In this article, Anant Bakkliwal discusses recent changes in the Insolvency And Bankruptcy Code.

Introduction

The Insolvency and Bankruptcy Code, 2016 (Hereinafter referred to as ‘The Code’) was passed by the Parliament in May 2016 and became operational in December 2016. This code provides for a market-determined and time-bound insolvency resolution process which focuses on a creditor-driven insolvency process. A paradigm shift from the existing regime of ‘Debtor-in-Possession’ to ‘Creditor-in-Control. The relative effect could be seen on whole of the economy as capital and productive resources could now be redeployed relatively faster.

However, the empirical practice of the Code saw certain loopholes, which couldn’t be settled by just NCLT rulings, and thus the country witnessed The Insolvency and Bankruptcy Code (Amendment) Ordinance, 2017. There has been a huge amount of Rs 25.26 Lakhs Crore of the NPAs which highlights on some of the shortcomings such as eligibility of resolution applicants but others are yet to be acknowledged, both of which can be explained in the following order.

Issues Addressed by the Amendment

Expanding the Scope of Insolvency

Previously, the Code’s application except on the Companies (established under Companies Act, 2013 and any other special Act) and Limited Liability Partnerships was limited only to ‘Partnerships and individuals’ but now Section 2(e) has been replaced. This amendment widens the Code’s implementation to include Personal guarantors to corporate debtors and all kind of firms such as proprietorship firms as well as partnership firms. Moreover, the Code also envisages to include other individuals which leave the scope to add any other entity as and when needed by the procedure.

Eligibility of Resolution Applicant

One of the major objectives of the amendment is to strengthen the Insolvency Resolution Process for the purpose of which certain prohibitions are introduced for the entities who can submit a resolution plan. These Changes are explained as follows:

• Definition: While the original definition of the ‘Resolution Applicant’ recognized any person who submitted resolution plan to the resolution professional, the amendment made the position of resolution applicant very specific. It stressed upon resolution applicant as an entity individual or joint who submits a plan only when an invitation has been sent to him by Resolution Professional under the amended Section 25(h) of the Code.

The government’s determination is clearly visible from the amendment made in the definition of Resolution Plan in Section 5(26) where for the purpose of accepting the plan, the word ‘any person’ was replaced by ‘Resolution Applicant’.

• Invitation Criteria: While in the previous regime of The Code, eligibility norms for resolution applicant were pretty facile, instances can be taken from Section 36 of the IBBI Regulation, 2016 which allowed the submission of resolution plan from ‘Any potential applicant’, which is a very vague worded expression and any person through hook or crook can become part of such touchstone.

Now by amending Section 25(2) (h), the situation where any person could put forward a resolution plan has been narrowed to only those entities who passes through the approval of the committee of creditors and keeping in view the scale and complexity of operations of business of the Corporate Debtor to avoid frivolous applicants.

• Introduction to Section 29A: The ordinance has also demarcated some additional requirements for the applicants before their plan is approved by the Resolution Professional. The important point to note here is that this condition also implies to Section 35(1)(l) which actually bar the promoters of companies undergoing the resolution process from bidding for their own companies, which includes some big shots such as Essar Steel, Bhushan Steel, Jaypee Infratech, ABG Shipyards etc. Some criteria of ineligibility are:

Wilful Defaulters are–

1. Those individuals which have Non-Performing Assets for a period of one year or more has elapsed from the date of such classification;
2. Those who have executed an enforceable guarantee in favor of a creditor, in respect of a Corporate Debtor;
3. Those prohibited by Securities Exchange Board of India or convicted of any offence punishable for two or more years;
4. This also includes connected persons to the above, such as those who are Promoters or in the management of control of the Resolution Applicant, or will be Promoters or in the management of control of Corporate Debtor during the implementation of the Resolution Plan, the holding company, subsidiary company, associate company or related party.

As a result of the newly introduced Section 29A of the Code, sister concerns of the debtor, as well as corporate guarantors will also be ineligible to bid for these companies.

Reliability of the Process

It is important for investors to have faith in the procedure and the government’s desperation to leave no stones unturned for this purpose against the wilful defaulters is quite clear from the changes made in Section 35(1)(l). This section deals with the sale of the movable and immovable property. Same eligibility criteria, which are laid down on the resolution applicant, are imposed on the buyers of such assets also, causing the promoters to not even be able to bid for such assets.

Promoters buying their own stressed assets is not justified to the creditors who can use those assets to set off the amount due to them. This has also been pointed out by Ranjish Kumar, chairman of the State Bank of India who said: “Promoters are within their rights to submit bids in the resolution process of stressed assets under Insolvency & Bankruptcy Code which is not justified.” However, the changes made in Section 35 will surely keep a check on the promoters and their related party using their shell companies in the process of liquidation for any kind of recovery of their assets.

Effects of Amendments

The government’s desperation to keep on edge, all the ineligible characters from the insolvency proceedings is quite visible from the changes made in Section 30(4). Not only Section 29A is imposed on any future resolution applicant but the same is bound to affect any and every resolution plan submitted which is not in compliance with Section 29A even when no other resolution plan is sought to be available.

Earlier the plan could be accepted by a simple majority of seventy-five percent but now the feasibility, as well as the viability of the plan needs to be kept in check in addition to the eligibility standards of the applicants. This is bound to affect approximately 300 insolvency proceeding across the nation.

Punishments and Penalties

Although offences and their respective penalties are laid down in Chapter VII of the code. But those penalties are very specific in nature and will not extend to any other individuals and hence, a lot of entities are not covered in Chapter VII. Instances can be taken from the Resolution Professional whose duties are carefully laid down in the code but in the case of any negligence or contravention, there is no provision for any deterrent action.

But now the ordinance has introduced Section 235A which extends to any person or offence for which no punishment is provided in the Act and gives the power to the IBBI to put a penalty up to Rs. 2 Crore.

Issues not addressed by the amendment

Regarding The Dues of Public Depositors

The Code has downright disregarded the presence of creditors other than financial creditors and operational creditors. Especially, credits like public deposits, defined under section 2(1)(xii) of the Non-Banking Financial Companies Acceptance of Public Deposits (Reserve Bank) Directions, 1998 which holds a significant place in providing funds to a company. Public depositors are institutionally segregated as compared to other finances and unfortunately, do not have any legislative support to demand their claims as Insolvency and Bankruptcy Board of India Regulations, 2016 only provides for forms of submissions of claims by operational creditors and financial creditors.

Although Insolvency and Bankruptcy Board of Indian in its press release dated, 16th August 2017 has stated that there could be claims from a creditor who is not a financial creditor or an operational creditor and introduced specific form for submitting its claims but the same is vaguely worded and is not substantiated. Although the ordinance’s objective is to increase the reliability of the investors but no steps have been taken in order to curb this issue.

Voting Rights of Operation Creditors in the Committee of Creditors

It is unfortunate that despite the size of the debt due, the operational creditors’ role is limited to a mere spectator only. It is laid down in Section 21(2) that Committee of Creditors shall comprise of financial creditors only and if a person is financial as well as an operational creditor then that person is allowed to vote only till the extent of his/her financial debt. Moreover not all the operational creditors are allowed to attend the meetings of the CoC and only those who have an aggregate due of at least 10% of the total debt are sent the notice for the meeting. Although operational creditors have the right to put forward a resolution plan at the end of the day, the same has to be approved by a committee compromising of financial creditors only.

No Provision of Notice by Financial Creditors

One of the major issue, the Code as well as the ordinance failed to address is that the provision under Section 7 nowhere talks about servicing of notice to the corporate debtor, as in the words of Section 7 a financial creditor can directly approach the Tribunal. The only condition that needs to be satisfied is that he must show that the corporate debtor has defaulted on the payment of due debt and that too of an amount as small as Rs 1 lakh only.

This stands in clear violation of the principle Audi Alteram Partem that is a basic aspect of natural justice. Insolvency affects an entity to its very core and involves a lot of financial issues as well; therefore it is crucial that a notice is served to the corporate debtor before the admission of the application. The provision of notice would provide the opportunity to the corporate debtor to bring his side of the facts to the observation of the Adjudicating Authority as to whether any such default has actually occurred.

Loss of Jobs

The present insolvency law has taken into consideration many factors that were failed to be noticed before, but the one thing amongst that was been ignored is the loss of jobs. The Code addresses the claim of financial creditors, operational creditors (secured and unsecured), insolvency costs and others as well but completely overlooks the employees. It is estimated that during the Code’s operation 2400 employees have lost their permanent jobs.

Reallocation of the resources might have saved some of those jobs but the Committee of Creditors owing to their own interest and the Code’s stringent time limits are hardly observed to make an effort for the employees. The socio-economic harm caused by this is beyond the measure of any statistics.

Insolvency not to be a Substitution for Recovery

The Code’s major objective was of consolidation relating to Insolvency. In practice, it is something parallel to the process of winding up under the regime of Companies Act, which was prevalent before the inception of the Code. It is also submitted even when the Code was not in existence, winding-up petition was not a legitimate means for seeking to enforce payment of the debt.

It should also be noted that the Code provides a very strict deadline of 180 days (and a 90 days extension with permission) for completion of the corporate insolvency process. If the process is not effective then the only result that will follow is liquidation. This feature might be eulogized by the proponents but the legislative authority has conveniently overlooked the fact that Negotiating under constant threat of liquidation may lead parties not to consider any other recovery mechanism and would ultimately lead to wide going-concern fire sales (translating into creditor under-recoveries). The most unfortunate part is that the companies who have greater chance to survive if provided proper debt restructuring would be salvaged affecting jobs and livelihoods as well.

Cost of the Insolvency Process

The code provides for an industry of Insolvency Resolution Process regulated by a Board, as borrowed from the United Kingdom, where IRPs acts as an agent of the creditors, which for sure reduces the cost of the inter-creditor agency.

However, through empirical studies conducted on the UK bankruptcy regime, it is revealed that while adoption of the IRP model resulted in higher realizations, they also correspondingly increased costs of bankruptcy and thus did not materially improve creditor recoveries. Because of which the cost of insolvency and bankruptcy process burdens the insolvency company itself and a well-established IRPs industry can harm the overall success of the Code.

Conclusion

The code indeed proved to be an umbrella to have brought together all the proceedings and no wonder, the inception of the Code is often termed as ‘silver bullet’ by economists as it helped recover Rs 9 lakh Crore bad loans in the prescribed time. However, the root of all drawbacks was the Code seemed to be a bit over-ambitious. In order to combine to pros of other nation’s insolvency laws, the Code overlooked some serious domestic issues especially jobs and non-institutionalised investors as well as creditors.

Coming on to the ordinance which is overestimated as being brutal for the promoters of the company actually, it just focuses on keeping the wilful defaulters at bay and promoters when fulfilled their financial obligation are welcomed for liquidation and being an applicant as well.

On the other hand, the ordinance, still, in its entirety fails to address many other problems in the Code which if addressed properly would result in an efficient revival rather than salvation and would certainly enhance the ease of doing business in India.

Finally, it suffices to say that, although it is a strong political step against the entities that take huge loans and then fails to pay back owing to their mismanagement but economically it might lead to a downfall as a promoter, as bidders, would always inspire better bids.

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In this article, Utkarsh Sharma of RGNUL discusses the legal steps to take if your landlord is harassing you.

It is estimated that about 42% of the urban population of the world lives as a tenant. This also holds true in India as due to exorbitant rates of properties in the metro cities, and many people are in the form of migrant workers. Living as a tenant can be a comfortable deal but sometimes there are cases where one can face rental issues and other related problems like getting an unwarranted eviction notice, or the unruly behaviour of the landlord. So, let us understand various safeguards regarding the harassment by the landlord.

Legal Steps to be taken in different cases of Harassment

Lodge a Police Complaint

If you are harassed by your landlord, the first thing that needs to be done is to lodge a complaint with the Police. You can lodge the complaint by following the below mentioned steps:

• The tenant should go to the police station having jurisdiction over the area where the offence is committed.
• Report to officer-in-charge/ station house officer and tell the officer to register the complaint.
• Also mention the names of the witnesses, if there were any witnesses present.
• In case the information is given on the telephone, you should subsequently go to the police station for registration of F.I.R.
• After filing the FIR, you should not forget to take the copy of the FIR for further procedures.

Harassment Through Trespass

In a tenancy agreement, the tenant is in possession of the flat, while the landlord is the owner of the flat. Under the law of tort, if the landlord were to interfere with the possessory rights of the tenant, the latter would have a claim in trespass, despite the landlord being the owner of the flat.

Criminal Trespass

Section 441 of Indian Penal Code, 1860 which defines ‘criminal trespass’ as ‘Whoever enters into or upon property in possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered and unlawfully remains there.’

If the landowner trespasses, then the tenant must go ahead and lodge a police complaint under Section 441 of the Indian Penal Code. The tenant can also plead for interim relief from the court restraining the trespasser from causing any further damage. Interim or temporary relief can be granted at any period of a suit. It is also impertinent for you to know the particulars of the trespasser and make note of the instances of trespass. Details like the date, time, the number of times the person trespassed along with a photograph or video would add to your benefit.

Harassment Through Nuisance

Section 268 of the Indian Penal Code defines nuisance when the person is guilty of a public nuisance when he does any act which causes injury, danger or annoyance to the public or the people in general who live or occupy the property in the neighbourhood. If this type of harassment is faced by the tenant from the landlord then the tenant can file an application under Section 268 of IPC in the court of magistrate. It can include the acts of landlord like substantial interference with enjoyment of land, this may present as foul odours, noxious gases, smoke, dust, loud noises, and excessive light or high temperatures.

The tenant can make a complaint under Section 133 of CRPC which talks about the conditional order by the District Magistrate or a Sub-divisional Magistrate or any other Executive Magistrate specially empowered in this of behalf by the State Government for the removal of the nuisance.

Sexual Harassment

There have been a number of cases registered with the police in which the landlords committed sexual harassment of various nature such as- passing lewd comments, staring, intimidation, trespass for causing sexual harassment, even insertion of cameras for the recording of activities. If this type of harassment is faced by the tenant from the landlord, the tenant can file a complaint with the local police. It is important to collect and preserve evidence and then giving the same to the police.

Harassment Through Mischief

Section 425 of IPC states that whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits mischief. You can file suit for declaration and mandatory injunction in a civil court as well. You can also claim damages in the same suit.

Landlord Filing Case For Eviction on False Grounds

In several cases, it is seen that the landlord files a notice of eviction on false grounds. For example, the landlord may evade the receipt of rent for a month and then use the same fact of willfully failing to pay rent as a ground to evict the tenant. However, in such cases also, the Rent Control Act can provide a remedy to the tenant.

Legal consequences of evicting a Tenant using unlawful force

Illegally evicting a tenant by the landlord is considered as a case of harassment by the landlord. And in this case, the tenant can sue the landlord and from the latest rulings of the court, it is observed that the court has taken a strict stand against this practice. The tenant is entitled to actual money damage which results from the illegal eviction. This may include compensation for temporary housing, for the food that spoiled when the electricity was cut-off, or for property that disappeared when the tenant was locked out by the landlord. Some states may allow a tenant to recover monetary penalties, such as two or three months rent or two to three times the actual damages. A tenant may also be able to remain on the premises, receive free occupancy, or vacate the premises and collect their security deposit from the landlord.

What is meant by lawful eviction – The appropriate way of asking the tenant to leave

In order to know the rights as a tenant, one needs to understand the proper procedure which is needed to be followed, which amounts to a lawful eviction. Below are the general steps which are to be followed and may vary in each state:

Step 1 – The landlord needs to serve the tenant with the termination notice. The termination of tenancy can be for a reason or without a reason. In the case of termination for a cause or reason, three type of termination notices are available:

• Pay Rent or Quit- The tenant needs to pay rent within a set time (usually three to five days) or he has to vacate the premises.
• Cure or Quit: The tenant needs to correct the violation of the lease or rental agreement within a certain time.
• Unconditional Quit: The tenant need to vacate the premises without the opportunity to cure the violation or pay the rent.

In case of termination without the cause, the landlord needs to serve the tenant with a 30-day or a 60-day notice to vacate the property.

Step 2 – The landlord needs to file a complaint with the court. The complaint must contain the justification of the eviction and may also contain a request for back rent and damages.

Step 3 – Within the time specified, the tenant needs to respond the complaint. The tenant can also use the answer to deny the allegations or submit a defence. A tenant may also assert that the eviction is retaliation or that the missing rent was used to make necessary repairs that the landlord was supposed to make.

Step 4 – The enforcement official then receives the judgment and will notify the tenant of the eviction and the number of days the tenant has to move. If within the specified time, the tenant fails to vacate the premises, the law enforcement official may physically remove the tenant.

Steps to be followed by the tenant in case of Eviction by the landlord on False Grounds

The tenant should approach the Rent Controller giving his/her reasons. Once the tenant is summoned by the Court, he/she will be required to put forth his/her case with adequate evidence for support. The following points can be used for the accumulation of evidence:

• Notice to Receive Rent: If the landlord fails to receive the rent deposited by the tenant, he/she should issue a notice asking the landlord to specify the bank details for depositing the rent. The notice should clearly mention the non-receipt of the rent on the part of the landlord and the option that one is exercising as a tenant. If the bank details are received within ten days, the tenant should deposit the rent as soon as possible.
• Money Order: If the landlord fails to reply to the above notice, the tenant must send the rent to the landlord through Money Order. The Money Order coupons should be kept safely as proof.
• Petition in Court: If the landlord refuses to accept the Money Order also then the tenant should file a petition before the appropriate court and get the court order to deposit future rents in the court.

Can a tenant claim rent reduction in case of deterioration of services?

Under the law and also decided in various judgments, it is unlawful for a landlord to disconnect essential services such as water and electricity or to restrict a tenant from using common amenities for the recovery of rental dues or for any other reasons. If a landlord is found to indulges in such activities, the tenant may approach the Rent Control Court to restore essential services and can take action against the landlord. It is recommended that the tenant should not stop paying the rent to the landlord for any reason.

Not Returning the Security Deposit

In order to safeguard your interest, make sure that your landlord gives you a receipt for the deposit. If you have not violated any clause of the rent agreement the landlord is legally obligated to return the security deposit in accordance with the agreement. In case of refusal by the landlord, you can give a legal notice for returning of advance money and if he refuses then file an application before rent controller.

Steps to be followed by a harassed tenant to protect themselves

1. The tenant should always keep a log of every encounter with the landlord. One should make sure to take note of the time, date, and what was said.
2. Write a letter to your landlord asking for the harassment to stop. Send the letter with proof of mailing and keep a copy of the letter.
3. Always keep the copies of the rental agreements, letters, notices, photos, names of witnesses, and any other evidence which can be used to support your claim.
4. Call the police if one feels like he/she is in danger or the safety is threatened.

Rights of a Tenant under the Indian Laws

• Right to a house that is fit to be lived in: Unsafe conditions, such as plaster coming down from the ceiling, holes in the floor, bad wiring, and the like are considered unfit. It is the landlord’s responsibility to see that the house meets the minimum standards of accommodation.
• Right to be fully informed: As per the law, a tenant should be fully informed of all the contents, terms and conditions of the contract and only upon the consent of the tenant the agreement must be signed which then becomes a valid document.
• To have appropriate contact information: The tenant is entitled to have appropriate contact information like telephone number, email address, postal address, etc. and the landlord should be available to be contacted.
• Right to Privacy: The landlord cannot walk into the house without prior permission or information unless there is a true emergency like a fire or a flood in the bathroom.
• Right to have Essential Services: It is unlawful to disconnect essential services such as electricity and water or restrict a tenant from using common amenities by the landlord, for the recovery of rental dues or for other reasons.
• Entitled to Reimbursement: The tenant is entitled to reimbursement for any repair work which he/she had carried out which were the landlord’s responsibility.
• Entitled to have visitors to stay overnight or for short periods: The tenant is entitled to have visitors to stay overnight or for short periods unless these are specifically forbidden in the tenancy agreement.
• Right to be informed prior to the termination of the tenancy: The tenant is entitled to a certain amount of prior notice of the termination of tenancy.
• To get the advance deposit returned: The landlord must return the deposit to the tenant at the end of the lease term with interest set by a statute.
• Rights of Legal heirs of the tenant: Legal Heirs are also tenants and are entitled to receive all the protection available to the tenant under the Rent Control Act of various states.
• Right to claim rent reduction in case of deterioration of services: In the case of deterioration of services due to any reason as the reduction in accommodation space or poor maintenance will result in lowering of standard rent and the tenant can apply to the Rent Collector for re-fixation of the rent.

Conclusion

The harassment of tenants by the landlords had always remained to be of great concern. The landlords misuse their powers and harass the tenants in different ways. But, the law has given specific protection to the tenants. Almost all the states of the country have provisions and have given similar rights to the tenants against various kinds of harassments by the landlord. With knowledge of these rights, a tenant can enjoy a perfect living at the house. It is worthwhile if some of the important rights of both landlord and the tenant are highlighted in the contract. A simple step like that can save from many complaints, lawsuits and harassment.

References:

1. http://www.thehindu.com/business/Economy/what-are-the-rights-of-a-tenant-under-the-law/article17758497.ece.
2. https://www.portiqo.com/blog/rights-tenant-indian-law/.
3. http://www.livelaw.in/tag/rent-control-court/.
4. http://www.legalservicesindia.com/article/article/protection-of-tenants-against-eviction-2103-1.html.

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In this article, Hemant Bhadana discusses the legal Position of Cybersquatting in India.

Introduction

In this Article, we will discuss the concept of Domain Name, Cybersquatting and it’s legal position in India and at International level. Cybersquatting has increased drastically in the last decade and has devastating effects on the rights of Intellectual Property holders. This article will provide an overview of the problem and factors associated with it along with the cases, types and legal scenario of cybersquatting in India and other countries.

What is a Domain Name?

A domain name refers to the name of a website and the address by using which Internet users can have access to a particular website. A domain name is used for finding and identifying computers on the Internet. A domain name can be any combination of letters and numbers, and it can be used in combination of the various domain name extensions, such as .com, .net and more.

It is essential to register a domain name before one can use it. Every domain name is unique. No two websites can have the same domain name. To illustrate, If someone types in www.abcin.com, it will go to domain name holders website and no one else’s. Domain names need to be renewed on a yearly basis and it is essential to do it swiftly in order to avoid it getting registered by cybersquatters.

A domain name holder earns money by the way of Pay-Per-Click advertising on a website i.e. for each click on the displayed adverts on the website “Domineers” earn money. A single domain name can earn hundreds of dollars a day and many domain name holders have thousands and even millions of domain names.

Domain names are more than just addresses, as the court suggested in

Cardservice Int’l v McGee: “A customer who is unsure about a company’s domain name will often guess that the domain name is also the company’s name”

MTV Networks Inc v Curry: “A domain name mirroring a corporate name may be a valuable corporate asset, as it facilitates communication with a customer base”

What is Cybersquatting?

According to Wikipedia ‘Squatting’ means occupying an abandoned or unoccupied space or building, usually residential, that the squatter does not own, rent or otherwise have permission to use.

Thus, Cybersquatting refers to the practice of registering names, especially well-known company or brand names, as Internet domains, in the hope of reselling them at a profit.

Examples of Indian Cybersquatters who messed with Facebook, Google and other Biggest Names:-

The Guy who owned Google.com for a minute

• Former Google Employee named Sanmay Ved owned Google.com for a minute in September 2015. He purchased the domain name for just $12 after he discovered that ‘Google.com’ was available for sale.
• Google paid him $6006 which was doubled later on when Google discovered that he donated the money to ‘Art Of Living’ Foundation.

Why Facebook CEO Mark Zuckerberg paid $700 to a Kochi’s Engineering student

Amal Augustine, a final year engineering student registered the domain name maxchanzuckerberg.org which was bought by Facebook’s CEO for $700.

Cybersquatting on Bollywood stars

• Techies have squatted on domain names like salmankhan.com and amithabhbachan.com.
• Also, Yoga.in was sold for ₹1 crore by a German guy named Mathias Stricker.
• Furthermore, a company named Axsiom made $10000 by selling www.gurunanak.com.

Types of Cybersquatting

Various ultramodern ways have been created to curb potentially lucrative addresses which in turn resulted in creating a cobweb for trademark owners affecting them economically when they plan to deliver their products directly to consumers using the internet. Types are as follows:-

Cybersquatting: Bad-Faith intent registration; a cybersquatter can sell to the highest bidder.

Typosquatting: also called as URL hijacking. Cybersquatting form wherein the internet users make typographical errors while inputting a website address into the web browser. Once the user types the incorrect address, they are lead to a substitute website by the cybersquatter.

Examples of Typosquatting are

• Omitting the “dot” from the domain name: wwwexample.com;
• A normal misspelling of the intended site: exemple.com
• Differently phrased domain name: examples.com
• A different top-level domain: example.org
• Another problem is ‘‘renewal snatching’’ in which the Cybersquatter registers the particular domain name which the real holder forgets to re-register. The domain names are not registered for a fixed period and if the domain name holder fails to re-register it before expiry then it can be purchased by anybody.

Legal Scenario of Cybersquatting in India

Distinct from many developed countries, India has no Domain Name Protection Law and cybersquatting cases are dealt under Trade Mark Act, 1999.

The Hon’ble Supreme Court in Satyam Infoway Ltd vs Sifynet Solutions Pvt Ltd; AIR 2004SC3540 has observed the following.

“As far as India is concerned, there is no legislation which explicitly refers to dispute resolution in connection with domain names. But although the operation of the Trade Marks Act, 1999 itself is not extraterritorial and may not allow for adequate protection of domain names, this does not mean that domain names are not to be legally protected to the extent possible under the laws relating to passing off”.

In India, victims are provided with various option to combat Cybersquatting. These are the available options
• By sending cease-and-desist letters to the Cybersquatters.
• Initiation of arbitration proceedings under ICANN’S rules.
• Option for a trial in a state or federal court.

Whatever strategy a victim may choose but he should not undermine the negative effects that cybersquatting can have if left unchecked.

Also, filing a case with the in registry is also another good option as the registry is controlled by National Internet Exchange of India (Nixi) and it puts the case to fast-track dispute resolution process from where within the 30 days of filing a complaint decision are transferred.

Cybersquatting is a primary concern specifically for the domains having financial transaction because of the cyber squatters taking benefit in robbing and fooling individuals by obtaining their Credit Card details. There are several IT teams dedicated to have a timely check on these domains.

As always, Indian legal system is silent on this matter too, the current or proposed Information Technology Act in India has no specific provisions for punishing cyber squatters, at best, the domain name can be taken back. As there is an absence of legal compensation under the IT Act, to prevent squatters from stealing domains further, .in registry had initiated proactive steps to grant compensation to victim companies. However, it is just a beginning and still, there is no effective system or laws to combat Cybersquatting.

Immediate Need for Definite cybersquatting laws in India

• To combat Cybersquatting and to punish the offenders there is an urgent need of bringing a strict law.
• A new law should contain legal solutions for the trademark owners against the defendants so that it will be easy for the plaintiff to obtain statutory damages and gain compensation for the damages for registering in bad faith.
• There is a need for a law which would act as a weapon for preserving the Intellectual Property of the trademark holders in the virtual world.

Cybersquatting Cases in India

Yahoo! Inc. v. Akash Arora and Netlink Internet Services

This was the first cybersquatting case in India. In this case, the plaintiff, who is the registered owner of the domain name “Yahoo.com” successfully obtained an interim order restraining the defendant from using “Yahooindia.com” or any other trademark/ domain name deceptively similar to the plaintiff’s trademark.

Sbicards.com vs Domain Active Property Ltd

In this case, WORLD INTELLECTUAL PROPERTY ORGANISATION ordered the Australian entity (Defendant) to transfer the Sbicards.com to the Indian company, as the Administrative Panel found that the Defendant has hijacked the domain name with mala fide intentions of selling it later for a hefty sum to the State Bank of India subsidiary.

Legal Scenario in International Context

The first instance of cybersquatting in the United States arose in 1994 and is on the uninterrupted rise globally since then. A person named Dennis Toeppen started it, he used various known trademarks to register domain names and eventually became unsuccessful in defending those when trademark owners sued him.

The important cases which led to the development of ACPA (Anti-Cybersquatting Consumer Protection Act) are Intermatic V. Toeppen 947 F. supp 1227 (N.D.Ill. 1996) and Ponavision V Toeppen 141 F.3e 1316 (1998). The court ruled in favour of plaintiffs in both cases.

These cases played a vital role in creating awareness among the trademark holders on the vulnerability of domain names and made them vigilant about these modern day Cyber extortionists or Cybersquatters.

A victim of cybersquatting in the United States has two options:

• Sue under provisions of the Anti-Cybersquatting Consumer Protection Act
• Use an international arbitration system created by the Internet Corporation of Assigned Names and Numbers (ICANN).

Many countries have specific laws against Cybersquatting beyond the normal rules of Trademark law. On the contrary, even celebrities like Rockstar Bruce Springsteen and Actor Kevin Spacey failed to gain control over their domain names on the internet.

Another issue is jurisdiction, as mentioned above, Judge Gary A. Feess of the US District Court of Central District of California, in the case of Kevin Spacey ruled that the complaint needs to be filed in a Canadian court, where the holder of the Kevinspacey.com lives. Kevin later got success to obtain the domain name through the Forum (Alternate Dispute Resolution) F.K.A National Arbitration Forum.

In the case of courts, jurisdiction has always been a major issue. As per the courts, the seat of the trial should be the place of the plaintiff, the defendant or the place of the service provider through which the name is registered.

WIPO System for Administration of Disputes:-

World Intellectual Property Organization (WIPO) on tackling cybersquatting

Since 1999, the World Intellectual Property Organization (WIPO) has provided an arbitration system wherein a trademark holder can attempt to claim a squatted site. In 2006, there were 1823 complaints filed with WIPO, which was a 25% increase over the 2005 rate. In 2007 it was stated that 84% of claims made since 1999 were decided in the complaining party’s favour.

The World Intellectual Property Organisation Arbitration and Mediation Centre have developed a system to provide an Internet system for administration of commercial disputes pertaining to Intellectual Property.

This Dispute solving mechanism is one of its own kind, which is introduced for both evidence filing and document exchange purpose. It is an efficient and economical service. In this dispute solving mechanism the arbitration takes place online. However, the physical filing of the original documentary evidence is still required.

Largely, the process will be conducted online and is designed to be completed in less than 45 days along with a setup or provision for parties to approach courts for resolving disputes between them or to contest the procedural outcome.

Conclusion

Cybersquatting is a virus for which there is an urgent need of developing or finding an effective Anti-dote in form of efficient laws otherwise this virus can turn into a plague encouraging the cybersquatters to prey on vulnerable Domain Name Holders.

Envisioning the present conditions existing around the world, cybersquatting is considered to be a menace with no frontiers. Although, the effective and proactive involvement of WIPO has played a crucial role in solving disputes regarding domain names and in evolving concrete principles in this field.

Still, a lot needs to be accomplished either by bringing strict laws to punish squatters or by giving legal remedies to Service Marks and the Trademark owners as it can protect them against defendants who wrongfully acquire domain name with mala fide intention.

Lastly, providing an option of obtaining Statutory Damages to the plaintiff will act as an important tool for trademark holders in protecting their Intellectual Property online.

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In this article, Kunal Ahuja of VIPS discusses the role of shell companies in corporate restructuring.

Shell Companies

The moment we come across any news or headlines expatiating about the shell companies, we fleetly surmise some fraud or illegitimate impersonation attached to it. But there are certain objectives with which the concept of ‘The Shell Companies’ actually came into existence. 

Shell companies are the corporation existing only in papers without any significant business or assets. Shell companies are the entities established by the corporations to raise more funds or go public by adopting reverse mergers. These shell corporations function as transactional vehicles for firms and abet for multitudinous purposes. The primary purpose of shell corporation is legal corporate restructuring.

Role of shell companies in corporate restructuring

Corporate restructuring is redesigning of the corporation in one or more aspects to tackle the financial difficulties, business expansion or to make it a more profitable enterprise which is possible either through organizational restructuring or financial restructuring or both, however incorporation of shell company is one of the methodology embraced by the firms for efficient corporate restructuring. Corporate restructuring is generally adopted as a solution to the financial crisis phase to which the enterprise is going through.

“ the First firm gets the oyster, the second one gets the shell”

Shell companies are the entities which substantiate the purpose of corporate restructuring by the firms. Incorporation of a shell company is one of the expeditious ways to go public via the acquisition of a public company and merging a private company into it, commonly termed as ‘reverse merger’.

Going public is beneficial for a private company as it becomes easier for a private company to broaden the market and fundraising capacity of the private company by attracting both private as well as public investors. It enables the private firm to expand easily and recapitalize its operations by using their stock or equity for funding their business. In this process of the reverse merger, the shareholders of the operational private company undertake the management of the, listed but not so active, public company and then merge it with the private company. The consequential corporation is called the ‘shell’. The shareholders of the private company receive a momentous number of shares in the public company and control of its board of directors of that company. The shareholders of the private company invest in the public company through their shares in the private company they own and in lieu of which they receive major shares in the resultant ‘shell company’. Hereinafter this share exchange completes the reverse merger and incorporation of a shell company which would be managed by the same shareholders including future investors if any.

Reverse merger by a public shell company

Generally, reverse merger involving public shell company takes place as following-:

A public shell company which has no assets and is not actively operating acquires a private company which requires funding in the capital markets. During the acquisition, the shareholders of the private company get a large majority of shares in the public shell company by giving their shares in the private company. Shareholder gets accretion in controlling interest as well as voting power in the post-merger public shell company. Moreover, the shareholders of the private company takes over as the board of directors and are empowered to manage the affairs of the public shell company. All the assets and functions performed by the public company formerly belong to the private company.

Reverse Merger by private company

The private company takes the recourse of reverse merger to easily access the capital markets along with the liquidity which comes with the listing of the company in exchange.This mechanism is followed by instituting a company after the acquisition of a public company listed under IPO which is doing no significant business and does not hold any assets in its name. Through this route, it becomes easier for a private company to become a public company as compared to the traditional route of IPO which tends to be time consuming and costlier. Reverse merging means the acquisition of the Reverse merging furnishes the private company with a moderately inexpensive method of going public which is the key reason for private companies to adopt this method of corporate restructuring In addition to the capital, the company being a public may give a company increased value in the eyes of the potential acquirers.     

A reverse merger is even a viable approach by the Indian private firms as it provides immediate liquidity. Like unlisted Hardcastle Restaurants (master franchisee for McDonald’s in the west and south India) merged with Westlife Development, a shell company, post-merger the share price of the Westlife Development has doubled in one month.  

Benefits of Shell company in Corporate Restructuring

No doubt shell companies play a key role in reverse mergers as they deliver time-efficient and cost-effective means for the transformation of a private company into a public company. Along with the easy process here are some more benefits.

1. Lower foremost cost
2. No over extravagant banking fees
3. Reduction of a time frame in the conversion of the private company into a public company.
4. No amenity of getting approval from any regulatory authority
5. No supervision over transactions
6. Capitalization is possible through the stock of the private company so no need to raise funds for acquisition or merger.
7. Easy fundraising as investors will have a defined exit strategy.

Apart from all the above-said benefits, it is incumbent for the public company to be clean, else the private company has to carry the unnecessary burden of lawsuits pending against the public company moreover the sole purpose of the private company in adopting this method of going public would be defeated easily. Therefore the shell companies play a very significant role in corporate restructuring through reverse mergers.

Demerits of post reverse merger Public Company

1. Compliance with more government regulations or other authorities.
2. Compliance with SEBI regulations
3. Cost of reporting about the compliance
4. Spread the word about listing to sell your share in the broader market
5. Dilution in promoter’s ownership
6. Reduction in promoter’s control over the company
7. Volatility of the market will impact the ownership of the promoter
8. Nature of the business no more the sole factor to determine the wealth

Landmines in following reverse merger companies

It is not illegal to incorporate a shell company especially for purpose of corporate restructuring which drives the private company towards more investment and easy access to the broad market. However, under the legitimate umbrella of corporate restructuring, many firms have started misusing the concept of reverse merger and incorporation of shell companies to evade the tax and use promoters for diverting funds from unlisted or listed companies. Moreover, many companies either fail to remain viable following a reverse merger.

Along with another kind of investments, there have been instances of fraud and other abuses involving reverse merger companies. The investors should not forget to consider that there are foreign companies that after following reverse merger have been able to access the local markets of other countries usually take the help of auditing firms of that country, some of which may not have the resources to meet its auditing obligations when all of the private company’s operations are in another country due to which such auditing firms might not determine instances where such companies may not be complying with the applicable accounting standards which would increase the risks for potential investors. Whenever such incident occurs the regulatory authority suspend trading in such companies which does not file the complete and accurate information in public filing concern but repose heavy liability upon the investors who have already invested in such companies.Therefore, investors should be careful when considering investing in the stocks of reverse merger companies and should make sure that they have accurate and up-to-date information about a company before investing.

How are these shell companies misused?

Many studies show that this type of corporation is a viable choice if you’re empirical to save taxes or hide assets. It has become one of the most prevailing unethical practices used to hide the assets and real income of the business owners and the actual owner of this corporation is not registered in any public records. Shell company works as a prominent tool existing merely on papers, no employees, no office or no assets which are registered to the company that facilitate the setting up of shell companies in a tax haven. These shell companies repose criminal effect when these are used for the criminal purposes like black money laundering, tax evasion. The setting of these shell companies also doesn’t require much identification, therefore, provides the corporates with an easy way to evade tax and enjoy the fruits of black money earned by evading the taxes to be applied as per the government regulations.

Reverse Merger Management

A reverse merger is a captivating choice for the private companies to rise to the recognition as the public company which is less time to consume and cost-effective alternative than the conventional IPO through which the business managers enjoy proficiency in terms of financing alternatives. However, the managers should be conscious of the supplementary compliances to be followed by the companies and they should even work efficiently to expand the business then only the value of the stock will be increased and the objective with which the reverse merger mechanism was adopted could be fulfilled. Hereinafter the investors should be alert before investing in any reverse merger company and they need to research very well that if all the regulatory requirements have been met by the companies.

Risk Merger Investment

As the name implies, the shell company is hollow, indulged in nothing but the business of managing the money inside of them with the help of solicitors or financial consultants. The biggest task of the authorities is to find whose money is invested in such firms. There are some places that mandate the shareholder’s information public yet it is the cake walk for the owners to achieve the anonymity which is possible by registering the company in someone else’s name or materializing the shareholders as further companies registered somewhere to maintain the secrecy of the real owners.

Inference

For example, taking a cue from the US, some companies are not required to file reports with the SEC. These are known as “non-reporting” companies. The investors should be aware of the risks of trading the stock of such companies, as there may not be current and accurate information that would allow them to make an informed investment decision. An operating company that is not required to file reports with the SEC is, by definition, a non-reporting company, and therefore, transactional information about that company is likely to be limited. Further, information about a public reporting shell company that a non-reporting operating company merges into, in a reverse merger, would not be relevant to the operating company. Thus, the concept of reverse merger providing private companies a more convenient alternative to the IPO process, seems to come in an attractive package, with its array of benefits. However, it is important to look beyond the package to see if there are potential risks associated with transacting with the public shell company. Only if the public shell company is clean, and all the regulatory compliances are in order, should one go ahead with the corporate restructuring scheme?

Legitimacy with regard to shell companies in India

As per the Indian legislation setting up of shell companies is legal in India which has paved way for the companies to evade taxation and money laundering for many years. But to curb these illicit practices prevailing in the country central government has taken various crucial steps to crack down upon the fraud companies set up for merely hiding the assets of the real owners. The primary step is government’s recent notification according to which there will be a limit upon the no. of subsidiaries a company can have i.e. two which means a company can have only two layers of separation between themselves and the holding company. Although it’s is true that these subsidiaries can be used as shell companies for illegitimate purposes which would help in unlawful monetary accretion but this corporate layering also has some lawful objectives due to which this corporate structure layering has been given legal sanction.

The Even supreme court has explicitly upheld that an involute corporate layering structure is legal.   

Such structures are established in the domestic market where moderately sized firms can have different corporate structures or subsidiaries for diverse sectors of performance which later on set up various other layers for tax havens or hiding the assets in the name of the owner of the former subsidiary.no doubt the recent regulation will lower the rate of investments or funding as new funding often requires new subsidiary to set up. This will harden restrict the companies from arranging higher and much more diversified investments.

The proportionately major concern is on addressing shell companies and illegitimate use of corporate layering. Each layered structure can be misused and codification and unification of the suggested policy can increase the transparency across the jurisdiction. Therefore instead of straight jacket formula or restriction, shell companies cases should be dealt case-by-case as it will not defeat the purpose of the businesses and objective of the concept of corporate layering.  

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In this article, Sushant Pandey of Vivekananda Institute of Professional Studies, Delhi, discusses the impact of the criminal conviction on the ability to be a partner of an LLP.

The Limited Liability Partnership (LLP in short) is much long awaited form business type. Many of the countries in the world adopted this type of business. Limited Liability Partnership Act, 2008 was enacted with the objectives to make provisions for the formation and regulation of limited liability partnership and for the matters connected therewith or incidental thereto.

Limited Liability Partnership

The Limited Liability Partnership is the hybrid of the provisions of Partnership Act and the Companies Act, 1956. limited liability partnership is a body corporate and therefore a legal entity separate from its partner is like the general partnership but having one important difference. Unlike partnership the individual partners are liable for the partnership firms liability or organisation, LLP provides each of its individual partners with limited liability for the firm’s liability.

Does a criminal conviction in Indian courts impact ability to be a partner of LLP?

A person’s ability to become a partner of the  LLP will be affected if he is convicted by Indian courts. If any of the disqualifications mentioned under Sub-rule (1) of Rule 9 of LLP Rules is found, he will be disqualified which includes the criminal conviction mentioned as a disqualification to become a partner of LLP, under Rule 9(1)(3).

According to Rule 9 of Limited Liability Partnership rules, 2009, which says:

A person shall not be capable of being appointed as a designated partner of a limited liability partnership if he –

1. Has at any time within the preceding five years been adjudged insolvent; or
2. Suspends, or has at any time within the preceding five years suspended payment to his creditors and has not at any time within the preceding five years made, a composition with them; or
3. Has been convicted by a Court for any offence involving moral turpitude and sentenced in respect thereof to imprisonment for not less than six months; or
4. Has been convicted by a Court for an offence involving section 30 of the Act.
5. The disqualification mentioned under sub-rule 9(1)(1) and Sub-rule 9(1)(2) can be removed by the Central Government by notification in the Official Gazette, either by generally or in connection to any Limited Liability Partnership or Limited Liability Partnerships specified in the notification.

Putting things Simply

• While dealing with the first sub-rule, a person who has been adjudged insolvent at any time within preceding 5 years cannot be said to be qualified to become a partner of limited liability partnership.
• The second Essential if a person has been suspended or in the past 5 years’ payment of his creditors and has not been a close composition with them if preceding 5 years.
• The third essential says when a court has convicted a person of the offence involving moral turpitude and has been accordingly sentenced to imprisonment for not less than 6 months.
• Hence if a person is being convicted offence relating to moral turpitude for not less than 6 months cannot be qualified as a partner of the limited liability partnership And lastly a person who has been convicted for the fraud committed two partners or to the firm.

Criminal conviction

In layman’s term, criminal conviction means “the judgment of a jury or judge that a person is guilty of a crime as charged”

Rajasthan High Court in Nanda @ Chhittar vs The State Of Rajasthan defined what is a criminal conviction. The old. Judge said

“6. Therefore, there can be no doubt that the term “conviction” has two meanings. In the general sense, it means “a finding of guilt” but in legal parlance, it means “a finding of guilt followed by some order”. Maxwell on the interpretation of statutes, twelfth Edition at page 279, while dealing with “Identical expressions” and referring to the safety rule that the same word is used in the same sense in a statute has observed “the presumption as to identical meaning is, however, not of much weight.

The same word may be used in different senses in the same statute and even in the same section”. The author has again said, “there are many modern examples of the same word being given distinct meanings.” He further says at page 280, “the usual reason for attributing different meanings to the same word is simply that it occurs in different contexts”.

Criminal conviction as a ground for disqualification of a partner

Under rule 9(1)(3) of LLP Rule,2009, it talks about a criminal conviction, which says that if a person has been convicted and sentenced for imprisonment for not less than 6 months, shall be disqualified for becoming the partner of a limited liability partnership. If a person has been convicted by a Court of law in India and has been punished following essentials are necessary:

1. There must be conviction for any offence
2. That offence must be of nature involving moral turpitude
3. The person must be sentenced to imprisonment
4. Period of punishment shall not be less than 6 months

If a person who wanted to become a partner and fulfils essentials is disqualified for becoming a partner of LLP.

There must be conviction

A person should be convicted of the offence. Conviction is defined as a formal declaration by a verdict of jury or decision of a judge in a court of law that someone is guilty of a criminal offence. Similarly, the person has been charged any offence cannot be made liable unless until he has been convicted. A person who has been charged with an offence and later acquitted well not fall under this sub-rule.

Offence related to moral turpitude

Firstly, there must be an offence. An offence is described as the violation or breach of law or rule etc. or public wrong or crime. Hence the presence of offence is accordingly mandatory.

Secondly “Moral turpitude” is an expression which is used in law as also societal parlance to describe conduct which is inherently base, vile, depraved or having any connection showing depravity”

Kerala High Court in Joy Alias Itty Abraham And Anr. v. State Of Kerala And Ors observed that:

The expression “moral delinquency” or “moral turpitude” has not been defined. All offences do not necessarily involve moral turpitude, e.g., violation of traffic Rules or non-compliance with certain statutory requirements such as filing of returns or remittance of money, etc., are not offences which can possibly be said to involve any moral turpitude or moral delinquency. 

Madras High Court in A.Padmanabhan vs Joint Commissioner Of Labour held that,

The term ‘moral turpitude’ can safely be understood to mean that it is a conduct which is not only contrary to the accepted behaviour, but also a behaviour which is grossly misdirected.

The application of the term depends upon the facts of each case, which, in turn, depends upon the act or behaviour which is sought to be described as moral turpitude. The standard of application of the term cannot be the same when it concerns with criminal jurisprudence and civil jurisprudence, particularly when the application of provisions of labour laws, which are beneficial in nature and in both cases, the consideration may entirely vary.

Imprisonment

The person must be convicted of the offence and is imprisoned and sent to Jail. If a person so not been sentenced to imprisonment but has been ordered to pay fine, this sub-rule will not attract and the person will be qualified.

Period of sentence

The sentence should be more than 6 months and if it is less the person will be qualified to become a partner. This is made to exclude all the trivial matters and If a person possesses these essentials he/she shall be not legally eligible for becoming a partner of LLP

How will penal action on errant partners who are not residents of India be taken?

The limited liability partnership act provides for freedom to appoint more than one resident directors and for statutory compliances provisions of at least one resident directors partner in every LLP is would ensure that one partner is available in India for at least six months for regulatory compliances requirement. The liability of LLP as an entity would be for regulatory or other compliances. For civil liability on such partner would be tried by the courts under the civil laws which recognise “Foreign awards” and for criminal liability would require adjudication or enforcement by the courts including the extradition process.

Does an ongoing case impact the stability of a partner inside an LLP?

Rule 9(1)(3) of LLP Rules,2009 states there must be a conviction for any offence and it does not talk about the ongoing case/ prosecution. If a partner against whom a case is pending before any of the courts in India will not vitiate the stability of the partner inside an LLP, unless the agreement between the partners i.e. LLP agreement, expressly provides for such a disqualification. Hence, if the agreement talks about the stability in case of ongoing case/ prosecution, then only a person can be disqualified to stand as a partner in LLP, else no disqualification.

If disqualified person becomes a partner fraudulently

Even after possessing any of the disqualification a person becomes Partner, he can be removed by a majority of the other Partner but the LLP agreement must expressly provide such powers. If the LLP Agreement provides such power, a Partner can be removed and to affect the removal Form 4 must be filed.

Filing of LLP Form 4

To effect a resignation or removal or cessation of Partner from LLP, LLP Form 4 mentioned under LLP Rules, 2009 must be filed within 30 days of removal or resignation or cessation of Partner. Form 4 must be signed by the Designated Partner of the LLP and must be filed along with a Certificate from a Chartered Accountant or Company Secretary or Cost Accountant in practice. The Chartered Accountant or Company Secretary or Cost Accountant must also certify that the books and records of the LLP have been found to be true and correct.

Conclusion

A person who wants to become a partner of limited liability partnership must fulfil both the essentials mentioned under section 5 of LLP Act, 2008 and Rule 9 of LLP Rules, 2009. If he is criminally convicted of an offence of nature involving moral turpitude and has been convicted for more than 6 months he cannot be said to be a qualified person for becoming a partner of LLP.

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iPleaders is accepting applications for internship in February 2018.

Work

Interns are given work related to legal research, upcoming PILs, writing blogs and articles and will be trained to become excellent researchers and writers.

Training Sessions

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Application Procedure

Send your updated CV to internship@ipleaders.in

Interns who can join by February 1, 2018, will be given preference.

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In this article, Akansha Vidyarthi discusses legal steps to take if a false FIR is filed against you.

Introduction

The First Information Report (FIR) is lodged in Criminal cases under Sec 154(1)(X) of Crpc before the police. The FIR can be lodged only in case of Cognizable Offences defined in Sec 2(c) of Crpc and not for Non-cognizable offences. Schedule I of Crpc contains the list of Cognizable offences for which FIR can be lodged. There are various Instances where False FIR is lodged against a person in order to harass him or to falsely implicate him in a false case. Therefore, this Article explains the action which the victim of such False FIR can take against the person who has lodged such False FIR.

Operation of Machinery in Cognizable cases under Criminal Law

For the Cognizable offence, the machinery starts by-

• Lodging an FIR before Police u/s 154 of Crpc.
• If the police do not register an FIR u/s 154, then the victim can submit his FIR u/s 154(3) to Senior Police officer or SSP in writing or by a registered post.
• If then also his FIR cannot get registered, then he can approach the Magistrate u/s 156(3), and where the Magistrate directs the police officer to register an FIR, then such officer shall register it and start the Registration.

What Action can one take against a person who has lodged a false FIR against him?

Most of the time it happens that person deliberately lodges false FIR against someone in order to falsely implicate him in a false case.So the question arises that where he can seek a remedy? What action can he take against such person? Whether he can take any action against such person or not?

Where a false FIR is lodged against a person by someone to falsely implicate him in a false case, then in such a case-

1. Application filed u/s 482 of Crpc for Quashing frivolous FIR

The Application can be filed by a person under Sec 482 of Crpc to the High court for getting the frivolous FIR filed against him quashed.

Sec 482. Saving of inherent powers of High Court. Under this Section, High court has been vested with the inherent powers to pass any order which is necessary in order to-

• Prevent abuse of process of Courts; or
• To secure ends of justice to the people.

In Som Mittal v. Govt. of Karnataka, the Supreme Court held that,

• When grave miscarriage of justice would be committed if the trial is allowed to proceed; or

• Where the accused would be harassed unnecessarily if the trial is allowed; or
• When prima facie it appears to Court that the trial would likely to be ended in acquittal.

Then the inherent power of the Court under Section 482 of the Code of Criminal Procedure can be invoked by the High Court either

• To prevent abuse of process of any Court, or otherwise
• To secure the ends of justice

Grounds on the basis of which one can go to High Court under Sec 482 of Crpc for Quashing a frivolous FIR

The Person can approach the High Court for getting the false FIR quashed by filing an application under Sec 482 of Crpc on the following grounds-

• The Acts or omission on the basis of which the FIR has been lodged does not constitute an offence.
• The Offence for which the FIR has been registered against the accused has never happened;
• The FIR contains merely baseless allegations without any reasonable ground to prove an offence against the accused.

In the case of Abasaheb Homme versus the State of Maharashtra, it was held that the power of the court to quash the FIR should be exercised sparingly and subject to the satisfaction of the condition precedents to exercise of such power.

The doctrine of inherent power is the basic support for the exercise of such power. The court is invested with such power to do justice and to ensure that basic rule of law is not violated. In the provisions of section 482 of the Code. Power to quash is one of the powers where the court would be empowered to quash the FIR or even a criminal proceeding in furtherance thereto;

Different stages when Application under Sec 482 can be filed for quashing a false FIR

The Application under Sec 482 of Crpc can be made to High Court for getting false FIR quashed-

• Before Filing the charge sheet by the police;
• After Filing charge sheet by the police;
• During the pendency of Trial or after the Commencement of the Trial.

1. Before Filing the charge sheet by the police – Where an application has been filed by a person under Sec 482 of Crpc for getting the FIR quashed, The High court can quash such false FIR if it is against the principle of Natural justice cause a grave miscarriage of justice to the victim.The court also has the power to reprimand such police officer or can issue certain directions for such officer.

2. After Filing charge sheet by the police – If the charge sheet has been filed on the basis of frivolous FIR, and the case is committed to session judge and before commencement of trial, the accused can file a discharge Application u/s 227 of Crpc, in order to get discharged from the offence charged with on the basis of false FIR against him on the following grounds–

• That the charge sheet contains no prima facie evidence against the accused in respect of the offence with which it is charged.
• The trial cannot be commenced against the accused because of insufficiency of evidence on record.
• The evidence on record is inadmissible as evidence under the Indian Evidence Act.

3. After the Commencement of trial – If the discharge Application u/s 227 of Crpc filed by the accused has been rejected by Session court, and the charge is framed and the trial is commenced then Application under Sec 232 of Crpc can only be made for the Acquittal of the Accused.

Guidelines by Supreme Court where the false FIR can be Quashed u/s 482 of CrPC

The Guidelines has been laid down by Supreme court explaining the Circumstances in which the False FIR can be Quashed in Sundar Babu & Ors vs. State of Tamil Nadu.

1. Where the FIR lodged against the accused does not contain any prima facie evidence against the accused in respect of the offence with which it is charged.
2. Where the allegation made in the FIR does not disclose any Cognizable Offence against the accused.
3. Where the Allegations made in the FIR and the evidence collected by the police on the basis of such evidence does not disclose commission of any offence that constitutes a case against the accused.
4. Where the offence disclosed in the FIR is a non-cognizable offence in such a case, the police cannot start the investigation without the order of the Magistrate u/s 155(2) of CrPC.
5. Where the Allegations made in the FIR are unbelievable, absurd that there is no ground to initiate the proceedings against the person.
6. Where there is an express bar to initiate the Legal proceedings in any Act dealing with criminal matters.
7. Where the FIR has been lodged Maliciously or proceedings are instituted wrongly, in order to falsely implicate a person in a false case to satisfy his personal grudge.

2. Writ petition under Art 226 of Constitution

Where a false FIR has been lodged by a person against an individual, such individual can approach the High Court for quashing such FIR by filing a writ petition under Art 226 of the Constitution. If the High Court found that great injustice has been done by to such a person, it can quash such false FIR. In Such a case, The High Court can issue writs of-

• Mandamus writ- Writ of Mandamus can be issued against a police officer who has lodged such a false FIR directing him to perform his duty in a lawful manner;
• Prohibition Writ– The Writ of Prohibition can be issued to the Subordinate Court which is conducting the trial of a person which is based on false FIR lodged against such Accused, in order to Stop such criminal proceedings.

3. Is there any Punishment for a person who lodges a false FIR against someone?

The person who files a false FIR against someone can be held guilty under Sec 182 & 211 of IPC, but only after the accused had applied to the High Court for quashing the false FIR lodged against him and the High Court had quashed such false FIR or if the accused is acquitted or discharged by High Court.

(A) Where the person lodged a false FIR against an Individual, that individual may u/s 182 of IPC file a complaint with the police officer with whom such FIR has been lodged or to his Senior police officer, who is empowered file a case against such police officer who has lodged the FIR before the Magistrate court.

What section 182 of the Indian Penal Code has to say about lodging of false FIR

There are situations where a person knowingly facilitates false information to public servants causing wrongful loss to others. Our legal system has prescribed punishment where a person maliciously furnishes false information to a public servant.

Situation – When a person furnishes false information to a public servant thus making him do an act which under the law, the public servant must not have done or convinced him not to do something (omission). An example is, X registers false information of theft and blames Y for the theft in the FIR. X knows Y is not guilty of the theft, however, uses the legal machinery for wrongful gain to himself. This situation will be covered under the ambit of section 182 IPC. Causing of injury is one important aspect which must be present in any act or omission.

Punishment for such act is

• Imprisonment which may extend to six months, or
• With fine which may extend to one thousand rupees,
• or with both.

Harbhajan Singh Bajwa vs. Senior Superintendent of Police, Patiala & Anr., it was held that:

“Whenever any information is given to the authorities and when the said authority found that the accusations made in the complaint were false, it is for that authority to initiate action under Section 182 I.P.C. The offence under Section 182 I.P.C. is punishable with imprisonment for a period of six months or with fine or with both.

When the authorities themselves found after investigation that the accusation made by Ashwani Kumar in his complaint was false, it is for them to initiate proceedings immediately or within the prescribed period as provided under Section 468 Code of Criminal Procedure.

The acceptance of the cancellation report by the Court is immaterial. It does not save the limitation under Section 468 Cr.P.C. which prescribes the period of one year for taking cognizance if the offence is punishable, with imprisonment for a term not exceeding one year.

Since the offence under Section 182 I.P.C. is punishable with imprisonment for a period of six months only, the authority should file the complaint under Section 182 I.P.C. within one year from the date when that authority found that the allegations made in the complaint were false.

Since more than four years elapsed from the date when the authority found the allegations were false, no question of filing any complaint under Section 182 I.P.C. at this belated stage arises”.

(B) Under Sec 211 of IPC, the Accused person against whom false FIR has been made can file application u/s 156(3) or a Complaint u/s 200 of Crpc before the Magistrate Court against such person.

What Sec 211 of IPC has to say when a person has been Falsely charged with an Offence?

Situation- When a person with the intention of causing injury commences any false criminal proceedings or makes any false charge against any person, then the person is liable under Sec 211 of IPC. Example – A instituted false proceedings against B under a false charge of Defamation with intent to cause injury to his reputation and he knows that B has not defamed him, therefore this situation will come within Sec 211 of IPC and A would be held liable under this section.

Then, such person shall be punished with-

• Imprisonment which may extend to two years, or
• With fine, or
• with both; and

If such criminal proceeding has commenced on a false charge of an offence which is punishable by Death or imprisonment for life or Imprisonment for 7 years or upwards, 

Then such person shall be punishable with-

• Imprisonment for a term which may extend to seven years, and
• Liable for fine.

(C) Sec 250(2) Compensation for accusation without reasonable cause – If the Magistrate acquits the accused against whom the false FIR has been Made, then he can claim for Compensation u/s 250 of Crpc against the person who has lodged such false FIR against him.

4. Whether a police officer can be held liable for deliberately or negligently lodging false FIR against a person?

The Instances of harassment of a common man and usually the poor person by the police is not an uncommon or rare thing. There are various instances in news every day where the person being harassed and tortured by the police by deliberately or negligently lodging false FIR against the person. In such a case, the common man is put to great hardship.

In such a case, the Accused person can file application u/s 156(3) or a Complaint u/s 200 of Crpc against such police officer for deliberately or negligently lodging false FIR.

Under Sec 167, 218, 220 of IPC, the police officer can be held guilty of deliberately lodging a false FIR against a person with intent to cause injury to him.

Section 167 of IPC – Public servant framing an incorrect document with intent to cause injury

Situation – When a public servant has a duty to prepare a document and he prepares that document in such a manner with the intention of causing injury to any person then he is liable under Sec 167 of IPC. Example – X a public servant is under a duty to lodge an FIR, has lodged false FIR against B with the intention to harass B. Therefore such situation will come within Sec 167 of IPC and X would be liable under this Section. 

Then such Public Servant shall be punished with-

• Imprisonment which may extend to three years, or
• with fine, or
• with both.

What Sec 218 has to say when Public Servant frames Incorrect Record with the Intention of saving a person from punishment?

Situation—When any public servant has a duty to prepare any document and he prepares that document in such a manner with the intention-

• To cause injury to any person; or

•  To protect any person from legal punishment; or

• To save any property from forfeiture under any law

Example- Y a police officer is under a duty to lodge FIR against the Accused X who has committed the Cognizable offence. But Y, in order to save X from the Legal Punishment, had not lodged the FIR against him. Therefore such situation will come under Sec 182 of IPC and police officer would be held liable under this section. 

Then such Public Servant shall be punished with-

• imprisonment which may extend to three years, or

• with fine, or

• with both.

Commitment for trial or confinement by person having author­ity who knows that he is acting contrary to law

Situation—When any person by misusing his legal authority, wrongfully commits any persons for trial or wrongfully confine such person. Example- X a public servant has the authority to commit a person for trial, has lodged false FIR against B and on the basis of such false FIR trial has been commenced against B. Therefore, such a situation would come within Sec 220 of IPC and X would be liable under this section.

Then such person shall be punished with-

• Imprisonment which may extend to seven years, or

• with fine, or

• with both.

5. Can the victim apply for Anticipatory Bail where false FIR has been lodged against him?

Anticipatory bail is provided under Sec 438 of Crpc. The person can apply for Anticipatory bail only in case of Cognizable and Non-bailable offence. If a false FIR has been lodged against a person in order to implicate him in a false case, he has the option to apply for the Anticipatory Bail under Sec 438 of CrPC. The Person can apply to the High Court or Court of Session for the grant of Anticipatory Bail. The Court can grant the Anticipatory bail taking into consideration following factors-

• Nature and gravity of the offence with which the accused is charged;
• Whether the accused had undergone any previous conviction in ration to the Cognizable offence.
• Where the accusation has been made with the intent of causing injury or implicating a person in a false case.

If Anticipatory Bail is Rejected – After taking into consideration these factors, the High Court or Court of the session may grant Anticipatory bail or may reject it. Where the Anticipatory bail has been rejected by the High Court or Court of Session, the police is free to arrest the accused.

If Anticipatory Bail is Granted – Where after taking into consideration following factors, the High Court or Court of Session has granted the Anticipatory bail then the court may impose following Restrictions on the Accused-

• The Applicant should make himself present for interrogation by a police officer whenever required;
• The Applicant shall not make a threat, promise to any person in order to prevent him from disclosing any facts to the court or any police officer;
• May Restrict the Applicant from leaving India without prior permission of the Court.

In Gurbaksh Singh Sibbia v. the State of Punjab, It was held in this case that the discretion under Section 438 cannot be exercised with regard to offences punishable with death or imprisonment for life unless the Court at that very stage is satisfied that such a charge appears to be false or groundless.“The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest. In other words, unlike a post-arrest order of bail, it is a pre-arrest legal process which directs that if the person in whose favor it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail.”

6. Can the victim file a complaint of Defamation against the person who lodged a False FIR against him?

Where false or frivolous FIR is filed by the person in order to wrongly implicate some person in a false case. By doing this, he causes a great harm to the reputation of the person, as though the under the law, the person is presumed to be innocent until proven guilty but the society in which we live today, presumes a person guilty once the person is accused of an offence irrespective of whether false FIR has been filed or later he gets discharged or acquitted by the court, but he cannot get that respect in the society as earlier.

Therefore, where the victim has suffered the harm to his reputation he may file a complaint of Defamation against the person who lodged false FIR against him.

Guidelines Laid down for Police – Registering an FIR in Various Case Laws

Some Guidelines has been laid down for Police Officials for Registering an FIR in various Case laws-

In Munna LaI vs. State of H.P. It was held that when the petitioner approaches the police for the registration of FIR, the police is under a statutory duty to register a cognizable offence and therefore cannot deny to register it and has to register it in the form in which it receives and then starts an investigation.

In Nauratai Ram vs. the State of Haryana, It was held that the police has no discretion or authority to-

(a) Enquire about the credibility of the information before registering the case; or

(b) Refuse to register the case on the ground that it is either not reliable or credible.

In Tulsi Ram vs. the State of M.P., It was held that Where the police refused to register FIR on the grounds of false allegations founded in the preliminary inquiry, the High Court directed the registration of the FIR and fresh investigation in the case.

Conclusion

Law is Made in order to protect our rights, but it cannot be misused to cause injury to someone. Today, the number of cases has considerably increased where false or frivolous FIR is filed by the person in order to wrongly implicate some person in a false case. By doing this, he causes a great harm to the reputation of the person, as though the under the law, the person is presumed to be innocent until proven guilty but the society in which we live today, presumes a person guilty once the person is accused of an offence irrespective of whether false FIR has been filed or later he gets discharged or acquitted by the court, but he cannot get that respect in the society as earlier. Generally, such false FIR is filed in cases of Dowry demand, Cruelty to women, Dowry Death by the women.

Therefore, it’s time to raise your voice against such harassment and torture faced by a person because of false FIR lodged against him by taking action against such person who has lodged false FIR. Thus, in order to take action against such person, there is a need to make people aware of the law and procedure through which they can take such action.

Reference

1. Sec 482, Criminal procedure Code
2. Abasaheb Homme versus the State of Maharashtra, CRIMINAL APPLICATION NO. 766 OF 2007
3. Sundar Babu & Ors vs. State of Tamil Nadu, Criminal Appeal No. 773 OF 2003
4. Sec 182, Indian Penal Code
5. Harbhajan Singh Bajwa v. Senior Superintendent of Police, Patiala & Anr, Criminal Misc. No. 9841-M of 2000 (Dated April 18th, 2000)
6. Sec 211, Indian Penal Code
7. Sec 167, Indian Penal Code
8. Sec 218, Indian Penal Code
9. Sec 220, Indian Penal Code
10. Gurbaksh Singh Sibbia v. the State of Punjab,[1980] INSC 70 (9 April 1980)
11. Munna LaI vs. the State of H.P., 1992 Cr LJ 1558 (HP)
12. Nauratai Ram vs. the State of Haryana, 1995 Cr LJ 1568 (P&H)
13. Tulsi Ram vs. the State of M.P., 1993 Cr LJ 1165 (MP)

The post Legal steps to take if a false FIR is filed against you appeared first on iPleaders.

In this article, Sushant Pandey of Vivekananda Institute of Professional Studies, Delhi, discusses the statement recorded under Section 164 Crpc.

What is a confession?

Confession is the admission of guilt, stating or suggesting an inference as to guilt by an accused made in custody. According to Justice Stephen, a “confession”, is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime.

In state (NCT of Delhi) v. Navjot Sandhu, the apex court observed that confessions are considered highly reliable because no rational person would make an admission against himself unless prompted by his conscience, to tell the truth. For more(see here).

What statements may be called as a confession

A confession is a statement made by accused admitting his guilt. Thus if the maker does not incriminate himself, the statement will not be a confession. Further, a mixed statement which even though contains some confessional statement will stand lead to acquittal is no confession. Thus a statement that a contain self-exculpatory matter which is not true would negative the offence cannot amount to a confession. This is so because a confession must either as a whole or rejected as a whole, and the court is not competent to accept only the inculpatory part and reject the exculpatory part( statement of self-defence).

Statements recorded by Magistrate under CrPC

Need for recording

The need for recording statements of a witness under section 164 of the code is two-fold:

1. To deter witness from changing their versions subsequently: and
2. To get over the immunity from the prosecution in regard to information given by the witness under section 162 of the code. Another reason for recording statement of witnesses under the section 164 of the code is to minimize the chance of changing the versions by the witness at the unit under the fear of being involved in perjury.

Legal provisions

Section 164 CrPC talks about the statements recorded by Magistrate:

Sub Section (1) authorizes the Magistrate to record the statement of a person or his confession, no matter whether he posses jurisdiction in the case. If he does not possess such jurisdiction sub s (6) will apply. The word statement is not limited to statement by a witness but includes accused and not amounting to a confession.

Sub Section (1) states that: any Metropolitan Magistrate or Judicial Magistrate may,whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this chapter or under any other law for the time being in force,or at any time afterwards before the commencement of the inquiry or trial. See also Who is qualified person for recording the statement under section 164 of the code

Warning under Subsection 2

Subsection 2 of Section 164 mentions a warning. Under the statutory provision, the Magistrate is first required to explain to the accused that he was not bound to make a confession and that it did so, it might be used against him. This is the sine qua non for recording confession. The other mandatory requirement is that the Magistrate must put questions to the accused to satisfy himself that the confession was a voluntary so as to enable him to give the requisite certificate under subsection(4). The Magistrate cautioned the accused that he was not bound to make a confession, but did not put questions to the accused to satisfy himself that the accused was making confession voluntary.

In Mahabir Singh v. State of Haryana court observed that, Where the Magistrate fails to explain to accused that he was not bound to make the confession and that if he did so, such confession might be used as evidence against him, that confession so recorded, cannot be taken into consideration.

The Magistrate must satisfy himself that no pressure or force was used on the accused who makes the confession. Any mark of the person of the accused to vitiate the voluntary character of the confession. When was held not only inadmissible under the section but it could not be used under the other provision of Indian Evidence Act such as sections 21 & 29. 

Bar against police pressure

The Sub Section 3 guarantee that police pressure is not brought on the person who is unwilling to make a confession. Where the accused was in judicial custody for more than 2 days prior to the giving of confession it was held that the period is sufficient to shed fear and influence of the police, if any and therefore the confession could be made voluntary by the accused.the interval between preliminary questioning and recording of the confession need not necessarily be 24 hours duration. A confession was held not to rejected merely because the Magistrate had failed to assure the accused that he would not be sent back to the police custody in the event of his failure to make the confession.

Manner of recording Confession, signatures etc.

Subsection (4) says that the confession should be recorded in a manner provided under section 281 and shall be signed by the person making it. The Magistrate shall then make the memorandum at the foot of such confession. The Magistrate cannot merely sign a printed instruction supplied to him. This will be violative of this section. The confession which was made voluntary and recorded correctly in a different language can be said to have amounted to an irregularity. The entire confession must be brought on record. The confession must be shown to be voluntary before it can be acted upon.

It is necessary that the confession should be signed by the accused. If it is not, will be admissible in evidence, the commission would no vitality the confession and the irregularity is curable under section 463. The attestation of the accused is unnecessary when a confession is made in court to the officer trying the case at the time of trial.

The confession without memorandum that it is voluntary is bad in law and cannot be admitted in evidence.

Manner of recording statement other than confession

Subsection (5) lays down the manner in which a statement is to be recorded. The statement of the witness can be recorded under this section even after the submission of charge sheet in the case. See this also What is the procedure to be followed while recording statements?

Recording the Statement of Rape Victim

Subsection 5A reads as a mandatory provision for recording the statement of the prosecutrix under Section 164(5A) of CrPC by the Magistrate. As soon as the crime is brought to the knowledge of the police officer, he is duty bound to take the victim to the nearest Judicial Magistrate for recording her statement. The victim approaches the court for recording her statement being distressed and aggrieved with the attitude of the investigating agency. Thus it is the duty of the Magistrate to record her statement. For more click here

Transfer of confession to Magistrate of jurisdiction

This subsection (6) states that the Magistrate recording a confession or statement under this section shall forward it to the Magistrate by whom the case is to be inquired into or tried.

Putting things simply

• The statement of an accused though recorded in the presence of the Magistrate but not in accordance with the provision of section 164 Crpc is inadmissible in evidence.
• A Magistrate has the discretion to record or not to record a confession. If he elects to record it, this is section requires him to comply with four provision:

1. It should be recorded and signed in the manner provided in section 281 and then forward to the Magistrate concerned.
2. He should give a statutory warning that the accused is not bound to make a confession.
3. He should be first satisfied that it is being made voluntarily,
4. He should add memorandum at the foot of the confession.

• Thus it is sufficient if before commencing to record the confession, a Magistrate puts the necessary questions required by that section to the accused and it is not mandatory that he should keep on repeating those questions to him after every break in the recording of a long confession.

Are the recorded statement, a public document?

Statement recorded by a Judicial Magistrate or Metropolitan Magistrate under section 164 CrPC, is a public document under section 74 of Indian Evidence Act,1872. This evidence is admissible under Section 80 of the Indian Evidence Act, 1872. In Guruvind Palli Anna Roa And others v. State of Andhra Pradesh, Hon’ble High Court held that” The statement of witness recorded under section 164 Crpc, is a public document which does not require any formal proof and there is no necessity to summon the magistrate who records the same”

Principles

In RABINDRA KUMAR PAL alias DARA SINGH v. REPUBLIC OF INDIA, Supreme Court of India laid down the following principles:

1. The provisions of Section 164 Cr.P.C. must be complied with not only in form but in essence.
2. Before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution.
3. A Magistrate should ask the accused as to why he wants to make a statement which surely shall go against his interest in the trial.
4. The maker should be granted sufficient time for reflection.
5. He should be assured of protection from any sort of apprehended torture or pressure from the police in case he declines to make a confessional statement.
6. A judicial confession not given voluntarily is unreliable, more so, when such a confession is retracted, the conviction cannot be based on such retracted judicial confession.
7. Non-compliance with Section 164 Cr.P.C. goes to the root of the Magistrate’s jurisdiction to record the confession and renders the confession unworthy of credence.
8. During the time of reflection, the accused should be completely out of police influence. The judicial officer, who is entrusted with the duty of recording confession, must apply his judicial mind to ascertain and satisfy his conscience that the statement of the accused is not on account of any extraneous influence on him.
9. At the time of recording the statement of the accused, no police or police officer shall be present in the open court.
10. Confession of a co-accused is a weak type of evidence.
11. Usually, the Court requires some corroboration from the confessional statement before convicting the accused person on such a statement

Who is qualified person for recording the statement under section 164 of the code

According to section 164(1) of CrPC, Judicial Magistrate or the Metropolitan Magistrate, whether or not having jurisdiction in the matter can record the confession or statement made to him in the course of the investigation. The proviso added to the Subsection also removed those confessions are recorded by a police officer in whom any power of magistrate has been conferred under the law for the time being in force. Hence the Only a judicial magistrate or Metropolitan Magistrate has the power to record the statement under section 164 of the Code.

Genuinity of Recorded Statement

Section 80 of the Evidence Act, states that–Whenever any document is produced before any court, purporting to be a record or memorandum of the evidence, or any part of the evidence, given by a witness in a judicial proceeding or before any officer authorized by law to take such evidence, or to be a statement or confession by any prisoner or accused person, taken in accordance with law, and purporting to be signed by any Judge or Magistrate, or by any such officer as aforesaid, the court shall presume

– that the document is genuine, that any statements as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such evidence, statement or confession was duly taken.

In view of the provision of 164 of the code the Magistrate has not obtained his signature on the statement but has endorsed his certificate at the foot of the statement. Then it is very difficult to ascertain as to whether the witness is speaking truth or false.

The part of the presumption at the foot of section 80 of the evidence act states that– that any statement as to the circumstances under which it was taken, purporting to be made by the person signing it. That means if the statement which bears the signature of the maker can only come under the purview of section 80 of the Evidence Act. Hence the statement bearing the signature of the maker then only it can be called as genuine, else not.

Form of recording the confession

Delhi High Court has prescribed the proper format for writing down the confession. For more click here

Evidentiary value

confession is a weak kind of evidence and hence needed to be corroborated. It may be used to corroborate or contradict a statement made in the court in the manner provided under section 157 and 145 of Indian Evidence Act. The statement cannot be used a substantive piece of evidence but it can be used for the purpose of corroboration and can be used to contradict by cross-examining the person who made.

What is the procedure to be followed while recording statements?

The procedure to be followed while recording the statement is mentioned in Subsection 5 of section 164. This subsection states that any Statement ( excluding confession) made under subsection shall be recorded in a manner hereinafter provided for the recording of evidence as is, in the opinion of the magistrate, best fitted to the circumstances of the case. The magistrate shall also have the power to administer oath to the person whose statement is so recorded.

Delhi High Court while citing Punjab Government circular Letter No. 6091-J.-36/39329 (H.—Judl.), dated the 19th December 1936, to all District Magistrates in the Punjab, in Delhi High Court Rules said that, before the Magistrate proceeds to record the confession, he should arrange so far as is compatible with his safety and that of his staff and with the safe custody of the prisoner—that the latter is left for some time (say, for half an hour) out of the hearing of police officers or other persons likely to influence him, in order to ensure that the statements made are voluntary.

Hence there is no as such procedure prescribed and it is left to the magistrate deal the matter with the best-suited way, keeping in mind the circumstances of cases.

Places where the recorded statements are used

A statement made under section 164 of the Code of Criminal Procedure may be used to corroborate or contradict a statement made in the court in the manner provided under section 157 & 145 of the Evidence Act,1872. It can be used for the purpose of corroboration. It can be used to cross-examining the person who made it show that the evidence of the witness is false but that does not establish that what he started out in the court under this section is true. A statement made by the witness under section 164 CrPC can be used for the purpose of cross-examining him and discrediting his evidence in the session’s court.

Supreme court in Kashmira Singh V. State of M.P answered the question as of the use of the statement in the trail. The court observed that “In case of witness denies the fact of recording of his statement by Magistrate or if he denies a specific portion of his statement to be not told by him, examination of Magistrate is not necessary to prove contradiction which is unlike the case of the statement recorded by police under section 162”.

Relevance of Statements Recorded by police During investigation

Section 162 Crpc contains a prohibition Against the singing of the witness’s statement recorded during the investigation. It has the origin in the historical distrust about the faithful recording of statement by the investigation officers. This practice helps the untruthful police officers to mould in the way they like, sometimes to the utter dismay the witnesses. This is only possible because of the validity of the section 162 CrPC which helps the accused to contradict the witness if the during the trial in a court the witness come to make a contradictory statement. This is impossible for the police to record contradictory statement even in the case of the truthful witness who must have said the same thing to the police as well as in the court. This statement in the case of dairy often help the accused to get acquitted of the court does not handle the issue carefully.

10 Important concluding points

• The statement recorded under section 164 of the code focus on the statement of the witness by the magistrate which is under this section recorded under this section on oath.
• The object of recording the statement is to preserve the evidence, to get the account of the testimony of the witness at the first instance and while it is still fresh and to preserve retraction of the testimony at the later stage.
• The statement recorded under section 164 of the code can be used for the corroboration of the witness’s testimony at the trail.
• The application for recording the statement under this section is usually filed by the prosecution.
• The magistrate has to ensure before recording the statement the voluntariness of a confession made before the magistrate are too well established for reiteration.
• The magistrate has to ought to extremely careful as regards the identity of the witness/ complaint before proceeding to record the statement.
• The statement of a witness recorded under section 164 Crpc, is a public document which does not require any formal proof and there is no necessity to summon the magistrate who records the same.
• Sub Section (1) of section 164 CrpC authorizes the Magistrate to record the statement of a person or his confession, no matter whether he posses jurisdiction in the case. If he does not possess such jurisdiction sub s (6) will apply
• the confession recorded under section 164 CrPC, should be recorded in a manner provided under section 281 and shall be signed by the person making it. The Magistrate shall then make the memorandum at the foot of such confession.
• Only a judicial magistrate or Metropolitan Magistrate has the power to record the statement under section 164 of the Code

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In this article, Kajal Shrivastava discusses steps and techniques for reading judgments quickly and efficiently.

Introduction

“For our purpose, I define “reading” as looking at printed words and getting enough meaning from them to satisfy your purpose.” (Peter Cumb)

There exists a large number of Legal Principles, which get strengthened by the legal verdicts of the Court of Law. As we are well known with the fact that the best way to provide authentication and legality to a set of arguments is to connect them with a maximum number of relevant case laws, and in order to do so it is essential to get the Zeist of the case without wading it in full.

Myth about having quick reading

Though such strategy might get contradicted by many of the legal expertise and the Law Students. In order to have a good speed at reading basically, an individual must have a strong power of comprehending the things. The judgments and the cited case Laws in them are the way in which the knowledge is being shared with the students, and the other people in general. In order to bring transparency and ensuring an appropriate Justice System in the Country, the Judiciary adapts to the changes as per the requirements, by bringing amendments in the existing Laws and Statutes: the efficiency and perfection in the sphere of a Legal scenario of an aspirant are majorly examined through the authorities and the judicial precedents. Thus along with hard work, it becomes essential to add some texture of smart work as well.

How to think legally

• Judges who are assigned with the task of ensuring the justice by following the notion of “audi alteram partem” render the justice by attaching more and more of Legal texture into their verdict. They strictly make a clear distinction between two things namely,

1. Question of Law,
2. Question of Fact

• In the same manner, while reading a judgement the reader should centralise his attention majorly towards the Legal issues rather than focusing upon the factual issues, though the factual things have to be noted for having a clear picture of the case; but the prime concern must be made for those substances which have some relevance to Law.
• Never forget to use your own creativity while reading the judgment, always critically analyze the verdict and utilize your own Legal knowledge and own understanding in ascertaining the accuracy of the same, this practice helps you to enhance your creativity.
• Last but not the least, always ask yourself “Why”, and try to reach upon a decision as that of a judge in the Court of Law based on your understanding, which will help you to become a “Legal Eagle”.

Challenges faced while reading the judgment

• Non-familiarity with the legal terms.
• Making a distinction between essential and non- essential content of the judgment.

How to overcome these challenges?

As you proceed with the reading try to bring an answer to the following things.

• Who was the plaintiff and who was the defendant when the case was filed for the first time? The complaint has been made for the violation of which law?
• What was the root cause of the filing the complaint?
• What were the legal issues involved in the case?
• What was the decision of the trial court? (in case the decision has been appealed)
• What tests or rules were taken into account for giving the verdict?
  • Important note – Sometimes the Court initially gives the tests/reasons that have been utilized in order to reach the verdict.

Prerequisites for reading Judgments quickly and efficiently

• The art of a fruitful reading has to be essentially accompanied by the element of having a clear comprehension, the more you understand the more you grasp and your understanding becomes the best.
• Good vocabulary – In order to have a clear and precise picture of the judgment, the reader must be well acquainted with the Latin terms and maxims which are used by the professionals in the due course of reaching upon the verdict. A good Legal professional must have an excellent command over the language.
• Knowledge – The judgment revolves around several Legal facts which could be either in the form of any recent amendment brought into the existing Law or may involve the application of some international Conventions.Thus if the reader is already aware of the applied statutes then it becomes quite easy to excavate the maximum from the reading.

How to be a master at analyzing judgments

• Know and understand the root cause of filing the case- The prime and the foremost thing which should be done is to know the root cause of getting the case registered. For example, if the subject matter invokes the constitutionality of any statute then you can apply your basic understanding and knowledge for the purpose of analyzing the judgment.
• Create a distinction between the submission of the parties- Though in order to have a critical analysis of the judgment it becomes essential to have a clear and precise understanding of the written submissions made by the parties, it would be more efficient if the reader creates a distinction between the arguments made by the parties.
• Have the relevant laws readily available- The judgments involves statutory provisions and various reports prepared by the Law Commission, which are long enough to be remembered in such a situation keep the bare Acts and the reports readily available on a separate window in your laptop.  
• Keep the practice of reading the judgments on a regular basis in order to master in the art of learning the judgments, and then you can see the change.

How to approach extra lengthy judgments such as Keshavananda?

• Kesavananda Bharati vs. State of Kerala, the landmark judgment which has to be read by every person involved in the field of law runs in around 2100 pages which might create a fear in your mind regarding the approach to deal with it. Keep the fact in your mind that a good case brief is always a sincere attempt made by a gentle reader who knows very well to interpret the terms in the required manner.
• Here Comes the time when you need the application of your observation skills try to go through the first paragraph of the judgment and mark the important and the relevant things involved in it.
• There will be instances throughout the course of your reading when you will find that certain paragraphs and the content involved in them are of trivial aspect try chucking them down.
• The paragraphs which are too lengthy and are majorly involving the repetitive facts rewrite them in your own language in order to have a convenient reading and a better understanding.
• At the end of this activity, you will find that the paragraphs have been reduced up to a bit extent and now you can have a comfortable reading and understanding of your own valuable inculcation throughout the journey of your reading.

Things you should include in your case note

Your case note should have a basic standard which essentially involves the following,

• Clear
• Concise
• Relevant
• Useful

However, in order to make it more effective, you should try to inculcate the essential elements in it, and eliminate the non- essential things which simply reduces your efficiency. An effective case note should have the following

• When did the cause of action arise?
• When the complaint was registered?
• What legal issues were involved?
• What statutory provisions were used in declaring the verdict?

What not to do while reading a judgment

• Avoid reading the judgment in full- It is to be noted that each and every content involved in a judgment is not necessary for you. Being a reader, you should centralize your attention towards the conclusion and the introductory part which contain the Zeist of the judgment.
• Observe the essential and the relevant piece of text – A good reader always selects the essential content and then proceeds further, select the essential piece of content and then apply your critical thinking.
• Do not read every text in the same manner – The terms involved in a judgment are not similar as that of a normal text they have much wider implications to be applied in the field of law, so do not make the mistake of considering the same as that of a normal textbook content.

Ways of doing quick and precise reading

• There are several skimming techniques which do not involve the trivial aspects and majorly focuses on the informative part. It actually helps to comprehend more and grasp the maximum, without any sacrifice.
• There are certain instances when you need to have the full comprehension, here comes the time to apply the principle of cognitive science where we remember the things about which we think. So, when you want to remember the essential things of a judgment, highlighting the crucial contents seems to be the best idea.
• Survey skim and scan the entire judgment, try to read the mind of a judge based on your readings, observe the important aspects such as headnotes, the cited Case Laws, and the Legal Provisions. Use your reading to prepare at least one or two research questions.

Advantages of quick reading

• Helps to eliminate the trivial aspects, and increases the extent of efficiency.
• Involves the use of both (i.e), Hard work along with smart work.
• Enhances the critical thinking of the reader

Recommendations for quick reading

• The reader can use some good casebooks, rather than going through the whole judgment, in such books the compiler gathers all the necessary case Laws, a summary of the case facts, along with the commentary and the reasoning behind the decision.
• Furthermore, there are renowned and eminent scholars who make their contribution in the form of writing the case summary along with the proper reasoning which is one of the best ways to have the knowledge of a judgment without any sacrifice of comprehension.

Conclusion

Speed or the quick reading is a skill through which everyone can be benefited, and this technique involves the proven instances of how fast you can grasp the things, without any sacrifice of comprehension, moreover it even evaluates your current reading rate and provides you the opportunity to inculcate the necessary improvements into it.

The post How to read Court Judgments quickly and efficiently appeared first on iPleaders.

In this article, Divya Sharma discusses religious conversion and freedom of religion in India.

Introduction

India is always known for its cultural, linguistic and religious diversity. As evident, it is the birthplace of four major religions of the world: Hinduism, Buddhism, Jainism, and Sikhism. In 1950, Constitution through 42nd Amendment Act, 1976 declared India as a secular state which means everyone has a right to practice his or her religion peacefully. In India, there is a Constitutional safeguard for religious conversion as a right to freedom of religion. But the question arises to what extent these religious conversions are protected under freedom of religion? So, the main object of this article is to analyze the scope of freedom of religion guaranteed under a fundamental right and to solve as many as queries in the context of religious conversions.

Right to Freedom of Religion in India

Part III of the Indian Constitution guarantees various fundamental rights. Article 25- 28 provides for the right to freedom of religion which is largely based upon Irish Constitution. Article 25(1) states that “Subject to public order, morality and health and to the other provisions of this part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion”. So it is very much evident from the words of article 25(1) that this right is not restricted to Indian citizens only but also extends to all persons including aliens,[1] individuals exercising their rights individually or through institutions;[2] and whether he belongs to a religious minority or not.[3] Clause(2) provides that nothing in this article shall affect the operation of any existing law or prevent the state from making any law. It talks about state interference in matters related to any economic, financial, political or any other secular activity which is associated with religious practice and any other activity related to social welfare and reform.

Article 26 states that subject to public order, morality and health, religious denominations or any section shall have the right to freedom to run or manage religious affairs. So, both Articles 25 and 26 are not absolute but are subject to certain limitations to maintain public order, morality, and peace in the country. For example, no one can practice sati in the name of freedom of religion.

Article 27 mandates that no person shall be compelled by the state to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of particular religion or religious denominations.

Article 28 states that no religious instruction shall be imparted in the state-funded educational institutions.

Religious Conversion

Meaning

India does not have any state religion nor it patronizes any specific religion. Religion is basically a matter of choice, faith or sets of belief. According to Webster’s Comprehensive Dictionary, religion means a belief binding the spiritual nature of man to a supernatural being as involving a feeling of dependence and responsibility, together with the feelings and practices which naturally flow from such a belief. Everyone should be left free to choose the religion of their choice. For this, Indian Constitution provides the freedom to profess, practice and propagate any religion to all persons. Religious conversion is one of the most heated issues in the society and politics which can be defined as the adoption of any other religion or of a set of beliefs by the exclusion of other i.e. renouncing one religion and adopting another. There are various reasons for which people do convert their religion like:

• Voluntary Conversions i.e. conversions by free choice or because of change of beliefs.
• Forceful Conversions i.e. conversions by coercion, undue influence or inducement.
• Marital Conversions i.e. conversions due to marriage.
• Conversion for convenience.

Right to propagate any religion

The question whether ‘right to convert’ comes under the ambit of ‘right to propagate any religion’ holds fundamental importance to determine the constitutionality of anti-conversion laws. Article 25 talks about the term “propagate” which means to promote or transmit or merely a freedom of expression. At the time of drafting of the Indian Constitution, drafters used the word “conversion” but in the final draft they went with the recommendations made by the Sub-Committee on Minorities (M. Ruthnaswamy) and used ‘propagate’ in place of ‘conversion’ and left the debate open as to whether the right to propagate included conversion. Even today this question cannot be answered that whether the right to propagate any religion includes right to conversion or not. There is no expressed provision for ‘conversion’ in the Indian Constitution but still, there are some whose contention is in the favor that right to conversion is implicit under Article 25 which emerges from freedom of conscience and on the other hand there are some who opposes this.

In Yulitha Hyde and Others v. State of Orissa and Others,[4] The Orissa Dharma swatantrya Adhiniyam, 1968 (the Orissa Freedom of Religion Act) was challenged on the ground that the extended meaning which is given by the Act to the words ‘force, fraud and inducement’ is beyond the scope of Indian Penal Code, 1860 and the Act infringes the fundamental right guaranteed under article 25. Act penalized those conversions which took place due to force, fraud or inducement. Court held the Act unconstitutional and declared it ultra vires. Later, Supreme Court overruled the decision and made the Act constitutional.

In Stainislaus Rev. v. State of M.P,[5] Supreme Court held that the right to propagate one’s religion means the right to communicate a person’s beliefs to another person or to expose the tenets of that faith, but would not include the right to ‘convert’ another person to the former’s faith because the latter person is “equally entitled to freedom of conscience” which words precede the word ‘propagate’.[6] So, nobody has any fundamental right to convert the religion of someone without his free choice. Further, Court held that the word propagate does not give rise to the right to convert.

What are the various actions that can be taken against people forcing such conversions?

At the central level, India does not have any law which provides any sanction in case of forcible conversions. In 1954, an attempt was made to pass the Indian Conversion(regulation and registration bill) but Parliament failed to pass it due to heavy opposition. Later, various attempts were made at the state level. In 1968 Orissa and Madhya Pradesh passed some Acts to prevent forcible conversions by force or inducement. Orissa’s anti-conversion law prescribes the punishment of maximum two years imprisonment and a fine of Rs. 10,000 in case of forced conversion. With this various other states like Tamil Nadu and Gujarat passed similar laws which made forced conversions as a cognizable offense under section 295A and 298 of the Indian Penal Code, 1860. According to these provisions, a person responsible for forceful conversion shall be punished with imprisonment of a term which may extend to three years and with a fine.

What does the Law say about those who Convert their Religion for some Wrongful Gain?

There are people who convert their religion for other trivial reasons which have been seen are polygamy, to get reservation benefits, for gaining admission benefits in some institutions that favor people of a certain religion only, divorce etc. The question is what does the law say about such people? There are some landmark judgments in this regard. In Smt Sarla Mudgal, President Kalyani and others vs. UOI and others,[10] a Hindu husband converted his religion to Islam and solemnized a second marriage as polygamy is permitted in Islam. Supreme Court held that such marriages would be void on the grounds of bigamy under section 17 of the Hindu Marriage Act, 1955 and such person will be held liable under section 494 of the Indian Penal Code, 1860. Also, such conversions to Islam will not be considered as a valid conversion if it is done for the purpose of polygamy. So if a conversion takes place for any wrongful gain then it will not be considered as a valid conversion. The same rationale was given in Lily Thomas, Etc. vs. Union of India & Ors., case. In Faheem Ahmed vs. Maviya @ Luxmi, respondent converted to Islam for getting membership of the library at Jama Masjid. Court held the conversion invalid as it did take place for the wrongful gain only. So, any conversion for any wrongful gain would not be considered as a valid conversion.

Are Anti-Conversion Laws violative of Fundamental Rights?

Till date, there are in all seven states who have managed to pass anti-conversion laws but only Madhya Pradesh, Odisha, Gujarat, Chhattisgarh and Himachal Pradesh are the states in which anti-conversion laws are in force. Recently Jharkhand has also proposed an anti-conversion bill which aims to prohibit forced conversions in which a person who is responsible for forced conversion shall be imprisoned for a term of 4 years and fine of Rs. 100,000. Anti-conversion laws basically came into the picture to stop religious conversions made due to fraud, force, inducement or allurement. But the problem arises in the ambiguous definitions of these terms fraud, force, inducement etc. But Christians had a totally different view in this regard. Christians argued that these laws are basically to prohibit conversions in general. There is a report which highlighted the rise of attacks on Christians in 2016 in the states having anti-conversion laws. This report advocated that these anti-conversion laws are not at all useful because in practice they only obstruct conversions instead of prohibiting forced conversions. Secular forces believe such laws as unconstitutional and violative of human rights but judiciary in a plethora of cases as mentioned above has already held them constitutional.

What is the Legal Procedure for Religion Conversion in India?

Changing one’s religion to another does not govern by any law. Supreme Court has held in the plethora of cases that conversions do not need any particular legal requirements, formalities, religious rituals or ceremonies. In Perumal Nadar (dead) by Legal Representative v. Ponnuswami Nadar (minor)[7], it was held that no formal ceremony of purification or expiration is necessary to effectuate conversion.

Any person can convert his or her religion with good faith. A mere declaration whether oral or in writing does not amount to conversion. Credible evidence of the intention to convert followed by definite overt acts to give effect to that intention is necessary.[8] A bona fide intention accompanied by subsequent conducts unequivocally expressing that intention would be sufficient to reach the conclusion that genuine conversion takes place.

Once conversion of religion has taken place then it has to be notified in Government Gazette so that converted religion can be mentioned in all the legal documents too. In Kailash Sonkar vs. Smt. Maya Devi,[9] Supreme Court adopted the same approach for reconversion. In case if clergy wants to convert his religion, he can do so with the permission of the district magistrate. The absence of any statutory provision creates a legal vacuum which puts the burden on the Registration Officer to take a decision whether conversion took place is genuine or not.

Anybody who is interested in conversion of religion may do so by complying with the personal law of that religion. The various personal laws provide the rituals which need to be performed in a specified manner at the time of conversion.

Conversion to Islam

It is not necessary that a Muslim should be born a Muslim. A person can easily convert to Islam by accepting the unity of God and the prophetic character of Muhammad. Islamic law theory talks about the religious belief i.e. a believer of Islam can adopt the religion of Islam irrespective of the fact that he is not born Muslim. Any person who has attained the age of majority and having a sound mind at the time of conversion may convert to Islam in two ways:

• By declaration: He has to declare publicly that he has renounced his original religion in order to profess Islam. He has to have a belief that there is no god except Allah and Muhammad is the messenger of Allah. He must be a believer of Allah only and that the Holy Quran is the literal word of God. He must accept Islam as his religion.
• Through ceremonies: A person can convert his religion to Islam by performing various ceremonies as prescribed in Islam itself. Firstly, the person needs to go to the mosque where imam asks him to say “Shahada” i.e. the testimony of faith. It should be pronounced like “La ilaha illa Allah, Muhammad rasoolu Allah.” He cannot hear the testimony just like that. He should say this with conviction and by understanding it’s full meaning which is “that there is no true deity except Allah and Muhammad is the true messenger sent by God to humankind”. After he reads Kalema, a Muslim name is given to him which has to be registered in the Imam’s register.

So, these are the two simple ways through which one can renounce his original religion and may convert to Islam. But such conversion should be done without any fraud or any wrongful gain. If the conduct and behavior of the person who is converting his religion go contrary to Islam the presumption of conversion may be rebutted.

Conversion to Hinduism

Hindu Scriptures do not provide any procedure to convert to Hindu from any other religion as Hinduism is regarded as the way of life. The moment where one has made pure intentions to convert to Hinduism, he will be regarded as a Hindu. To become a follower, one can approach Arya Samaj which is a religious organization for any help. An application for the conversion by free will can be made to any Arya Samaj temple along with a document of proof of age and residence signed by the applicant and two other persons as a witness. Also, it provides for a procedure which involves a Vedic purification ceremony of “Shuddhi Karma”. Shuddhi Karma basically involves conducting a “Homam” which can be understood as a Hindu ritual which is done in front of the fire. By this, a certificate of conversion would be issued to the applicant.

Conversion to Christianity

There is no uniform ritual or ceremony which should be performed during the time of conversion to Christianity. Different sects of Christianity believe in different-2 rituals or ceremonies. Any non-Christian person can renounce his original religion in order to adopt the religion of Christianity by taking a vow of repentance from past sins and by having faith in Jesus as their savior and vow to follow his teachings as found in the New Testament. Baptism is the ceremony which is regarded as the universally accepted ceremony for conversion among Christians. A Person has to perform baptism in the name of the father, son and holy spirit.

Reference

[1]  Ratilal Panachand Gandhi v. State of Bombay, (1954) SCR 1055.

[2] Stainislaus Rev. v. State of M.P., AIR 1975 MP 163 (166).

[3]  Mittal, S.P. v. Union of India, AIR 1983 SC 1.

[4] AIR 1973 Orissa 116.

[5] AIR 1977 SC 908.

[6] Ibid.

[7] AIR 1971 SC 2352.

[8] 235th Law Commission Report on Conversion/ Reconversion to Another Religion.

[9] AIR 1984 SC 600.

[10] (1995) 3 SCC 635.

The post Religious Conversion and freedom of religion appeared first on iPleaders.

This article is written by team iPleaders.

Chief Information Officers came to be in the 90s when companies started to get into the digital age. CIOs were appointed to make sure the IT changes within internal operations ran smoothly. Over time, people in this position have gone on to make significant contributions to their companies and the tech sector overall.

CIOs are in charge of IT strategy, the computer systems required to support an enterprise’s objectives & goals and development of policy & strategy, amongst others. Although these responsibilities might differ from one company to the other, what remains the same, is that they have to make very tough decisions.

Many of these decisions rely on the ability to negotiate with the different vendors that provide those systems to their company, put in the right terms and conditions in contracts as well enforcement of those contracts. As the CIO they are responsible for technologies that run their business internally. And to do that they are the company’s representative to all these various vendors.

CIOs have to strategize not only about what their company needs to function more efficiently but also about the execution of those strategies that more often than not require them to engage external consultants, developers, service providers or even SaaS platforms.

In 2015, we introduced an online course on contract drafting and negotiations. When we researched on who are the most likely beneficiaries of a course like this within India Inc., many fingers were pointed at one category of people – CIOs. They are after all custodians of some of the most important contracts and vendor relationships for a company hurtling into the new age of business, taking full advantage of the digital revolution.

It is important to note that most big companies who need a CIO tend to have in-house counsels and law departments to guide CIOs through law, regulations and negotiations. However, the CIOs are often required to make critical decisions about contractual negotiations, and lawyers perform a lot better when they have clear instructions to act on. The strategy part is better taken care of by the CIO who has far more ground-level knowledge about requirements of the company while the lawyers are happy to implement the strategy given to them while negotiating. Also, many CIOs find it refreshing and empowering to be able to hold their own in a negotiation rather than leaving it all to lawyers.

This is why we thought of writing an entire post dedicated to what CIOs need to watch out for while negotiating contracts.

So what are the most critical elements that CIOs should watch out for while negotiating contracts?

#1 Automatic Renewal

A lot of service providers include an automatic renewal clause in the fine print which is hardly ever read by the representatives that negotiate these contracts. Say you want a certain service for one year. You enter into a contract for this. The contract says that the duration is one year only, but it may be automatically renewed for another year unless you specifically give a notice before the 12th month! This is great as it avoids extra paperwork or paying of stamp duty on another agreement if you want to renew next year. So many people tolerate this clause. However, what if you want to cancel and forget to give a notice for cancellation of the automatic renewal before the 12th month? You will be stuck with this service for another year.

So think about whether your organization have the process to remember to cancel or not. Otherwise paying stamp duty next year again may be cheaper.

#2 Termination Clauses

As CIO or any executive, you should always review the termination provisions of a contract well before signing it.

Most vendor agreements come with a long list of provisions for termination. These work for both sides. However, any vendor with the slightest monopoly/ unique products or services will try to strong arm you into signing a contract with no wriggle room to terminate when you may need to.

Focus on when your company can terminate a contract and what it takes to terminate. It helps to negotiate to get as much flexibility as possible. Do you need to give a long notice period before terminating? What about the scenarios in which the other party is failing to live up to their promises? Can you terminate without in such cases? Can they easily terminate and leave you in trouble as you scramble to find a replacement?

Even if a vendor is at fault and there is a defect in their work, you may still want to give time to your vendor to remedy the situation. Should you write this in the contract? Should there be a penalty clause for delay instead of termination?

Would you have to give an official notice before terminating? These are all strategic questions and answers will vary depending on specific business cases. Are you ensuring that strategic planning is happening before you sign your contracts?

#3 One-sided first drafts

If you were to talk to any commercial lawyer who specializes in drafting agreements for big vendors, you will realise how contracts drafted in a totally one-sided manner to suit the side that drafts the contract first. More often than not, people sign these highly onerous documents without a second glance and end up paying the price for it.

Big vendors, who either have a sizeable amount of the market share or have established a good reputation do not like give any breathing room to their purchasers. If you have to source your service from such entities, and you have negligible leverage, to begin with, you have to rely on great negotiation skills and strategic planning.

Most importantly, don’t get intimidated. It is a standard trick in the book. The correct answer is to take that one-sided contract and change all the clauses extensively to protect your interest. Do not hesitate thinking that you are making too many changes. You have to fearlessly and mercilessly turn the text of the contract into your favour. Then both sides will negotiate, and something reasonable will be eventually arrived at. This is a standard process. If you see a tough one-sided contract and give up on a few things without fighting for them, you may lose ground on things that you really care for. When negotiating high stakes contracts, often the guy with the longest list of demand tends to win. Yes, you will give up on many of those demands later in the negotiation, but the question is which ones. You must plan for that.

However, you can also use this to your advantage. If you haven’t already, create a standard form contract which is heavily in your favour and demand that all vendors and service providers sign the same. Many will.

#4 Liability Waivers

Waivers are generally an agreement to release or not to assert a right. But in terms of corporate contracts, liability waivers primarily absolve businesses of their responsibility in case of an accident. Vendor agreements have comprehensive liability waivers to protect either party from blame in case something does not go according to plan.

Since liability waivers are contractual, they can be cause for action under section 63 of the Indian Contract Act. Liability waivers are put in place to make sure that any subsequent financial obligation, etc. in case of a delay in providing services, may be losses that are caused by any unforeseeable natural calamity, unforeseeable third-party actions etc. are not causing financial loss to the vendor. As the CIO it is very important that you negotiate these provisions very carefully and make sure that you do not sign off on waiving liability unless there is an absolutely valid commercial justification to do so.

You also need to make sure that your company is not put in front of the crosshair in case of a delay in payments and that there remains ample wiggle room. A small delay should not trigger a massive penalty. Negotiating these waivers are like walking a tightrope. You need to assert your company’s privileges while making sure that your vendor is not screwed over either. These provisions need to be driven by genuine commercial concerns and fairness, not ego or clever posturing. You have to find the fine line and decide on mutually acceptable ways to deal with future mishaps and risks that may or may not materialize.

What can be done to make the negotiation go better?

CIOs are in a position of power and authority. They can command a lot of influence and power if they are good at negotiating.

Always be prepared

Take into consideration previous experiences, talk it through with the CEO or other important people in the company who may have a say or may be affected by a contract about their concerns. You should research the vendor thoroughly, gain insight into their operations and what their competitors offer.

Make it a priority to devise a comprehensive negotiation strategy and delegate all responsibilities accordingly.

Keep things clear, concise and brief

Your goal should be to get the best services for your company, making sure that the contracts are in your favour but also not unfair to the vendors. If you work for a big company, chances are vendors are gonna fight amongst themselves to give you the best option. However, they might give you a great deal that they cannot sustain later – and while it will affect them quite badly, you will not really walk out of it scratch free either.

Keeping all conditions and terms clear in writing will make the negotiation process simpler and leave little or no room for miscommunication.

Streamline the negotiation process

As a CIO, you will have the authority to make decisions. Make sure the representative of the other party has the same level of authority. That way, they’ll be able to negotiate accordingly and won’t have to spend time running post to pillar to people with authority to get a counteroffer. It will make the process more streamlined and get rid of costly delays and save a lot of time. It is the simplest things that make a lot of difference in the course of a negotiation.

As Daniel Shapiro, director of the Harvard International Negotiation Program points out,”Most effective strategies for negotiation are really just common sense, but people fail to recognize them as soon as a negotiation gets difficult.” You have to deal with more vendors than ever before, for niche products and services, so adapt accordingly.

What actions can you take towards becoming a better negotiator?

One of the best things that you can do is to find a mentor with whom you can simulate various negotiation scenarios and get practice before the really important negotiations. Also, having team members with whom you can discuss and thrash out various outcomes before any negotiation is useful. However, if I am frequently negotiating high-value transactions, getting some proper training in negotiation and even contract law is a great idea, which is now easily available through online courses like this course on contract drafting and negotiations. Also, you might want to check out a specialized course on technology contracts which CIOs deal with most frequently. There are many live trainings too, like this one you could get from Harvard. You could also watch some youtube videos, and pick up some basic negotiation strategies. In your next negotiation, go prepared to the tee!

The post What should a Chief Information Officer know about contract negotiations? appeared first on iPleaders.

Which new skills will you acquire in 2018?

Great lawyers and strategists know that when it comes to high performance in a particular transaction, dispute, client meeting, interview or even an internship, specific subject matter expertise is important.

You can’t afford to spend time acquiring new skills after you have been briefed by a client, or, if  you are an in-house adviser, after a situation has already arisen. In fact, corporate and work is largely based on advance planning and strategy. Contracts and financing decisions predict and minimise all chances of doubt or confusion when a deal is entered into. Similarly, dispute resolution strategies do not anymore involve use of adjudicative mechanisms in a knee-jerk manner.

At the end of January, we have decided to conduct 3 unique lectures and workshops on highly specialised subjects.

Workshop on Technology Transfer Agreements – Drafting and Negotiation, by Bhumesh Verma, Founder of Corp Comm Legal, Author of Contract Drafting Textbooks and Former Partner at Khaitan and Link Legal (details below)

Date: 24th January, 2018 (6 – 9 pm), Fees: INR 2,000 (enrol here)

Lecture on Negotiation in Dispute Situations for Law Students and Lawyers, by Arjun Natarajan, litigator and certified mediator (IIAM and IICA, under the aegis of Ministry of Corporate Affairs – Government of India), retainer counsel for TRAI, Founder and Publishing Editor of Indian Mediation Law Blog (www.indianmediationlaw.wordpress.com).

Date: 30th January, 2018 (6 – 9 pm), Fees: INR 1500 (enrol here)

Workshop on Debt Finance: Private Placement, Listing and Loan Agreements, by Neha Mary Koshy, Former Associate with Cyril Amarchand Mangaldas, Trilegal and HSB Partners (details below)

Date: 31st January, 2018 (6 – 9 pm), Fees: INR 1,700 (enrol here)

Venue for all the three workshops:

iPleaders Office (New Delhi),

33A, Mehrauli Badarpur Road,

Saidulajab, (Around 100m walk from Saket Metro Station (Saidulajab Exit) on the main road)

New Delhi – 110030.

Landmarks: Next to Lingaya’s Building / Red Onion Restaurant Near Saket

Seats: 30 (Registration is on first-come, first-served basis)

In case you have any questions, feel free to call us on 011-33138901 or write to lawsikho@ipleaders.in

Detailed syllabus and outcomes of each workshop

Workshop on Technology Transfer Agreements – Drafting and Negotiation

• Ownership of IP by transferor
• Due diligence for Technology Transfers
• Methods of transfer
• Ownership of new rights and alternative methods of structuring and negotiation
• Termination and how that works
• Regulatory limitations on payment of royalty  
• Technology transfer from India to offshore companies
• In which country should Indian inventors house technological innovations?
• How should you use this knowledge in interviews?

Prior knowledge of contract law or contract drafting is not necessary as we will be using an intuitive approach which anyone can grasp.

All participants who attend the workshop will receive a checklist for negotiating an agreement effectively and a template of a real-life agreement which can be customized based on the situation.

Participants will also receive a certificate of participation.

Interview Tip: In case you are attending the workshop for being interview ready, make sure you articulate what you learnt in the workshop and how that will help you specifically in the work you do for a recruiter in your interview. That is inspiring, compared to a cursory mention of the fact that you attended the workshop or pointing to your certificate or your CV.

Faculty: Bhumesh Verma, Founder of Corp Comm Legal, Former Partner at Khaitan & Co, Paras Kuhad & Associates and Link Legal India Law Services

Register here

• Lecture on Negotiation in Dispute Situations for Law Students and Lawyers

Why should you attend this lecture?

When it comes to appreciating situations from an adversarial perspective, law students and lawyers tend to do well, as they are trained to do so from the very beginning of their education in law. 

In practice, it becomes very necessary to examine commercial disputes from a point of view, which is different from an adversarial point of view. Often, negotiation is the first step taken by parties to a commercial dispute. Opening up the minds of law students and lawyers to negotiation would make them well-rounded professionals, who can appreciate disputes from not just an adversarial perspective, but also show negotiation skills and have that all important component – the ability to communicate complex ideas to clients. In fact, it is quite difficult for lawyers to get by with clients, with only adversarial skills.

Parties to commercial disputes rely heavily on strategic inputs from such lawyers while negotiating to resolve disputes. Such lawyers are frequently engaged by a party to a commercial dispute, to manage expectations and protect its interests. They play key negotiating roles in such situations.

Whether you are a litigator or a corporate lawyer, if you are equipped with negotiation skills, potential clients are more likely to engage you to manage their expectations, protect their interests and to play key negotiating roles, especially in commercial disputes. The thought process of a lawyer equipped with negotiation skills has elements of commerce and strategy, in addition to law. Negotiation skills will enable you to think and strategize, keeping in mind your client’s commercial intent. That apart, as a lawyer, you can additionally guide your clients to look for consensual, amicable and innovative solutions, which have legal backing.

Negotiation skills add a new element to your professional expertise. 

 Furthermore, negotiation skills lie at the heart of conciliation and mediation. Hence, mastering negotiation skills definitely makes law students and lawyers better users of conciliation and mediation. In the sense that, such an equipped lawyer could effectively represent his clients before a conciliator or a mediator.  

As a lawyer with good negotiation skills, your communication with your clients and with lawyers’ of your clients’ opponents is likely to be far more effective and persuasive.

Most importantly, in an era when the premium for legal tasks is falling because of artificial intelligence; negotiation skills could give you an edge.

What will you learn during this lecture?

The recent past has witnessed an unprecedented rise in discussions on negotiation. Undoubtedly, this has immensely contributed to the body of knowledge pertaining to the skills which are essential to negotiate. It has also created more awareness about negotiation and the advantages of negotiation.

As much as several principles of negotiation with foreign origin are largely of universal applicability, it is important to tweak the principles and make them suitable in the Indian context. During the course of this lecture, keeping in mind the Indian context, broadly speaking, the endeavour shall be to enable you to learn the following:

1. How to use negotiation as a process and mechanism to satisfy different needs and interests of parties
2. How to use negotiation to arrive at positions that really reflect a satisfaction of needs and interests of the parties
3. How should you prepare for a negotiation (keeping in mind the Indian context)?
4. Negotiation tips based on Arthashastra by Chanakya that are still relevant and used in the modern day
5. Legal and professional ethics in context of negotiation for lawyers, as per Indian law
6. Drafting settlement agreements and enforceability of settlement agreements.

Faculty

Arjun Natarajan

Arjun is a litigator as well as an accredited and certified mediator (IIAM and IICA under the aegis of Ministry of Corporate Affairs – Government of India). He is the retainer counsel for Telecom Regulatory Authority of India. He is the Founder and Publishing Editor of INDIAN MEDIATION LAW BLOG

(www.indianmediationlaw.wordpress.com).

Register here

• Debt Finance: Private Placement, Listing and Loan Agreements

From a businessman’s perspective, the cost of debt is cheaper than equity (if he is certain of his cash flows and places a premium on control).

If you work in a company (in finance or legal & compliance or strategic roles), this kind of knowledge will be crucial.  Many businessmen are looking to raise loans and struggle with the options available and how to negotiate their contracts.

Knowing how companies raise debt through different mechanisms is crucial if you work in a corporate law firm in banking and finance, capital markets or general corporate teams or if you aspire to work in them.

Even as a litigator, this expertise can be a useful source of revenue and clients. In fact, occasional advisory work can lead to a successful entry point into the world of dispute resolution for your clients. If you are involved with the client when the deal is being entered into, you are likely to be involved if there is a dispute (assuming that the client is satisfied with your services).  

Syllabus

Loans vs. Debentures – How are they different?

How to decode a loan agreement and key clauses

Why and how should you raise ECBs?

How to understand and prepare a debt information memorandum as per SEBI regulations

Private placement compliance requirements under Companies Act

Due Diligence in debt financing transactions and material risks

Secured loans vs. unsecured loans – what is the difference?

What is the legal work involved for secured loans?

Options in the case of default

Participants who attend the workshop will receive sample templates for future reference and analysis and a certificate of participation.

Interview Tip: In case you are attending the workshop for being interview ready, make sure you articulate what you learnt in the workshop and how that will help you specifically in the work you do for a recruiter or a client in your interview. That is inspiring, compared to a cursory mention of the fact that you attended the workshop or pointing to your certificate or your CV.

Faculty: Neha Mary Koshy

Corporate Lawyer (Neha has earlier worked as an associate with Bharucha & Partners, Cyril Amarchand Mangaldas and Trilegal)

Register here

The post Workshops on Debt Finance, Negotiation in Dispute Situations and Technology Agreements in iPleaders Delhi Office appeared first on iPleaders.

In this article, Deepshikha Sarkar does a case Study of Ericsson’s dispute with Indian Mobile Manufacturers.

Background of the case

Ericsson is an IT and communications equipment and services Swedish multinational who sued Micromax an Indian mobile handset manufacturing company.

Ericsson being the largest holder of SEPs regarding technology including 2G (GSM, GPRS, EDGE),3G ( UMTS, WCDMA, HSPA),4G (LTE) sued Micromax for patent infringement in March in the Delhi High Court as-as result of which the court ordered the parties to enter into a contract under FRAND terms on an ad-interim basis for one month with certain prescribed royalty rates a mediator was appointed too.

This step above failed, and in June 2013 Micromax sued Ericsson with the allegation that the setting of royalties by Ericsson was completely unfair and abusive.

Intex is a company incorporated in India with a business which includes TVs, DVD players, Headphones and predominantly mobile phones. In 2013 Intex sued Ericsson on the same terms as Micromax stating that their royalty setting was discriminatory and abusive also. The suit also contained a patent infringement claim against Intex for the same patents it had sued Micromax for initially in March 2013.

What is Ericsson’s business model and what was the issue in this case?

Ericsson is a Telecom giant incorporated in Sweden. As a part of its business model, it believes in licensing its Standard Essential patents and the reinventing the royalties receives into research. This facilitates global collaboration and commercialization for best technological standards in the business.

ISSUES

Whether Ericsson is the registered proprietor of the suit patents?

Whether Ericsson has offered to Intex a license on fair, reasonable and non-discriminatory (FRAND) terms and conditions?

Whether Ericsson has offered to Intex a license on fair, reasonable and non-discriminatory (FRAND) terms and conditions?

Whether Intex and Micromax are an ‘unwilling licensees’?

Whether Intex and Micromax has negotiated in a bonafide manner with the Ericsson to take a license in respect of the Ericsson’s Standard Essential Patents

Whether Intex and Micromax are infringing the suit patents?

Whether the suit patents are invalid in nature and are liable to be revoked in the light of the grounds raised by Intex and Micromax in its counterclaims?

Whether Ericsson is entitled to damages/payment of royalties from the Intex and Micromax for sales made by it of devices working as per the Ericsson’s patented technology and if so, since what period and for what amounts?

How Ericsson tried to use Indian customs law to protect its IP rights?

Intellectual Property Rights (Imported Goods), Enforcement Rules, 2007 was used the by Delhi High Court to hold that Ericsson would be allowed to work with Customs officials to inspect the importation of the consignments of Micromax and Intex.

As per the Judgement, the Ericsson was able to direct Customs authority to restrict importation of Intex’s mobile devices which infringed the suit patents.

During the pendency of the suit, the Micromax was asked to pay money to the court if they intended to keep importing and selling its products in India without the customs impounding their consignment.

Along with that, in the Licensing agreement which was entered into by Micromax and Ericsson also contained a clause in which Micromax undertook to make a deposit of interim payments in Court within five working days of the intimation by Customs of the arrival of their consignment. After which Ericsson shall inspect the consignment and inform the Customs Authorities that it has no objection and only then would the consignment be handed over to Micromax.

The effect of this clause continued as a director of the Court as a part of the final judgment of as well.

Did the court grant favorable interim or final orders for Intex?

No, there were no favorable interim or final orders for Intex in the matter, in fact, all the orders passed were adverse.

Regarding the issue of Patent infringement, the Court held that since the SEPs (suit patents- AMR, EDGE, 3G) are incorporated in the handsets sold by Intex and hence there is an infringement of the suit patents.

It was also held that the royalties set by Ericsson were justified as they were equal to that asked from other licensees and there was no discrimination.

The court directed the Central Board of Excise and Customs and Commissioner of Customs not to allow import of such goods which infringe the suit patents.

For the interim period of pendency of the suit the court decided royalty rates and fixed the period for the payment of the same, and this payment was to continue in 6 months till the disposal of the suit. 50% of which amount was to be paid to Ericsson directly and 50% as bank guarantee to the Registrar General of the Court. There was a restraining order on the manufacture, assembly, importation, sale, an offer of sale or advertisement of any product that used the suit patents as a part of their technology during the pendency of the suit.

About the time period before the suit, Intex was directed to furnish accounts form the date of use of the suit patents to date of filing of the suit.

Also, the court dismissed Intex’s claim of the invalidating the suit patents. The court held that the suit patents were compliant with the Patents Act, 1970.

The court held that the infringement suit by Ericsson was valid and not only had Intex infringed the patents but also acted in bad faith when it did not negotiate to enter into a licensing agreement on being approached by Ericsson for monetary benefit.

Did Indian players dispute Ericsson’s rights or was there a dispute on the quantum of royalty?

Intex and Micromax questioned both the Indian companies claimed the following:

One of Micromax’s complaint to the CCI in 2013 was that Ericsson was abusing its dominant position by charging exorbitantly high royalty in a discriminatory manner.

Intex challenged Ericsson practice of “charging royalties on the basis of the sale price of the mobile phone as opposed to the profit margin on the sale price of the baseband processor/chipset.”

Intex asserted by citing US Courts decisions that ‘use of exclusionary remedies by owners of alleged SEPs has been frowned upon by US courts as well which are usually perceived as being pro-patentees,’ thus arguing that the court should not grant an injunction against Intex.

The Indian Companies also alleged that the statutory obligations laid down under Sec 8 of The Patents Act,1970 were not followed by Ericsson and enough foreign prosecution details about corresponding patents were not disclosed.

The validity of the suit patents were challenged as well, on the basis of  Sec 3(k) and Section 3(m) of the Patent Act 1970.

How did they calculate royalty?

The interim Royalty rates decided were as follows:

Micromax complained that the royalty demanded by Ericsson was unfair related to the SEPs. They contended that the royalty should be based on the patents relating to the chipset technology and not in an unfair and arbitrary manner by calculating royalty as a percentage of Net Selling Price of the licensed downstream product.

According to Ericsson since there was no one in the market with even a close alternate technology and that is why they believed that they had the right to charge royalty at the rates mentioned above.

The Court agreed with Ericsson and held that the net Selling Price of the downstream product is a valid base for calculation of royalty. The Court ordered that FRAND licensing agreement should calculate royalty derived from “sound economic reasoning.”

When the case(Micromax) was before the CCI before coming to the Delhi High Court. On 12/11/2013, the CCI held that as per Section 26(1) of the Competition Act, 2002, “Ericsson holds a dominant position in the market for devices that use GPS/GPRS/EDGE standards as it is the largest holder of SEPs in India relating to 2G,3G, and 4G.”

Did Indian players dispute Ericsson’s rights or was there a dispute on the quantum of royalty?

Although there was an Issue framed regarding the validity of the suit patents and whether Ericsson’s patent rights were valid or not? The primary issue ( and discussion) was regarding the method of calculation of royalty and whether such royalty was charged on FRAND terms or not.

Is this an IP issue or a competition law issue? What is the competition law angle?

This case had issues related to both Competition Law as well as Patent Law as well.

One issue regarding the “jurisdiction” of the CCI. It was dismissed simply by highlighting the fact that the matter had issues concerning purely Competition Law as well. Namely, Whether there was a prima facie case of abuse of dominance as the royalty charged by Ericsson was on the sale price of the product and not on the value of the technology of the SEP.

The judgment on the above-mentioned issue was challenged by Ericsson in the High Court saying that the Patent Act had the remedy about Licensing and the Patent Act, 1970 would override the Competition Act, 2002.

After dealing with this question of “inconsistency,” of both the Acts the Court held that the remedies for abuse of patent rights provided by both laws are quite different. The Patent Act provides the remedy of compulsory licensing for abuse of patents, i.e., a remedy in personam, while Section 27 of the Act provides various remedies that include levying penalties, cease and desist order, i.e., remedies in rem.

And hence, there was no such issue of inconsistency between both the regimes which could not be harmonized. Also, it was held that the CCI could exercise jurisdiction even though there was a pending civil suit for infringement.

The post Case Study of Ericsson’s dispute with Indian Mobile Manufacturers appeared first on iPleaders.

As a house-wife with an LLB degree and a diploma course in computers I was working as a business analyst with IBM. Left the job and was managing garments business of my family. I was searching for a useful distant education course to upgrade my career. Came across the portal of NUJS for distant education and found contents of  Diploma in Entrepreneurship Administration and Business Laws are amazing. Searched for the reviews of the course, all of them were very encouraging. Gone through the real time practical experiences. It actually helped me a lot to change my perspective.

After a certain age, there are many people who cannot attain colleges for further studies for betterment of their career. But iPleaders surpasses others as far as online Law course contents are concerned. Technicalities of this course are better than the traditional LLB course. One can undoubtedly take up any online Law course to upgrade their career as per their requirements for a remarkable positive change.

My overall experience with iPleaders went extremely well. Diploma in Entrepreneurship Administration and Business Laws from NUJS has changed my career perspective. It gave me a new platform, helped me to get a new job with a Law firm as a ‘Legal Manager’. Saying just a ‘Thank You ‘will be very less, as far as my new accomplishment is concerned. All the modules are great. Specially, Cloud Computing, Taxation and I.T Law were very helpful for me as I did not had any idea of the same. Currently I’m able to implement what I’ve learnt from this course in my current job profile as a Legal Manager. Thank you again.

The post Deepthi Kathi : Legal Associate at Swetcha Legal Associates, on how the NUJS Diploma course helped her appeared first on iPleaders.

In this Article, Aditi Bohra of National Law University, Delhi gives an overview of Multi-State Cooperative Society and provides for the procedure to set up a multi-state cooperative society.

Introduction

The Multi-State Cooperative Societies (MSCS) Act 2002 which came into force in 2002 was enacted to consolidate and amend the laws relating to cooperative societies and to substitute the Multi-State Cooperative Societies Act, 1984. The objective of this Act is to facilitate the incorporation, functioning, and organization of the cooperative societies which have jurisdiction in more than one state. The Act facilitates voluntary formation and functioning of multi-state cooperative societies which are member driven institutions and are based on self-help and mutual aid. The Act also helps these societies to further their economic and social advancements and provides for their functional autonomy.

Definition of Multi-State Cooperative Society

Multi-State Cooperative Society has been defined under section 3(p) of MSCS Act 2002. It says that “multi-State co-operative society” means a society registered or deemed to be registered under this Act and includes a national co-operative society and a Federal co-operative.” The Act provides for the formation of both the types of cooperative societies viz primary (with both individual and institutional members) and Federal Cooperatives (with only institutional membership). The main objectives of the society are to work in the interest and welfare of its members in more than one state. It is not necessary that a society should have branches in more than one state, it may have branches limited to one state and it shall not cease to be a multi-state co-operative society, so long as it serves the interest of members in more than one state.

Procedure for registration of Multi-State Cooperative Society

The procedure for registration of Multi-State Cooperative Society has been prescribed in the MSCS Act 2002. Section 5 of the Act lays down that No multi-State co-operative society shall be registered under this Act unless its main objects are to serve the interests of members in more than one state and its bye-laws provide for the social and economic betterment of its members through self-help and mutual aid in accordance with the co-operative principles. Section 6 of MSCS Act 2002 provides for application of registration which shall be made to the Central Registrar in such form and with such particulars as may be prescribed. The application shall be signed:

• In the case of a multi-State co-operative society of which all the members are individuals, by at least fifty persons from each of the state concerned;
• In the case of a multi-State co-operative society of which the members are co-operative societies, by duly authorized representatives on behalf of at least five such societies as are not registered in the same state.
• In the case of a multi-State co-operative society of which another multi-State co-operative society and other co-operative societies are members, by duly authorized representatives of each of such societies: Provided that not less than two of the co-operative societies referred to in this clause, shall be such as are not registered in the same state;
• In the case of a multi-State co-operative society of which the members are co-operative societies or multi-State co-operative societies and individuals, by at least,
  • fifty persons, being individuals, from each of the two states or more; and
  • one co-operative society each from two states or more or one multi-State co-operative society.

• The application shall be accompanied by four copies of the proposed bye-laws of the multi-State co-operative society and the persons by whom or on whose behalf such application is made shall furnish such information in regard to the society as the Central Registrar may require.

Documents required for setting up a Multi-State Cooperative Society

• Four copies of proposed Bye-Laws ;
• List of contributors to the share capital including List of contributors to the share capital including details of the amount contributed by each member;
• A certificate from the bank showing credit balance in the account of the proposed multi-state co-operative society;
• A scheme showing economic viability of the proposed society and further state that registration of society shall be beneficial for the social and economic betterment of the members.
• A resolution providing name and address of the chief promoter for any communication by the Central Registrar.
• Copy of resolution in favor of the person authorized to make the alteration in the Bye-Laws of the proposed society.

Registration

Section 7 of MSCS Act provides for registration of society and its bye-laws if the application complies with requirements prescribed in the Act.

When is application deemed to have been accepted?

• The application for registration shall be disposed of by the Central Registrar within a period of four months from the date of receipt thereof by him.
• If the application for registration is not disposed of within a period of four months or the Central Registrar fails to communicate the order of refusal within that period, the application shall be deemed to have been accepted for registration and the Central Registrar shall issue the registration certificate in accordance with the provisions of this Act and the rules made thereunder.

Procedure for passing the refusal order

• Where the Central Registrar refuses to register a multi-State co-operative society, he will give the opportunity to the society to be heard before passing such order.
• He shall communicate, within a period of four months from the date of receipt of the application for registration, the order of refusal together with the reasons therefor to the applicant or applicants, as the case may be.

Other Relevant Provisions

Section 8 of the Act implies that certificate of registration, issued by the Central Registrar will be conclusive evidence of registration of the society under the Act.

Is Multi-State Cooperative Society a body corporate?

Section 9 lays down that registration of Multi-State Cooperative Society render it a body corporate which shall be/have-

• Perpetual succession;
• Common seal;
• Empowered to acquire, hold and dispose of the properties, movable and immovable;
• Empowered to enter into contract;
• Empowered to institute and defend suits and other legal proceedings; and
• Empowered do all things necessary for achieving the purpose of its constitution.
• Empowered to sue or be sued.
• All transactions entered into in good faith prior to the registration shall be deemed to be its transactions after registration for the furtherance of the objects of its registration.

Bye-laws of a Multi-State Cooperative Society

Section 10 provides for the important aspects which bye-laws of multi-state cooperative society may cover. The Bye-Laws must be consistent with the provisions of this Act and the rules made thereunder. Bye-Laws may either provide for all the following matters or any of them.

• The name, address and area of operation of the society;
• The objects of the society;
• The services to be provided to its members;
• The eligibility for obtaining membership;
• The procedure for obtaining membership;
• The conditions for continuing as member;
• The procedure for withdrawal of membership;
• The transfer of membership;
• The procedure for expulsion from membership;
• The rights and duties of the members;
• The nature and amount of capital of the society;
• The manner in which the maximum capital to which a single member can subscribe;
• The sources from which the funds may be raised by the multistate co-operative society;
• The purpose for which the funds may be applied;
• The manner of allocation or disbursement of net profits of the multi-State co-operative society;
• The constitution of various reserves;
• The manner of convening general meetings and quorum thereof other than those provided under this Act;
• The procedure for notice and manner of voting, in general and other meetings;
• The procedure for amending the bye-laws; 9
• The number of members of the board not exceeding twenty-one;
• The tenure, of directors, chairperson and other office bearers of the society, not exceeding five years;
• The procedure for removal of members of the board and for filling up of vacancies;
• The manner of convening board meetings, its quorum, number of meetings in a year and venue of such meetings;
• The frequency of board meetings;
• The powers and functions of the Chief Executive in addition to those provided under section 52;
• The manner of imposing the penalty;
• The appointment, rights and duties of auditors and procedure for conduct of audit;
• The authorisation of officers to sign documents and to institute and defend suits and other legal proceedings on behalf of the society;
• The terms on which a multi-State co-operative society may deal with persons other than members;
• The terms on which a multi-State co-operative society may associate with other co-operative societies;
• The terms on which a multi-State co-operative society may deal with organisation other than co-operative societies;
• The rights, if any, which the multi-State co-operative society may confer on any other multiState co-operative society or federal co-operative and the circumstances under which such rights may be exercised by the federal co-operative;
• The procedure and manner for transfer of shares and interest in the name of a nominee in case of death of a member;
• The educational and training programmes to be conducted by the multi-State co-operative society;
• The principal place and other places of business of multi-State co-operative society;
• The minimum level of services, to be used by its members;
• Any other matter which may be prescribed.

Section 11 provides for the procedure for the amendment of the bye-laws of multi-state cooperative societies.

Publication of name by Multi-State Cooperative Society

Section 15 talks about the publication of name by Multi-State Cooperative Society. It provides for following ways for publication of name by MSCS.

• Paint or affix the name and the address of the registered office and keep the same painted or affixed, on the outside of every office or place in which its business is carried on, inconspicuous position, in letters easily legible;
  • if the characters employed therefor are not those of the language, or of one of the languages in general use in that locality, also in the characters of that language or of one of those languages.
• Engrave the name in legible characters on the seal.
• Mention the name and the address of the registered office in legible characters in all its business letters, in all its bill heads and letter paper, and in all its notices and other official publications;
• Mention the name in all bills of exchange, hundies, promissory notes, endorsements, cheques and orders for money or goods purporting to be signed by or on behalf of the multi-State co-operative society, and in all bills of parcels, invoices, receipts and letters of credit of the multi-State co-operative society.

Cancellation of registration certificate of Multi-State Cooperative Societies in certain cases

Section 21 provides for following certain cases in which registration certificate of Multi-State Cooperative Societies stands canceled.

• In case of transfer of the whole of the assets and liabilities of a multi-State co-operative society to another multi-State co-operative society or to a co-operative society in accordance with the provisions of section 17. In such cases, the registration of the first-mentioned multi-State co-operative society stands canceled and the society is deemed to have been dissolved and ceases to exist as a corporate body.
• In case of amalgamation of two or more multi-State co-operative societies into a new multi-State cooperative society in accordance with the provisions of section 17. In such cases, the registration of each of the amalgamating societies stands canceled on the registration of the new society, and each of the amalgamating societies is deemed to have been dissolved and ceases to exist as a corporate body.
• In case of division of a multi-State co-operative society into two or more multi-State co-operative societies or two or more co-operative societies in accordance with the provisions of section 17. In such cases, the registration of that society stands canceled on the registration of the new societies and that society is deemed to have been dissolved and ceases to exist as a corporate body.
• The amalgamation or division of multi-State co-operative societies does not in any manner whatsoever affect any right or obligation of the resulting multi-State co-operative society or societies or render defective any legal proceedings by or against the multi-State co-operative society or societies, and any legal proceedings that might have been continued or commenced by or against the multistate cooperative society or societies, as the case may be, before the amalgamation or division, may be continued or commenced by or against the resulting multi-State co-operative society or societies.

Amendment in the laws governing Multi-State Cooperative Society

The Multi-State Cooperative Societies (MSCS) Act 2002 was enacted to substitute the Multi-State Cooperative Societies Act, 1984. Keeping in view the changing economic policies and in order to enable the cooperative societies to gain the advantage of emerging opportunities, a grave need was felt to make further amendments in the MSCS Act 2002.

These amendments were based on the interaction and feedback of various stakeholders and on the recommendation of High Powered committee which was constituted by Government of India under the chairmanship of Shri S.O.Patil.

This Act was amended in 2010 with an intention to increase the faith of the public in cooperatives and to ensure better accountability of the management towards its members and law of land. The key amendments to the Act pertain to the time limit for disposal of application for registration, distribution of shares, the constitution of the interim board, holding of elections, constitution of fund and dispute settlement.

• Disposal of registration: The Bill has extended the time of disposal of application to five months after giving reasons in writing. The Bill has also added that if an application is not disposed of within the time period of five months, it shall be deemed to have been accepted as a member.    
• Distribution of shares: The Bill has added the proviso that the cooperative society may refund the share capital held by the government. The redemption of shares shall be on face value or book value of shares, whichever is higher.
• Constitution of the interim board: The Bill allows the Central Registrar to declare any multi-state cooperative society as sick. The central government may, on the recommendation of the Registrar appoint an interim board for a maximum of five years. The Central Registrar can also declare a cooperative to be viable within the five years. The board of directors before the cooperative was declared sick shall be reinstated.
• Elections: The Bill states that the central government may appoint a Cooperative Election Authority to conduct elections in cooperative societies to be prescribed.
• Constitution of Fund: The Bill states that the central government shall set up the Cooperative Rehabilitation and Reconstruction Fund. A cooperative society shall credit 0.005% to 0.1% of its turnover to the fund, provided it does not exceed Rs 3 crores per year.
• Dispute settlement: The Bill amends dispute settlement scheme by stating that all disputes shall be referred to the Central Registrar. If there is a question as to whether a dispute touches the constitution or management of a society, it shall be decided by the Central Registrar and shall not be questioned by the court.

With the introduction of New 97th Constitutional Amendment Act 2012, the major amendments made in the Act are-

• 2 ladies in governing body are the must.
• 1 member of either SC/ST is compulsory on the governing body list.

Further, in the year of 2016, The Central Government in an exercise of the powers conferred by section 124 of the Multi-State Co-operative Societies Act 2002, made the Multi-State Cooperative Societies (Amendment) Rules, 2016 in order to amend the Multi-State Cooperative Societies Rules, 2002.

Conversion of a co-operative society into a multi-State co-operative society

A cooperative society may extend its jurisdiction and convert itself into a multi-State co-operative society by an amendment of its bye-laws, provided amendment of bye-laws of a co-operative society shall be registered by the Central Registrar. The steps for converting the cooperative society into a multi-state cooperative society have been laid down in section 22 MSCS Act 2002.

Steps involved

• Every proposal for such amendment of bye-laws shall be forwarded to the Central Registrar in accordance with the provisions contained in sub-section (4) of section 11.
• Central Registrar, after consulting the Registrars of Co-operative Societies of the States concerned may register the amendment within a period of six months from the date of receipt thereof by him after satisfying himself that such amendment—
  • fulfills the requirements of the members being from more than one state;
  • is in accordance with the provisions contained in sub-section (4) of section 11,
  • Provided that no co-operative society shall be deemed to have been converted into a multi-State cooperative society on any ground whatsoever unless such society is registered as a multi-State co-operative society.

• A copy of the registered amendment together with a certificate signed by Central Registrar shall be forward to the co-operative society by the Central Registrar
• Where the Central Registrar refuses to register an amendment of the bye-laws or a co-operative society, he shall communicate the order of refusal together with the reasons therefor to the society in the manner prescribed within seven days from the date of refusal.
• Once the amendment of bye-laws has been registered by the Central Registrar, the co-operative society shall, as from the date of registration of amendment, become a multi-State co-operative society.

Along with these steps, the Central Registrar shall forward to the co-operative society a certificate signed by him to the effect that such society has been registered as a multi-State co-operative society and also forward a copy of the same to the Registrar of Co-operative Societies of the State concerned. The Registrar of Co-operative Societies shall thereupon make an order directing that the society had, as from the date of registration by the Central Registrar, ceased to be a society under the law relating to co-operative societies in force in that state.

Members of Multi-State Co-operative societies and their duties, rights, and liabilities

Chapter IV of the MSCS Act provides for qualification, rights, duties, and liabilities of members of Multi-State Co-operative society. Section 25 provides for qualification for being a member of Multi-State Co-operative society. Section 26 says that a multi-State co-operative society may admit a person as nominal or associate member if it is provided in its bye-laws, provided such nominal or associate member shall not be entitled to-

• Subscribe the shares of such society;
• Or have any interest in the management thereof including the right to vote, elect as a director of the board or participate in the general body meetings.

Section 27 makes it mandatory for every Multi-State Co-operative Society to organize cooperative education programmes for its members, directors, and employees. Section 29 lays down conditions for disqualification of a member and section 30, in furtherance of that lays down the procedure for expelling a member of Multi-State Cooperative society. Section 31 entitles every member of Multi-State Co-operative Society a right to vote and section 32 provides for the manner of exercising this right. Section 33 and 34 put the restriction on members on holding of shares and on the transfer of shares or interest respectively. Section 36 provides for the transfer of interest on death of members and section 37 provides for Liabilities of past member and estate of the deceased member.

Managing bodies of Multi-State Cooperative Societies

Chapter V of MSCS Act 2002 lays down provisions for direction and management of Multi-State Cooperative Society. It provides for constitution, power, and functions of Multi-State Cooperative society. It further provides for general and special meetings of general body, board of director, association of employees in management decision making process, conditions for Disqualifications of a member of board, certain cases prohibiting chairperson or president or vice-chairperson or vice president to hold office, elections of members of board, removal of elected members by general body, nominee of Central Government or State Government on board, powers and functions of board, meeting of board, position of Chief Executive, powers and functions of Chief Executive, committees of board and certain cases in which possession of records, etc can be secured.

Privileges of Multi-State Cooperative Society

Chapter VI of MSCS Act provides for privileges of Multi-State Cooperative society. A Multi-State Cooperative Society may charge and set-off in respect of share or contribution or interest of members. Along with it, share of contribution or interest is also not liable to attachment, any register or list of members or shares kept by any multi-State co-operative society shall be prima facie evidence of-

• The date on which any person entered in such register or list became a member;
• Or the date on which any such person ceased to be a member.

It also provides for the admissibility of the copy of entry as evidence, exemption from compulsory registration of instruments, deduction from salary to meet the claim of multi-State cooperative society in certain cases and Government aid to multi-State cooperative societies.

Audit, Enquiry, inspection and surcharge of Multi-State Cooperative Society

Chapter VIII of MSCS Act provides for Audit, Enquiry, inspection, and surcharge of Multi-State Cooperative Society. It prescribes provisions for appointment and remuneration of auditors, provision as to resolutions for appointing or removing auditors, qualifications and disqualifications of auditors, powers and duties of auditors,signature of audit report, provision for reading and inspection of auditor’s report, right of auditor to attend general meeting, power of Central Government to direct special audit in certain case, inspection and inquiry of multi-State cooperative societies, inspection of books of indebted multi-State cooperative societies, provisions for costs of inquiry and inspection and recovery and repayment of such costs.

Is Multi-state cooperative society a banking company?

Section 5(c) of Banking Regulation Act provides for the definition of Banking Regulation Act, 1949. Multi-state cooperative society is not a company under Banking Regulation Act and therefore it is not a banking company.

Position held by Supreme Court

The honorable Supreme Court in the case of Greater Bombay Co-op. Bank Ltd. V M/S United Yarn Tex. Pvt. Ltd. & Ors. held that “Multi-State Cooperative Societies registered under Multi-State Co-operative Societies Act, 2002 are not Banking Companies under Section 5(c) of Banking Regulation Act 1949. The similar position was held by Supreme Court in its interim order passed in the case of Vinayak Credit Co-operative society Ltd V State of Rajasthan and Others.  

References

• Procedure for registration of Multi-State Cooperative Society-http://lawmin.nic.in/old/P-ACT/2002/The%20Multi-State%20Co-operative%20Societies%20Act,%202002.pdf
• http://www.agritech.tnau.ac.in/agricultural_marketing/agrimark_FAQs.html
• http://mscs.dac.gov.in/
• Documents required for Multi-State Cooperative Society- https://yourstory.com/read/38539f2325-multi-state-cooperati
• http://agricoop.nic.in/actsandrules/cooperation
• http://www.rallymarklegal.com/brocuer/MULTI_STATE_CO_OP_SOCIETIES_REGISTRATION_MANAGEMENT_CONTROL.pdf
• http://blog.scconline.com/post/2016/08/20/multi-state-co-operative-societies-amendment-rules-2016/
• https://www.slideshare.net/rupendraporwal/acceptance-of-deposits-by-multi-state-cooperative-societies-issues-and-challenges?next_slideshow=1
• http://www.prsindia.org/billtrack/the-multi-state-co-operative-societies-amendment-bill-2010-1367/
• http://pib.nic.in/newsite/PrintRelease.aspx?relid=65809

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Mr. Jacob Pratap a Bachelor of Laws (LLB) from Punjab University, is Qualified for nomination as External Member of Complaints Committee under POSH Act, 2013 has his own Consultancy firm on Labour Law. His dream was to always to venture into the field of Legal Advisory. As he said, “The ‘Sexual Harassment Prevention and Work Place Diversity’ course from NUJS gave me confidence in advising my corporate clients (mostly from Punjab, Haryana and Chandigarh).”

I must say this is a fantastic course. All the modules are excellent. So far, the experience is very good. I have scored 94% in the exam. Since, I do not get much time to travel; hence I’m very much eager to join ‘iPleaders Club’ to keep a check on the regular updates to keep myself updated.

This course has helped me immensely. I did this same course from fro IALM (Indian Academy of Law and Management) also. But I found the ‘Sexual Harassment Prevention and Work Place Diversity’ course with iPleaders is much better as far as the contents and the practical guidance are concerned. I’ve even referred and will always refer people to take up legal courses from iPleaders for the enhancement of their career.

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I was searching for a legal course which can enhance my career motives. Came across many sites, however, did not find anything interesting though. One fine day, came across this Diploma in Entrepreneurship Administration and Business Laws course of NUJS, wherein I found the course material was amazing which can help me in my current job profile. I’ve already completed this course and waiting for the results. In addition to this I’ve enrolled myself for M.A in Business Law course as well. Moreover, I’ve referred to few of my colleagues to go for these courses as the practical impact of the course is immensely helpful. So, those who are looking forward to learn something about the Business and Entrepreneurship Law can be benefitted to a great extent from the courses that iPleaders is offering.

The total experience was wonderful with iPleaders; I must say they have been very helpful. Even at the age of 67 years I felt motivated to go ahead with this course because of the content of the modules of the course. This was indeed a lifetime opportunity for me. Both theoretical and practical aspects of the course made me very efficient in my day today job. It is not only about one’s job or profession; this course can be very helpful in every aspect of one’s life. There are many legal proceedings in my day today work life which requires good amount of knowledge in Law. This course has taught me a lot. Now I can do all his legal drafting, contracts and agreements, arbitration and negotiation clause related to business confidently. It gave me immense ‘Value Addition’ in my current job profile.

It’s not only about our career or professional life; can we really do anything serious about our property or family matter without the help of Law? What’s the harm if we acquire a good amount of knowledge, both theoretical and practical at such a reasonable cost?

The post Debrabrat Rakshit: Working as a Head, Administration, Narayana Multispecialty Hospital on why he enrolled for the NUJS Diploma Course appeared first on iPleaders.

Vikram Bhalla , a Banking Professional; a Certified International Finance Analyst, a Certified IFRS Professional, have expertise in Investment Law; Taxation (ID). Accounting partner, Auditing, Taxation, Investment Law, Institutional Finance, IFRS Professional.

As he said, “My experience with iPleaders was very satisfying. The courses I have completed are Diploma in Entrepreneurship Administration and Business Laws and Commercial Contract Law, Drafting and Negotiation. The contents of the courses are an eye-opener. It changed my perspective and helped me a lot in a wider aspect.”

I have a total 18years of experience in banks like ICICI Bank, YES Bank and others in import/export, foreign exchange. Was searching for some quality content courses online for of Institutional finance. Company law, IPR, Indirect Taxes which will help me further in my career. Came across iPleaders and the courses they are offering. I must consider myself as fortunate enough that I found iPleaders in the right time. Currently I am working as a Vice President in a reputed Bank. All the course contents are simply fantastic; however the module I liked most was Negotiable Instrument Act.

I am already associated with ‘iPleaders Club’ as a Mentor. I have already referred lot of students to iPleaders to take up Law courses for their career improvement. Currently I am pursuing my M.A. in Business Law course from iPleaders. I have a future planning for a lecture on Banking Opportunity. I am immensely thankful and grateful to iPleaders for the amount of knowledge I have acquired so far. It truly HELPED!

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C.A. Harsh Patel, Founder & Chairman of Water and Shark Advisers Pvt. Ltd., Currently Founder and Managing Partner at HARSH PATEL & ASSOCIATES, PATEL PALKAR & ASSOCIATES LLP.,  with 3 years’ experience in Taxation, Assurance, Legal Compliance, Offshore Advisory is a Chartered Accountant from The Institute of Chartered Accountants of India.

He successfully completed the ‘CERTIFICATE COURSE IN INTERNATIONAL TAXATION AND TRANSFER PRICING’.  Over here he shares his experience: My overall experience was good while doing the course. It helped me to upgrade my knowledge in both theoretical & practical understanding of International Taxation.

Remotely if one can acquire so much knowledge and enhance their skill set in International Tax, then why not go for it? The course materials are too good to be available anywhere, so downloading option for the study materials should be provided at least during the course duration. Though it is understandable that it is subject to copyrights, but after one year if I am in requirement of these course materials, then it will be not available to me. So something must be done in this aspect. However, the rest is all fantastic.

All the modules are good, but I liked module ‘International Tax Planning’ most. Suggested to quite a few of my friends, of my field of practise to go for this course. I’m even eager to enrol for Diploma in Business Law in near future. iPleaders was really of great help.

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Peace and security are necessary prerequisites for social harmony as well as political and economic development. It is a truism that peace in any country is dependent on social justice and the availability of economic opportunities.

It would not be far from the truth to say that as Indian citizens, we are being manipulated into slowly but surely losing our humanity. Social and economic inequality manifesting in conspicuous consumption by a few,  side by side with the poverty of the many, exacerbated by infrastructure deficits and dysfunctional schools and healthcare all over the country have led to deep feelings of injustice and hopelessness among our youths. Lack of opportunity, shameless corruption and a capricious political culture have destroyed institutions and entrenched a climate of impunity. Add these together and the cocktail that results is unprecedented insecurity and an attitude of self-help by citizens.

Social injustice impedes growth and development, hampering or even halting improvement in living standards, fair distribution of income, creation of opportunities, and the elimination of inequalities. The inadequacy of economic growth, imbalances in economic structures, and imperfections in education and training systems contribute to, and are aggravated by, unjust conditions in the world.

The most extreme form of exploitation in employment is slavery. Most groups which are exploited in employment are underprivileged groups, such as indigenous populations, women, children, immigrants, the illiterate, and the lowest levels of national society, the aged, and the disabled. Such groups may not have the knowledge or other means to combat exploitation and may sink into a state of apathy and resignation.

Poorer people suffer most from environmental problems in a wide range of areas — food, transport, factories and fuel. Other groups also bear an unjust burden of environmental problems, including ethnic communities, women, children, and people in developing countries and future generations, not to mention non-human species.

Society is so stratified that many groups and individuals find themselves unable to make a significant contribution in the job market. This is more apparent in minority groupings of age (both the youngest and the oldest), sex (most often women), and race.

Violence against women is a problem around the world. It affects women of all races, ethnic groups, classes and nationalities. It is a life-threatening problem for individual women, and it is a costly problem for societies. Because women are ‘easy’ victims, they experience a great deal of direct behavioural violence in every society. The use of violence against women as a form of control is not only pervasive, but varied in its expression. Such variations reflect social and cultural differences which have resulted in battering, rape, dowry death, selective malnourishment, female infanticide, gang rape, forced prostitution, homicide, sexual harassment, international sexual trafficking and slavery, sexual degradation, child prostitution, violent pornography, child sexual abuse, abuse of widows and elderly women and many more.

Security is one of the basic needs; it can also be seen as a basic value in our modern societies where more and more systems are developed to guarantee security. Security is a highly valued goal, which may be difficult to reach because of different threats and risks in personal lives and in near and global environments.

Law can be a double-edged sword: although it may serve to reinforce prevailing social and economic relations, it can also be a powerful tool of those seeking to resist, challenge, and transform those relations. At the local, national, and global levels, states, elites, and citizens increasingly turn to law as an important tool for bargaining, enshrining, and challenging norms, policies, and their implementation. By its nature, law is a device that provides a particular language, structure, and formality for naming and ordering things, and this characteristic gives it the potential to become a force independent of the initial powers and intentions behind it, even beyond the existence of independent and effective legal institutions. Law is thus simultaneously a product of social and power relations and a tool for challenging and reshaping those relations.

Here , at iPleaders, a pioneer in online legal education having students in over 20 countries and track record of delivering legal and compliance learning solutions to companies like Samsung, Microsoft and BCG, offers cutting edge online courses focused on practical aspects of law and business. On completion physical copies of certificates are awarded.

One of our popular courses will guide you How to file an FIR when you witness a crime, where to file an FIR, how to file a complaint or lodge a general diary, pointers for drafting effective FIRs, that is, FIRs which police is likely to register and taken action on, and which enable criminal trial to be effective. You will also learn what can be done if the police refuse to register the FIR. So, hurry up! Currently huge admission is going on. To enrol, please click HERE

Another most popular course of ours teaches you how to use the Right to Information Act to secure information, identifying the correct public authority and public information officer, how to prepare and file a proper RTI application, what to do in the event the public information officer refuses to accept RTI application and how to file appeals and complaints.Currently huge admission is going on for this course. To enrol, please click HERE

You can pursue these courses from anywhere in the world. Though focus is on Indian law and practices, these courses are globally relevant and attract a large number of international professionals. Our courses are pursued by CEOs, Managers, Entrepreneurs, Accountants, General Counsels, Corporate Lawyers, Civil and Criminal Litigators, Government Officials and Students from all disciplines.

Our alumni include Bureaucrats, Directors of PSUs and listed companies, Presidents of Banks, Lawyers from reputed firms, and General Counsels of Airlines, major finance groups and big tech companies.

Everything is judged by its appearance; what are unseen counts for nothing. Never let yourself get lost in the crowd, then, or buried in oblivion. Stand out. Be conspicuous, at all cost. Make yourself a magnet of attention by appearing larger, more colourful, and more knowledgeable, than the bland and timid masses.

Burning more brightly than those around you is a skill that no one is born with. You have to learn to attract attention. It’s your responsibility to attach your name and reputation to a quality, an image, which sets you apart from other people. This image can be something like a characteristic style of dress, or a personality or knowledge that amuses people and gets talked about.

So, let’s come and join us for a better and a bigger picture!

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