In this article, Sanghamitra Sengupta discusses the legal consequences of overstaying in India.

Entering a country on any visa requires you to leave at some point. Stretching your visit over a period of time can result in a legal fiasco. There are different reasons for one’s visit or stay in India such as education, tourism, employment, internship, business, conference, medication, and transit. Whatever the reason be, just like any other country, India too does not tolerate one’s stay in their country, after their visa has expired.

What is a visa?

• A travel visa is granted by a country to a foreigner visiting the country for a specific period of time. The travel visa authorizes the foreigner’s stay in the country. Every country has different rules, with regard to travel visas.
• For instance, Qatar easily grants a visa on arrival on payment of a small fee which can be charged on the spot on a credit card. Such a system does not involve any tedious procedure before travel journey to a foreign country commences. Some countries which provide a visa on arrival may require you to provide evidence of solvency and hotel booking.
• Some countries like Algeria require a foreigner to apply for a visa long before their travel to the foreign country and even carry an authorization letter from their government.
• Some countries exempt citizens of a particular country from obtaining a visa. For instance, Nepalese do not require a visa to travel to India when traveling from Nepal. Similarly, U.S citizens do not require a visa to stay in Japan for 90 days.

Who needs a Visa to visit/stay in India?

• If you are a foreigner, i.e., not an Indian citizen, you require a visa to travel or stay in India.
• Only citizens of Nepal and Bhutan have been exempted from obtaining a visa to travel to the country. Nationals of Maldives do not require a visa to stay in India for tourism purposes for maximum 90 days.
• One cannot depend on their Indian origin to not obtain a visa to travel to India. The visa must be approved before you travel to India.
• Currently, there are 12 different types of visas offered by India. You can opt for one, as per your type of stay and visit to the country.
• Indian visas are usually granted for a period of 6 months, 1 year, 5 years or 10 years, depending on one’s citizenship, type of visa and fee paid.
• A foreigner can now apply for a visa online by clicking here. An interview may then be conducted where documents required for processing of visa will have to be submitted.  

FRRO Registration

• Every foreigner entering India on a visa that is valid for 180 days or more has to register themselves with the Foreign Regional Registration Office (FRRO), within 14 days of arrival.
• Pakistani nationals have to register with the FRRO within 24 hours of arrival and not 14 days.
• Foreign diplomats, OCI, children aged 16 years and below need not register themselves with the FRRO.
• If a foreigner does not stay in India for 180 continuous days, no registration is required.
• FRRO monitors and regulates the stay of foreigners in the country. A late registration with the FRRO would attract a fine and a lengthy process of explanations and justifications.
• A foreigner may extend his visa if he wishes to do so by seeking permission of the FRRO before the visa expires. Tourist, internship and transit visas cannot be extended.
• A visa is extended only on reasonable grounds, for instance, medical reasons.
• A visa granted by India can be extended at least 60 days prior to the expiry of the visa.
• You must carry your confirmed air ticket, copies of your passport photo, and a photocopy of your passport in order to obtain an extension of visa. Carry extra copies to be on the safer side.
• In case of overstay in India, a foreigner has to obtain an exit visa from the FRRO.

FRRO OFFICES

What is an exit visa?

Exit visas have to be obtained by those who had entered the country without a visa, for instance, a foreigner’s child born in the country and those who have overstayed their visa in the country.

• In order to avoid punishment and imposition of fine, the foreigner is expected to extend the visa if an extended stay is desired or apprehended.
• This is because not extending a visa by approaching the FRRO on time results in overstaying which is a punishable offense in the country.
• Foreigners must submit an application for extension of visa at least 60 days prior to its expiry to the Bureau of Immigration or the FRRO.
• FRRO can condone or regularise overstay up to three months beyond the validity of the visa, excluding tourist visa. However, the grounds of overstay must be reasonable. The FRRO charges an overstayal fee of US$ 30. A fee of US$ 40 is also charged for the extension of visa.  
• No charge is imposed for obtaining an exit visa.
• A foreigner wishing to obtain an exit visa may apply for one online by clicking here. It is a government initiative to digitize the application process, making it easier for foreigners.
• It must be noted that the State Government or Union Territory administration along with FRROS have powers to grant an exit visa to foreigners holding Tourist/X Visas who have overstayed for three months or less. This is subject to no local objection, no LOC, no court case pending, and on payment of fees or penalty.
• FRRO offices are currently present in Delhi, Mumbai, Chennai, Kolkata, Amritsar, Bangalore, and Hyderabad.

Steps to get an exit visa

The process is quite cumbersome and dreadful as it takes days to process an exit visa considering the number of formalities involved. Show up early at the FRRO, to get a chance to produce your documents early. Note down clearly the documents the officer at the FRRO demands from you as you’ll be asked to head back even if one document is missing. To be on the safer side, carry at least 2 copies of all documents required. Make sure all the copies of your personal documents are self-attested. All corporate documents should be attested by a gazetted officer. Lastly, be patient and friendly.

What happens if someone overstays?

• Overstaying in India amounts to a criminal offense and is dealt with seriously. A foreigner who overstays in the country may have to pay a fine, face imprisonment and even be barred from entering the country in the future if the circumstance demands so.
• A fine of 30$ has to be paid for overstaying in India when caught for overstaying.
• Regardless of whether one’s overstay is for a long or short period, the individual will be regarded as an illegal migrant.
• Under Section 14 of the Foreigner’s Act, 1946, a foreign national who overstays his visa will be penalized. This section of the Act provides for penalizing a foreign national who remains in India for a period exceeding the period allowed by the visa. The penalty may extend to an imprisonment term of 5 years along with a monetary fine.

Deportation of a Foreigner for overstaying

Deportation means sending a foreigner back to his country for not abiding by the immigration rules of a particular country. Such a person who faces deportation is not easily allowed to enter the country again. Under the Foreigner’s Act, 1946, the Central Government is empowered to deport a foreigner who has overstayed in India, by virtue of Section 3(2)(c) of the Act. The Central Government has delegated this power to all the state governments and UT administrations too.

In fact, the police also have the power to arrest a foreign national living illegally in India, by virtue of Section 4 of the Passport Act, 1920. According to norms, the police authorities must inform the embassy concerned with the arrested foreigner about his arrest and even offer a visit from an official of the embassy to the arrested foreigner. The Ministry of External Affairs and Ministry of Home Affairs too must be intimated about the arrest.

Legal steps to take when you have overstayed

Stay calm. There are a couple of solutions which will lessen the hassle.

• Reschedule the flight

Often, people realize that their visa expires before their date of departure from India. In such a scenario, they are quite apprehensive about rescheduling their flight owing to increased airfare. But, it’s a wise option to not overstay in the country and reschedule your travel by departing earlier.

• Extend the visa

If your stay is necessary in India beyond the period specified in the visa, approach the FRRO and ask for a visa extension. It is not an easy task as a lot of questions will be directed to you making the process long and tiring. But, this seems to be a straightforward move. The authorities may require a proof of the residence as well for this purpose.

• Request for an exit visa

How to avoid overstaying in India

You must remember that the validity of your visa starts from the day it is issued to you. Most people confuse the validity of their visa to start from the day they have departed for India or have arrived in India. This is a highly erroneous understanding and can land you in problems. It is advised that you make your final travel schedule after obtaining the visa.

Conclusion

Being jailed or snubbed in a foreign country can be an individual’s biggest nightmare. Make sure you follow these guidelines to avoid any legal hassle in your trip.

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In this article, Astha Mishra* of NUSRL Ranchi discusses the right to maintenance of a Muslim Women.

The right to maintenance is available to a Muslim wife under Muslim law even when the wife leaves the society of the husband if it is justified by the circumstances.[1]

In Ameer Ali’s Mohommedan law[2], the right of the wife to maintenance is subject to the condition that she is not ‘refractory’ or does not refuse to live with her husband without reasonable cause.[3]

Moreover, Section 125 Criminal Procedure Code 1973 empowers the Magistrate to order maintenance in favour of Muslim women whose marriage remains intact in law.[4]

Section 125 Criminal Procedure Code, 1973 empowers the Magistrate to order maintenance in favour of women. If the husband neglects or refuses to maintain his wife without any lawful cause, the wife may sue him for maintenance. She may apply for an order for maintenance under Section 125 of the Criminal Procedure Code, in which case the court may order the husband to pay maintenance.

Conditions for Granting Maintenance:

1. The person must have neglected the claimant or refused to pay maintenance.
2. Persons claiming maintenance must be unable to maintain themselves. If a person is healthy, adequately educated or capable of pursuing gainful employment no maintenance is given. Wives and elderly parents are generally given maintenance.

Section 125 of the code of criminal procedure provides a right to seek maintenance to all the woman irrespective of caste, religion and creed. Muslim Woman and her children entitled to maintenance u/s 125 CrPC as Section 3(1)(b) of the Muslim Women (Protection of Right on Divorce) Act, 1986 does not affect such right under Section 125 CrPC. Benefits of Section 125 CrPC is available irrespective of religion and it would be unreasonable, unfair and inequitable to deny this benefit to the children only on the ground of their being born of Muslim parents.[5]

WHEN WIFE HAS LEFT WITH A REASONABLE CAUSE AND THUS MAINTENANCE MUST BE PROVIDED TO HER AND THE CHILDREN

Presumption of disharmony when wife leaves matrimonial home with child

When a young lady with a few months old child is unable to bear the blunt of the matrimonial life in the matrimonial home, she cannot be blamed for living apart. In our Indian condition ladies are generally very tolerant and they always consider the normal quarrels as an ordinary wear and tear of matrimonial life. Only when the solution goes beyond hand the women leave her matrimonial the home.[6]

When the wife is subjected to Cruelty and thus has reasonable ground to desert

A wife can refuse to live with the husband on the ground of his cruelty and still claim maintenance from him.[7] For succeeding the claim of cruelty, the wife must prove two distinct elements,

1. First, ill-treatment complained of, and
2. Secondly, the result and danger of apprehension thereof.

Any conduct of husband which causes disgrace of wife or subject to a course of annoyance and indignity amounts to legal cruelty. The harm apprehended by the wife may be a mental suffering as distinct from bodily harm, because the pain of the mind may be even more severe than bodily pain.[8]In both the cases, the Court held that the behaviour of the husband amounts to cruelty and the wife is entitled to live separately and claim maintenance.

In Shobha Rani v. Madhukar Reddi[9], while dealing with ‘cruelty’ under Section 13(1)(a) of the Act, this Court observed that the said provision does not define ‘cruelty’ and the same could not be defined. The ‘cruelty’ may be mental or physical, intentional or unintentional. If it is physical, the court will have no problem to determine it. It is a question of fact and degree. If it is mental, the problem presents the difficulty. Thereafter, the Bench proceeded to state as follows: –

“First, the enquiry must begin as to the nature of the cruel treatment. Second, the impact of such treatment on the mind of the spouse. Whether it caused a reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.”

The father is responsible for the maintenance of infant children

The father is responsible for the maintenance of infant children. There is no obligation upon the mother to suckle child at the breast. It is the duty of the father to provide a wet-nurse who is to stay with or near the mother. He cannot hire his own wife for the purpose but may hire one of his other wives, if any.

The SC court has been of the opinion that the child has a right to demand maintenance from the father even when they are in the custody of a separated mother or any other person.[10]

Under Islamic law, father is liable to maintain his sons till they attain puberty and daughters till they are married and such obligation cannot be denied on the ground of his pecuniary incapacity or indigence so long as he has the ability to earn and no one shares such obligation. He is bound to maintain even if he is indigent or the children are in the custody of the mother.[11] In Mst. Akhtari Begum v. Abdul Rashid[12] where the rights of a four-year-old child was upheld despite the fact the child was in the custody of the mother.

CONCLUSION

Thus after the Shamim Ara judgement, the Magistrate is bound to provide maintenance to Muslim women even though she approaches the court under the personal law.

* 3rd Year National University of Study and Research in Law, Ranchi

[1] Khurshed Begum v. Abdul Rashid, AIR 1927 Nag. 139 at p. 144: 100 I.C. 169.

[2] Vol.II, 5^th Edn., p.407

[3] Majidakhatoon Bibi v. Peghalu Mouhammad, P.L.D., 1963 Dacca 583 at pp 588, 589.

[4] Shamim Ara v. State of UP(2002) 7 SCC 518; Iqbal Bano v. State of UP JT (2007) 8 SC 648

[5] : (i) Judgment dated 16.04.2014 of the Supreme Court in SLP (Criminal) No. 4377/2012, Shamim Bano Vs. Ashraf Khan. (ii) Noor Saba Khatoon Vs. Mohd. Quasim, (1997) 6 SCC 233.

[6] Fathimath Sahira v. Hakkem, 2010(1) K.L.T.S.N. 89 at p. 89 (C.No.108).

[7] Shabana Bano v. Mohd. Rafiq RLW 2009 (4) Raj. 3158.

[8] 2 Preeti Sharma, Hindu Women‟s Right to maintenance (ed. I, 1990, New Delhi) p. 135. AIR 1984 Kant. 41

[9] (1988) 1 SCC 105.

[10] Mohammad Yusuf v. Zarina 1075 CrLJ 1988; Siddique Sanj v. Parveen 1984 1984 CrLJ 3141; State of Haryana v. Santra (2000) 5 SCC 182.

[11] Baya Bai v. Esmail Ahmad, AIR 1941 Bom 369

[12] Mst. Akhtari Begum v. Abdul Rashid AIR 1937 Lah. 236.

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In this article, Astha Mishra discusses Biases of Adultery laws in India.

INTRODUCTION

“Infants have their infancy; adults, adultery.”-David Philip Barash

The law of the land as laid in the Indian Constitution envisages equality before the law and equal protection of the law for its entire citizen that includes both the sexes. Yet the archaic law on adultery as laid in Section 497 is one of the six sections in chapter XX of the IPC, entitled “Of Offences Relating to Marriage” does not adhere to this one fundamental rule.

Under Section 497 of the Indian Penal Code,

“Whoever has sexual intercourse with a person who is and whom he knows, or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case, the wife shall not be punishable as an abettor.”

Adultery is a term that describes any form of mixing of impurity. In other words, if Simranjeet is married to Kuljeet, and Simranjeet has an affair with Rajdeep, then Kuljeet can bring charges against Rajdeep, but Simranjeet will not be charged with the same offence. Although adultery by definition refers to any extramarital incidence of sexual intercourse, the Indian law in its current form criminalizes only one form of adultery.

It is illegal only if a man has sexual intercourse with a woman who is married, and he does not have the consent of the husband of the woman for the sexual activity. The women herself is denied by any agency, and this includes the wife of the adulterer, who can take no action against her husband.

When taken literally, the words of this law state that women are not to be charged with adultery, even when they are willing and equal participants in the act – hence it has been the subject of various debates, with some contesting that it seems to be ‘protecting’ women, and is, therefore, unfair to men. Although, Adultery is a solid ground for divorce under every personal law. Therefore, a husband can seek a divorce from an adulterous wife.

THE INHERENT BIASES

Since time immemorial women have been subjected to the males, as referred in Manusmriti a woman is subjected to her father than to her husband and later in life to his son, thus making her an object under the control of the males. This patriarchal character is still well embedded in our society even in the modern days.

The charges of adultery can be brought only during the subsistence of a legal marriage. The law while criminalizing adultery as a penal offence was not concerned with the ethical, moral or with the sanctity of the institution of marriage rather at the time when it was criminalized in 1860 by the British it was done under the pretext that women were the property of the husband and the husband had complete right to control that property in the ways that best suit their interests. Now examining the reasons behind why the institution of marriage came up in the society, it came into existence as a means to secure a man’s property even after his death, men wanting to retain it( their material property) throughout there lifetime and beyond. It was only possible if they had a check system on the purity of their bloodline and hence ensuring that their property was inherited by the right person.

Further criminal intercourse with married women would lead to adulterate the issues of the children born out of such relationships, thereby burdening the woman’s husband to support and provide for ‘another man’s children’. Hence to maintain the chain of inheritance the purity of the bloodline was necessary and to accomplish that the offence of adultery was criminalized.

Further the framer of the provision looking at the social situation prevailing at that time in the Indian society where women were already on the weaker subjugated side cogitated of not including it as a penal offence.

The Law Commissioners in their Second Report on the Draft Penal Code, however, took a different view, Macaulay view had been that-

“We considered whether it would be advisable to provide a punishment for adultery, and in order to enable ourselves to come to a right conclusion on this subject, we collected facts and opinions from all the three Presidencies. The following positions we consider fully established;

Firstly, that all the existing laws for punishment were at that time inefficient from preventing the husband who usually belongs to the elite class from taking the law into their hands and propounding the judgment.

Secondly, that in a very few instances a person of the high caste and class would resort to the law for bringing the charge on the grounds of adultery in order to protect his honor lastly the husband who have recourse in case of adultery for redress to the court are generally poor men whose wives have run away, that these husbands seldom have any delicate feelings about the intrigue, but think themselves injured by the elopement, that they consider wives as useful members of their small households, that they generally complain not of the wound given to their affections, not of the stain on their honor, but merely as a loss of a menial whom they cannot easily replace, and that generally their principal object is that the women may be sent back. These things being so there is no purpose that the act provides and hence it would be best to include it under the civil offence.”[1] Further, Macaulay was convinced that since polygamy was an everyday affair at that time, the wife was socially conditioned to accept her husband’s adulterous relationship. She neither felt humiliated nor was it a culture shock for her.

Disfavouring the Macaulian perception of adultery but placing heavy reliance upon his remarks on the status of women in India, they concluded:

“While we think that the offence of adultery ought not to be omitted from the Code, we would limit its cognizance to adultery committed with a married woman, and considering that there is much weight in the last remark in Note ‘Q’, regarding the condition of the women in this country, in deference to it, we would render the male offender alone liable to punishment.”[2]

THE FLAWED REASONING

This was the very idea of including the offence of adultery under the penal code, thus leading to the following flaws and loopholes in the law in its applicability with reference to the present times.

1. The law makes it an offence only with regards to the other men who is an outsider in the marriage and the husband can bring the charges against him in the court of law but the wife who is also an active and equal accomplice in the offence is not penalized. Moreover, this provision only punishes a man, therefore, assuming that a woman is incapable of thinking and taking responsibility for her own actions. Another point of this provision that may be worth pointing out is that in cases where a married man indulges in sexual intercourse with an unmarried woman, the man cannot be charged with adultery although his wife and the unmarried woman are helpless victims of his act.

This is essentially saying that if a man’s property is defined by another, the man can punish the offender – the woman here is reduced to mere property. This was reinforced in the case of Sowmithri Vishnu v. Union of India[3] – where Sowmithri, whose lover was prosecuted for adultery, contended that the law was gender biased. Despite being an equal party in the offence, the woman was a ‘victim’- she was exempt from punishment, as a child would be, suggesting that the woman committing adultery is incapable of rational thought and therefore has no agency.

2. Sexual intercourse with a prostitute, unmarried woman or a widow would not fall within this section and hence the husband who is committing infidelity and adultery cannot be charged under the offence since adultery can be committed only with another’s wife thus indicating that a women who is unmarried, prostitute or widow is no one’s property.
3. The charge of adultery can be brought only by the husband and not by the wife.
4. The consent does not have any part in the offence – This also implies that the wife who had consented to an adulterous relationship does not have the freedom to come out of her marriage and make a new life with her new partner even if she is oppressed in her present one. In other words, this suggests that she is brought back to the husband she wants to leave but fails to because the legal statutes, by simply ignoring her will because she is a woman, forces her to stay in a marriage she may not want to remain in.
5. Adultery committed by an Indian woman, across boundaries of language, culture, education and economic status, may often be more a question of seeking security and self-esteem than love or sex beyond the parameters of marriage. It might perhaps be a search for confidence and self-assurance which a boring marriage to an indifferent spouse has destroyed.[4] If the women is below 16 years of age, her consent to such sexual intercourse may also be immaterial and would constitute rape.
6. Section 497 is indeed not to protect the rights of the women.
   • No wife can bring the charge against her husband and his lover. But at the same, the husband can bring the charge against his wife’s lover.[5]
   • The court regarded it as a “legislative packet”[6] designed to “deal with the offence committed by an outsider to the matrimonial unit who invades the peace and privacy of the matrimonial unit and poisons the relationship between the two partners constituting the matrimonial unit… It does not arm the two spouses to hit each other with the weapon of criminal law.”[7] Ultimately, the Court concludes that “even-handed justice” was meted out to both parties.[8]
   • If the husband has sexual intercourse with the wife of some other man, with that man’s consent in that case to the charge of adultery cannot be brought.

Lastly, the section does not even provide any provision or relief which enables the court to hear the women against whom the husband brings charges of having indulged in an extramarital affair. Hence the section was enacted basically for the protection of the rights of the husband. The point is whether intercourse with an unmarried, prostitute and widow makes less of the offence of adultery and hence less guilty of breaching the trust of the wife.

In the present scenario is it reasonable to include adultery as a criminal offence.

The code provides punishment of 5 years imprisonment to the lover of the wife. The fact that the two individuals who are adults with their consents who have indulged in a private activity of intercourse should be penalized.

Crime as has been definedas, A body of rules and statutes that defines conduct prohibited by the government because it threatens and harms public safety and welfare and that establishes punishment to be imposed for the commission of such acts.[9]

As J.S. Mills propounded under the harm principle that any conduct on the part of any individual that hampers threatens the rights of the others in the society should be under state sanction and control. Here the act of the husband or the wife of adultery though leads to the breach of trust of the marriage, the sanctity is dissolved and such an act is not morally permissible in any society yet is not of such a nature that a penal punishment of 5 years is required. Further, the argument that the law leads to deterrence and hence preserve the institution of marriage holds no more good a ground to allow this callous provision to sustain in the present times. One cannot in the present times force two individuals who are adults to live under one roof be happily married when the essence of the marriage is lost.

The last resort principle[10] provides the resort of filing a case for divorce to both husband and wife on the grounds of adultery and since the civil remedy is present, of dissolving the marriage the criminal remedy is not necessary.

CONCLUSION

The 42^nd Law Commission report recommended to include the women under the purview of the law making it gender neutral.[11] In 2003, the Committee on Reforms of the Criminal Justice System [Malimath Committee] published its Report.[12] It maintained support for the Law Commission proposals to not repeal the offence, but to equate liability for the sexes,[13] for it observed: the object of the Section is to preserve the sanctity of marriage. Society abhors marital infidelity. Therefore, there is no reason for not meting out similar treatment to the wife who has sexual intercourse with a man (other than her husband)”.[14] A decade has passed since this Report, but there has been no activity in the Legislature to incorporate its proposals.

Hence the legislators need to decriminalize the section as adultery is no threat to the society. Thus respecting individual’s rights to privacy, equality and right to live with dignity.

Just recently, Justice SN Dhingra of Delhi High Court said :

“ We are living in an era of equality of sexes. The Constitution provides equal treatment to be given irrespective of sex, caste and creed. Does this concept of equality not apply in case of adultery also? Are women a child, baby, an insane or suffers from some other infirmity that anyone can easily take her for a ride? Even if she is highly educated then also she is granted blank cheque of having free sex and not be held liable and face punishment for the same! This is most despicable, to say the least. A crime is a crime.If women can be punished for murder, theft and other offences then why not for adultery also? Time has come when this gross injustice perpetrated on men alone is rectified suitably and necessary amendments be made to Sec. 497 IPC, so as to do away with the irregularities, and in the interest of doctrine of equality.”

References

[1] Macaulay’s Draft Penal Code (1837), Notes, Note Q, pp. 90-93, cited from, Law Commission of India, Forty-second Report: Indian Penal Code (Government of India, 1971), para 20.13.

[2]Second Report on the Draft Indian Penal Code (1847), pp. 134-35, cited from, Law Commission of India, Forty-

second Report: Indian Penal Code, id., p. 365.

[3] Sowmithri Vishnu v. Union of India, (1985) Supp. SCC 137.

[4] Chatterji, A Shoma, The price of adultery, the tribune, Saturday, January 20, 2007.

[5] V. Revathi v. Union of India, (1988) 2 SCC 72.

[6] V Revathi, at para 2-3.

[7] V Revathi, at para 5.

[8] V Revathi, at para 5.

[9] http://legal-dictionary.thefreedictionary.com/Criminal+Law.

[10] Douglas Husak, The Criminal Law as Last Resort, 24(2) OXFORD JOURNAL OF LEGAL STUDIES 207 (2004).

[11] LAW COMMISSION OF INDIA, 41ST REPORT: CODE OF CRIMINAL PROCEDURE, 1898 (1969).

[12] REPORT OF THE COMMITTEE ON REFORMS OF CRIMINAL JUSTICE SYSTEM (2003).

[13] Id.

[14] Id.

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In this article, Sanghamitra Sengupta discusses steps to take when your employer refuses to pay gratuity.

Understanding Gratuity

It has always been rightly said that loyalty is a trait that must be awarded. Employers also believe in this principle and show gratitude to their retired employees for their service by giving them gratuity, a monetary payment. It is basically a type of a ‘retirement benefit’. But, an employer is not bound to pay gratuity to every employee post-exit. An employee must have worked with the employer for a minimum of 5 years to avail this benefit. The reason for exit from the job does not matter as the reason could vary from something as natural as age to something caused due to his own volition such as a better job opportunity.

Is gratuity available in both public and private sector?

Yes. In India, it is mandatory for every employer, be it in the public sector or private sector, to pay his employee gratuity provided the employee has completed 5 continuous years of work.

Is there any law that protects my right to gratuity?

Yes. Payment of gratuity is ensured by The Payment of Gratuity Act, 1972, thus making it mandatory under a statute. The act is applicable to every legal place of employment such as mines, factory, shops, oil field, plantation, railway company, and ports. But, it must be noted that these employments must have had or have at least 10 employees, on any day of the preceding one year.

What happens if I die before completion of 5 years of service?

An employee is entitled to gratuity payment even in the case of death. In the case of death, 5 years of continuous service will not have to be proven and the gratuity will be awarded to the nominee. In case of absence of nominee, the legal heirs of the deceased employee will receive the gratuity. It must also be noted that sometimes 5 years of service is not completed due to disablement, meaning, permanent inability or incapacity to do the work which one was capable of doing before an accident or disease. In case of disablement, gratuity is paid even if 5 years of service is not rendered.

How many days must I wait for to receive my gratuity payment from my employer?

• Before we delve into the laws, you need to remember that every employer gets 30 days post your resignation, retirement or firing from the job to pay you gratuity.
• You or anyone authorized by you can send an application to the employer for payment of the gratuity in these 30 days.
• An application must be made to the employer within 30 days of exit from job to the employer in Form ‘I’.
• A nominee of the employee who is entitled to gratuity on behalf of the employee from the employer has to give an application to the employer within 30 days of exit from work, in Form ‘J’.
• After receiving this application, your employer is bound to respond to this application within 15 days. The employer must verify the application and if the claim is found to be admissible based on this verification, he must issue a notice to you, in Form ‘L’ notifying the calculated amount of gratuity which will be awarded by him.
• The employer must also fix a date in this notification which cannot be after the 30-day term stipulated by the act. This notice must be forwarded to the controlling authority having jurisdiction in that area.
• The provision of an application to the employer does not imply that his liability to pay gratuity starts only when you send an application as an employer is bound to pay gratuity regardless of an application from the employee.

After completion of 30 days, can I make my employer pay extra gratuity?

After completion of 30 days, the employer has to pay you not only the gratuity amount but also simple interest incurring on it. This simple interest rate cannot exceed the rate imposed by the Central Government though.

Where can I report in case of non-payment of gratuity

• Section 3 of the Payment of Gratuity Act, 1972 provides for a ‘Controlling Authority’. Different areas have different controlling authorities that ensure the effective administration of this act. The act gives the controlling authority the status of a ‘quasi-judicial’ body which implies that it is empowered to adjudicate disputes arising out of non-payment of gratuity.
• The Controlling Authority may issue a notice in Form ‘O’ to both the applicant employee and the employer. The two parties will then have to appear before the authority on a specified date, time, and place, given in the notice.
• If the employer fails to present himself or an authorized person before the authority, the authority may proceed to hear the case and determine the employee’s application ex parte.
• If the employee fails to appear before the authority on the specified date, then the application will be disposed of.
• The authority, on hearing the case and examining the facts may pass a direction and issue a notice to the employer if it is established that employee is entitled to gratuity. A notice is served to the employer in Form ‘R’.  
• Generally, an Assistant Labour Commissioner of a state is appointed as a controlling authority in a state with the hearing taking place in the office of the Labour Commissioner. If you have been denied gratuity payment by your employer, you can file a complaint under Section 8 of the act, against the company. The controlling authority, on hearing both sides, if satisfied with the employee’s stance, can direct the employer to pay the gratuity that is due along with the interest on it.
• If an employer fails to pay gratuity amount along with interest 30 days after the controlling authority has directed it to do so, the appropriate government, be it Central Government or State Government, whoever is concerned with the employing organization, will authorize the controlling authority to start prosecution against the employer, within 15 days.

The forms can be accessed here.

Benefit of Condonation

An employer cannot deny gratuity to the employee on the ground of limitation. No doubt, there is a specified period of 30 days for an employee to file a notice to the employer but a claim for gratuity will never be invalid solely because it was not presented within the specified time. An appeal against the order of the Controlling Authority, however, has to be filed within the specified time and cannot be condoned.

What is the punishment imposed on my employer if he refuses to pay gratuity?

• Section 9 of the act provides for all penalties that can be imposed on your employer by the Controlling Authority. Your employer will be liable for imprisonment for non-payment of gratuity – up to 6 months which may be extended to 2 years if the controlling authority deems it necessary.
• It is not necessary for the employer to be imprisoned for 6 months as, if the controlling authority is of the opinion that a lesser term of imprisonment would suffice, the provision of 6 months of imprisonment would not be applicable.
• A penalty amounting to imprisonment of 6 months could also be imposed on your employer if he knowingly makes a false statement or representation to avoid payment of gratuity.

Gratuity Insurance

Under Section 4(A) of the Payment of Gratuity Act, 1972, every establishment that is bound by law to pay gratuity must get a gratuity insurance. This compulsory insurance will ensure that there are sufficient funds available with the establishment to pay employees their much-deserved gratuity. There are plenty of Indian banks that offer gratuity insurance to employing establishments, helping banks maintain a sufficient fund as well as earn gains on the invested money.

However, this law takes a turn because it only becomes mandatory when the government releases a notification with regard to the insurance in the Official Gazette. So far, there has not been any notification. However, states are forming their own compulsory gratuity insurance rules.

As far as employees are concerned, this insurance is highly beneficial to them for it ensures that in times of a financial crisis or economic losses, the company will still have to pay gratuity to the employee. The employer cannot justify nonpayment of gratuity by citing bankruptcy or financial losses. The rule of compulsory gratuity insurance was introduced to safeguard employees in all sorts of situations, even when their employer has to shut down the establishment.

Payment of Gratuity after death

Gratuity can be received by the employee’s legal heir, in case of death of the employee. Gratuity received by the employee’s legal heir will be taxable under the head “Income received from other sources”. The legal heir must give an application to the employer, demanding gratuity payable to him, in “Form K”.

Gratuity is most definitely exempted from tax up to a certain limit, as per Section 10 (10) of the Income Tax Act. Section 10 (10) basically divides employees into three categories for the purpose of exemption of taxation on gratuity. The categories are:

• Government employees: Gratuity received by government employees is not taxable
• Employees covered by Payment of Gratuity Act: total gratuity that is exempted from taxation is the least of these 3 amounts- 15 days salary for each completed year of service provided the employment is more than six months OR INR 3,50,000, OR the gratuity actually received. Gratuity received in excess of the least of the amounts mentioned here will be taxed.
• Other employees: Total gratuity that is exempted from taxation is the least of these 3 amounts- Half month’s average salary for every completed year of service OR INR 3,50,000 OR the gratuity actually received.

The post What to do if your employer refuses to pay gratuity? appeared first on iPleaders.

In this article, Hritik Sharma discusses Laws you must know to handle police harassment in India.

Introduction

Various petitions complaining about the harassments are being reported and filed before the courts seeking directions to abstain the police authorities from harassing people in the shade of doing the investigation.

And one of the primary reason has been that the Police Authorities does take a benefit on the part of the common people as they don’t have the knowledge of the provisions which are providing them remedies in each of the situations.

As to keep yourself safe from being a victim of such harassments keep a take of the laws which are being stated or under which the work is done.

What is an Investigation

Under Section 2(h) of the Code of Criminal Procedure Investigation is defined as, “investigation” includes all the proceedings under this code for the collection of evidence conducted by a police officer or by any other person (other than a Magistrate) who is authorized by a Magistrate in this behalf.

Here it ends with the formation of the opinion as to whether on the material collected, there is a case to place the accused before a Magistrate for trial and if so, taking the necessary steps for the same by filing of a charge-sheet under Section 173, Stated under the case Union of India v. Prakash P. Hinduja.

A three-judge bench in H.N.Rishbud v. State of Delhi, while indulged in an investigation, has stated that under the Code, Investigation consists generally of the following steps:

1. Proceeding to the Place,
2. Detection of the Facts and Situation of the case,
3. Discovering and Arresting the Suspected offender,
4. Gathering the Pieces of evidence relating to the commission of the offensive act which may consist of:

• The investigation of numerous people (including the accused) and the markdown of their statements into writing, if the officer thinks fit about it.
• The exploration of places or apprehension of things considered necessary for the investigation and to be produced at the time of the trial.

Formulation of the opinion as to whether the material gathered there is a case to place the accused before the Magistrate for trial and if so taking necessary steps for the same by filing a charge sheet under Section 173. In Adri Dharan Das v. the State of W.B., it has been stated that:

“Arrest is a part of the procedure of investigation expected to get many purposes. The accused may have addressed the insights about the different points of intention, planning, commission and impact of the crime and connection of other people, if any, in the crime.”

More Cases Exploring the Dimensions of Investigation

Recently in the case A.N. Lalman Lal v. State of Tamil Nadu, the High Court of Madras, a Single Judge comprising of Hon’ble Justice M.S. Ramesh, addressed a petition filed under Section 482 of Code of Criminal Procedure Code, pleading to the court about directing the Police(Respondent), to not harass the petitioners under the guise of investigation.

The Court accounted that the Investigative Officers powers are not restrictive in the terms of the enquiry either about a non-cognizable offence or a cognizable offence but it is needed to be checked that whether such powers are legitimately exercised.

The Court observed, though the Code of Criminal Procedure empowers the Magistrate to be a guardian in all the stages of the police investigation, there is no power which allows him to interfere with the actual investigation or the mode of investigation.

The Court held that it’s exercising powers’ under Section 482 of the Criminal Procedure Code would not definitely allow it to interfere with the investigation conducted by a police officer but, it would also not neglect the instances of harassment under the guise of an investigation by the police. It is needed to be kept under the criteria that the word “harassment” does have a very wide meaning and hence, the word “harassment” is different from the view of petitioners and from the view of the respondents that they thought it to be “harassment”.

Guidelines Issued by the Court

The court issued the following guidelines to circumvent such situations of the harassment which can take place while the investigation is under process:

1. When there is a Situation where any person is summoned by the reason of being named in the complaint or any witness to the incident complained of, The Duty of the police officer is to summon such person through a written summon under Section 160 of the Code of Criminal Procedure, Specifying a particular date and time for appearing before them for certain investigation.
2. There should be a Recording in the Daily Diary/ Station Diary/ General Diary of the Police station about the minutes of the investigation.
3. The Police Officer should not indulge in any kind of harassment done to the people while doing any investigation.
4. The Guidelines decided for the preliminary enquiry or registration of F.I.R. by the Hon’ble Supreme Court in Lalita Kumari v. Government of Uttar Pradesh and others shall be strictly followed;

There are the Guidelines Specified by the Court are being Stated as follows:

1. Registration of FIR is compulsory, stated in Section 154 of the CrPC., if the information reveals commission of a cognizable offence and no preliminary inquiry is permissible in such a situation;
2. If the information gathered does not reveal a cognizable offence but it shows a demand for an inquiry, a preliminary inquiry may be conducted only to ascertain whether a cognizable offence is disclosed or not;
3. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be delivered to the first informant immediately and not later than one week.
4. The Officer cannot omit or avoid his duty of registering about the offence committed if it is revealed as cognizable. An Action must be taken against culpable officers who do not register the FIR if the information received by him discloses a cognizable offence;
5. The purview of a preliminary inquiry is not to verify the truth or otherwise of the information received but only to confirm whether the information reported reveals any cognizable offence.
6. As the General Diary/ Station Diary under which all the information are being recorded can be used to state that whether the collection of information reveals that a certain offence is cognizable and whether the relevant information is leading the police to report an FIR, or leading to an inquiry.

Here in the case, The issue which arises for consideration was whether a police officer is bound to register a First Information Report (FIR) upon receiving any information relating to commision to a cognizable offence under Section 154 of the code of Criminal Procedure, 1973 or do the police officer has the power to conduct a preliminary investigation in order to test the accuracy of such information before registering the issue.

A Writ petition was filed under Article 32 of the Constitution, by one Lalita Kumari being a minor at that time filed the same through her father, Shri Bhola Kamat for issuance of a writ of Habeas Corpus for the directions to be taken against the respondents herein for the protection of his minor daughter who has been kidnapped. The objection was that on date 11/May/2008, a written report was submitted by the petitioner before the police officer-in-charge of the police station concerned who didn’t take any action about the same. Consequently, when the Superintendent of Police was moved, an FIR was registered. According to which the petitioner, consequently states that the measuring steps were not taken either for apprehending the accused or for the recovery of the minor girl child.

How do I handle Police harassment in India?

• Never indulge in a fight with a police officer, despite being the fact that you know that the police officer is wrong, Just be Calm, Polite and Humble all the time.
• Whenever there is a situation where a victim is needed to go to a Police Station to Complain Against a Police Officer, always take a lawyer with you.
• If there is a need to file a complaint against a Police Officer, over his misconduct, the victim should file it in the commissioner’s office in the city.
• Whenever, A police officer does not file FIR , the victim may send the substance of the information, in writing and by post to the Superintendent of Police concerned, who after getting satisfied that such information discloses the commission of a cognizable offences like Murder, Theft, Robbery, shall either investigate the case himself or he can direct an investigation to be made by any police officer subordinate to him.
• If the complaint filed to the Superintendent of Police still does not result in your favour, the victim can make a visit to the nearest Magistrate and can get his complaint registered. After which, the magistrate will order to the police to register the FIR.
• If a person being the victim of the misconduct because of the omission of a duty of a police personnel, which can be any violation of duty or wilful breach or neglect of any rule or regulation, shall be liable to be punished under section 29 of Indian Police Act,1861 with,
  • A penalty up to 3 months’ pay; or
  • Imprisonment up to 3 months; or
  • Both penalty and imprisonment.

• If a Police Personnel summons you to be present at the police station, always go but with a lawyer.

• A Victim can even make complaints to the Jurisdictional DCP, whenever, a police personnel was impolite to you.

• Never make an argument over a law to a police personnel unless you are a lawyer.

Police Complaint Authority (PCA)

The Police Complaint Authority was created in 2006, After the SC directed all States to begin a reformation in their Police, After the Judgement in the Prakash Case, The SC of India given the directives for structural reform of the police, by establishing Police Complaints Authorities at the state and District level, with immediate effect. The Decision was to be Primarily due to increment in huge number of Complaints against the police and the lack of Accountability, as well as the intention behind setting up police complaints authorities was to make sure that a local mechanism expert in handling a wide scope of complaints against the police, including the most serious, was readily available to the public at large.

Complaints which can be filed with the Police Complaints Authority

The Authority shall investigate into accusations of “Serious Misconduct” against the police personnel, as detailed on a complaint received from any of the following:

1. A victim or any person on his/her behalf;
2. The National or the State Human Rights Commission;
3. The police; or
4. Any other source

By the word “Serious Misconduct”, it states the coverage of the offences;

1. Death in police custody;
2. Grievous hurt, as defined in section 320 0f the IPC,1860;
3. Rape or attempt to commit rape;
4. Arrest or detention without due process of law;
5. Extortion;
6. land/house grabbing; or
7. Any incident involving serious abuse of the authority.

The Authority may also investigate before referring to the complaint as filed, only after getting satisfied with the truth of the complaint.

How to File a Complaint with the Police Complaint Authority

• A Complaint can be filed in PCA, on your own and in an authority existed in your nearby area/district.
• The complaint can be filed by any other person who has witnessed any misconduct committed by the police.

To file a Complaint

First of all, you should make a contact to PCA and ask for a prescribed Format in which a person can submit the complaint. A person can send a complaint via Post, Fax or submit it in person.

Note: The complaint is needed to be filed or lodged as quickly as possible after the incident.

The Complaint should be in writing and must include:

• Name
• Address
• Contact Details

You need to describe the incident like;

• What Happened;
• When it Happened;
• Against whom you are complaining about, describing the name, address of the police station where the police official exists;
• What was said or done;
• Whether someone else was present at that time, who witnessed the incident when it was taking place and if any contact details you have of them.
• Describe the Loss or Damage incurred by you.

You can also attach any relevant documents which can make your complaint stronger, Documents Like:

• Photographs showing of the Incident, or
• Photographs of the Injuries or Damage incurred;
• Medical Report or any Certificate issued by doctor subjecting the nature of the injuries if any inflicted upon;
• Evidence of Station Diary.

Prior to the Submission of the complaint, always keep a copy of the complaint and the documents, and in case you have submitted it in person always take a receipt with a date stamped on it as a record, and if you submit your complaint by registered post, always keep a receipt of the same safe. As all these receipts and the copies will work as a proof to acknowledge that you have sent the application being sent by the authority.

Conclusion

In the end, it states that no one is above the law, and all the citizens are equal under the eyes of the law.

And whenever people face such kind of Atrocities they should always keep in mind that there is a need to have a self-awareness of the laws as the remedies provided to them or whenever facing such kind of situations always consult a Lawyer,

Apart from all of this, there is also a provision under Article 226 of the Constitution of India, to file a writ petition in the High Court,

The Court here issued the guidelines, as needed to be recorded to create a level of transparency in their work while addressing the same whenever, there is state of conflict founded and by abiding through Chapter XII of the Code of Criminal Procedure and the Police Act which explicitly states that every activity related to investigation and as well as the other activities should have a written record in the police diary or general station diary.

By abiding through the Guidelines here the Police Officials not only create a level of transparency as well as it will create a faith on the Police Authorities as well as it will deplete the amount of time which is given by the court, to entertain such kind of cases which are just being created because of misconducts on the behalf of a Police Personnel, as well it will give opportunity to the court to address more cases which require much more important time of the court.

References

Cases

• Union of India v. Prakash P. Hinduja- AIR 2003 SC 2612
• H.N.Rishbud v. the State of Delhi- AIR 1955 SC 196
• Adri Dharan Das v. the State of W.B- 2005(2)ALD(Cri)67
• Niranjan Singh v. the State of U.P- AIR 1957 SC 142
• State of Bihar v. J.A.C.Saldanha- AIR 1980 SCR 326
• S.N.Sharma v. Bipen Kumar Tiwari- AIR 1970 SC 786
• Lalita Kumari v. Government of Uttar Pradesh- WRIT PETITION (CRIMINAL) NO. 68 of 2008
• Prakash Singh and Others v. Union of India- Writ Petition 310 of 1996

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In this article, Akanksha Mathur of National Law University, Delhi discusses how one can get a divorce even with limited financial resources. 

Divorce can be a very expensive affair. It requires money to be paid at every step and takes years to get resolved. Moreover, in Indian society, it is often the women in a marriage who are often left without economic support when all economic resources are withdrawn during divorce proceedings.

Since the very procedure of divorce is extremely expensive, it is crucial to understand it in order to have a knowledge of where the money is going and how to save on it.

What is Divorce?

A divorce is the legal termination of a marriage by a court or any other competent body. It is a dissolution of marriage through a legal action before the death of either of the spouses.

Laws Governing Divorce in India

The laws for divorce in India are invariably linked to religion.

• For Hindus, Buddhists, Sikhs and Jains, divorce is governed by the Hindu Marriage Act, 1955
• For Muslims, the Dissolution of Muslim Marriages Act, 1939 contains provision for divorce
• Parsis are divorced by invoking the Parsi Marriage and Divorce Act, 1936
• For Christians, the Indian Divorce Act, 1869 is followed
• All civil and inter-community marriages are governed by the Special Marriage Act, 1956.

Legal Grounds for Divorce

Divorces proceeding are of two kinds-

• Divorce through Mutual Consent

For a divorce through mutual consent, both the husband and wife must agree to a divorce. It is a much better alternative as it is relatively inexpensive and not as traumatic as a contested divorce. For a petition for divorce by mutual consent to be accepted, the couple have to-

• • Be separated for a period of a year or more before the divorce proceedings can begin under Section 13 B of Hindu Marriage Act, 1955 and Section 28 of the Special Marriage Act, 1954 and be separated for at least two years under Section 10A of Divorce Act, 1869
  • Prove that they are not able to live together
  • Reach a consensus on the matter of alimony or maintenance. There is no maximum or minimum figure prescribed by law.
  • Mutually agree on the custody of the child necessarily. Child custody can be shared, joint or exclusive.
  • Reach a decision on the division of property between them, including the movable and immovable property.
  • Decide how litigation expenses are to be divided, particularly if one spouse is financially dependent on the other.

A divorce by mutual consent takes around 6 to 18 months.

• Contested Divorce

  A contested divorce takes place when one of the spouses wants to get a divorce and the other doesn’t. It is an extremely expensive process involving hefty litigation and should be avoided if at all possible.

  There are specific grounds only under which a petition for divorce without mutual consent can be made. The general grounds for contested divorce are-

  • Cruelty, which may be physical or mental. According to the Hindu Marriage Act, 1955, one spouse’s mind must have a reasonable apprehension that the other spouse’s conduct is likely to be injurious or harmful.
  • Adultery, i.e. consensual sexual intercourse outside of marriage. A man who commits adultery can also be charged with a criminal offence, but not a woman. Divorce as a civil remedy is available to both spouses.
  • Desertion, which must be intended and have lasted for a continuous period of two years under the Hindu Marriage Act, 1955. Desertion as a ground is not available under the Indian Divorce Act, 1869 to Christians.
  • Conversion, under which divorce can be sought by a spouse if the other spouse converts to another religion.
  • Mental Disorder, to such an extent that the normal duties of married life cannot be performed.
  • Communicable Disease, which allows the granting of a divorce if a spouse suffers from a communicable disease such as HIV/AIDS, syphilis, gonorrhoea or a virulent and incurable form of leprosy.
  • Renunciation of the world, where a spouse renounces his/her married life and opts for sanyasa, allowing the aggrieved spouse to obtain a divorce.
  • Presumption of death, when a spouse has not been heard of as being alive for a period of at least seven years, by such individuals who would have heard about such spouse, if he or she were alive.

Contested divorce proceedings can go on for a period of 18 to 24 months.

Divorce Procedures in India

• Divorce through Mutual Consent

  A divorce through mutual consent may be filed under Section 13-B of the Hindu Marriage Act, 1955.

  • Filing of the Divorce Petition

    Firstly, a divorce petition is required to be filed by the two spouses at-

    • • • The last place of residence
        • The place of marriage
        • The place where the wife currently lives

  • Granting of the First Motion

    After filing the petition, the parties must record their statement in front of a judge in the district court. These must state their free consent to the divorce, their reasons for it and the terms agreed to between them, along with information on the period of separation. Once the statements have been heard, the judge grants the First Motion.

  • Cooling-Off Period

    What follows is a period of 6 to 18 months during which the parties are expected to attempt reconciliation before the filing of the second motion. The parties must wait for a minimum period of 6 months.

    If either spouse is shown to be uncooperative in reconciling, the judge may disallow mutually consented divorce.

    The 6-month cooling-off period may also be waived off if the court believes that there is no scope for the parties to live together.

  • Second MotionAt the end of the cooling-off period, if the parties remain unreconciled, they can file the Second Motion, and the judge will dissolve the marriage.

• Contested Divorce

  A contested divorce is provided for under Section 13 of the Hindu Marriage Act. A case for contested divorce must fall under one of the above-mentioned grounds to be accepted by the court.

  • Divorce Petition

    A divorce lawyer prepares a Divorce Petition on the basis of the facts and circumstances. This petition has to be accompanied by relevant documents such as documents for proof of marriage, proof of allegations and supporting documents such as affidavit signed in the presence of an authorized Oath Commissioner or Notary.

    The Divorce Petition is then filed in the appropriate court and is normally heard within 7-10 days of filing, subject to the workload of the court.

  • Hearing

    • Admission of the Petition in Court

      Before the divorce proceedings can begin, a hearing is conducted to decide whether the petition can be admitted by the court. The Judge studies the petition and hears the opening statements from the counsels regarding the allegations and the grounds on which divorce is sought.

      If the court is satisfied on a preliminary level that the case carries weight, a notice is served to the opposite side.

    • Reply

      On the next day of the hearing, the opposing side is to appear in person and file its reply, along with a reply to any application for custody or maintenance filed along with the Divorce Petition.

    •  Mediation

      The Court initially attempt to resolve the dispute by directing the case for mediation. The mediation process attempts to shorten litigation and resolve the underlying issues sooner. A detailed article on the mediation process can be found here. In case the mediation process fails, the divorce proceedings are continued.

    • Recording of Evidence

      This is the most crucial part of the proceedings and can make or break a case. It involves the framing of issues, recording of evidence, examination and cross-examination of the petitioner and supporting witnesses, followed by that of the respondent. It takes a lot of time and hearings.

    • Decision

      The recording of evidence is followed by the final closing arguments by both the parties. The Court then sets a date to pronounce its decision.

  •  Appeal

    The parties can also file an appeal against the Court’s Order within a period of three months if the find the Court’s decision unacceptable.

How Much Does It Cost to Get a Divorce?

• Divorce by Mutual Consent

The cost of filing a petition for divorce by mutual consent is Rs. 250/-, with the main cost being advocate fees. The advocate fees vary greatly, and a mutual consent divorce can end up costing from Rs. 5000 to Rs. 50,000 based on the complications of the case and the lawyer’s experience.

A comprehensive list of the various factors affecting a lawyer’s fees can be found here.

• Contested Divorce

While the fee for filing a divorce petition is Rs. 250/-, the main cost for a contested divorce is the fee of the advocate. Since contested divorce often involves quite complicated issues, it takes a long time, usually a number of years to get resolved. An experienced lawyer can charge anywhere between Rs. 3000-Rs. 7000 for a single appearance.  

What to Do If You Do Not Have Money to Contest a Divorce Case?

In the Indian context, women are often left with little to no economic support on the withdrawal of household finances when divorce proceedings are initiated. In such cases, the first crucial step that must be taken is to start setting aside money whenever the decision to obtain a divorce is arrived at.

The following options can allow a person to obtain a divorce with little to no money.

Legal Aid

The Indian Constitution has provides for a right to legal aid, under which citizens are entitled to free legal aid by the government. Free legal aid can be sought from the National Legal Services Authority (NALSA), various State Legal Services Authorities or District Legal Services Authorities, which were set up under the Legal Services Authorities Act, 1987.

Under Section 12 of the Legal Services Authorities Act, 1987, the following people are eligible for legal aid-

• member of Scheduled Caste or Scheduled Tribe;
• a victim of trafficking in human beings or beggar as referred to in Article 23 of the Constitution;
• a woman or a child;
• a person with disability as defined in Section 2(i) of the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995;
• a person under circumstances of underserved want such as being a victim of a mass disaster, ethnic, violence, caste atrocity, flood, drought, earthquake or industrial disaster;
• an industrial workman;
• a person in custody, including custody in a protective home (Section 2(g) of the Immoral Traffic (Prevention) Act, 1956), or in a juvenile home (Section 2 (j) of the Juvenile Justice Act, 1986), or in a psychiatric hospital or psychiatric nursing home (Section 2(g) of the Mental Health Act, 1987);
• a person who receives an annual income less than rupees nine thousand or such other higher amount as may be prescribed by the State Government, if the case is before a court other than the Supreme Court, and less than rupees twelve thousand or such other higher amount as may be prescribed by the Central Government, if the case is before the Supreme Court.

• How To Apply for Legal Aid

  • An application can be made by any person in need of free legal services to the concerned authority or committee by sending in a written form or filling the forms prepared by the authorities, briefly stating the reason for seeking legal aid. The application is available free of charge.
  • It can even be applied for orally to an officer or a paralegal volunteer of the concerned legal authority.
  • A person can even apply for legal aid to any institution by filling up the online Legal Aid Application form provided by NALSA and uploading the necessary documents. The application is forwarded by NALSA to the concerned authority.
  • The online application form can be accessed from here. In case a form has already been filed, you can check its status here.
  • The action taken on an application varies from providing counselling or legal advice to the parties, to providing a lawyer for representation in a court of law.

Indigent Suit

If a person does not have sufficient means other than property exempted from attachment in the execution of a degree to enable him to pay the prescribed fees, he can fill an application along with the suit for permission to file the suit as an indigent person. It is also known as a pauper application, and exempts payment of even the court fee. The state government can also provide free legal services to an indigent person.

Mediation in Divorce Proceedings

Another wise option to save on expenses during divorce proceedings is to opt for mediation. Mediation is an alternative method of resolving disputes which allows for the resolution of the underlying issues behind divorce in a manner that takes less time, less money and gives the parties more control over their divorce proceedings with the assistance of a neutral third party.

Application for Maintenance Pendente Lite/Alimony Pendente Lite

If an application for maintenance is filed in Court during the divorce proceedings, the Court would first decide on the application in order to ensure the financial security of the spouse while the proceedings continue.

Both the Hindu Marriage Act and the Indian Divorce Act provide for maintenance/alimony pendente lite. Under Section 24 of the HMA and Section 36 of the IDA, a spouse can apply for maintenance during the pendency of the divorce proceedings. On the application of the husband/wife, the court can order the respondent to pay the petitioner for the proceedings, along with a monthly sum that the court deems reasonable. This application is disposed of within 60 days of serving notice and ensures income to the parties during the divorce proceedings.

Is a lawyer needed for a divorce?

Divorce proceedings in India are carried out in accordance with the Family Courts Act, 1984, the Code of Civil Procedure or the Rules framed by the relevant High Court. None of these requires or mandates a lawyer to be engaged in the divorce proceedings. Since the cost of filing petitions for divorce in the courts is generally less, a good option for someone with limited means is to seek a divorce through mutual consent without engaging a lawyer.

However, a lawyer may also prove to be beneficial if certain complications arise during the divorce proceedings.

Moreover, since a divorce without mutual consent is a long drawn-out legal battle requiring allegations to be proved through evidence and documents, it is highly advisable to engage a competent lawyer.

It is advisable for a person to fight their own divorce case?

It is an undisputed fact that a divorce is both, mentally and emotionally taxing. In such a situation, the only thing one wants to do is have someone else handle the brunt of it.

However, there is not any aspect of a divorce that a person cannot handle on their own. When going for a divorce by mutual consent, parties can completely avoid the legal system by going for a Marital Settlement Agreement (MSA), which even goes on to be attached to the judgement of the court. Parties can negotiate an MSA on their own. It also gives them control over the terms and conditions of their divorce.

It, however, is advisable to refer to a lawyer for advice, without retaining one.

A guide for going through the divorce proceedings without retaining a lawyer can be found here.

References

1. https://vakilsearch.com/advice/divorce-in-india/
2. https://www.lawfarm.in/question/is-it-necessary-to-appoint-a-lawyer-in-a-divorce-proceeding
3. https://vakilsearch.com/advice/divorce-by-mutual-consent/
4. http://prashantghai.com/procedure-contested-divorce-hindu-marriage-india/

The post What to do if you do not have money to contest a divorce case? appeared first on iPleaders.

This article is written by Ramanuj Mukherjee CEO at iPleaders.

Why most people never succeed – they got the wrong definition of success

You need to reconsider how you define success for yourself. Very often, we get it wrong, or we forget what success really means. It’s a tricky one.

Success usually comes in disguises every day. Then one day, it ditches the disguise and shines for everyone to see.

What are its disguises? Hard work. Investment. Difficult decisions. A half chance. A failure followed by more work. Uncertainty.

I know, that sounds like trouble, not like success. Success is standing on the podium, driving an exclusive car, chilling on a 5 star private beach, money in your pocket. Wrong. Success is not any of those things. These are some of the benefits of consistent success. Sure, these signs show up after some time if you want them in your life. However, if you chase these mirages of success you will probably never make it. Most people chase those things and miserably fail. It’s a trap. It’s a damn good trap though, and most of the people you know will remain caught in that trap.

In the new year, let’s define what success really is for us. For me and you.

Let’s say you want to be a world champion. Is success standing on the podium or a victory lap? Is success million dollar endorsement deals? Sure these are some rewards of success. However, real success is getting up on time, hitting the gym, going for a run, sticking to a difficult diet, push your boundaries even when your body hurts and your mind craves to just give up.

Your mind says “I had a hard day, now I want a beer and watch some television”. But you don’t do it, because that’s not how champions are made. You hit the bed early, after a disciplined meal. That is success.

Every moment you don’t give in to your nature but strive for greatness, every step you take in that direction, is success. Every time you give in to your base nature, that wants you to remain comfortable, not take risks, to give up and chill, and you can’t shake yourself out of it immediately – that’s failure.

And sure, we will fail a lot. I go to bed late, that is where my failure starts. Then I end up waking up late, miss my morning meditation, miss going for a run, all those are failures. But then I seize the day, sit at my desk and start working. I tell anyone who interrupts me that I am not available. That’s success. If I manage to follow the amazing routine I have made for myself, that is success. Every time I get distracted from my work but catch myself at it, it’s success.

If I can do what makes sense again and again, over time, the money, the recognition, and everything else I want will follow. Success is mastering ourselves. When we succeed within, rewards are just for the picking.

And that is why most people never get to enjoy true success. They want the glitzy, rich, comfort of instant success. When they are presented with opportunities that require them to work and struggle for months and years they do not opt for it.

If you know someone like that, just ask them. When is a champion born? Is a champion created on the podium, with cameras clicking away, with a medal around their neck or a cup in their hands? Or is a champion born when someone decides to wake up at the crack of dawn and sweat it out on the track, on the court, at the field or the gym? Is a champion born when a bottle of champagne is opened and sprayed or when someone overcomes the desire to drink some nice wine or even chai and opt for water instead? Is the champion born when they manage to overcome the temptation and inborn human laziness with sheer willpower and desire to succeed or when they buy a big beach house in a posh locality?

I understand you can’t wait to get to the fun part of success, the rewards, but first be ready to put in what the vast majority of people are not ready to put in. Day in and day out, you need to score success and victories over yourself. You have to do the right thing that is hard to do rather than the easy thing that is so tempting and so easy.

Revolutions are silent. A lot happens under the water, in the cover of the dark, when nobody notices – and then one day it comes out, and marches to inexorable victory.

May 2018 be your year for silent revolution and relentless success. What actions are you going to take? Will you wake up at the crack of dawn? What temptations do you need to conquer? What battles will you fight within yourself and win?

If you want to be a champion lawyer, here are some successes you must pursue every day:

1. Reading and learning: There is no amazing lawyer without a great reading habit. Knowledge is the biggest weapon in the repertoire of a lawyer. You must keep acquiring new knowledge and update yourself constantly. Of course, what you are reading matters a lot. There is a difference between reading a newspaper, a legal textbook and course material. You must also make time everyday to learn from other good lawyers around you. Here is a list of 10 amazing business books that every lawyer should read. Here is a list of 30 books recommended by ABA to American lawyers. I will solemnly recommend them to Indian lawyers too.
2. Share and demonstrate your expertise: you succeed as a lawyer when other people discover your expertise. It can happen in the courtroom as other lawyers and judges are impressed by your work, or as you share a video on youtube explaining a complex matter in a simple way, or write a book on an important legal area that are read used by many other lawyers, or by contributing articles to platforms like this. Whatever you do, do it frequently and regularly. Here is Arvind Datar on importance of writing and legal scholarship.
3. Acquire new skills: Knowledge and skills are very different. Knowledge is read, heard, shared, but skills are learnt and passed on. A lawyer has to acquire new skills as career grows. It can be how to assist your senior, how to draft contract, how to research, how to frame arguments in the beginning, but as you grow in age, practice and stature you must learn new skills like financial management, hiring and performance management of the lawyers and other staff that work under you, how to build new practice areas, how to expand into new cities, how to use the internet to grow your practice – anything that may take you forward. What skill will you focus on in 2018?

Please share your thoughts in reply. I promise to read each of the responses.

The post What is your definition of success? appeared first on iPleaders.

In this article, Mansi Agnihotri discusses the current status of triple talaq and also resolves the doubts and frequently asked questions on the issue.

Triple talaq became a major concern in the recent year. The recent judgment though concreted that triple talaq is unconstitutional but raised a number of doubts in the minds of people. Before clearing the ambiguity lets understand talaq as per Shariat act.

Understanding the concept of talaq

Talaq is classified on the basis of pronouncement into two i.e

a) Talaq-ul-Sunnat (revocable) and;

b) Talaq-ul-Biddat (irrevocable) which is further subclassified in talaq Ahsan (most proper) and talaq Hasan (proper).

So as per Shariat act, the triple talaq doesn’t exist in the form as the usage was modified by the king Omayad in the second century as per the convenience. Thereafter the Muslim males started misusing it to prove their dominance over women.

It is the talaq-ul-Biddat which is in the canvass and it is regarded as the disapproved form of talaq. This form of talaq is in contrast to the ideology of the Prophet. Here the husbands could break the sacred relation merely by pronouncing talaq three times and there is no possibility of reconciliation. Prophet always opposed irrevocable talaq as he believed talaq is an evil and people must pursue the revocable one as there is an option of gaining back the pious relationship. Also, it is a unilateral divorce and is against the gender jurisprudence.

However, this modified version left women in the cage of insecurity as men started pronouncing talaq even on the trivial matters. This led to the campaign by the Muslim women to ban ‘triple talaq’ and ‘nikah Halala’ by the ‘Bhartiya Mahila Muslim Andolan’. But ‘All India Muslim Personal Board’ a Non-government organization which aims to educate Muslim retorted and claimed that this is a question of religion and it is unIslamic to distort anything which is enumerated in the Shariat. As per them, such a thing will injure Islam.

This dispute reached the platform of the court and thereafter the five judges bench examined whether the ‘islamic divorce practice’ is fundamental to religion or not and passed the judgment and held triple talaq as unconstitutional.

Shia law

The Muslim religion got bifurcated into two major communities after the death of the prophet. This also led to the differentiation in various customs. It is material to mention that Shia laws don’t recognize talaq-ul-Biddat or the instantaneous talaq. Hence this judgment establishes no effect on Shia community. This talaq-ul-Biddat is followed only in the Sunni community of Hanafi school and Hanafi Sunnis comprise around 90% of the Muslim population in India.

Judgement is not Against Islamic Religion

This judgment is not against any institution, organization nor it is against the religion of Islam. Rather, the true meaning and spirit of the Quran have been outlined on the anvil of individualism, the rule of law and human rights enunciated in the constitution. It is a judgment in favor of justice based on women rights on humans right that has been denied to Muslim women for centuries despite Quranic provisions relating to gender and spousal equality in wedlock and beyond. The Quran does not sanction triple talaq in one go. According to Islamic scripture, the word talaq is spoken thrice over a period of three months. In such a manner, it demands time and patience in executing a divorce in the hope of making the union possible knowing that the couple is bound to have differences. This Quranic procedure has been laid down with a rationale to establish that marital coverture cannot be terminated in a state of sudden provocation, rage or whims.

Current status of Triple Talaq

Is Triple talaq still legally effective?

• The supreme court in the judgment paralyzed triple talaq by declaring it as unconstitutional. This means that no more these three words will be able to invalidate the marriage. Through this, an armament has been provided to the women to guard themselves against this barbaric law. The supreme court focuses on to liberate women from the coercive chains set by the males. But since the judgment is full of jargons and legal sections it is way beyond the understanding of the layman. since there is an extreme illiteracy among the Muslim women Muslim (around 42.7% according to the census of India 2011), we can imagine that almost half of the women are illiterate therefore women who have been the victim of it are in doubt as what should they do. Also because of the illiteracy, many of them are still unaware of the changed scenario.

Status before the judgment

• It is significant to state that the sketch before the passing of the judgment was very gloomy, the husbands were very inhuman against their wifes. In many cases husbands pronounced triple talaq for flimsy reasons and later regretted. Upon which they asked the wifes to go through ‘Nikah Halala’ so that they could remarry, because of illiteracy and social bounds women’s had no recourse available except to go through it. The custom of “nikah Halala” was so harsh that it ripped off the soul of the women. In many reported cases, the husband at first forced the wife to go through ‘nikah Halala’ and later refused to remarry. This left women in shock, but they were amputated by the custom to take any step.

Is the custom of ‘Nikah Halala’ still prevalent?

• It is crucial to enumerate that because the supreme court has solidified in his verdict that the talaq-ul-Biddat or the instantaneous form of talaq is invalid,it means that it cannot pose any effect over the marriage in any way, therefore the wifes cannot be forced to go through the process of nikah Halala, even if the husband pronounces triple talaq or talaq-ul-Biddat.

Has the practice discontinued?

• It would be impractical to state that after the release of the judgment the practice has ceased completely. As per the minister of law, Mr. Ravi Shankar Prasad, there has been around approximately 66 reported cases from various parts of the country after the release of the judgment on the 22nd of August 2017. It can be ascertained that there is a possibility of many cases which might have gone unreported. So it can be concluded that many might be practicing it in the dark. But after the release of the judgment, one thing is for sure that the women have got encouraged and have gained the strength of standing against this barbaric and inhuman act of the men.
• The practice of triple talaq is heavily assimilated in the Muslim culture, and it is difficult to immediately wipe it. As the abovementioned para states that statistics of the reported cases after the release of the judgment. So there is a need of educating the Muslim women in this regard so that they can speak against it. It is suggestive that the victim must build the courage and must either contact the police or some women-oriented NGO, but she must not suffer it silently.

What about the validity of ‘other’ form of talaq such as talaq-e-Sunnat, khula, etc?

• It is pertinent to mention that it is ONLY ‘talaq-ul-Biddat’ which has been declared as unconstitutional and not any other form talaq. As there are numerous forms of talaq which the Shariat law has defined, and no other except for talaq-ul-Biddat or instantaneous talaq has got nullified by the court. It means that the rest of the practices such as khula, talaq-e-Sunnat is still constitutional and therefore if the husband or the wife practices any other form of talaq which the Shariat enumerates then it shall affect the marriage.

What about the other barbarous practices such as ‘nikah Halala’?

• Although it is a strong step taken by the court to take away the force of law from the practice of talaq-ul-Biddat, the holistic approach is still lacking as a lot of problems still needs the judicial address. Customs such as nikah Halala, have not yet received any address from the court of law. It is needed that other practices such as polygamy, minors marriage or marriage with huge age gap must also be looked up by the court.

Does DAR-UL-QAZA stand with this verdict?

• DAR-UL-QAZA refers to the Islamic family courts. It is a forum of mediation. If the parties agree then the forum can act for arbitration as referred in the Shamim ara and the recent judgment. After the release of the landmark judgment, the DAR-UL-QAZA is not entitled to validate the instantaneous or unilateral talaq. Although the Islamic court is empowered to facilitate the amicable settlement of khula. However, the recent judgment falls short of devising a mechanism which the other Muslim countries have implemented for declaring the divorce. Therefore it is suggestive that the dar-ul-Qaza must be empowered to allow divorces of irrevocable nature.
• The supreme court in Shamim Ara case (2002), the talaq must be for reasonable cause and attempts of reconciliation must be taken by the families of the husband and wife. And because the instant talaq doesn’t offer the conciliation, it shall not be appropriate.

Is pronouncing triple talaq an offence?

• It is fundamental to mention that the judiciary has only the role of reviewing the law but the law is primarily made by the legislature. Therefore until unless the government doesn’t support and brings amendments in the personal law, nothing much will change. It is required that the government must frame the laws to eliminate the practice and it seems that the government is quite interested in eradicating the cruel practice as the Lok Sabha on the 28th of December is all set to propose a bill on triple talaq based on the supreme court judgment. The bill focuses to make the husband liable for the criminal offence if he utters talaq three times at one time with the intention to invalidate the marriage. Law minister has confirmed that Muslim women (protection of rights of marriage) bill, is listed for introduction on the 28th December. The bill has been prepared by inter-ministerial headed by Rajnath Singh to make triple talaq or talaq-ul-Biddat invalid instantly in any form whether written, spoken or electronic communicated shall be punishable with the imprisoned up to three years.
• It further enunciates that the husband could also be fined and quantum of fine would be decided by the magistrate hearing the case. The proposed law not just offers to the victim to approach the magistrate against the husband but also to seek “subsistence allowance” for herself and minor children.

NOTE – Subsistence allowance means the women may seek the action for the maintenance of herself and her ‘minor children’ from the husband. The women may also seek the custody of the minor children from the magistrate. The magistrate shall take a final call and his decision shall be final.

Is the bill comprehensive?

• Though the government has exhibited the intolerant approach towards this taboo by making it a NON-BAILABLE and COGNIZABLE OFFENCE and attaching a penalty and imprisonment up to three years. But it fails to submit alternative methods to it. The bill must provide the procedure of divorce which is not cruel to either party. They must adopt talaq-e-Ahsan which is regarded as the most proper method of divorce and was also professed by the Prophet. Further, it must also involve reconciliation and mediation between husband and wife lasting for minimum 90 days.
• Bhartiya Muslim Mahila associations the forefront association to battle against triple talaq has developed a method of divorce based on Quran. The proposal has been prepared and has been sent to the government. Now the rest lies with the parliament to accept it or reject it, whatever they opt it must be hard enough to eliminate it from Indian society.

Conclusion

• The government has shown a stern and an uncompromising attitude towards felonious practice involving extreme harassment onto the women. However, it is required that the government must bring into limelight the policies curbing this menace as soon as possible. Apart from this looking at the illiteracy level and the dominance over the women, it is required that the government must allocate the responsibility over to some organisations which must work to educate the women about various laws that have been enacted to protect their rights and to encourage them to speak against the undue behaviour of the husbands.
• The government must try to incorporate various other practices which harm the respect of the women. Practices such as ‘nikah Halala’ one of the most outrageous practices involving the illicit desire of the religious leaders must be amputated as soon as possible. Other practices such as polygamy, minors marriage, mental and physical harassment of the wife, forced sex by the husband, marriage with huge age gap must be curbed.

This was all about the Current status of Triple Talaq. Comment below and let us know your views on the current status of Triple Talaq

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In this article, Akanksha Mathur of National Law University, Delhi talks about the permissions, licenses, registrations and clearances necessary to establish a tea garden.

The Indian tea industry is one is the oldest and largest in the world, accounting for 31% of global production. It is extremely labour intensive and is the largest employer in the country after the Indian Railways. The tea industry has always enjoyed the government’s support due to its status as a mass employer. Thus, the government has often provided international support to the industry by lobbying extensively with the WTO and passed resolutions to provide domestic support to it.

Anyone looking to set up a tea garden, then, would have to comply with a number of laws and regulations.

Regulatory Authorities

The tea industry, under an Act of the Parliament, is under the control of the Union government. A number of authorities have been set up to regulate the tea industry in India.

• Tea Board of India

The Tea Board of India is a regulatory agency established by the Government of India through Section 4 of the Tea Act, 1953. It aims to promote the domestic trade, export, cultivation and processing of tea in India. Its genesis dates to colonial India, when the Indian Tea Cess Bill was  passed in 1903.

The Tea Board is separated into a number of standing committees, such as the Executive Committee, the Development Committee, the Labour Welfare Committee, Export Promotion Committee and the Licensing Committee.

The Tea Board of India is responsible for-

• • Issuing a wide number of licenses to tea manufacturers and sellers
  • Assigning certification numbers to exports by tea merchants
  • Endorsement of production and productivity of tea
  • Financial support to research organisations
  • Monitoring advances impacting health, such as those in packaging
  • Coordinating between research institutions, tea traders and government bodies in order to ensure support to global tea trade.

• Trustea

Trustea is an initiative led by the Tea Board of India and jointly funded by The Sustainable Trade Initiative (IDH), Hindustan Unilever Limited (HUL) and Tata Global Beverages Limited (TGBL).

It aims to develop and implement a sustainability code for the Indian domestic tea market and transform the Indian tea industry is based on industry realities and globally accepted sustainability principles.

• FSSAI

The Food Safety and Standards Authority of India (FSSAI) is the apex statutory authority created for laying down scientific standards for the manufacture, processing, storage, importing and distribution of different food products in the country. Established under the Food Safety and Standards Act, 2006, it is tasked with ensuring the availability of safe and wholesome products for consumers.

Regulations Governing Tea Gardens

Tea Act, 1953

The Tea Act, 1953 was enacted to provide for the control of the tea industry by the Union Government in pursuance of certain international agreements.

It established control over the cultivation and export of tea from India. The primary regulatory authority for tea in the country, the Tea Board of India, was set up under this Act, and a customs duty was levied on the tea exported from India.

Regulatory Provisions

A number of regulatory provisions have also been passed by the government under the Tea Act.

• The Tea (Marketing) Control Order, 2003

  • The Tea (Marketing) Control Order of 2003 was the successor to the Tea (Marketing) Control Order, 1984. According to the TMCO 1984,-
    • No person can carry out manufacturing activities except under valid registration from the Tea Board for a unit controlled and operated by him.
    • Shareholders such as manufacturers, brokers and auction organisers were required to obtain a license or registration before participating in or conducting auctions.
  • The TMCO 1984, however, did not provide for registration of buyers, quality adherence or sharing of sale proceeds between manufacturers and tea leaf suppliers. Thus, the TMCO 2003 was passed, containing the following features-
    • Registration of buyers and manufacturers of bulk tea with earlier provisions for registration of manufacturers of loose tea licensing of brokers and auction organizers.
    • Cancellation /suspension of registration of buyers with earlier provision for cancellation of registration of manufacturers;
    • Adherence to quality standards of tea as laid down under PFA Act 1954 by manufacturers /buyers and brokers.
    • Fixation of price sharing formula for sharing of sale proceeds between the manufacturers and tea leaves suppliers based on the sale proceeds of made tea.
    • Provisions for the sale of made tea outside public auction by registered manufacturers to registered buyers (including consignee or commission agent) except sale through own retail outlet or brokers directly to consumers.
    • Provision for drawing of a sample from suspected tea to ensure its conformity to the PFA standard.
  • The Tea Board was allowed to issue directions to increase the efficiency of the public auction system.
  • This Order allows for the registration of-
    • Tea Manufacturers Unit
    • Buyers
    • Auction Organizer/Broker
  • An amendment was also made to-
    • To register manufacturer and buyer within 90 days from 1.1.2003 instead of 60 days stipulated earlier.
    • To reduce the licence fee /registration fee by 50%.
    • To change the periodicity for the submission of return by buyers from monthly to quarterly.

• The Tea (Distribution & Export) Control Order, 2005

The Tea (Distribution & Export) Control Order, 2005 was issued under the Tea Act, 1953. The Order allows for-

• • Issuance of Exporter and Distributor Licenses
  • Issuance of Certificate of Origin for teas designated as Geographical Indication
  • Issuance of Non-Preferential Certificate of Origin
  • Empanelment of Inspection Agencies
  • Provision for the suspension or cancellation of these licenses
  • Other regulatory provisions to be complied with by these licensees.

• The Tea Waste (Control) Order, 1959

  • The Tea Waste (Control) Order, 1959 was issued in order to check the misuse of tea waste and regulate its disposal for gainful purposes. Tea Waste Licenses are issued after investigation and scrutiny to bonafide buyers and sellers of tea waste.
  • No person can purchase, hold, sell or offer for sale any tea waste except in accordance with the terms of the license granted by the Tea Board under this Order.

• The Tea Warehouse (Licensing) Order, 1989

The Tea Warehouse (Licensing) Order, 1989 allows for the issuance of Tea Warehouse Licenses by the Licensing Branch.

Licenses Required

The Licensing Branch of the Tea Board of India is responsible for implementing various statutory and regulatory orders issued by the government. It also guides the tea industry with respect to different fiscal policies and legislation and issues several licenses.

• Business License

No distributor or exported can conduct trade in tea without a business license granted under the Tea (Distribution and Export) Control Order, 2005.

• • Application

The exporter or distributor has to apply to the Licensing Authority through Form A.

• • • A business license is valid for a period of three years from the date of its issue unless it is cancelled or suspended.
    • It may also be renewed for another period of three years.
    • A fee of Rs. 1000 is required to be paid for the issue of a business license.

• • Permanent License

A licensee wishing to convert their license into a permanent business license has to apply to the Licensing Authority through Form B three months before the expiry of their license.

A business license can be converted into a permanent business license on receipt of the application if-

• • • the business licensee is an exporter;
    • such business licensee has not violated any provisions of the Tea Act, 1953 or Tea Rules, 1954 or Tea Board Bye-Laws, 1955 or any Order made under the Act; and
    • the volume of export of tea by the exporter holding the valid business license during the last three years was not less than 1,00,000 kgs annually.

• • Activities a business license is not required for

A business license is not required for tea exported-

• • • By or on behalf of the Central Government or the Tea Board;
    • By means of a postal parcel;
    • As personal effects of passengers;
    • For any non-commercial purposes;
    • As samples to foreign buyers;

• Exporter’s License

Any person who wishes to trade in tea as an exporter requires an Exporter’s License under the provisions of Tea (Distribution & Export) Control Order, 1957. The licensing fee to be paid for the issue of an Exporter’s License is Rs. 100/-. Under certain amendments made to the Order in 1993, 1995 and subsequently with effect from 2000-

• • An Exporter’s License, unless suspended or cancelled, is valid for 3 years from the date of issue.
  • Every licensee who is an exporter who wishes to convert his license to a Permanent License has to apply to the Licensing Authority through Form CA three months before the expiry of the license.

The License can be converted to a Permanent License if-

• • The licensee is a regular exporter and exports sizeable volume of tea in each year, and
  • Such Licensee has not violated any of the provisions of the Tea Act or Tea Rules, 1954 or any of the Tea (Distribution & Export) Control Order, 1957.

The Permanent License is granted under Form CB with no payment of a license fee.

• Distribution License

Under the Tea (Distribution & Export) Control Order 2005, no distributor can distribute imported tea except under a valid Distributor’s License. The fee for its issuance is Rs. 2500/-.

• Certificate of Origin

The Tea Board also grants Certificates of Origin for tea produced in specific areas of Darjeeling, Assam, the Nilgiris that has been designated as Geographical Indication and is proposed to be exported or distributed.

The Certificate of Origin is granted to those who wish to obtain one under clause 5A(2) of the Tea (Distribution & Export) Control Order, 1957.

The fees required for a Certificate of Origin is Rs. 100.

• Tea Waste License

  • The granting and renewal of a Tea Waste license is made under the provisions of the Tea Waste (Control) Order, 1959. No person can purchase, hold, sell or offer for sale any tea waste except in accordance with the terms of the license granted.
  • The License is granted in order to regulate the disposal of tea waste for gainful purposes. It is issued after investigation and scrutiny to bonafide buyers and sellers.
  • It remains valid upto 31st December of the year of issue unless cancelled or suspended and can be renewed each year.
  • The fee for granting of a new license is Rs. 100/- and Rs. 50/- for renewal.

• Registration-Cum-Membership Certificate (RCMC)

  • Every registered exporter of tea is required to be registered with the Tea Board to obtain a Registration-cum-Membership Certificate under the Export-Import Policy.
  • These were earlier issued free of charge. Now, however, a fee of Rs. 5000/- is levied on the issuance or renewal of the RCMC by the Tea Board.

• Tea Warehouse License

The Tea Warehouse License is issued under the Tea Warehouse (Licensing) Order 1989 by the Licensing Branch.

• • An application can be made to the Licensing Authority through Form A with the payment of a fee of Rs. 1000/-.
  • A license issued is valid for a period of three years from the date of issue.
  • It may also be renewed for a period of one year on the payment of a fee of Rs. 200/-.

There are certain specifications that the warehouse must conform to for the issue of this license-

• • Shall be fit for tea storage;
  • The walls and the roof may preferably be made of bricks and well plastered, or be made of tins or asbestos, but in any case, the walls and roof must be damp-proof and leak-proof;
  • The floor shall be of pucca construction, properly-cemented and damp-proof ;
  • It shall be properly ventilated, but at the same time protected against pests, rodents, birds and insects ;
  • There shall be adequate lighting arrangements and electrical fittings should be maintained in good condition ;
  • There shall be adequate number of gates of appropriate size for easy ingress and egress of tea chests ;
  • The entry/exit gates shall have leak-proof covered sheds to protect against rain damage at the time of loading/unloading of tea chests ;
  • The doors and windows shall be properly secured for the safety of the stored goods ;
  • where the warehouse will store teas other than owned by the licensee, there shall be adequate space for parking /manoeuvring of the vehicles carrying teas. The approach road shall be properly maintained and shall have adequate number of fire-fighting equipments ;
  • The warehouse shall store only tea and other materials connected with the storage, blending and packaging of tea. Anything which may adversely affect the quality of tea shall not be kept in the warehouse ;
  • The hygienic condition of the surrounding area adjoining the warehouse shall be properly maintained;
  • No new construction shall be undertaken in an area prone to waterlogging. The existing warehouses shall take proper precaution against entry of water due to sudden heavy rainfall ;
  • The workers engaged in the manual blending of tea shall wear clean dresses and shall not have any contagious disease.
  • The warehouse must have an adequate number of supervisory, clerical staff and workers depending upon the nature of the business carried out therein and commensurate with the volume of business handled.
  • The Warehouse storing teas not belonging to the licensee shall have the following-
    • Adequate number of watch-and-ward staff ;
    • Adequate number of weighing scales proportionate to the volume of business which the warehouse is capable of handling. Such scales in operation shall be maintained properly to ensure correct reading of weights ;
    • Shall use dumping pads made out of appropriate materials to avoid damage of tea chests while dropping on the floor ;
    • Shall not stock too high which may cause damage to the chests and leave enough space between two rows of stacking for smooth movement of workers and easy identification of chest markings ;
    • There shall be adequate space for office, for receiving, delivery and sorting of teas, for the brokers to draw samples and for blending/packaging of tea, wherever such operations are applicable.

Registration

• Ownership

The ownership or any change in ownership of a tea factory has to be registered with the Tea Board of India under the TMCO 2003.

• Auction Organiser/Broker

  • Auction Organizer

The TMCO 2003 also stipulates the no organizer or tea auction can organize, hold or conduct a public tea auction except under a licence obtained from Tea Board. Such licence is renewed every year and this valid up to 31st December each year.

The fee for issuance of a new license is Rs. 2500/- and Rs. 500/- for renewal of license.

• • Broker

No person can broker any public tea auction except under a licence obtained from the Tea Board. Such licence is also valid up to 31st December of each year and is renewable each year.

The fee for issuance of a new license is Rs. 2500/- and Rs. 500/- for renewal of license.

• Tea Manufacturing Unit

The TMCO 2003 stipulates that no manufacturing activities can be carried without registration or a license from the Tea Board.

A Tea Manufacturing Unit is registered with the submission of an application, along with the payment of a fee of Rs. 2500/-.

• Manufacturers of Tea with Added Flavour

  • The sale of flavoured tea had earlier been banned in the domestic market and was only allowed following the Supreme Court’s decision in Nilgiris Tea Emporium vs. Union of India and Ors.
  • Consequently, the PFA Rules 1955 were amended by the government to allow the sale of flavoured tea by registered manufacturers in a packed condition with a declaration of the level.
  • The Licensing Branch of the Tea Board is responsible for granting this license.

• Buyers

Under TCMO 2003, no buyer with a place of business in tea in India can buy tea from any public tea Auction licensed by the Tea Board or directly from the manufacturer of tea except under a valid registration obtained from Tea Board. The registration Certificate once granted by the Tea Board remains valid unless cancelled.

• Plantation Labour Act, 1951

Within 60 days of commencement, registration is also required for a tea plantation under the Plantation Labour Act, 1951 to the Labour Bureau under the State government.

Permits Required

• Permission for Planting Tea

A permission for the planting of tea is issued to newcomers by the Licensing Branch, along with the recording of any change in ownership of the tea estate.

• Permit for Extension and Replacement Planting

Permits for Extension and Replacement planting of te are issued by the Licensing Branch to existing tea estates under the Tea Act, 1953 and the Tea Rules.

Environmental Clearances

Under the categorisation of industries issued by the Environment Ministry-

• Instant tea has been categorised as an ‘Orange Industry’.
• Tea processing has been categorised as a ‘Green Industry’.
• Tea blending and packaging have been categorised as a ‘White Industry’.

While White Industries are not required to seek any environmental clearances, Orange and Green Industries are required to get cleared by the Environment Ministry.

Thus, any tea processing unit and manufacturer of instant tea will further have to seek environmental clearances.

FSSAI Guidelines

The Food Safety and Standards Authority of India (FSSAI) has issued exhaustive guidelines about the sale of flavoured and Kangra tea, the labelling for tea products, the composition of tea and the testing and approval of products.

• The product shall have the characteristic flavour free from any off-odour, mustiness, and taint. It must not include living insects, dead insects, molds, insect fragments and rodent contamination that is visible to the naked eye. The product shall be free from added colouring, harmful substances, and extraneous matter.
• The tea may contain natural flavours and natural flavouring substances, which are flavour preparations and acceptable for human consumption only if it is obtained by physical processes from the plant origin, either in their natural state or after processing for human consumption in packaged tea only.
• Tea used in the manufacturing of the flavoured tea shall conform to the standards of tea. Also, the tea containing added flavour needs to bear a proper label declaration as provided in the regulation. If the tea manufacturer is providing flavoured tea, then they must register with the Tea Board before marketing flavoured tea.
• The tea manufacturers must make sure that the tea is packed and labelled in accordance with FSSAI regulations, whose labelling requirements are extremely stringent. If the requirements are not fulfilled, the manufacturer will be liable for penalties mentioned under the FSS (Packaging and Labelling) regulation, 2011.
• The label must bear all the relevant and important information before it is ready for sale in the market in a clear, prominent and easily readable format for the consumers. The package must carry a label with the information mentioned below:
  • Common Name of the Product
  • Name and address of the manufacturer
  • Date of manufacturing
  • Expiration Date and Best Before Date
  • Net Weight of the content by volume, weight or count
  • Ingredients details with additives
  • Packaging Codes/ Batch Number
  • Country of origin for imported food

A detailed list of the provisions can be found here.

Subsidies By The Tea Board

The Tea Board of India also offers various subsidies to planters of tea for plantation development, quality upgradation and product diversification, market promotion, research and development, welfare of tea garden work force, small growers development and programme for tea regulation for overall protection, growth and sustenance of the Indian teas. Further details about these subsidies can be accessed here.

It also offers loans and other subsidies to planters under the Special Purpose Tea Fund Scheme.

There are, thus, a number of legal rules that a person will have to comply with in order to set up a tea garden.

References

1. http://www.teaboard.gov.in/pdf/annual_report/Chapter%207.pdf
2. http://www.teaboard.gov.in/pdf/Tea_Board_Annual_Report_2015_16_pdf3913.pdf
3. http://old.fssai.gov.in/Portals/0/Final_Regulations_2010.pdf
4. https://enterslice.com/learning/fssai-guidelines-tea/
5. https://www.vakilno1.com/bareacts/tea1953/tea.html
6. http://www.teaboard.gov.in/pdf/policy/Tea_Distribution_Export_Control_Order_2005.pdf

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India being one of the largest markets for medical devices in the world with over 800 medical devices manufactured in India irrespective that it is still being dominated with imported products. The regulatory framework in India regarding medical devices was heavily regulated by the framework applicable to drugs i.e. Drugs and Cosmetics Act, 1940 and its rules thereof Drugs & Cosmetics Rules, 1945 which entails with only 15 types of medical devices under the head of “drugs” and rest was unregulated.

In order to regulate and promote this industry Government not only come up with 100% FDI but has also introduced “The Medical Devices Rules, 2017” which were notified under the Drugs & Cosmetics Act, 1940 on 31^st January 2017 and are proposed to come into effect from 1^st January, 2018 and are in conformity with the Global Harmonization Task Force (“GHTF”). This article aims to analyze the aspects and what changes it had brought down which might affect the concerned group of authorities in the market.

Objective

Prior to the introduction of these rules, medical devices are also being governed by the robust legislation of Drugs and Cosmetics Act, 1940 with no insight regarding the process and procedure of medical devices. Therefore, this can be the main objective and intention of legislature behind enacting such rules to distinguish medical devices from pharmaceuticals for the purpose of regulation.

These rules would not only classify the medical devices from specified drugs but these will also ease the ability to obtain a license, to conduct clinical trials. The second most objective of these rules is to provide a more conducive environment for local manufactures to set up Industries in India, so that the PM’s initiative of ‘Make in India’ can get a clear path to be fulfilled.

Thirdly, a clear set of laws and regulations would increase the interest of foreign investors to make India a hub of medical devices which would only satisfy the investors but also consumers as well, who will now be assured for the quality of these products manufactured in India.

In the press release dated Feb 2^nd 2017, the Health ministry stated that, “these rules coupled with other measures, taken by the government in the recent past, are expected to sharpen the competitive edge and provide incentives to firms to become more efficient, innovative, and competitive. All this will support entrepreneurship, market entry and economic growth that, in turn, would produce high-paying, high-quality jobs”.

Broad Structure of Rules

This rule broadly consists of 97 Rules with 1 saving clause, 8 schedules with over 40 forms which broadly includes all the parameters, requirements, procedures, fee applicable, documents requirements for acquiring or registering for the medical device company or procuring the import/export/manufacturing license.

As discussed earlier these rules have been framed on the lines of the guidelines formulated by GHTF guidelines and in consonance with this these rules classify medical devices into 4 categories based on associated risks from Class A with low risk devices to Class D being the highest. Following given some examples of these examples associated with their risk factor:

• Class A – Cotton wool, Examination gloves, enema devices, bandages etc.
• Class B – anesthesia breathing circuits syringes and sets for infusion pumps etc.
• Class C – removable dental prosthesis, urethral stent, contact lens, harmodializers etc.
• Class D – dedicated disposable cardiovascular surgical instruments, angioplasty balloon catheters, spinal needles etc.

Single Window Clearance

All applications for import, manufacture, sale or distribution and clinical investigation, whether to be accessed by the DGCI or State licensing authority, will have to make through a single online portal of the central government. This would not only benefit the manufactures but would also be an successful initiative in the PM’s ‘Digital India’ initiative.

New thresholds for Residual shelf life

The 1945 Rules prescribes that all imported products should have a minimum residual shelf life of 60% on the data of import which became an issue for importers of short claimed shelf life. The new rules have relaxed these norms with short shelf life. Any medical device, whose total shelf life claim is:

1. Less than 90 days, will be allowed to be imported if it has more than 40 % residual shelf-life on the date of import.
2. Between 90 days and 1 year, will be allowed to be imported if it has it has more than 50 % residual shelf-life on the date of import.
3. Is more than 1 year, will be allowed to be imported by the licensing authority if it has more than 60 % residual shelf-life on the date of import.

A new Framework for Clinical Investigation

With the outset of these new rules, parliament has also introduced a new regulatory framework for clinical investigation this will guarantee the quality of these devices. Below mentioned is some of the interesting provision of this new framework:

1. A fixed timeline of ninety (90) days has been prescribed for the licensing authority to arrive at a decision on application for permission to conduct clinical trial.
2. After obtaining permission to conduct clinical trial, the first subject is required to be enrolled within one year.
3. New concepts of Pilot Study (i.e. exploratory study) and Pivotal Study (i.e. confirmatory study) have been introduced with respect to approval of investigation medical device.
4. New concept of “substantial equivalence” to predicate devices has been introduced with respect to approval of medical devices other than investigational medical devices.
5. The clinical performance evaluation of In Vitro Diagnostic Devices is now part of the regulatory framework.
6. Any institute, organization, hospital run or funded by the Central Government or the State Government is exempted from payment of fees for conduct of clinical investigation.
7. Academic clinical trials do not require prior approval of the licensing authority for its initiation if the data generated during the study will not be used for obtaining manufacturing or import license.

License & no need for renewal

The best part of these new rules which they have incorporated is that the licenses would be issued to the manufacturers and importers in perpetuity until they are surrendered or cancelled. However, there is a mandate to pay the renewal every 5 years.

The pre-requisite mentioned under the device rules to obtain the manufacturing license needs to followed and as these are regulated by both Central & state governments. The device type Class A or B application needs to be submitted to the state licensing authority whereas the device type Class C or D application needs to be submitted to the central licensing authority and all these applications will be made through a single online portal of the central government. With the new set of rules, the new system might cause a problem to the manufactures onsite but will turn out to be advantageous for long duration.

Labeling

Earlier, the only regulatory framework for the purpose of labeling was The Legal Metrology (Packaged Commodities) Rules, 2011 but now with the outset of these new sets of rules. The manufactures/sellers need to abide with both of them. The Devices Rules prescribe the contents of the label such as name of the medical device, month and year of manufacture and expiry, the manufacturing license number etc except the devices which are meant to be exported.

Major Drawback

In regard to the rule of interpretation of statutes the rules cannot be bind over the statute. Similarly, as per the Drugs & Cosmetics Act, 1940 where they have mentioned the definition of medical devices under the head of drugs would have the effect that the medical device would still be i.e. after these rules come under the effect the medical device would continue to be tied up with the definition given in the act and would be continue deemed to be drugs only until any further notification. Similarly, the repercussions of this would also be on the Drugs (price control) order,2013 which had been issued under the Essential commodity act wherein they have notified drugs under the essential commodity and drugs as per the act includes medical device. Therefore, medical device would be subjected to limited price control. The government should have separated the definition of medical devices from the definition of drug, this inadvertent tragedy can be avoided.

Conclusion

In the scenario of ‘Digital India’, ‘Make in India’, such new initiative are highly appraised. These would not regulate the whole structure holistically but also would bring more clarity in this segment which can attract more investors in one of the fastest growing medical devices markets in the world. Lastly, such important measures to encourage compliance to safety standards among stakeholders in the industry, the government may provide some more incentive schemes for this industry to adopt safety norms and a new rise in this field.

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This article is written by Deepanshi Sharma of JGLS. The article discusses petty acts which are punishable offences under law.

Introduction

Awareness of law is integral as ignorance of the law is not a defence in judicial proceedings. Following is a list of some offences that one might commit or witness without realising the culpability attached to them.

P.S. The author does not consider the offences listed below as petty. The inclusion of the offences in the list is based on the routine occurrence of such acts.

Needlessly pulling the emergency alarm chain in a train

Use of the means of communication given in a train, which is only meant for communication between passengers and the staff, without a reasonable cause, is punishable with an imprisonment of up to one year and/or fine of one thousand rupees by the virtue of section 141 of the Railways Act.

For unnecessarily using the emergency chain, the section specifically prescribes a minimum fine of rupees five hundred in the first conviction and imprisonment of three months in case of subsequent convictions.

Downloading or uploading pirated movies, music or software

Downloading or uploading (or infringing in any other manner mentioned in section 51 of the Copyright Act) of copyrighted content without the authorization of the owner of the copyright is a criminal offence punishable under section 63 of the Copyright Act, 1957. Doing this attracts a minimum imprisonment of six months and a minimum fine of fifty-thousand rupees. The punishment may be increased to imprisonment for up to three years and a fine of two lakh rupees.

Damages can also be imposed, under section 55(1) of the Act, on those who knowingly infringe copyrights of another.

However, such infringement of copyrighted matter can be justified as a “fair use”, if used only for private purposes [section 51(1)(a)]

Use of crash guards on cars or two-wheelers

Installation of crash guards, a.k.a. bull guards, on vehicles is an offence under section 52 of the Motor Vehicles Act, 1988. The Ministry of Road Transport and Highways has ordered the transport commissioners of all states and union territories to take actions against the unauthorized use of such fitments through a notification (dated 07/12/2017).

The notification mentioned that addition of a crash guard poses threat to the safety of the pedestrians and such use is prohibited under section 190 of the Act with a penalty of rupees one thousand on the first offence and rupees two thousand on subsequent counts. Sale or delivery of vehicles with such fittings also attracts a punishment of up to five thousand rupees under section 191 of the Act.

Smoking in public places

Public smoking is punishable in India under section 4 of the Cigarette and Other Tobacco Products Act, 2003. Under this Act, a public place is defined to be any place that the public has access to including an “auditorium, hospital buildings, railway waiting room, amusement centres; restaurants, public offices, court buildings, educational institutions, libraries, public conveyances and the like…”. A penalty of up to two hundred rupees can be imposed for the violation of this rule.

Moreover, The Prohibition of Smoking in Public Places Rules, 2008 places responsibility on the owner, proprietor, manager, supervisor, or in-charge of public places to ensure that no person smokes on their premises. Failure to comply with this responsibility or report such violation can lead to a penalty under rule 3(3) of the Act.

Driving or riding a bike without a helmet strapped

Not wearing a protective gear while driving or riding a motorbike in public spaces is an offence under section 129 of The Motor Vehicles Act, 1988. The section also makes it an offence if the gear has not been securely fastened to the head of the wearer with the help of straps or other fastenings provided. The punishment for violation can be up to one hundred rupees on the first offence and three hundred rupees on subsequent violations (section 177). An exception has been provided for Sikhs who wear a turban while driving.

Voting as another person or voting twice at the election

Voting for an election under the name of another living, dead or fictitious person or voting twice under one’s own name in the same election is a punishable offence (called personation at elections) under section 171D of Indian Penal Code. The section also covers abetment to personation. Committing this offence can be punishable by imprisonment for up to one year and/or fine.

This section does not apply to those who are authorised to vote as a proxy for another voter as long as she/he votes for the authorised voter only. For instance, section 20(8)a/b of the Representation of the People Act, 1950 Act read with section 60 of the Representation of People Act, 1951, allows the government to authorise proxy voters for armed personnel.

Possessing multiple PAN cards

Applying for or possessing more than one permanent account number is impermissible under section 139A(7) of the Income Tax Act. Violation of this may attract a punishment of up to ten thousand rupees by the assessing officer under section 272B of the same Act. A similar fine can also be imposed for quoting a false permanent account number in documents.

For information about the procedure to surrender a PAN card, click here.

Corporal/physical punishment in school

A person who, having control over a child (aged up to 18 years), brings physical or mental suffering to her/him can be punished under section 75 of the Juvenile Justice Act 2015 with an imprisonment for over three years and/or a fine of one lakh rupees. In case such suffering is inflicted in schools or other organisations which are trusted with care and protection of the child, the punishment can be increased to a rigorous imprisonment for five years and/or a fine of five lakhs rupees (second proviso)

Infliction of any kind of physical punishment or mental harassment in school on children ageing six to fourteen years of age is also prohibited under section 17 of the Right of Children to Free and Compulsory Education Act, 2009. This can result in disciplinary action under the service rules applicable to such person.

Stalking women

Unreasonably or unjustifiably following a woman or trying to make contact with her, despite a clear indication of her disinterest, is an offence under section 254D of the Indian Penal Code. The section also entails the possibility of abuse through technology if it results in fear of violence or disturbs the mental piece of the woman. The punishment on the first conviction includes imprisonment for up to three years along with fine and can be increased to up to five years of imprisonment along with fine on subsequent counts.

Trespassing into a stranger’s house

Entering a house or remaining inside it, without authorisation, to commit an offence, intimidate, annoy or insult the person in possession of such a house is a penal offence (section 41 r/w section 442 of the Indian Penal Code). The punishment includes imprisonment for up to one year and/or fine of one thousand rupees (under section 448 of IPC)

For more information on trespass and how to deal with trespassers over your property, click here.

Throwing stone/wood/or any other thing at a train

Section 150 of the Railways Act, 1989 makes throwing a stone, wood or any other object at or across any railway punishable by imprisonment for life or rigorous imprisonment for up to ten years.

Also punishable under the same section is:

• Displacing/loosening of the rail, sleeper or anything related to railways; or
• Turning/moving/unlocking/diverting any of its machinery; or
• Making, showing/hiding, or removing a signal or a light near a railway; or
• Anything that is done with the intent or knowledge of endangering the safety of the people travelling in the railways.

If any of these acts are done with the intention to cause death and the action results in the death of any [emphasis] person, the punishment can be increased to death penalty or imprisonment for life. Having knowledge that such an act would cause the death of a person in all probabilities, or is likely to cause death also warrants a similar increase in punishment.

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This article is written by Deepanshi Sharma. The article discusses the right to live in a matrimonial shared household.

Who can claim under the Domestic Violence Act

The Protection of Women From Domestic Violence Act, 2005 (hereinafter referred to as the Act) protects all women in domestic relationships who are living alone or together or have lived, at any point of time, in a shared household with the respondents. A domestic relationship includes a relation by blood, adoption, marriage as well as relationships in nature of marriage. Members of a joint family also come within the meaning of a domestic relationship under the Act. While all other relations can be easily deciphered, a relation “in the nature of marriage” needs further clarification.

In the case of Indra Sarma v V.K.V. Sarma, the apex court noted that to understand if a couple is related in a “nature of marriage” due regard has to be given to all the interpersonal facets of this relationship. The case laid a non-exhaustive list of factors that contribute to such a relationship which included the duration of the stay, financial relation supporting each other, the entrustment of responsibilities, sexual and emotional intimacy and most importantly, acts of socialising in public as a husband and wife. As a result, some cases of “live-in relations” (not all of them) would be included in it (Velusamy vs. D. Patchaiammal, para 34). Based on these factors, a woman and a man residing together would, or would not, qualify as being in a relationship in the “nature of marriage”.

What is a “shared household”?

Every woman has a right to live in the shared household according to section 17 of the Act. A shared household as defined by the Act includes a household which is-

• Owned and rented jointly by the aggrieved woman and the respondent (related person); or
• Owned and rented separately by the aggrieved women and the respondent, but in respect to which the aggrieved women or the respondent has an interest, title, right, or equity; or
• Joint family’s home in which the respondent is a member, even without the aggrieved person or respondent having any interest, right, or title in it such a house.

A shared household, therefore, does not have to be owned or co-owned by the person who has been violated.

Although the definition of a “shared household” is worded very loosely, the Supreme Court in S.R. Batra and Anr. v Smt. Taruna Batraheld that this definition has to be given an interpretation that does not lead to absurdity. The Court held that a “shared household” would not include the house owned by the parents of the husband in which the aggrieved happened to live.

In a matrimonial setup

In India, there is no law which deals specifically with a matrimonial house. Therefore, a matrimonial house is neither defined nor is there any right regarding it per se. However, owing to the general right to a shared household under the Act, a wife has a right to reside in the shared household with her husband. This would imply that there is a right to live in a house owned/rented by the wife and husband (together or separately), or a house in which the husband has a right, title or interest in, including the joint family house in which the husband is a member.

However, the right to reside would not extend to a house owned/purchased by the parents or relatives of the husband as he has no subsisting right in it. For instances, houses owned (not inherited) by the mother-in-law or sister-in-law would not be a shared household.

Allowing the wife (or husband) to stay in such a house is purely at the discretion of the house owners. Parents-in-law have no obligation to give residence to their daughter-in-law in a house owned by them. Therefore, a claim to reside in a house owned by the in-laws/relatives of the husband is bound to fail.

Denial of residence in the shared household is domestic violence

Right to live in the shared household is an economic right of women. Denial of access to such a shared household by any action, omission/commission, or conduct of the husband/male partner or any of his relatives is considered to be economic abuse according to the Domestic Violence Act (section 3 explanation 1(iv)(c))

Right to reside in a shared household during a divorce proceeding

The right to live in the shared household subsists as long as the domestic relationship is present. A divorce is the dissolution of the marital relationship. Therefore, the right to live in a shared household would naturally come to an end from the time of divorce. However, anytime before such divorce, the protection from domestic violence would exist, including the right to stay in the shared household.

Whom to approach if you face/find out about domestic violence/forced eviction from the shared household

Contact the Protection Officer

Every district in India has at least one person designated as the Protection Officer who works solely for the purpose of handling and enquiring about the cases of domestic violence. The Protection Officer works under the control and supervision of the Magistrate. The post is mostly given to women to guarantee easy communication.

Any person who believes that domestic violence is happening/has happened/is about to happen should provide such information to the Protection Officer. No suit or proceedings can be initiated against the person who informs the Protection Officer about domestic violence in good faith.

To know the contact details of Protection Officers of each city, click here.

Contact a registered society working for women’s rights

Many registered societies or companies work for the objective of protecting the rights and interests of women through provision of legal aid, medical or financial assistance et cetera. These societies, if registered with the state government as service providers, have the power to record domestic incidents and forward it to the Magistrate or Protection Office, get the aggrieved person medically examined, and ensure her residence in a shelter home.

A Magistrate or a police officer

A Magistrate or a police officer can also be approached to give information about a domestic incident.

Reliefs that can be claimed in case of expulsion from shared household

Residence order

In case of forced removal from the shared household or refusal to allow entry into such household, the aggrieved party can apply for a residence order. This can be done with the help of above-mentioned authorities.

On such application, the magistrate may pass an order of any of the following discussed below.

• Restraining the opposite party from forcing the aggrieved party out of the shared household, or from her stopping her access to it;
• Directing the opposite party to remove himself from the shared household (This can only be passed against a male respondent);
• Restraining the opposite party or any of his/her relatives from entering a portion of the shared household where the aggrieved person resides;
• Restraining the opposite party from selling or dispossessing the shared household or restricting its free access;
• Restraining the opposite party from renouncing his right in the shared household without the Magistrate’s permission;
• Directing the opposite party to get an alternative accommodation of the same level as the shared household, or pay the rent for the same (if circumstances require so); Or
• Any other additional conditions or order that the Magistrate believes is reasonably necessary.

In additions to these, the magistrate can also direct the officer-in-charge of the nearest police station to grant protection to the aggrieved women, or provide assistance to her, or the person who applied on her behalf, for its implementation.

Shelter home

The aggrieved women shall also be provided with a safe shelter home upon her request to the Protection Officer or the service provider. This does not exhaust her possibility of availing any other of the reliefs available.

The shelter home has a duty to provide shelter on the order of these authorities.

Other reliefs that can be claimed against domestic violence

Protection order

The Magistrate on being satisfied that domestic violence has taken place/is taking place/is about to take place can pass a protection order in favour of the aggrieved person. The magistrate can restrain the respondent from:

• Committing domestic violence;
• Aiding or abetting domestic violence;
• Entering the place of employment, or school in case the aggrieved is a child, or any other place frequently visited by the aggrieved person;
• Attempting to communicate with the aggrieved person in any possible way;
• Alienating any assets, operate any bank accounts or lockers used/held/enjoyed together by the aggrieved person and the respondent, or singly by the respondent, without the permission of the Magistrate;
• Causing violence to the aggrieved person, her dependants, relatives or anyone who provide her assistance to handle the domestic violence; or
• Committing any other action as specified in the protection order.

Custody order

Temporary custody of the child can be provided to the aggrieved party or the person who makes the application on her behalf at any stage of the hearing. The magistrate shall refuse any visits if he is of the opinion that such a visit would be harmful to the interest of the child/children. However, if it is not the case, specific rules regarding visits by the respondent may be given in the custody order, if necessary.

Monetary relief

An order for a reasonable, fair, and adequate relief to meet the expenses or losses incurred by the aggrieved party, her kids, or relatives due to the domestic violence. Such losses may include-

• The loss of earnings;
• The medical expenses;
• Loss due to destruction, damage or removal of any property from the control of the aggrieved person;
• Maintenance for the aggrieved party as well as her children, including or in addition to maintenance provided under the Criminal Procedure Code.

Ps. losses for which relief can be claimed are not limited to the mentioned list.

Compensation

In addition to the above-mentioned reliefs, the Magistrate can order the respondent to pay compensation for the injuries caused. Such injuries include, among other things, mental torture and emotional distress due to domestic violence.

Alternative claim under The Hindu Adoption and Maintenance Act

Under The Hindu Adoption and Maintenance Act, a Hindu wife can claim maintenance which includes, among other things, residence from her husband during her lifetime. This right to claim maintenance subsists even if she is living separately from her husband if he-

• Is guilty of abandoning her without a reasonable cause and without her consent or against her wish;
• Is guilty of willfully neglecting her;
• Has treated her with cruelty, which caused her to leave due to a reasonable apprehension of harm or injury;
• Is suffering from violent form of leprosy;
• Has any other living wife;
• Keeps a concubine in the house where the wife was living, or habitually lives with a concubine somewhere else;
• Has changed his religion from Hinduism;

Or there is any other cause justifying her living separately. However, if the wife is unchaste or has converted into another religion, she would not be entitled to separate residence and maintenance from her husband.

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This article is written by Deepanshi Sharma.

What are Fundamental rights?

Fundamental rights are the basic human rights that are guaranteed to the citizens of India (to all people in case of article 14) by the Indian Constitution. They act as a limitation to the power of the State. These rights are highly revered and any law that is found to be in contravention of them can be challenged in the Supreme Court by the virtue of article 32 of the Constitution, and subsequently struck down to the extent of the inconsistency. The Supreme court can also pass any appropriate order, direction, or writ for the enforcement of these rights. Similar powers are present with the High Courts under article 226 as well.

In case of violation of the fundamental rights, the Courts can be approached not only by the aggrieved person but by any public-spirited person or social action group, acting in good faith, for the socially and economically disadvantaged people who otherwise cannot approach the Court (Subhash Kumar v state of Bihar). This can be done through a simple letter as well (State Of Himachal Pradesh vs A Parent Of A Student Of Medical College). Therefore these rights can be enforced relatively easily. Moreover, a fundamental right cannot be given up by individuals through their own consent. In Behram Singh v State of Bombay, it was held that they are provided not only for benefit of the citizens but on the grounds of public policy as well.

However, can fundamental rights be amended/changed by the legislature?

The Basic Structure Doctrine

A thirteen-judge bench in Keshwananada Bharti v State of Kerala, overturning the landmark judgment of Golak Nath, I.C. v State of Punjab, held that any part of the constitution can be amended, abrogated or abridged without changing the basic foundational values and structure of the constitution. However, a definitive list of what constituted the basic structure was not declared.

The Court in Indira Nehru Gandhi, Smt. v Rajnarain noted that whether any particular part of the constitution forms a part of the basic structure, or not, has to be judged individually as it comes before the court. Post this, several features have been declared as a part of it in different cases. For instance, the Minerva Mills Case declared a constitutional amendment which removed the limitation imposed on the power of the legislature as unconstitutional. It held that limited amending power is part of the basic structure of the constitution and thus, cannot be altered.

Fundamental Rights as Basic Structure

A nine-judge bench in I R Coelho v Union of India recalled the importance given to the articles 14, 19 and 21 in various precedents, including by Justice Chandrachud in Minerva Mills Case. It noted that these three articles have been considered as the part of the basic structure in the Indian Constitutional History. Since the inclusion of a law in the 9th schedule resulted in the abrogation of article 32 of the constitution, it effectively removed such a law from being tested against article 14, 19 and 21 and thus were held to be in contravention of the basic structure doctrine.

Along with enlarging the idea of the basic structure doctrine to include these three Fundamental right, the Court held that any law has to satisfy the direct impact and effect test which judges the effects of such law on the basic structure of the Constitution.

Therefore, the essence of these Fundamental Rights cannot amended, abrogated or abridged. However, are these rights themselves absolute?

Fundamental rights are not absolute

Right to Equality

It is incorrect to say that all laws have to be made applicable to everyone uniformly owing to the right to equality. The concept of equality envisioned in the Constitution necessitates giving consideration to the social and economic inequalities present in the society (para 100, St. Stephen College v University of Delhi). To elevate these, the State, through legislation, are entitled to make reasonable classification to treat differently placed people differently (State of Bombay v Balsara).

Doctrine of Reasonable Classification

While article 14 prohibits class legislation, it does not prohibit classification for the purpose of ensuring equality to those who, by virtue of nature, attainment or circumstances, are differently positioned. For this purpose, differential law based on reasonable classification is permitted. A classification to be considered reasonable has to satisfy two tests-

• Intelligible Differentia: The classification must be made on an intelligible differentiating factor which distinguishes persons or things that are included in a group from those who are left out.
• Reasonable nexus with the object: The classification must have a reasonable nexus with the object that such a statute aims to achieve. Such an aim, needless to mention, should be lawful in nature (Das J. in State of W.B. v Anwar Ali Sarkar)

Ps. Article 14 is a general provision and therefore, has to be read with all other provisions in Part III of the Constitution.

Special Law for Women and Children

Article 15(3) provides an exception to the rule against discrimination in article 15(1) and 15(2) (Dattaraya Mootiram v State of Bombay). This sub-section carves a place for special laws to be made for the benefit of women and children. For instance, an act mandating provision of maternity leave to women, or one for reservations for women in public employment [Government of A.P. v P.B. Vijaykumar; even beyond 50% (Taguru Sudhakar Reddy v govt of A. P.] would not be a contravention of the prohibition against discrimination.

Special Law made for Social and Economically Backward Classes, Scheduled Castes, and Scheduled Tribes

Aiming to correct the historic discrimination that some classes/groups of people have had experienced or still experience, the Constitution allows positive discrimination for their benefit in Article 15(4).

Added in the First Amendment, this subsection is another exception to the rule against discrimination. It provides the State with the power to make special laws for the Backward classes, Scheduled Castes and Scheduled Tribes. It is also an exception to Article 29(2) that prohibits denial of admission into any public educational institution based on religion, race, caste or language (M. R. Balaji and Ors. v State of Mysore). However, it must be ensured that policies undertaken under this section, if compensatory and protective discriminatory in nature, are reasonable and consistent with the public interest (Preeti Shrivastava Dr. v State of M.P.).

Furthermore, article 16 (4), (4A), and (4B) make it possible for the state to make reservations in appointments in the public sector for those “backward classes” [emphasis] which are not adequately represented in such services.

While the case of Indra Sawhney mentioned that reservations cannot be made in respect of promotions, it held that short of reservations, special provisions could be made to facilitate promotions of members of such backward classes.

Right to Freedom

Article 19 grants the right to speech and expression, to assemble peacefully without arms, to form unions and association, to move freely throughout India, to reside and settle in anyplace such, and to practice any profession, occupation, trade or business. However, these rights given under Article 19(1) can be restricted by law made by the state under respective conditions mentioned in the clause 2 of the same article.

Reasonable Restrictions

Owing to the addition of word “reasonable” by the first amendment, such restrictions have to be within reasonable limits. These restrictions should be reasonable in substance as well as in the procedure laid in such a law. For instance, the procedure for carrying out such law should be in consonance with principles of natural justice. Moreover, the reasonability of the restriction should be judged from the aspect of the general public’s interest (Mohd. Hanif Quershi v State of Bihar)

Grounds for restriction in article 19(2)

Reasonable restrictions on freedom can be placed for the following purposes:

• Sovereignty and Integrity of India (added in the sixteenth amendment): To guard against attack on the territorial sovereignty and integrity of India (not the constituent states, as per Romesh Thapar v State of Madras)
• Security of the State: To guard against the use of freedom to overthrow, wage, or rebel against the government. This includes restriction of indirect actions towards these aims, for instance, incitement.
• Friendly relations with foreign nations (first amendment): To restrict the speech of individuals that can hamper friendly relations of India with a foreign state.
• Public order (first amendment): To preserve public order or “public peace, safety and tranquility” (Central Prison v Ram Manohar Lohia). Restriction on indirect acts, which have a tendency to lead to disorder is also within the scope of this restriction as long as there is a reasonable and direct nexus of the restricted act with the objective of maintaining public peace.
• Decency and morality: To protect and promote public decency and morality.
• Contempt of Court: To prevent contempt of court as defined in section 2 of the Contempt of Court Act. Such contempt of court has to be manifest, malicious, and substantial in nature (E.M.S. Namboodiripad v T.N. Nambiar).
• Defamation: To prevent defamation as it results in hatred or ridicule of another citizen.
• Incitement of an offence: To prevent speech that results in incitement to commit a crime and violate another person’s rights.
• Sedition: To prevent all those actions that lead to disturbance to the tranquillity of the state. However, criticism of the existing system and expression of a desire for a different system of state does not amount to sedition. The expression has to be judged based on the intention and likelihood of inciting disorder. (Nihrindu v.Empror the; Kedar Nath v State of Bihar)

Right to Life

Limited by the “procedure established by law”

Article 21 ensures right to life and personal liberty. However, it is immediately followed by the words “except according to procedure established by law”. This creates the possibility of limitations on various rights that come under the right to life and liberty. For example, punitive detention is a limitation that can be placed on the right to liberty. However, this right cannot be limited in any way except by following the procedure that is laid down by the act that prescribes such detention.

The limitation can only be placed by a law that has been enacted by any competent legislature and such procedure has to be “just, fair, and reasonable”. Also, the validity of the procedure established has to be judged against Article 14 (therefore, reasonability is requisite) as well as Article 19 as these rights are not exclusive of each other (Golden triangle rule) (Maneka Gandhi v. Union of India).

It is also important to note that while the right to life includes several other rights, it does not include the right to die (Aruna Ramchandra Shanbaug v Union Of India).

Religious Freedom

On the grounds of Public order, Morality, and Health

While Article 25 provides for equal right to profess, practice, and propagate any religion, such freedom cannot be used to do acts which are harmful to public order, health, and morality (Ramjilal Modi v. State of UP). For instance, creation of hatred among groups while practising religion, which can have possible ramifications over public order as well as health, was held to be outside the scope of freedom of religion (Subhash Desai v Sharad J. Rao)

While converting is permissible and within the scope of this freedom, conversion for the purpose of taking the benefit of polygamy that was allowed in another religion, while a marriage in the previous one subsisted, was not held to be valid in the case of Lily Thomas v Union of India.

Similar conditions restrict the freedom to manage religious affairs under Article 26 as well.

Limited by other Fundamental Rights

Presence of this phrase in Article 25 (only) results in positioning the Freedom to Religion on a lower niche than other Fundamental Rights. To exemplify, playing of loud preachings was considered to promote noise pollutions and conflict with other people’s liberty to not hear such preachings (Church of God v. KKR Magestic Colony Welfare Ass.).

Conclusion

While the Fundamental Rights are an integral part of the Constitution, it would be incorrect to term them as unconditional. These rights, by the Constitution itself, are restricted by conditions which aim to balance the individual freedom and rights to the necessity of public good and welfare.

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In this article, Akanksha Mathur of National Law University, Delhi discusses how to file various copyright applications and the procedure for accessing facilities provided by the Copyright Office.

With the advent of intellectual property, laws related to copyright have become more important than ever. As the creator of any intellectual property, it is important to understand what a copyright is, how it is issued, what rights are conferred by it and where one can get it issued.

What is a Copyright?

A copyright is the exclusive and assignable legal right, given to the originator for a fixed number of years, to print, publish, perform, film, or record literary, artistic, or musical material. It is a form of intellectual property protection available for original works of authorship that are fixed in a tangible form, whether published or unpublished. The categories of works that can be protected by copyright laws include paintings, literary works, live performances, photographs, movies, and software.

Copyright law does not cover the actual concepts, ideas, techniques, or facts in a particular work, but rather protects their form of material expression. Because of this, a work must be tangible to receive copyright protection.

Laws Governing Copyrights in India

Indian Copyright Act, 1957

Copyright law in India is governed by the Indian Copyright Act, 1957. It came into effect from January 1958 and has been amended six times since then to-

• Bring it in conformity with the World Intellectual Property Office (WIPO) Copyright Treaty and the WIPO Performances and Phonograms Treaty
• To protect the music and film industries
• To protect the author of any work
• To address the concerns of the physically disabled
• To remove operational facilities
• For the enforcement of rights.

Copyright Rules, 2013

The Copyright Rules of 2013 had been issued by the Ministry of Human Resource Development of the Union Government in the exercise of the powers granted to it by Section 78 of the Indian Copyright Act, 1957.

It succeeded the Copyright Rules of 1958 and provided a guideline for the functioning of copyright laws in India.

What can be Copyrighted?

A copyright protects the form of expression of original works of authorship. Things which can be copyrighted include-

• Literary works
• Musical works, including any accompanying words
• Dramatic works, including any accompanying music
• Pantomimes and choreographic works
• Pictorial, graphics, and sculptural works
• Motion pictures and other audiovisual works
• Sound recordings
• Architectural works

These categories are to be viewed in a broad sense as they have also been expanded to include other things, such as computer programs, maps, architectural plans etc.

Things which cannot be copyrighted include-

• Works not given a tangible form of expression
• Works containing common property information that do not contain original authorship.
• Titles, names, short phrases and slogans
• Symbols or designs that are familiar
• Variations of typographic ornamentation, lettering, or coloring
• Listings of ingredients or contents

Rights of a Copyright Owner

The Indian Copyright Act confers copyright protection to original works of authorship under Section 13 and vests these with the owner.

Copyright protection is given in terms of the-

• Economic Rights of the Author

Economic rights are conferred upon the author of an original work under Section 14 of the Indian Copyright Act, 1957. These are

• • For literary, dramatic and musical works

    • to reproduce the work in any material form including the storing of it in any medium by electronic means
    • to issue copies of the work to the public
    • to perform the work in public or communicating it to the public,
    • to make any cinematograph film or sound recording in respect of the work
    • to make any translation or adaptation of the work.

  • For computer programs

    • to reproduce the work in any material form including the storing of it in any medium by electronic means
    • to issue copies of the work to the public
    • to perform the work in public or communicating it to the public,
    • to make any cinematograph film or sound recording in respect of the work
    • to make any translation or adaptation of the work
    • the right to sell or give on hire, or offer for sale or hire any copy of the computer program regardless whether such copy has been sold or given on hire on earlier occasions

  • For artistic works

    • to reproduce the work in any material form, including depiction in three dimensions of a two-dimensional work or in two dimensions of a three-dimensional work
    • to communicate or issues copies of the work to the public
    • to include the work in any cinematograph work
    • to make any adaptation of the work.

  • For a cinematograph film or a sound recording

    • to make a copy of the film including a photograph of any image forming a part thereof
    • to sell or give on hire or offer for sale or hire, any copy of the film
    • to communicate the film to the public.

  • For a painting, sculpture, drawing or of a manuscript of a literary, dramatic or musical work

    • to make a copy of the film including a photograph of any image forming part thereof
    • to sell or give on hire or offer for sale or hire, any copy of the film
    • to communicate the film to the public.
    • to share in the resale price of such original copy provided that the resale price exceeds rupees ten thousand.

• Moral Rights of the Author

  The author is also accorded moral rights to his work under Section 57 of the Indian Copyright Act. These are-

  • The Right of Paternity

    This refers to the right of an author to claim authorship of a work and prevents others from doing so.

  • The Right of Integrity

    The right of integrity is provided to the authors of an original work to empower them to prevent the distortion, mutilation or alteration of their work, along with any other action in terms of that work which would be prejudicial to their honour or reputation.

Is it Necessary to Register a Work to Claim Copyright?

No, it is not necessary to register a work to claim a copyright. A copyright is acquired as soon as a work is created and no formalities are needed to be undertaken in order to acquire a copyright.

However, a certification of registration of a copyright is important as it has the ability to serve as primary evidence in any dispute related to the ownership of a copyright in a court of law.

Regulatory Authorities

Two regulatory authorities have been set up to regulate the registration of copyrights in India and handle the disputes related to them. These are-

• The Copyright Board of India

The Copyright Board is a quasi-judicial body set up under Section 11 of the Indian Copyright Act, 1957. It is responsible for the task of adjudication of disputes related to copyright registration, assignment of a copyright, grant of license for works that are to be withheld from the public, unpublished Indian works, production and publication of translations and works for certain specified purposes. It also hears other miscellaneous cases in matters instituted before it.

• The Copyright Office

The Copyright Office was set up under Section 9 of the Indian Copyright Act, 1957. It was put under the immediate control and supervision of the Registrar of Copyrights.

How To e-File an Application

To file an application to file an application for copyright registration, visit http://copyright.gov.in/UserRegistration/frmLoginPage.aspx and register yourself as a new user. An application can be filed by filling up Form-XV, the SoP and SoFP and paying the required fee.

A checklist of the particulars that an applicant should keep in mind while filing an application can be found here.

How To Find Out Whether Your Application Has Been Accepted Or Rejected

After an application has been filed and a diary number has been allotted, the status of the application can be checked at http://copyright.gov.in/frmStatusGenUser.aspx.

Status of Copyright Application

The Copyright Office also publishes a list of the applications received by it, the applications that are awaiting further work and the applications due for a hearing online on its website as well.

What Are The Charges For Filing An Application?

The Copyright Office charges a fee for issuing compulsory licenses as well for filing any application.

Facilities Provided by the Copyright Office and How to Access Them

The Copyright Office provides for e-filing of applications on its website.

• The Registration of a Copyright

The registration of a copyright is not mandatory, but can be done to ensure that no one else uses it, and to safeguard the author’s efforts in the future. A copyright is registered by the Copyright Office under Section 45 of the Indian Copyright Act, 1957.  

• An application needs to be made to the Copyright Office under Form-XIV, along with the attachment of the following documents-
  • Four copies of the artwork
  • Applicants details of name, address and nationality proof
  • Nature of interest of the work of the applicants
  • Work title
  • Authors details and death certificate in case of the death of the author
  • First Publication date, place, publishers name, etc.
  • NOC from the trademarks registry
  • Power of attorney on Indian stamps paper
• After the application is filed, along with the fee, a diary number is issued and a mandatory 30-day waiting period is instituted for the filing of objections.
• The work is then scrutinised by the examiner for discrepancies. If no discrepancy is found, the application is sent for approval to the Deputy Registrar of Copyrights.

The online application form for the registration of a copyright is available here.

• The Registration of Changes in the Particulars of a Copyright

Rule 71 of the Copyright Rules, 2013 provides for the registration of changes in the particulars of a registered copyright.

To register changes, an application is required to be made under Form-XV to the Copyright Office, along with the attachment of the following documents-

• • Original Power of Attorney, if the application is filed through an attorney
  • Notarized copy of the Deed, if any (For example, a deed of assignment/partnership/dissolution etc.)
  • An affidavit attesting that no case is pending in any court of law relating to the Registration Of Changes in question
  • Attested Copy of the Death Certificate if the original copyright holder is deceased
  • Notarized Copy(ies) from Extract of ROCs along with the Works

The online application form for the registration of changes in the particulars of a copyright is available here.

• The Relinquishment of a Copyright

A copyright can be relinquished by the author under Section 21 of the Indian Copyright Act, 1957.

An application needs to be made under Form-I to the Copyright Office along with an affidavit specifying the extent of relinquishment of rights by the author.

The online application form for the relinquishment of a copyright can be found here.

• A Proforma for any Discrepancy in a Copyright

A proforma is issued by the Copyright Office in case of the following discrepancies in the registration of a copyright-

1. Under Rule 70 (3) of the Copyright Rules 2013, that application for registration of a copyright can be signed by the author/owner only. It does not provide for an attorney to sign an application, including the Statement of Particulars (SoP) and the Statement of Further Particulars (SoFP) on behalf of the applicant. This requires the resubmission of Form XIV, along with the SoP & SoFP duly signed by the applicant.
2. If Para 2 of Form XIV is incomplete, the applicant is required to send notice by registered post copies of Form XIV, SoP & SoFP to other parties concerned under Rule 70 (9) of the Copyright Rules, 2013.
3. If the application for registration, SoP & SoFP are not submitted in the prescribed format, another copy must be submitted.
4. If the Name/Address/Nationality of the applicant is not furnished.
5. If it is not clarified whether the applicant is the author/publisher/owner/assignee of the work being copyrighted.
6. If the appropriate class of the work is not indicated.
7. If the title of the work as it appears on the work itself is not reflected. The work to be registered for copyright must have a title which should be short and should correspond to the work.
8. If the language of the work mentioned does not correspond to the language actually used in the work. For revision, all the languages used in the work must be mentioned.
9. If Col.7 of SoP is incomplete, it is necessary to furnish the Name/Address/Nationality of the author (artist/photographer). If the author is deceased, the date of death must be mentioned, along with a notarized affidavit regarding inheritance of right(s) /NOC from all the legal heirs of the deceased author in favour of the applicant.
10. If it is not indicated whether the work is published or unpublished at the time of applying for a copyright.
11. If the year/country of first publication/name/address/nationality of the publisher has not indicated.
12. If the year/country of subsequent (last) publication/name/address/nationality of the publisher has not been indicated.
13. If the name, address and nationality of the person who holds the various rights comprising the copyright in the work are not furnished, they are required to be mentioned. In case the applicant himself intends to hold all the rights in the work, his particulars as already given against Col.2 may be mentioned. In case the applicant is a partnership firm, the names of all the partners and their respective shares in the copyright may be indicated.
14. If the author intends to authorize other people to assign or license the copyright on his behalf, the name, address and nationality of such person may be indicated.
15. If Col. 13 has been left incomplete.
16. As per Rule 70 (6), a Search Certificate from The Trademarks Registry is mandatory if the artistic work is to be used or is to be capable of being used in relation to any goods, irrespective of whether a trademark is registered or not. Otherwise, it must clearly be stated in Col.14 of SOP that the work is neither used nor is it capable of being used in relation to any goods.
17. If the work is not identical with the work attached with the Search Certificate, 5 copies of the work identical in respect of size/colour/design are required to be furnished.
18. If the name/address/nationality of the person whose photograph appears on the work is not intimated. If that person is someone other than the applicant, a No Objection Certificate, in original may be obtained from that person [from heir(s) if the person is deceased/from the guardian in the case of minor] and forwarded to the Copyright Office.
19. A Firm itself cannot be the author of a work. Details of the person who has actually created the work must be furnished under Section 2(d) of the Copyright Act, 1957.
20. If the author of the work is someone other than the applicant, a No Objection Certificate, in original from the author is required, clearly indicating that he has no objection if the copyright in the work is registered in the name of the applicant. In case the author is partner/proprietor/employee of the applicant firm, the same may be clarified.
21. As provided under Section 15 of the Copyright Act 1957, please intimate if your work is already registered or capable of being registered under Designs Act, 2000. If not, please file an affidavit to the effect that the work is not registered/applied for registration under the Designs Act.
22. If the work is published by a person or a firm other than the applicant, a No Objection Certificate, in original, may be obtained from that person/firm and forwarded to this office.
23. If a lesser number of copies of a work than required are submitted, the remaining number of copies are to be submitted.
24. If the Statement of Further Particulars (SoFP) is not filled in properly.
25. If the Power of Attorney (POA) has not been submitted or is not in order, it has to be submitted on stamp paper duly accepted by attorney/signed by the applicant. Incomplete POA is returned herewith.
26. In Col. 15 of SoP details have to be given whether it is registered under Design Act, 2000.
27. In Col. 16 of SoP if an artistic work is registered under the Design Act, details have to be given on whether it is applied to an industrial process, and the number of times it has been reproduced.
28. If it is mentioned in Col. 14 of SoP that work is not capable for use on goods but it seems to be capable of being used on goods, Form TM 60 from the Trademark Registry must be provided, along with the submission of the difference of fee (i.e. Rs.2000-500 = 1500/-)
29. In case of the Sound Recording & Cinematograph category, if a copy of the agreement is not provided, a No Objection Certificate from various copyright holders is required.
30. As per the Rule 70 (5) for registration of Computer Programme or Software, the applicant has not provided source code and object code.

These discrepancies are to be removed within 45 days, or the application is considered to be abandoned.

The online proforma can be found here.

Complaint Redressal Machinery Of Copyright Office And How To File Objections

Whenever an application is filed with the proper details, it is published on the website of the Copyright Office for a mandatory period of 30 days. Within this period, an objection can be filed with the Copyright Office through post or email.

If an objection is received, the application is remanded for hearing in front of the Registrar of Copyrights in order to give both parties an opportunity to present their side of the dispute. The issue is then decided by the Registrar.

If any complaint still exists, the decision of the Registrar can be appealed to by filing an appeal in front of the Intellectual Property Appellate Board of India.

References

1. http://www.legalserviceindia.com/article/l195-Copyright-Law-in-India.html
2. http://copyright.gov.in/documents/handbook.html
3. http://smallbusiness.findlaw.com/intellectual-property/what-may-be-covered-by-copyrights.html
4. http://copyright.gov.in/Default.aspx
5. https://www.indiafilings.com/learn/wp-content/uploads/2014/10/Copright-Registration-Process-Flow.png

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In this article, Amandeep Singh discusses opportunities for Lawyers before IPAB.

“Lawyers are the foot soldiers of the Constitution.”

Introduction

It is said that for as long as there have been people there is a requirement of lawyers. In this era of globalization, it is probably going to get further force as more lawyers would be required to deal with cases emerging out of trademarks and related disputes because of developing the significance of the World Trade Organisation (WTO). The scope for lawyers is increasing day by day and they have various private and government opportunities depending on the choice of their practice. This article talks about the opportunities a lawyer gets before Intellectual Property Appellate Board (IPAB).

What is IPAB?

Intellectual Property Appellate Board was set up on 5th September 2003 with the objective of hearing and adjudicating appeals against the orders given by the Registrar under the Indian Trademarks Act, 1999 and also the decisions are taken by the court under Indian Geographical Indication of Goods Act, 1999. The aim of IPAB is speedy disposal of appeals and rectification of applications. Intellectual Property Appellate Board is headquartered in Chennai and it has its benches in Delhi, Mumbai, Kolkata, and Ahmedabad.

• Section 83 of the Trademarks Act, 1999 provides for the establishment of Appellate Board by the Central Government which is to be known as the Intellectual Property Appellate Board to exercise jurisdiction, powers, and authority conferred by this Act.
• The provision in the Geographical Indications of Goods (Registration and Protection) Act 1999 provided for the registration and better protection of indication marks which are related to goods. Among various features of the Geographical Indications of Goods (Registration and Protection), Act was the provision which provided for appellate remedy before the Intellectual Property Appellate Board (IPAB) set up under the Trademarks Act of 1999.
• Section 117 G of the Patents (Amendment) Act, 2002 provides that all the cases of appeals against the order of the Controller i.e. the Government and all the cases rectification of application pending before any High Court shall be transferred to the Appellate Board and the board shall may either proceed with the case de novo or from the stage at which it was transferred.
• Now that the Finance Act, 2017 has come into force, the Copyright Board has been merged with the IPAB and now all the pending cases which lay before the Copyright Board are transferred to the Intellectual Property Appellate Board.
• To regulate its proceedings, the IPAB made The Intellectual Property Appellate Board (Procedure) Rules, 2003 so that there is no illegality in the proceedings and there is no use of excessive power.
• All the decisions are taken by the Intellectual Property Appellate Board in pursuance of any appeal before it shall be final and binding.
• IPAB is a managerial body that has appellate jurisdiction over the decision of the Controller of Patents or trademarks. However, IPAB has no statutory powers to trial infringement proceedings.
• The IPAB exercises appellate jurisdiction against the orders of the Central Government in matters relating to –

Any decisions related to

1. Investor Names
2. Patent of Addiction
3. Anticipation
4. Potential Infringement
5. Compulsory license of a patent
6. Revocation of patent for non-working
7. Substitution of applicants
8. Any Amendment/revocation of patent
9. Amendment of Application and specification
10. Restoration of lapsed patents
11. Surrender of patents
12. Divisional Application
13. Dating of Application
14. Revocation of patents to satisfy interest of the public
15. Any registration of patent assignment

Composition of IPAB

Section 84 of the Trademarks Act, 1999 provides for the Composition of Appellate Board,

1. The Board comprises of :
   1. Chairman,
   2. Vice-Chairman
   3. Technical member (Trademarks) and
   4. Technical member (Patents).

1. The jurisdiction, powers, and authority of the Appellate Board will be exercised by the Benches which are set up in different places.
2. The Bench will consist of one Technical member and one Judicial member.
3. The Chairman has the power to transfer a member from one bench to another bench.
4. The Chairman, in addition, can discharge the functions of the Judicial Member or a Technical member of more than one bench at the same time.
5. The Chairman may authorize Vice-Chairman or a Judicial Member or a Technical member of one bench to discharge the functions of a Judicial member or a technical member of another bench.
6. If any question arises as to under which bench, the subject matter falls, the Chairman will decide that which bench will look into the matter.

Qualifications for appointment in IPAB

Section 85 of the Trade Marks Act, 1999 provides for Qualifications for appointment as Chairman, Vice-Chairman, or other members of IPAB.

1. A person shall be qualified for appointment as the Chairman of IPAB if and only if;
   1. He is, or has been a Judge of a High Court; Or,
   2. Has for at least 2 years held the office of Vice-Chairman of IPAB.
2. For being a Vice-Chairman of IPAB, a person is required to
   1. Hold the office of a Judicial Member or a Technical Member of IPAB for at least 2 years
   2. Or he has been a member of Indian Legal Services and has held a post in grade 1 of that service for at least 5 years or held any higher post in Indian Legal Service for at least 5 years.
3. To be a Judicial Member in IPAB, one
   1. Must be a member of Indian Legal Service and he must have held the post in grade 1 of that service for at least 3 years.
   2. Or he must have held a civil judicial office for at least 10 years.
4. To be appointed as a Technical Member in IPAB, a person – Has to be an advocate of a proven specialized field of Trade Mark law for at least 10 years.
5. The Chairman, Vice-Chairman and both the members i.e. the Judicial and Technical members shall be appointed by the President of India.
6. Every bench will comprise of a Judicial Member and a Technical Member.
7. In the event that the Members of a Bench vary in the opinion of any right, they shall express the point or points on which they differ, and make a reference to the Chairman who should either hear the points himself or refer the case for hearing on such point or points by at least one or more members and such point or points shall be decided according to the decision of majority of the Members who have heard the case, including the members who initially heard it.

Lawyers in IPAB

A trademark is more or less the identity of a good or service which is present in the market. Any symbol, name or mark can be called a trademark if it distinguishes one good from another. And for maintaining the unique identity of a good or service, it is essential to protect the trademark from being copied or being infringed upon. And that is where the expertise of a Trademark Attorney comes into use.

• A Trademark Attorney or a Trademark Lawyer is a person who is an expert in matters related to trademark laws and designs and practices and provides legal advice regarding the matter. He is a professional having extensive knowledge of trademarks and usually deals with Court cases relating to trademark.
• In India, any person who has taken the course of study in the rules of practice in patent office i.e. trademark laws, or has graduated from a law school and is a member of the Bar can be a Trademark Lawyer.
• To practice trademarks laws before Intellectual Property Appellate Board or in the Trademark Office, a lawyer must get himself registered and he must also be registered to practice law in at least one of the states in India.
• He must also have passed the IPAB Trademark Law Bar Exam after which only he can practice trademark laws before IPAB.
• The work in IPAB is similar to the work done by a lawyer in other Courts but as we know that IPAB only deals with the appeals, so only the proceedings related to appeals are practiced in the IPAB.

Role of a Trademark Lawyer

A trademark lawyer in India assists trademark holders in every way. They not only provide guidance and counsel the clients on registration and subsequent use of trademarks but also make sure that the trademark does not infringe upon rights of another. Trademark Lawyers are also hired by big corporate companies and firms to provide assistance and guidance in matters relating to trademarks of the Company.

• A Trademark Lawyer helps ensure that an application is properly registered with the applicable trademark office. During this process, the Lawyer generally advises his or her clients on the probability of the application becoming the registered trademark.
• Also, the Lawyer evaluates whether any risks are involved in adopting a certain slogan, word or logo. The Lawyer also helps the client to check and ensure the potential mark or name does not violate the rights of any other person or entity.
• If the client decides to move forward with pursuing the mark, the lawyer files the application and communicates with the trademark office as needed.
• In an infringement or dilution case, a Trademark Lawyer can represent either the plaintiff or the defendant. In this role, the lawyer must evaluate evidence and develop a theory of his or her client’s case.
• Other responsibilities include preparing and filing any appropriate paperwork with the Court, facilitating the discovery process, and interviewing or deposing witnesses.
• If the case goes to trial, the lawyer represents his or her clients to Court. If the case is settled outside of Court, the lawyer usually superheads negotiations for his or her client.
• The job of a Trademark Lawyer usually involves working with a client, review of paperwork which too is filed, filing for registration of a trademark on behalf of the client, and following up on registration so that the client is satisfied.

Opportunities for lawyers

There are various opportunities for lawyers who are working in Intellectual Property Appellate Board and practicing trademark laws.

• A Trademark Lawyer can become a Chairman of IPAB not directly but if he has served as a High Court Judge. To be the High Court Judge one has to serve as a standing lawyer in the High Court for at least ten years and then he can be appointed as a High Court Judge by the President of India in consultation with the Chief Justice of India (CJI). Once, he has served as a Judge of High Court, he can be appointed as the Chairman of IPAB.
• A lawyer can also be the Vice-Chairman if he has been a member of Indian Legal Services and has held a post in grade 1 of that service for at least 5 years or held any higher post in Indian Legal Service for at least 5 years.
• A Trademark Lawyer can also be a Judicial member in IPAB if he has been a member of Indian Legal Service and he must have held the post in grade 1 of that service for at least 3 years. Or he must have held a civil judicial office for at least 10 years.
• A Trademark Lawyer if he has been advocating in a proven specialized field of Trademark Law for at least 10 years.
• A Trademark Lawyer gets opportunities in relation to work which he gets in IPAB like working with the client, registering the Trademark. He can also work as a Trademark Agent in the Trademark Office or in IPAB. For that, a lawyer has to be a registered trademark agent and he has to successfully pass the IPAB Trademark Office Exam or if he has served for 4 years or more as an IPAB Trademark Examiner before entering private trademark practice.

Appellate Role of IPAB

Section 91 of the Trade Marks Act, 1999 provides that “any person aggrieved by an order or decision of the Registrar under this Act, may refer an appeal to the Appellate Board within a period of 3 months from the date on which the decision sought to be appealed against is communicated to such person preferring the appeal.”

• An appeal shall lie to the Appellate Board from, inter alia, any decision, order or direction of the Controller or Central Government under Section 15 and Section 25(4) of the Patents Act, 1970.
• These provisions prima facie affirm the appellate role performed by the IPAB vis-a-vis the Registrar of Trade Marks and the Controller of Patents.
• However, the nature of the appellate role of IPAB remains unclear in the light of the instances where both the IPAB, and the Registrar or the Controller as the case may be, are competent authorities to exercise their jurisdiction on the same matter.

In context of patent law

• In the case of J Mitra & Co. V. Assistant Controller of Patents and Design, in 2008, the Supreme Court of India was required to opine on the relationship between the IPAB and the Controller of patents.
• Though the case primarily considered the peculiar situation created by a delay in enforcement of the amended Section 116 and 117A, Patents Act, the observations made therein are significant. The Apex Court had noted that,

“By Patents (Amendment) Act 2005 for the first time a dichotomy was inserted in the Patent Law by providing vide Section 25 (1) for ‘opposition to pre-grant’ and vide Section 25 (2) for ‘opposition to post-grant’ of patent the Legislature intended an appeal under Section 117A (2) to the Appellate Board from any decision, order or direction of the Controller, inter alia, under Section 25(4) the Legislature intended that there shall be only one statutory appeal against grant of the patent. The Legislature intended to obliterate appeal from ‘pre-grant proceedings’, which existed earlier.”

• It is very clear from Section 25(4) that the IPAB practices appellate jurisdiction over the Controller as for the post-grant opposition orders, regardless of whether the opposition is fruitful or not.
• However, the jurisdiction of the IPAB with respect to a pre-grant opposition was further elucidated upon by Justice Muralidhar of the Delhi High Court in 2010 in UCB Farchim V. CIPLA Ltd. In this case, the question which arose was whether an appeal to the IPAB is maintainable against the order given by the Assistant Controller refusing the grant of the patent due to a pre-grant opposition? In deciding this question, Muralidhar drew a pertinent distinction between a successful and an unsuccessful pre-grant opposition.
• As respects, people who have not achieved success in the pre-grant opposition stage to prevent a grant of patent, the Court noticed that as long as these are people intrigued, inside the importance of Section 25(2) and 64, Patents Act, their remedy is to document a post-grant opposition and wait for the decision of the Controller. On the off chance that they are still aggrieved by that decision, they can file an appeal before the IPAB under Section 117A or petition for denial under Section 64.
• It is interesting to note that Section 117A, Patents Act, 1970 permits an appeal to the IPAB against an order of the Controller under Section 25(4) of the Act which deals with post-grant oppositions but does not deal with pre-grant oppositions.
• However, Section 117A does provide for an appeal to the IPAB against the decision of the Controller under Section 15 of the Act, refusing a grant of a patent in case a pre-grant opposition is considered to hold merit.
• Accordingly, if one reads the decision of cases J Mitra and UCB Farchim conjointly, it implies that the IPAB will exercise its appellate jurisdiction over the Controller of Patents in the following two circumstances and no other:

1. Under Section 25(4), Patents Act, 1970, an appeal against any order given by the Controller relating to a post-grant opposition filed by an interested person irrespective of the outcome.
2. Under Section 15, Patents Act, 1970 if the pre-grant opposition is successful and results in the rejection of the patent application.

• It must be taken into consideration that mere success of a pre-grant opposition is not sufficient for the IPAB to have appellate jurisdiction over the Controller because even if the opposition is successful, the Controller can require the patent application to be amended to his satisfaction and eventually grant the patent, instead of rejecting it out rightly.
• In such circumstances, no appeal to the IPAB will be maintainable.

In the context of Trade Mark Law

In relation to Trade Marks Law, the role of IPAB is relatively clearer.

• In Costa & Co. Pvt Ltd V. Union of India, Vipin Sanghi, Justice of Delhi High Court, dealt with an interesting question, the question before him was related to the power of the IPAB to transfer to itself the rectification applications pending before the Registrar that involve substantial evidentiary overlap, even though there was no statutory basis to exercise such power.
• In response, Justice Sanghvi relied on a ruling of the Hon’ble Supreme Court of India in Tirupati Balaji Developers Pvt Ltd V. State of Bihar, held that the conferral of the appellate jurisdiction carries with it certain consequences as a necessary concomitant of that power.
• This includes the power to exercise incidental and ancillary powers without which the conferral of principal power can be rendered redundant.
• Further, only the existence of appellate jurisdiction obliges the lower jurisdiction to render all of its assistance to the higher jurisdiction to enable the exercise of appellate jurisdiction effectively and the superior forum may issue a stay order or restraint order or may suspend, expedite or regulate the proceedings in the subordinate forum.
• In the absence of same, the hierarchy becomes meaningless.
• Placing reliance on such reasoning, the court held that the IPAB, being an appellate authority by virtue of Section 91, Trade Marks Act, 1999, had the power to transfer to itself the rectification applications pending with the Registrar. The rationale adopted here was threefold.

1. In case of a rectification application, the order of the Registrar is subject to an appeal to the IPAB by the aggrieved party. Thus, ultimately it is the view of the IPAB which would be final and binding upon the parties.
2. While exercising the appellate authority, it would be shameful if IPAB cannot take cognizance of the fact that there are still many proceedings pending between the same parties, involving the same issues, the IPAB should take appropriate measures to preserve consistency in the decision-making process; simultaneously saving the parties from harassment and excess costs of litigation.
3. Section 125(2) of Trade Marks Act, 1999 gives authority to the Registrar to transfer rectification application to the IPAB no matter at what stage the proceeding is but only if he thinks fit. However, every transfer order was given by the Registrar, including an order refusing to transfer a pending application to the IPAB, is appealable by reason of Section 91, Trade Marks Act.

• Relying on the same, the Court said that in such an appeal under Section 91, the IPAB is competent to arrive at a conclusion that the Registrar ought to have referred the pending application to the Board in the first place.
• As such, the IPAB can direct the Registrar to refer to it the pending applications, and if it has the jurisdiction to pass such an order in appeal, then there is no reason why it cannot do so otherwise in proceedings pending before it.
• In conclusion, despite there being a jurisdictional overlap, the cited judicial pronouncements positively affirm the extent of appellate jurisdiction exercised by the IPAB over the Registrar and the Controller of Patents under varying circumstances.

Conclusion

Being a Trademark Attorney or a Trademark Lawyer in IPAB is very interesting as there are a number of opportunities which a lawyer can get but he has to pass the IPAB Bar Exam to practice trademark law there. But on a whole, the job of a trademark lawyer is a very lucrative one, since the field of intellectual property i.e. trademarks, patents, copyrights, geographical indications and industrial designs is a less visited one but now it is growing at a large scale in the country. Thus it is required to have good and experienced lawyers to bail the common people out of the difficulties in this field of Intellectual Property.

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Ministry of Corporate Affair had undertaken actions with respect to provisions of Annual Return Filing in the month of September 2017. Under the considered specification, the Ministry has deactivated Director Identification Number (DIN) of 309,614 Directors associated with the companies which failed to submit the financial statements and annual report for a continuous period of three financial years starting. Effect to which has disallowed the companies to file the returns by authorising the said directors. Henceforth, the default would have been continued except appointment of non-disqualified directors.

However, the Ministry of Corporate Affairs has granted another chance to fulfil with the said requirements of Annual Compliance of Private Limited Company. The Ministry has issued the scheme of Condonation vide General Circular No. 16/2017 dated 29.12.2017. The scheme is duly explained here for your kind reference and understanding.

First, let us know why the DINs were deactivated

Non-filing of annual Returns and Financial statements with MCA after Pvt Ltd Company registration is considered as offence on part of the companies and associated directors. Where the penalties are levied on both companies and directors, additional punishment in name of Disqualification of Directors is also prescribed under Section 164(2) read with Section 167 of Companies Act, 2013. The referred provisions disqualify the Directors of the defaulting companies and DIN of concerned directors would be deactivated.

Here, defaulting companies shall be read as any company that has failed to file:

1. Annual Return in Form MGT – 7; OR
2. Financial Statement in Form AOC – 4

with MCA for a continuous period of 3 years.

Directors being responsible for all administrative and compliance requirements of the company, they are held liable for failure of compliance. Continuous failure on for compliance with said provisions after online company registration are considered as offence on part of Directors also. Therefore, in the month of September, 2017, pursuant to provisions of Indian Companies Act, 2013, the step of deactivation of DIN has undertaken with respect to directors of concerned company that has not filed returns since Financial Year 2013-14 to 2015-16.

What is current way-out to comply with requirements?

As mentioned earlier, the Ministry of Corporate Affairs, has granted a chance to the affected directors and companies to be compliant after the payment of additional fees and fees for condonation of the delay caused in name of Condonation of Delay Scheme, 2018.

Highlights of Scheme

The said scheme is made effective from 01.01.2018 and will remain in force till 31.03.2018. By circulation of the said scheme, the Ministry has first re-activated the DIN of the directors that has earlier been deactivated. Important to note is that the re-activation is for a temporary period, during which the directors will be able to file the prescribed forms with the Ministry.

Applicability

The scheme shall be applicable to all defaulting companies excluding the companies which have been struck off/ whose names have been removed from the register of companies u/s 248(5) of the Act. The defaulting company is permitted to file the documents which were due till 30.06.2017.

Procedure

• The DINs of concerned disqualified directors will be temporarily activated till the validity of the scheme i.e. 31.03.2018.
• The defaulting companies shall file the documents in the prescribed forms by payment of normal as well as additional fees. Following are the documents to be filed with the Ministry within prescribed time for Financial Year 2013-14 to 2015-16:

1. E-form AOC – 4 or any other form as applicable for filing of Financial Statements;
2. E-form MGT – 7 or any other form as applicable for filing of Annual Return;
3. E-form ADT – 1 for intimation of Appointment of Auditors;
4. Form 66 for submission of Compliance Certificate with Registrar (if applicable).

One can calculate the fees applicable on filling at http://www.mca.gov.in/mcafoportal/enquireFeePreLogin.do.

• Once the requisite documents are filed, the company shall apply for condonation of delay by filing of form e-CODS with MCA by payment of fees prescribed i.e. Rs 30,000/- only. Kind note shall be taken that the said e-form would be available after 20.02.2018. However, stakeholders are advised to complete the filing of requisite documents without waiting for the availability of said e-form for filing.

On successful filing of e-CODS by payment of fees, the disqualification of the directors will be removed. Therefore, the DIN of the Directors will remain active even after the expiry of the scheme.

With respect to the defaulting companies, whose names have been removed from the register of companies and which have filed the application of revival (up to the date of this scheme), the DIN of concerned directors shall be re-activated only after order of revival from NCLT.

Failure to file the documents & e-CODS

Where the companies fail to file the overdue documents or form e-CODS even after the expiry or conclusion of the scheme and directors are found disqualified under provisions of Companies Act, 2013, the DIN of concerned directors will be deactivated on expiry of said period.

Failure to Avail Condonation of Delay Scheme

In event of failure to avail, the benefit from the Condonation of Delay Scheme, 2018, the disqualification of concerned director will continue for a period of 5 year from the date of failure. During given period of disqualification, the concerned director shall not be able to be appointed as director in any company or re-appointed as a director in the company where he is holding the position of director.

Conclusion

The ministry has undertaken very stringent steps under provision of Companies Act, 2013 in order to make the companies obliged to fulfil the compliance requirements in the manner prescribed. The step of deactivation of DIN is the clue to companies and stakeholder for future actions against non-compliance from the companies and stakeholders. Therefore, now is the need of the hour to be aware of the provisions and fulfilment of same on time after online company registration. One can consult the experts at LegalWiz.in to get assistance with regards to applicability of provisions and compliance requirements of the company. Get in touch with the professionals at support@legalwiz.in.

About Author

The Author of the Article is co-founder at India’s leading online Legal Service Provider, LegalWiz.in. He can also be reached at support@legalwiz.in for Incorporation and Annual Compliance requirements of Private Limited Company other personalised solutions.

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In this article, Abhishek Mishra discusses the capacity to enter into Contracts With Person Of Unsound Mind.

When we learn something new, the first question which strikes our mind is why we need it and what its applicability is in our day to day life. So before we discuss our topic we must know the purpose of the contract. The basic purpose of contract law is to provide a framework within which individuals can freely contract. The word freely means that there should be full and free consent of the parties. Consent can be free only when it is rational and deliberate. Rational consent can only be given when a person is of sound mind. The author through this article will try to do an analysis of the role of unsoundness of mind in case of a contract with the help of statutes, case laws and judgements with respect to English and Indian law.

English law vs. Indian law: An analysis

English contract law is the primary source of its Indian counterpart. Even then there is some dissimilarity between the two. The author will further in this article try to analyse those dissimilarities.

What is sound mind for the purpose of contracting?

Under English law, Persons who have been identified with a mental incapacity are protected from entering contracts. Now, the question is who lacks capacity under English law? A person under English law lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain. It is immaterial whether the impairment or disturbance is permanent or temporary. A person cannot be declared incapable merely on grounds of age or appearance or on the basis of any assumptions which is the result of his behaviour. A person is considered as unable to make decisions for himself if he fails to understand the information relevant to the decision, to retain that information, to make use of that information for making the decision, or to communicate his decision by talking, using sign language or any other means. A person is not declared incapable only on the grounds that he is able to retain the information relevant to a decision for a short period, in this case, information, includes information about the reasonably foreseeable consequences of deciding one way or another, or failing to make the decision.

Now let’s come to the definition of sound mind with respect to the Indian Contract law. According to section 12 of The Indian Contract Act,1872, A person is said to be of sound mind for the purposes of making a contract, if, at the time when he makes it, he is capable of understanding it and of forming a rational judgment as to its effect upon his interests. In Kanhaiyalal v. Harsing Laxman Wanjari (AIR 1944 Nag 232), it was held that mere weakness of mind is not unsoundness of mind. Mental incapacity, arising out of any reason, deprives a person not only of a full understanding of transaction but also of the awareness that he does not understand it. A person of unsound mind is thus not necessarily a lunatic. It is sufficient if the person is incapable of judging the consequences of his acts. In Inder Singh v. Parmeshwardhari Singh (AIR 1957 Pat 491), justice Sinha explained the effect of section 12 in following passage:

“According to this section, therefore the person entering into the contract must be a person who understands what he is doing and is able to form a rational judgement as to whether what he is about to do is to his interest or not. The crucial point, therefore, is to find out whether he is entering into the contract after he has understood it and has decided to enter into that contract after forming a rational judgement in regard to his interest…. It does not mean that the man must be suffering from lunacy to disable him from entering into a contract. A person may to all appearances behave in a normal fashion, but, at the same time, he may be incapable of forming a judgement of his own, as to whether the act he is about to do is to his interest or not.”

This distinguishes it from lack of ability arising due to illiteracy and unfamiliarity with the language.

Is a person of unsound mind competent to contract?

Indian law has a different opinion from English law on this issue. Under English law, a person of unsound is competent to contract, although the contract can be avoided at his option if he satisfies the court that he was incapable of understanding the contract and the other party had the knowledge of the same. Thus, under English law, the contract is voidable at his option. It becomes binding on him only if he affirms it, Imperial Loan Co v. Stone ((1892) 1 QB 599 (CA)), in this case Lord Esher said that a mentally disordered person can only set aside a contract entered into with a person of sound mind in following circumstances: “When a person enters into a contract and afterwards alleges that he was so insane that he did not know what he was doing, and proves the allegation, the contract is as binding on him in every respect, whether it is executory or executed, as if he had been sane when he made it, unless he can prove further that the person with whom he contracted knew him to be so insane as not to be capable of understanding, what it was about.” The position of English law is same for drunken people as it is for a person who is mentally afflicted; such contract is not altogether void but is voidable at the option of the person who entered into the contract in such a state of drunkenness as to not know what he was doing and such fact is known to the other contracting party, Surrey v. Gibson ((1845) 13 M&W 623). Even under English law, contract by a lunatic person is not void. In Campbell v. Hooper ((1855) 3 Sm&G 153), where a mortgagee sought a decree for repayment of debt and evidence showed mortgagor was lunatic when contracted and in addition to it mortgagee was unaware of it. It was held that mere fact of lunacy cannot make a contract invalid. If the other party had knowledge of it, it becomes voidable at the option of the lunatic. Thus it is clear that under English law what is most important is that the other person with whom the person of unsound man contracted had the knowledge of the former being in an unsound state of mind or not.

On the other hand under Indian law a person of unsound mind when is state of unsoundness is not competent to contract. The agreement of a person of unsound mind is void, Amina Bibi v. Saiyid Yusuf (ILR (1922) 44 All 748). However, a person who is usually of sound mind but occasionally of unsound mind may not make the contract when he is of unsound mind whereas a person who usually is of unsound mind but sometimes becomes sound can contract in those intervals when he is sound. In Nilima Ghosh v. Harjeet Kaur (AIR 2011 Del 104) it was discussed that the most relevant thing for declaring an agreement void is whether the person in question was suffering from mental disability on the date of execution of the agreement.

India Contract law also treats a drunken person similar to a person of unsound mind. In Ashfaq Qureshi v. Aysha Qureshi (Nivedita Yadav) (AIR 2010 chh 58), where a Hindu girl was married to a Muslim man, the girl filed a suit on the grounds that she was not in her sense as she was under intoxication at the material time and was not conscious of ongoing conversion and nikah ceremony. And also that she had not lived with that man for a single day. She proved all the stated facts and thus the marriage was declared void on the grounds that as she was intoxicated so she was not in a position to take a decision and forming a rational judgement in regard to his interest.

On whom does the burden of proof lie?

In every case initially, the presumption is in favour of sanity but the presence or absence of it at the time of making the contract is a question of fact in all cases. It is immaterial that the person was insane in a previous or a post time after the point of time when the contract was made except for it is likely to create a suspicion of likelihood of such disorder at the time of formation of contract, M’Adam v. Walker ((1813) 1 Dow 148 (HL)). The onus of proving insanity is on the person who alleges it, Mahomed Yakub v. Abdul Quddus (AIR 1923 Pat 18717). In Lakshmi v. Ajay Kumar (AIR 2006 P&H 77) it was held that it must be proved that the point of insanity was at the time of formation of the contract. In Mohanlal Madangopal Marwadi v. Sadasheo Sonak (AIR 1941 Nag 251), it was held that, in the case where a person is usually of unsound mind, the burden of proving that he was of sound mind at that time lies on the person who affirms it. Whereas, in the case where a person is usually in a sound state of mind the burden of proving that he was in an unsound state of mind lies upon the person who challenges the validity of the contract. However, in case of drunkenness or other cause, the onus lies on party who sets up that disability to prove that it existed at the time of the contract and it has to be proved that the party was so drunk as to unable to comprehend the meaning and effects of an agreement, and, under the English law also that the other party was aware of his condition.

Conclusion

As going through this research work it is established that Indian contract law is heavily borrowed from its English counterpart but both differ in some aspects, and the English model seems to have a wider ambit than its Indian counterpart.

REFERENCES:

• Primary sources
  1. Mental Capacity Act, 2005 c 9.
  2. The Indian Contract Act, 1872 (Act 9 of 1872).
• Secondary source
  1. DR Avtar Singh, Law of Contract And Specific Relief (Eastern Book Company, Lucknow, 12th edn., 2017).
  2. Pollock And Mulla, The Indian Contract And Specific Relief Acts (LexisNexis, Gurugram, 14th edn., 2013).
  3. Manupatra
  4. SCC Online

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ABOUT US

Mohammad Abdul Bari Institute of Juridical Science, a legal education centre thriving for excellence and performing as one of the best law colleges. Established in the year 2008 the Institute has moved a long way and stood against odds and proved itself to be a contender as Best Law College. The institute has entered into MOU with Lex Research Hub, an online learning platform for the legal scholar, founded with an objective to provide information relating to curriculum activity, guidance for the competitive examinations and offer courses for the students of management, law, social sciences and professionals. We are using modern technology to disrupt the traditional legal education across the country.

Mohammad Abdul Bari Institute of Juridical Science is a private law college in Domkal, Murshidabad, West Bengal. It was established by Maniknagar Social Welfare Society in the year 2008. The college is affiliated to University of Kalyani and also approved by the Bar Council of India.

University of Kalyani

The University of Kalyani, established in 1960, is a state-government administered, affiliating and research university in Nadia district of West Bengal, India. It offers courses at the undergraduate and post-graduate levels, the university was established on 1 November 1960 by the Kalyani University Act 1960 of the state of West Bengal.

The University of Kalyani is a State-University and its activities are guided by the Kalyani University Act, 1981, the Act is supplemented by Statutes, Ordinances, Regulations and Rules. This act replaced The Kalyani University Act, 1978, which in turn replaced The Kalyani University Act, 1960, the University Grants Commission accorded recognition to the university.

The university is placed in an urban setting touching the boundaries of some rural areas. The eastern bank of the Ganges is only 2000 meters from the University and it is close to Kalyani Ghoshpara railway station, 10 minutes walking distance to Administration Building from the station, and the other campuses are around it. During Second world war this land was under the control of American army which maintained an arms depot here, few roadways and other constructions are still there to prove that past history.

Faculty of Engineering-Technology & Management 3, Faculty of Arts & Commerce. Colleges are independent from the university but they follow the course curriculum of the university, colleges are headed by the principal and teachers of the colleges as appointed via West Bengal college service commission. Colleges have responsibility for admitting undergraduates and organising their classes. The University of Kalyani has been awarded A grade by the National Assessment and Accreditation Council. This was one big achievement by the biologists in the field, list of universities in India Official website

FACULTY

TEACHER IN CHARGE

• SOUMIK ASH {M. (BURDWAN UNIVERSITYY)}

ASSISTANT PROFESSOR

• ESHA RUHUL AMIN {A. (POLITICAL SCIENCE) B. Ed. (KALYANI UNIVERSITY)}

ASSISTANT PROFESSOR

MRS. ANAMIKA DAS

ASSISTANT PROFESSOR

• MRS. DOLLY BISWAS {M. (VIDYASAGAR UNIVERSITY)}

ASSISTANT PROFESSOR

• PIALEE PARBHIN {M. (ALIAH UNIVERSITY)}

ASSISTANT PROFESSOR

• MD SABIKUR RAHAMAN {M. (ALIAH UNIVERSITY)}

ASSISTANT PROFESSOR

• MRS. SANGEETA RAHAMAN AKBAR {M. (BURDWAN UNIVERSITY)}

ASSISTANT PROFESSOR

ABDUL HALIM

ASSISTANT PROFESSOR

AMIT DAS (SOCIOLOGY)

ABOUT THE COMPETITION

A. B. Institute of Juridical Science in association with Lex Research Hub, is proud to present the 1^st International Essay Competition for Law Students, Faculty members, Research Scholars and Professionals.

THEME

Submissions which deal with any aspect of Legal, Social & Economic Issues will be considered.

Important Dates

Last date of registration 26^th February, 2018.

The essays must be submitted on or before 20^th March 2018.

ELIGIBILITY CRITERIA

Any student pursuing an undergraduate, postgraduate or professional course in any recognized University/College in India & professionals, Research Scholar, Advocates, Professors, and Academicians are eligible to participate in the Competition.

Only one submission per author shall be entertained.

Co-authorship by a maximum of two persons is permitted.

GUIDELINES FOR SUBMISSION

1. The essays must be submitted in English only.
2. The essays should be the original work of the authors. Any kind of plagiarism will lead to disqualification.
3. The essays published elsewhere or selected/submitted for publication elsewhere shall be disqualified.
4. The name(s) of the author(s) should not be mentioned anywhere in the essay.
5. The word limit for the essay is 3000 – 4000 words, not including footnotes.
6. The essays should be typed in:Times New Roman, Font Size 12 and Line Spacing 1.5.
7. Every citation must follow the ILI style. The footnotes must be typed in: Times New Roman, Font Size 10 and Line Spacing 1.
8. The margins should be 1” or 2.54 cm on all sides.
9. All text should be justified.

SUBMISSION PROCEDURE

1. The essays must be sent by email to eventsmabijs@gmail.com with the subject ‘MABIJS 1st International Essay Competition  2018’.
2. The body of the e-mail must specify the name(s) of the author(s).
3. The essay may be attached in ‘.doc’ or ‘.docx’ format.
4. The participants are required to send the following details in a separate word document attached to the e-mail:
   1. Theme Chosen
   2. Title of the Essay
   3. Name(s) of the Author(s)
   4. College/ Institute/ University of Author(s)
   5. Programme Enrolled & Year of Study of Author(s)
   6. E-mail address & Contact No. of Author(s)

PRIZES

1st Place: Trophy + Medal + Certificate

2nd Place: Trophy + Medal + Certificate

3rd Place: Trophy + Medal + Certificate

All Participants will be issued Electronic Certificates

REGISTRATION

• Registration fee is 350/- INR only for Single Author.
• In case of Co-authorship Registration fee is 600/- INR only.
• For International Participants: $10 per Author
• In case of International Co-authorship Registration fee is $15 only.
• For Professionals: Registration fee is 1000/- INR per Author.
• In case of Professional Co-authorship Registration fee is 1500/- INR only.

FOR THE PAYMENT OF REGISTRATION FEES

PAYTM – 8001324635

              OR

Payment can be made by NEFT/IMPS/RTGS/Demand Draft or Bank transfer in favourof :

Beneficiary Name: SONAM HASSIM

Account Number: 29428100002054

Bank: Bank of Baroda

Branch: Basantapur, West Bengal

IFSC Code: BARBOBASMUR

MICR Code: 742012504

The transaction ID along with scanned /photo copy/screenshot of the transaction must be attached along registration form provided herewith.

Important Note

1. All original essays submitted for this competition shall become the sole property of M. A. B. Institute of Juridical Science &Lex Research Hub. MABIJS &Lex Research Hub shall have the right to publish the entries.
2. The decision of the Jury shall be final and binding.

Contact

Faculty Co-ordinator – Mr. Soumik Ash, Assistant Professor – 07479023268

Lex Research Co-ordinator – Mr. SonamHassim – 8001324635

For further queries, contact us at eventsmabijs@gmail.com

The Brochure – HERE

The Registration form – HERE

More details about the essay are available Click Here

The post 1st M.A.B.I.J.S International Essay Competition 2018 – Register by Feb 26, Submit by March 20 appeared first on iPleaders.

In this Article, Vaibhav Pasi analyses the judgment given by the Supreme Court in the case of Rajesh Sharma V State of UP and highlights the flaws in the reasoning given by the Court.

Introduction

India has been a strongly patriarchal society because of its cultural and religious factors. For centuries we have followed the social norm where women are considered to be inferior to men in every aspect of life. Though with time, the paternalistic view has diminished to some extent but the ideology of men supremacy is still intact. Women are limited to household work and manage the house and family. Following the same belief, the law which governs us and the related jurisprudence reflects this women subjugation.

Problem of Dowry in Indian Society

Dowry has been the real menace in Indian society. India faces a high rate of deaths of women in dowry-related crimes. The substantial reduction in the risk of physical violence and sexual violence reflects that how husbands are satisfied and show how dowry defines the woman’s position in the house. The reason for this aggression is the fact that patriarchal society supports this kind of violence at home.

Law governing cases of Dowry Death

Section 498A of the Indian Penal Code deals with the violence against married women by their husbands or relative of their husband. Since its inception, the law has been the point of debate in society because of its misuse by some wives. The law is non-compoundable, hence once a person gets accused, the matter can’t be settled outside the court.

Case Analysis

Facts of the case

Rajesh Sharma and Sneha Sharma got married on 28th November 2012 and father of Sneha Sharma gave the appellant dowry to his fullest capacity. But appellants were not happy with the amount of dowry and they started abusing the complainant and was daily beaten and exploited by the husband. The appellant then left the complainant Sneha at her home because her pregnancy was terminated. On that, she summoned Rajesh Sharma under IPC sec 498A and 323.

Decision of Session Court and High Court

The session court in its judgment found Rajesh Sharma guilty under section 498A. But later Sneha summoned her parents in law and the brother and sister of the husband. The said petition was accepted by session judge Jaunpur on 3rd July 2014. The appellant then approached the High Court against the order of summoning. Though the matter was referred to mediation center but without any avail. Then the High Court found no ground to support this petition and rejected it.

The Central issue arising, in this case, was to check the constant tendency to rope in all the family members in the crime. It was stated in the petition that Sneha Sharma herself left her matrimonial home and her father in law was a retired government employee and her mother in law was a housewife whereas it was also stated in the petition that her sister in law and brother in law were unmarried government employee and had no interest in demanding the dowry from Sneha. After Rejection of petition in the High Court, appellant then moved to Supreme Court.

Issue involved in the case

The Supreme Court judgment of the case of Rajesh Sharma vs State of Uttar Pradesh[1] comes out with judges prescribing some measures to curb the misuse of the Sec 498A. The judgment after its pronouncement has been the point of criticism from various feminist NGOs and women social activists. The issue, in this case, was whether the family of the accused be also detained in the act and how to save the innocents. Granting of leave to appellant was not an issue but the reasoning given was flawed to some extent.

Flaws in the reasoning of Supreme Court Judgment

• Reflection of patriarchy and male values

• • The very depressing fact in this case which everyone talks about is the judge instead of looking the ground reality of the law has taken the support of the data to come to his conclusion.
  • The judges did not concede even once that the law up to substantial extent has reduced the physical violence and dowry-related crimes
  • The judges not even once thought about what are the implication of a diluted dowry law. This belief fuels from a patriarchal Society which upholds men supremacy and power with pride.

• Feminist perspective: How women rationale is subjected inferior to men.
  • Feminists[2] will criticise this judgment that it shows how male values are deeply entrenched in our society that still reflects in its every aspect.
  • The judgment also talks about how women file the complaint on the trivial issue and lack the ability to foresee the consequences of that act, shows that Women rationality, reasonableness, and other ability are considered to be less than that of men.
  • Any woman who tries to protect her rights and fight for her rights is being named as ‘disgruntled’ by the court which goes to show that anything which is different from the ‘malestream’ thinking will be termed as deviant conduct.
  • The court also says that family in Indian society is far more important for peace and harmony in society and that implies that a wife and her roles are stated as per male understanding of the word ‘wife’.
  • Women are supposed to work for the unity of a family and have to comply with whatever her husband says. That’s the word ‘wife’ deprives women of her natural rights which are pre-existing and every human being is entitled to it.
  • The fact judges show in judgment that 30 percent of accused in the cases are mother or sister of husband shows that how women rationality and thinking has also been strongly influenced by the male perspective and they have kind of internalized the dominant male views.

• Realists’ perspective

• • Though apparently, it seems the judges have stated how a law in practice differs from its precepts and with society always changing there is need to reevaluate the law and take into account the real situation. But this reasoning of the judges is completely flawed as judges without removing the ought spectacle before looking at the law they started criticising the law and how it has created a floodgate for no. of cases.
  • The fact that judges only chose to view the National Crime Records Bureau data and did not take into consideration the surveys and analysis of various NGOs and other data goes to show the judges predisposition towards male domination.
  • The fact that NCRB data only shows how number of cases are being filed and only 14 percent of them get convicted goes to show the intricacies involved in Indian Judicial processing and the patriarchal nature of society as most of the women out of fear give up and those who still fight termed false may be because of inappropriate police investigation.
  • For many women, the daily occurrence of violence and stigmatization has been so normalized that they have internalized these things and they only approach a court when the case is of extreme violence.
    

    The guidelines issued before the arrest.

• • Court has constituted a committee and every case related to dowry will go to this committee which gives this committee uncheck power and it can work as a justice dispensation system.
  • No arrest will be done until the committee gives its report to the magistrate that shows the justice to the victim will be delayed.
  • Committee members who act as a judicial body can be influenced and bribed by accused[3].
  • The judge’s discretion is based on nothing but his/her background and the judgment reflects that background.
  • The precedence judges use also reflects their male-dominant view as most of the cases they used is to support their reasoning that 498A is being misused.

Suggestions

What was required for judges, in this case, was to look at more than one source for their reasoning and a positivistic approach was needed in the judgment. Because now the form of the law is diluted it hardly serves the purpose. The struggle and fight of many women activist behind this law are forgotten in favoring male values. The court needed to re-examine the effect and purpose of the law and then judge the case in light of both and relation to each other.

Conclusion

The major problem our judicial system has, is the falling acknowledge and judicial recognition of rights of women. Rajesh Sharma vs State of Uttar Pradesh judgment reflects how justice for women in Indian society is far from realized. The judgment in itself presents the male-centric Indian judiciary which makes women fight hard for their rights. Indian judiciary needs feminization and it needs to protect rights of men and women equally. Instead of taking measure to curb the menace of dowry, judgment has made the situation even worse. Women who raise voice against such violence and protest will fear to protest as they will be either thrown out of their home or the judiciary will render them as a ‘disgruntled’ wife. Thus, the effect and purpose of law should be rechecked by the judiciary and it should do the needful.

The post Rajesh Sharma v State of UP – Case analysis on Dowry Death and Section 498A of the Indian Penal Code appeared first on iPleaders.

In this article, Aishwarya Deep Singh critically analyses the debate on Right to Life vs Right to Die and answers whether the right to die is a fundamental right guaranteed under the Indian Constitution or not.

Introduction

The privilege to bite the dust is an idea in light of the conviction that an individual is qualified to end his/her own life or to experience willful killing. Ownership of this privilege is usually comprehended to imply that a person with a terminal sickness ought to be permitted to end his/her own life or to utilize assisted suicide or to decay life-drawing out treatment. The topic of who, in the event that anybody, ought to be enabled to settle on this choice is regularly integral to face off regarding.In India, Right to Die is basically seen as voluntary euthanasia or attempted suicide. This right, being an issue of controversy since 1994, starting from the case of P. Rathinam v Union of India.[1] Out of so many fluctuations in the judgments, this dispute is still not well established.

Lawyers usually connect the privilege to kick the bucket with the possibility that one’s body and one’s life are one’s own, to discard as one sees fit. Be that as it may, an honest to goodness state enthusiasm for averting nonsensical suicides is in some cases contended.

The word willful extermination started in Greece implies a decent death.[2] Killing incorporates different measurements, from dynamic (acquainting something with cause demise) to uninvolved (withholding treatment or steady measures); intentional (assent) to automatic (assent from watchman) and the doctor helped (where doctors recommend the drug and tolerant or the outsider oversees the prescription to cause death).[3] Demand for untimely completion of life has added to the open deliberation about the part of such practices in contemporary human services. This level-headed discussion cuts crosswise over intricate and dynamic perspectives, for example, lawful, moral, human rights, wellbeing, religious, financial, profound, social and social parts of the acculturated society. Here we contend this unpredictable issue from both the supporters and adversaries’ viewpoints, and furthermore endeavors to introduce the predicament of the sufferers and their parental figures. The goal is to examine the subject of willful extermination from the restorative and human rights point of view given the foundation of the current Supreme Court judgment in this specific circumstance.[4]

Controversy between Article 21 and Section 309 of the Indian Penal Code

In India, abetment of suicide and endeavor to suicide are both criminal offenses. In 1994, the sacred legitimacy of Section 309 of the Indian Penal Code was tested in the Supreme Court. The Supreme Court proclaimed that IPC Sec 309 is unlawful, under Article 21 (Right to Life) of the constitution in a milestone judgment.[5] In 1996, an intriguing instance of abetment of the commission of suicide (IPC Sec 306) came to Supreme Court. The denounced were sentenced in the trial court and later the conviction was maintained by the High Court. They engaged the Supreme Court and fought that ‘right beyond words’ incorporated into Article 21 of the Constitution and any individual abetting the commission of suicide by anybody is just aiding the authorization of the center directly under Article 21; henceforth their discipline is an infringement of Article 21. This influenced the Supreme Court to reevaluate to and to reexamine the choice of appropriate to kick the bucket. Quickly the issue alluded to a Constitution Bench of the Indian Supreme Court. The Court held that the privilege of life under Article 21 of the Constitution does exclude the privilege to die.[6]

With respect to, the Supreme Court rethought its choice on suicide. Abetment of suicide (IPC Sec 306) and endeavor to suicide (IPC Sec 309) are two offenses; henceforth Section 306 can survive free of Section 309. It has likewise plainly expressed that a man endeavors suicide in sadness, and consequently he needs assistance, instead of discipline. Accordingly, the Supreme Court has prescribed to Parliament to consider the practicality of erasing Section 309 from the Indian Penal Code.

Medical Status

“The better choice is not to rebuff anybody for endeavouring suicide however the law might be permitted to stay on the statute book as the odds of manhandling of its erasure are high.”

Envision a public in which patients are routinely euthanized—regardless of whether they need their lives to end or not—if their misery can’t be eased without dulling their cognizance, wiping out their freedom, or debilitating their pride. In such a public, protectors of existing conditions may contend that the obligation to avoid enduring and outrage makes the arrangement basic. A convincing reaction would be that, while enduring, insult, and loss of freedom are unfortunate, just the individual persisting them ought to choose whether they are excruciating. On the off chance that a patient is able to choose, no one other than that patient ought to have the expert to choose whether life merits proceeding.

The exceptionally same contention, in any case, can be progressed against the present practice, pervasive in many nations, of denying individuals from looking for help to end their lives. Albeit a few people may choose that the anguish and outrage that describe their lives are not adequately terrible to make life not worth proceeding, other individuals in a similar circumstance will consider their condition horrendous. Similarly, as it is inappropriate to compel individuals to pass on, so is it wrong to constrain individuals to persist conditions that they observe to be unendurable.

The choice about whether to keep living in such conditions is among the most critical that can be made. Similarly, as individuals esteem having control over where to live, which occupation to seek after, whom to wed, and whether to have kids, so individuals esteem having control about whether to keep living when personal satisfaction decays. That is the reasons the privilege of life and the privilege to kick the bucket are not two rights, but rather two viewpoints or depictions of a similar right. The privilege of life is the privilege to choose whether one will or won’t keep living. The privilege to die is the privilege to choose whether one will die (when one could keep living). On the off chance that the privilege to life was just a privilege to choose to keep living and did not likewise incorporate a privilege to choose not to keep living, at that point, it would be an obligation to live instead of a privilege to life. The possibility that there is an obligation to keep living, paying little respect to how awful life has progressed toward becoming, is an impossible one for sure.

The privilege to die requires elucidation. It requires not be a privilege to help with consummation one’s life. Rather, it requires just add up to a privilege not to be kept from picking up help with closure one’s life. This refinement is significant. On the off chance that the privileges to kick the bucket were a privilege to positive help, at that point others would foul up on the off chance that they neglected to help. What is agonizing over such a rights guarantee is, to the point that it could force on the individuals who have moral misgivings concerning willful extermination or helped suicide an obligation regardless to help other people kick the bucket. That claim is more dubious. Along these lines, the privilege to kick the bucket requires being translated just as a privilege not to be kept from being helped by the individuals who will help. At the end of the day, the individuals who think helped suicide and willful extermination are unethical ought to not be compelled to (help) kill others. Nonetheless, they ought to also not be permitted to keep others from offering help to the individuals who have sensibly verified that their lives are not worth proceeding. No one ought to be compelled to help, nor constrained not to help.

Some may inquire as to why help is vital. On the off chance that individuals need to die, for what reason would they be able to not simply execute themselves? There are, indeed, great reasons that help might be either vital or attractive. In a few circumstances, individuals have turned out to be so feeble or incapacitated that they are truly unfit to slaughter themselves. In the event that individuals have no alternative of help, they may be compelled to murder themselves before they feel that life has turned out to be unendurable, simply because they realize that they will be unable acquire help at a later stage, once their condition crumbles. Indeed, even individuals who can murder themselves may incline toward the help of others, and particularly medicinally prepared individuals. This is because slaughtering oneself can be a chaotic, undignified, or unduly excruciating act, and a demonstration that may superfluously force on others. Tossing oneself before preparing or off an extension, for instance, can make impressive injury others, and those are grisly approaches to kick the bucket. An overdose could prompt a more noble demise, yet lay people regularly know too minimal about how dependably to end their lives that way.

Neglecting to overdose appropriately or being found before death has happened could leave a man in a vegetative condition, which is precisely what that individual may have been looking to keep away from. With the help of a minding, skilled specialist, individuals can orchestrate to die at a picked time, in protection and with pride. It is along these lines completely reasonable that individuals may favor this choice to taking their own particular lives unassisted.

Important Judicial Verdict on Right to die

In the words of Pipel and Amsel “Contemporary proponents of ‘rational suicide’ or the ‘right to die’ usually demand by ‘rationality’ that the decision to kill oneself be both the autonomous choice of the agent desired by liberals, and ‘a best option under the circumstances’ choice desired by the stoics or utilitarian, as well as other natural conditions such as the choice being stable, not an impulsive decision, not due to mental illness, achieved after due deliberation, etc.[7]

Starting from the case of State v. Sanjay Kumar[8] the Delhi High Court criticizing section 309 of IPC as an ‘anachronism and a paradox’ and then followed by a different view of different High Courts on section 309.

In the case of Naresh Marotrao Sakhre v. Union of India[9] observed the difference between Euthanasia and suicide. Suicide being an act of self-destruction, to terminate one’s own life without the aid or assistance of any other human agency whereas euthanasia being different as it involves the intervention of a human agency to end one’s life. This mercy killing is from nowhere covered in section 309.

In P. Rathinam v. Union of India[10] the court giving a relief to the misers attempting suicide, section 309 was held to be irrational and deserves to be effaced from the statute book to humanize our penal laws. It attempts in doubly punishing the man who is tremendous pain and would be undergoing ignominy because of failure to commit suicide.

Soon, this was also overruled in the case of Gian Kaur v. State of Punjab[11] and it was held that right to life does not include right to die or to be killed. It was further held that right to life was a natural right embodied in article 21, but suicide was unnatural termination or extinction of life and therefore, ‘incompatible and inconsistent’ with the concept of the right to life. The right to life includes right to live with human dignity would mean the existence of such a right up to the end of natural life. However, the court appears to approve passive euthanasia by holding that one may have the right to die with dignity as a part of the right to live with dignity.

Thus, any form involving unnatural termination of life has been held to be illegal. Even just an attempt of suicide is punishable shows the credibility accorded to the sanctity of life and right to life. While decriminalizing of euthanasia if seen in Indian perspective won’t work even also on grounds of humanity as it involves a third person.

Thus, this controversy needs to be resolved.

Debates on Right to Die

It is said that it is our life and we should have the control over it. It should be to us that if the circumstances require we should have the right to terminate it. In this era of globalization and of potential technologies it is important to grant us extreme longevity.

Some recent instances of few individuals seeking assisted suicide from incurable diseases have severely raised the issue of dying as a matter of individual or state. While looking on the religious side of death many religions consider it to be a sin. Whether it be suicide or euthanasia.

We can see that in the west euthanasia is legalized in most of the countries. Doctors perform voluntary euthanasia but do doctors have the right to decide which patient’s life is valuable and who’s not?

Talking of the religious side today, it is believed that the religious arguments are valid only for religious believers. We cannot put restriction on all people. But on the other hand, it is believed that only God can take life.

It is said to make a practice of considering it a crime to make people live with who with justification does not wish to continue. When we are particularly considered to taking life some people believe it to have been a slippery slope to legalized murder but yet there is a lack of evidence to clearly prove this fact.

Right to die – Legal position in other countries

As of the records available, we know that human euthanasia is legal in Netherlands, Belgium, Ireland, Colombia, and Luxembourg and assisted suicide is legal in Switzerland, Germany Japan, Canada, and Albania and some parts of USA.

The United States Of America– We see that active euthanasia is illegal throughout the USA but in Oregon, Washington, Vermont, California and a country of Mexico assisted euthanasia is legal.

Australia– In 1995, it became world’s first legislation by legalizing euthanasia, but assisted suicide was made legal only for a period and now it is not. Due to the death of four patients under Rights of the Terminally Ill Act 1995, the act was overturned by Australia’s federal parliament in 1997.

France- The country’s controversy is not much big because of the ‘well -developed hospice care program’. But in 2000 after the case of Vincent Humbert, it did jumpstart a new legislation which states that when medicine serves ‘no other purpose than the official support of life’ they can be ‘suspended or not undertaken.’

As of now, the Australian state of Victoria has become the first state to legalize assisted dying in the world. The bill has been passed in the parliament and it will make assisted dying legal in the state from 2019 onwards. After the mark of Victorian legislation as the world’s first parliament to undergo an extensive process to introduce voluntary assisted dying, other countries have also introduced laws through a referendum or a court process.

Conclusion and Suggestions

Starting from the case of Maynard.[12] She had to move to Oregon in order to take the advantage of Death with Dignity law when discovered with brain cancer. This case brought us to the light of ‘nobody has the right to take away the option of dying from someone who is terminally ill.’ Does the state and not the individual has the full right of deciding the death of a person?

In P. Rathinam v. The of India and other[13] it was said that section 309 should be eradicated from the penal code as it doubly punishes the sufferer who attempts suicide. It was held to be cruel in its nature and was violative of article 21 of the Indian Constitution.

But a clear distinction was made in Naresh M Sakhre v. Union of India[14] between euthanasia and suicide.

Later in Gian Kaur v. State of Punjab[15], it was held that article 21 guarantees only Right to Life.

All the above inferences lead to the fact that any termination of life is illegal whether it be euthanasia, assisted suicide or assisted dying. Hence, while deciding this debate there should be the resolution of the conflicts between the sanctity of life and the rights of self-determination and dignity of human beings.

Law Commission of India in its 20th report[16] recommended removing section 309 IPC from the statute book. The states and union territories were requested on this recommendation and accordingly, 18 states and 4 union territories supported the deletion.

In the landmark case of Aruna R Shanbaug v. Union of India[17] the Supreme court gave a distinction between active and passive euthanasia. It held that active euthanasia being completely illegal passive euthanasia upon the circumstances of the case can be availed. Passive euthanasia is when the doctor switches to the support system or when the person is deprived of all the nutrition, foods and results in starvation. Active euthanasia is being prescribed medicines by the doctors. This is illegal because this involves the killing of a human. But when this is a painless and dignified death why is it prescribed for the passive euthanasia? Just because of active euthanasia involving killing?

If we spend money on the patient, being very well aware that this will not in any circumstances keep him alive then it is purely a waste of expenditure of the family. And knowing the high expenses incurred in medical will it not deteriorate the financial condition of the family?

Hinduism accepts the right to die for those who are tormented by terminal diseases or those who have no desire, ambition or no responsibilities remaining; and allows death through the non-violent practice of fasting to the point of starvation (Prayopavesa).Jainism has a similar practice named Santhara. Other religious views on suicide vary in their tolerance and include denial of the right as well as condemnation of the act. In the Catholic faith, suicide is considered a grave sin.

Instead of legalizing the right to die and allowing it generally it can be allowed in rarest of rare cases. It can also be allowed in appropriate cases of passive euthanasia by taking the consent of the patient or by the information and consent provided by the doctors.

REFERENCES and FOOTNOTES:

[1] P Rathinam v. Union of India (1994) SCC 394

[2] Lewy G. Assisted suicide in the US and Europe. New York: Oxford University Press, Inc; 2011.

[3] Dowbiggin I. A merciful end: The euthanasia movement in modern America. New York: Oxford University Press, Inc; 2003.

[4] Aruna Ramchandra Shanbaug vs. Union of India & Ors. Writ Petition (Criminal) no. 115 of 2009, Decided on 7 March 2011.

[5] P. Rathinam vs. Union of India, 1994(3) SCC 394

[6] Gian Kaur vs. the State of Punjab, 1996(2) SCC 648

[7] Gandhi A, Chaturvedi SK, Chandra P. Desire for death in cancer patients – an Indian Study. Presented at the International Congress of the International Psycho-Oncology Society, Copenhagen 2004

[8] State v. Sanjay Kumar, (1985) Crl. Law Journal, 93

[9] Naresh Marotrao Sakhre v. Union of India 1995 Cri L J 96 (Bom)

[10] P. Rathinam Vs Union of India and another AIR 1994 SC 1844: 1994 Cri. L. J. 1605: (1994) 3 SCC 394,

[11] Gian Kaur vs. the State of Punjab, 1996(2) SCC 648

[12] http://edition.cnn.com/2014/10/07/opinion/maynard-assisted-suicide-cancer-dignity/index.html

[13] P. Rathinam vs. Union of India, 1994(3) SCC 394

[14] Naresh Marotrao Sakhre v. Union of India 1995 Cri L J 96 (Bom)

[15] Gian Kaur vs. the State of Punjab, 1996(2) SCC 648

[16] http://lawcommissionofindia.nie.in/reports/rep196.pdf

[17] Aruna Ramchandra Shanbaug vs. Union of India & Ors. Writ Petition (Criminal) no. 115 of 2009, Decided on 7 March 2011.

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