligible for gratuity subjected to S. 2(e) and S. 4 of the Payment of Gratuity Act, but in this case even the Apprentices engaged under the Apprentice Act are not eligible for Gratuity payment by virtue of S. 2(e).

Trainees under the purview of “The Sexual Harassment of Women At Workplace (Prevention, Prohibition and redressal) Act, 2013, regardless to whether it’s an Apprentice or a trainee.

Employees Compensation Act applicability for Trainees: A trainee, if engaged in the purview of Schedule II and occupation listed in Schedule III of the Act, will naturally can avail benefit under the Act. Whereas S. 61 of the ESIC Act puts limit to the employees on availing benefits under other Acts, even we can find the same provision while referring S. 51 of the Employees Compensation Act.

Though an Apprentice appointed under the Apprentice Act is not entitled for claim under the Employees Compensation Act.

U.P. State Electricity Board vs Shri Shiv Mohan Singh And Anr on 1 October, 2004

Link: https://indiankanoon.org/doc/1198044/

Maternity Benefit Act for Trainees

A woman trainee can too avail the benefit under the Maternity Benefit Act. The benefit can be availed if S. 3(o) and S. 5(2) regardless the designation of the trainee or Apprentice.

Minimum wages Act for Trainees

The Ministry of Labour and Employment, through its Notification G.S.R. 680(E) dated September 22, 2014 prescribed the minimum rate of stipend per month payable to trade apprentices.

The minimum rate of stipend per month shall be calculated at a percentage of the minimum wage of semi-skilled workers of the respective state or union territory which will be, namely

• Seventy percent during the first year of training,
• Eighty percent during the second year, and
• Ninety per percent in the third and the fourth year.

Further, in the event the minimum rate of wage for a trade is not notified by any state or union territory, then, the maximum of minimum wages of the scheduled employment for semi-skilled workers shall be considered for paying the stipend.

Whereas in case of Trainees in Pvt. Sector the employer cannot deprive the trainees from the payment of notified minimum wages even. As the Minimum Wages Act contains a list, which in the legal terminology is called as ‘Schedule’. This list states “scheduled employments”. This act applies to these scheduled employments. All workers regardless temporary and/or permanent and/or regardless to the status (trainee or probationary) under a scheduled employment must receive at least the statutory rate.

In a remarkable judgment given by the Apex Court in Yash Pal & Ors Vs. Union of India & Ors. took the reference of State of Punjab v. Jagjit Singh in where the following principles were laid down:-

• An employee engaged for the same work, cannot be paid less than another, who performs the same duties and responsibilities. Certainly not, in a welfare state.
• that the principle of equal pay for equal work would be applicable to all the concerned temporary employees, so as to vest in them the right to claim wages, at par with the minimum of the pay-scale of regularly engaged government employees, holding the same post

Link: http://www.advocatekhoj.com/library/judgments/announcement.php?WID=8337

In reference to the above supra, the trainee will even be taken under the purview of ‘Equal Remuneration Act’ where the basis of the Act is “Equal Pay for Equal Work regardless of gender”.

At last, but not the least if the above stated are taken into consideration then the State specific LWF contribution will so far has to be taken into consideration if the definition of ‘employees’ is substantiated under the Act.

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In this article, Pradipta Nath discusses the Labour Law Compliances Check List in West Bengal.

The post Labour Law Compliances Check List in West Bengal – A ready Reference appeared first on iPleaders.

In this article, Arijit Bhowmick discusses the relationship between Globalization and Corporate Governance.

Globalisation is a premier concept which has commence the main element in business life overall the last few years. This wonderment affects the economy, business, life, community and environment in diverse ways, and almost generally corporations have been contacted by these changes. We can visually perceive these transmutations mostly cognate with incrementing competition and the swift transmuting of technology and information conveyance. This express makes corporations more prosperity oriented than a long term and sustainable society. However, corporations are a noteworthy component of a community which needs to be organized properly. Therefore, we crave several social norms, regulations and rules in society and business life; this is the practice of governance.

This express makes corporations more prosperity oriented than a long term and sustainable society. However, corporations are a noteworthy component of a community which needs to be organized properly. Therefore, we crave several social norms, regulations and rules in society and business life; this is the practice of governance.

Globalisation

Globalisation can be marked as the impromptu movement of goods, services and capital. This commentary does not mask all the prospects of globalization or global changing. Globalization further should be a form which integrates world economies, culture, engineering science and government. This is because globalization further involves the relinquish of information, skilled member of the working class mobility, the altercation of technology, economic funds flow and geographic arbitrage between developed countries and developing countries.

Moreover, globalization has religious, environmental and communal dimensions. In parliamentary law to make this broad impact area globalization covers all dimensions of the world economy, environment and society. Moreover, it is apparent all over all the world and the continuation is changing dramatically. Every legislature has an undertaking to protect all of their savings and domestic market from this brisk changing.

The enquiry is how a society will conform to this changing. Root of all companies must know diverse effects of globalisation. Globalization has some opportunities and menaces. A company might have learned how to retrieve it from some negative effects and how to earn opportunities from this state of personal business.

Globalization affects the economy, business, life, society and the environment in different ways:

• Increasing competition,
• Technological development,
• Knowledge/Information transfer,
• Portfolio investment (fund transfer between developed countries and emerging markets),
• Regulation/deregulation, International standards,
• Market integration,
• Intellectual capital mobility,
• Financial crisis-contagion effect-global crisis.

Globalization advance increased competition and subsequently multiplied competition vent of globalization. This competition can be familiar with the product and service cost and value, target market, technological evolution, swift response and agile production by companies, in addition to such things as quality and client satisfaction. When a company brings forward by all of less cost and sells cheaper, it will be proficient to grow its market share.

Customers have further much choice in the grocery store and they prefer to materialize goods and services abruptly and in a more reasonable way. And besides, they are expecting valuable situation and a cheap value which they are contented to pay. All these expectations require a response from the fellowship, otherwise, the sales of the company will shrink and they will lose profit and market share. A company must be always quick for price competitions for product and service and for changes in client preferences because all of these are broad market needs.

One of the most commanding manifestations of globalisation is the regard of trendy technologies by entrepreneurial and internationally oriented firms to exploit incipient business opportunities. Internet and e-commerce procedures aid particular intensity for SMEs seeking to go around their participation in new international markets (Wright & Etemad, 2001). Engineering science is further one of the most prevalent tools of competition and for enhancing the quality of goods and service. On the other hand it necessitates fully a part of the cost for the company. The company has to handle the latest technology for increasing their gross receipts and merchandise quality. Globalisation has increased the age of technology grant and technical progress. Client expectations are directing markets. Most companies in capital intensive markets are at risk and that is why they need brisk adapting toward the customer and market expectations. These companies must have feasible technology administration and sensible R&D management.

The company has to handle the latest technology for increasing their gross receipts and merchandise quality. Globalisation has increased the age of technology grant and technical progress. Client expectations are directing markets. Most companies in capital intensive markets are at risk and that is why they need brisk adapting toward the customer and market expectations. These companies must have feasible technology administration and sensible R&D management.

Information is a most dear and valuable production component in the present-day environment. Information can be obviously transferred and exchanged from one country to another. If a company has a chance to consider knowledge and information formerly it means that it can habituate to this global changing. This effect is similar to the technology transfer issue in global marketplaces. The swiftly changing of the market requires also brisk transfer of knowledge and efficient using of that knowledge and information.

Globalization encourages increased international portfolio investment. Additionally, economic markets have become increasingly open to international capital flows. For this intent, portfolio investment is one of the major problems of developing economic systems. It is almost the deserted path to gain liquidity of the markets and economies of emerging countries through attracting foreign cash in hand. Significantly, this short term investment can dramatically impact on the financial markets. When the emerging economies have some problem in their country or investors reckon enough profit from their investment, then these investors might depart the market. This would exemplify that market liquidity diminished and financial market indicators descend immediately.

Globalisation calls for heavier regulation of the markets and the economic organization. There are multiple new and sophisticated economic instruments and methods in the mart and such instruments absolutely transfer and trade in distinctive countries because of the globalization issue. Every new system, instrument or tool requires classy rules and regulations to prove its strength area. These principles are further necessary to protect countries against sweeping risks and crises. When the dilemma comes erring of one nation, then it influences diverse countries with trade channels and blood transfers, which we call the contagion effect.

On the contrasting hand, during globalization the shares of notable companies are trading in international stock markets and these companies have stockholders and stakeholders in many divergent countries. International conventions and regulations offer precaution, particularly to small investors against the noteworthy scandals and other problems with companies, examples of which we have seen overall the late economic crisis.

International standards also regulate markets and economic systems by means of international regulations and conventions such as international accounting standards, international auditing standards. These tips to figure corporate reporting standardized and comparable. And then that is why the globalized world has greater rules and more regulations and international standards than earlier.

In fact, globalization has the conversion of many markets and savings into one market and economy. The readiness of international standards and principles is further to deregulate all these markets. The economy needs economic structures effective of handling the higher grade of risk in the new economic organisation. For these reason economic markets intend to be liberal, deep, and liquid and at present exclusively the U.S. money markets are lavish enough to allow this monetary structure in the world marketplace. Worldwide stock market projection and Pan-European stock market projection are precedent of this changing. Thither are many similar examples of the contemporary situation for market integration, which are as well demonstrated by increasing competition in the economic system. Integration examples are suitable in company mergers and acquisitions as well.

Another issue of globalization is human capital mobility through knowledge and information transfers. One of the causes is that international/multinational companies have subsidiaries, partners and agencies in diverse states. They prefer skilled and efficient international employees and rotation from country to country to provide effective international business practice. This changing further requires preferably skilled, well-trained and efficient employees who can adapt abruptly to different market conditions.

Financial crises are routinely determined through globalization and as a test of the globalization impact. In fact, this is fully a true account. The financial world has witnessed a number of crises in late years. Broadly speaking, financial crises arrive out from international funds/capital flows (portfolio investments), lack of significant rules and measures, complex financial instruments, quick development of fiscal markets, asymmetric reference and data transfers.

One country dilemma can cruise into a global deadlock with systemic risk issue. Systemic risk refers to a spreading financial crisis from one country to another nation. In various events, crises spread even mid countries which do not modernize to have any common economic fundamentals/problems. Previous global crises have further indicated that one of the causes for the deadlock is unregulated markets.

Concept of global organization

Whole arrangements of organisation are concerned mainly with managing the governing of companies and argue with political ascendancy, institutions, and, ultimately, control. Establishment in this particular sense denotes formal political institutions that propose to coordinate and control interdependent gregarious conditions and that possess the competency to implement decisions. More and more, all the same, in a globalized world, the concept of governance is being employed to describe the regulation of interdependent links in the absence of overarching political ascendancy, such as in the international organization.

This global organisation can be eventually as the office of global processes in the absence of whatever kind of global government. In that respect are several international bodies which remain to read these publications and prominent among these are the United Nations and the World Trade Organization. Each of these has seen with mixed growth in establishing some kind of governance in international relations nonetheless is part of the validation of the problem and an endeavour to address worldwide problems that go exclusive of the capability of individual countries to solve (Rosenau 1999).

To view the term global governance is undoubtedly not to mean that such a system substantially exists, let alone to approach the competence of its operations. It is merely to recognize that in this regular globalized world, there is craving for some construct of governance to deal with multinational and global issues. The term global governance subsequently is a descriptive term, recognizing the issue and regarding concrete cooperative problem-working systems.

These may be crisp, using up the prejudice of laws or formally constituted institutions to perform collective affairs by a change of players – including states, intergovernmental organisations, non-governmental organisations (NGOs), various civil society workers, private sector organisations, pressure groups and individuals. The organisation also includes of course informal (as in the plight of practices or guidelines) or temporary units (as in the situation of coalitions). This global organisation can be proposed to be the most perplexing of reserved and informal institutions, mechanisms, relationships, and processes between and among nations, markets, citizens and organizations, both inter- and non-governmental, in which collective interests on the global plane are given voice, rights and obligations are carved in, and differences are mediated.

Global governance isn’t on the path the same component as world government: indeed it may be argued that the sort of system could not honestly be essential if there was this kind of element as an international government. Currently but the diverse kingdom governments have a legitimate monopoly on the use of force – on the strength of enforcement. Global governance consequently refers back to the political interaction that is required to resolve problems that have an effect on a multiple nation or place whilst there is no strength of enforcing compliance. Improved worldwide hassle-fixing want no longer of course require the placing up of more powerful formal international institutions, nevertheless it might require the institution of a consensus on norms and practices to be stocked away. Steps are of route underway to put up those norms and one instance that are presently being instituted is the creation and improvement of world responsibility mechanisms.

In this respect, as an example, the United Nations Global Compact – described as the world’s largest voluntary company responsibility initiative – brings together organizations, countrywide and worldwide corporations, trade unions and different labour establishments and diverse organs of civil society a good way to guide accepted environmental protection, human rights and social concepts. Participation is completely voluntary, and there’s no enforcement of the ideas by way of an out of doors regulatory body. Societies adhere to those practices each due to the fact they make economic experience, and because their stakeholders, consisting of their shareholders (most individuals and institutional investors) are affected with these problems and this offers a mechanism wherein they can display the compliance of agencies effortlessly. Mechanisms such as the Global Compact can enhance the capacity of people and local groups to keep companies accountable.

How Globalization Affects Governance

The inquiry might be how globalization affects governance. But the response to this question is not only blood relation to the final quarter of the 20th century but additionally cognate to antecedent centuries. John Maynard Keynes calculated that the standard of living had incremented 100 percent over four thousand years. Adam Smith held a seminal conception about the wealth of communities and in 1776 he reported the conditions which would lead to incrementing income and prosperity. Likewise, in that respect is much evidence from economic history to show the benefit of moral comportment; for example, Robert Owen in Incipient Lanark, and Jedediah Strutt in Derbyshire – both in the UK – showed the economic benefits of caring for stakeholders. More recently, Friedman has fixated on the moral shock of the economic magnification and the evolution of company.
It is pellucid that there is nothing incipient about economic magnification, development and globalization. Economic magnification generally brings out some outcomes for the community. This is a world phenomenon in its true essence. Single of the most consequential reasons is that we are not bringing into account the moral, ethical and convivial aspects of this operation. Some theorists betokened the effect of this rapid transmuting more than a hundred years ago. Economic magnification and economic development might not be without convivial and moral consequences and implicative insinuations.

Another question is who’s answerable for this ongoing process and for ensuring the well-being of people and safeguarding their prosperity. Is this the responsibility of governments, the enterprise international, purchasers, shareholders, or of all people? Government is a part of the machine and the regulator of markets and lawmakers. Managers, businessmen and the business global take moves regarding the marketplace shape, patron behaviour or commercial sites. Moreover, they’re responsible to the shareholders for making more earnings to maintain their hobby long term inside the establishment. Therefore, they’re taking risks for his or her gain/earnings. This chance isn’t opposed to the social or moral/moral ideas which they ought to practice within the agency. There are many motives for ethical and socially responsible behaviour of the enterprise. However, there are numerous cases of misbehaviour and any illegal operations of a few organizations. Increasing opposition makes business harder than earlier than in the globalized world.

The proper news and expectancies are that the competition will not have to any extent further horrific influence on business enterprise behaviour. According to worldwide norms, (exercise) and expectancies, companies should bear in mind social, moral and environmental issues greater than over the past few decades. One of the reasons is greater competition and now not always more income; another motive is the consumer expectation isn’t simplest related to the price of products, but also associated with fine, proper production procedure and environmental sensitivity.

Moreover shareholders are more inquisitive about the long term benefit and take advantage of the corporation. The key phrase of this concept is lengthy termism which represents additionally a sustainable business enterprise. Stockholders need to bring long time gain with a sustainable system in preference to handiest short term gain. This is not best associated with the corporate income, but additionally related to the social and environmental overall performance of the authority. Therefore, managers should make strategic plans for the business enterprise regarding all stakeholder expectations which can be sustainable and provide a long term advantage for the offices with their investments. However, Sustainability can be visible as including the requirement that something justice is almost – honest distribution of goods, fair methods, appreciate for rights and social justice – and is capable of being confirmed into the lot indefinitely.

This sustainability requires that the values of justice are capable of being continued into the future: if current practices for example, were just from the present point of view, but would prevent the same patterns from happening in the future, that would be spurned from the point of view of sustainability (Dower, 2004). So investor or shareholder expectations and all other stakeholders’ approaches are fortifying a convivially responsible and ethical company more than other societies. Globalisation has caused a very sharp impression on company behaviour and yet we can catch many problems particularly in growing nations. This is a well-known of the realities of the globalisation process. Nonetheless, we are hoping to visit some different approaches and improvements to this procedure with some of them naturally related to some international principles, rules and norms. But most of them are connected to the conclusion of this flawed system and the problems of capitalist economy.

The challenge of governance in a globalizing world is to engross in a process of political deliberation which aims at laying out and resetting the standards of global business conduct. While stakeholder management deals with the idea of internalizing the demands, values and interests of those constituents that touch on or are regarded by corporate decision-making, we indicate that political CSR can be realized as a crusade of the corporation into environmental and social challenges such as human rights, global warming, or deforestation (Scherer & Palazzo, 2008).

Globalisation, Corporate Failures and Corporate Governance

Enron, WorldCom, Parmalat, and various different screw ups of global corporate deliver out some organization issues and have improved attention to the purpose of business ethics. Directors and CEOs of these corporations must be brought into consideration responsible for all of those failures and these are examples of “corporate irresponsibility”. Many masses hold the impression that if organizations had been to play responsibly, maximum likely company scandals would stop.

Corporate governance protects firms in opposition to some long term deprivation. When groups have social responsibilities, they calculate their risk and the price of failure. Firstly, a company has to have a duty to shareholders and additionally all stakeholders which means that it has an obligation to all society. Corporate bankruptcies have a critical impact on all society to boot. Unique, big scandals along with Enron have sharply affected the market and the financial system. Various stakeholders (e.g. Worker, purchaser, client, providers and so on.) In addition to shareholders and regulators of the firm have a duty to make sure proper performance? Thus, corporate governance isn’t always only related to companies, but also connected with all society. Hence the shifting view of company obligation shifts the focal point from the actual hassle that society likes to speak.

Ace of the motifs for this close result is increasing competition among the agency and the mart. Managers tend to turn a lot more formidable than before in their behaviour and suffering in the globalized global. Therefore we ought to recognize on corporate and managerial behaviour. The query is a way to act as a socially responsible supervisor and a room to make up this crucial problem in enterprise life and in companionship. In the business international there are constantly some regulations, standards and norms in addition to policies and some felony requirements.

Nevertheless, to be socially accountable one should be greater than truly being a law abiding individual who has to be capable of coming out and being held answerable for decisions and natural processes. The problem is the implication for all of those instructions for business enterprise and managerial behaviour. Along the polar hand, one angle is that an employer is a “legal character” and has the rights and obligations that belong with that status—which include social duty. In the case of Enron, managers had been privy to all ordinances, yet though they have got regarded all irresponsible and unethical troubles in the employer control; they did now not change their method and conduct.

The conclusion is that it isn’t always usually viable to govern behaviour and company activity with regulations, principles and norms. And then another question arises in this case, that if the great unwashed do not see their responsibility and socially accountable activities and if they do now not behave socially responsibly then, who will control this problem in commercial enterprise lifestyles and within the marketplace. The theme is that the social responsibility implication of the business enterprise cannot be managed through criminal manner. This is the simplest social contract among managers and society and stakeholders of the authority and for responsible and accountable behaviour.

Firms will consciously need to cognizance on creating cost now not simplest in monetary phrases, but additionally in ecological and social terms. The task confronting the commercial enterprise area is the way to set about assembly those expectations. Firms will want to change now not simplest in them; yet, likewise within the manner they interact with their environment (Cramer, 2002).

Conclusion

Equally we can see, globalization has an enormous effect on society and business spirit which can be apparent in a numeral of different ways. So business life requires more regulation and proper and socially responsible behaviour than in front. In this chapter we have demonstrated the relationship between corporate governance and globalisation. We pointed out that the relationship between business failure and scandals, increased after globalization, and good governance is needed to come up to this problem.

References

• Cramer, J. (2002), “From Financial to Sustainable Profit”, Corporate Social Responsibility and Environmental Management, 9, pp. 99–106 Published online in Wiley.
• Dower N. (2004) “Global Economy, Justice and Sustainability” Ethical Theory and Moral Practice 7: pp. 399–415.
• Rosenau J (1999); Toward an Ontology for Global Governance; in M Hewson & T J Sinclair (Eds), Approaches to Global Governance Theory; Albany, NY; State University of New York Press.
• Scherer, A. G., G. Palazzo (2008), “Globalization and corporate social Responsibility” The Oxford Handbook of Corporate Social Responsibility Eds.: A. Crane, A. McWilliams, D. Martin, J. Moon, D. Siegel Oxford University Press.
• Wright, R. W, H. Etemad (2001), SMEs and the Global Economy, Journal of International Management, 7, pp 151–154

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In this article, Karan Singh of Jindal Global Law School discusses the regulations related to Dog Breeding In India.

“The greatness of a nation can be judged by the way its animals are treated” Mahatma Gandhi

Introduction

Dog breeding is the practice of mating dogs with each other with an intent to maintain or produce specific qualities and characteristics. The Ministry of Environment and Forest has published draft rules to regulate dog breeders across the country. The rules are to stop cruelty to animals. It seeks to prevent infliction cruelty on animals in this business. Dog breeding business is increasing day by day as everyone is interested in the new species of dogs. The government has also invited people for their suggestions on the Draft notification of Prevention of Cruelty to Animals (Dog Breeding And Marketing) Rules 2016.

For all the dog breeders it is mandatory to register themselves with the State Animal Welfare Board of the respective States under the new rules. In the Rules, the requirement for the breeders has been given such as related to health, housing facilities and conditions for sale.

Pedigree dogs

Imported dogs or high breed dogs are called pedigree dogs like Husky, German Shepherd, Rottweiler, Labrador, Doberman, and pug. In 2016, Director General of Foreign Trade (DGFT) bans pedigree dog import. Import of pedigree dogs will only be allowed for defense and police forces. Breeder in India can not import pedigree dogs now as per the ban. This ban is to prevent the suffering of thousands of dogs. As per People For Animal (PFA), this ban will stop the rise of the street dog population as many pedigree dogs end up on the roads. Breeders like Husky, St. Bernard can not survive in high temperature as these dogs are suitable for snow like temperature. This ban will also help to prevent the breeders to import the breeds which are not suitable for Indian climate.^[1]

The Ban on import of pedigree dogs was introduced because of a breeder who imported 2 Korean Mastiff puppies for 2 crore rupees. Korean Mastiff is a breed that ca only survive on mountains. But for money breeders are importing these puppies. To prevent this, the government came with this rule of imposing the ban on pedigree dogs.

Before the rule came in force, the breeders used cruel nature on dogs for breeding. They were sold as commodities, kept in unsuitable conditions. The female dogs were kept in short chain for all their lives and were treated in heinous behavior. The female dogs were actually raped to produce more and more puppies so that breeders can sell them and earn profit from it. Home delivery of the puppies was done by the breeders. The Dogs did not have suitable shelter and were kept in small cages. No food was given by breeders for days. This was a cruel behavior by the breeders on animals.

Regulations rated to dogs breeding in India

The following requirement shall be met by every breeder of dogs in India:

• The breeder should have knowledge about everything related to the breeding of dogs like reproduction, nutrition, wellness, and care.

 For Female Dogs

• Only normal healthy mature female dogs that have reached 18 months shall only be bred. They shall be certified as healthy by a licensed veterinary at least 10 days prior to breeding.
• No female dog shall be forced to produce puppies in 2 consecutive breeding seasons. Only once in a year.
• Female dogs should not be forced to produce more than 5 times during her lifetime.

For Male Dogs

• Male dogs should be healthy, mature and only after he has reached his 18th month.Must be certified by a licensed veterinary at least 10 days prior to breeding.

Common Breeding Techniques

• Breeders use four breeding techniques in which this rule only allows two out of four techniques:
• Out Breeding and Line Breeding are only allowed in India. Out breeding is the mating of dogs which are not at all related to each other. Line breeding is mating between dogs that are marginally related to each other. In this case, dogs are chosen for their special attributes to obtain certain types.
• Inbreeding and Incest Breeding are not allowed in India. In Breeding is mating between dogs that are related. Inbreeding is breeding between relatives of the 2nd to 4th grade in straight or sideline within the first four generations e.g. uncle to niece, nephew to an aunt, cousin to cousin, grandparents to grandchildren. Incest breeding is mating between parents and children or between brother and sister, i.e. 1st-grade relatives. This is strictly forbidden. Incest breeding, as well as continued inbreeding and line breeding, is risky since it increases the danger of hereditary diseases.
• Female dogs should not be mated after 8 years of age.
• All the breeders shall have a full record of the puppies that the male or female dog produces with their vaccination details.
• Tail docking, ear cropping or any mutation of the puppy is strictly banned and forbidden.

The Requirement for obtaining a license for dog breeders

• Breeder should be 18 years of age.
• License from local authority is the registration for commencing or continuing breeding activity at his premises.
• Inspection by the team including recognized veterinary before granting the license. Inspection is Mandatory.
• A report by the recognized Veterinary should be submitted to the local authorities. Local authorities will consider the report before determining whether or not to grant a license.
• The local authority will inform the Board to grant a license. A copy of the report will be submitted by a local authority to the board.
• The breeder must submit all the information requested on the application form, including a valid mailing address, and a valid address for the premises/establishment where animals, facilities, equipment, and records can be inspected for compliance. Locations of all premises/establishments, facilities or sites where the applicant operates from, has an interest in, or keeps animals, shall be provided on the application form or on a separate sheet attached to it.
• The license granted is only for 1 year issued by the local authority. renewal of the license is necessary after inspection.

The Condition for grant and renewal of license

• Procedure for registration with the Board must be followed
• The Record must be maintained.
• Identification of breeding animals y micro-chipping.
• Records of staff to be maintained
• Health of all the animals to be maintained

Operation without a license and without a registration certificate

• If a breeder is operating premises, or commercial kennel or pet shop without a valid license or valid registration certificate shall be a violation of the Rules. And this can start a court proceeding against that breeder.

Expiry Of License

All licenses will expire on the 31st of January every year, and will automatically terminate at midnight on that date unless an application for renewal, properly filled in and duly completed, along with the prescribed fee has been received by the Local Authority. 30 days prior to the expiry date of a license, the licensee must file an application for renewal with the local authority. If not done then you have to apply for new registration license.

Grounds on which license is likely to be rejected or refused

• Material and deliberate misstatement in the application for grant of the original license or for renewal of license.
• A Conviction for violation of any law on the treatment of animals.
• Failure by the breeder to fulfill all the requirement prescribed by the Local Authority.
• Refusal to allow any inspector to inspect the premises.
• Nonpayment of fees will result in denial of license.^[2]

What to do if you see a street dog/injured dog

Helping dog can change his life. If you see a dog that is injured or on a street then helps him by following the points:

• Give him some water and food to eat
• Then if it’s possible treat him with medication(If Possible)
• Search for nearby NGO that deals in dogs or a veterinary clinic. Some NGO is given below.
• Take him to the veterinary or call the NGO for help.
• Also, if you want to adopt the dog, adopt him instead.

NGOS in India for Injured dogs

1. Sanjay Gandhi Animal Care Centre, SGACC: 011 25448062, 25447751, Address: Raja Garden, Near Shivaji College, New Delhi 110027

Website: http://www.sanjaygandhianimalcarecentre.org/

2. PAWS- Save animals save the environment.

C-9/7, Masudpur Market, Vasant Kunj, New Delhi-70, Tel: +91 – 11 – 26895737

Website: http://www.pawsindia.org/

3. Friendicoes Seca No 271 & 273 | Defence Colony Flyover Market, Jangpura Side New Delhi, 110024 | India Tel: 011-24314787, 011-24320303, 011-24320707

Website: https://friendicoes.org/

Conclusion

To stop dog breeding, society has to change. Dog breeders are there to earn money. Stop buying dogs instead adopt them. People think that pedigree dogs are better than DESI dogs. But it’s actually opposite. DESI dogs are better than pedigree dogs. and instead of paying so much money for the pedigree dog, you should adopt a Desi dog. This will help the society as there will be fewer dogs on the street and a dog will get a good life. ADOPT DON’T SHOP.

References

^[1]http://timesofindia.indiatimes.com/india/Government-bans-dog-import-pedigrees-to-cost-more/articleshow/52018461.cms

^[2] http://awbi.org/awbi-pdf/draftdogbreedrules.pdf

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In this article, Jagriti Bharti discusses the steps to sue an employer for unpaid wages.

Searching for work to earn living is a tough task and what makes it tougher is the unwillingness of the employer to pay their employees timely wages or salary^[1] for the work they have performed for him. Non-payment of the salary by the employer to the employee has become a common concern nowadays. Employers generally avoid paying salary to the employees either by firing them or pushing them to a limit so that they get forced to resign by themselves.

Employers are bound to pay their employees. It is their legal obligation towards their employees even if the employer is getting bankrupt. Many employers when on a verge of getting insolvent start delaying in paying their employees. Some of them even deduct salary of their employees as a matter of punishing them. Any unauthorised deduction from the salary of the employee by the employer amounts to non payment of the salary.

Following deductions from the salary of the employee can be termed as unlawful and will amount to non payment of salary:

• If the deduction is not mentioned in the contract of the employment.
• If the employee has not agreed for the following deductions.
• If the deductions are not as per the law.

Usually, employers think that denying and delaying payment, non-payment of salary, making unlawful deductions are in their own hand and employees don’t have any right to speak up against it. But this is not the case. Various labour laws has been made in favour of employees to deal with these kind of matters.

When an employment contract is signed between an employer and an employee with free consent^[2] it becomes binding on both the parties and neither of them can deny performing the contract, as after acceptance it becomes enforceable by law^[3].

According to section 3(2)(a) of  Minimum Wages Act, 1948, the appropriate government has authority to fix minimum wages of the employees for the time rate and as per Section 3(1) of Payment of Wages Act, 1936, every employer has a responsibility to provide wages or salary to the employee employed under him. So, when a contract has been been formed between an employer and an employee, employees are entitled to receive salary for their work and if it is not paid, they can sue employer for it.

Remedies available against non-payment of salary to the employees by the employer under different Acts are as follows

PAYMENT OF WAGES ACT, 1936

Under section 15 of Payment of Wages Act, 1936 procedure has been provided to entertain the claims arising out of unlawful deductions from wages and delay in payment of wages and penalty for malicious and vexatious claims. It provides that appropriate government may appoint following officers to whom complaints can be filed with regard to above matter by the employed person or his legal practitioner, inspector^[4] appointed under this Act or any trade union under his behalf within 12 months from the happening of the said event:

1. Commissioner for workmen’s compensation,
2. Regional Labour Commissioner or assistant labour commissioner having at least two years experience (to be appointed by central government),
3. Officer of state government not below the rank of regional labour commissioner having at least two years of experience,
4. Presiding officer of any labour court or Industrial labour tribunal,
5. Other officer with experience as a civil judge or judicial magistrate.

While entertaining the application filed, the authority will hear both the sides and may order for payment of salary which has been not paid by the employer alongwith the compensation which the authority may think fit. No direction for the payment of compensation can be made if the authority is satisfied that delay in payment was due to:

• Bonafide error or dispute regarding amount paid to employed person.
• Occurrence of emergency or exceptional circumstances because of which employer was unable to pay the wages.
• Failure of the employed person to accept the payment.

Penalty not exceeding 375 rupees shall be ordered to be paid to the the employer if the claim is found to be malicious or vexatious. An application of appeal can be made by aggrieved party under section 17 against the order made under section 15 together with certificate by the authority to the effect that the appellant has deposited the amount to be payable under the direction appealed against within 30 days of the making of such order before court of small causes or before district court.

INDUSTRIAL DISPUTE ACT, 1947

Under Industrial Dispute Act, 1947 complain against employer^[5] can be filed with:

Conciliation officer

Complaint can be filed against employer by the employee regarding non payment of salary or any other dispute relating to employment to the conciliation officer appointed under section 4 of the Act who will work as a mediator between the parties and will promote settlement of the dispute.

If settlement of dispute has arrived while conciliation, the conciliation officer will send a report of the same to the appropriate government together with the memorandum of the settlement signed by the parties to the dispute.^[6]

If it is evident to the conciliation officer that settlement can’t be reached, he will make a report as to why the settlement is not possible between the parties and forward it to the appropriate government.^[7] After considering the report if the government thinks fit, it will forward the case to the labour court or labour tribunal.^[8] While mediating between the parties, the conciliation officer will have all the powers of a civil court provided under Code of Civil Procedure, 1908.

Labour Court and Labour Tribunal

Where no settlement has been approached by the parties to the dispute by the conciliation officer, the matter will be referred by the appropriate government to the labour court or labour tribunal within 30 days. Where an industrial dispute has been referred to a Labour Court, Tribunal or National Tribunal for adjudication, it shall hold its proceedings expeditiously and shall, [within the period specified in the order referring such industrial dispute or the further period extended under the second proviso to sub-section (2A) of section 10], submit its award to the appropriate Government.^[9] While deciding the case the court shall have all the powers of a civil court provided under Code of Civil Procedure, 1908.

The award made shall be binding to the parties to the agreement only when it gets published in a manner provided by appropriate government within 30 days of its receipt.

If the employee whose salary is not paid is of manager or executive category and is earning more than 18k per month, he can file his case through his lawyer directly to the civil court. But it is better to exhaust other available option first before approaching to the civil court.

COMPANIES ACT, 2013

If any employee has suffered personal loss due to fraud committed by the company then he can file a case against that company under section 447 of the Companies Act, 2013. Person found guilty of the fraud will be liable of imprisonment which shall not be less than six months and which may extend to ten years. He shall also be liable to fine which shall not be less than the amount involved in the fraud and can extend up to three times the amount involved in the fraud.

Approaching to court is always a tedious and delaying process. Going through the technicalities of the court procedure doesn’t always serves its best with every person. Hence, it is advisable to settle down the matter with conciliation and mediation unless it is inevitable to approach the court. Avoiding the court will save both money and time and also reduce the burden of the court.

References

^[1] Section 2(21) in The Payment of Bonus Act, 1965

^[2] Indian Contract Act, 1872: Sec.14.

^[3] Section 2(h) of Indian Contract Act, 1872

^[4] Section 14 in The Payment of Wages Act, 1936

^[5] Section 2(g) of the Industrial Dispute Act, 1947

^[6] Section 12(3) of the Industrial Dispute Act, 1947

^[7] Section 12(4) of the Industrial Dispute Act

^[8] Section 12(5) of the Industrial Dispute Act

^[9] Section 15 of the Industrial Dispute Act

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In this article, Shretima Bagri discusses National Company Law Appellate Tribunal (NCLAT) taking over Competition Appellate Tribunal (COMPAT).

Introduction

As per a recent amendment, the Competition Appellate Tribunal (COMPAT) has ceased to w.e.f May 26, 2017. The appellate function under the Competition Act, 2002 (Competition Act) would now confer to the National Company Law Appellate Tribunal (NCLAT). These amendments were brought about under the provisions of Part XIV of Chapter VI of the Finance Act, 2017.

Accordingly, Sections 2(ba) and 53A of the Competition Act and Section 410 of the Companies Act, 2013 (CA 2013) have been appropriately amended and various other provisions of the Competition Act dealing with the COMPAT have been omitted. Further, Section 417A has been introduced in the CA 2013 and deals with the qualifications, terms and conditions of service of the Chairperson and Members of the NCLAT.

The government has moved amendments to the Finance Bill in order to facilitate the changes. Further, the Copyright Board would be dissolved, too, and its functions would be taken over by the Intellectual Property Appellate Board. The National Highways Tribunal would be replaced and its functions would be taken over by the Airport Appellate Tribunal.

In the case of Employees Provident Fund Appellate Tribunal, its function would be taken over by the Industrial Tribunal. There will be transitional provisions for the tribunals being replaced.

The chairpersons, vice-chairpersons, chairmen, or other members who are currently occupying posts with tribunals to be merged will be entitled to receive up to three months’ pay and allowances for premature termination of their office term. Officers and other authorities of tribunals that will cease to exist after the merger will stand reverted to their parent cadre, ministries or departments.

Amendments to the Finance Bill, 2017, propose that the central government may make rules to provide for the qualifications, appointments, term of office, salaries and allowances, resignation, removal, and other conditions of service for these members. These rules will be applicable to members, including the chairperson, vice-chairpersons and members, among others, of specified tribunals, appellate tribunals and other authorities.

The amendments state that the term of office for these persons will not exceed five years and that they will be eligible for reappointment. Further, the age of retirement for these persons has been specified, such as 70 years for chairpersons, chairmen or presidents, and 67 years for vice-chairpersons, vice-chairmen, vice-presidents, and presiding officers.

Some of the major objectives of The Finance Bill, 2017 are as follows:

• To minimise the number of tribunals, the Finance Bill, 2017 sought to merge eight tribunals with other tribunals and amended provisions relating to the structuring and re-organization of such tribunals.
• The above measures were sought to be taken through a money bill, which is only supposed to contain provisions for imposition of taxes and withdrawal of money from the State Treasury.

The Process

• The Finance Bill, 2017 received Presidential Assent on 31 March 2017 becoming the Finance Act, 2017. The Ministry of Finance notified that the relevant provisions regarding the merger of tribunals would come into force on 26 May 2017.
• Subsequently, in exercise of the rule-making power conferred by the Finance Act, 2017, the Ministry of Finance also notified the rules which would govern the appointments, tenure and other condtitions of service of chairpersons and members of the merged tribunals.
• As a result of the above exercise, the Competition Appellate Tribunal, which until recently was the primary appellate authority for decisions from the Competition Commission of India (CCI), was merged with the National Company Law Appellate Tribunal (NCLAT).
• Soon after the notification of the Finance Act, 2017, media reports suggested that it raised concerns about the separation of powers and the independence of the judiciary in certain areas. A judicial challenge seemed to be in the works.

Effects

• There will be a transition phase during which all pending matters before the COMPAT stand transferred to the NCLAT. During this period, all such matters will be heard afresh by the NCLAT.
• There is also a perceived lack of clarity regarding the manner and the timelines in which these transferred matters will be dealt with by the NCLAT, given that the NCLAT is already burdened with adjudication of appeals arising out of the NCLT as well as the IBBI. This brings to the fore concerns about whether the administrative machinery of the NCLAT is equipped to deal with the additional authority that has now been assigned to it.
• In order to deal with the additional responsibility of adjudicating appeals under the Competition Act, it may be helpful to now increase the number of members of the NCLAT.
• The NCLAT may also have multiple Benches, including a dedicated Bench for matters under the Competition Act. Amendments to the Rules, bringing them in tune with the Competition Act would go a long way in easing procedural formalities.

Writ Petition challenging the merger

The merger was challenged by a writ petition filed in the High Court of Madras by the Madras Bar Association, an association of lawyers which has considerable experience in advocating such causes. The Ministry of Finance and Ministry of Law have been impleaded as respondents.

The primary contentions laid down in the writ petition are as follows:

• Section 156 to 189 (the relevant provisions regarding the merger of tribunals) of the Finance Act, 2017 are ultra vires Article 14, Article 50 and Article 110 of the Constitution of India (Constitution).
• The Conditions of Service Rules are unconstitutional as they violate the principles of separation of powers and the independence of the judiciary, which form part of the basic structure of the Constitution.
  Significantly, the petitioners also submitted that the impugned provisions of the Finance Act, 2017 and the Conditions of Service Rules are contrary to certain directions issued by the Supreme Court in Union of India v. R Gandhi when hearing a similar challenge regarding the establishment of the National Company Law Tribunal and the NCLAT.
• Further, the petitioner contended that the passing of the impugned provisions in the Finance Act, 2017 as a money bill constitutes “colourable exercise of power”.

The matter reportedly came up for hearing at the High Court of Madras. A notice has been issued to the Central Government and next hearing is scheduled for 27 June 2017. No interim orders have been passed by the High Court of Madras, as yet.

As the institutions enforcing the Competition Act, 2002 face judicial challenges, it will be imperative for the Central Government to ensure that the above judicial challenges are met appropriately so as to further the cause of justice with minimal interference with the on-going functioning of the authorities.

The post All you need to know about NCLAT taking over COMPAT appeared first on iPleaders.

This article is written by Ramanuj Mukherjee, Co-Founder & CEO at iPleaders.

At iPleaders, we always believed in the power of communities. What we can do alone can be great, but the achievements of a single person will never match up to what can be achieved by a community.

At iPleaders, over 5 years, we built a very valuable community painstakingly. We built a community of learners. Many of the students of our first few batches are now industry leading professionals, CXOs, authors, hiring managers, bureaucrats and leading wherever they are.

However, we didn’t lose touch with them. Many of them are still a part of our community, and helping incoming students as mentors, telling us where to look to grow in the future, assisting in launching pathbreaking courses, making iPleaders club more reach and supporting our vision in more than one ways.

Sometimes we are not even aware of how students help each other. We always keep getting enriched by the discussions in the community WhatsApp groups. We are truly proud of this community.

We have been very selective about who gets to stay in this community. While anyone who takes any long term course of iPleaders is accepted as a provisional member of iPleaders Club (the official name of the community), after 6 months we evaluate if they have been really participating in the activities of the club or developing themselves. Those who have failed to reach certain benchmarks are removed from the community. It helps to keep the community agile, active and relevant.

Also, the part of the community are some very generous mentors who make a difference to many of the learners in our courses.

Here are some of the activities we do in the iPleaders club:

1. Create your dream CV. Write down not how it already is, but what you want to be in that CV. Discuss with your mentor while you make this CV. This exercise is very inspiring and gives amazing clarity to your actions. You can try this at home, but when you do it along with a community, it’s a different feeling altogether!
2. Interview 5 people like whom you want to become. How did they reach where they are now? What challenges did they face along the way? How did they overcome these challenges? What do they think you should do to improve your chances of success? Will they be willing to have a chat with you once in a month for 15 minutes and guide you? It’s amazing what people accomplished through these informational interviews. They found mentors. They got hired. They learnt how to network. Turning points in career were created.

We want to grow this community. With each passing year, it becomes a larger, more powerful network.

Come join us and experience it.

The membership of the club is complimentary for all those who take admission in this business law course (the very popular Diploma Course in Entrepreneurship Administration and Business Laws).

We have been at the cutting edge of business law education, leading this market in India by a big margin and producing results that are incredible for others. Only way to know the difference will be to experience it!

You can see here what our past learners have been saying.

The post How a community can turn around your career appeared first on iPleaders.

In this article, Pradipta Nath discusses how to seed KYC data in the EPF portal on your own.

An employee can do seed the KYC details on his/her own.

The benefits of activating UAN and seeding the KYC details in the PF portal are many. Those are furnished below:-

1. Online PF withdrawals

The employee did not need to interact with his/her employer. Hence no question of visiting and waiting at the ex-company for the authorized person’s signature.

2. No documentation required

Upon successfully seeding the KYC details in the PF portal, and subsequently getting approval from his/her employer, an employee is free from the cumbersome documentation part of EPF.

3. UAN

An employee has to activate his/her UAN for seeding the KYC as well as for the case of withdrawal. Seeding KYC details is not possible if the employee has not yet activated his/her UAN. So an employee must ensure to activate his/her EPF beforehand.

4. PF Passbook

Upon activating the UAN, an employee can see his/her PF passbook. The employee can get his/her per month PF contribution.

5. Online PF transfer

An employee can even able to transfer his/her EPF account from one organization to another. But beforehand the employee must ensure to activate his/her UAN and inform his/her UAN to his/her present employer to avoid any duplication of UAN for the same employee.

Note: – Has to keep in mind if the KYC details are once seeded against an UAN, again generating an UAN for that same employee can lead to hackle for the employee in withdrawing his/her PF. An employee may have to go on liaisoning with the EPF authority and the employer may avoid or ignore the employee to provide help for hiding and/or not disclosing any material fact on his/her pre EPF a/c no. and/or employment.

Source: https://unifiedportal-mem.epfindia.gov.in/memberinterface/

Documents to be seeded in the EPF

1. Bank a/c no.
2. IFSC code
3. PAN Card no.
4. Aadhar Card no.

It is mandatory to seed the above mentioned documents no. in order to get the online EPF withdraw benefits.

Step by step to seed the KYC details is EPFO

1. Activate your UAN

Go to the EPF site www.unifiedportal-mem.epfindia.gov.in or simply copy and paste the link below.

https://unifiedportal-mem.epfindia.gov.in/memberinterface/no-auth/uanActivation/activationForm?_HDIV_STATE_=9-7-F9EE094167844B23BE254A8809594851

The following screen will come…(But to make sure that the employee has obtained the UAN from his/her HR for its smooth process.)

2. Fill up the details. Please, to make sure that the mandatory fields do not remain blank and the mobile no. which will be provided in this filed do not changed.

3. Upon feeding the UAN no., name, DOB and the Captcha click the ‘Get Authorization Pin’, the below screen will come up.

4. Please, to enter the OTP no. which will come in the mobile no. provided. So make sure that the mobile is kept beside while doing this UAN activation. Click the ‘I agree’ box and put the OTP in the box provided.

Note: OTP id will be created automatically, you just have to enter the OTP.

5. Congratulation, your UAN will get activated upon choosing the password and final submission!!

6. Go to the home page of the EPF portal https://unifiedportal-mem.epfindia.gov.in

Else can simply copy and paste the below link

https://unifiedportal-mem.epfindia.gov.in/memberinterface/

7. Put your UAN no., password, captcha and then click on the ‘sign in’ box.

8. Upon signing in the below screen will be opened.

9. From the ‘Manage’ option you can even change your e-mail id and/or mobile no.

Click on the KYC menu.

The below screen will be opened…

Fill up the red colour highlighted documents details, for the online withdrawal benefits and then click on the ‘save’ option.

10. Upon saving the same the below screen will come up, showing the status as ‘Pending KYC’.

11. After the employer approves the uploaded KYC by the employee, the status will get transformed as ‘Approved KYC’ like the below.

12. Though after clicking the ‘Save’ box, the data will automatically reflected into the employer’s EPF portal and want for approval of the same through the digital signature of the authorized person.

13. It is also suggested that the employee himself or herself do approach the Human Resource Department of the Company in writing stating to approve the KYC. In that case the letter should be attached with the photo copy of PAN card, Aadhar card and a cancelled cheque. Also please to make sure that take a receipt of the submission therein from the HR or the receive section.

14. The reason to submit the hard copy letter is that the employer or its representative cannot take the approval of KYC task into lethargic.

For processing Online Claim the following points to be remembered

1. The claims on the member has to satisfy that the UAN is activated
2. Aadhar number is seeded and has been verified by the employer.
3. Bank detail is seeded and the same is verified and approved too by the employer.
4. PAN card details are seeded and verified & approved accordingly by the employer.

It is the right of the employee to get his/her documents approved within one month from the employer, else the employee after submitting hard copy request letter to the HR can move to the EPF authority against its employer for not cooperating. To mention separately that the same right can be invoked by the ex-employee too.

Relief for the Employees if the employer is not approving his/her KYC or showing lethargy

1. RTI to the EPF department

The employee can file RTI to the EPF authority for the reason as to why still his/her KYC verification has not been done?

To make the RTI more authentic, the employee can attach the hard copy screen shots print outs with the RTI application. Else it’s always suggested to file the RTI through an expert so that the key ingredients are not missed out.

2. Complain to the EPF department

The employee can even make direct complain to the EPF authority in their grievance cell. The complain website is http://epfigms.gov.in/

Further, in this respect be noted that the site is for only submission of online complains. In case the employee has not obtained UAN no. from his/her employer and has activated the same, the employee cannot file the online complain through this portal.

3. Approach to the Employer or Director directly

Normally it is found that the HR takes care of all the EPF matters of a Company. Hence if the approval of KYC is urgent and has to be done by a date it’s not viable to go with the RTI or the online complain procedure.

In that case the employee can directly approach the Director of the Company and escalate the matter.

The post How to update your KYC (Know your costumer) details in Employees Provident Portal? appeared first on iPleaders.

In this article, Archana Warrier discusses Sexual harassment in Bollywood movies.

Sexual harassment as a topic has recently been garnering a lot of attention especially as movies come out in Bollywood that draw attention to it. But sexual harassment isn’t as clear cut or as obvious as the movies, TV series or even community gossip would have us believe and are so ingrained in the silver screens that most of us wouldn’t even call it sexual harassment, just an ‘elongated courtship’ or even the girl playing ‘hard-to-get’.

With the idea of sexual harassment so ingrained in our society, perhaps it’s time to revisit Bollywood and see exactly how much of the amusing or even ‘cute’ courting scenes actually fall between the murky lines of sexual harassment and actual courtship.  Here are five movies or scenes that you might not consider sexual harassment, but actually…it sort of is.

Dilwale Dulhaniya Le Jayenge

This scene is an iconic scene from an equally iconic movie. But it also shows the casualness with which sexual harassment can be considered in many movies. Raj- and many audience members consider it to be a funny joke when he keeps approaching Simran despite her obvious lack of interest, and later on how uncomfortable she is. This is actually a form of harassment. If someone is clearly showing signs of not being open to approach or interested in it, then the continued approach- be it of a romantic or a sexual nature- is a form of harassment no matter what Bollywood says. In fact, invasion of personal space is actively considered as a form of sexual harassment that women can face. And to those of you saying that this is a thing of the past…fear not its presence can still be felt. Movies even today show situations wherein a boy invades a girl’s personal space be it to give her unwanted hugs or advice or even to kiss her to shut her up when she is upset, these all constitute of moments of harassment especially if the girl has not consented to such acts beforehand or given permission to the guy to touch her in any way shape or form. While in DDLJ, Raj does none of the above, lying on her lap and leaning on her shoulders are both forms of invasion of personal space that should be noted.

Kuch Kuch Hota Hai

Another classic that makes the list this movie is here for a different reason. The opening scene with Tina walking down the corridor of her college both before and after she meets up with Anjali as well as the scene in which the Rahul and the boys crowd around her asking to prove her ‘Indianness’ does constitute as a form of harassment. Why? Because the environment created around Tina is hostile towards her and is explicitly so because of her ‘sexual’ presence. The girls are teasing her for her seeming physical sexuality that comes with the way she walks and how she dresses which is clearly making her uncomfortable. By asking Anjali why they are behaving the way they are, Tina shows an open discomfort with the way her fellow students treat her as a sexual being rather than another peer. When Raj and his boys confront her in the open space with the demand that she sing to show that she belongs, the act in itself is not sexual but it is creating a hostile environment for her should she choose not to comply and that is a form of harassment. That Tina surprises everyone by being a sanskari desi girl despite her upbringing (and her style of dressing) shows that a girl can only be awarded respect if she is able to prove exactly how she fits with the model of a typical good desi girl. And despite what movies say even to this date- that is not how society works.

Main Tera Hero

That this movie is on the list should honestly be no surprise. The main character’s ‘tagline’ so to speak is literally “main diktha hoon sweet innocent swami type but mein hoon harami type” (lit: I look like the sweet and innocent type but I am a bastard). The meeting of the main lead and the heroine has her following despite her multiple rejections and when I say following I mean that exactly. This boy shows up where ever she goes with his propositions…even her house. She shows all the signs of not being interested and not wanting to actually engage with him. When he shows up at her night- unannounced might I add- he shows all the behaviour that would technically account for stalking. And the reason this particular bit falls under sexual harassment would be the fact that the entire ‘wooing’ song Palat is focused on getting her attention through making sexually coloured remarks. This is, of course, ignoring the problem that is Angad and his (unwelcome) advances with both implicit and explicit threats that follow them. While Shinu is much more covert, his actions still constitute as a form of sexual harassment because he is taking away her choice of whether or not she actually wishes to be with him especially since she makes it clear when she doesn’t show up for the coffee date that he asked her to come to when he came into her room at night.

Dhoom 3

The movie is no question about it using women in the most objectified way possible. They are there to add flair, or a little bit of masala and not much more for all three movies in this franchise. But in this particular movie and in this particular scene, what you see is sexual harassment. Aaliya is under the impression that she is working for the charming and magnetic leader of the circus played by Samir but she is completely unaware of Samar’s existence. The entire song sequence Tu Hi Junoon shows Samar following Aaliya to her place of residence and work without her being aware and this constitutes stalking. This becomes sexual harassment because of the fact that she has shown no interest- at this point in the movie- in Samir and by extension Samar. In following her to all these places and stalking her, again for a seemingly romantic reason, it does constitute as sexual harassment.

Mai Hoon Na

Another loved movie (I’m starting to notice a pattern here…) Yes Sushmita Sen is being sexually harassed in this scene. While there is nothing openly sexual in this scene, it is again a form of harassment when someone who is a non-consenting party is faced- repeatedly with a situation where they are uncomfortable. Acts such as flirting and even embarrassing someone due to their physical appearance is considered to be a form of sexual harassment. This is not to say that a friend teasing someone else because of their appearance is sexual harassment. The keyword here is consent. Here, Ms. Chandini (Sushmita Sen) had not given consent for the song and clearly denies consent when asking for Ram (SRK) to stop singing the song. The continues singing of the song is actually sexual harassment and therefore….not the bet idea for someone in the army.

So after looking at five scenes and movies which show sexual harassment without even considering it to be anything out of the norm, it goes to show that sexual harassment isn’t always what we think it is. To be much clearer, sexual harassment is defined (broadly) as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature” This constitutes for anything, from creating a hostile environment for an employee of a certain gender to actively causing verbal, emotional or physical discomfort for a person based on their gender.

Indian YouTube group AIB (All India Bakchod) did a video on this in December last year, pointing out how many Bollywood movies and songs actually indicate sexual harassment and isn’t really ‘cute’ or ‘sweet’ frankly, its creepy and usually, unwanted. Thanks Bollywood….we definitely needed that  

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In this article, Diksha Chaturvedi discusses the constituents, punishment and other legal issues related to cheating. 

Introduction

As we see cheating is a criminal offence and it has myriad of crimes associated with it. It can be seen in various forms. In the layman’s language cheating can be described as a dishonest or unfair act done to gain advantage over the other. Cheating is saying or doing something dishonesty which makes someone believe that something is true when it is not. It is a term we often hear in our daily lives but don’t know its legal aspects. To make a more clear understanding from legal point of view, this article would be dealing with cheating and its constituents, punishment for this offence and other legal issues related to it. Further, this article will also discuss the legal remedies available for this offence.

Cheating (Section 415-420 of IPC)

Indian Penal Code deals with this offence under section 415 to 420.

Section 415: Cheating

Cheating is defined under this section. It says that,
“Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.

Explanation: A dishonest concealment of facts is a deception within the meaning of this section.

Illustration:  A, sold an article to B saying that it is made up of gold when it is not, intentionally deceives him and thus commits the offence of cheating.

Constituents of Cheating

Acting Dishonestly

The term ‘acting dishonestly’ has been defined under section 24 of Indian Penal Code.
It is defined as, “when the doing of any act or not doing of any act causes wrongful gain of property to one person or a wrongful loss of property to a person, the said act is done dishonestly.”

Property

Property has a much wider meaning. It does not only include money but other things as well which can be measured in the terms of money. The property should be in a complete ownership of the person and he must have the full right to enjoy its possession.

Fraudulently

Being fraudulent means which involves deception mainly criminal deception. It is characterized by fraud. According to section 25 “a person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise.”

Mens Rea

Mens rea is the intention or action to constitute a crime. It is a mental state of an offender while committing a crime. It has to be proved beyond any doubt that the accused has actively contributed in a crime and that crime has affected another person’s property.

Section 416: Cheating by Personation.

A person is said to cheat by personation when,
“he cheats by pretending to be some other person, or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other person really is”.

Explanation -The offence is committed whether the individual personated is a real or imaginary person.

Illustration: A, by falsely pretending to be a government official deceives B, and induces B to sell his property to him for which he is not going to pay. A cheats by personation.

Section 417: Punishment for Cheating

Cheating is punishable under this section with imprisonment up to 1 year or fine or both. Imprisonment depends upon the quantum of the act done. If the act is not that grave, imprisonment won’t be imposed and will charge with fine only. But when the act done is so grave that merely fine and imprisonment won’t compensate, then the person will be charged with a mandatory imprisonment of 7 years along with fine.

Section 418: Cheating with knowledge that wrongful loss may ensue to person whose interest offender is bound to protect.
Under this section,

“Whoever cheats with the knowledge that he is likely thereby to cause wrongful loss to a person whose interest in the transaction to which the cheating relates, he was found, either by law, or by a legal contract, to protect, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both”.

Explanation: Causing loss to the aggrieved party whose interest is to be protected by the offender, omits to do so with wrongful intention.

Section 419: Punishment for cheating by personation.

Under this section,  

“Whoever cheats by personation shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.”

Section 420: Cheating and dishonestly inducing delivery of property

This section deals with offences which are committed by a person by cheating another person and inducing him to deliver his property to the offender.
According to this section “Whoever cheats and thereby dishonestly induces the person deceived any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine”.

Constituents of Section 420

The ingredients as to constitute an offence under this section are:

1. Cheating,
   
2. Dishonest intention to take the property of another person or induce him to deliver the property to alter, destroy or make any changes in the valuable security, or
   
3. Deceitful or malice intention.

Modes of cheating

There are various ways through which the offence of cheating can be committed. They are:

• Caste Misrepresentation:
  when a person represents himself as a member of a caste to which he do not belong is committing an offence of cheating.

• Showing false accounts:
  when a person shows false accounts of himself or of some other person to clear a debt, then is said to commit the offence of cheating.

• Creating false evidence:
  when a person gives false evidence regarding some event then he can be held liable for the offence of cheating.

• False professional qualification:
  when a person shows false professional qualification to acquire a post or job then he is said to commit the offence of cheating.

When does breach of contract amount to cheating

Case Law: S.W. Palanitkar V. State of Bihar- 2001(10) TMI 1150- Supreme Court
Under this case Supreme court held that to convict a person for the offence of cheating there should be pre-existing dishonest or fraudulent intention of the person from the beginning but in case of Breach of Contract the dishonest intention is not present in the beginning of the agreement

Fraud/ Cheating

Dishonour of Cheque/ Cheating

Dishonour of Cheque is maintained u/s 138 of Negotiable Instrument Act while the offence of Cheating is mentioned u/s 420 of Indian Penal Code. But in some cases Dishonor of Cheque can be taken as an offence of cheating.

For example, if the person who has issued the cheque has already closed his bank account but still issues a cheque to some other person in exchange of payment of goods he has purchased from that person, in this case the person issuing the cheque is dishonest as he is aware of the fact that the cheque will get bounce. The person has deceived the other by doing so as he knew from the start about the consequences of the same. So, this may be an example where offence u/s 420 can be made out for dishonor of cheque.

The offences under Section 138 N.I. Act and Section 420 IPC are two different offences altogether. Whether this offence or that offence is made out would depend on the facts of each case. You’ll have to check the ingredients of which particular offence are satisfied from the facts of your case.

Legal Remedies for the offence of Cheating

Jurisdiction

Under section 2 of IPC it is stated that “Every person shall be liable to punishment under this Code and not otherwise for every act or omission contrary to the provisions thereof, of which he shall be guilty within India.”

A national of Pakistan, falsely represented himself as the businessman of Bombay. He assured the complainant that he is having good quality of products and he would be glad to sell them to the complainant if he transfers the money to him. The complainant transferred the money but did not receive anything in return.
It was held that as the offence was committed in Bombay even though the accused is a national of Pakistan and was not physically present in India, the courts of Bombay has jurisdiction by virtue of Section 2 of IPC.

Cognizance of the offence

Offence of cheating is cognizable and non bailable. The trial is done by magistrate of first class. FIR or Application can be filed u/s 156(3) and In case of private complaint u/s 200.

Punishment

Minor cases

When the offence of cheating is not that severe or is a simple case of cheating then the offender is punished with imprisonment for a term of 1 year or fine or both.
Example: ‘A’ promised ‘B’ to sell his property but instead of that sold it to ‘C’. This case can be considered under it.

Severe cases

It covers the cases where cheating is done by guardian, trustee, solicitor, agents, manager of Hindu family etc. In such cases punishment is imprisonment for 3 years or fine or both.

Cheating by personation

In the cases where the offence of cheating has been committed along with personation then the person if guilty u/s  416 and punished u/s 419 for imprisonment up to 3 years or fine or both.

Conclusion

Cheating is an offence under which a person induces the other to deliver the property or commission or omission of an act done on the part of the offender with the intention of deceiving the person. Mainly two elements are necessary to constitute the offence of cheating i.e. deception and inducement. Cheating is confused with various other civil and criminal offences but it differs from each of them in some or the other way.

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In this article, Sachin Vats of RGNUL discusses Ten Points about AFSPA. Is it misunderstood by masses?

What made the “Iron Lady of Manipur” to fast for such a long period of sixteen years which ended without any fruitful result. The country with diversified culture and beliefs is very critical to understand as the decisions taken by the legislation has to think from a different perspective because the laws should be in accordance with the length and breadth of the country. Some special provisions are indeed essential to tackle specific and serious problems. The Armed Forces Special Powers Act is one such act which confers some special powers to the Armed Forces to combat terrorism in “Disturbed Areas”.

The Birth of AFSPA

The Article 355 of the Constitution of India confers power to the Central Government to protect every state from internal disturbance. The Governor of the State has power in his hands under this article to provide the armed forces special powers in Disturbed Areas to face dangerous situations.

The Armed Forces Special Powers Act was enacted in the year 1958 which first came as an ordinance and then made into law. The AFSPA was concerned with only Assam and  Manipur in 1958 due to increasing in insurgency by the Naga militants.

Disturbed Areas

The Governor of a State or the Administrator of any Union Territories or the Central Government can decide according to the dangerous situation of the area to declare it as Disturbed. If there is a requirement of use of Armed Forces in aid of the civil powers then it can be declared by the Governor or the Administrator or the Central Government in the official gazette through a notification. The whole or any part of the State or the Union Territories can be declared as Disturbed Areas. All these provisions are stated under Section 3 of the Armed Forces Special Powers Act, 1958. The disturbed areas are declared on the basis of the disputes related with religion, races, castes, communities. The region once declared as disturbed has to maintain a status quo for a minimum time period of three months according to The Disturbed Areas (Special Courts) Act, 1976.

Some Misconceptions related with AFSPA

Nature of AFSPA: Is it really Draconian?

The Governor and the Central Government have power to declare any state or part of the state as “Disturbed” without any specified grounds. The only ground required is to say that the situation is dangerous and aid to the civil power is required which will be given by the armed forces with special power. The country will not tolerate the attack on the Sovereignty and forces are allowed to take even the extreme decisions when there is question about nation’s security. One of the important point here is to note that the area declared as disturbed is not subject to Judicial review.

Many people describes it as “Unconstitutional” on the ground of violation of Article 21 and 22. The Article 21 discusses about the Right to life and personal liberty which includes fair, just and reasonable law. The use of excessive power without reasonable grounds questions the validity in accordance with the constitution. The Article 22 relates to protection against arrest and detention but all these procedures are actually followed or not is always a controversial topic.

The controversies have been already sorted out by the decision of the Delhi High Court in the Inderjit Barua case where it was stated that the AFSPA is constitutional and the Guwahati High Court found it binding on the resective state. People are waiting for the decision of the Hon’ble Supreme Court which pending for few years.

The Section 4 of the Act itself gives special powers to any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces. The maintenance of the public order is of prime importance. Any person who has committed any cognizable offence or against whom any reasonable suspicion exists that one has committed any cognizable offence or about to commit cognizable offence can be arrested even without warrant.   

The Section 5 clearly states that the armed forces cannot keep the arrested persons in their custody and they have to be made over to the officer in charge of the nearest police station with least possible delay. The most important point here is that the officer acting under this act is protected through the act. No judicial proceedings, suits, prosecution can be taken against the actions taken by them in exercising the powers conferred by them under this act.

AFSPA in different States

Assam was the first state where AFSPA was enforced. The dangerous activities done by the United Liberation Front of Assam was the reason behind application of AFSPA in Assam. The people must know that the whole State except the Guwahati Municipal Area is under AFSPA. So, it is not applicable in the municipal area of Guwahati.

The ACT is applicable only in the area of 20 km where it shares it border with Assam. There are three districts in Arunachal Pradesh which has been declared as “Disturbed Area”. Tirap, Changlang, Longding along with some area sharing boundary with Assam border are under this Act. The Act was applied in the whole State in 2015 by the Government but later it was withdrawn after consultation with state government.

Nagaland is under the purview of AFSPA even before its formation in 1961. Earlier it was a part of Assam and later independent state was formed. We all are known with the sixteen years long fast of Irom Sharmila for removing AFSPA from Manipur but nothing significant change has happened yet in the state. The AFSPA is applicable in whole state except the Imphal Municipal Area. So, the situation is similar to the Guwahati municipal area.

The Act was applied in Punjab and Chandigarh to counter the Khalistan Movement by the separatists who were demanding for a separate nation on the basis of Sikhism religion. The Act was removed in 1997 but the same was removed by the state government in 2008. People will be surprised that the AFSPA was removed from  Chandigarh in the year 2012 by the High Court of Punjab and Haryana.   

The AFSPA is applicable in the whole state of Jammu and Kashmir. It was applied under the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990. The Government led by Farooq Abdullah ruled out Disturbed Area Act (DAA) in 1998 but could not evade AFSPA as it is upon the Centre to decide about application of AFSPA. So, the last resort rests with the Central Government here.

Removal of AFSPA in Tripura

The Armed forces Special Power Act came to an end in the state of Tripura after a time period of 18 years. The decision was taken by the Chief Minister Manik Sarkar who is also the Home Minister of the State. He said that the insurgency is in control and there is no requirement of such Act.

The reason behind the removal of AFSPA in Tripura was that there has been significant decline in militancy and the state observed 84% voting turnout in the 2014 Loksabha election. These positive changes encourage the government to remove the Act.  

Conclusion

There has been always allegations made against the armed forces about fake encounters under the garb AFSPA. Various committees have been made for the investigation but people are still waiting for concrete results. According to the provisions of the Act, the armed forces have been given these powers only to aid the police in dangerous situation. There is no any absolute control conferred in the hands of the armed forces as there are only to aid the local police.

Many Human Rights Activists are against the application of AFSPA in different states but an important question arises before us that What is the alternative solution?

The recent attack on the bus of the pilgrims going towards Amarnath and regular attacks on the Army personnel shows that the state like Jammu and Kashmir still has to travel a long way in order to become an undisturbed area. The rise in militancy and the attacks on the citizen shows the need of AFSPA. The Government of India in an All Party meet clearly ruled out any possibility of either lifting or diluting AFSPA in Jammu and Kashmir.

The post Ten Points about AFSPA. Is it misunderstood by the masses? appeared first on iPleaders.

In this article, Karan Singh of JGLS discusses How to link your Aadhaar card with PAN card.

The Hardest Thing in the world to understand is the Income Tax-   Albert Einstein

Introduction

Supreme Court made it mandatory for all Aadhaar holder to link it with PAN (Permanent Account Number) card. However, for now, Aadhaar holder, they can E-file tax returns without the same.

According to the latest amendment on 9th June 2017 by the Government of India and the Income Tax Department, every PAN (Permanent Account Number) Cardholder have to link its Permanent Account Number with its Aadhaar Number from 1st July 2017.

If you already have Aadhaar card then it is mandatory to link it with PAN card and to fill ITR (Income Tax Return) it is mandatory to mention Aadhaar number. If you do not have Aadhaar card then you have to apply for Aadhaar and mention Enrolment ID or Aadhaar number. If you do not want to mention Aadhaar number in ITR (Income Tax Return) then you can file ITR (Income Tax Return) without Aadhaar as PAN will not be canceled. But this is for the limited time only eventually you have to link Aadhaar with PAN.

Linking Aadhaar card with PAN card is for your own benefit. Link Your Aadhaar number with PAN card for the following benefits.

1. For filling the tax return: Government has made it clear that after 1st July 2017 you won’t be able to file income tax if you have not got your Aadhaar card linked to your PAN card.
2. Secondly, Income Tax department has stated that they won’t cancel any PAN card if it is not linked. But this is only for some time and this is temporary relief. Soon you have to link your Aadhaar with PAN if you do not want to get your PAN canceled.
3. Linking Aadhaar with PAN will help solve the problem of multiple PAN cards issued under a single name. Also, it is mandatory to link the Aadhaar with PAN for filling the tax
4. Linking the Aadhaar to PAN will help the user to get the summarized details of the taxes.

Consequence Of PAN number becomes invalid

It is mandatory to link the Aadhaar card with PAN and if not done then your PAN card will become invalid. So, what all are the consequence of this. Firstly, You will not get any credit for all the PAN number which has been deducted from your income whether as salary or interest etc as the PAN number no longer exists.

Secondly, instead of not deducting TDS from the interest/other income being paid to you, the payer will deduct tax @ 20 % under section 206A.

Submitting of an invalid PAN amounts to a penalty of RS 10,000/- can be levied on you under section 272B.

Judgment

The Finance Minister introduced Section 139AA of the Income Tax Act 1961 made Aadhaar mandatory for filing ITRs (Income Tax Return). The petition was filed by the citizens about the constitutional validity of Section 139AA of the Income Tax Act 1961. This section provides two things. Firstly, it makes it mandatory to link individual Aadhaar card with his or her PAN card. Secondly, the requirement of section 139AA is that you have to provide Aadhaar number while making an application for allotment of new PAN number after 1st July 2017.The second part of section 139AA(2) of the Income Tax Act mandates that every person having a PAN as on 1st July 2017 and who is eligible to obtain Aadhaar shall intimate his Aadhaar on or before a date notified by Central Government.

The SC has upheld the power of the parliament to pass any law which mandates the linking of Aadhaar and PAN card. And thus upheld the constitutional validity of Section 139AA. The court has stated for those taxpayers who already have their Aadhaar number have to provide the Aadhaar number while filing their income tax return. So for those who do not have Aadhaar card do not have to worry as you can file the ITR(Income Tax Return) without Aadhaar card.

How to Link your PAN Card & Aadhaar Card Online

There are two easy methods through which PAN Card & Aadhaar Card could be Linked – Online or SMS:

Aadhaar-PAN linking by SMS

First, is linking by SMS. There is another easy method of linking PAN Card with Aadhaar Card. For this, you have to send one SMS to either 567678 or 56161 to link your Aadhaar Card. The Format is given below which should be followed to avoid any mistake. Send SMS according to the format below.

UIDPAN<SPACE><12 digit Aadhaar><Space><10 digit PAN>

Example: UIDPAN 123456789123 AKPLM2124M

In this, the 12 digit number represents your Aadhaar number, and the second one is your PAN number. If the name is different in the record of the two card, then you will receive an Aadhaar OTP through SMS for confirmation. However, if other details like gender, date of birth do not match then you have to head to the National Securities Depository Ltd. website for PAN information and UIDAI(Unique Identification Authority of India) for Aadhaar information to get the information changed.

This process of linking Aadhaar and PAN is not only for the taxpayers but also for those whose income does not fall under the taxable bracket. According to the government it will help avoid tax evasion.

Aadhaar PAN linking by online:  

For linking online, you have 2 options:

The First option is linking online directly without using Login ID. For this, you have to open the website of the income tax and then go to Link Aadhaar under Services. Link for the same is provided https://www.incometaxindiaefiling.gov.in.  After clicking on “Link Aadhaar”, a form will appear which should be filled. You have to provide PAN, Aadhaar no. and Name exactly as per Aadhaar. Also, enter the captcha code and then click on Link Aadhaar.

Link for the form is provided below:

https://www.incometaxindiaefiling.gov.in/e-Filing/Services/LinkAadhaarHome.html

After the verification from UIDAI (Unique Identification Authority of India) which the government service for Aadhaar, the link will be done.

Second Option is using Login ID. You can also link the Aadhaar with PAN after login to the E-filing portal of income tax by entering the login id. Click on “Login Here” and enter the information like User Id, Password, captcha etc and then click login.

After login into the website, you need to click the profile setting and click on Link Aadhaar. A form will open which will contain all the information like name, date of birth and gender which you mentioned at the time of registration on the E-filling portal. If the personal details match then you have to enter the Aadhaar number and captcha code and click on “Link Now” button.

A pop-up message will inform you if your Aadhaar is linked or not.

What are the alternatives if you are unable to link Aadhaar with PAN

If you receive the message that your Aadhaar is not linked with PAN, then there can be some mistake in your information while filling. However, if you receive the failure message, then it means that you are unable to link Aadhaar with PAN. Reasons of unable to link:

• Personal information like name, date of birth or Gender can be different in PAN and Aadhaar.
• Aadhaar number entered can be wrong or does not exist with Aadhaar database.

Hence, the main reason for unable to link Aadhaar with PAN is mainly because of name difference. The solution is to identify the correction and correct it.

There are two alternatives to correct the mistake. Either get name changes in Aadhaar card or PAN card. This can be done online by visiting National Securities Depository Ltd. website for PAN or UIDAI(Unique Identification Authority of India) website for Aadhaar.

India exempts NRIs from quoting Aadhaar in tax returns

The Indian government has exempted Non-resident Indians(NRIs) from linking Aadhaar with PAN card for filing the income tax return. Although NRIs are exempted from income tax on their income abroad, they have to file tax returns for their income earned in India.

Conclusion

Linking of Aadhaar card with PAN card is mandatory for people who already have an Aadhaar card for filing ITR(Income Tax Return). If you do not have an Aadhaar card, then you can file ITR(Income Tax Return) without Aadhaar also but only for limited time. Limited time is given by Supreme Court to the citizens of India to either get the Aadhaar card for filing ITR(Income Tax Return) or their PAN will become invalid after some time.

It is better to get Aadhaar card issued as soon as possible for filing ITR(Income Tax Return) because eventually, the PAN will become invalid which can lead to serious consequences as explained above.

The post How to Link Aadhar card with PAN card appeared first on iPleaders.

In this article, Kshitij Asthana discusses Oral Transfer of Property under the Transfer of Property Act.

History and development of Transfer of Property Act

Going back in time before passing of the Transfer of Property Act, writing was not an essential ingredient for Transfer of Property from one entity to another.[1] After the passing of the Act, now certain specified transactions are required to be in writing.[2] For example, if the statute requires a deed for transfer of Title of the land, then the same cannot be passed by mere admission. Transfer of Property Act contains specific provisions regarding what constitutes a transfer and discusses different conditions attached to it. The Act, came into force on 1^st July, 1882.

Understanding the provisions of Transfer of Property Act

Before coming to oral transfer of property, the researcher would like to throw some light on what transfer of property means. Section 5 of T.P. Act[3] defines Transfer of Property and by bare reading of the section it can be understood that the same means an act by which a living person conveys property in present or in future to one or more living persons, (including/excluding) himself. Here living person according to Section 5 includes any person or a company or an association or a body of individuals, which may or may not be incorporated. Now, the question that arises in that what kind of properties can or cannot be transferred. [4] The Act does not specify or has no exhaustive list to answer the same but section 6 of T.P. Act[5] states that property of any kind may be transferred, except if states otherwise in the act which essentially makes an exhaustive list of things which cannot be called property and which cannot be transferred.

Oral transfer of Property under the Transfer of Property Act

Definition
Section 9 of the Act[6] talks about oral transfer of property. It states that,

“A transfer of property may be made without writing in every case in which a writing is not expressly required by law.”[7]

Illustration of the definitions and case laws

This section essentially mandates that a transfer of property may be made without writing in every case in which writing in not expressly mentioned/required by law but it is also essential to note here that the act is not exhaustive of such kinds of transfers.[8]

In a very famous case of Sarandaya Pillay v Sankarlinga Pillai[9], Ramaswami J., of Madras High Court observed “the test, therefore in this country to determine whether a transaction (be it a transfer or not) can be made without writing is to see if it is expressly required by law to be in writing. If the transaction is a transfer of property and there is no express provisions of law requiring it to be in writing, section 9 will enable it to be made without writing and vice versa” through which an essential inference can be drawn and it can be said that if the transaction is a transfer of property and there is no express provision of law requiring it to be in writing then the general principle referred above will enable it to be validly made without writing.

The reasoning of Section 9 underlines the general principles that everything is to be taken permissible unless there is a prohibition against it and has been inserted in the statute ex abdundanti cautela.[10]

An Important Observation here is that a promoter of a company though fulfils some fiduciary duties, he cannot be described as a trustee. He occupies a peculiar position of a quasi-trustee. Also the declaration of promoter that the property held by him for the company before its incorporation doesn’t constitute either mortgage, sale, lease, exchange or deed. The company before its incorporation is not a living person and hence the provisions of Section 5 of the T.P. Act are not attracted.

An analysis of Oral Transfer of Property (Section 9 of the Transfer of Property Act)

Interpretation of Statutes

As already mentioned in the introduction, this section talks about oral transfer of property and has mentioned that transfer of property can be made without writing in every case where writing is not expressly required by the statute.  Now, the next question that arises is that when does the statute mandate the transactions to be in writing. Transfer of Property under section 54, 58 (except mortgage by deposit of title-deeds), 105,118, 122 and 130 are required to be in writing. Also under Section 5 of the Indian Trusts Act, II of 1882, transfers which parties desire to register must be in writing. Gift of immovable property at the time of marriage must also be registered and be in writing.

Provision of Oral Transfer of property at the time of the marriage.

It is also necessary to note here that Section 9 of T.P. Act would not apply to a case of transfer of immovable property made at the time of marriage by a Hindu.[11] It is essential to note here that Transfer of Property Act clearly recognizes oral transfers. Hence a simple deduction can be done here that an oral transfer of property is a rule unless there is a law which expressly requires that the transfer should be in writing. Now, movable property is not defined under Transfer of Property Act but according to the interpretation clause that is section 3 of the Transfer of Property Act, 1882, immovable property does not include standing timber, growing crops or grass. Now the General Clauses Act, 1897 defines the term movable property as property of every description, except immovable property. Immovable property has been defined to include land, benefits arising out of land or things attached to the earth or permanently fastened to anything attached to the earth. Hence anything it can easily be inferred because the exhaustiveness of the definition of immovable property that anything which is not covered under the definition of it is a movable property including computer programs[12] and other intellectual property.

Analyzing different sections with relation to section 9 of the Transfer of Property Act.

• Under section 54, a sale of tangible immovable property of value more than hundred Rupees (Rs 100/-) is required to be made, only by a registered instrument.
• In Section 59 of the T.P. Act, a writing is necessary in the case of simple mortgage or in case of all other mortgages except a mortgage by title-deed deposit where the principal amount or sum secured in more than hundred rupees (Rs 100/-).
• Also, in section 107, a lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, is required to be made in writing.
• Section 130 mandates that all transfers of actionable claims have to be made by writing and u/s 118, all exchanges are subject to the same rules as are applicable to sales.

Hence it can be deducted that when the law requires that there should be an instrument in writing and the said instrument should be registered then the ownership can only be transferred by that method. But, where no writing is required by the Transfer of Property Act or any other law, the transfer may be made orally.[13]

Illustration and few landmark judicial pronouncements

Writing necessary

The section provides for oral transfer. Transactions which are not required by law to be in writing can be made orally under this section without any writing. Writing is necessary for the following transactions:

1. Sale of immovable property of value of Rs. 100 or upwards.
2. Simple mortgage of specific immovable property of any value.
3. Lease from year to year or for any term exceeding one year or reserving a yearly rental.
4. Exchange of the value of Rs. 100 or upwards.
5. Transfer of actionable claim.
6. Notice of transfer of actionable claim.

In the famous case of Narsinghdas v. Radhakisan[14] it was held that a test to find out whether a transaction can be made without writing is to see whether it is expressly required by law to be in writing, which further substantiates our hypothesis and our illustration of Section 9 of Transfer of Property Act, 1882.

Coming to oral gifts

In the case of Keshri Mull v Sukan Ram,[15] it was held that oral gift though permissible under the section is not valid without delivery of possession. Validity of oral partition was challenged in the case of Peddu Reddiar v. Kothanda Reddi[16] and the judgment finally upheld the validity of oral partition of property. Subsequently, there have been various cases which established the fact that when writing is not required by Act, transfer can be made orally.[17]

Oral Family settlements

It has also been established by a three judge’s bench of the Supreme Court in a case of allegations of fraud and undue influence, that family settlements can be oral and there is no need to keep it in writing.[18]

Oral Family arrangements

The high court of Jammu & Kashmir has already substantiated that a family arrangement need not be written and it can be oral too.[19] A relinquishment by the mother of her interest in the joint family property, even when the property consists of immovable property and the value of the share therein exceeds Rs. 100/-, can be made without writing, and registered instrument is not required.[20]

A skimmed reading of the judgment in the case of Bhuta Singh v Mangu and Ram Sarupv. Ram Dei[21] also suggests that alienation needs no written instrument. It is sufficient if the person entitled to the property does an act which necessarily results in its transfer.[22] All that the act provides for is that certain specified transfers shall only be made in writing duly registered. An award relating to immovable property need not be in writing.[23]

Conclusion

The Transfer of property Act, 1882 is an Indian legislation which regulates the transfer of Property in India. Through numerous case laws and illustrations, the researcher has consolidated the fact that Section 9 of the said Act deals with oral transfer of property and has also discussed what can or cannot be transferred orally. It is further notified to the readers that there is no law which says that the seller must sell the property at market rate. He can always sell at any rate of his choice. The only constraint that is imposed on him would be to pay the stamp duty required to be paid on the prices fixed by the Ready Reckon of the Government so that there could be no loss of Government Revenue. The sale deed cannot become void for inadequacy of prices after the parties have mutually accepted the prices as the correct price.[24]

Property in itself can be classified into 2 components namely movable and immovable property. Both the terms are not completely defined in the Act[25] hence the definition given in Section 3 of General Clauses Act, 1897 has to be read along with the interpretation clause in The Transfer of Property Act, 1882. It should also be taken note of that there are 18 other statutes that are primarily concerned with Property Law, or significantly matter to Property Law, as listed below:[26]

Trusts Act, 1882, Specific Relief Act, 1963, Easements Act, 1882, Registration Act, 1908, Stamp Act, 1899, State Stamp Act, 2008, Limitation Act, 1963, General Clauses Act, 1897, Evidence Act, 1872, Succession Act, 1925, Partition Act, 1893, Presidency-Towns Insolvency Act, 1909, Provincial Insolvency Act, 1920, Recovery of Debts Due to Banks and Financial Institutions Act, 1993, Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, Contract Act, 1872, Sale of Goods Act, 1930, Negotiable Instruments Act, 1881.[27]

Also it is important to note here that every person, who is competent to contract[28], is competent to transfer the property either in whole or in part. The right of the person can be absolute or conditional[29] or can be immovable or movable[30] depending upon the nature of the property. But, there are certain conditions that must be satisfied for a transfer of Property. There must be a representation by the one who is transferring (the Transferor) that he has the applied authority to transfer the immovable property. The representation should not either be fraudulent or erroneous. The transferee must act in good faith and the property should be transferred with some consideration which is valid in the eyes of law which essentially will vest the transferee’s interest in the property and the transferor should have interest in the property which he had agreed to transfer.[31]

Bibliography

• JUDGEMENTS AND BOOKS REFERRED

1. Mohamed Musa v Aghore Kumar Ganguli, (1915) 42 Cal 801: 42 IA 1. Justice was quoted saying “A transfer can be made orally unless expressly required by the law to be in writing. Prior to passing of the Act, no writing was necessary for such transfer.
2. Immudiapattam v. Periya Dorasami (1901) 24 Mad 377; Bishan Dial v Ghazi-ud-din. (1901) 23 All 175.
3. Section 5, The Transfer of Property Act, 1882
4. Section 6, The Transfer of Property Act, 1882 (Bare Act)
5. Section 9, The Transfer of Property Act, 1882 (Bare Act)
6. Section 9, The Transfer of Property Act, 1882 (Bare Act)
7. Weavers Mills v Balkis Ammal, AIR 1969 Mad 462 (469,470): (1969) 2 Mad LJ 509
8. Sarandaya Pillay v Sankarlinga Pillai Sarandaya Pillay v Sankarlinga Pillai
9. Gangadhara Rao v G. Gangarao, AIR 1968 AP 291
10. Centre for Internet and Society, available at https://cis-india.org/internet-governance/bitcoin-legal-regulation-india. (extracted on 11th July, 2017)
11. Ramdas v. Pahlad, AIR 1965 Bom 74 (75,76): 66 Bom LR 499; Subramniyan v. Venkatachalam Pillai (2011) 6 MLJ 743 (752) (Mad)
12. Narsinghdas v. Radhakisan, 1952 Bom 425
13. Keshri Mull v. Sukan Ram, 1933 Pat. 264
14. Peddu Reddiar v. Kothanda Reddi, 1966 Mad 419
15. Weavers Mills Ltd. v. Balkis Ammal, 1969 Mad 463: (1969) 2 MLJ 509: (1969)  2 MLJ 509: (1969) 1 Mad 433
16. Kale v Director of Consolidation, 1976 SC 807: (1976) 3 SCC 119: (1976) 3 SCR 202.
17. 1972 J&K 472
18. Ramdas v. Pahlad, AIR 1965 Bom 74 (75,76) : 66 Bom LR 499
19. Bhuta Singh v Mangu, AIR 1930 Lah 9; Ram Sarup v. Ram dei, (1907) 29 ALL 239; Sheo Singh v. Jeoni, (1897) 19 ALL 524
20. Bhagwatibai v. Bhagwandas, AIR 1927 Sind 206
21. Dashrath Narayan Shinde v. Gangaram Ghag Laxman, 2010 (4) Mah LJ 392 (394) (Bom) : (2010) 3 Bom CR 641
22. Section 3 of The Tranfer of Property Act, 1882 has to be read along with the definition of immovable property given in Section 3 of General clause Act, 1897. Available at http://alappuzha.nic.in/resources-file/acts-rules/GeneralClausesAct.pdf.
23. Sumeet Malik, Property Law Manual (Hard Bound) (2014 edition). Eastern Book Company. p. 1-968. ISBN number- 9789351451150.
    • ONLINE REFERENCES
24. scconline.com/Articles/on/oral/transfer/section/9/
25. http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=797c51f7-0615-4fa8-b92e-7d7d24d03689&txtsearch=Subject:%20Property%20Law/Oral%20Tranfer%20of%20Property
26. http://www.merriam-webster.com/dictionary/Oral%20Transfer

References

[1] Mohamed Musa v Aghore Kumar Ganguli, (1915) 42 Cal 801: 42 IA 1. Justice was quoted saying “A transfer can be made orally unless expressly required by the law to be in writing. Prior to passing of the Act, no writing was necessary for such transfer.

[2] Immudiapattam v. Periya Dorasami (1901) 24 Mad 377; Bishan Dial v Ghazi-ud-din. (1901) 23 All 175.

[3] Section 5, The Transfer of Property Act, 1882

[4] Id.

[5] Section 6, The Transfer of Property Act, 1882 (Bare Act)

[6] Section 9, The Transfer of Property Act, 1882 (Bare Act)

[7] Section 9, The Transfer of Property Act, 1882 (Bare Act)

[8] Weavers Mills v Balkis Ammal, AIR 1969 Mad 462 (469,470): (1969) 2 Mad LJ 509

[9] Sarandaya Pillay v Sankarlinga Pillai Sarandaya Pillay v Sankarlinga Pillai

[10] ex abundanti cautela. out of an abundance of caution. In law, describes someone taking precautions against a very remote contingency. “One might wear a belt in addition to braces ex abundanti cautela”.

[11] Gangadhara Rao v G. Gangarao, AIR 1968 AP 291

[12] Centre for Internet and Society, available at https://cis-india.org/internet-governance/bitcoin-legal-regulation-india. (extracted on 11^th July, 2017)

[13] Ramdas v. Pahlad, AIR 1965 Bom 74 (75,76): 66 Bom LR 499; Subramniyan v. Venkatachalam Pillai (2011) 6 MLJ 743 (752) (Mad)

[14] Narsinghdas v. Radhakisan, 1952 Bom 425

[15] Keshri Mull v. Sukan Ram, 1933 Pat. 264

[16] Peddu Reddiar v. Kothanda Reddi, 1966 Mad 419

[17] Weavers Mills Ltd. v. Balkis Ammal, 1969 Mad 463: (1969) 2 MLJ 509: (1969)  2 MLJ 509: (1969) 1 Mad 433

[18] Kale v Director of Consolidation, 1976 SC 807: (1976) 3 SCC 119: (1976) 3 SCR 202.

[19] 1972 J&K 472

[20] Ramdas v. Pahlad, AIR 1965 Bom 74 (75,76) : 66 Bom LR 499

[21] Bhuta Singh v Mangu, AIR 1930 Lah 9; Ram Sarup v. Ram dei, (1907) 29 ALL 239; Sheo Singh v. Jeoni, (1897) 19 ALL 524

[22] Id.

[23] Bhagwatibai v. Bhagwandas, AIR 1927 Sind 206

[24] Dashrath Narayan Shinde v. Gangaram Ghag Laxman, 2010 (4) Mah LJ 392 (394) (Bom) : (2010) 3 Bom CR 641

[25] Section 3 of The Tranfer of Property Act, 1882 has to be read along with the definition of immovable property given in Section 3 of General clause Act, 1897. Available at http://alappuzha.nic.in/resources-file/acts-rules/GeneralClausesAct.pdf.

[26] Sumeet Malik, Property Law Manual (Hard Bound) (2014 edition). Eastern Book Company. p. 1-968. ISBN number- 9789351451150.

[27] Id. (Sumeet Malik)

[28] Not expressly barred by any national or international statute

[29] Section 10, The Transfer of Property Act, 1882 ( Bare Act)

[30] See Section 3, Interpretation Clause of Transfer of Property Act, 1882, (read along with) General Clause Act 1897 for definition of Immovable Property.

[31] After bare reading of the The Transfer of Property Act, these points came out as an analysis.

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In this article, Sachin Vats of RGNUL discusses Foreign Portfolio Investors Regime.

India is one of the fastest growing economies of the world. The maximum percentage of Indian population is youth which makes it a vibrant country full of opportunities. The young demographic profile and innovative minds at work attract the investors from the global world.

There are many economic reforms done by the Indian Government in last two decades to make India a favourite among the global investing communities. The foreign investors are getting attracted with deregulation and opening of the Indian market.

There are two different avenues for Indian companies to raise their debt directly from non-residents. They can either go for External Commercial Borrowing (ECB) regime to avail foreign currency denominated borrowing or they can opt for Foreign Portfolio Investment (FPI) to issue rupee denominated bonds.

What is Foreign Portfolio Investment

The Investment done by the non-residents in Indian securities such as shares, government bonds, corporate bonds, convertible securities, infrastructure securities, etc. The class of investors who make investment in these securities are known as Foreign Portfolio Investors. The Foreign Portfolio Investment is induced by the differences in equity price scenario, bond yield, growth prospects, interest rate, dividends or rate of return on capital in India’s financial assets.

The Securities and Exchange Board of India recently specified the criteria for Foreign Portfolio Investment according to which any equity investment by non-residents which is less than or equal to 10% of capital in a company is Portfolio Investment while above 10% investment will be regarded as Foreign Direct Investment.

A foreign investor cannot invest more than 10% of the paid up capital of the Indian Company. All the Foreign Portfolio Investment taken together cannot acquire more than 24% of the paid up capital of an Indian Company.  The regulations issued by the Securities and Exchange Board of India do not allow the Foreign Portfolio Investors to invest in unlisted shares as investment in the unlisted entities will be regarded as Foreign Direct Investment (FDI).

Who are Foreign Portfolio Investors

The Foreign Portfolio Investors includes investment groups of Foreign Institutional Investors (FIIs), Qualified Foreign Investors (QFIs) and sub accounts, etc. The Non-Residents Indians are not included in the Foreign Portfolio Investment. The Securities and Exchange Board of India issued a guideline and it was specified by the Reserve Bank of India that Foreign Portfolio Investors include Asset Management Companies, Banks, Pension Funds, Mutual Funds and Investment Trusts as nominee companies, Incorporated or Institutional Portfolio Managers or their Power of Attorney holders, University Funds, Charitable Trusts and Charitable Societies, Sovereign Wealth Funds. These all are regulated as Foreign Portfolio Investors.

According to the Securities and Exchange Board of India, FII is an institution which has been established or incorporated outside India which proposes to make investments in India in securities. It should be registered under the SEBI (Foreign Institutional Investors) Regulations, 1995. It includes a pension fund, mutual fund, investment fund, insurance company or a reinsurance company.

The Qualified Foreign Investor is an individual, group or association which is a resident in a foreign country and compliant with the Financial Action Task Force standard. It must be signatory to the International Organisation of Securities Commission. The foreign investment in the share market is dominated by the Foreign Institutional Investors because of their larger size which make them capable to invest on large scale than the Qualified Foreign Investors who are small investors and individuals.

Data of total Foreign Portfolio Investment done from 2004    

** till 24 June, 2017

Foreign Portfolio Regime Features

The investment under FPI is done in Equity, Debt and Derivatives. A single investor or an investor group cannot invest in portfolio more than 10% of the equity of a company in India. The existing Qualified Foreign Investors are allowed to deal with the securities either it is buying or selling only upto one year from the date of notification of the FPI regulations. They have to register themselves with the FPI the mean time.

The Non-Residents Indians and the Foreign Venture Capital Investors are not taken under the purview of the FPI. There is important role of Depository Designated Participants (DDP) who are authorised by the Securities and Exchange Board of India (SEBI). The DDPs register the FPI on behalf of the SEBI according to the prescribed norms of the SEBI and the due diligence norms.

The DDPs are authorised by the Reserve Bank of India or the Category-1 Bank. They may also be authorised by the Depository Participants or a Custodian of Securities who are registered with the Securities and Exchange Board of India.

Categories of FPI  

There are three different categories of Foreign Portfolio Investment in India. It is based on the risk based approach towards customer identity verification (KYC). it has been divided into low risk, moderate risk and high risk.

The First Category consist of Government and Government related foreign investors. These include Foreign Central Banks, Government Agencies, Sovereign Wealth Funds. The International and Multinational Organisations are also put under first category.

The Second Category includes regulated broad based funds such as Mutual Funds, Investment Trusts, Insurance companies. Banks, Asset Management Companies, Investment Advisors and Managers, Portfolio Managers and other regulated entities are the constituent of this category. Broad based Funds, University Funds and Pension Funds whose investment is appropriately regulated also face moderate risk.

The remaining foreign investors not eligible under category 1 and 2 such as Endowments, Charitable Societies or Trusts, Foundations. Corporate Bodies, Trusts, Individuals, Family Offices come under the third category where there is a high risk.

Eligibility Criteria for Foreign Portfolio Investors

The Foreign Portfolio Investors has to satisfy certain prescribed norms and conditions then only the Designated Depository Participants will accept application for granting certificate of registration as a foreign portfolio investment. The following conditions are required,

• The applicant is a person not resident in India.
• The applicant is resident of a country whose securities market regulator is a signatory to International Organization of Securities Commission’s Multilateral Memorandum of Understanding (Appendix A Signatories) or a signatory to bilateral Memorandum of Understanding with the Board.
• The applicant being a bank, is a resident of a country whose central bank is a member of Bank for International Settlements.
• The applicant is not resident in a country identified in the public statement of Financial Action Task Force as:

(i) A jurisdiction having a strategic Anti-Money Laundering or Combating the Financing of Terrorism deficiencies to which counter measures apply or

(ii) A jurisdiction that has not made sufficient progress in addressing the deficiencies or has not committed to an action plan developed with the Financial Action Task Force to address the deficiencies.

• The applicant is legally permitted to invest in securities outside the country of its incorporation or establishment or place of business.
• The applicant is authorized by its Memorandum of Association and Articles of Association or equivalent document(s) or the agreement to invest on its own behalf or on behalf of its clients.
• The applicant has sufficient experience, good track record, is professionally competent, financially sound and has a generally good reputation of fairness and integrity.
• The grant of certificate to the applicant is in the interest of the development of the securities market.
• The applicant is a fit and proper person based on the criteria specified in Schedule II of the Securities and Exchange Board of India (Intermediaries) Regulations, 2008.
• Any other criteria specified by the Board from time to time.  

Conclusion

The Indian companies raise their debt from non-residents through different avenues. The capital account transaction between a resident and non-resident are regulated by the Reserve Bank of India (RBI) which is the primary regulator in India for Foreign Exchange Transactions. The investments into the capital markets by foreign portfolio investors are also regulated by the Securities and Exchange Board of India (SEBI) which regulates the Capital Market in India. The recent changes done in the area of taxation laws and ease in registration requirements will surely boost the portfolio investments in India.

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In this article, Jagriti Bharti of Amity Law School Lucknow discusses a detailed list of offences under the Motor Vehicles Act, 1988.

References                                                

^[1] 75. Scheme for renting of motor cabs.

1. The Central Government may, by notification in the Official Gazette, make a scheme for the purpose of regulating the business of renting of motor cabs to persons desiring to drive the cabs for their own use and for matters connected therewith.
2. A scheme made under sub-section (1) may provide for all or any of the following matters, namely:
3. Licensing of operators under the scheme including grant, renewal and revocation of such licenses;
4. form of application and form of licenses and the particulars to be contained therein;
5. fee to be paid with the application for such licenses;
6. The authorities to which the application shall be made;
7. Condition subject to which such licenses may be granted, renewed or revoked;
8. Appeals against orders of refusal to grant or renew such licenses and appeals against orders revoking such licenses;
9. Conditions subject to which motor cabs may be rented;
10. Maintenance of records and inspection of such records;
11. Such other matters as may be necessary to carry out the purposes of this section.

^[2] 109. General provision regarding construction and maintenance of vehicles.

1. Every motor vehicle shall be so constructed and so maintained as to be at all times under the effective control of the person driving the vehicle.
2. Every motor vehicle shall be so constructed as to have right hand steering control unless it is equipped with a mechanical or electrical signaling device of a prescribed nature.

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In this article, Himanshi Srivastava of Amity Law School Lucknow discusses Transfer petition in the Supreme Court of India.

Transfer of application as per the provision of Section 25 of the Civil Procedure Code

Section 25 of the Code of Civil Procedure is associate degree enabling provision that empowers the Supreme Court of India to transfer any case, or different proceedings from a court or [any different the other] Civil Court in one state to a different court or other Civil Court in the other state.

According to the Code, this power could also be exercised by the Supreme Court if it’s happy that associate degree order underneath section 25 is expedient for the ends of justice. Therefore wide powers are presented on the Supreme Court to order a transfer of a civil case if the Court feels that the ends of justice shall be met within the explicit circumstances.

In the majority of cases, this provision is invoked in married matters and frequently at the instance of the partner once she is clothed as a respondent in the proceedings initiated by the husband and in cases wherever the parties have separated for married variations and are living in several states. In these types of cases, the partner moves for transfer of the proceedings on the bottom of her inability to defend the proceedings for being not during a position to afford travelling, being not during a position to not leave her child/children behind and on the grounds her personal safety and inconvenience besides expenses. The Court invariably takes a sympathetic read in favor of the partner but, that’s continuously not the case as in some cases the Supreme Court has control that the convenience of the petitioner cannot eclipse the necessity of justice.

The invocation of the jurisdiction for transfer of cases is but not restricted or restricted to married disputes and is feasible for different cases conjointly.

Similarly, Section 406 of the Code of Criminal Procedure empowers the Supreme Court of India to transfer criminal cases and appeal unfinished in one court to a different court or from a Judicature subordinate to at least one court to a different judicature of equal or superior jurisdiction subordinate to a different court.

In each sort of cases associate degree application with official document of the petitioner in conjunction with copy of the case wanted to be transferred is needed to be filed before the Supreme Court of India with a prayer for the transfer of the case to a specific Court in another State and a prayer for keep of the proceedings before the Court below within the case wanted to be transferred.

It would unremarkably take the Supreme Court of India to make a decision associate degree Transfer Petition inside an amount of roughly four to six months’ time once hearing each side on deserves till which era the proceedings before the Court below stay, will be stayed by an order of the Supreme Court.

Firstly the Petition for Transfer of case from one state or city to another state or city was common in the matrimonial matters. The wives have taken many advantages by taking some important grounds for transferring the petition.

Typical grounds taken by wife in the transfer petitions are below:

• Having a child
• Travel is unsafe being a lady
• Expenses required for travel
• Threat to life at Husband’s place
• Husband is very influential in his place
• Inconvenience to travel long distance.

Some of the landmark cases of transfer of cases in matrimonial matters are:-

In Dr. Subramaniam Swamy v. Ramakrishna Hegde,^[1] the Court rules that:

The paramount thought for transfer of a case under Section 25 of Code of Civil Procedure must be the necessity of justice. It was held that the mere convenience of the parties or anyone of them might not be enough for the exercise of power, however, it ought to even be shown that trial within the chosen forum will result in denial of justice. The Court any control that if the ends of justice therefore demand and also the transfer of the case is imperative, there ought to be no hesitation to transfer the case. The proper of the dominus litis to decide on the forum and thought of complainant’s convenience etc. cannot eclipse the necessity of justice. Justice should be done in any respect costs; if necessary by the transfer of the case from” one court to a different.

This provision has been most frequently invoked in matrimonial matters, and usually at the instance of the married woman, once the husband and married women are living separately and the husband files a petition for divorce or institutes alternative proceedings under the law concerning wedding and divorce at the place wherever he is residing, that is sometimes the place wherever the parties last resided along, the wife, who has typically came to her parental home, moves for transfer either on the ground that she cannot afford to travel or that she cannot leave her kid behind or that she faces threats once she goes to defend the proceedings. The Court invariably takes a sympathetic read towards the wife’s plea for transfer, however this is not always the case.

In Kalpana devi Prakash Thakar Vs Dev Prakash Thakar^[2], the Court disallowed the wife’s plea for transfer of the matrimonial proceedings from Mumbai. to Palanpur, Gujarat taking into account the subsequent considerations:

1. The husband was a health care provider and his absence from Mumbai would cause inconvenience to his patients;
2. His previous and unwell mother who. lived with him required regular medical check-ups and constant care;
3. The witnesses were mainly from Mumbai;
4. The wife had relatives in mumbai with whom she could stay .whenever she went there for the case;
5. The husband was ready to bear the expenses of travel and additionally the traveling expenses of the escort.
6. Palanpur was well connected to Mumbai by train.

In Shiv Kumari Devendra Ojha Vs Ramesh Shitla Prasad Ojha^[3], the Court disallowed a woman’s  application for transfer of an application for grant of a succession certificate, from Gujarat to U.P.  Her main plea was that being a woman she was unable to travel from U.P. to Gujarat. The Court disallowed the petition primarily on the ground that the respondent was able to pay” the traveling expenses. The Court further held, that if the petitioner had any issue in participating a counsel as a result of monetary constraints, she may file an application to recover the amounts paid for the same from the respondents, in the trial court at Gujarat.

A couple of issues have arisen within the context of the power of the Court to order transfer under Section 25 CPC often the Court has felt that the parties would be advised to dissolve their marriage by mutual consent, and sometimes.the parties themselves have to be compelled to come to such an understanding. In such a situation, the court has usually permissible the parties to file a petition for divorce by mutual consent.in the Supreme Court itself.

However, some benches have taken the view that this cannot be done and that such a petition will only be filed in the court. It is respectfully submitted that the Court is not even in delegation the parties to the court when both the parties are willing to dissolve. the marriage by mutual consent. It’s exactly in such things that the ability of the Court beneath Article 142 of the Constitution will return to the help of parties, as a result of “complete justice” is then done. the need that the petition for divorce by mutual consent ought to be filed within the Court of District choose or the court, is at the best a procedural matter and doesn’t alter the substantive rights of the parties.

Another problematic scenario which arises typically is when the transfer of a case is sought-after from the State of Jammu and Kashmir. Code of Civil Procedure doesn’t apply to the State and thus the provisions of Section 25 of the Code of Civil Procedure additionally wouldn’t apply.

In Kiran Ramanlal Jani Vs Gulam Kadar, .the petitioner had prayed for transfer of a motor accident claim from Jammu and Kashmir to Gujarat. The Court allowed the transfer petition in the absence of any objection on behalf of the respondents and their non-appearance even when in service. It is, however, submitted that there has to be a sound legal basis for such transfer, when the party wishes a transfer of a case from Gujarat to the State of Jammu and Kashmir, the acceptable course would be to file a petition for special leave under Article 136 against the order directing issue of summons, personal appearance, etc. Once the Court is seized of the matter under Article 136 of the Constitution, it would have power under Article 142 to direct transfer, in order to do complete justice.

A couple of other cases may now be noticed. On a petition under Section 25 of the Code of Civil Procedure, a civil suit pending in the Court of the Subordinate Judge, Patna was transferred to the Mumbai High Court to be tried with another suit pending on the original side of the Mumbai High Court, thereafter the suit in the Mumbai High Court was set and was carried in appeal in the case of Bihar State Food and Supplies Corporation v. Godrej Soaps (P) Ltd. and Sons^[4], a petition under Section 25 CPC was filed for re-transfer of the suit to the Subordinate Judge at Patna on the ground that the purpose of transfer was over since the 2 cases couldn’t currently be tried along. The Court disallowed the petition for transfer and requested the learned decide on the initial side to frame the necessary problems in the suit inside six weeks and thereafter take evidence on a day-after-day basis. The complete evidence and the record of the suit were thenceforth to be transmitted to the Division Bench for thought in conjunction with the sooner suit that had gone in appeal, so those conflicting decisions might be avoided.

In Avtar Singh and Co. Pvt. Ltd. v. S.S. Enterprises^[5], a petition was filed, under Section 25 CPC for transfer of the suit from the Calcutta High Court to the District Court at Kanpur where a suit was already pending. The Court directed the Calcutta suit to be transferred to Kanpur taking under consideration of proven fact that Kanpur suit was filed earlier in purpose of time and that the suit was filed in Calcutta was within the nature of a cross-suit.

Transfer of Application as per the provision under section 406 of Code of Criminal Procedure

Section 406 of the Code of Criminal Procedure provides power to the Supreme Court to transfer criminal cases and appeals unfinished in one high court to another high court or from a criminal court subordinate to one high court to a different criminal court of equal or superior jurisdiction subordinate to another high court. The Supreme Court will act under the section only on the application of the Attorney General or of a party interested. If an application under Section 406 of the Code of Criminal Procedure is dismissed, the Supreme Court may, if it is of opinion that the application was trivial or vexing order the applicant to pay by way of compensation to the respondent such total will not be exceeding Rs 1000.

In Maneka Sanjay Gandhi v. Miss Rani Jethmalani, Justice Krishna Iyer observed as follows:
“Assurance of a fair trial is the first imperative of the dispensation of justice and therefore the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or simple handiness of legal services or like mine-grievances. something more substantial a lot of compelling, a lot of imperilling from the point of read of public justice and its attendant surroundings, is needy if the Court is to exercise its power of transfer; this is the cardinal principle though the circumstances may be myriad and vary from case to case.

REFERENCES:

• https://www.netlawman.co.in/ia/transfer-of-petition
• http://www.legalserviceindia.com/Supreme-court/Transfer-of-Petition-in-India.html
• http://lexspeak.in/2016/07/transfer-petition

^[1] AIR 1990 SC 113

^[2] AIR 1996

^[3] AIR 1997

^[4] AIR 1996 SC 336

^[5] AIR 1996 SC 385

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This article is written by Ramanuj Mukherjee, Co-founder & CEO at iPleaders. 

How much can you earn if you crack CLAT, get a good rank and graduate from a top law school?

The answer is something that motivates most of the CLAT takers to slog ungodly hours, push back on entertainment and study things they never would otherwise. I have asked hundreds and hundreds of law aspirants in live classes why they want to crack CLAT. Most of them said it plainly: they want to earn lots of money eventually. Others were not so blatant, but I could tell all other things like job satisfaction, influence, fame may be important, but the opportunity to earn lots of money is a key factor in choosing law as a career for a very vast majority of law students.

However, you might have heard, the reality of economics of law practice can be quite different. Approximately 50,000 law graduates are crowding the legal marketplace every year, and BCI has approved close to 1 lakh seats in close to a 1000 law colleges per academic year all over India. There are over 15,00,000 practicing lawyers, and many of them find themselves in very mediocre jobs or practice, and find it difficult to make ends meet. A law degree is not an automatic license to make a fortune.

Just yesterday I interviewed a lawyer from Gurgaon with 7 years experience for a job at ClikLawyer.com, one of my ventures. He is currently earning about INR 20,000 per month from his senior and a few cases he gets on his own. He wanted a salary of INR 30,000 and he was willing to travel 30 km up and down every day in crowded metro for a job that will pay his bills every month.

Another lawyer, a former student of mine, travelled from Bhopal to Delhi after practicing in Bhopal for over 3 years, as he could not eke out a career in his hometown after much effort. He is a fine lawyer, and definitely have very decent level of legal skills and an LLM from a good university. He is now working with a senior lawyer in Delhi, drawing 15k of subsistence allowance for heavy duty work, and taking clients on the side to supplement his income. All in the hope of making it big one day in Delhi’s litigation circle.

At this point, you may argue that those who crack CLAT with good ranks will go to top law schools, get sterling jobs and therefore will never be struggling like this. I wish it was quite like that.

Yes, about 200-300 law graduates, depending on growth of the legal market do get top jobs that pay in excess of 1 lakh per month at entry level. There maybe another 500-800 jobs, again depending on market situation (state of the economy, demand of high calibre legal services, number of big M&A, banking deals etc.) that pay above INR 50,000 per month. Otherwise, a large number of NLU graduates, if not the majority, have to satisfy themselves with jobs that pay between INR 20,000 – INR 45,000.

Do the maths yourself. NLUs are mushrooming in every state, and they always have takers due to CLAT and the ‘National Law University’ tag. Most of them have an intake of over 120, with the student intake going up over the years. That’s over 2000 national law university students each year, given that there are at least 15 NLUs with the number going up every year.

If the NLU tag was ever valuable, it is not so anymore given the level of dilution.

Of course, the CLAT coaching centres won’t tell that to anxious law aspirants or their parents. They sell dreams of 17 lakh per annum jobs on graduation. They don’t tell what percentage of people who crack CLAT will actually get that kind of jobs.

However, am I then discouraging you from studying law or cracking CLAT?

Absolutely not. I studied at NUJS, one of the best National Law Universities, and I am glad that I chose to study law. I cracked one of the highest paid jobs of my time when I graduated, and received multiple offers from top law firms. But that is not what I cherish the most about my law school education.

I don’t just owe my career to the law school education, I owe the very person I am today to it. It immensely benefited me. I was transformed through that experience. I faced many obstacles and hardships on the way, and managed to overcome them – which made me very effective, strong and powerful in face of adversities. My very understanding of who I am, what I can do, my role in the society, the way I see my country, the legal profession, entrepreneurship – everything transformed thanks to law school. I met brilliant people who are my allies till day and without some of them, I will never have achieved what I have managed to achieve and what I today dream of achieving.

I could not recommend a law school education to a young student enough. It is one of the best things that can happen to you – to crack CLAT and start training yourself to become a powerful lawyer.

And yes, extraordinary lawyers, and legal entrepreneurs go on to make a lot of money. Not only in big law firms, but everywhere else as well. To get an idea of what is possible, just go through a few interviews in SuperLawyer.in. A successful litigator in this country can single handedly earn hundreds of crores in a year. I know many NLU graduates who earn crores in a year through legal practice – their own or as partners in big law firms.

Forget the entry level salary of 1 lakh per month. You could earn in crores in a few years’ time. Everyone will not make it – but those who set out to become extraordinary lawyers, and put in the work with patience can definitely get there.

Law is a profession where the winner takes it all. The good thing is that you don’t have to win this year itself. You can slowly train yourself over the years to get there. You will need single minded focus, unwavering motivation, a lot of dedication and the ability to survive bad times and failures.

Law can also be a safe career for many. You can also be reasonably good at something, have a work-life balance and do decently well and have a good life. However, you will still have to put in the work. Don’t expect your entry into a good law school to be a one way ticket to wonderland. Also, the entry into a good law school is just the beginning of your journey, not the end. You can’t afford to grow complacent at the time you enter a good law school.

I want you to be prepared for reality. The first year in law school is brutal. It was so for me and for a lot of others. The other years get increasingly more brutal. You just get used to the brutality and the harsh reality. You become a fighter, you learn how to survive and how to still thrive. That’s an invaluable lesson for life.

And yes, people do commit suicide when they can’t handle the pressure, when things go awry. Do you know that in every batch of every top law school, there are 5-10% who drop out, give up on their ‘lawyer dreams’ and try to find another way to make it in life?

I want you to know that.

Do you know that the a surprisingly large number of people who join those coveted top law firms quit in less than a year? I quit exactly at the 1 year mark, and I didn’t like my time in a big law firm much. I wasn’t the first. 32 people from my batch in NUJS joined top 6 law firms. I was the 19th to quit. 18 of them had quit before 11 months of joining their jobs.

Imagine that. Not only the hard work that goes into cracking an exam like that for a year, but all the work one puts in over 5 years in a top law school, culminating in a coveted job at the biggest law firm in the country, worth 15 lakhs a year. Why would someone quit that in 3 months?

One of my batchmates, a very good friend, did just that. When he was writing law entrance, I went to the same coaching as him. Even then he would say that he wanted to work with Amarchand Mangaldas, which was back then India’s undisputed market-leader amongst law firms. He was one of the first to get that job even before we started our 5th year classes. He quit in under 3 months, and started preparing for civil services. Now he is an IFS officer.

Notwithstanding the happy ending, which took many more years of preparation, why would he quit his dream job? I will leave that to your imagination.

That is the harsh reality CLAT coaching classes will not tell you. I want you to know that.

If after knowing this, you are still ready to play the game, come aboard. You have it in you to survive this high pressure, high stakes’ world where weak people are eaten for breakfast every day. It is not that I like it this way, but over the years I have come to realise that this is how it is and learned to articulate it. You need to know CLAT preparation is just the beginning – life will not get easier after this once you make it into a big law school, just like it will not if you don’t crack it. You will still need to put in all the work required to become a lawyer for whose skills people are ready to pay the big bucks. And a few other things, of course. That is for another day.

If you are interested in finding out an intelligent way to crack CLAT do check out this Legal Aptitude course created by multiple law entrance toppers and a celebrated CLAT coach who played a role in the making of the CLAT All India Rank No. 1 in CLAT 2017.

All the best!

The post How much can you earn if you crack CLAT, get a good rank and graduate from a top law school? appeared first on iPleaders.

In this article, Jagriti Bharti of Amity Law School Lucknow discusses the legality of White Hat hacking in India.

Hacking

Hacking is a term used for the process of identifying the weaknesses or vulnerabilities in a computer system or networking sites (including private networks) in order to gain access and control to those computer security system and network.

Hacker

In simple terms, a hacker is a person who does hacking. To get it better, hackers are highly skilled and intelligent computer professionals who have vast knowledge and expertise about the technicalities of a computer system. They are the programmers who are skilled in computer operating system and machine codes.

Whenever we read or hear the word “hacker”, we frame a picture of criminal in our mind. Our perception about hackers is of a bad guy. Hackers are not criminals, rather they are the person who performs ethical work by helping others with their skills. A person who breaches the security or steals information from others computer is termed as “crackers” and not “hackers”. There are mainly three types of hacker:

• Black Hat Hacker: Hackers who hack to make personal gains by either maliciously accessing the data of other computer system or stealing it are black hat hackers. They can even prevent authorised users from accessing the system.
• White Hat Hacker: They identify the vulnerabilities of a computer system and disclose it to the person concerned in order to protect them from black hat hackers. They use their skills is a constructive manner.
• Grey Hat Hacker: This kind of hackers have enough computer skill that enable them to hack a system and locate the security threat present in the network security system. Like white hat hackers, they notify the threat to the admin of the network system.

White Hat Hackers

The term “White hat” comes from the old Hollywood movies who used to show “good guy” of the movie wearing white cowboy hats. These hackers are the skilled computer professionals who hack their own computer system in order to find vulnerabilities present in their network security system and make it hack proof. They are just opposite to the black hat hackers. They are “ethical hackers”, experts in computer security system who use their abilities for legal purposes and benefit the society through their work. They use their knowledge and skill to improve the security of a computer system before malicious hackers can discover those weaknesses and exploit them.

Legality of White Hat Hacking in India

Work of white hat hackers is generally ethical and positive. They help companies, organisations, government to protect documents and data of strategic importance. Unlike “hacking”. “Ethical hacking” is legal in India. “Hacking” can be justified as an offence in India under following provisions of law:

Constitutional liability

The expanded ambit of Article 21 of the Indian constitution provides Right to Privacy to its citizens. Hacking into someone’s property or stealing their work is a violation of their Right to Privacy guaranteed to them by the constitution.

Criminal liability

• Section 441 of IPC: Criminal Trespass

A person enters into the property of another without his permission with the intention to annoy that person in enjoying his property is said to have committed criminal trespass and will be liable for punishment under this section. “Websites” have their basis in the real property and hence this section applies to it also. So, if a person accesses the website illegally i.e. without the permission of the owner, this will be the case of trespass and he will be guilty under this section.

• Mens Rea

An act to be categorised as crime needs to be committed with malicious intention. No person can be convicted of any offence unless it is proved that he had intentionally committed that offence. Hackers access others computers with the intention to make personal gains and this shows that their intention is malicious. As there act is backed with their intention, they are guilty of hacking.

There are various other sections of IPC which deal with different types of cyber crimes such as;

Cyber frauds (Section 420), email spoofing (Section 463), sending defamatory messages by email (Section 499) etc.

Tortious liability

Whoever dishonestly or fraudulently does any act mentioned in Section 43 of the Information

Technology Act^[1] shall be liable to imprisonment for term which may extend to three years or fine up to Rs. 5 lakhs or both.

From the provisions mentioned above, it is clear that “hacking” is a crime in India. “Ethical hackers” has neither intention to steal nor destroy the data of other’s computer and that is the reason why ethical hacking is legal in India.

The legality of white hat hacking doesn’t make it a wide field to pursue a career in it as it is still not very popular in India. The scope of this kind of hacking is very limited. According to the results of a survey^[2] conducted by a student of NLU (Jodhpur), it was found that only 5% of the total people surveyed were able to tell the meaning of the “hacking” correctly and the majority of them had the same perception of considering it as a crime.

Need of White Hat Hackers in India

Before discussing the need of white hat hackers in India, let’s first discuss a leading case on cyber crime:

Wanna Cry Ransomware

There are many types of malware that affect the computer, either by stealing the information from the computer or by deleting the information present in the computer. Ransomware is those kinds of malware which prevent the users from accessing their own computer. It usually locks up the computer system, encrypts the data present in it and prevents other software and applications from running.

Wanna Cry Ransomware (or 2.0 bug) was a type of ransomware which demanded 300$ to be paid in Bitcoins to unlock the files of the affected computers. It was more dangerous than other ransomware because of it had the ability to spread itself across an organisation network exploiting vulnerabilities in windows computer which were patched by Microsoft in March 2017. According to “Malware Tech”, a tracker developed by a security researcher, over 200,000 systems were affected in the Wanna Cry attack. India was among the worst affected countries from the Wanna Cry ransomware attack. This threat was due to the extreme digitalization in India but without proper security. The slowdown of Wanna Cry happened soon after “Malware Tech” accidentally developed a kill switch to halt down the ransomware attack.

Wanna Cry was one of the largest ever cyber attack which affected thousands of computers around 104 countries including India. This occurred due to the weak security system or vulnerabilities present in the network system. At this point of time, it was necessary that some actions should be taken by Indian cyber experts in order to put a halt to the disastrous effect of the Wanna Cry attack though it was done by Malware Tech of British cyber experts. Had India employed enough white hat hackers, the attack would not have occurred or the effect of the ransomware destruction must have either been reduced or eradicated quickly.

In recent times, the Indian government has focused more on training youths about the security system. Many institutes have also taken initiative to set up various programmes on security system so that persons who are interested in cyber security can have a platform for their educating themselves. Due to increased digitalization in the country, much more job aspects for white hat hackers have been opened by the government as well as private organisations than earlier but yet there is a long way to go.

^[1] 43. Penalty and compensation for damage to computer, computer system, etc.

^[2] http://www.legalservicesindia.com/articles/cyhac.htm

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In this article, Karan Singh of JGLS discusses Steps to take if a child you know is forced into child marriage by their parents.

“Educating Girls Is One Of The Most Powerful Tools To Prevent Child Marriage”–

Girls Not Brides-The Global Partnership To End Child Marriage

Introduction

Let’s talk about marriage and its legality in India. What should one do if you see a forced marriage?. Forced marriage is when the marriage is forced on either spouse by threat, duress, blackmail, harassment etc. When the spouse is not ready and no consent is given for marriage then also the marriage is forced on the spouse is called forced marriage.

The legal age for a boy to marry in India is 21 years and for a girl is 18 years old. If anyone like parents, brother, or relative force the child before the legal age to get married will come under child marriage. An alarming 30.2% or 10.3 crore girls were married before they had turned 18 in 2011 as per Census data^[1]. As per data of the National Crime Records Bureau, a total number of 169, 222 and 280 case have been registered under the Prohibition of Child Marriage Act 2006 in the year 2012, 2013 and 2014.^[2]

Child marriage is not only illegal but also not healthy for a child as it takes away the childhood of a kid who wants to study or become something. But forcing the child to marry affects the child in various ways.

The main reason for child marriage is gender inequality and the belief in Indian society that girls are inferior to boys. Girls are not values aa much as boys and is a burden to her own family. They are forced to get married in young age as the burden is transferred to the husband’s family. Also, if a girl who has a relationship or becomes pregnant outside the marriage are shamed for bringing dishonor to the family.

The second reason for child marriage is because of the tradition and culture. This future or tradition is followed in many small districts or villages. This is done to save the culture. Traditional practices are not questioned as these practices are going on for a very long time and no one dares to question it.

Poverty is one of the reasons why families in India force her child to marry. As a girl is considered a burden for her family. The Girl child is forced to marry someone so that the family does not have to take care of her any longer. This is the reason why child marriage happens mostly in small villages. Poverty can be considered the main reason for a child marriage in India.^[3]

As many as 157 minor girls were rescued from child marriage in last five months in this year by the CWC And the district authority. As per CWC, 90 % of the call on 1098 are from children, mostly friend of those being pushed into child marriage.^[4]

In India, there are many rules and Acts that prevent child marriage. There are acts particularly for a common religion and acts that can be followed by any religion. Hindu Marriage Act, Muslim Marriage Act, Indian Christian Marriage Act etc are the provisions given to prevent child marriage for different religions. The prohibition of child marriage act, 2006 also prevent child marriage act. This act can be followed by any religion.

National Commission for Protection of Child Rights (NCPCR) with support from Young Lives India.

On 25th April 2017 National State Legal Authority and Delhi State Legal Authority from different States like Andhra Pradesh, Rajasthan and Telangana State Legal Authority participated in the consultation of National Commission For Protection of Child Rights which focused on the implementation of the Prohibition of Child Marriage Act 2006. During the Consultation, the legal experts and officials focused on different policies which are related to child marriage act like Indian Penal Code, the protection of children from sexual offences act 2012, the juvenile justice act 2015 as well as the personal law of different religion. The aim was to synchronise provisions of these act without disturbing the spirit behind the laws.^[5]

Acts that abolishes the practice of child marriage

The Hindu Marriage Act, 1955

Section 5(iii) of the Act states the legal age as for boys 21 and for girls 18. This section of the Act prevents anyone to marry before the legal age. And no-one can get registered under this act if it is marriage is before the legal age.

Muslim Marriage Act

Under this act, the legal age of marriage is the age of puberty. And anyone can get married at the age of 15 years. But marriage before the age of 7 years is Void and this act prevents it.

The Prohibition of Child Marriage Act, 2006

This act prevents child marriage and punishes who entices the child marriage. Section 3 of this act makes the marriage voidable at the option of contracting party being a child. Punishments under this acts are:

• Punishment for Male Adult: If an adult male above 18 years of age contracts child marriage will be punished with rigorous imprisonment for 2 years or with fine which may extend to 1 lakh rupees both.^[6]
• Punishment for solemnizing Marriage: If any person conducts, directs, abets any child to marry before the legal age shall be punished with rigorous imprisonment for 2 years or with fine which may extend to 1 lakh rupees or both.^[7]
• Punishment for promoting solemnisation of marriage: Any person whether parents or guardian or any other person promotes or does any act to permit child marriage or negligently fails to prevent it from being solemnized shall be punishable for 2 years or with fine which may extend up to 1 lakh rupees or both.^[8]

Child Marriage Restraint Act 1929

(Also known as the Sarda Act), passed on 28 September 1929, fixed the age of marriage for girls at 14 years and boys at 18 years. Child Restraint Act was amended in 1978 to increase the minimum age of marriage to 18 for girls and 21 for boys. Child Restraint Act was a legislature which only existed on paper and do not stand anywhere to prevent child marriage. In this Act, the child marriage was punished with Rs. 1000 and it was not voidable. Once the marriage is performed it was valid.

What Steps can you take if you see a child being forced by parents to marry

• The first step should be to talk to her parents and make them understand that child marriage is wrong and should not be promoted. Make them understand that it is illegal in India to force a child to marry and legal steps can be taken against them. If they do not listen and then also force the child to marry then,
• Then you should contact the women cell of the local police of the city and file a written complaint against the parents for forcing a child for marriage. Any person can report an incidence of child marriage before or after it has been solemnised. An immediate report needs to be made to the Police, the Child Marriage Prohibition Officer or such persons as may be appointed to assist him/her, first Class Judicial Magistrate or Metropolitan Magistrate.
• You can even contact the District Child Welfare Committee (CWC) through the child helpline number 1098 which operates all over India.

Childline India Foundation is an NGO that works for children who are in stress. The address for the Childline 1098 is provided below:

CHILDLINE India Foundation

406, Sumer Kendra, 4th floor,

1. B. Marg, Worli,

Mumbai 400 018, Maharashtra

You can call us on: 022-2495 2610, 2495 2611, 2482 1098 / 2490 1098/ 2491 1098, 2490 3507

Website: http://www.childlineindia.org.in/

• You can also call the nearest NGOs, that prevents child marriage. Some of the NGOs are provided below:

NGO’s working to curb the menace of child marriages in india

• Delhi: Butterflies – Delhi Childline Agency, U-4, First Floor, Green Park Extension, New Dehli, Delhi91-11-26191063, 91E-mail: bflies@ndf.vsnl.net.in ,
• Hyderabad: Society for Education Research and Development (SEREDE), 204, Pavani Lake View Apartments, Miyapur, Hyderabad – 500050 Serede9@yohoo.co.in Ph.- 9440679486
• Bihar: NIDAN 3rd floor, Sudama Bhawan, Boring Road, Patna-1 Ph- 0612-2571702, nidanpatna@rediffmail.com
• Jharkhand: Rah Society Vill+ P.O- Khairachatar, Bokaro, Jharkhand, Ph- 09308880140, E-mail: rah_society@indiya.com
• Maharastra: Nehru Yuva Mandal Farkande Tal. Erandol Dist. Jalgaon, Ph.-02588-245187
• Rajasthan: Samuhik Vikas Sansthan, Shri Nathulal Choudhary, Patel Road, Niwai, Tonk, Ph- 01438-224310
• Madhya Pradesh: Gramya Vikas Mandal, Sanaval (BAdagaon), Vidisha, Madhya Pradesh, Ph- 07594-223221, 0942441
• Rajasthan: Mahila Mandal Agor, Rawala, Senti, Chittorgarh, Rajasthan, Ph-01472-241472
• Chhattisgarh: Gramin Vikas Parishad, bhatia colony jashpur road pathalgaon, Jashpur, Chhattisgarh, Ph- 7765234000
• Bangalore: SUMANA (Society for Rural Development), Post Box No. 5, SIDHARTHA LAYOUT, MYSORE Pin: 570011, Mysore, Karnataka, Ph- 082-12470336
• Punjab: Darpan(an image of innocence), 80, gurdev nagar, pakhowal road, 141001, Ludhiana, Punjab, Ph- 0161-4613463, M:09779913463, E-mail: darpanautism @ com, Website: www.darpanautism.org
• Uttar Pradesh: Social Welfare Institute, “KANAK VILLA”, Plot No-46, Ganeshpur, Tarna (Near Tata Indicom Tower), Shivpur, Varanasi-221003, (UP)., 09415268049 / 09335318836 / 0542-2283815, Mail- swi_vns@satyam.net.in
• West Bengal: Netaji Pathochakra, O. Tikashi via Haria, Block – Khujari – 1, Dist. Midnapur, Pin-721430, Mob. 9433267140, Ph: 03220-276253 (O) / 276277 (Resi of President).

What is the Impact of child marriage on a child?

The Child does face negative impact after the marriage. Girl child feels disempowered and is deprived of the fundamental right to education, health, and safety. The Girl child is not ready to become a mother in such a small age, they are at great risk of experiencing dangerous complications of pregnancy and childbirth. Due to no access to education, her family is more likely to live in poverty. She also suffers from domestic violence from her husband or husband ’s relatives as she is not able to do any household work in such a small age. The Child also has fundamental rights along with basic necessities which she is deprived of.

Young brides face a higher risk of contracting HIV and other sexually transmitted diseases owing to her marriage with an older man with more sexual encounters.^[9]

Can a child marriage be annulled after being solemnised

Child Marriage does not automatically become void. It means that if the child marriage is solemnised, spoused can not end it automatically. The divorce order has to be taken from the court if the the age of spouses is more than 18 years.

YES, a child marriage can be annulled after being solemnised. This can be done either by her parents, guardian or by the child himself. Legal remedies after child marriage:

If a child is married before her legal age by her parents or guardian, then also child has the power to repudiate it. There are provisions through which a child can repudiate it.

• By the help of Guardian- If a child does not want to stay with the husband or wife then he/she can repudiate the marriage with the help of the guardian.
• The Option of Puberty- A child can file for the option of puberty which provides relief from marriage after 15 years of age till 18 years of age. A child can demand to repudiate the marriage under Muslim or Hindu law.
• Prohibition of child marriage act- Section 3 of the Act gives power to the child to repudiate the marriage after the age of majority till 2 years. After attaining majority till 2 years, child can order for repudiation in the court. ^[10]

Are there any compensation provided by the government for such issues?

Taking about maintenance and Custody of the child. The prohibition of child marriage Act, 2006 provides maintenance and custody according to sections:

• Section 16(3)(g): The Act is empowered to provide support and all possible aid including medical and legal aid to children affected by child marriages.
• Section 4(1): The adult husband must pay maintenance to the minor girl until her re-marriage. In case the husband is a minor at the time of marriage, his guardian will pay maintenance.
• Sections 5 and 6: Children born from a child marriage are entitled to custody and maintenance because the law considers such children legitimate for all purposes even after the marriage has been annulled.
• Section 7: A District Court is empowered to add to, modify or revoke any order relating to maintenance and custody of children born from a child marriage.

Conclusion

Child Marriage in India is increasing day by day and it should be stopped as it is not healthy for the child and their future. Children of India are the future of India and to make India’s future bright we have to stop child marriage.

There are so many provisions that prevent child marriage and it is illegal to conduct a child marriage because of many reasons. But we should not ruin a child’s life for some reason. We should educate a child and not destroy their life. Educate your girl child like you do for your son. They are not brides. This will help the society to prevent child marriage.

“STOP CHILD MARRIAGE”.

References

^[1] http://indianexpress.com/article/explained/child-marriage-women-india-census-data-2011-2826398/

^[2]http://www.dnaindia.com/india/report-child-marriage-670-cases-registered-in-three-year-period-2207049

^[3] http://www.girlsnotbrides.org/why-does-it-happen/

^[4]http://www.thehindu.com/todays-paper/tp-national/when-a-helpline-curtailed-child-marriages/article18592993.ece

^[5] http://younglives-india.org/news/young-lives-support-legal-consultation-child-marriage

^[6] Section 9, The Prohibition of Child Marriage Act, 2006

^[7] Section 10, The Prohibition Of Child Marriage Act, 2006

^[8] Section 11, The Prohibition Of Child Marriage Act, 2006

^[9] http://www.breakthrough.tv/earlymarriage/2013/08/impact-early-marriage-domestic-violence-sexuality/

^[10] M. Janaki vs. K. Vairamuthu, Madras HC, 29.02.2016)

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