This article has been written by Priyanshi Sarin.

JUDGMENT

Judgement is the final decision of the Judge or Magistrate arrived after due appraisal of the evidence, it includes a judgement of conviction or acquittal but not an order of discharge.[1] In every criminal trial, court exercising original jurisdiction pronounces the judgement once the trial is completed, pronouncement may be immediate or after some lapse of time. The presiding officer can reproduce the judgement verbatim or just the operative part while explaining the essence of the entire judgement.[2] The language of the judgement is one which is understood by he accused or his pleader, this condition is essential in accordance with the universally applicable principles of fair trial.[3] 

India conforms to the norm of public hearing, public scrutiny protects against arbitrary decision which is why it is mandated by the code.[4] Thereby it is upheld by way of precedents that no expression of opinion by a judge is to be deemed as a judgement unless it is pronounced in open court.[5] Even if the accused is in the custody he shall be brought up to hear the judgment pronounced. 

Further it is also held that personal appearance of the accused shall be directed specifically when the sentence involves heavy punishment in the form of imprisonment.[6] However, in case there are more accused than one and one or more of them do not attend the court on date on which the judgement is pronounced the Presiding officer to avoid delay of the case can pronounce the judgement even their absence.  As soon as the judgment is pronounced a copy of the same immediately be made available for the perusal of the parties free of cost.[7] 

After establishing the concept and basic rules of pronouncing judgement, the essentials of the judgement are to be studied which basically includes the issues(points for determination), ratio decidendi(decision and the reason), the particular offence along with the parallel section of any statute under which it is codified[8] as an offence and the quantum of the punishment. It is written in the language of the court or if not written translated in courts language.[9] 

The heart and soul of the judgement is the reasoning it is based upon, in the absence of justification of opinion there is an adverse presumption made that the judgement is arbitrary. This does not imply that the judgement has to include each and every evidence or every dialogue spoken by anyone in the entire various stages of the trial, Court is entitled to differentiate relevant and unnecessary facts and evidences.[10] Court can under no circumstances evade the necessary step of not providing the statement of points for determination and the reasons for the decision, an incomplete judgement can vitiate the conviction[11] which amounts to failure of justice. 

The only exception provided is in regard to judgements rendered in summary trials[12] and judgements rendered by Metropolitan Magistrate[13], this is granted by the statute and hence permitted. 

EXTRAORDINARY CIRCUMSTANCES: EFFECT ON JUDGEMENT  

• The constitution of India guarantees protection of life and liberty[14], curbing it being an exception and is resorted to only in exceptional cases and thereby to exercise control over it Cr. P.C mandates giving special reasons in case of granting capital punishment.[15]
• Death penalty does not violate Article 21 as long as it is given in the rarest of rare case.[16]Rarest of rare is a doctrine which usually depends upon the motive and conduct by the accused, in such case the court shall record such reasons which reasonably conclude that there were absolutely no mitigating circumstances for awarding a sentence lesser than death.[17] The Apex Court has suggested the tests to determine the category of “rarest of rare” category,[18] the special reasons in the judgement can include that the parameters of granting death penalty were fulfilled. Further, all capital sentences passed by the Sessions judges are subject to confirmation by the High Court. 
• Training or rehabilitation of young offenders being a part of restorative justice is mandatory, not doing so would require the adjudicating authority to record special reasons.[19] 
• Imposition of extremely short and inadequate sentences is also not advisable, and requires the court to give adequate reasons.[20] Punishment should match the gravity of the offence, undue leniency does even more harm to justice system.[21] A judgment declares the existence of the right, recognises the commission of the injury or negatives the allegations of one or the others.[22] 

ANALYSIS AND SUGGESTIONS

1. Upper time limit for disposing a case shall be fixed and strict action to be taken when undue delay is being caused in pronouncing judgements since in India there is no specific period of pronouncement of judgement, section 353 only states that judgement shall be delivered immediately or “at some subsequent time”. Speedy justice is imperative and the judge, has absolute control of his Court, wherein he ought to ensure that the process inspires confidence, ensures impartial treatment and is seen as transparently fair by all who approach it.[23] At times owing to pressurized environment or due to influence and vested interest, judgments are delayed deliberately, this makes holding judges accountable an integral part of our criminal justice system. 
2. The sanctity associated with the judicial wing puts the expectancy of justice on a very high threshold. Vigilance and strict scrutiny by the judge must be exercised while writing the judgement, negligence in terms of appreciating the facts and evidence could lead to miscarriage of justice.[24] For instance, a judgement is not good in law if it is partially based on prosecution version and partially on the defence version or where the doctrine of proportionality is not been adhered with while formulating the sentence.[25] 
3. Lastly, many a times judgement is bound to takes a stance different from what is purported in the Statute for the simple reason that as the society progresses, complex issues and diverse problems crop up and the law must adapt to the same. Thereby, in certain cases, even though the judiciary is not supposed to legislate, it shall lay down directions of that nature[26]this would help the public gain confidence that even though the legislature has left a grey area, they can always knock the doors of judiciary. 

VICTIM COMPENSATION

Justice must be reformative for the accused and rehabilitative for the victim, it is therefore, a legitimate expectation that the victim must be given rehabilitative support in form of monetary compensation for the loss or injury suffered. Hence, there was need to introduce a provision for compensation to the victim irrespective of criminal prosecution, accordingly, S. 357 and subsequently S. 357A were inserted in the code of criminal Procedure. Previously, provision u/s. 545 provided for compensation to the victims[27], however based on the Law Commission Report[28], it was stated that our courts were not exercising statutory powers in awarding compensation and thus, old provision u/s. 545 was replaced with s. 357. Further, Fatal Accidents Act, 1855, Motor Vehicles, 1988 Probation of Offenders Act, 1958 are other statues which contain provisions for compensation.

1. 357 states that compensation is payable for any loss or injury whether physical or pecuniary and is payable only when the accused is punished with a sentence of fine or some other sentences of which fine is a part of. The compensation is paid out of the fine which is recovered[29]. The amount of fine depends upon the limit imposed on a particular offences and extent of the courts power. Further, under Sec 357 (3) the power of magistrate to award compensation is unlimited[30]. The compensation is paid out of the fine which is recovered[31]. 
2. The process, as envisaged in section 357 can be initiated by the court or victim. The court may recommend compensation by the District or State Legal Services Authority. Criticism of S. 357

• This section can be invoked only in cases of conviction. It functions on the assumption that the accused is identified, prosecuted and convicted. In case of the contrary, the court cannot rely on S. 357 for providing compensation.
• Further the provision puts the burden on the accused to pay the quantum of compensation without giving due regard to his financial position. The provision does not provide for appropriation of the liability between the State and the accused. 

1. 357A[32]was incorporated after the recommendation of the Malimath Committee Report[33] in order to recognize compensation as one of the methods to protect the interest of the victims. The provision focuses on the rehabilitation of the victim even if the accused is not tried[34]. 
2. The provision ensures that the state government in consultation with the central government prepares a scheme for providing funds for the purpose of compensating the victim of crime who have suffered loss or injury due to the crime[35]. At the end of the trial, the trial court may recommend for compensation in two situations[36].

• Firstly, if it is satisfied that the compensation awarded under section 357 is inadequate, for rehabilitation. 
• Secondly, if the case ends in acquittal or discharge of the accused and that the victim has to be rehabilitated. 

Thus, in my opinion this provision is really in tune with providing with rehabilitative rights to the victim in accordance with the international human rights instruments. 

JUDICIAL CONTRIBUTION

The Supreme Court in various cases has awarded compensation to the victim while convicting the accused. The trend followed by the SC in its precedents depicts that it was not very optimistic of S. 357[37]. However he Supreme Court in the case of Hari Singh,[38] has accepted a different trend wherein it was held that the power of the court u/s. 357 to award compensation was not ancillary but in addition to other sentences. Further in this case, the court by expanding the scope has interpreted the section to mean that the compensation should be reasonable and must be awarded after taking into consideration not only the gravity or misconduct of the accused but also the capacity of the accused to pay[39].

The progressive judgment of the Court in the above case was not allowed by the court in its later judgment in Brij Lal v. Prem Chand,[40] State of U.P. v. Jodha Singh,[41] State of Mysore v. Tyhappa,[42] Nand Ballabh ant v. UT of Delhi[43] and Gur Swami v. State,[44] wherein the Court awarded compensation out of the fine amount and was more sympathetic towards the accused than the victim.

Additionally, Supreme Court emphasized the setting up of a Compensation Board (exclusively for rape victims) in Delhi Working Women’s Forum v. Union of India.[45] It ordered the National Commission for Women to evolve a scheme “so as to wipe out the tears from the eyes of unfortunate victims of rape.” NCW had sent a draft to the Central Government in 1995. The scheme is called “Scheme for Relief and Rehabilitation of Victims of Rape,[46] some salient features of the scheme include allocating funds to Ministry of Women and Child Development by the Central government, establishing a Criminal Injuries Relief and Rehabilitation Board in every district, determination of relief on the basis of certain parameters such as severity of bodily injury, loss of earning, psychological trauma caused, providing enhanced relief in grievous offences etc. 

RECENT JUDGEMENT 

The paradigm shift towards enhancing the compensation was adopted by the court to provide solace to the victim and to service social justice in the society. Thus, in Ankush Shiwaji Gaikwad v. The State of Maharashtra[47], it was held that, the legislative intent of the provisions relating to victim compensation was to reassure the victim that he is not a forgotten party in the criminal justice system. Further, a landmark decision of the Court in the case of Suresh v. State of Haryana[48] awarded the victim with an interim compensation and the State was directed pay an amount of Rs 10 lakhs to the family of the victims who had been abducted and murdered. 

INTERNATIONAL PERSPECTIVE

The UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power provides that, when compensation is not fully available from offender or other sources, the State should endeavour to provide financial compensation. The Declaration further states that the expansion of national funds for compensation should be encouraged[49]. Victims should receive the necessary material, medical, psychological and social assistance through governmental, voluntary, community based and indigenous means[50].The remedy of compensation was a creation of the former Permanent Court of International Justice in the case of Chorzow Factory[51] wherein restitution in integrum was made as a remedy to damage and injury.

CONSTITUIONAL REMEDY

The Principles of Victimology[52] has its foundations in the Indian Constitution particularly in the fundamental rights and DPSPs[53]. A new initiative was taken by the judiciary in evolving compensatory remedy through Art. 32 or 226/227. The court in Rudal Shah v. State of Bihar[54] awarded compensation u/a. 32 for the deprivation of fundamental rights. Further the Court in State of Punjab v. Ajaib Singh[55] granted a compensation of 5 lakhs even after acquitting the accused thereby setting a tone for providing compensation to the victims. 

CRITICISM

• The remedies currently available under the law are limited, fragmented, uncoordinated and reactive. Compensation as criminal law remedy is a token relief rather than a substantive remedy[56]. The power is discretionary, they neither impose a legal compulsion to order compensation nor do they require speaking orders and the court can limit the amount as well[57]. Also, if the case is subject to appeal, payment can be made only after the time for making the appeal has elapsed or after the decision of the appeal[58].
• There is no consensus in India regarding the question of the agency that has to be entrusted with the work of compensation. Judicial approaches favour an independent body, Law Commission is confused and at least one state thinks police station is the best place to carry out the scheme.

RECOMMENDATION

Compensation is not only required but is in fact a very important aspect of even criminal law and the courts should not use this sparingly but a little liberally. Provided below are few recommendation to strengthen the structure of criminal justice. 

• The prevalent laws must be reformed and redesigned to be in consonance with international standards. For eg protection is given for crime committed outside a country in developed countries (like the U.S). It is desirable to have such a provision in India.[59]
• Further for the success of the scheme, all state must enforce an uniform scheme for deciding the grounds and quantum of compensation.
• Ideally, the primary authority for disbursal of fund should be multi-sectoral body (which has police official, health official, and an expert in victimology).The Legal Services Authority could be an appellate body. By doing so, the benefits of institutionalised payment can be reaped.
• In-built periodic audits as a check wherein an accounting officer is required to submit annual financial reports to the Secretary of State so as to check whether the disbursing function is being performed honestly.

APPEAL 

An appeal is a complaint to a superior court of an injustice done or error committed by an inferior one whose judgment or decision, the court above is called upon to correct or reverse[60]. It is the right to seek assistance of the superior court in order to ascertain whether the judgment passed by the inferior court is sustainable. It is a statutory right and thereby exists only when expressly given.[61] Thus, there is no vested right to appeal as such as even the first appeal will be subjected to statutory limitations, these obstacles are imperative for reducing the burden on judiciary. 

There are definite provisions disallowing appeal, thereby there is no appeal in petty cases in which the maximum punishment granted is imprisonment for six months or a maximum fine of 1,000rs[62]. Additionally, when a person confesses his guilt without any coercion and is convicted,[63] he cannot challenge the order by way of an appeal[64]. He can challenge the veracity of sentence passed but even this right would be curbed when the punishment is awarded by the High Court[65]. 

 In lieu of the 154^th law commission report, Section 372 of Cr.P.C was amended in a way which grants the victim a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting him for a lesser offence or against the order imposing inadequate compensation[66]. This right is extended to the relatives and legal heirs of the victim[67]. An appeal from an order of acquittal must be filed within the period of limitation prescribed by Article 114 of the Schedule of the Limitation Act, 1963. 

APPEAL IN CASES OF ACQUITTAL 

The legislative intent to reduce hasty acquittals has been manifested in the amended section 378 of the Code[68].The section permits the victim or complainant to file an appeal against an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence. In a recent case Murlidhar v. State of Karnataka[69] the Apex court elaborated upon how appeals are to be dealt by the Appellate Court, in a nutshell it emphasized that generally interference in the decision of trial court should be refrained from and that merely because the appellate court on re-appreciating and re-evaluation of the evidence is inclined towards a different view, there should not be reversal or modification. Only once the appellate court after giving due weightage to points such as presumption of innocence, benefit of doubt, credibility of witness concludes that the view taken by the trial court is erroneous and unreasonable it shall interfere[70]. 

In the case of an acquittal, there is a double presumption in favor of the accused, one pertaining to presumption of innocence and the other which is created by acquittal.[71] The Apex Court has also stated that interference in an appeal against acquittal should be rare, it is limited to those cases where the judgment of Trial Court was perverse and the word “perverse” has been understood to mean, “against the weight of evidence”.[72]

CASES PERMITTING APPEAL AGAINST ACQUITTAL 

• The finding is vitiated by some glaring infirmity in the appraisal of evidence.[73]
• The order suffers from substantial errors of law and fact.[74]
• In a case where two dying declarations were made by the deceased, further there was corroboration of facts by six eye-witnesses, Supreme Court held that the High Court had judiciously exercised its power in reappraisal of evidence and conviction of the accused[75]. 
• Omission to consider material facts, leading to acquittal.[76]
• Erroneous view by High Court, discarding cogent and credible eye-witness for trivial irregularities.[77]
• Acquittal on grounds of absence of any third-party witness, when the victim (sole eye-witness) is present.[78]
• The judgment is tainted with serious legal infirmities.[79]

Thereby time and again it is being reiterated by the apex court that intrusion in an order of acquittal shall be permitted only when the circumstances are compelling

CRITIQUE

• The principle established by the Apex Court states: where two views are possible, one in favor of the accused is to be preferred[80].In the authors view, it is submitted that the view which seems more probable and is accompanied by evidence should prevail, courts should see the in whose favor “balance of convenience” lies and not blindly favor the order of acquittal. Miscarriage of justice, arising from acquittal of guilty is no less than conviction of innocent. 
• There is too much shift towards protecting the rights of the accused, to the extent that in a situation where the respondent is absconding, an appeal against acquittal cannot be heard[81]. The very fact of running and fleeting away from justice to some extent denotes “guilt” and thereby once notice has been served as per section 385 of the Code, the case should be tried ex-parte. Pendency of an appeal shall not grant the luxury of confirming the order of acquittal. 
• The need of this provision stems from the doctrine of human fallibility, any and every judge irrespective of his knowledge and experience can pass an erroneous and perverse order of acquittal for the one against whom all allegations are presumed to be true.[82] Dismissal of appeals against acquittal would put the society in danger again, “free roaming” of criminals is a threat to the existence of peace and harmony and thereby the strict approach of admitting appeals against acquittal needs to be toned down.
•  In the authors view, it is imperative to deter those wrong-doers who try to slip from the hands of justice by tampering the witnesses, destroying the evidence and thereby making it extremely difficult for the prosecutor to fulfill the criteria of “proving guilt beyond reasonable doubt” ultimately which leads to dismissing an appeal against acquittal. 

PROCEDURE 

The Public Prosecutor/special public prosecutor only can file an appeal under the section, Legal Remembrancer is not a Public Prosecutor within the meaning of this section.[83]

The commencement of appeal against an order of acquittal can be initiated by the state government[84] when the order is passed by any court other than the High Court or by the Central Government when an offence has been investigated by the Delhi Special Police Establishment.[85]

Even though, law and order falls within the state list, the apex court has affirmed that even the Central government can direct its Public Prosecutor to file appeal from order of acquittal. [86]

 Even the complainant can proceed after obtaining a special leave from the High Court by presenting an application for the same within sixty days from the order of acquittal.[87] The discretion should be exercised effectively by the High Court[88], it should not be a mechanical approach or a decision plagued with biasness and prejudice. The aim being protecting the interests of the accused person should be achieved, however not at the cost of injustice and infringement of rights of the victim. For instance, not granting leave when the accused is a prominent figure or influential person and the judge for his personal interest wants to keep him in his good books. 

The appeal shall be made in the form of a petition by the appellant or his pleader or by the officer in charge of jail in case the appellant is in jail[89] along with the copy of the judgment/order appealed against[90]. The memorandum of appeal should contain grounds of the appeal. Thereafter, if the appeal is admitted the parties are informed about the time and place of its hearing which shall be adhered to. The appellate court shall furnish the complainant, officer appointed by the State Government an accused with a copy of the grounds of appeal[91]. Then the appellate court will adjudicate upon the case as per its merits unless the appeal is only with regards to severity of the sentence. [92]

DISPOSAL

 In an appeal from an order of acquittal, the appellate court may reverse the order and direct further enquiry or find him guilty and pass an appropriate sentence[93]. The predominant principles in exercising powers has been laid down by the Supreme Court in Sanwat Singh v. State of Rajasthan[94].

Firstly, the appellate court has full powers to review the evidence upon which order of acquittal is founded.

Secondly, the appellate court shall give due consideration to the view taken by the trial judge, the presumption of innocence and follow the basic rules in administration of justice, 

Thirdly, the appellate court must record reasons to hold that the acquittal was not justified.[95] 

The major difference in an appeal against conviction and an appeal against acquittal is the “benefit of doubt” which is given to the accused[96]. 

CONSTITUTIONAL BASIS

Under Articles 132, 134 and 136 of the Constitution of India, it may be possible to present an appeal to the Supreme Court against the order of acquittal passed by the High Court. 

• An appeal lies to the SC when HC certifies that the matter involves a substantial question of law as to the interpretation of the Constitution.[97] It also lies when the HC upon an appeal has reversed an order of acquittal of and given death sentence[98].Finally, special leave petitions being the “last resort” for any matter can be sought as a remedy if all other alternatives fail.[99]
• Further, by way of articles 132,134 and 136 it is possible to present an appeal to the Supreme Court against the inadequacy of sentence passed by the High Court[100]. Hence, the Constitution expands the right to appeal to move beyond the provisions of our Criminal Code. Even the High Court can give an erroneous judgment for which these articles provide a room of rectification particularly article 136 which can be invoked even by private individuals to challenge the acquittal.[101]
• However since appeal against an order of acquittal is an exceptional remedy, it would be allowed only in special circumstance[102]. For instance, when the Supreme Court finds that the order passed by the High Court is misconceived and perverse, it can exercise its discretionary jurisdiction under At. 136[103].When the acquittal is not based on a reasonable view, then it may review the entire material and there will be no limitation on this Court’s jurisdiction Under Article 136 to come to a just decision quashing the acquittal.[104]

POWERS OF APPELLATE COURT IN APPEAL AGAINST ACQUITTAL

SECTION 386 of the Code specifies powers of the appellate court, it provides that after hearing the record and after hearing the parties, the court may dismiss the appeal, allow the appeal or pass any other order that may appear to it be just and proper. In case of acquittal, the court has power to reverse the order and to direct further inquiry or probably ask for a re-trial. 

In Chandrappa & Others v. State of Karnataka[105] Supreme Court held:

1. An appellate court has full power to review, re-appreciate and reconsiders the evidence upon which the order of acquittal is founded.
2. The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on the exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

ANALYSIS AND SUGGESTION

1. Basic guidelines differentiating what is “substantial question of law” and what is not would help reduce the ambiguity and provide the High Court clarity with regards to matters which shall be sent to the Supreme Court under 132(1). 
2. While scrutinising the circumstantial evidence, it is the duty of the Court to evaluate it to ensure the chain of events clearly established and completely to Rule out any reasonable likelihood of innocence of the Accused. This would depend on the facts of each case emanating from the evidence and there should not be a straitjacket formula which can be laid down for the purpose. 
3. It is always to be kept in mind that the circumstances adduced when considered collectively, must lead only to the conclusion that there cannot be a person other than the Accused who alone is the perpetrator of the crime alleged and the circumstances must establish the conclusive nature consistent only with the hypothesis of the guilt of the Accused.[106]
4. The judge ought not to draw any inferences against the defendant from the fact that he has been charged with a crime, he must decide the case solely on the evidence presented during the trial. 
5. Lastly, all decisions should be based upon principles of natural justice, judges shall refrain strictly from adopting a mechanical approach whether it pertains to admission or dismissal of an appeal against acquittal, since ultimately the decision of the court impacts the life of both the accused and victim.  

BIBLIOGRAPHY

Statue

The Code of Criminal Procedure, 1973

Books

Dr KN Chandrasekharan pillai, R.V. Kelkers Criminal procedure,614, ( 5th ed, 2008, 2012 reprint)

Reports

Justice V.S. Malimath, Report of the Committee on Reforms of Criminal Jusyice System, Government of India, Ministry of Home Affairs, (2003), https://mha.gov.in/sites/default/files/criminal_justice-systems2.pdf. [ hereinafter “ Malimath Committee Report”]

LAW COMMISSION OF INDIA, ONE HUNDRED AND FIFTY FOURTH REPORT ON THE CODE OF CRIMINAL PROCEDURE, 1973(1996), at 57

Journal

M.S. Deshpande, Protection Of Human Rights By Invoking Compensatory Jurisdition By Courts, 2014 Cri. L.J.

 Bluebook 20th ed. Sridip S. Nambiar, Some Insights on Formulation of a Victim Compensation Scheme in India, 5 NUALS L.J. 128, 146 (2011)

Websites

NDL India: Criminal Procedure Code. [online] Available at: http://ndl.iitkgp.ac.in/document/wJHfXHJS1fSgcbV3XkAL1r2HVW87UZQLXEzrcZlSG0UjT24YSBF3RSYoVBsdLHTplizI_Vakcn8ctz3Vn9BBQA [Accessed 4 Feb. 2019]

NDL India: Compensation to victims of crime and rehabilitation measures in India. [online] Available at: http://ndl.iitkgp.ac.in/document/MNW5MkCd5gIN5KChbDRNPywQXdfs79Nn1EAA-7nMUFEQRhHkhjWCWbqoOmrycnn4tmEMHlrIDOiTlPioXrQ [Accessed 4 Feb. 2019]

Ndl.iitkgp.ac.in. (2019). NDL India: Compensating Victims of Crime in India: An Appraisal. [online] Available at: http://ndl.iitkgp.ac.in/document/wJHfXHJS1fSgcbV3XkAL1qIFL9BYSW_uJr1xZI1gGgJ3Vu4B8ArajT00kQKQUXtHiFs-DSgWl2l1yj_Ln93tRg [Accessed 4 Feb. 2019]

Online Sources

SCC ONLINE

MANUPATRA

NATIONAL DIGITAL LIBRARY OF INDIA

Endnotes

[1] Dwarka Nath v. Beni Madhab, (1901) 28 Cal 652

[2] Section 353(1) Code of Criminal Procedure (1973) 

[3] Golder v The United Kingdom [1975] ECHR 1.

[4] Section 327, Code of Criminal Procedure (1973)

[5] Nundeeput Mahta v. Alexander Shaw, (1870) 13 WR 209

[6] Jain Babu v. K.J. Joseph, AIR 2009 NOC 404 (Ker)

[7] Section 363  Code of Criminal Procedure 1973, Ladli Prasad Zutshi v/s State of Allahbad (1931)

[8] Palekanda Karumbaiah v. State of Karnataka, 1989 CrLJ (NOC) 73 (Kant)

[9] Section 364 Code of Criminal Procedure 1973

[10] Jhabwala v. Emperor, (1933) ILR 55 All 1040

[11] Jhari Lal v. Emperor, (1929) 8 Pat 904

[12]  Section 263, 264 and 265 Code of Criminal Procedure 1973

[13] Section 355 Code of Criminal Procedure 1973

[14] Article 21, Constitution of India (1950)

[15] Section 354(3) Code of Criminal Procedure 1973

[16] Bachan Singh v. State of Punjab, AIR 1980 SC 898

[17] Mahendra Nath Das v. State of Assam, AIR 1999 SC 1926

[18] Sushil Murmu v. State of Jharkhand, AIR 2004 SC 394

[19] Section 361 Code of Criminal Procedure1973; State Of Himachal Pradesh vs Lat Singh And Ors. 1990 CriLJ 723

[20]  Section 354(4) Code of Criminal Procedure 1973

[21] State of Karnataka v. Muralidhar, AIR 2009 SC 1621

[22] Gurdit Singh v. State of Punjab, (1974) 2 SCC 260.

[23] Anil Rai v. State of Bihar, (2001) 7 SCC 318

[24] Kulwant Singh v. Amarjit Singh, AIR 2000 SC 1212

[25] Pritam Chauhan v. State (Govt. of NCT Delhi), AIR 2014 SC 2553

[26] Sahara India Real Estate Corporation Limited v. Securities and Exchange Board of India (2012) 10 SCC 603 para 52

[27] Sec 545 (1) (bb ) and 546 of CRPC 1898 which provided for compensation for victims of crime.

[28] LAW COMMISSION REPORT, THE CODE OF CRIMINAL PROCUDRE, 1969.

[29] NDL India: Criminal Procedure Code. [online] Available at: http://ndl.iitkgp.ac.in/document/wJHfXHJS1fSgcbV3XkAL1r2HVW87UZQLXEzrcZlSG0UjT24YSBF3RSYoVBsdLHTplizI_Vakcn8ctz3Vn9BBQA [Accessed 4 Feb. 2019

[30] For instance a second class judicial magistrate is empowered to impose fine only up to an amount not

exceeding one thousand rupees but if he awards compensation under Section 357(3) instead of fine, he can do so

without any apparent limit.

[31] NDL India: Criminal Procedure Code. [online] Available at: http://ndl.iitkgp.ac.in/document/wJHfXHJS1fSgcbV3XkAL1r2HVW87UZQLXEzrcZlSG0UjT24YSBF3RSYoVBsdLHTplizI_Vakcn8ctz3Vn9BBQA [Accessed 4 Feb. 2019

[32] This provision was inserted on the basis of 152nd and 156th report of the recommendations of Law commission

in 1994 and 1996 respectively.

[33] Justice V.S. Malimath, Report of the Committee on Reforms of Criminal Jusyice System, Government of India, Ministry of Home Affairs, (2003), https://mha.gov.in/sites/default/files/criminal_justice-systems2.pdf. [ hereinafter “ Malimath Committee Report”].

[34] NDL India: Compensation to victims of crime and rehabilitation measures in India. [online] Available at: http://ndl.iitkgp.ac.in/document/MNW5MkCd5gIN5KChbDRNPywQXdfs79Nn1EAA-7nMUFEQRhHkhjWCWbqoOmrycnn4tmEMHlrIDOiTlPioXrQ [Accessed 4 Feb. 2019]

[35] S. 357 A (1).

[36]  S. 357 A (3)

[37] Ndl.iitkgp.ac.in. (2019). NDL India: Compensating Victims of Crime in India : An Appraisal. [online] Available at: http://ndl.iitkgp.ac.in/document/wJHfXHJS1fSgcbV3XkAL1qIFL9BYSW_uJr1xZI1gGgJ3Vu4B8ArajT00kQKQUXtHiFs-DSgWl2l1yj_Ln93tRg [Accessed 4 Feb. 2019]_______________

[38] Hari Singh v. Sukhbir Singh,(1988) 4 SCC 551

[39]  Ibid

[40] Brij Lal v. Prem Chand, (1989) Supp (2) SCC 680.

[41] State of UP v. Jodha Singh, (1989) 3 SCC 465.

[42] State of Mysore v. Tyhappa, AIR 1962 Mys. 51.

[43] Nand Babu Pant v. State (UT of Delhi), (1976) 4 SCC 512

[44] Gur Swami v. State, AIR 1979 SC 892.

[45] 1995) 1 SCC 14

[46] The scheme was attached as an appendix to the 2005 annual report of NCW

[47] Ankush Shiwaji Gaikwad v. The State of Maharashtra, AIR 2013 SC 2454.

[48] Suresh v. State of Haryana, 2015 Cri L J 661.

[49] Article 13.

[50] Article 14.

[51] Factory at Chorzow (Germany v. Poland) 1928 P.C.I.J (ser.A)No. 17 (Order of Sept 13).

[52] LAW COMMISSION OF INDIA, ONE HUNDRED AND FIFTY FOURTH REPORT ON THE CODE OF CRIMINAL PROCEDURE, 1973(1996), at 57.

[53] Article 38 & 41 of the Constitution of India.

[54] Rudal Shah v. State of Bihar(1983)4 SCC 141.

[55] State of Punjab v. Ajaib Singh, (1995) 2 SCC 486.

[56] Committee on the Reform of the Criminal Justice System (hereinafter Malimath Committee Report), para 6.8.1, p.80

[57]  K. I. Vibhute, Compensating Victims of Crime in India – An Appraisal, JILl Vol. 32 (1990), p. 68

[58]  Section 357 (2) Code of Criminal Procedure 1973

[59] Sridip S. Nambiar, Some Insights on Formulation of a Victim Compensation Scheme in India, 5 NUALS L.J. 128, 146 (2011).

[60] Black’s Law Dictionary

[61] Section 372 Code of Criminal Procedure 1973

[62] Section 376 Code of Criminal Procedure 1973

[63] Section 229 Code of Criminal Procedure 1973

[64] Section 375 Code of Criminal Procedure 1973

[65] Jafar M Talab, (1880) 5 Bom 85.

[66] Proviso inserted by the Code of Criminal Procedure (Amendment) Act, 2008, s.29

[67] Satya Pal Singh v. State of M.P(2015) 15 SCC 613

[68] Cr.P.C. (Amendment) Act, 2005, s.32

[69] AIR 2014 SC 2200

[70]  Harbans Singh v. The State of Punjab, AIR 1962 SC 439

[71] State of Punjab v. Sukhchain Singh, AIR 2009 SC 1542

[72] Gamini Bala Koteswara Rao and Ors. v. State of Andhra Pradesh Through Secretary AIR 2010 SC 589

Girish Singh vs. The State of Uttarakhand (23.07.2019 – SC) : MANU/SC/0951/2019

[73] State of U.P. v. Sahai, MANU/SC/0258/1981 : (1982) 1 SCC 352 at SCC paras 20-22: AIR paras 19-21.

[74] Rajesh Kumar v. Dharamvir, MANU/SC/0935/1997 : (1997) 4 SCC 496 at SCC para 5.)

[75]  Vinay Kumar v. State of M.P. AIR 1994 SC 830

[76] Animireddy Venkata Ramana v. PP, HC of A.P. AIR 2008 SC 1603

[77] State v. Rajendran, AIR 2009 SC 925

[78] State of Orissa v. Sukurn Gouda, AIR 2009 SC 1019

[79] State of Maharashtra v. Narsingrao Gangaram Pimple, MANU/SC/0158/1983 : (1984) 1 SCC 446 at SCC para 45: AIR para 45

[80] State of U.P. v. Gambhir Singh, AIR 2005 SC 2439

[81] The State v. Vishwanath, (1954) ILR Nag 159.

[82] State of Rajasthan v. Thakur Singh, (2014) 12 SCC 211

[83] Deputy Legal Remembrancer, Bengal v. Gaya Prasad, (1913) 41 Cal 425.

[84]  Section 378(1) Code of Criminal Procedure 1973

[85] Section 378(2) Code of Criminal Procedure 1973

[86] Lalu Prasad Yadav v. State of Bihar, AIR 2010 SC 1561

[87] Section 378(4) Code of Criminal Procedure 1973

[88] Suga Ram v. State of Rajasthan, (2006) 8 SCC 641

[89] Section 383 Code of Criminal Procedure 1973

[90] Section 382 Code of Criminal Procedure 1973

[91] Kapil Deo Shukla v. State of U.P. AIR 1958 SC 121

[92] Kapil Deo Shukla v. State of U.P. AIR 1958 SC 121

[93] Section 386 Code of Criminal Procedure 1973

[94] AIR 1961 SC 715

[95] Chandrappa v. State of Karnataka (2007) 4 SCC 415

[96] State( Delhi Admn.) v. Laxman Kumar (1985) 4 SCC 476

[97]  Article 132(1) Constitution of India 1950

[98] Article 134(1) Constitution of India 1950

[99] Article 136 Constitution of India 1950

[100] Deepak Rai v. State of Bihar, (2013) 10 SCC 421

[101] Ramakant Rai v. Madan Rai (2003) 12 SCC 395

[102] Manu Sharma v. State (NCT of Delhi), 2010 6 SCC I

[103] State of Rajasthan v. Islam, AIR 2011 SC 2317

[104]  State (Delhi Admn.) v. Laxman Kumar, MANU/SC/0109/1985 : (1985) 4 SCC 476 at SCC para 45

[105] (2007) 4 SCC 415

[106] State of Rajasthan vs. Mahesh Kumar and Ors. (16.07.2019 – SC) : MANU/SC/0915/2019

Click Here if you want to read more

Click Here if you want to read more

The post Judgment, Appeal and Victim Compensation appeared first on iPleaders.

This article is written by Gaurav Raj Grover, a fifth-year law student at Lloyd Law College, Greater Noida. This article discusses the features of Trademark Registration in India.

Introduction

A Trademark is a type of intellectual property. It can be a word, device, name, symbol or any combination which is acquired by any institution or company to show the difference between their product and the products of other companies. It can also be known as the brand name. Trademark can be owned by any business organization, individual or any legal entity. Rules and regulations of trademarks are governed by The Trade Marks Act of 1999, The Trade Marks Rules of 2002, and The Trade Marks Amendment Act of 2010. 

History of Trademarks

Initially, Trademarks were governed by the common law which means trademarks were registered under the Indian Registration Act, 1908 by signing a declaration for ownership. In 1940, The Trademark Act came into existence and it was the first law ever on Trademarks in India which was amended by the Trade Marks Amendment Act, 1943. The trademark registry was covered under the patent office which was later separated to the trademark registry office. It was again amended by the Trade Marks Amendment Act, 1946. 

On 25th November 1959, the Trademark Act, 1940 was replaced by the Trade and Merchandise Act, 1958. The Trade and Merchandise Act, 1958 was revised by the latest Trademark Act of 1999. The main purpose of this act was to improve trading and commercial practices and develop the globalization of trade and industry. The Trademark Act, 1999 was governed by the Trademark Rules of 2002. 

Types of Trademarks

Various types of trademarks are registered under the Trademarks Act, 1999:

Product Mark

A product mark is a type of trademark which is used on a business good rather than on service. This trademark is mainly used to identify the origin of the product and helps in maintaining the reputation of the business. For example, Nestle, Amul, etc. 

Service Mark

A service mark is quite similar to the product mark but service marks are used to identify the services of the entity rather than a product. These are used to identify the proprietors from the owners of other services. For example, the trademark for network and broadcasting services as they help the service provided. Applications that are filed under trademark class 35-45 represent the service mark. For example, Apple, Google, etc.

Collective Mark

A collective mark is registered in the name of groups or organizations. These are used to inform the public about the group during commercial activities. When a group of individuals protects a service or goods collectively, this mark is used. Any association or any public institution or a Section 8 Company can be a mark holder. A common example of a collective mark in India is the Chartered Accountant designation. For example, Reliance Communications, Tata Sons, etc.

Certification Mark

This mark is a sign which shows the origin of the product, quality, material or any other specific details of the product issued by the proprietor. The main use of this mark is to standard and worth of the product. Certification marks are commonly seen on packed foods, toys, and electronics. For Example, ISI, ISO, etc. 

Online Trademark Registration

So, the trademark is a brand or logo which helps people to differentiate between your products than that of others. A registered trademark is an intangible property of a business that is used to protect the company’s investment in the brand or symbol. This unique identity can be a slogan, photograph or logo, it can be anything. 

In India, trademarks can be registered online by the Controller General of Patents, Designs, and Trademarks. The trademarks are registered under the regulations of the Trademark Act, 1999. The registration also gives the right to sue anyone who tries to copy your trademark. The validity of the trademark is 10 years from the date of registration and can be re-registered after expiration. With all the technical advancements, trademark registrations can be easily done online with the help of a registered trademark attorney. 

E-Filing of a Trademark Application

E-Filing of a trademark application is a simple process. The applicant has to login first on the website portal. New users have to register while old users can log in through their username and password or their digital signature. On successful login, the username and its user code will be displayed. Both international, as well as domestic trademarks, can be filed through this website portal. 

Trademark Registration From

Online New User Registration

https://ipindiaonline.gov.in/trademarkefiling/user/frmNewRegistration.aspx

Application for Registration of Trademark

http://www.ipindia.nic.in/writereaddata/Portal/Images/pdf/FORM-TM-A.pdf

Documents required for Trademark Registration

Through the process of trademark registration, various documents are needed. They are:

1. Applicant details: Name, address, and nationality
2. Business type and its objectives
3. A copy of the brand/logo/slogan name
4. Identity and business proofs
5. Signed Form 48 by the applicant
6. Class of trademark must be filed under the application
7. In the case of a company or LLP, the incorporation certificate is needed

Trademark Fees in India

Trademark fees are different for offline submission and online filing. 

How to Register Trademarks

The registration process of a trademark in India is by ‘first come first serve’ basis. Therefore, it is important for every person to apply for registration as soon as possible. Generally, a trademark usually takes around 2-3 years to get registered unless it is not opposed by any third party. 

Steps to register a trademark in India are:

• Trademark Search 

The first step in the process of registration is the trademark search. The search is necessary to check for similar trademarks on the intellectual property website. In case any similar trademark is found, go through its description to check about the product or service it represents. 

• Select a Trademark Agent in India

In India, only the proprietors are allowed to file a trademark application. If any proprietor is not present, the right holder must file the application through an agent or attorney. Usually, the agent takes care of all the responsibilities like searching, filing, preparing, and prosecution of the trademark.

• Determination of the Eligibility and Availability of the Trademark

Initially, the agent starts the process by checking the eligibility for registration of the trademark and a complete search to check for any similar trademark present in the office of the controller general. 

• Completing the Application Form and Filing 

The right holder can give his power of attorney to the agent to complete the process and file an application on his behalf. The form requires every bit of detail such as name, address of the proprietor, a brief description of services and goods linked with the trademark, whether any similar mark is present and a copy of the trademark.

• Review by the Trademark Office

After the completion of the form, the trademark office reviews the application to check for errors and then gives the application number. If the trademark is approved, the application number becomes the registration number.

• Preliminary Approval and Publication, show cause hearing or rejection of the Application

The application further goes to the association for examining the application is barred from registration on any grounds described under the Trademarks Act, 1999. Later, an examination report is prepared by the association through which the registrar of the trademark association decides the future of the application, whether accepted, rejected, or put up for ‘show cause’. In the case of show cause, the application can be accepted, rejected and accepted with some restrictions. 

• Registration

The registration certificate can be issued within three months if not opposed by any third party. 

Trademark Registration Process Flowchart

Conditions for Registering a Trademark in India

There are certain conditions or requirements to be fulfilled before filing a trademark application in India. They are:

1. The name, nationality, and address of the applicant are necessary. If there is any sort of partnership, details of every partner must be submitted with mentioning any minor, if present. 
2. Details of the goods and services linked with the registration must be submitted.
3. A soft copy of the trademark came for registration. 
4. Translation of all the non-English words is required. 
5. Date of the initial use of the trademark.
6. If the application submitted is to claim authority for an earlier-filed application, details of that application are also required. 

Who can apply for a Trademark?

1. Any person who shows the authority on the trademark can apply for the registration of its mark for goods as well as services. 
2. Any person whose business lies under the jurisdiction of India can apply for registration of a trademark. 
3. In case, the principal place of business is outside India, the lawyer associated with the proprietor present in India can file an application in the trademark office.
4. In the case of a company, anyone can apply the application but it should be in the company’s benefit. 

Checklist for Trademark Registration

1. The selected trademark must be able to represent in the paper form or graphically. 
2. The trademark must be different in every way, which means it must be able to differentiate its goods and services from others. 
3. It should be used to create a connection between the people and the goods or services the person is offering. It means trademarks are used to promote the business. 

Benefits of Trademarks

There are many benefits to registering a trademark. 

1. Trademarks differentiate your goods and services to that of your competitors which means that trademarks help consumers to identify you.
2. Trademarks help to increase the goodwill and brand awareness of the product or services. 
3. Trademarks help in avoiding confusion in the market as a source of products and services. 
4. Trademarks help in creating the brand value in the market to give an upper hand against the competitors. 
5. Trademarks provide credit to the source of the goods or the service and it also guarantees its quality.
6. It helps in the proper advertisement of the product. 
7. Trademark provides legal protection as the person who registered the trademark becomes the legal owner and he can take some legal against the person who uses your registered trademark without your permission. 
8. Trademark helps in establishing a unique identity of the company which means no other company can use your trademark for similar goods or services. 

Different Trademark Symbols

‘TM’ Symbol

This symbol denotes the brand name when your trademark is not registered and the application status is pending. This shows his authority over the brand and the claim depends on the result of trademark registration. 

‘SM’ Symbol

It helps in identifying the source of the service rather than a product. Which means TM is for product and SM is for a service. 

‘R’ Symbol

This symbol denotes that the trademark is registered and shows that the Certificate of Registration is issued by the Registrar. 

Trademark Application Allotment

When the application is received by the Trademark Registrar, a trademark application allotment is given by the registrar to the applicant. This number is given within one or two working days. This number helps the applicant to track the status of the trademark application. But mainly, the trademark application allotment number gives access to the applicant to attach the TM  or SM symbol to the logo. 

Vienna Codification

The Vienna Agreement was concluded in 1973 and was amended in 1985. Vienna Codification is a classification for trademarks that contains figurative elements. It helps in easing trademark searches and removing substantial reclassification work during the exchange of documents at an international level. The countries followed this agreement without making their own national classification. 

The countries can apply this classification as their principal or as a subsidiary system, it’s up to the countries. In India, Vienna Codification is done by the registrar to conduct trademark searches for logos/artwork. So, when the Indian Trademark Website shows “Send to Vienna Codification” it means the trademark includes figurative element such as logon and figurative elements come under the Vienna Codification approved by the Indian Trademarks Registry. The Vienna Code is only assigned to figurative elements which mean as soon as any new trademark is filed, the Vienna Code looks after the trademark in search of any figurative elements. 

Trademark Journal Publication

A Trademark Journal Publication is published by the Head Office of the Trademark Registry every Monday. It plays an important role in the registration of the trademark. A trademark is published in a journal when it gets a positive report in the examination from the trademark examiner. So, when a trademark application is accepted by the Trademark Association, completely or with restrictions, the trademark application is allowed to be published in the journal. 

Promotion of the trademark in the journal doesn’t approve the registration of the trademark rather it helps the public to raise a trademark opposition. There are some requirements the journal wants before publication. The requirements are:

1. Details of the trademark
2. Date of application
3. Priority Claim (If any)
4. Details of the applicant and his address
5. Agent’s details
6. Class and specification of goods and services
7. A statement as to use of the trademark
8. Appropriate office

Information under Journals

Trademark Journals contain much information about trademarks. Such as:

1. Recent public notifications and public notices issued by the office for trademarks. 
2. All the trademark applications which are accepted or allowed to be published before acceptance.
3. Re-advertisement of the applications which are ordered by the officers. 
4. List of trademarks that are registered, removed, renewed, or withdrawn by the office.]
5. Other information which is necessary to be published from time to time. 

The post All You need to know about the process of Trademark Registration appeared first on iPleaders.

This article has been written by Priya Pandey,  a student at New Law College, Bharati Vidyapeeth University studying LLB. She currently majoring in 3 Years LLB Course from New Law College,

Introduction

India which is known to be the second most populated country in the world has the majority of illiterate. As said by Justice Harry Blackmun, “the concept of seeking justice cannot be equated with the value of dollars. Money plays no role in seeking justice”[1]. The major part of individuals doesn’t know about the legal system of the nation and furthermore of their protected rights. Even though individuals know about it, they are not in a circumstance to manage the cost of giving their monetary and social backwardness. They are in a defenseless circumstance to be able to afford the service of legal counselors, which has turned into expensive affairs.

Click Here

The focus point of legal aid is on distributive justice, successful execution of welfare advantages and end of social and basic oppression of poor people. It works as per the Legal Services Authorities Act, 1987 which goes about as the rule of the rendering of free justice. The prime object of the state ought to be “equivalent justice for all”. In this way, legal aid endeavors to guarantee that the constitutional pledge is satisfied in its letter and soul and equivalent justice is made accessible to the oppressed and weaker sections of the general public.

Legal Aid[2] is a development that envisages that the poor have simple access to courts and other government organizations. It infers that the choices rendered are reasonable and simply assessing the rights and disabilities of parties. The focus point of legal aid is on distributive justice, viable execution of welfare advantages and elimination of social structural discrimination against the poor. It was taking these mandatory provisions of the Constitution of India at the top of the priority list that the Parliament passed The Legal Services Authorities Act, 1987.

Right to free legal aid

The State shall secure that the task of the legal system advances justice, on the basis of equivalent chance, and shall, specifically, give free legal aid, by appropriate enactment or plans or in some other manner, to guarantee that open doors for securing justice are not denied to any citizen by reason of financial or any other disabilities. 

The preamble of the Indian constitution fundamentally means to secure to the general population of India justice – financial and political. His Lordship Justice P.N. Bhagwati appropriately expressed that legal aid means giving a course of action in the general public which makes the machinery of administration of Justice easily available and in reach of the individuals who need to depend on it for the requirement of rights given to them by law. Article 38(1) affirms that the State will advance the welfare of the general population by verifying and ensuring the social order including justice. Article 21 plainly says that each individual has an equal right to life and liberty except according to the procedure.

Case  Hussainara Khatoon vs. State of Bihar: In this case, the court held that the accused has the right to free legal aid at the expense of state if he is not able to afford legal service for himself.

Provisions of legal aid in the constitution[3]

ARTICLE 39A– It is the obligation of the State to see that the legal system advances justice based on equal opportunity for its entire citizen. It should therefore give free legal aid to the individuals who can’t get to justice because of financial and other disabilities.

SECTION 304 OF CODE OF CRIMINAL PROCEDURE,1973

If the accused  does not have adequate means to draw in a legal advisor, the court must give one to the protection of the accused at the expense for the state.

KHATRI II vs. STATE OF BIHAR (1981)1SCC 

The Constitutional obligation to give legal aid emerges from the time the accused is produced before the Magistrate for the first time and continues to whatever point he is delivered for remand.

LEGAL SERVICE AUTHORITY ACT, 1987

 This act was effectuated with the object to provide justice to all. No citizen should be denied justice because of economic or any other disabilities.

National legal service authority (Nalsa)[4]

The National Legal Services Authority (NALSA) has been constituted under the Legal Services Authorities Act, 1987 to monitor and evaluate the implementation of legal services accessible under the Act. 

The NALSA issues rules for the State Legal Services Authorities to actualize the Legal Aid Programs and plans all through the nation. 

Principally, the State Legal Services Authorities, District Legal Services Authorities, Taluka Legal Services Authorities, Taluka Legal Services Committees, etc. have been asked to discharge the following two main functions regularly: 

• To Provide Free Legal Services to the qualified people; and 
• To organize Lok Adalats for amicable settlement of disputes. 

In each State, a State Legal Services Authority and in each High Court, a High Court Legal Services Committee has been constituted. District Legal Services Authorities and Taluka Legal Services Committees have been established in the Districts and a large portion of the Talukas to offer impact to the approaches and headings of the NALSA and to give free lawful administrations to the general population and direct Lok Adalats in the State. The State Legal Services Authorities are led by Hon’ble Chief Justice of the individual Districts and the Taluka Legal Services Committees are led by the Judicial Officers at the Taluka Level. 

Preeminent Court Legal Services Committee has been constituted to administer and implement the legal services program to the extent that it relates to the Supreme Court of India.

How to get free legal aid in India

Bodies constituted by the l Services Authorities Act

A person who qualifies the eligibility criteria as in S.12 of the LSA Act may approach the appropriate body constituted under the Act (as mentioned above) to get free legal aid. National Legal Services Authority (Free and Competent Legal Services) Regulations, 2010 consists of various regulations Supreme Court Legal Services Committee, State Legal Services Authorities, High Court Legal Services Committees, District Legal Services Authorities, and Taluk Legal Services Committees in India must abide by. 

An application is to be filed by the applicant and shall be preferably presented in the FORM-I present at the end of the Regulations (download by clicking here). Such an application shall be filed along with the summary of the grievances for which the applicant seeks legal aid. The form may be filled in the local language or English. Oral requests may also be entertained similar to an application under FORM-I[5]. The applicant shall attach an affidavit stating that the applicant qualifies the eligibility criteria as specified under Section 12 of the LSA Act[6]. Application forms are additionally present at all the said bodies free of expense. After receipt of the application, the board of trustees set up by the foundation where such application has been recorded will investigate the application to set up whether the candidate is qualified for free legal aid and shall revert within eight weeks from the date of receipt of such application.

Pro Bono Cases

Corporate social duty has picked up prevalence in the Indian culture and law offices, regardless of whether top-level or not and advocates have additionally stepped up to contribute towards the general public. Pro Bono cases are those cases, the costs incurred in which are ‘on the house’ or nominal. Some of the associations/firms having dynamic free office are Shardul Amarchand Mangaldas and Co.(in relationship with Lex Mundi Pro Bono Foundation), Luthra and Luthra, Human Rights Law Network, and so forth.

Legal Aid Clinics

All District Legal Services Authorities are required to establish legal aid clinics in villages or clusters of villages depending upon the size of the village to provide legal aid to individuals, particularly where there is land, social and different boundaries to access to the legal services institutions[7]. However, it is subjected to the financial resource accessible to the districts. 

Legal Services Clinics in Law Universities/Colleges

Usually, every law university/college sets up, as a part of legal education, by Section 4(k) of the LSA Act, legal services clinic to give a lawful guide to the neighborhood individuals free of expense. Such legal aid clinics might be drawn closer to get free legal advice.

Non-Governmental Organizations

Various NGOs give free lawful counsel to individuals concerning the field they work in and help them in getting legal aid, either their own or those gave by the state/law firms/lawyers, etc. 

Online Forums

Different online forums are giving free legal advice to individuals and helping them get associated with law firms’ pro bono department.

Some of the similar kinds of websites are Here

Conclusion

Legal aid to the poor is fundamental for the protection of guideline of law which is important for the presence of the orderly society. It infers giving free legal services to poor people and needy who can’t manage the cost of the services of a legal advisor for the proceedings of a case in any court, council or before an expert.  The focus point of Legal Aid is on distributive justice, effective implementation of welfare benefits and disposal of social and basic oppression of poor people. It works as per the Legal Services Authorities Act, 1987 which goes about as the rule of the rendering of free equity.  Legal aid isn’t a charity or bounty, yet it is an obligation of the state and right of the public. It is the absence of legal awareness which leads to exploitation and deprivation of rights and benefits of the poor people.

Endnotes

[1] Jackson v. Bishop, 404 F.2d 571 (1968)

[2] Legal Aid and Justice for the Poor – N.R. Madhava Menon, pp 344, paragraph 2.

[3]  http://www.legalserviceindia.com/article/l55-Working-of-Statute-of-Legal-Aid-in-India.html

[4] https://archive.india.gov.in/citizen/lawnorder.php?id=10

[5]  Section 3 of the National Legal Services Authority (Free and Competent Legal Services) Regulations, 2010

[6] Section 5 of the National Legal Services Authority (Free and Competent Legal Services) Regulations, 2010

[7] Section 3 of the National Legal Services Authority (Legal Services Clinics) Regulations, 2011

The post How to get legal aid in India appeared first on iPleaders.

This article is written by Ramanuj Mukherjee, CEO, LawSikho.

This is the dream of every millennial. Working online, without being restricted to one place. You can travel the world, and spend a few hours each day working on your laptop, maybe from a tropical beach while you sip margaritas.

Why not. I have done it. Between 2016-19, for 2 full years, I lived in beachside villages in Goa. I often worked from beach shacks, while I continued to work as the CEO of iPleaders. After some time I also managed to assemble a team in Goa where we all worked from a co-working space, which looked like this:

This was not the first time. While I was studying law, I began to do a lot of freelance work on the side. When I would get a major freelance assignment, that would require a lot of concentration, such as writing a book as a ghostwriter, I would travel to Goa and work for 10-15 days from the beach.

Somehow living on the beach always makes me super productive. Unfortunately, I am back to living in Delhi these days, given circumstances in life. However, I totally hope to take off again soon and live in exotic places while my work does not stop. More on that plan another day.

Today let me explore the idea with you: could you travel the world while doing freelance legal work on the side?

I plan on launching a full-fledged course on this eventually. But today’s Gyan is totally free.

I am going to share 5 different types of legal work that you can find and can do without being dependant on a fixed location.

Oh, and you have to earn a substantial amount so you can travel the world too. What should be that amount?

According to my experience, I think, earning about Rs. 1.5 lakh a month should be enough to travel the world comfortably if you use your money well. If you live cheap and scrimp, even Rs. 50,000 will suffice for one person. 

How could you earn this much while you travel?

To answer this, I have interviewed lawyers who actually do this kind of things. I think they are totally heroic. Unfortunately, none of them are willing to talk publicly about how much they earn! 

Also, I see that in the legal profession we only glorify those who grind it out in the usual pathways in the profession to make it to the top. I think that is totally unfair. It is no less magical to be able to earn a few lakhs as a digital nomad lawyer, having the freedom to travel wherever they want, compared to making a partner in a big law firm.

In fact, thousands of people have made partners in various big law firms in the last 20 years. I bet way fewer have earned the freedom to become a location independent lawyer or a digital legal nomad!

After all, the law is not like design or content writing! It is not common for legal work to be done by digital nomads and freelancers.

And that’s why this is totally worth your time to learn more from these people. Because even if you do not want to travel the world or become a digital nomad, these are legit job opportunities with lots of freedom and enough opportunity to earn, and if you are ever sick of your traditional job or career you could turn to one of these.

This is also significant for law students who want to earn some money on the side because you could do these things to earn on the side if you can deliver quality. Even full-time lawyers could supplement their income from some of these opportunities.

Is it necessary that I have to do legal work?

Not really. Many lawyers who are digital nomads do not deal with legal work at all. They do other things altogether, such as making money from a blog, organizing food tours, adventures, and cultural trips, making money from their substantial follower base on Instagram or Twitter. For example, Jodi Ettenberg of Legalnomads.com fame says that she earns from organizing food walks, writing, speaking at events and social media consulting. 

That’s great, for sure.

We are not going to talk about those things today, though. We will stick to legal or semi-legal work, that actually put your legal skills to use. Deal?

Legal work from freelancer websites

These days, there are job portals that cater to digital nomads exclusively. The advantage of being an Indian is that you would find even the low paying jobs quite well paying given our purchasing power parity. Here is an example: https://www.workingnomads.co/remote-legal-jobs

There are also a lot of other websites that have freelancer opportunities for lawyers. I am providing a list below:

Here are lawyers offering various services on Fiverr. These are all services that you can offer remotely on this website.

A very popular service on Fiverr is drafting terms and conditions for a website. Drafting contracts or reviewing are also services that are high in demand according to my research.

There are more highly paid gigs in freelancer.com. Patent law-related research, filing and drafting work seems to be really high in demand on this website. They even have an India friendly website.

Upwork is also an extremely popular freelancing website with tons of legal job postings from all over the world. 

Legisone, on the other hand, is a totally dedicated cloud-based freelancing platform for lawyers. Definitely worth a shot!

Of course, we also have websites like Lawrato and Lawfarm in India where you may find work, though they are not dedicated to freelancers.

Advice over phone/ helplines

I have done this and it works really well. The idea is that you need to first write blog posts, create youtube or tiktok videos, or create free resources on some platform. If a lot of people begin to refer to such content at times of distress and benefit from your content, some of them would want further advice and guidance. They would then be willing to pay for a phone call with you. To cater to this, you can create a paid helpline, which can generate a substantial sum.

You can see this page to get an idea about how this works.

Drafting for other lawyers

This is an excellent way to make money without being dependant on a location. You can get a volume of work too. Of course, the payment will be far lower than what you expect from a client. But it is worth it because you can get volumes and have no need to negotiate with clients, no need to spend time understanding their requirements etc.

You can draft contracts as well as litigation documents. There are many lawyers who are hard-pressed to find juniors and find it really difficult to train them or retain them. This is a real problem area for many lawyers.

I will tell you a story. Once I went to the chamber of a famous lawyer, hoping to get her support in creating our criminal litigation course. She asked me what should a lawyer expect after doing the course. I told her that my goal is that what they learn in 3 years from a senior, they should learn that much in 3 to 6 months by doing our course. She got angry and threw me out of her chamber. 

I understood her problem. Good juniors who learn also leave fast. Who will do the grunt work if juniors learn and leave so fast?

Anyway, such lawyers really need reliable people who can supply them with good drafts when they need and save their time. You need to target lawyers with at least 6-7 years of experience who are struggling with workload, and you can negotiate a decent rate with them.

But remember, if you can charge INR 10,000 for drafting a contract for a client directly, doing it for another lawyer means you are lucky to get even 2000 or 3000. 

However, if you do 20 of those in a month, your costs are likely to get covered. Not bad, is it?

It would be a good idea to have such a relationship with at least 4-5 lawyers so you have a steady supply of work.

Remember that for a lawyer to give you such work they need to trust your work. They need to know you are responsible and you can follow deadlines. It is fine to do this work one or two times for free, for them to just get comfortable with the idea and see the quality of your work. It would be better to start with lawyers who already respect your quality of work and work ethics. 

Also, remember that confidentiality is key because no lawyer wants their clients to know that they are getting documents drafted by someone else who is much cheaper!

Drafting and advice for startups

Many relatively smaller companies cannot yet afford to hire a full-time lawyer, due to money concerns, but would love to have a good lawyer and advisor available on call. This is a great opportunity for remote lawyers. Common pain points are drafting workplace policies, contracts, employment matters and government policies.

If you could get 2-3 such companies to give you work regularly, it could enable your digital nomad lifestyle. Such clients will not insist on your physical presence on their premises because they are getting a cheaper price compared to what a regular law firm will charge for a retainer.

Click Above

Remote work for law firms

Many law firms around the world have begun to outsource some work to trusted freelancers. The cost advantage is key here. This quora thread talks about nomadic lawyers working for various law firms using certain remote work software. 

Isn’t that cool? However, this would work if you have already worked for some law firms and have the CV to get a job in a law firm in the first place. Also, only a few law firms will have the resources or the mindset to hire remote working lawyers.

So you need to be very careful about who you approach for this kind of work.

Content writing 

Demand for legal content writing is extremely high because it is very hard to find good content writers in law. Such writers are also very, very expensive. Many people offer to do content writing, but most have no experience or capability. They just assume that they can do it, but the output is not up to the mark.

Lawyers and law firms need content writing for their website, blogs, newsletters, regular client updates and alerts, brochures, profiles and so on. Asking full-time lawyers to work on these things is very expensive, and also most lawyers are not necessarily good at creative writing. They write prosaic, boring, unreadable content.

And this opens a great opportunity for good legal content writers. The challenge is, however, business development. If you are traveling around the world, you cannot go and meet the lawyers personally to solicit business. This means you need to rely on an online system to find clients on a regular basis.

This is a bit of a task initially, but as you begin to do good work, you will get plenty of referrals.

I regularly hire content writers, and if someone could give me an article like this current one, according to what I commission and if I need not edit, I would be happy to pay INR 2000 for the same. Are you the right person? Say hi on Linkedin and let me know.

Law firm marketing

Law firms need marketing support. There are plenty of full-fledged law firm marketers these days, but if your prices are competitive, you can do this while traveling the world as well.

Most of the work involves content marketing, submissions for conferences and law firm awards, connecting with media professionals to get coverage for a law firm or its partners and getting lawyers quoted in the news.

Some big law firms also have opportunities for academic research and writing, which can be done remotely.

It is also possible to work with law firms to help with their branding, website updating, revamping of the logo, managing podcasts, and youtube channels. One can also help with managing social media pages of law firms.

Content writing is often combined with law firm marketing by legal digital nomads.

Ghostwriting for lawyers

This is not the most popular but certainly very well paying. I have done this as a law student to earn money. Many famous and rich lawyers will pay a lot of money for ghostwriting their books for them. Books increase any lawyer’s vanity quotient and standing in the practice. Plus it really helps a litigator to have published a few books when they are looking to become a senior advocate.

You can approach lawyers with a lot of money and less time and offer to help them as a research associate. This is just euphemism for ghostwriting. You would have to write the entire book most probably and make several iterations to suit the requirements of the lawyer, so please quote accordingly. 

Writing a book can easily take hundreds of hours, so you are justified to charge a few lakhs. And if you have the CV, lawyers will pay. It helps if you have already published one or two books from a respectable publisher because then the lawyer can easily trust you.

Editing and writing 

The legal publishing industry is big. Plus, there is a digital legal media that is growing fast. They need writers, editors, social media managers and coordinators. They find it hard to hire and retain people and are very open to working with lawyers remotely if the quality of work is good.

This is indeed a great opportunity. At LawSikho, we are always looking for topnotch writers who can write in-depth long-form articles about the legal industry and various aspects of a career in law.

For example, I am working on a book on how 30 young lawyers under 30 years of age successfully built their own law firms. I am looking for freelancers to help me with this project. In the past, we paid freelancers to do interviews for Superlawyer.in, and we are still open to doing it again.

Good legal publishers hire editors all the time as well. You could convince them to do the work online, remotely. As long as you deliver on time, they are not likely to have too many objections. 

Lead generation and Telesales

These days there are tons of software, products and services being sold to lawyers and law firms. Who knows how to sell these things better than lawyers? There is a huge latent demand for lawyers who are willing to do lead generation, prospecting, business development, and telesales activities for companies trying to sell various products and services to lawyers. 

Legaltech companies and legal media should be your top target, followed by legal event organizers.

YouTuber

Being a law YouTuber has begun to become mainstream. There are now a lot of legal YouTubers in India and abroad with really serious following, running into lakhs. 

They get a lot of calls for advice and opportunity to refer work to other lawyers which they can monetize. They can also do promotional collaborations with brands like LawSikho, and help us to reach out to larger audiences, and earn a fee in the process. 

They can also earn ad revenue from ads on youtube videos if the views are in large numbers. YouTuber has become a real profession, and it is totally location independent!

You can also earn by making youtube videos for an established channel.

Social media engagement

Do you have any idea how much a lawyer or law firm in the USA or UK will pay you to manage their Twitter, as long as you keep attracting more clients to follow them organically? Turns out the amount is quite significant. 

Unfortunately, if you are not in the same city, helping them with Instagram may not be an option, unless they send all the photos and updates to you while you just manage the account. 

Do you know at LawSikho we are looking for a killer meme maker who can help us to market our courses through memes? Let me know if you can think of anyone.

Online training and courses

This is what we do. We are pretty much a company with two offices currently, in Delhi and Kolkata, about half of our workforce works remotely, and most of them are lawyers.

It is not all that different for other online legal education companies. This is one industry across the world that has really embraced remote work.

If you want to work with us in online course development, or as an evaluator, please let us know.

Merchandising for lawyers

Imagine t-shirts and mugs with legal memes. How about notebooks and planners that are customized to appeal to lawyers? How about cool fridge magnets and car stickers that make lawyers feel the swag? 

They are just not there in India. You can find them in the UK, but isn’t it shocking that nobody is doing it in India? If someone wants to do it seriously, we are here to collaborate with you. Let us know.

But seriously, why isn’t anyone doing this yet, given how big an opportunity this is?

Also, check out these upcoming LawSikho courses in which enrollment is going on:

Diploma

Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution

Diploma in M&A, Institutional Finance and Investment Laws (PE and VC transactions)

Diploma in Entrepreneurship Administration and Business Laws

Diploma in Companies Act, Corporate Governance and SEBI Regulations

Executive Certificate Courses

Certificate Course in Advanced Corporate Taxation 

Certificate Course in Insolvency and Bankruptcy Code 

Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting

Certificate Course in Legal Practice Development and Management 

Certificate Course in Securities Laws, Insider Trading and SEBI Litigation

Certificate Course in Media and Entertainment Law: Contracts, Licensing and Regulations

Certificate Course in Real Estate Laws

Certificate Course in Arbitration: Strategy, Procedure and Drafting

The post How to do Remote Work as a Lawyer while you Travel the World AKA Becoming a Legal Nomad appeared first on iPleaders.

This article is written by Ramanuj Mukherjee, CEO, LawSikho.

The outgoing junior called me to one side and told me: never tell him that you can drive a car, or you will become his driver.

This is a story a lawyer told me when I was interviewing him for a job at LawSikho. This was his first day at the chamber of a lawyer, where he was joining as a junior lawyer. He did not drive his senior’s car but did pretty much every other menial task. He was the peon, the errand boy, personal assistant all rolled into one. Shocking, is it? But this is exactly how many senior lawyers treat their juniors.

Driver, munshi, file bearer, pantry manager, a showpiece in the office, and of course, a circle of juniors in the court walking behind lawyers enhance their glory.

It is not that there are no good seniors. Good seniors are sought after for a reason. However, a vast majority of junior lawyers are treated in a horrible way, and they have no option.

How come?

It is because the legal education system fails them. After 5 years of legal education, or 3 years for that matter, they do not learn enough to do client work independently. Seniors can treat them so badly and pay meager amounts and get away with it because these juniors have no alternative.

They have to somehow stick to their jobs and learn legal work from the senior through observation. This is how, once upon a time in England, lawyers were supposed to be trained. This practice has a historical root, and it was called devilling. In vast numbers of courts around in India, today this same practice has become a mockery, and an opportunity to exploit the young law graduates.

The sad part is that many senior lawyers justify this practice in the name of tradition. A very brilliant lawyer who is now a High Court judge once told me that this is necessary to build the collegial friendly atmosphere at the bar and keep juniors in their place. 

I could not agree that day, as a very young lawyer, and I cannot agree today as I have seen more of the profession.

What do you think these law graduates do to survive? They go and find some gullible clients and make some money off them in unethical ways. This is how the standards and reputation of the legal profession have plummeted day after day. 

A few lawyers manage to cut through this clutter and rise above this mediocrity and shady practices. This is because of their determination, focus, and self-education. However, above all, it requires patience and sticking it out no matter what.

At LawSikho, we have always tried to attack these dynamics. 

Why are the vast majority of law graduates forced to suffer exploitative work environments and poor treatment? Is the solution for them to find better seniors?

What if there are too few seniors who are that good? Who are great at their work and also find time to teach greenhorn juniors selflessly year after year?

We thought we must short-circuit the learning process. Could we introduce high impact learning programs that simulate the learning process with the good seniors, but systematically, and in a safe environment where the learner is not afraid of judgment? 

What if we could reduce the years that one spends in learning, and teach in one year what most learn in three years? What would we have to do? What would it take to run a course like that?

We have dedicated our careers to solving this problem, at LawSikho. We have a team of 35 strong professionals working on this issue tirelessly, creating and delivering learning programs that help young lawyers to stand on their own feet. 

And you should be able to tell from the quality of the free content we put out into the world, as well as from the content that our students produce – what is the difference between us and the rest of the legal education industry.

However, it is one thing to learn how to do legal work. What about how to get your own clients? You can’t really be free from the clutches of exploiting seniors unless you can get your own client and start your independent practice?

A major breakthrough that we have caused recently was in this area, after months of work, is this course: https://lawsikho.com/course/legal_practice_development_and_management

Click Above

It is normally a 3 months course, but I am offering a unique opportunity to those who will enroll in this course today. I plan on running weekly classes for this course throughout the year, hosted by me, but where you will get to learn from top lawyers who built successful law firms. 

I am inviting young lawyers who have successfully built their own law practices or law firms to come and speak with you and inspire you. I am excited about the quality of people who have agreed so far to be a part of this game-changing program. 

So yes, it is a 3 months course, but you could check in to the classes around the year, for the next entire year. How is that?

I may not extend this opportunity into the future, so if you are interested, please enroll immediately. I have space for only 15 more people to join this program. The others who have joined as students are mostly lawyers with thriving practices and their own law firms. I bet that you would learn a great deal from your co-learners as well.

I do not only want you to start your independent practice, but I also want you to thrive and build a practice that creates wealth. My goal would be to create a revenue of at least 1 cr per year (topline). I would run the program with the intention that the learners get all the tools, skills and knowledge to reach that level.

Do not miss the bus. Here are the details of the course:

There are also a bunch of other courses in which you can enroll up to 15th of September:

Diploma

Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution

Diploma in M&A, Institutional Finance and Investment Laws (PE and VC transactions)

Diploma in Companies Act, Corporate Governance and SEBI Regulations

Executive Certificate Courses

Certificate Course in Advanced Corporate Taxation

Certificate Course in Insolvency and Bankruptcy Code 

Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting

Certificate Course in Legal Practice Development and Management

Certificate Course in Securities Laws, Insider Trading and SEBI Litigation

Certificate Course in Media and Entertainment Law: Contracts, Licensing and Regulations

Certificate Course in Real Estate Laws

Certificate Course in Arbitration: Strategy, Procedure and Drafting 

The post Break the Circle of Exploitation: Join Hands with us at LawSikho appeared first on iPleaders.

This article has been written by Disha Jain a final year student of Jindal Global Law School expresses her views on the landmark Judgement of Om Kumar v. Union of India whilst critically analysing it.

 ‘Judicial Review should speak for Righteousness but yearn for Proportionality’

In the Apex Court’s role as Sentinel On Qui Vive of exalted fundamental rights, Om Kumar’s case gives a sudden impression of deceleration to this forward marching.

In this article, I have briefly discussed the facts and then critically analyzed the core issues of the judgement dealing with the Doctrine of Proportionality. Firstly, I have criticized the use of different scales for reviewing an administrative action under the same Article. Secondly, I have tried to point out how the doctrine of proportionality and strict scrutiny are not in tandem with each other. Thirdly, the Supreme Court’s retrograde approach of applying the principle of Wednesbury unreasonableness has been reprimanded. Lastly, I have suggested the adoption of certain principles from an International model, to strengthen the doctrine.

Click Here

Facts of the Case

Skipper Construction had got possession from Delhi Development Authority (DDA) of flats but the consideration was only paid partly. It had collected huge sums of money from the prospective purchasers of the flats. This was challenged. 

Disciplinary proceedings were initiated against five officers. The matter with regard to Sri Om Kumar and Sri Virendra Nath was referred to the Department of Personnel as there was a difference in opinion between the competent authority and the advice of the U.P.S.C. Likewise, U.P.S.C was asked to reconsider its advice provided for the cases of Sri K.S. Baidwan and Sri R.S. Sethi. 

The final order differed in the penalties. The counsel for Shri Om Kumar and Shri Virendra Nath raised the questions for the different quantum of punishment imposed. 

Issues Raised

The question of applicability of doctrine of proportionality, especially with respect to Article 14 of the Constitution of India was raised. Also, the examination of the court’s reviewing authority to be primary and secondary.

It was decided that that the administrator should exercise the least restrictive choice of measures while regulating the exercise of fundamental rights. It was left to the discretion of the Supreme Court to see if these rights have been infringed excessively.

Critical Analysis

The court refused to interfere in the punishment. It was reiterated that judicial review of an administrative action is limited and the parameters of review would be as held in the Wednesbury’s case, hence the name Wednesbury principle. The Doctrine of Proportionality came to be expressly accepted here.

On digging deeper, the Court found that doctrine of proportionality has been applied in India since 1950 while checking the vires of legislative enactments especially under Article 19 of the Constitution.

The Court then proceeded to determine proportionality vis-a-vis Article 14. Here the Court reasoned that Article 14 two dimensions. One when administrative action is challenged as discriminatory and second when it is arbitrary.

The Court observed that when action is challenged as discriminatory i.e. when equals are treated unequally and unequals are treated equally. In this case, the courts function in their primary role and scrutinize the level of discrimination and whether it has nexus to the object sought to be achieved. This is the ‘strict scrutiny’ done by the courts.

Whereas when any action is challenged as arbitrary, the courts assume a secondary role. Thus, the Wednesbury principles will apply when scrutinizing and reviewing the administrative action. The question here is whether administrative action is rational or reasonable. The Courts would then be only confined to secondary role and will only have to see whether the administrator has done well in his primary role, whether he has acted illegally or has omitted relevant factors from consideration or has taken irrelevant factors into consideration or whether his view is one which no reasonable person could have taken.

Thus, the Court held that petitioners have raised the ground of unreasonableness and applying the principles of Wednesbury they didn’t find any fault in the punishments imposed.

The law on doctrine of proportionality in India has been stationary since the judgment. There can be no movement seen in its application except from the fact that it is slowly taking up on the doctrine of unreasonableness.

The Court has laid down that proportionality will apply only when under Article 14 of the Constitution, it is challenged on the grounds of being discriminatory. The Wednesbury principle has been retained for arbitrariness and unreasonableness. Some of the challenges to the instant case are discussed here under.

Firstly, it becomes difficult to comprehend the use of two different yardsticks for reviewing the administrative action, under the same Article. The court observes that since service matters usually fall under the category of arbitrariness, limited approach for Wednesbury will be applicable for review. This approach of the court is giving ‘disproportionate’ treatment to the doctrine is inexplicable. The questions that still remain unanswered are that-Can it be said for sure that all the actions which are arbitrary can never be discriminatory? Or should the petitioners always dig out cases from the past of dissimilar treatment to wriggle out of the limited Wednesbury principle?

Soli Sorabjee has submitted in the matter of Ranjit Thakur Vs Union of India[1] that “lays the seeds of the proportionality principle in Indian administrative law without recourse to any constitutional principle”[2]. But the courts, for the purpose of dividing Article 14 for the purposes of proportionality seems to be rather regressive of the two facets of Article 14 that is discriminatory State action and Arbitrary State action were devised through judicial invention only to cast a wide net for the purpose of Article 14. Earlier, when the courts used to apply the doctrine of reasonable classification. Thus, based on intelligible differentia and reasonable nexus with the object sought to be achieve, certain cases like arbitrary removal and capricious suspension, etc. remained out of the ambit of Article 14. To prevent such actions from the rigours of Article 14, Justice Bhagwati laid down the conception of arbitrariness in E.P. Royappa vs State of Tamil Nadu & Anr[3]  .Thus, the two shades of Article 14 are for the purpose of widening the base of the Article, while the wrong in both of them remains the same, which is inequality. The court should not have applied different parameters for judging or reviewing, when they arise from the same Article.

The Supreme Court has left the cavity open by not providing any cogent reasoning for applying the Wednesbury unreasonableness only, in dealing with issues of arbitrariness. The two plausible reasons for doing so seem to be-The Apex Court seems to have followed the foot-steps of the courts in England that are influenced by the ideology of applying proportionality principle and Wednesbury principle only in the case of convention and non-convention rights respectively. Another reason could be that the Supreme Court would have feared the burgeoning of cases if the standard of review was kept low and any and every case would be falling under the ambit of Doctrine of proportionality, encouraging unending litigation.

Secondly, the doctrine of proportionality is equated to the strict scrutiny approach. In R v. Ministry of Defence[4] the Court of Appeal devised the Strict Scrutiny test. However, the English courts, noted that the standard of interference was placed so high that it was difficult for the court to take into consideration whether actions were for social needs or proportional to national security and public order. The Court, thus meant that principles which are followed for testing actions could no more be applied if such high standards and limited scope of interview are maintained. Thus, the test of proportionality is not similar or equal to strict scrutiny. The court has occasion to consider the socio-economic conditions and public-order, etc., the court used in equating both these tests.

Thirdly, the Apex court which is normally forward marching had taken a retrograde step by affirming the application of Wednesbury principle of unreasonableness. In the age of welfare state, the difference between proportionality and unreasonableness has faded to a great extent. Thus, cases which are unreasonable are often found to be disproportionate. For example, the cases of Air India v. Nergesh Meerza[5] , Ranjit Thakur v. Union Of India[6] and Maharashtra Law Development Corporation v. State of Maharashtra[7] . thus, the principle of proportionality and unreasonableness cover a great deal of common grounds[8] Even the English Courts, the creators of the principle have deviated from Wednesbury where the convention Rights were involved. But unfortunately, the courts in this case have clung onto the Principle of Wednesbury, when in reality the Wednesbury principle has given way to the doctrine of proportionality[9].

Thus, the court should have affirmed a principle which would have given more latitude to the judges to review administrative actions and more so in the service matters, when the utility of the Wednesbury principle is in doubt.

Fourthly, another issue which is left unaddressed by the Supreme Court is adoption of principle from any other model- British or European. The various Supreme Court judgments manifest that it has never had an actual opportunity to test any administrative action on the parameters of Doctrine of Proportionality as it stands today in the International forefront. Merely coining the doctrine and stating its legal position in the Indian model will not do justice to the doctrine. What is required is an actual application of the doctrine which is in tandem with the International context.

An effective remedy would be to take lessons from other countries. The determination of the International model to be applied in the case of India would be a purely didactic exercise. Julian Rivers points out a four-prong test used in the European model, based on legitimacy, suitability, necessity and fair balance or proportionality[10]. The judiciary, while giving this test some backing in the given case of Om Kumar has held that the administrative authority will be given a variety of options to choose from but the court retains the power to decide if this choice infringes the rights excessively or not[11].  This exercise is indicative of the fact that the Courts have intended to borrow the fair balance stage from the European model, hence giving it validation. Keeping the above considerations, the European model seems the most pertinent model to be adopted.

In conclusion, I would like to say that mutual want to strengthen the judicial review of an administrative action has been the hot topic of discussion since ages. This was put to rest in the much celebrated judgement of the Om Kumar case. Justice Jagannadha Rao beautifully brings out the acceptance of proportionality in India. It has derived strength from its very survival, since no change has been made thereafter. The fact that the case has certain flaws can’t be overlooked because at the end of everything, the approach should be to maximize the well being of the people. No judgement is infallible. Om Kumar too has its advantages and disadvantages. In this case the court had an opportunity to give a fillip to the doctrine in India. The doctrine with its wide contours would have served as a deterrent weapon to mitigate capricious treatment under the guise of subjective satisfaction. The administrative authorities would have arrived at the decision more circumspectly sensing a judicial censure if they try to impose punishments according to their whims and fancies. This would also help salvage the lost confidence of people in Judicial review. 

A sympathetic understanding of the case in the light of the doctrine of proportionality would keep its values intact galvanizing the strength of Judicial review. Thus, the urgency of actively applying Doctrine of proportionality cannot be overlooked for otherwise Cannons will be used to shoot sparrows.

Endnotes

[1] (1987) 4 SCC 611

[2] 2004 8 SCC (J) 33

[3] 1974 AIR 555

[4]  (1996) 2 WLR 305

[5] (1981) 4 SCC 335

[6] (1987) 4 SCC 611

[7]  2011 15 SCC 616

[8] I.P Massey, Administrative Law, Eastern Book Company, 7^th Edn. (2008), Ch-7, pg-398, para-2

[9] (2001) 2 SCC 386

[10] Ajoy P.B, Administrative Action and the Doctrine of Proportionality in India, Vol I, Issue 6 (2012), pg-19, para-5

[11]  (2001) 2 SCC 386

The post Om Kumar V. Union of India: Critical analysis appeared first on iPleaders.

This article has been written by Adv. Rohan Mahajan, Founder, LawRato.

It is anything but natural for a lawyer to be intimidated by his/her court appearances. Whether it’s the mere act of appearing, or the volume of it (lucky you), it does take a toll on your confidence. The fear persists not only in the initial days of your practice, but each time you have to face a judge and present your argument(s). It is imperative to create (or maintain) your good reputation in front of the judge and for that you ought to be well versed with your case, know the law, be on time, be confident, etc. all at once. 

Moreover, if you have multiple matters and court dates, it gets even tougher to manage and appear well in time, for each of them. It is safe to say that managing the “appearances” aspect of one’s legal practice is most crucial and demanding. However, with these tips, tricks and golden rules given below, you can easily ace your appearances and manage your court dates better than ever before. 

Be Prepared and Know your Argument(s) for the Day

The easiest way to ruin your reputation in front of the judge (and quite possibly your client) is by being unprepared for your case. It is a lawyer’s job to prepare well before you are called upon to present your argument. Think of it this way, if you know your case well (better than your opponent), you are already one step ahead. 

On most days, especially in the Indian Courts, you hardly have more than 30 seconds to convince the judge and get your point across. So you really need to be well versed with your argument for the day in order to avoid wasting time turning pages, fumbling and saying the unnecessary points. However, you need to keep in mind that you cannot simply read out your argument like a script and must listen to what the court has to say and answer the questions of the judge if any (even if they’re during your argument of course). You cannot let the judge feel like you aren’t paying attention to him/her. 

While preparing for the matter, think of what you would want to know if you were the judge. This approach could help you be concise, yet have all the necessary points in place. In case you have more than one matter in a day, ensure that you prepare accordingly – make tiny notes on different sheets of paper for each file, study them well so as to not mingle your facts and arguments, etc. 

Build a Network to Manage Multiple Court Dates

If you have multiple matters in a day, you often tend to reach late or in the worst case scenario – are unable to appear at all. It becomes even more difficult to handle the situation if these multiple cases are listed across different courts or in other cities/states altogether. 

Click Here

The best practice you need to undertake in order to avoid losing out on client trust in such times, is to build a network of advocates. Imagine having a friend or even an acquaintance (you could trust), in every court in the country. This way you would literally have someone to appear for you/represent your client, each time you get trapped into the “multiple court dates” scenario. 

Even though having a known lawyer in every possible court is a far fetched dream, it is not completely impossible – thanks to technology. ProxyLawyer by LawRato.com does exactly that. It can be used to find and hire lawyers in any court for any legal requirement such as adjournments, passovers, appearances, arguments, or for merely observing court proceedings. The service can be availed by downloading the ‘LawRato Partner App’ on mobile phones. It allows one to track lawyers by location in real time using the GPS tracker, thereby enabling lawyers offering their services to promptly accept requests. One can even directly contact the probable proxy lawyer as his/her contact details get shared with the lawyer requesting for such a service. 

This application even enables an advocate to sign up as a Proxy Lawyer and offer his/her services (for a fee) to other lawyers in courts of his/her choice. This move would definitely help lawyers to build their network along with their legal practice. 

Keep Track of all Your Matters

It goes without saying that you need to keep a track of all your matters and cases, their dates and what stage each is at. If you don’t keep a track, you’ll miss court dates and that is certainly not a good idea, since losing out on clients can cost you more than just your reputation and business. 

Several lawyers use the traditional court diaries to note the dates of hearings. However, nowadays, one can use the simple calendar app on their phones, along with several other apps that are available just for lawyers to track cases, access the court orders and receive reminders and notifications for the same. 

One great way to make your litigation practice easier and to track your matters if you practice in several courts is by taking dates of a certain court on a particular day. Say, for example, you keep aside your Mondays and Wednesdays for one District Court, your Tuesdays and Thursdays for High Court and your Fridays and Saturdays for another District Court. This way, you will not only end up saving time taken to travel, but will also avoid added confusion. 

Know Your Judge(s)

Each judge is different in terms of how much he/she wants to know, how much time he/she likes to give to each matter, if he/she prepares for matters beforehand, etc. These idiosyncrasies of each judge should be accommodated for. A lawyer’s ability to adapt to the judges would definitely turn out in the lawyer’s favour. If possible, you could ask other lawyers about these unique practices beforehand, thus ensuring lesser number of surprises and anxiety. 

Practice Ethically

There are several other golden rules that lawyers need to keep in mind while appearing in Courts and inculcate into their practice if they want to go a long way. 

• Be Professional and Civil: Your behaviour in the courtroom counts and there’s no two ways about it. You do not want to be thrown out of Court or get a contempt order against you. You ought to be civil, even with the opposing counsel (who may lack civility himself). You must also be respectful to the courtroom staff. 
• Look the Part: Dress smart and like a professional. Your first impression depends on how you’re dressed and shabby dressing could affect what the judge thinks about you before you even began speaking in the Court. You must have your Court and band in proper shape and in place. 

• Know the Rules and Follow Them: You need to know the procedural rules, the rules of evidence and the local practice (especially concerning your matter), or else you could sound like an ameteur without basic knowledge in the Court. 

• Be Confident: A lawyer has to make courageous decisions, sometimes, while standing in front of the judge. You may be inexperienced but you do not have to necessarily prove it. Being well prepared also helps you build confidence. 

• Always Be on Time: This is a cardinal rule, violation of which could cost you loss of reputation and your client. Tardiness is disrespectful to the Court and that is the last thing you want to be. You must keep in mind the potential delays (traffic, security, weather conditions, etc.) and factor them in your schedule. If in case you are still unable to appear on time, you must fall back to apps like that of ProxyLawyer (through the LawRato Partner App) in order to quickly arrange for a substitute to appear for your client for that particular appearance. 

The post Unable to manage your Court Appearances? Fret not, here’s what you need to do! appeared first on iPleaders.

Find and Study the trends from the previous three All India Bar Exams along with the analysis of the Tenth All India Bar Examination(AIBE) in AIBE: Bar Hacker Course.

Over the years significant tweaks have been made in the All India Bar Examination (AIBE) pattern. How has the paper evolved? 

For those who are scheduled to attempt the AIBE in August 2019, understanding recent trends are important. Given below is the detailed analysis of the question paper pattern in view of the past 3 All India Bar Exams. 

#1 – The Increasing difficulty level 

Many people consider the AIBE to be an easy exam merely because it is an open book exam, but that is not true. It gives the question paper framers tremendous leverage to ask you esoteric and difficult questions.

As you may know, the All India Bar Examination is an open book exam consisting of 100 questions. A time period of 3 hours and 30 minutes is provided to solve these questions. There is no negative marking for the wrong answers. 

That leaves about two minutes to attempt each question, and 10 minutes for any last minute review, or initial reading time.

While two minutes per question sounds like ample time, that is only true if you already know the answer or if you can quickly arrive at it through some quick calculations. When you search for the answer in your carry-in materials, two minutes usually get over really quickly.

There is also a large number of study materials to carry into the examination hall. To ensure your carry-in materials are not unwieldy, you need to carry a condensed set of material. You also need to learn how to find answers to each question in a short span of time. 

If you are not prepared and you have not practiced how to find the answers quickly, you may not make much progress in two minutes. You may also find the constant process of sifting through different books very exhausting. 

Over the years, there has been a shift towards concept-based and application-based questions for which understanding of the law is necessary. You cannot presume that you will be able to search for answers in the examination hall for such questions. You cannot expect to grasp a new concept and find an answer based on it in the examination hall. It is fanciful thinking. 

There has also been a greater focus on case-law based questions and emergence of general knowledge-related questions, as compared to earlier editions of the AIBE. 

If you are thinking of revisiting your LLB books and class notes (if you still have them) or beating yourself up for not paying attention in some class in the past  3 or 5 years of study, don’t. The books are voluminous, so you cannot go through all of them now. 

Classroom teaching is also irregular and inconsistent for different aspects, so going back to class notes will not help. The AIBE syllabus is more exhaustive. You need a different strategy to prepare specifically for this exam. 

Click Here

#2 – Conceptual Questions

In the last three AIBE question papers, almost equal focus has been placed on the Bare Acts and concept based questions. Bare Act-based questions have become more difficult and sometimes they are indirect. 

Examples of some concept-based questions are given below: 

Which is the correct statement:

1. There can be a will without a codicil
2. There can be a codicil without a will 
3. Every will has a codicil
4. A codicil proceeds will

(AIBE XI, Q.No.11, Set A)

This is a concept-based question. One can identify from the options that it is asked from the Indian Succession Act but it gets difficult to find the exact section during the exam because of the limited time available. Therefore, prior knowledge of law helps immensely while solving such questions.

Which Act is covering cyber crimes:

1. 1. Indian Telecommunication Act
   2. Indian Penal Code
   3. Indian Evidence Act
   4. Information Technology Act

(AIBE XII, Q.No.93, Set A)

Where the name of the statute is not mentioned, it is difficult to identify the Law, let alone the section, if you are unprepared. This is especially true because questions from each subject are no longer in a sequence. You will not find questions from Civil Procedure Code bunched together. A question on documentary evidence (Evidence Act) could be followed by a question on sentencing powers of courts (CrPC), followed by a question on compensation for illegal arrest (Constitutional Law). The combinations can be far trickier and on a quick glance you may be intimidated. 

Therefore, leaving preparation for the last minute because this is an open book exam would not be the smartest choice. 

The paper consists of a mixed bag of questions curated to test conceptual skills as well as one’s ability to retain the knowledge gained by studying law. For instance, even if the Law is referred to in the question and the section number is given in the options, still the application of basic knowledge of the Law or logic would be required to mark the correct answer. For example, consider the following question: 

Doctrine of “LIS PENDENS” is given under which section of the Transfer of Property Act:

1. 1. 41
   2. 52
   3. 53
   4. 53A

(AIBE XII, Q.No. 74, Set A) 

#3 – Focus on case law based questions

The weightage of case law-based questions has increased over the years. There were 10 case-law based questions in the AIBE XIII. 

The common practice is that the examiner asks questions based on the cases which have played a significant role in building the Indian legal system. Questions may even be asked from the cases which are being discussed in the news and hence, one needs to be abreast with the major judgements being delivered. For example, consider the following question:

Rupa Bajaj v/s KPS Gill, is a famous case which the Supreme Court decided on

1. Wrongful restraint
2. Wrongful confinement 
3. Outrage the modesty of a women 
4. Maintenance to the divorced women 

(AIBE XI, Q.No.81, Set A)

Although this is an old case, in 2017, KPS Gill’s demise had reopened conversations on this high profile case. The issue in this case was related to sexual harassment at workplace. 

Supreme Court has decided in Kesavananda Bharati v. State of Kerala that:

1. 1. Parliament can amend any provision of the Constitution 
   2. Parliament cannot amend any provision of the Constitution
   3. Parliament can amend any provision of the Constitution but cannot alter the basic structure of the Constitution
   4. None of the above

(AIBE XII, Q.No. 32, Set A)

Section 66A was invalidated by the Supreme Court of India in:

1. 1. Anvar P.V. Vs P.K. Basheer, (2014) 10 SCC 473.
   2. Shreya Singhal Vs Union of India, AIR 201 SSc 1523.
   3. Dr. Prafulla Desai Vs State of Maharashtra, AIR 2003 Sc 2053
   4. State (NCT of Delhi) Vs Navjot Sandhu, (2005) 11 SCC 600.

(AIBE XIII, Q.No.37, Set C)

Supreme Court decided in S.R. Bommai v/s. Union of India, 

1. Relating to the President’s Rule in the state
2. Relating to illegal detention 
3. Relating to the right to clean environment 
4. None of the above 

(AIBE XII, Q.No. 26, Set A)

Many of you may know the answers to these questions, but you must notice the shift towards testing candidates on the basis of knowledge of important case laws. BarHacker has prepared case lists on important subjects to provide last minute ready reckoners, called Hacksheets. You can print and carry these Hacksheets and refer to them during the exam. 

#4 – Illustration-based questions

Focus on illustration based questions has also increased. There were 9 illustration-based questions in AIBE XIII. In contrast, in AIBE XI and XII, there were 2 or less illustration-based questions.

Illustration-based questions have been asked from the Contract Act, Family Law and Indian Penal Code. So far, the focus has been to frame questions directly from the illustrations given in the Bare Acts, without identifying the statute. For example: 

“A” finds a purse with money not knowing to whom it belongs, he afterwards discovers that it belongs to “B” and appropriates to his own use. “A” is guilty of: 

1. Criminal breach of trust 
2. Cheating 
3. Criminal misappropriation 
4. Theft

(AIBE XII, Q.No. 87, Set A)

The above question is from Section 403, Indian Penal Code [illustration (c)]. 

Mohan gets married to his sister’s daughter Kriti:

1. The marriage is valid if the custom allows it 
2. The marriage is void 
3. The marriage is valid only if the Court approves it
4. The marriage is valid only if the Panchayat permits

(AIBE XI, Q. No. 84, Set A) 

This question highlights the concept of ‘custom and usage’ given under the Hindu Marriage Act. Section 2 of Hindu Marriage Act defines the expression “Customs” and “Usages”, and Section 5  of the Act lays down ‘Conditions for a Hindu Marriage’, Section 5 (iv) (iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two.  

 These set of questions require concrete preparation and concise reading material so that it is easier to revise the entire syllabus before the exam. A detailed understanding of the provisions is required to be able to solve such questions. You cannot expect to acquire such an understanding in the examination hall or even at the last minute. Advance preparation is necessary.  

#5 – Emergence of “current issues” and “general knowledge” based questions

There are questions based on current issues, general knowledge, historical events (related to law) in the AIBE paper. 

For example, climate change has been in the news repeatedly, and a question was asked based on the climate change conference in a prior Bar Exam.

The Convention on Climate Change was the outcome of:

1. The Stockholm Conference
2. The Nairobi Conference 
3. The Vienna Conference 
4. The Rio De Janeiro Conference 

(AIBE XII, Q.No.5, Set A)

Since a debate on Lokpal and appointment of Lokayukta was in the news, a question was asked regarding ombudsman in the exam:

The word ‘Ombudsman’ is derived from:

1. 1. French administration
   2. British Administration
   3. Swedish Administration
   4. German Administration

(AIBE XI, Q.No.15, Set A)

Although the number of such questions asked in the exam is not significant currently, we identify this as a new category of questions. 

How to prepare 

Preparation for any exam involves analysis of syllabus, past years’ question paper analysis and then creation of a preparation strategy.  

Your preparation strategy will involve answering the following questions:

• Which subjects to focus on first and which ones to focus on later?
• How to solidify your understanding of the concepts?
• How to familiarize yourself with the structure of the Bare Acts?
• How to prepare so that you can answer questions fast?
• How to develop proficiency in answering each type of question asked? 
• How to practice past years’ papers to identify where you stand? 
• How to build your confidence? 
• Which materials to carry into the examination hall?
• How to use the materials to find answers quickly?
• Which questions to answer first in the examination hall?
• What to do if something unexpected happens in the exam? (For example, if there are too many unfamiliar or difficult questions)? 

If you are preparing for the All India Bar Exam for the first time, this can be quite an overwhelming task, even if you have been a very bright student. The biggest challenge is in identifying the correct direction and sticking to the track. Most students who fail the exam are unable to cross this challenge.  

It is not necessary for you to cross this challenge on your own. This is where BarHacker can support you in your preparation. 

Tenth All India Bar Examination (AIBE) – An Analysis

The tenth All India Bar Exam took place last Sunday, and we are undertaking a short analysis of the paper.   

As with the earlier editions, the question paper had multiple sets, with a different question sequence in each set. The questions in each set were the same, but in a different order. Also, questions, so our strategy recommended earlier by BarHacker in the twenty hour preparation video to first identify questions pertaining to the same subject was fruitful.  

Overall distribution

There were 13 case law-based questions and 58 bare act based questions. Most of the remaining 29 questions were largely knowledge-based, which required you to have prior knowledge of some concept, other than case law-based knowledge.

Bare Act based questions

The bare act based questions were not always direct, and they required you to be familiar with the statutes that were part of the subjects prescribed in the syllabus. For example, look at the following question:

A perpetual injunction can only be granted by the decree at the hearing and upon the – 

69. 1. Demand of the party 
    2. Discretion of the court 
    3. Merit of the suit 
    4. None of the above 

Answer c (Section 39, Specific Relief Act)

To answer the question, you would need to know which act and tentatively which section deals with specific injunction. You needed to know that this was part of the Specific Relief Act.

Knowledge-based questions and their types

Apart from case-law based questions, several other kinds of questions which required you to have prior knowledge of a subject were there. In some cases, that knowledge was not statute based or concept based. 

For example, consider the following question: 

The objectives of the EU Directive on the mediation is: 

1. Reducing backlogs of cases at the courts in the member states
2. Dividing the cases between all the dispute resolution methods
3. Economical reasons in times of crisis, thus ensuring that mediators will have a better a proper income.
4. Ensuring better access to alternative dispute resolution in cross-border commercial conflicts. 

Broadly, knowledge-based questions were of various types, apart from case-law based questions – i) conceptual or ii) history based. 

Some questions pertaining to constitutional history were also knowledge-based. For example,  there was also a question based on a Philippines’-based law! Presumably, the rationale behind the idea to introduce knowledge-based questions is to make the exam difficult and unpredictable. 

There were very few application-based questions, which can test the application of legal skills acquired during law school.

Conceptual knowledge-based questions

Examples of knowledge-based questions testing your understanding of a concept are:  

Q. The right to equality before the law under Article 14, is subject to restrictions of

1. 1. Public order and morality
   2. Reasonable classification
   3. Reasonable restriction
   4. Reasonable situations

Answer b 

To make the criminal harmless by supplying him those things which he lacks and to cure him of those drawbacks which made him to commit crime is known as 

58. 1.  Expiatory or penance theory of punishment 
    2. Deterrent theory or preventive theory of punishment 
    3. Reformative or rehabilitative or corrective theory of punishment 
    4. Retributive theory of punishment 

Answer c

Constitutional history and knowledge-based questions

There were some knowledge-based questions pertaining to the constitutional history of India. For example, consider the following questions:  

In the Government of India Act 1935 , which subjects are included in the concurrent list ? 

•  Marriage
• Divorce & Arbitration 
• Criminal Law & Procedure  
• All of the above  

Answer d

Minto- Morley reform is associated to which act?

• Indian Councils Act 1912
• Indian Councils Act 1856
• Indian Councils Act 1908
• Indian councils Act 1909

Answer d      

Unclear questions

There are some questions which are either not clearly worded, or whose answers are not a clear match to what the question is seeking. For example, consider the following:

‘A’ does not fall under the clause of memorandum of association. ‘A’ here is :

• Subscription
• Director
• Capital
• Situation

Answer b (Although the subscribers are deemed to be the first directors of the company, there is no clause in the MOA pertaining to directors. An MOA contains clauses pertaining to all the above)

‘Subscription’ could refer to the subscribers or the subscribed capital. It could have also been a plausible answer as the memorandum does not mention subscribed capital (only the authorized capital is mentioned). However, since the memorandum mentions who are the subscribers of the company, we have not chosen this to be the correct answer.   

The parties which cannot be compelled to perform specific performances of contract are provided in which section of Specific relief act –

• 27
• 28
• 29
• 30

Answer d (Refers to restoration, and not specific performance, on the basis of equity, where a contract is rescinded) (From Bare Act) 

This question came from a law in the Philippines! This seems to be a knowledge-based question in administrative law. 

According to Republic Act No. 6770 these powers is not provided to office of Ombudsman

• Prosecutory power 
• function to adopt , institute and implement preventive measures 
• Public assistant functions 
• None of the above

Answer – Unclear (most likely option is b)

Q. In most EU member countries, which of the following is the most visible form of ADR?

• Mediation
• Arbitration
• Litigation
• Conciliation

Minor deviations in weightage from syllabus

In terms of number of questions pertaining to each subject, there were some deviations from the weightage in the syllabus, typically plus or minus 1 mark, as per the table below. We have also classified whether the questions were bare act based or knowledge based. 

Table 

Detailed weightage and distribution of different types of questions

Was it possible to pass?

Over the past years, bare act based questions have fallen in number, though they are still well over the 40 marks passing criteria. There has been increased focus on knowledge-based questions. We saw a lot of knowledge-based questions other than those focussed on  case-laws. In a way, the bar exam is probably just beginning to test your conceptual knowledge. However, there has been 

Considering there were 58 bare act based questions, if you just carried the bare acts pertaining to the syllabus and were familiar with how to use them, you would have passed. Those who had taken BarHacker would have found the paper to be relatively easy, with respect to clearing passing criteria.

 For your reference, the question paper can be downloaded from this link.

The post What’s new in the All India Bar Exam XIV along with Analysis of X AIBE appeared first on iPleaders.

This article is written by Anurag Verma, pursuing a Certificate Course in Companies Act from LawSikho.com. Here he discusses “Appointment, Role, Functions, and Removal of Company Secretary in India”.

Introduction

Similar to Hindu Religion which has 3 main deities namely Brahma, Vishnu and Mahesh, the corporate sector in India is aided by 3 powerful professionals – Chartered Accountant (“CA”), Company Secretary (“CS”) and Cost Accountant. In spite of the fact that CS’s have received statutory recognition almost 4 decades back[1], the role of a CS, its perception and its removal have changed a lot since its inception causing lack of clarity. This article discusses at length on the mandatory appointment of CS, role, and functions of CS along with the removal of CS.

Mandatory appointment of CS

As per section 2(1)(c) of the Company Secretaries Act, 1980 ‘Company Secretary’(“CS”) means a person who is a member of the Institute of Company Secretaries of India. CS has been defined as ‘Key managerial personnel’, in relation to a company[2]

S.203[3] of Companies Act, 2013 read with Rules 8 and 8A of Companies (Appointment and Remuneration of Managerial Personnel) Rules, 2014 provide that following companies must appoint a qualified company secretary – 

(a) Listed Company 

(b) Public company which have a paid-up capital of Rs.10 crores or more; 

(c) Other companies which have a paid up capital of Rs.5 crores or more. 

It is to be noted that the provisions of compulsory appointment of CS are not applicable to S.8 (licensed i.e. non-profit) companies.[4]

Process of appointment of CS – A CS shall be appointed by resolution of Board of Directors, containing the terms and conditions of appointment including the remuneration.[5]

Penalty for not appointing CS when mandatory – If any company makes any default in complying with the provisions of section 203, such company shall be liable to a penalty of Rs.5 lakh  and every director and key managerial personnel of the company who is in default shall be liable to a penalty of Rs.50,000 and where the default is a continuing one, with a further penalty of Rs.1,000 for each day after the first during which such default continues but not exceeding Rs.5 lakh.[6] Until 2-11-2018, the section provided for a fine which could be imposed only by Court but now, the penalty can be imposed by Registrar of Companies (“ROC”) who is authorized for this purpose. Earlier, the offence was compoundable but the procedure of compounding had to be complied with but now, directly penalty can be imposed.

Role and Functions of CS

The profession of CS began on a humble note in the late 19th century. There have been many instances of courts viewing CS as a clerk or even a servant in the past.[7] This view was changed by the landmark English decision of Panorama Developments (Guildford) Ltd v Fidelis Furnishing Fabrics Ltd[8]. Lord Denning MR observed that there has been a change in the role of CS’s over a period of time, they are no longer mere clerks and may sign contracts on the company’s behalf. Salmon LJ observed that CS is like ‘chief administrative officer’ of the company so he has ostensible authority regarding administrative matters.

This view has been incorporated in the Companies Act, 2013 which has included CS in the category of Key Managerial Persons.

Click Above

Functions

The functions of Company Secretary shall include the following u/s 205(1) of Companies Act, 2013 — 

1. to report to the Board about compliance with the provisions of this Act, the rules made thereunder and other laws applicable to the company;
2. to ensure that the company complies with the applicable secretarial standards;
3. to discharge such other duties as may be prescribed.

Other duties of Company Secretary – Other duties of Company Secretary, as specified in Rule 10 of Companies (Appointment and Remuneration of Managerial Personnel) Rules, 2014 such as guiding directors of a company, facilitate the convening of Board meetings, obtaining approvals, representing before regulators, assisting the Board in discharge of affairs including good corporate governance and such other matters as may be entrusted to him.

Record keeping and filing of returns – A CS is expected to maintain registers and keep records as are required under Companies Act. CS has to ensure that required returns and documents are filed with ROC in time as per legal requirements. CS has to coordinate between Registrars and Share Transfer Agents.

Demat shares – CS coordinates between depository and stock exchange in case of issuance of Demat shares.

Service to shareholder – A CS is expected to serve as a link between shareholders and the company. He has to ensure that shareholders get proper service, like transfer and transmission of shares, keep proper records of members, payment of dividend, rights/bonus issue, etc. He has to solve the difficulties and problems of shareholders and reply to their correspondence.

Meeting of members and board – CS is required to coordinate Board meetings and general meetings e.g. finalising dates, sending notices, making arrangement for meetings, advise Chairperson of meeting on legal requirements, etc. He has to draft minutes of meetings of members, the board of directors and committee of directors, get them approved by Chairperson, record the minutes and get them signed within the prescribed time.

Service to Board – CS is expected to provide services to the Board of Directors to enable them to do their work effectively. He should organise Board meetings, keep minutes, etc. If the Board of Directors is the brain of the company, the Secretary is the ears, eyes, and hands of the Board. He is expected to work as ‘friend, philosopher and guide’ of the Board of Directors to advise them about legal provisions. It is expected that he advises directors about their legal responsibilities. He should keep them informed of the company’s operations so that they can make effective decisions for the management of the company and ensure that provisions of the law are not violated.

Coordination between departmental heads and Board – CS is a link between the Board of Directors and other executives who have to function under overall supervision and control of the Board. He has to coordinate approvals required by various departments. He is also normally expected to advise other departments about legal requirements.

Secretary of the audit committee – CS will be secretary of the Audit Committee which is required to be formed by listed companies under SEBI’s listing agreement. He is appointed as ‘Compliance Officer’.

CS as Compliance Officer ofa listed company – As per Regulation 6 of SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015[9], the listed entity shall appoint a qualified company secretary as the compliance officer (not applicable to mutual funds). The CS should (a) ensure conformity with regulatory provisions applicable (b) coordinate with Board, stock exchange and depositories (c) ensure that correct procedures have been followed (d) monitoring email address of grievance redressal division for registering complaints by investors.

Conscious keeper – CS is often termed as ‘conscious keeper’ of the company. He should ensure that all legal requirements in respect of various laws are complied with and the company is a ‘good corporate citizen’, fulfilling its social obligations as well.

Additional duties – In addition to duties as CS, he is entrusted with additional duties like looking after legal, personnel, financial matters and even general administration.

Removal of CS

A CS can be removed/dismissed like other employees. Since he is appointed by Board, the removal can also be only by Board. The removal has to be in accordance with the employment agreement. A resolution from the Board would be necessary for removal. There is a need for clear and sufficient reason for removal. Principles of natural justice (“PNJ”) like Audi alteram partem, nemo judex in causa sua, reasoned order etc. need to be followed. A Secretary appointed for a fixed period can also be removed. If a Secretary resigns or is removed, the change must be filed with ROC within 30 days in e-Form.

Conclusion

Today as a key managerial person of a company at the centre of the decision-making process, the CS is in a powerful position of influence. CS assists and guides the directors and other key managerial persons in their pursuit of profit and growth and needs to act with integrity and independence to protect the interests of the company, its shareholders and its employees. Besides, he is expected to guide management in legal matters, particularly relating to corporate laws. Today’s CS plays a pro-active and central role in the governance of the company far beyond the traditional role of a compliance officer as required by various laws. To conclude, we can say that compliance with the law is the only key to success.

References

1. Company Secretaries Act, 1980 (w.e.f. from 1st Jan, 1981)
2. S.2(51) of Companies Act, 2013. Though he is not ‘managerial personnel’ for purpose of restrictions on managerial remuneration
3. S.203(1)(ii) of Companies Act, 2013 [corresponding to section 383A(1) of the 1956 Act] 
4. MCA Notification dated 5-6-2015 issued under S.462 of Companies Act, 2013.
5. S.203(5) of Companies Act, 2013 amended by the Companies (Amendment) Second Ordinance, 2019.
6. S.203(5) of Companies Act, 2013 amended by the Companies (Amendment) Second Ordinance, 2019.
7. K.A. Krishna v. Indo Union Assurance Co. Ltd. [1944] 14 Comp. Cas. 10 (Mad.)
8. [1971] 2 QB 711
9. w.e.f from 1-12-2015

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

The post Appointment, Role, Functions, and Removal of Company Secretary in India appeared first on iPleaders.

This article is written by Ramanuj Mukherjee, CEO, LawSikho.

I bet you do.

Are there people who love to talk about what you do, how you do it, and what you are up to?

Your first ambassadors are your parents. If you do anything remarkable, they will love to talk about that and spread that information among the relatives, their colleagues and friends. 

Do not underestimate the power of this. This is how the seeds of a brand are sown.

You need more and more of this to achieve big and lasting success in your career or profession.

You want your batchmates to be your ambassadors.

You want your employees or co-workers to be your ambassadors.

You want your clients to be your ambassadors. 

I had an epiphany a few years back. I realized that how successful we are in life is often the result of how many people want us to be successful. 

If 100 people in the world want you to be successful, your chance of success is quite high. Those people will contribute in small ways over time to an incredible success story.

What if there were 1000 people who wanted you to be successful? Won’t that be amazing? How big will success be in that case?

We all need supporters, ambassadors, and campaigners who genuinely care about our cause. In LawSikho, for example, the biggest reason we have a continuous flow of students month on month is that we have many supporters and ambassadors.

We have law firm partners, associates and successful litigators who help us to make amazing courses. They share knowledge and resources with us. They teach us. They help our students to get placed. They tell us to watch out for problems that they know are coming up.

We have students who benefited from our work and then tell their friends and peers. They ask their organizations to collaborate with us or buy our courses. They invite us to their college to give talks. They share their success stories with us to strengthen our marketing. 

We have supporters who never took any courses from us but still promote us in their circles. They say good things about us that help to strengthen our brand.

Click Above

What about you? What are you doing? Is it worth supporting and talking about? Who could be your ambassadors?

Tell me. I am all ears. Trust me, if you take 5 mins to think and write this down, and share it with me, you will be glad for many years to come.

In our Legal Practice Management Course, we teach you some methods about how to find supporters and ambassadors for your law practice. We show you the habits you need to create to build a lasting brand. 

Here are some other courses coming up in which you can enroll right now and start studying:

Diploma 

Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution 

Diploma in M&A, Institutional Finance and Investment Laws (PE and VC transactions) 

Diploma in Entrepreneurship Administration and Business Laws

Executive Certificate Courses

Certificate Course in Advanced Corporate Taxation

Certificate Course in Insolvency and Bankruptcy Code

Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting

Certificate Course in Legal Practice Development and Management

Certificate Course in Securities Laws, Insider Trading and SEBI Litigation

Certificate Course in Media and Entertainment Law: Contracts, Licensing and Regulations

The post Do you have Ambassadors? appeared first on iPleaders.

This article is written by Ramanuj Mukherjee, CEO, LawSikho.

We all know that do-it-yourself or DIY has become big business. Millennials love DIY.  For example, DIY home improvement market is forecasted to be 680 billion USD by 2025. That’s just 5 years from now.

What about DIY law? Is this possible? Is that a trend anywhere in the world? Would you not like to know?

I came across the potential of DIY law for the first time from one of our ClikLawyer clients. He called us for some advice from Aurangabad in Maharashtra. Then he asked if we can draft his consumer complaint, which he would then argue on his own. 

That was interesting. We were not going to provide any services in Aurangabad. However, here the client was interested in arguing his own matter but just wanted some guidance and drafting support so he could make his own case.

We did it, and the person got the relief he wanted. It worked out fairly cheap for him.

It is not as common for people to handle their own litigation themselves, though it often makes sense given how much lawyers charge and how little the average person trusts lawyers in India. 

However, a bigger market for DIY is in documentation – such as contracts and legal notices. I have an entrepreneur friend who drafts his own legal notices and settles his own disputes but calls me up beforehand to get some legal knowledge or to just confirm that he is on the right track. Sometimes he wants me to check out what he drafted too.

Here is a conversation we had recently, about a couple of months back.

Now I know a lot of you are getting worried and anxious, thinking that this is bad for lawyers.

I do not think so. It is not bad for lawyers at all. It is great. 

Most Indians do not ever hire any lawyers in their life. They do not engage with the legal system even when they have a problem. If DIY makes legal resources available to them, then it’s amazing, because the size of the pie increases at that point. 

And DIY doesn’t mean lawyers have no role to play. DIY litigants and clients will still need legal help. They will buy templates, pay for advanced research, use DIY tools built by lawyers, and pay for advice to get their ideas validated. 

So ride the horse in the direction it’s going, and don’t try to look the other way, because that’s the recipe for getting trampled. You are probably in its way, anyway!

DIY doesn’t mean the end of lawyering as we know. In fact, for many years, it will just be a trend on the horizon, a peripheral movement in all probability. This is what has happened in more advanced economies so far, which probably reflects on how things may play out in India over the years.

DIY law in the USA

It has been a trend in the US for quite a while, and while it has created a new way of pursuing legal recourse, it has not destroyed the legal industry as some may speculate or fear. There are several DIY legal service providers that have done really well, starting with LegalZoom, which is a listed company. RocketLawyer is a DIY document preparation platform that is funded by Google. FindLegalForms and LawDepot are also doing extremely well, and have really good reviews online. 

Here is a lawyer who earns his livelihood as a legal nomad by helping out self-ligating clients.

What does this mean for you?

I recently wrote about how the biggest change in the legal industry in the last two decades has been the empowerment of clients. Lawyers had it easier in the previous generation. If they owned a set of AIR and SCC volumes, that meant they had access to monopolized knowledge that clients could not access.

That has changed, as there are hundreds of blogs telling clients what they would like to know. Case laws are openly available on the internet, now even in local languages. 

That means clients spend time researching their own case on Google. They are likely to have read more case law than you have related to their particular matter. 

Hence, you cannot earn money simply by offering some basic advice. If your drafting is poor, the client will know. If you did not argue well in the court, the client can tell. 

And on top of that, there are people like us, training business executives on legal intricacies related to their business, and business folks love to learn the law. 

Hence, you have to really add value to your clients to survive and retain your clients. Average, unspecialized, low-skill lawyers survived and even thrived for hundreds of years, but the time is up. It is open-season on those lawyers. 

I think they have even started to feel the heat. I am writing about DIY law to emphasize on how deep, absolute and irreversible this change in power dynamics between the lawyer and the client is.

Click Above

The lawyers in the previous generation could survive by hook or by crook, even by fooling their clients. Those days are gone. You fool one client, he would write a bad review about you online, or even in a WhatsApp group, which you may come to know about only several months later or never at all. Even if you manage to keep bad reviews away somehow, word of mouth is going to keep you down. And the good lawyers will have tons of good reviews, positive word of mouth, strong and growing brand and will always be miles ahead because the growth of information technology means that goods words also travel far and fast.

That’s how it is. The new age of law practice is here.

There was never a better time to build ethical law practices that put the client’s interest first. There was never a better time to be at the forefront of educating your clients, building a system for delighting your clients at every step and building a relationship that is predicated on trust and quality of work.

We have a course that teaches you how to grow a law practice in an environment like that: Certificate Course in Legal Practice Development and Management

That changes one more thing. You need to keep learning and growing as a lawyer. There would be a massive premium on lawyers who have a cutting edge, cross-functional knowledge, and specialized expertise, apart from skills that are demonstrated in their track record.

Not learning anymore because you do not have time is not an option. It is as important, if not more important in the long run, as attending to the calls of a paying client. Those lawyers who keep learning and growing will be at the top of the charts.

What are the new legal skills you would like to learn? What skills and knowledge can help you to grow a bit better at your work, or take on new kinds of clients? Respond and let me know. I would love to hear your thoughts on this because I am always trying to figure out what are the courses I must build next.

Below are some radical, cutting edge, practical, skill development courses in which we are currently taking admission, up to 15th of September. I promise you will see the difference in the first month after joining, and if not, take 100% money back. Here is our refund policy.

So, details of the courses:

Diploma

Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution

Diploma in M&A, Institutional Finance and Investment Laws (PE and VC transactions)

Diploma in Entrepreneurship Administration and Business Laws

Executive Certificate Courses

Certificate Course in Advanced Corporate Taxation

Certificate Course in Insolvency and Bankruptcy Code

Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting

Certificate Course in Legal Practice Development and Management

Certificate Course in Securities Laws, Insider Trading and SEBI Litigation

Certificate Course in Media and Entertainment Law: Contracts, Licensing and Regulations

The post A glimpse of the future: the rise of self-litigation appeared first on iPleaders.

This article is written by Ramanuj Mukherjee, CEO, LawSikho.

No matter where you are in life, happiness is just a decision away.

However, it is not at all easy to switch to happiness when you are in distress. Happiness, in that way, requires practice. 

I had a Russian yoga teacher for about 5 months at the age of 30. Learning yoga from a Russian was very interesting because he did not teach in the way a normal yoga teacher will teach. He taught me Kundalini meditation, gave me massages that he claimed are based on Russian martial arts System, and constantly screamed at me when I was in pain doing difficult stretches, trying to stop myself from screaming when he rubbed out a muscle very hard or trying to keep at an exercise: smile, smile, see how beautiful life is.

He would take me into paddy fields and ask me to close my eyes and dance for an hour, on some occasions, while he played meditative music.

The entire point of his teaching, delivered in broken English, was that you must keep smiling no matter what you are going through.

And that is the crux of what I want to tell you today. Happiness can be a habit. Happy thoughts can be your default just as depressing thoughts can be. Having suffered from depression several times, this has been an enduring lesson in my life. 

But to make happy and empowering thoughts your default, or to make it a habit, you must practice happiness. You must switch from anxiety or grief to happiness a thousand times before it starts to become a habit.

 Click Above

And it is not easy to practice this when the default in your head is distress, pain, sorrow, negativity or hatred. A lot of times you may try and fail. The important thing is to keep trying until you succeed.

Break on through to the other side!

It may all sound crazy to you right now, but what if happiness was a habit that just required practice? What if it was possible to be happy no matter what rubbish is happening to you? What if you could be smiling when you endure difficulties and learn to enjoy even the worst pain?

I read about a certain military training once, where the recruits have to run up a hill every night with a huge load of arms and ammunitions. It is very, very painful. Especially because they are already tired and sleep-deprived for days.

So what do the soldiers do? 

They sing while they jog up the hillside. Their body is in extreme pain, their instinct is asking them to give up and crumble to the ground, but they sing and keep going.

Why sing? 

It is because when you sing happy songs, your brain gets a signal that you are happy that you are enjoying what is happening. The brain comes to believe that the soldier loves the unbearable pain.

And it does what it can to keep them going.

Our biggest battles are always with ourselves, and we have got to do whatever we can to win.

So learn to sing when you are in pain, smile more when you find it hard to keep going, learn to switch to happiness whenever you find yourself low or sad. It is probably the biggest lesson to learn in our lives.

Embrace the pain, but with a smile. Confuse the F out of your brain, and learn to love the grind of life. That is the only way to the top.

One of the best things you can do for your brain and your spirit is to go through a stimulating and challenging training. At LawSikho, we have very stimulating and challenging courses that you are going to love. Check them out.

Here are the courses in which we are currently taking admission.

Diploma

Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution

Diploma in M&A, Institutional Finance and Investment Laws (PE and VC transactions)

Diploma in Entrepreneurship Administration and Business Laws

Executive Certificate Courses

Certificate Course in Advanced Corporate Taxation

Certificate Course in Insolvency and Bankruptcy Code

Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting

Certificate Course in Legal Practice Development and Management

Certificate Course in Securities Laws, Insider Trading and SEBI Litigation

Certificate Course in Media and Entertainment Law: Contracts, Licensing and Regulations

The post Is Happiness a Habit? appeared first on iPleaders.

Find out the AIBE: Bar Hacker Course Hacksheet for the important principles of Administrative Law from our BarHacker Course if you are aiming for All India Bar Examination(AIBE).

Click Here

To  Study the trends from the previous three All India Bar Exams along with the analysis of the Tenth All India Bar Examination(AIBE) in AIBE: Bar Hacker Course. Kindly Click Here

The post BarHacker Hacksheet for Important Principles of Administrative Law appeared first on iPleaders.

Find out the important landmark cases on Public Interest Litigation which one must study for All India Bar Examination and an amazing quiz from our exclusive AIBE: BarHacker Course PIL.

Click Here

1. 1. Bandhua Mukti Morcha v. Union of India and Others AIR 1984 SC 802– The Supreme Court gave directions to end child labour. The orders eventually led to enactment of Child Labour (Prohibition and Regulation) Act 1986.
   2. M. C. Mehta & Another v. Union of India & Others AIR 1987 SC 1086– This PIL was filed after the oleum gas leak from Shriram Food and Fertilisers Ltd. complex at Delhi. The Court laid down the concept of absolute liability. 
   3. Sunil Batra v. Delhi Administration and Others AIR 1978 SC 1675– Case was with respect to reforms related to prisoner’s rights. There is no total deprivation of a prisoner’s rights of life and liberty. Court went further into the right to be protected from torture and the right to speedy execution.
   4. Hussainara Khatoon & Others v. Home Secretary, State of Bihar, Patna AIR 1979 SC 1369– Free legal services to the poor and the needy is an essential element of any ‘reasonable fair and just’ procedure. A prisoner has to seek his liberation through the court’s process, and thus, should have legal services available to him.
   5. People’s Union for Democratic Rights & Others v. Union of India & Others (1982) 3 SCC 235– The scope of Article 23 is wide and unlimited and strikes at “traffic in human beings” and “beggar and other forms of forced labour” wherever they are found. The word ‘force’ must therefore be construed to include not only physical or legal force but also force arising from the compulsion of economic circumstances which leaves no choice of alternatives to a person in want, and compels him to provide labour or service even though the remuneration received for it is less than the minimum wage.
   6. Sheela Barse v. State of Maharashtra AIR 1983 SC 378– The term ‘life’ in Article 21 covers the living conditions of the prisoners, prevailing in the jails. The prisoners are also entitled to the benefit of the guarantees provided in the Article subject to reason able restrictions.
   7. Dr. Upendra Baxi (I) v. State of Uttar Pradesh and Another 1983 (2) SCC 308 – Case regarding inhuman conditions which were prevalent in Agra Protective Home for Women. The court heard the petition on a number of days and gave important directions via which the living conditions of the inmates were significantly improved in the Home.
   8. Shri Sachidanand Pandey & Another v. The State of West Bengal & Others (1987) 2 SCC 295– State-owned or public-owned property is not to be dealt with at the absolute discretion of the executive. Certain principles such as public interest are to be observed. Whenever a problem of ecology is brought before the Court, the Court is bound  to bear in mind Art. 48 A and Art. 51A(g) of the Constitution.
   9. Kharak Singh v State of UP AIR 1963 SC 1295– Personal liberty is that which is the residue after taking out the freedom of expression under Article 19. Right to privacy is not guaranteed under Article 21. 
   10. Olga Tellis v. Bombay Municipal Corporation AIR 1986 SC 180– Supreme Court has held that the right to livelihood is included in the right to life because no person can live without the means of living i.e. the means of livelihood. This is the street vendors’ case.
   11. Citizens for Democracy v. State of Assam & Others (1995) 3 SCC 743– Handcuffing and chaining in public shall be shunned as violative of human dignity within and without prison.
   12.  M. C. Mehta v. Union of India (1997) 2 SCC 353- (Taj Trapezium Case)-SC ordered unconditional closing down of all brick-kilns located within 20 km radius of Taj and in the Taj Trapezium Area. This case also expanded concept of environment as including national heritage and also expanded scope under Article 32 since it said even foreigners have a right to enjoy our national heritage and thus, their rights must be protected.
   13.  D. K. Basu v. State of West Bengal (1997) 1 SCC 416– The Supreme Court laid down specific guidelines required to be followed while making arrests.
   14. Avinash Mehrotra v. Union of India and Others (2009) 6 SCC 398- the Supreme Court of India interpreted the right to education as inclusive of the right to the provision of a safe environment in schools, and imposed an obligation on schools to comply with certain fire safety precautions which were detailed in the judgment.
   15. Vishaka & Others v. State of Rajasthan & Others (1997) 6 SCC 241– The Court laid down guidelines and norms to be observed to prevent sexual harassment of working women. The judgment led to enactment of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
   16. Subhash Kumar v. State of Bihar and Others AIR 1991 SC 420- Right to life under Article 21 includes right to clean environment.
   17.  M.C. Mehta v. Union of India and Others (1988) 1 SCC 471– (Ganga Water Pollution Case)- Despite of sufficient provisions under the water act, the Kanpur Mahapalika did not take necessary steps to prevent pollution. SC issued directions to it for the same. Held rights of people residing near Ganga must be protected against pollution.
   18. Vellore Citizens Welfare Forum v. Union of India and Others AIR 1996 SC 2715– the Court discussed the concept of sustainable development as iterated in the Stockholm Declaration and Rio Declaration. Stated it is a part of international customary law. Emphasized on the need to balance development with ecological concerns. Also, ruled that Polluter Pays and Precautionary Principle are a part of the law of the land.
   19. Re. Noise Pollution AIR 2005 SC 3136– Freedom from noise pollution is a part of the right to life under Article 21 of the Constitution.
   20. Vineet Narain & Others v. Union of India & Another AIR 1998 SC 889– This case concerns the Hawala scandal in India, which uncovered possible bribery payments to several high-ranking Indian politicians and bureaucrats from a funding source linked to suspected terrorists. The Court laid down guidelines to ensure independence and autonomy of the CBI and ordered that the CBI be placed under the supervision of the Central Vigilance Commission (CVC), an independent governmental agency intended to be free from executive control or interference. 
   21. Centre for Public Interest Litigation v. Union of India and Another AIR 2003 SC 3277– This PIL arose out of misallocation of licences / radio spectrum by Ministry of Communications and Information Technology in January 2008 to provide 2G services. The licences granted to the private respondents and subsequent allocation of spectrum to the licensees were declared illegal and were quashed. Directions were issued for fresh grant of licences and allocation of spectrum for 2G services on the basis of fresh recommendations by TRAI.
   22.  Indian Council for Enviro-Legal Action v. Union of India and Others (1996) 5 SCC 281– Bicchri Case- Case by an NGO on behalf of the residents of Bicchri village against the chemical industrial plants producing toxic effluents. Government had not taken necessary action to protect rights of citizens to a healthy environment under Article 21, and thus, it falls upon the Supreme Court to intervene under Article 32. Imposed strict and absolute liability on the industrial plants, and issued other directions.
   23. State of M.P. v. Narmada Bachao Andolan (2011) 7 SCC 639– The PIL was regarding resettlement and rehabilitation of people displaced because of construction of Sardar Sarovar Dam. The court introduced a mechanism to monitor the progress of resettlement pari passu with the raising of the height of the dam through the Grievance Redressal Authorities (GRA) in each party state.
   24. Manohar Lal Sharma v the Principal Secretary (2014) 9 SCC 516– The Court declared the Coal allocation between 1993 and 2009 illegal, arbitrary, non-transparent and devoid of any procedure. 
   25. RK Garg vs. Union of India AIR 1976 SC 1559-  constitutional validity of Special Bearer Bonds (Immunities and Exception) Act, 1981 was under challenge on the ground that it made an unreasonable classification between persons who illegally evaded payment of tax as against those who abided by the law. SC upheld the legislation. Held that that morality was not an element to be considered while judging the constitutional validity of a statute.
   26. Mohd. Haroon v. Union of India (2013) 11 SCALE 675– the PIL was with respect to the communal violence in Muzzafarnagar and neighbouring areas and emphasized on the deteriorating condition of victims of these riots. The Supreme Court directed the State of U.P, to take immediate charge of all persons who are stranded without food and water supplies, and to set up relief camps providing all required assistance, in association with the Central Government.
   27. Ajay Bansal v. Union of India (2013) 7 SCALE 568-  the PIL was related to provisioning relief to people stranded in and around Gangotri river due to floods. The Supreme Court expanded the scope of the PIL so as to cover all affected areas of the State of Uttarakhand. The Court directed that for all affected persons, immediate relief will continue to be provided by district magistrates of respective districts by giving them food, medicine, drinking water and other essentials including fuel wherever necessary.
   28. Harshad J. Pabari v. State of Gujarat (2013) 3 GLR 258– the PIL sought a direction to authorities to take appropriate action against the responsible officer/staff for disclosing the identity of patients suffering from H.I.V./ AIDS by affixing a tape on forehead of patients with the words “H.I.V. seropositive” printed on it. The high court gave directions to end such unfair discrimination against H.I.V./AIDS patients by doctors including the nursing staff of a hospital. immediately.
   29. Laxmi v. Union of India (2013) 9 SCALE 290- the PIL highlighted the need for stringent regulations under the Poison Act, 1919 in respect of acid attacks on women. The Supreme Court gave measures for the proper treatment, after care and rehabilitation of the victims of acid attack and needs of acid attack victims, and compensation payable to acid victims by state or the creation of a separate fund for payment of compensation to the acid attack victims.
   30. S.P. Gupta vs. Union of India (1997) 3 SCC 433– The SC recognised the locus standi of bar associations to file PILs. In this case, they had legitimate interest in challenging the procedure for transferring judges.
   31. Inaction of Police in Lodging FIR’s in Offences Against Women v. State of U.P. (2013) 83 ALLCC 559- the Allahabad High Court took suo moto notice of inordinate delay on part of the police to register the FIR with respect to offences against women. The High Court held that it was the duty of the police to be aware of the statement, especially when it is given by the victim in an injured condition and to act on that basis if a cognizable offence is disclosed.
   32. PUCL vs. Union of India (1997) 3 SCC 433- The court recognized that the right to food was part of Article 21 and, therefore, justiciable. The government has a positive duty to help prevent malnutrition and starvation.
   33. Bachpan Bachao Andolan v. Union of India (2013) 7 SCALE 507– the Supreme Court issued a direction that in case a complaint with regard to any missing children was made in a police station, the same must be reduced into an FIR and appropriate steps should be taken to see that follow up investigation was taken up immediately.
   34. Dattaraj Nattuji Thaware v. State of Maharashtra 2005 (1) SCC 590- the Supreme Court of India stated that Public Interest Litigation has now come to occupy an important field in the administration of law and stated that PIL should not become ‘publicity’ or ‘private’ interest litigation. The court stressed the necessity of imposing ‘exemplary” costs on people for bringing frivolous petitions.
   35. Voluntary Health Association of Punjab v. Union of India (2013) 1 SCALE 383- the PIL complained of non-implementation of section 17 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 by the states and Union Territories and the failure to achieve its objectives. The court directed the health secretaries of the concerned states to apprise the court of the steps taken to implement the provisions of the Act and to make available the latest statistics of the number of cases booked for violation of the provisions of the Act, the prosecutions launched and the conviction rate.
   36. Research Foundation for Science v. Union of India (2013) 7 SCALE 497– the PIL pertained to the supply of potable drinking water to the eighteen identified areas surrounding the Union Carbide Factory in Bhopal. The Supreme Court had held that there should be a monitoring committee to oversee the part of the work being undertaken by the Bhopal Municipality for providing fresh drinking water.
   37. Kapila Hingorani v. State of Bihar, 2003 (6) SCC 1– A letter was admitted as PIL which brought Supreme Court’s notice to many incidents of death owing to starvation or malnutrition due to non-payment of salaries of the workers working in PSU corporations. The court pierced the corporate veil in this case and also held the State of Bihar liable.
   38. Municipal Council, Ratlam v. Vardichan (1980) 4 SCC 162– In this case, the court accepted the locus standi of the citizens of a ward to seek directions against the Municipality for taking remedial action under Section 133 of the Code of Criminal Procedure and putting an end to the nuisance caused due to open drains, pits and public excretion in the absence of lavatories. 
   39. G. Sundarrajan v. Union of India (2013) 7 SCALE 102– The PIL was filed against the setting up of power plant at Kudankulam. The court justified the setting up of the plant, by emphasizing on striking a balance between the ecology and environment on one hand and the projects of public utility on the other.
   40. Bodhisattwa Gautam v. Subhra Chakraborty (1996) 1 SCC 490 the Supreme Court suo moto awarded an interim compensation of Rs. 1,000 per month to a victim of rape. The court observed that a woman, in our country, belongs to a class or group of society who are in a disadvantaged position on account of several social barriers and impediments and have, therefore, been the victims of tyranny, at the hands of men with whom they, under the Constitution, enjoy equal status.
   41. Noida Enterpreneurs’ Association v. New Okhla Development Authority (2013) 14 SCALE 475 – the PIL filed to sought a thorough probe into the allotment of land and plots and the abuse of power by the functionaries of NOIDA after the arbitrary allotment of plot in NOIDA generated huge litigation in Allahabad and Delhi High Courts. The court directed all the persons concerned to show cause as to why allotments/alternative allotments made in their favour may not be quashed.
   42. News Item Hindustan Times A.Q.F.M. Yamuna v. Central Pollution Control Board and Ors., 1999 (5) Scale 418- The Hon’ble Supreme Court took suo moto cognizance of the news item on pollution of Yamuna river. Directed Central Board to conduct investigations in the cities of Ghaziabad, NOIDA and Modi Nagar with a view to having an assessment of environment impact and to the status of pollution due to generation of different types of wastes.
   43. Sector 14 Residents’ Welfare Association & Ors. Vs State of Delhi & Ors AIR 1999 SC 308- regarding the discharge of effluents from the Delhi territory through Shahadra/Gazipur drai which pass through various sectors of the NOIDA area. SC directed creation of committee to look into the issue.
   44. Vincent Panikurlangara  vs. Union of India 1987 SCR (2) 468- PIL for directions for implementation of an adequate central policy and establishment of a central drug standards authority, with suitable enforcement powers to ban “harmful and injurious drugs”. Held- “A healthy body is a very foundation for all human activities. In a welfare state therefore, it is the obligation of the state to ensure the creation and the sustaining of conditions congenial to good health.” The right to health was a part of the right to live with human dignity under Article 21.
   45. Rural litigation and Environment Kendra, Dehradun and others v. State of U.P. and others (1985) 2 SCC 431- the PIL involving issues relating to environment and ecological balance with implications to the welfare of the generality of people living in the country. The Supreme Court held that Article 2l covers the right to a clean environment and that the permanent assets of mankind cannot be allowed to be exhausted. 
   46. Bhartiya Janta Party v. State of West Bengal AIR 2013 Cal. 215 – the PIL challenged the validity of the decision of the Government of West Bengal to grant honorarium to the Imams and Muazzins of different mosques in the State of West Bengal. Held-the state could not patronise or favour any particular religion and reiterated that secularism is part of the basic structure of the Constitution. Thus, violation of Article 14 and 15(1) of the Constitution.
   47. Somdev Kapoor v. State of West Bengal (2013) 12 SCALE 434 – the PIL pertained to cancellation of temporary liquor license on the ground that it was not open for the appellant to run a liquor bar in the said restaurant which was in the vicinity of religious places. Rule 8 of the West Bengal Excise Rules, 2003 bans grant of a license for the retail sale of liquor or any other intoxicant at a new site which is within 1000 feet from any college/educational institution /religious places. Both High court and Supreme Court allowed the PIL, while directing the excise department not to renew the license.
   48. Khatri v. State of Bihar 1981 (1) SCC 627– A writ petition was filed in the Supreme Court contending the violation of fundamental rights of prisoners in Bhagalpur Central Jail under Articles 14, 19 and 21 of the Constitution, and the court came to their rescue. The court stressed on the need for implementing public interest litigation in very explicit terms stating that the court should be prepared to forge new tools and devise new remedies for the purpose of vindicating the most precious of the precious fundamental right to life and personal liberty.
   49. Parmanand Katara v. Union of India 1989 (4) SCC 286 -the Supreme Court accepted the application by an advocate which highlighted a news item titled ‘Law helps the injured die’. The supreme court in the context of medico-legal cases, has emphasised the need for rendering immediate medical aid to injured persons to preserve life and the obligations of the State as well as doctors in that regard.
   50. In Re: Regularization of Class IV Employees (2013) 8 ADJ 43– the suo moto PIL by the Allahabad High Court, examined the legality of the regularization of 355 daily labourers working in Allahabad High Court. The high court was of the view that though in service matters, PILs were rarely admissible, in the present case, it was the cause of the high court itself that had been noticed by the judges for resolving an intricate problem relating to the workforce of the high court. 

Cases explaining locus standi for PILs

1. Bar Council of Maharashtra v. M. V. Dabholkar and Others 1976 SCR 306.
2. Mumbai Kamgar Sabha, Bombay v. Abdulbhai Faizullabhai & Others AIR 1976 SC 1455
3. S.P. Anand v. H.D. Deve Gowda and Others AIR 1997 SC 272,
4. D.C.Wadhwa v. State of Bihar 1987 SCR (1) 798
5. Fertilizer Corporation Kamgar vs. Union of India (AIR 1981 SC 149
6. Hussainara Khatoon & Others v. Home Secretary, State of Bihar, Patna AIR 1979 SC 1369

Quiz 

1.) Interpretation of which of the following Article has gives rise to Environmental PILs in India? 

A.) Article 21 

B.) Article 23 

C.) Article 24 

D.) Article 10 

2.) PIL in Supreme Court can be filed under which Article of the Constitution? 

A.) Article 32 

B.) Article 226 

C.) Article 227 

D.) Article 136 

3.) PIL can be directly filed to Supreme Court 

A.) Yes 

B.) No 

C.) Yes, only in cases of pollution 

D.) Yes, only in cases related to poverty schemes 

4.) Indian judiciary introduced the concept of PIL in which of the following cases? 

A.) Maneka Gandhi v Union of India 

B.) ADM Jabalpur v. Shivakant Shukla 

C.) SP Gupta v. Union of India 

D.) None of the above 

5.) Which of the following case relaxed the rule of locus standi? 

A.) Golakhnath v. State of Punjab 

B.) Sheela Barse v. State of Maharashtra 

C.) Bar Council of Maharashtra v. M. V. Dabholkar 

D.) None of the above 

6.) In which of the following cases a Public Interest Litigation was filed against Ganga water pollution? 

A.) MC Mehta v. Union of India 

B.) PUDR v. Union of India 

C.) Lilly Thomas v. State of Uttar Pradesh 

D.) None of the above 

7.) Which of the following scam was unearthed by a Public Interest Litigation? 

A.) Fodder Scam 

B.) 2G Scam 

C.) Bofors Scam 

D.) None of the above 

8.) Which of the following PIL case made provisions for seperate lock-ups for women? 

A.) Veena Sethi v. State of Bihar 

B.) People’s Union for Democratic Rights & Others 

C.) Sheela Barse v. State of Maharashtra 

D.) None of the above 

9.) Which of the following Public Interest Litigation case mandated 27% reservation for OBCs? 

A.) Indra Swahaney case 

B.) Hussainara Khatoon case 

C.) Sunil Batra case 

D.) None of the above 

10.) Which PIL case established right to pollution-free environment as a fundamental right? 

A.) MC Mehta v. Union of India 

B.) Subhash Kumar v State of Bihar 

C.) Council For Environment Legal Action v/s Union of India 

D.) None of the above 

To find more study material for administrative law for All India Bar Exam, please click here.

The post BarHacker: Leading Indian Cases and Quiz on Public Interest Litigation for AIBE appeared first on iPleaders.

This article is written by Varun Barma, pursuing a Certificate Course in Companies Act from LawSikho.com. Here he discusses “Significant Beneficial Owner”.

Introduction

This term ‘Significant Beneficial Owner’ (SBO) comes generally based out of the ownership rights a particular individual, shareholder or stakeholder has in a company, organization or corporate. It has been largely noticed in the circumstances where the significant beneficiary ownership of a particular person is being taken into concern then the first things which are looked at are the individual’s percentage of shares held in the company , the percentage of voting rights that particular person has in a company and also how much is the person allowed to participate in the event of distribution of dividend by the company plus how much of that dividend is this significant beneficial owner entitled to keep.

The compliances under the law for this purpose are laid down under section 89 and section 90(1) of The Indian Companies Act, 2013. Due notices are required to be given to various authorities such as the Registrar of Companies or ROC, the National Company Law Tribunal or NCLT. Also along with these certain declarations are mandatorily required to be made by the concerned significant beneficial owners and certain forms are needed to be filled up such as BEN-1 BEN-2 BEN-3 and BEN-4. Since we are looking at the number or percentage of shares held by a person in a company we must make note that these shares include Equity Shares, American Depository Receipts (ADR’s), Global Depository Receipts (GDR’s), Compulsorily Convertible Preference Shares (CCP’s) as well as Compulsorily Convertible Debentures (CCD’s). 

As per the law, an individual either solely or together with someone or trust must hold more than 25 % of the shares of the company plus must individually at least hold 10 % of the shares of the company and must control more than 50 % of the decisions of the company along with similar voting powers.

There needs to be a law on significant beneficial owners because it is important to identify the individuals who hold the maximum shares in a company and due regulation must be carried out for them separately as through the assessment of their performance one may be able to get a clearer picture of the future health and performance as well as well being of the company.

One primary reason for regulation of SBO’s is to find out their tax liability in comparison to the whole company and also the level of influence that one particular individual has on the decisions made in the company. This would help in the prevention of evasion of corporate taxes. Apart from this, it shall help to stop the undue influence of significant beneficial owner in the company on the other members.

The Central Government has the power to appoint inspectors to investigate into the matters and affairs of the company for the purpose of deciphering who the significant beneficiary owners are in the company and whether they meet the requirements under the Companies Act, 2013. The true beneficiary owners need to be known and not the wrong ones, which amounts to the detection of fraudulent activity within the company, well this is another reason where regulation is needed for SBO’s.

These investigating inspectors shall report on the matters of the company and gather information about its membership.

Four Essential Points to be noted for Identifying Beneficiary Owners

An individual alone or along with another person acting in concert or an individual along with a trust must possess any of the following four rights or entitlements :

1. Must hold more than ten per cent (10 %) of the shares.
2. Must hold more than 10 % of voting rights in respect of shares.
3. Must have a play or direct participation in at least 10 % of the dividends distributed by the company.
4. Must have major influence or a very large or significant amount of control and authority in the company other than the individual’s shareholding.

Declarations that are mandatorily required to be made by SBO’S

An SBO must significantly as per law submit a declaration to the concerned reporting company by filing Form  No. BEN – 1 within 90 days from the 8th day of February of the year 2019.

Any individual or person who when becomes an SBO and his ownership undergoes a transformation or changes then that particular individual must make a declaration of such change in Form No. BEN – 1 within a stipulated period of 30 days from the day or date he or she attains such significant beneficial ownership.

Due clarifications are also required to be reported and declared by SBO’s in general as well as in special cases wherein the period of 90 days or 30 days has expired or the declaration has been filed after the expiry date, clearly stating the reason of the delay.

Click Above

Set of Steps or Actions taken by Regulatory Authorities for the purpose of Regulating SBO’S and the Aspects of their Ownerships

ACTION 1 –  Company must ensure or verify that whether any person who is not an individual and is still holding more than 10 % of the shares, rights to vote, right to gain participation and involvement in the activity of distribution of dividends being given by the company, in the relevant financial year.

ACTION 2 – Due notices must be sent or are needed to be sent to these non – individuals in Form No. BEN – 4 thereby to extract information of the real or true significant beneficiary owners of the shares.

ACTION 3 – The receipt of the duly filled forms from the non- individuals who hold more than 10 % of the securities in the requisite format as mentioned in Form No. BEN – 4. This must happen within a due period of 30 days from the date of the notice mentioned in Form No. BEN – 4.

ACTION 4 – Attainment of Form No. BEN – 1 from the significant beneficial owner within 90 days from the date of initiation of these rules that is on the 9th of May, 2019.

ACTION 5 – Due filing and filling up of E-Form or Electronic Form No. BEN – 2 with the ROC or Registrar of Companies by the company. This step must be taken within 30 days of deposit of Form No. BEN – 1 by the SBO.

ACTION 6 – There is a specific register that is required to be kept in Form No. BEN – 3.

Certain Points Highlighted Form No. BEN-2

When the Subsidiary or the Wholly Owned Subsidiary company of the holding company files the SBO.

The SBO for the subsidiary or wholly-owned subsidiary will be the same SBO which was declared by the ultimate holding company.

The persons acting together also known as persons acting in concert, taking into due notice the indirect control along with the direct control in the reporting company is to be considered as SBO.

The idea of SBO got conception from 8th February 2019, when the revised rules were notified.

Hence the date shall be mentioned as “08th February 2019”.

The date when the individual declared as SBO in BEN-1 form, will be considered as the date of declaration under section 90(1).

The entire stake of the member in the reporting company shall be considered as a percentage which each SBO is holding.

In case of a Hindu Undivided Family or HUF, the Karta will be termed as the significant beneficiary owner.

The minor shall be holding the shares indirectly while the major or Karta shall be holding the stocks or securities directly. 

Incorporated Section 8 Companies are not trusts as they are incorporated with a separate intention and a different motive besides they are formed under the Companies Act, 2013 hence the laws relating to trusts are not applicable to them.

The date when a certain individual is declared as an SBO must be duly disclosed in Form No. BEN – 1.

In the circumstance of two SBO’s or more than one SBO, there is no need of computation of ratio of holding of each SBO in the company but simply their percentage of shareholding in the company will be considered as their portion of major holding in the company.

In another attachment, it is required by law to disclose in Form No. BEN – 2 that the shareholding of the member is for all SBO’s and not segregated amongst them.

In the special case where there are more than 9, SBO’s company may disclose the same in Form No. BEN – 2 thereby disclosing the additional SBO’s a reporting company has or separate filing can be done for the other SBO’s under Form No. BEN – 2.

Preference shares do not form part of equity shares as they do not carry any voting rights attached to them.

Change of holding of any SBO as when compared to the inception date which is 8th February 2019 is required to be disclosed in Form No. BEN – 2.

Partially and wholly-owned subsidiaries must file BEN 2.

Conclusion

The very basis of finding out as to who is a significant beneficiary owner in an organization enables a particular investor to know the background of the organization.  An outsider may gain a snapshot of the company’s future potential. It also makes it clear as to who is in control of the administration and what level of power can be used by the person in concern, with relation to the daily economic activities carried out by the business. It enables a person to know the scope of becoming a significant beneficiary owner as well as, to gain knowledge of the due diligence and compliance required to be undertaken in case one becomes a significant beneficiary owner themselves.

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

The post Significant Beneficial Owner appeared first on iPleaders.

This article is written by Harsh Amit Bhatt, pursuing a Certificate Course in Real Estate Laws from LawSikho.com. Here he discusses “Five Specific Permissions Required to Construct a School Building in Mumbai”.

Introduction

The population in India is increasing at a very fast pace. The last four to five decades have especially seen tremendous growth in the human population. To make this new generation efficient, educating the new generation is the key for the bright future of our country. Schools in India will play a very significant role in empowering children to maximize their potential which will influence reform in the future generation in India. The need for schools all over India is very high. If a person wants to get into the system of education now is the right time to do so. While there is a huge demand for schools, the numbers of schools aren’t enough to meet the demand. Therefore there is a huge market open to the private players to up the standards in not only creating the volumes but also helping to improve the quality of education. But, a lot of people must be pondering the idea to start a school and many of them would be skeptical about the requirement of permissions and licenses to start a school in India. This article will list out the five (5) important permission which will be required to start a school in Mumbai.

• Formation of Society / Trust / Section 8 Company 

In India, schools are considered as a non- profit initiative. As per law, a private organization cannot open a school in India. The school has to be operated by the society according to the Societies Act 1860, or a trust that has been created under the Public Trust Act as per the states.

A private entity willing to set up a school in India can form a company under section 8 of the companies act, all the above legislations ensure that school is set up as a non – profit making body.

All the above laws state that the entity willing to set open the school needs to create a Society, Trust or a Section 8 company which comprises of governing board that has five to six members. These all entities have a president, a secretary, and a chairman who are officially announced.

There is more to establish a school then setting up a Society, Trust or a Section 8 company in India, setting up an infrastructure that comprises classrooms, laboratories, computing labs, and library. The entity willing to establish the school needs to get the licenses and permissions from the relevant authorities.

• Procurement of land or Change of land use document on which the school building is going to be established  

In case if the entity wants to buy land from the government for the school the entity will first require to procure no objection certificate (NOC) which is also referred to as the Essentiality Certificate (EC) from the Mumbai University which is the department of the education in Mumbai. Which is formed under the Bombay University Act, 1953. The Essentiality Certificate is issued by the Directorate of Education (DOE). An Essentiality Certificate is an important document that certifies the requirement of a school in a particular zone. The Directorate of Education (DOE) checks the requirement of school in a particular area by inspecting a particular zone and accordingly finalize the license. The No objection certificate from the Directorate of Education (DOE) makes sure that particular zone has a proper balance of schools. After obtaining Essentiality Certificate (EC) from the Directorate of Education (DOE) the entity shall start the construction of building the school within 3 years of obtaining the Essentiality Certificate if it fails to do so then the particular entity have to reapply to the Directorate of Education (DOE) for Essentiality Certificate (EC).

After obtaining an Essentiality Certificate (EC) from the Directorate of Education (DOE) the concerned entity can then go to the Municipal corporation of greater Bombay (MCGM) which is also called Bombay Municipal corporation (BMC) for procuring the land after receiving  Essentiality Certificate (EC). According to the law, the Municipal Corporation of Greater Bombay (MCGM) has to provide the land to the entity at the subsidized rates. 

In case of any member of the entity has his land and wants to build a school over there, that individual will be required to get the No objection certificate (NOC) from the state department of education. The landowner has to provide in writing to the Directorate of Education (DOE) about his intent and requirement of school in the area where they want to set up the school on the application for No objection certificate (NOC). After obtaining the NOC the landowner shall file an application before the district collector office of Mumbai for change of land use certificate. The collector will then within 7 days acknowledge the application and send a copy of the application to the tehsildar or the revenue clearance and technical clearance. Within a month tehsildar will investigate in the title of the land certify the revenue clearance and technical clearance and give a clearance report to the collector. The collector then will issue an order for conversion of land by paying a prescribed fee. As the conversion of land for educational purposes is exempt from tax the applicant will not have to pay tax for the conversion of land, the collector will issue a certificate for the conversion of land with certain conditions. And the collector will order the tehsildar to change the particulars of land by making necessary entries. After the entries are made as and will be granted to the holder of land which will include an agreement between the holder of land and the government stating the conditions for a change of land use. Sanad is the evidence of the land title. 

Click Above

• Approved site plan for the school building and certificate of recognition

To obtain the approval of the site plan for the school building and certificate of recognition an affidavit has to be submitted to MCGM/BMC stating the details of the site plan of the building of the school with all relevant documents such as purchase of land or ownership, along with the master plan of land stating that there is no violation of master plan for the use of land and no encroachment has been done during the construction of the building. After filing the affidavit within 60 days the inspection of the site will be done by the inspectors of the MCGM/BMC and provide the certificate of recognition, it is a certificate issued by the municipal authority to get the school recognized in a particular area. It states the existence, the validity of the school in a particular area.

• Affiliation and other formalities

The school has to get affiliate itself with the education board such as the state government boards, Central Board of Secondary Education (CBSE) and the Council for the Indian School Certificate Examinations (CISCE) these boards have laid out specific guidelines to be followed for setting up of school facilities. One is to have a fully functional and well-equipped sports facility and playground. 

These education boards have laid down step by step process and they are transparent in nature. Affiliation is usually granted by following the checklist which has been laid by the educational authorities. These following details must be sorted before going into operations for affiliation these includes – 

Documents of sale and purchase of land – Documents of land such as title certificate or change of land use and which have been received from the district collector have to be attached for the affiliation formality.

Detail plan for construction of the building – The master plan for the building which has been approved by the municipal authority and clearance certificate which have been provided after the verification of the site, has to be attached for the affiliation formality.

Affidavit of a non-proprietary charter of secretary – An affidavit has to be provided for stating that the entity of the school is distinct from its members as it is a non- proprietary charter of secretary.

Fire safety certificate– Fire and safety certificate is provided by the fire department after the inspection is to be provided for the affiliation formality.

Health and sanitation safety certificate – Health and sanitation safety certificates are provided by the local authority ie. MCGM/BMCafter checking the safety and hygiene level of the school, quality of food in the canteen and cleanliness of the sanitation is taken into consideration before providing health and sanitation safety certificate.

Building safety certificate – It is mandatory for all schools to have a building fitness certificate. This certificate is provided by the MCGM/BMC. This fitness certificate is provided after checking the construction quality of the building, space, and ventilation of each classroom and proper fire safety equipment, etc. are taken into consideration before providing building safety certificates.

Police Verification Report of all school staff & Safety audit report from Local Police Department – This report is obtained from the local police station, verification of the school staff is done by the police department and safety report is provided by the police department after inspecting the safety of the nearby vicinity.

These are some of the documents which have to be ready before applying for the affiliation in any education board for fast and smooth approval for affiliation.

• EPS & ESIC permission and registration

Registration for EPS and ESIC is compulsory for all the companies/organization who employs more than 20 individuals, every company/organization who employs more than 20 individuals are expected to register themselves within one month of attaining the minimum strength of 20. 

For opening an EPS & ESIC account the following documents are required- Name of the company,Date of the setup of the organization, Scanned copy of the company’s PAN, Scanned copy of the licenses available in the name of the company, Scanned copy of cheque of company’s bank account, Address of the company with address proof, List of Directors / Partners, Address proof of Proprietor / Director / Partner of the company, Email address, Mobile Number of Proprietor / Director / Partner of the company, Copy of First sale bill / Job work bill and First purchase bill, The monthly strength of employees from the date of setup, Current list of employees with their details: Name, Father’s Name, Date of joining, Date of birth, Mobile number, Postal address, Name of nominee, Grade, Salary, Designation, ID proof (Aadhaar and PAN), Bank A/c number with IFSC code, Digital Signature of the Proprietor / Director / Partner.  

These are the list of the five permissions and licenses required to start a school in Mumbai, all these five permission and licenses will be more or less the same in all the states in India.

Conclusion

Opening a school requires a good amount of time and investment. One needs to appoint a well-experienced lawyer to take care of all approvals required to complete the procedure of permissions and licenses in time. At least 3-4 years will be needed to complete the overall work of construction and getting all the approvals and affiliation from the day of foundation ceremony. Running a school is a challenging task it requires an investment of time, resources, capital, and human labor. 

But it has its own advantage where after the construction of a school building, it will be serving the society by imparting education, employing people, and staring a beginning of a journey where new minds are nourished and where transformation from a shy student to a confident public speaker is promoted, empowering children to be independent decision-makers which instills the quality of an independent thinkers. 

The capital investment being huge also reflects the return on investment in time future. After a few years, one can expect profit out of it. Based on one’s skills of running a school one can expect decent returns.

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

The post Five Specific Permissions Required to Construct a School Building in Mumbai appeared first on iPleaders.

In this article, Ayushma Sharma of Faculty of Law, Aligarh Muslim University has discussed the Law Commission of India and the reports released by it.

Law Commission Meaning

The Law Commission is a commission established to ensure that the laws established are just and fair and that it works towards their implementation. The Law Commission of India is a non-statutory body constituted by the Indian Government every three years. The Indian Constitution does not define a law commission but its formation can be seen as a way of implementing Article 39 A of the Indian Constitution which directs the State to ensure operation of the legal system promotes justice.

It can be referred to as an ad hoc body, which means it is constituted for the fulfilment of a particular purpose. Though the First law commission was created in 1834 during the British rule under the Charter Act of 1833, yet its original constitution is considered being in the year 1955, i.e., after the independence of India. Also, it advises some law reforms to the Ministry of Law and Order.

History of the Law Commission of India

Since the independence of India, i.e., after 1947 there have been twenty-one law commissions. The last commission was the 21st Law Commission of India which was established in September 2015 under the chairmanship of Justice Balbir Singh Chauhan, a former judge of the Supreme Court. Its term came to an end on August 2018. 

The 22nd Law Commission has yet to be formed. The first post-independence Law Commission of India was established in 1955 and was headed by Mr. M.C. Setalvad. It continued for three years, and it gave its last report in September 1958. Some of its reports were related to the Income Tax Act, 1922, Partnership Act, 1932, Sale of Goods Act,1930 and Registration Act, 1908. Some law commissions were also established during the British Rule. 

The first pre-independence law commission was established in 1834 through the Charter Act of 1833, and Lord Macaulay was the head of this law commission. After this, three more law commissions were acknowledged in the year 1853, 1861 and 1879.

How Law Commission is established?

A law commission is created when the central government passes a resolution for the formation of a new law commission after the expiry of the previous one. After the resolution is passed, and the President gives his assent to it, the government has the liberty to choose the chairman of the new commission formed.

After seeing the tradition followed in the previous commissions, it can be concluded that it is always a former judge of the Supreme Court who heads the commission.

What is the  composition of the Law Commission?

A law commission comprises legal experts appointed by the Central Government to promote justice in society. The government either makes a remark about an issue or the commission suo–moto (on its own motion) takes an issue and starts working on it. 

Generally, a law commission consists of:

1. One chairman
2. One permanent member
3. One member secretary
4. Six part-time members

The last law commission, i.e., the 21st Law Commission composition, was as follows:

1. A full-time chairman
2. Four full-time members (including a member secretary)
3. Secretary, Department of Legal Affairs as an ex officio member 
4. Secretary, Legislative Department as an ex officio member
5. Not more than five permanent members

According to the Law Commission of India, the staff is divided into two parts, one part is the research panel holding different positions while the other part is the secretarial staff looking after the Commission’s administrative work.

The term fixed for the law commission is five years and suggests reforms to the Ministry of Law and Justice. 

Importance of law commission

Sometimes only making laws is not sufficient, some authority must be there to check its implementation, to check if it’s actually beneficial for the society, or are there any flaws which are to be corrected, or are the laws required beyond a particular period, or if a law needs to be repealed. An authority has to be there to check all these situations.

So, law commission covers all these cases so that it can, along with the Ministry of Law and Justice, ensure that peace prevails in the society and justice is being delivered to people.

The Indian Constitution does not say anything about the formation of law commission or what it actually is. But at some places, it makes an indication of the existence of some authority that would ensure the promotion of justice, like in Part III and IV of the constitution i.e., Fundamental Rights and Directive Principles of State Policy respectively.

As per Article 39 A of the Indian Constitution, it state’s duty to promote justice by providing equal opportunities, free legal aid through suitable schemes. The State has to ensure that justice is not denied to any on the basis of any disability.  

In a way, the main reason behind the formation of the law commission is the directions issued by Article 39 A. Also, as per Article 372  it was necessary that some authority existed to repeal, amend and revise laws, and to see if they are actually required.

It is necessary to keep pace with the changing needs of the time, and that can be possible only if someone is there to keep themselves updated. 

Evolution of law commission in India

At the time of British Raj, the authorities had to deal with two sets of law: the local laws and the laws introduced by the Britishers. In the case of local laws, the old customs and traditions become laws, and the new British laws were mainly focused on increasing their control and power in the areas they exercised their rule.

Having two different sets of rules and regulations created a setback for them to run a proper administration. There was no uniformity in laws, and at some point of time they became contradictory to each other. 

People then started looking for various options through which the issue could be resolved. Later on, it was decided that a commission should be set up to enhance the uniformity in laws. Thus, a law commission was established in 1834 through the Charter Act of 1833. 

The commission had the liberty to interpret laws, and in case of default it could introduce the required changes in it.

Pre-independence law commission in India 

Before the independence of India, laws were derived from the previous customs and traditions. There was no authority to check their legality and authenticity. Also, having laws running in two different directions created a hindrance in running the administration.

So, law commissions were set up to boost the legal system of India.

Following are the law commissions that were introduced before the independence of India, including the reports prepared by them.

Law Commission in independent India 

India, after its independence, faced a new phase of legal system. This time the focus was on improving the legal system of India. India was declared a Democratic country, laws were now made from a perspective that kept public interest and welfare at top.

Therefore, when Article 372 stated that the previous laws (pre-constitutional laws) would be followed until replaced or repealed,  law commissions were established so keep laws in check.

Following are the post independence law commissions that have been established so far.

•  First Law Commission 

Duration – 1955-1958

Chairman – Mr. M.C. Setalvad

Number of Reports presented – 14

• Second Law Commission 

Duration – 1958-1961

Chairman – Justice T.V. Venkatarama Aiyar

Number of Reports – 08

• Third Law Commission 

Duration – 1961-1964

Chairman – Justice J.L. Kapur

Number of Reports – 06

• Fourth Law Commission 

Duration – 1964-1968

Chairman – Justice J.L. Kapur

Number of Reports – 10

• Fifth Law Commission 

Duration – 1968-1971

Chairman – Mr. K.V.K. Sundaram

Number of Reports – 06

• Sixth Law Commission 

Duration – 1971-1974

Chairman – Justice P.B. Gajendragadkar

Number of Reports – 17

• Seventh Law Commission 

Duration – 1974-1977

Chairman – Justice P.B. Gajendragadkar

Number of Reports – 09

• Eight Law Commission 

Duration – 1977-1979

Chairman – Justice H.R. Khanna 

Number of Reports – 10

• Ninth Law Commission 

Duration – 1979-1980

Chairman – Justice P.V. Dixit 

Number of Reports – 07

• Tenth Law Commission 

Duration – 1981-1985

Chairman – Justice K.K. Mathew

Number of Reports – 26

• Eleventh Law Commission 

Duration – 1985-1988

Chairman – Justice D.A. Desai 

Number of Reports – 18

To see the reports presened by the Eleventh Law Commission of India click here

http://www.lawcommissionofindia.nic.in/main.htm#Eleventh_Law_Commission

• Twelfth Law Commission 

 Duration – 1988-1989 

Chairman – Manharlal Pranlal Thakkar 

Number of Reports – 12

• Thirteenth Law Commission 

Duration – 1991-1994

Chairman – Justice K.N. Singh 

Number of Reports – 10

To see the reports presented by the Thirteenth Law Commission of India click here

http://www.lawcommissionofindia.nic.in/main.htm#Thirteenth_Law_Commission

• Fourteenth Law Commission 

Duration – 1995-1997

Chairman – Justice K. Jayachandra Reddy 

Number of Reports – 03

To see the reports presented by the Fourteenth Law Commission of India click here

http://www.lawcommissionofindia.nic.in/main.htm#Fourteenth_Law_Commission

• Fifteenth Law Commission 

Duration – 1997-2000

Chairman – Justice B.P. Jeevan Reddy

Number of Reports – 18

To see the reports presented by the Fifteenth Law Commission of India click here

http://www.lawcommissionofindia.nic.in/main.htm#Fifteenth_Law_Commission

• Sixteenth Law Commission 

Duration – 2000-2003

Chairman – Justice B.P. Jeevan Reddy (from 2000 to 2001)

                   Justice M. Jagannadha Rao (from 2002 to 2003)

Number of Reports – 11

To see the reports presented by the Sixteenth Law Commission of India click here

http://www.lawcommissionofindia.nic.in/main.htm#Sixteenth_Law_Commission

• Seventeenth Law Commission 

Duration – 2003-2006

Chairman – Justice M. Jagannadha Rao

Number of Reports – 16       

To see the reports presented by the Seventeenth Law Commission of India click here

http://www.lawcommissionofindia.nic.in/main.htm#Seventeenth_Law_Commission

• Eighteenth Law Commission 

Duration – 2006-2009

Chairman – Justice M. Jagannadha Rao (from 2006 to 2007)

                   Justice A. R. Lakshmanan (from2007 to 2009)

Number of Reports – 33

To see the reports presented by the Eighteenth Law Commission of India click here

http://www.lawcommissionofindia.nic.in/main.htm#Eighteenth_Law_Commission

• Nineteenth Law Commission 

Duration – 2009-2012

Chairman – Mr. Justice P.V. Reddi

Number of Reports – 09

To see the reports presented by the Nineteenth Law Commission of India click here

http://www.lawcommissionofindia.nic.in/main.htm#Ninteenth_Law_Commission

• Twentieth Law Commission 

Duration – 2013-2015

Chairman – Justice D.K. Jain (from Jan 2013 to Oct 2013)

                   Justice A.P. Shah (from 2013 to 2015)

Number of Reports – 19

To see the reports presented by the Twentieth Law Commission of India click here

http://www.lawcommissionofindia.nic.in/main.htm#Twentieth_Law_Commission

• Twenty-First Law Commission 

Duration – 2015-2018

Chairman – Justice Balbir Singh Chauhan 

Number of Reports – 15

For all the reports released by Law Commission of India click here 

http://www.lawcommissionofindia.nic.in/main.htm#a7

http://lawcommissionofindia.nic.in/

• Twenty-Two Law Commission 

After the expiration of 21st Law Commission on 31st August 2018, now it’s time for 22nd Law Commission. But even after a period of 10 months, the 22nd Commission hasn’t been formed yet. At such a crucial time where  21st Commission has released important reports it was expected that the next commission would carry on the work from where it was left off.

According to some media reports, the Law Ministry has approved the proposition of installing a new commission but it is the Cabinet (government) who hasn’t taken any action towards its installation. So as of now, India has had twenty one law commissions until 22nd Law Commission is established.

Some of the important Law Commission reports

Electoral Disqualifications (244th Report)

The twentieth Law Commission of India submitted its report on Electoral Disqualifications to the Ministry of Law and Justice on 24th February 2014. The reports state the guidelines that were issued by the Supreme Court in one of the cases of Public Interest Litigation filed by the NGO Public Interest Foundation. The case was related to the decriminalisation of politics. The report dealt with two main issues. They are:

• Disqualification of the candidates having a criminal background
• Repercussions of filing false affidavits

Following are some of the important suggestions that were mentioned in the report:

• The commission analysed the various levels at which disqualification can take place.
• The introduction of effective laws that would truly help in curbing criminalization of politics because generally, the laws do not work effectively resulting in long trials and rare convictions.
• The commission examined the different stages at which the charges can be framed.
• The commission observed that while filing a First Information Report (FIR) there is no applicability of legal mind, so, therefore, it can not be considered as an effective stage to convict someone, thus, resulting in disqualification.
• In order to prevent the criminalisation of politics it is necessary that the procedures involved various levels of conviction are implemented adequately. Therefore, adequate safeguards should also be implemented.

The Commission also suggested some reforms at the stage of framing charges:

• Safeguards that ensure prevention of misuse of provisions and in case of any lack of redressal some remedies should be there.
• The offences that involve a maximum punishment of five years or above will be incorporated within this provision.
• If charges are filed in less than one year from the date of scrutiny of nominations for an election will not result in disqualification.
• The charge of disqualification will not be removed unless acquitted by the court, or a term of six years, whichever is earlier.
• If the charges are framed against sitting MP or MLA, then, the case must be resolved as soon as possible, i.e., within one year.
• If the case is not resolved within one year, then, the said MP or MLA will be disqualified after the one period comes to an end. Also, the right to vote of MP or MLA in the parliament, or the State Assembly respectively, salary, and other benefits will be suspended.
• This provision for charging the person will be applied retroactively.

When false affidavits are used as a ground for disqualification the Representation of the People Act, 1951 must be modified to introduce the following changes:

• The grounds of disqualification would be used to convict a person for filing false affidavits.
• Increase in the term of imprisonment, i.e., from a minimum period of six months to a maximum period of two years.
• This offence of filing false affidavits should be regarded as a ‘corrupt practice’ under the Act.
• Also, proceedings should be held on a daily basis and adding a gap of one which would give sufficient time to raise a complaint on nomination papers. The gap is supposed to be added in between the last date of filing nomination and the date of scrutiny.

Electoral Reforms (255th Report)

The law commission of India submitted its report number 255 on ‘Electoral Reforms’ in March 2015. The report was submitted to the Ministry of Law and Justice. The Ministry of Law and Justice, in January 2013, requested the Twentieth Law Commission to suggest some methods that must be introduced in ‘Electoral Reforms’ to make it more effective. 

The report has mentioned various issues, like, the amendment in the Indian Constitution, Election Rules, Representation of the People Act, 1951 and many other laws. The summary of the report is as follows:

• Election Finance – 
• The first issue that was pointed out by the Commission is the extension of the period for the expenses incurred in the election by the candidate from the date of notification of election to the date of declaration of results. Initially, it was from the date of nomination to the date of declaration of results.
• Amending of section 182(1) of the Companies Act, 2013 which ensure the transfer of contribution from the company’s funds to a political party at the company’s Annual General Meeting (AGM) instead of its Board of Directors.
• Insertion of new section 77A that would ensure that the required candidates or the authorized agents maintain an account in which they will have to disclose the particulars related to, any individual contribution received by the party from any source except the Government and company or any amount paid by the party from the date of notification of elections.
• Adding new section 78A which would make sure that the District Election Officer would upload the expenditure reports presented by each participating candidate under section 78.
• Inserting new section 29E in the Representation of the People Act, 1951. The Election Commission of India because of the new provision would upload the contributions made by the participating political parties under section 29D on its official website or the file for public inspection.
• A new section would be inserted that would penalize the violation of section 29B, the Representation of the People Act, 1951 and section 182 of the Companies Act in matters related to admitting donations coming from donors who are not permissible. The penalty would be charging five times the amount so accepted. This new provision would come under section 29H. 
• Regulation of Political Parties and Inner Party Democracy –

• The Commission suggests modifying of section 29A (5) of the Representation of the People Act, 1951. Through this modification, the parties would assure not to instigate violence for political gains, and will not discriminate on the basis of caste, creed, sex, race, religion, gender, language and place of residence.
• A new chapter, Chapter IVC would be added which will deal with ‘Regulation of Public Parties’  and also, including recommendations made by the Law Commission in its 170th Report with some modifications. 
• Section 29R will also be added to the same part which will provide for de-registration of a political party who failed consecutively for the past ten  years in Parliament and State Elections.

• Proportional Representation –   

The Electoral system has two aspects, i.e., the proportional representation and the first-past-first-post electoral system. If any change will be introduced in the electoral system in India it would result in a hybrid electoral will also, somehow, find its way in India, including both direct and indirect elections. It would have happened then it would create problems for the Indian electoral system since seats in the Lok Sabha would have increased. This would raise concerns regarding its effective functioning. 

Therefore, the Commission, on the basis of the observations made by the Law Commission in its 170th Report about the proportional electoral system, asked for the reconsideration of the proposals recommended in 170th Report, to see if they were in consonance with the Indian circumstances.

• Anti-defection Law in India – 

The Law Commission also recommended some changes in the Tenth Schedule of the Indian Constitution would provide power to the President or the Governor, as the case may be, on the issue of disqualification on the ground of defection. The President and the Governor will have to act on the advice of the Election Commission of India.

• Strengthening the office of the Election Commission of India – 

• To ensure equal protection in case of the removal procedure to the members of the Election Commission of India, the Law Commission recommended the amendment of Article 342(5) of the Indian Constitution.
• It laid down a new procedure for appointing the members of the Election Commission. According to the observations of the Law Commission, a collegium was to be formed consisting of three members, the Prime Minister, the Leader of Opposition in the Lok Sabha and the Chief Justice of India. This collegium after consulting the President would appoint the members of the Election Commission. The basis on which the members will be appointed will depend on the seniority unless the collegium finds such senior candidate unfit for the position. The Amendment was supposed to be made in the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 to show the necessary changes.
• Under Article 324 of the Constitution, a new sub-clause 2A was to be added to set up separate independent and permanent Secretariat for the Election Commission of India alongside the Lok Sabha and Rajya Sabha Secretariats under Article 98 of the Indian Constitution. It was thought that this step would make the Election Commission of India more independent.

• Paid News and Political Advertisements – 

• In section 2 of the Representation of the People Act, 1951 the words, ‘paying for news’, ‘receiving payment for news’ and ‘political advertisement’. 
• In order to prevent disguised political advertisement, provisions that would disclose all the necessary information were to be made mandatory in all forms of media. The term ‘disclose’, here, covers two aspects, first to assist people in identifying the nature of the content and second, to keep a record of all the transactions that are taking place between the media and the candidate. This whole step was to be incorporated by inserting section 127C in the Representation of the People Act, 1951.

• Opinion Polls –

• The ban on opinion polls, for presenting any election matter forty-eight hours before the starting of the poll is restricted by the means of ‘cinematograph, television or any other electronic media, did not include print media and section 126(1). Therefore, it was to be amended to avoid any publication, publicity on any matter related to the election.
• It is necessary to control the activities of the opinion polls for many reasons. First one is to ensure that the public is aware about authenticity of the methods of conducting the poll, second, because it is important to inform the public about the credentials of the organisation which is organising the poll, thirdly, to tell the public that the predictions made in opinion polls are not absolute and that they might change in the future.
• Insertion of section 126C and 126D in the Representation of the People Act, 1951.

• Compulsory Voting – 

The Law Commission was of the opinion that introducing rule of compulsory voting would not be a right decision. It had listed reasons for not implementing this rule of compulsory voting, it includes an increase in expenditure, unaffordability of conducting it, difficult to implement, etc.

• Election Petitions –

Many reforms were suggested for Part- VI of the Representation of the People Act, 1951 which deals with ‘disputes regarding elections’. These include:

• Extension of ‘election benches’ in every High Court. It will be designated by the Chief Justice of that particular High Court and its jurisdiction will be over to all the election cases in the Representation of the People Act, 1951. 
• The procedure for presenting the petitions should be made more transparent, clear and easy. 
• Expedition of the trial of petitions before the concerned High Court.
• The conclusion of the trial should be done within the prescribed time limit, i.e., six months from the date the petition was presented, and if in case, it gets delayed then, a report should be submitted before the Chief Justice of the concerned High Court stating the reason of delay.
• The order regarding the case should be passed by the election bench within ninety days from the conclusion of the arguments. It should be done under section 98 of the Act.
• Adding of new section 98A in the Act of 1951. 
• The appeals before the Supreme Court will only lie when the case raises the question of law. Initially, it was permissible to file an appeal when it was the question of law or fact. 
• The appeal before the Supreme Court is to be filed within 30 days from the date of the judgment delivered by the High Court. The Supreme Court has to conclude the appeal within three months from the date of appeal.

• NOTA and the Right to reject –

The Law Commission did not support the idea of introducing the option ‘none of the above’ (NOTA) in the election. The Commission believed that the idea behind NOTA is to ensure good governance which can also be achieved by imposing new regulations in the political system. 

• The Right to recall – 

The Commission believed that introducing the right to recall will reduce the independence of the contesting candidates. Therefore, it suggested not to impose ‘right to recall’.

• Restrictions on the Government Sponsored Advertisements –

• The Commission recommended regulating the publishing of advertisements sponsored by the government six months before the expiration of House or the Assembly to uphold the principle of ‘fair elections’.
• It recommended inserting new Chapter VIIB in Part V of the Representation of the People Act, 1951 which would prohibit the government-sponsored advertisements in  print and electronic media six months before the date of expiry of the Lok Sabha and Vidhan Sabha. 

• Restriction on the number of seats from which a candidate may contest –

• The Law Commission suggested amending section 33(7) of the Representation of the People Act, 1951. This section permitted the candidate to contest in any election from up to two constituencies. They wanted to amend this section by allowing candidates to contest in any election from one constituency only.

• Independent Candidates –

• The Commission suggested to amend section 4 and 5 under the Representation of the People Act, 1951 to permit only those parties which are registered under  Election Commission of India as per section 11(4) to contest Lok Sabha and Vidhan Sabha elections.

Wrongful Prosecution (277th Report)

The Delhi High Court in Babloo Chauhan Dbloo v. State Government of NCT Delhi [1] observed the lack of any legislative reforms in cases where an innocent is prosecuted for a crime that he has not committed. The Court said that it is need of the hour to have a legislative framework to dispense some relief and rehabilitation to the victims who have been wrongfully prosecuted. The Law Commission was asked to examine the matter and come up with some suggestions for the same.

The International Law, too, recommends the States to lay down some laws that would ensure some kind of compensation to the victims of wrongful prosecution. When an innocent person is convicted for a crime he hasn’t committed, and then, later on, it is revealed that he was innocent it results in miscarriage of justice. The International Covenant on Civil and Political Rights to which India is a signatory puts an obligation on all its signatories to make laws that would compensate the innocents who suffered from the hands of the law. The Law Commission prepared the report from the point of view of the criminal justice system in India. It stated wrongful prosecution as the standard of a miscarriage of justice. According to the report ‘wrongful prosecution’ will include cases where:

• The accused was not guilty of the offence and the prosecution or the police were in some kind of misconduct.
• The person had to spend his time in jail or in cases where he did not.
• The Trial Court found that the accused was not guilty of the offence.
• More than one courts convicted the accused of the offence but the Higher Court found him not guilty of the offence.

The Law Commission, in this report, gave an outline of the reliefs available in the existing laws and tells how they are inadequate. It makes some recommendations regarding the enactment of some specific laws that would only deal with such types of cases. These laws would provide remedies to the victims in terms of monetary as well as non-monetary compensation where non-monetary compensation will include health services (both physical and mental), employment skills, developmental skills, counselling, etc. The main features of the report include:

• Definition of wrongful prosecution.
• Filing an application for compensation.
• An existence of ‘Special Court’ in aiding these cases.
• Financial and all other factors in calculating the compensation to be provided.

A Bill was drafted expressing the above-mentioned provisions was attached with the Report as the Code of Criminal Procedure (Amendment) Bill, 2018.

Review of the Indian Evidence Act, 1872 (185th Report)

The Sixteenth Law Commission, in 2003, submitted a report related to the review of the Indian Evidence Act, 1872. Though, Law Commission had earlier also submitted a report in relation to the Indian Evidence Act,1872 which wasn’t considered. The Law Commission was asked to re-examine the 69th Report and other reports.

The recommendations made by the law commission were as follows:

• The Commission did not recommend anything related to the definition of the Court. In its 69th Report, the commission suggested to include revenue courts and tribunals within the definition of the court, thus, the provisions of the Act but the Government had rejected the recommendation.
• Though the Law Commission agreed that the definition of the document included everything but with the advancement in the technology and law it decided to broaden its aspect. The definition of document mentioned in the Indian Evidence Act after its amendment and adding of section 65A and 65B of the included electronic records also. The Commission observed that the evidence produced by the computer should be treated similar to other records though the preference must be given to its authenticity and the parties will have to information regarding the security of their computer system. 
• The Law Commission recommended that the specifically mentioning DNA as a piece of evidence under the Act was not necessary especially after the judgment of the Supreme Court in Kamta Devi v. Poshi Ram. In this case, the Court held that the DNA as an evidence is not admissible when there is an assumption provided by law. Nevertheless, the Commission did not object an act where a party submits DNA evidence and in case of refusal on the part of the party to submit DNA, no suggestion was made. It would be on the discretion of the Court to decide the matter. 
• In case of admission of evidence, the Commission of suggested changes in section 10 of the Act. In order to, avoid any contrary inference the Commission proposed the replacement of the words ‘with reference to’ with ‘in furtherance of’.
• In order to put an end to the controversy on section 13 of the Act, the Commission explained section 13. The Commission observed that:

• Judgments not inter-parties can be admitted as ‘transactions’ under section13(a), and;
• Documents recitals including recitals related to boundaries of immovable parties will be relevant irrespective of the fact that it is between the same parties or not.

• Section 23 of the Act was analysed and some changes were recommended. This deals with admission in civil cases. Section 23 when read with section 126 means exclusion of those admissions to which both the parties have agreed to be used as evidence. Its purpose is to uphold public policy and ensure that parties resolve disputes peacefully without approaching any court. The Commission proposed that:

• Such evidence can be admitted with the parties’ mutual consent.
• The third-party, even after being affected by the actions of the disputing parties cannot use such as evidence.
• Admission of evidence becomes important to determine whether a settlement was there or to answer the question of delay.

• Section 24 of the Act deals with confessions obtained by threat, or inducement, or promise. The Commission suggested adding grounds to this section like violence, coercion and torture to reject confessions obtained under such circumstances.
• After the Supreme Court gave its judgment in U.P v. Ramesh Prasad Mishra, the Court recommended statement determining the cause of the death (motive) should be made admissible in court. It was recommended under Section 32(1) of the Act which deals with dying declaration.
• Insertion of section 53A was proposed by the Law Commission to ensure the protection of women at workplaces.

• To strengthen the spirit of the provision of reliance on the evidence a group of experts is there. The Commission added more experts to help the court in deciding the cases on the basis of evidence. These experts will deal with footprints, palm impressions, foreign law, trade, type writings, etc.
• The Commission expressed its concern on the divergence between the definition of secondary evidence in section 63 and clauses of section 65 from clause (b) to clause (g). it was observed that these clauses didn’t fall within the ambit of secondary evidence but still were admissible in courts. So, in order to make it right it proposed recreation of section 63 by redefining it.
• The principles like estoppel, res judicata, etc which were enumerated in the Act did not have any defect in them. Therefore, it was recommended not to introduce any changes in them.
• The Commission put forward the rephrasing of section 90 and introducing it with section 90A which will deal with matters related to documents which are more than 20 years old. A different would be there for other documents. This allowed the court to raise a presumption regarding the documents. So, in cases where the documents could not be determined, the court could make an assumption and carry on with the proceedings.
• The Law Commission recommended amending of section 112 of the Act in which presumption regarding the paternity of the child would be dealt with and DNA would formally be admitted in the Indian Evidence Act, even though it was Supreme Court refused to admit DNA as a piece of evidence in Kamta Devi v. Poshi Ram.
• The Law Commission examined section 27 also which deals with relevancy of any important information. It is considered to be an important provision of the Act. The Commission made the following recommendations:

• That the section 27 creates a restriction for section 26
• That the section 27 acts as an exception to 25
• In order to make section 27 peculiarly an exception to both the sections i.e., section 25 and section 26 it is necessary to replace comma with the word ‘or’ in “from a person accused of any offence, in the custody of the police officer”.
• Section 27 should be put in another way to eliminate the statements acquired by inducement, threat, etc as it is provided under section 24 of the Act. 

Trial by Media (200th Report)

The Law Commission submitted its 200th Report on Trial by Media in the year 2006. It recommended a legislative limitation on the media to report anything which could be detrimental to the accused’s rights in any criminal case. The media cannot report the said information from the date of arrest to the investigation and trial, basically till the judgment. According to the Law Commission, the reports presented by media have a prejudicial effect on the whole judiciary system. Therefore, imposing reasonable restrictions was necessary to avoid criminal contempt of court. 

It proposed the amendment of section 3(2) of the Contempt of Courts Act. Also, the Law Commission recommended that the High Court should be given the power to direct a print or electronic medium to hold off the reporting any criminal case. 

The Death Penalty (262nd Report)

The Twentieth Law Commission of India presented the 262nd Report on the death penalty where the commission recommends to abolish the death penalty. The Commission observed that the death penalty should be abolished in all cases except in cases of waging war and terror-related cases. It was observed that the death penalty provides deterrence of criminal activities not more than that provided by life imprisonment. The panel consisted of nine members that recommended the above-mentioned change. Though not all the members were in favour of this proposition, three of the nine members had a dissenting opinion on this issue. They encouraged the withholding of capital punishment. 

The Commission did not give any specific reason for deciding to abolish the death penalty. It stated that it does not any particular approach for abolishing the death penalty, all it wants is to ensure that the process of abolishing should be in accordance with the fundamental value of irrevocable and complete abolition. 

The Commission also observed that even if there is no reasonable penological explanation for treating terrorism and waging war distinctively from the other criminal activities it is crucial to ensure that capital punishment is given in such cases so that national security of the nation can be secured. 

The doctrine of ‘rarest of the rare’ cases, too, was discussed in this Report. The Commission believed that the imposition of the death penalty in ‘rarest of rare’ cases does not ensure that there will be no miscarriage of justice. In some cases, it might be possible that an innocent is punished for the offence he did not commit, then, what will the court do. It would, surely, fail the purpose of justice. So, the commission was of the opinion that abolishing the death penalty, except in cases of terrorism and waging war, would be a right step that the government should consider. 

Human DNA Profiling (271st Report)

The Twenty-first Law Commission prepared the 271st Report on Human DNA Profiling – A Draft Bill for the Use and Regulation of DNA Based Technology. 

In this report, the Commission, except for amending the Code of Criminal Procedure, 1973 decided to introduce a separate law that would specify the rules and regulations related to DNA profiling. The Department of Biotechnology drafted a Bill known as the Use and Regulation of DNA-Based Technology in Civil and Criminal Proceedings and asked the Law Commission to analyse and revise as per requirements. But the Law Commission was of the opinion that a new law should be introduced to set up standards, procedures and quality assurance system for DNA profiling to make sure that this modern technology is used for legal purposes only and nothing less.

The DNA laws in other countries like China, UK, United States of America and Canada, as mentioned in this report, are enshrined within the boundaries of their respective Constitutions and other different legal provisions for the above-mentioned purposes. 

The Law Commission mentioned the following changes in this report:

DNA Profiling Board

This would be a statutory body. 

• The Commission suggested that the board should introduce a framework related to DNA laboratories and their access to perform DNA tests and asked the concerned authorities of both the Central and State governments to work in accordance with the procedure.
• The Board will have to lay down rules and regulations for the police officers and the investigating officers to deal with DNA cases. 
• The Board will function in consonance with the international norms including all ethical and human rights issues. Also, it will propose all the work related to the research and development required for DNA profiling and other important matters.
• In case of any new advancement in technology or any other reason, the Board can make necessary changes in the system. It can also introduce changes in entry, retention and expunction of DNA profiles.

DNA Data Bank

The Commission proposed for establishing a National DNA Data Bank and Regional DNA Data Bank by the Central Government. These Banks would be accountable for storing the DNA profiles and making different blocks for categories like witnesses’ index, crime scene index, unknown deceased person index, etc.

1. The Commission believes that DNA profiling would be used for the sole purpose of identifying a person and not for any other information.
2. The sharing of information related to the different DNA profiles in strictly prohibited in this report. It does not approve of sharing the profiles with and by any Government organisation or institution or any other concerned authority. 
3. It suggests maintaining a very high standard of confidentiality in relation to the extraction of information from DNA profiles and their uses.
4. The report also talks about the imposition of punishment in case any person violates  the provisions of the Act. The punishment in case of violation is imprisonment for a term of three years and a fine of Rs. 2 lakh.
5. The report also stated that in the trial of cases the Trial Court can be requested to conduct another DNA testing if the person satisfies that the present DNA sample was contaminated, and therefore, the Court cannot rely upon such report before arriving at any conclusion. 
6. The experts of the DNA profiling will be referred to as the Government Scientific Experts and Section 293(4)(g) of the Code of Criminal Procedure, 1973 will inform about it.

The Report finally concluded by stating that the drafted Bill plans to fulfil every aim of the DNA profiling by meeting all the required standards, quality control and quality assurances. The Commission will, through this report, encourage exercising uniform standards of working in the laboratories where the work related to DNA profiling is carried out. 

Proposal for Omission of Section 213 from the Indian Succession Act, 1925 (209th Report)

In order to put an end to the discrimination while making wills by the various communities the Commission has recommended the omission of Section 213 of the Indian Succession Act, 1925. The Eighteenth Law Commission was of the opinion that the said section is violative of Article 15 of the Indian Constitution. These communities included Hindus, Jains, Sikhs, Parsis and Buddhists. Though no action was taken in this regard. 

Analysis of the 2015 Draft Model Indian Bilateral Investment Treaty (260th Report)

The Law Commission of India did its best in bringing stability between the investor’s rights and the rights of the state in its 260th Report i.e., Analysis of the 2015 Draft Model Indian Bilateral Investment Treaty. The Bilateral Investment Treaty is a type of treaty in which the two participant countries lay down some basic principles in order to provide protection to the investors of one country investing in the other country. For example, the clause of ‘fair and equal treatment’ to the investors in order to prevent any state arbitrary action against them. Other securities include right against expropriation and Most Favoured Nation (MFN) provision.

The changes recommended by the Twentieth Law Commission are as follows:

• The Commission’s first suggestion was related to the definition of the investment. The Commission broadened the concept of investment to a universally followed ‘asset-based’ definition. Originally, the definition was limited to ‘enterprise-based’ which meant an investor who is investing in India for the first time will not be given any protection.
• Also, the Commission did not support the incorporation of Most Favoured Nation provision because it believed that India might want to provide better benefits to the investors of the countries having the high incoming investment. 
• Thirdly, the Law Commission advised taking in the clause related to ‘denial of benefits’ which means that if an investor indulges in corrupt practices or does anything which is against the law of the land then, in such cases, the investor will not any benefits mentioned in the treaty. 
• The Commission recommended changes in the provisions related to the resolution process provided in the Model Draft. The Draft has the provision that limits the jurisdiction, it prevented an arbitral tribunal to review any issue which has been resolved by any legal authority of the home country. The Commission wanted to remove this provision of jurisdiction bar. 
• Lastly, the Commission recommended changes in the provision containing the list of general exceptions. This list of general exceptions in the Model Draft contains a list of aims that would be acceptable like, public order, stability of the financial system, public morals, etc and states that any action taken by the State to accomplish any of the objectives in the list would not be subject to any investigation before an arbitral tribunal. The said provision also granted the State the power to self-judge in order to determine whether a measure would come within the ambit of exception or will it become the subject of challenge.  The Law Commission of India suggested the government to re-draft the said provision and not to make it self-judging. 

It is said that the Commission through this does not point out many universally applicable principles it only introduces changes in respect of the basic international elements that would help India to act reasonably before the investors and to avoid the repetition of the White industries case. 

Working of the Law Commission 

The law commission has staff which consists of secretarial staff and the research panel. The research panel has researchers holding different ranks and having varied experiences. 

During meetings, which are held frequently, topics are discussed and issues are raised. Then, the decided topics are distributed amongst the staff members depending upon the requirements of the topic. Through this method consensus of the staff members is also obtained. 

Then, an outline of the issue is formed pointing out the main issue and the methods through which it can be resolved. The said outline is circulated to the other concerned authorities for their point of view to see if they want to add something, or are they satisfied or not? This is done because the law commission wants to make sure that the widest section of people have a say in this because ultimately laws are made for them only.

Once the commission gets to know about the peoples’ views, they analyse it and then prepare an organised introduction to be mentioned in the report. This is written by Member Secretary, or by the Chairman, or by any member of the commission. In meetings, it is then closely scrutinised.

Once the report is finalised, a final draft is prepared of the bill, or the amendment and is attached to the report before forwarding it to the central government. 

Role of Law Commission in Ensuring Legal Reform in India

The Law Commission of India plays a very crucial role in ensuring public interest. It helps in the formulation of strong public policies. While on the one hand, it acts as an advisory body on the other it criticises the government policies which do not benefit the public. 

In case of any defect in any public policy, it points out the defective part of the policy and suggests some ways to correct it. Though the recommendations made by the commission do not bind the government to act accordingly it as the discretion of the government to either accept or reject it.

Also, the liberty of taking up matters suo motu (on its own motion) acts as a beneficial factor in cases where there is no one to raise objection on some defective laws. The Supreme Court, too, has recognised the recommendations made by the commission. In many cases, the Supreme Court has accepted and followed the recommendations made by the commission.

Conclusion 

The main purpose of the law commission is to help the government to shape just public policies and ensure justice is delivered. It has always worked towards the enhancement of law reforms in India. It introduces legal reforms to correct the government’s wrong decisions. Therefore, it is the responsibility of both the government and the commission to work in close coordination because in the end, it is the public interest that matters.

References 

[1] 247 (2018) DLT 31.

The post Law Commission of India appeared first on iPleaders.

This article is written by Harsh Amit Bhatt, pursuing a Certificate Course in Real Estate Laws from LawSikho.com. Here he discusses “Five Income Tax Benefits Available to the Real Estate Sector”.

Introduction

After the historic legislation of RERA Real estate (Regulation and Development) Act, 2016, Came into force the Real Estate sector was struggling to get back on the growth track. As the legislation was fresh and took time to understand legislation and gain confidence in the home buyers. To promote the growth in Real Estate sector government decided to incentivise to the buyers by introducing (PMAY) Pradhan Mantriawasyojana and providing with various tax benefits in the Real Estate Sector to the buyers and the estate owners.

The Following are the Five (5) tax benefits which were recently made available by the government in the Real estate sector:- 

Pradhan MantriAwasYojana

Pradhan MantriAwasYojana (PMAY) is a social welfare program which was launched by our honourable Prime Minister Shri Narendra Modi in the year 2015. This scheme aims to provide affordable housing to 20 million families by 2022. 

There are four components under Pradhan MantriAwasYojana (PMAY) which are as follows.

1. Beneficiary led to individual housing construction or Enhancement (BLC)

• For individuals of the EWS category for own house construction or enhancement. 
• Central assistance of Rs. 1, 50,000

2. Credit linked Subsidiary Scheme (CLSS)

Credit linked subsidiary scheme (CLSS) is one of the components under PMAY yojana where Central Government offers interest subsidiary to an eligible beneficiary.

• Interest subvention subsidiary for economically weaker sections (EWS), Low-income group (LIG) and mid-income group (MIG) for new houses.
• The beneficiaries under economically weaker sections (EWS) and Mid income group (MIG) seeking housing loans would be eligible for an interest subsidy at the rate 6.5% for a tenure of 20 years or during the tenure of loan the net interest subsidiary rate shall be at the discount rate at 9%. The credit link subsidy will be available for loan amount up to  Rs 6,00,000/-
• For mid-income group (MIG) the beneficiaries will get 4% relief on loan up to Rs. 9, 00,000 and 3% for loan up to Rs.12, 00,000.

3. Affordable Housing in Partnership (AHP)

• Central assistance of Rs 150,000 per EWS house in projects where the project has at least 250 houses and 35% houses eligible for EWS category.
• State government/ ULB contributes depending on criteria.

4. “In-Situ” Slum Redevelopment (ISSR)

• Land as a resource with private participation 
• Extra FSI/FAR and TDR if required 
• Central assistance of Rs 100,000 per house 
• Developers to benefit from ‘free sale component’

Section 80IBA under the Income Tax Act

This section 80IBA under income tax act came into effect from 1st April 2017, this section was inserted by the finance act, 2016, 

Deductions in respect of profits and gains from the housing project, where the gross total income of the assessee includes any profits and gains derived from the business of developing of building housing projects, this section shall be allowed a deduction of an amount equal to hundred per cent of the profits and gains derived from such business.

The following conditions shall be fulfilled to get the benefit of this section are as follows:-

• The project approved by the competent authority after 1st June 2016, but on or before 31st March 2019.
• The project shall be completed within 5 years from the date of approval by the competent authority.

Proviso

Wherein the housing project is not completed within 5 years from the date of approval, with respect to deduction which has been claimed and allowed under section 80 – IBA, the total amount of deduction so claimed and allowed in one or more previous years shall be deemed as income of the assessee chargeable under the head ‘Profit and gains of business or profession’ of the year in which the completion so expires.

   Click Above

Therefore changes in Service Tax shall also be made as under- 

• Housing project under Housing for all (HFA) under Pradhan MantriAwasYojana (PMAY).
• Low-cost housing up to a carpet area of 60 sqmts in a housing project under ‘Affordable housing in partnership’ (AHP) of PMAY.
• Low-cost housing up to a carpet area of 60 sqmts in a housing project under any housing scheme of the state government. Are being exempted from service tax effect from 1st March 2016.

Section 54 of the Income Tax Act

The following section 54 of the Income Tax Act provides exemptions for capital gains arising on transfer of residential house property. 

The intention of section 54 is where a person wants to sell his old residential property wherein he was residing and purchased another house for his residence. In this case, the seller of the house was liable to pay income tax on capital gains arising on sale of the old house then it would be a hardship on him. 

Section 54 provides relief on such transaction made by the selling old property and purchased a new property for a residential house. But there are certain basic conditions which have to be satisfied to obtain the benefit of this section which is as follows.

• In the following section 54 benefits are only available to individual or HUF.
• Being a residential property asset transferred should be a long term capital asset.
• In case of any person wants to obtain the benefits of this section the individual or HUF one year before or after two years of the date of transfer of the old residential flat the taxpayer should acquire or construct a new residential property within the time period of three years. acquisition or construction will be determined from the date of receipt of compensation.

An exemption can be claimed only in respect of one residential house property purchased/constructed in India. If more than one house is purchased or constructed, then exemption under section 54 will be available in respect of one house only. No exemption can be claimed in respect of house purchased outside India. 

With effect from Assessment Year 2020-21, the Finance Act, 2019 has amended Section 54 to extend the benefit of exemption in respect of investment made in two residential house properties. The exemption for the investment made, by way of purchase or construction, in two residential house properties shall be available if the amount of long-term capital gains does not exceed Rs. 2 crores. If assessee exercises this option, he shall not be entitled to exercise this option again for the same or any other assessment year. 

Section 194I of the Income Tax Act  

The following section provides benefits to the tenants of the property. The financial minister Nirmala Sitaraman has presented her first budget on 5th July 2019. Where in the tax on rent is increased from Rs. 1,80,000 to Rs. 2,40,000 for the financial year 2019-2020. Which is beneficial for the people who are residing in a rental basis. The following section states as follows –  

Section 194I- TDS on Rent

• Any entity not being it an individual or HUF responsible for paying of rent is liable to deduct tax under this source.
• The amount of rent which is paid or any amount which has to be paid during the financial year exceeds Rs.1,80,000 then / now increased to Rs. 2,40,000
• TDS threshold for deduction of tax on rent is increased from Rs. 1,80,000 to Rs. 2,40,000 for FY 2019-20 onwards.
• Also, any entity who is subjected to tax audit can also claim deduction under this source.

Types of rents covered under Section 194I – of the Income Tax Act are as follows

• Income from letting out of factory building.
• Rent includes service charges.
• TDS requirement where building and furniture, etc., let out by separate persons
• TDS requirement where rent not payable on a monthly basis
• Charges regarding cold storage facility
• Hall rent paid by an association for use of it
• Payments to hotels for holding seminars including lunch.

Section 28 of the Income Tax Act

In the speech of interim budget given by our financial minister PiyushGoyal on 1st February 2019, provided relief to the builders by waving the tax on unsold inventory by the builders for past two years existing one year. According to the private estimate, approximately6.73 lakhs units are unsold and leavy of tax son such unsold units will prove hardship to the developers and increase the burden of taxation, therefore, the tax on unsold units as specified above was waved. 

Section 28 imposes a tax on profits and gains arises out of the business. Thus, 30% tax on the fair value of tax was charged for unsold stock under this section which was waved in the interim budget which was beneficial to the builders.

After the interim budget, big developers made comments and shared their reliefs stating as under –

“Relaxation of notional rent on unsold inventory to two years will ease the burden on developers, who now have more time to sell their projects,” says Surendra Hiranandani, Founder & Director, House of Hiranandani.

“Considering that unsold inventory is a key concern for developers, the move to extend exemption period for levy of tax on notional rent from one year to two years is also a welcome move,” said ASF Group CMD Anil Saraf.

The post Five Income Tax Benefits Available to the Real Estate Sector appeared first on iPleaders.

This article is written by Poonam Joshi, pursuing a Certificate Course in Advanced Corporate Taxation from LawSikho.com. Here she discusses “What are Income Tax Raids? When are these Conducted?”.

Introduction

As per the lay man’s language Raid means a sudden/surprise lookout at somebody’s premises with information of something which is suspected for seizure. Raid in common parlance is used for search and seizure operations under any law. Likewise, even under Income Tax if department has reasonable belief that any person has evaded tax and acquired undisclosed moveable or immovable assets then as per section 132 of the Income Tax Act the premises of the person can be raided/searched and the documents/accounts containing details of unaccounted expenditure/investments or of undisclosed income can be seized.

In order to unearth the black money and undisclosed wealth of a person  the following persons:

1. the Principal Director General or  Director-General or 
2. Principal Director or Director or 
3. the Principal Chief Commissioner or Chief Commissioner or 
4. Principal Commissioner or Additional Director or 
5. Additional Commissioner or Joint Director or Joint Commissioner

may authorize any officer subordinate to him but not below the rank of Income-tax officer to conduct a search. The officer has the power to enter, break open and search any premises, place, vessel, aircraft or vehicle where he has reason to believe that suspicious documents and material are kept there. He can also search for a person who is leaving or who are entering the place where the search is conducted. Before making a search the authorized officer shall call upon two or more respectable persons of the locality in which the premises to be raided is situated to witness the search. These persons are generally known as panch and the document mentioning/recording the details of search proceedings is known as Panchnama. 

If any person is found to be in possession of any material the officer has the power to inspect that material. The officer can seize any material found during the search. However, w.e.f 1.6.2003 he has no power to seize any bullion, jewellery or any other valuable thing or article which is the stock-in-trade of the business found during the search. He shall make note of the inventory of the stock-in-trade and of such money, bullion or jewellery. In order to identify the material seized the officer can put identification marks on the material seized.  

Circumstances under which Search and Seizure can be Authorized

Clauses (a) (b) and (c) of section 132(1) spell out the circumstances under which the authorizing authority may issue a warrant of authorization in the following manner:

Section 132(1)(a)

Under clause (a) action may be taken if the person is served interalia with a summons under section 131 or notice under section 142(1) to produce or cause to be produced specified books of accounts or other documents and he fails to comply. Such non-compliance is sufficient reason for the issuance of the authorization.

Section 132(1)(b)

Under clause (b) a formal notice is not essential. The Authorising Officer must have reason to believe that the person, whether or not a notice has been served upon him, is not likely to produce his books of accounts and other documents which may be useful and relevant to income-tax proceedings.  Prior to 1.4.2017 if the authorizing authority was challenged, he had to prove the basis of his belief as decided in the case of Manchand and Co. v. CIT (1970) 76 ITR 217 and also in the case of Kusum Lata v. CIT (1989) 180 ITR 365 (Raj,)

Section 132(1)(c)

The circumstance under which clause (c ) is applicable where the authorising authority has information that  firstly that the person is in possession of money, etc and secondly, that much money, etc represents either wholly or partly income or property which has not been or would not be, disclosed for the purpose of the Income Tax Act. Under clause(c ) the authorizing authority is under the heavy burden to justify the ground of his belief. 

Taking into consideration the provisions of search and seizure under the Income Act, it could be seen  that the raids can be conducted by the Income Tax Department on any person or on a group under the following circumstances:

When the department has sufficient evidence and has reason to believe that the person on whom the raid is conducted is in possession of undisclosed or unaccounted fixed or current assets.

When a person is not filing any income tax return despite having sufficient amount deposited in his bank accounts.  

When the department has information that some exorbitant expenses are made on any occasion/ ceremony or any other event by a person and has not disclosed the source of that expenditure. 

When the department has got information from other state or central government departments about some evasion of tax. 

When the department has information that unaccounted amount is spent or used in terrorist activities or for smuggling of goods. 

When the department has received the information from some close relative of the person or from the informer hired by the department. 

Any other information or reason which the department finds valid and permissible under law for conducting a search. 

Person to be Searched

Taking into consideration the above circumstances under which search can be conducted the persons to be searched are persons:

1. Who is in possession of books of accounts or documents which are not produced or are likely not to be produced in response to notices or summons or
2. Persons who are likely to be in possession of unaccounted money, undisclosed income or property. 
3. This person could be a resident or non-resident.  In the case of Ram Kumar Dhanuka v. UOI (2001) 252 ITR 205 (Raj)(HC), the Honourable High court of Rajasthan held that, even a non-resident Indian can be subjected to a search under this section if the department has definite information that the person concerned has income earned in India which may be taxable under the Act and which might not have been disclosed or would not be so declared.

Click Above 

Reasons forming belief are to be recorded by Authorizing Authority before Authorizing Search & Seizure

Section 132 of the Income Tax Act, 1961 does not confer any arbitrary authority upon the Revenue Officers. However, since by the exercise of the power under this section a serious invasion is made upon the rights, privacy and freedom of the taxpayer, the power must be exercised strictly in accordance with the law and only for the purpose for which the law authorizes to be exercised. The opinion or the belief so formed and recorded must be such that it clearly reveals under which clause of section 132(1) of the Act the belief falls. The satisfaction should be recorded on the basis of some relevant material and should not be based on mere suspicion or doubt. This is supported by the judgement in the case of Visa Comtrade Ltd. V. UOI (2011) 338 ITR 343 (Ori).

Can a person demand reasons for conducting the search?

There is no condition of section 132 or any other provision of the Act which mandates that the reasons recorded should be disclosed to the assessee. Therefore, if the copy of reasons recorded is not provided to the seizure cannot be the ground to hold that search and seizure proceedings against assessee are bad-in-law. This view is supported by the judgement in the case of Genom Biotech Pvt. Ltd vs Director of Income Tax, (Investigation) 2009 10 Taxman 395 (Bom).  However, still, the petitions were filed on a regular basis challenging the legality of the search. To put an end to this, w.e.f 1.4.2017 an Explanation  is inserted to sub-section (1) and to sub-section (1A) of section 132 and to sub-section (1) of section 132A of the Income-tax Act to declare that the ‘reason to believe’ or ‘reason to suspect’, as the case may be, shall not be disclosed to any person or any authority or the Appellate Tribunal.  As per – Circular No. 2/2018, Dated 15-2-2018 this amendment has its effect  retrospectively to sub-section (1) of section 132 of the Income-tax Act from 1st day of April 1962 and to sub-section (1A) of section 132 of the Income-tax Act and to subsection (1) of section 132A from 1st day of October 1975.

However, the High Courts and Supreme Court have the jurisdiction to call for and look into the reasons recorded to decide whether the issue of the search warrant was called for. This view is supported by the decision of the Honourable Supreme Court in the case of Dr. Pratap Singh v. Director of Enforcement (1985) 155 ITR 166 (SC).

Conclusion

From the above discussion it is clear that the raids are conducted by the department in order to address the repercussions of avoidance and evasion of tax to ensure that economic and social health of the country is not compromised and that invasion upon the privacy of a person is well within the parameters of law not violating the principles of natural justice. However, if the provisions of the law are violated by the department the person has a remedy to file a writ against the department.

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

The post What are Income Tax Raids? When are these Conducted? appeared first on iPleaders.

This article is written by Ramanuj Mukherjee, CEO, LawSikho.

Google this term: securities litigation course. The first few results you will get are related to courses at Stanford, Harvard, Duke and Columbia Law Schools. Then you land into the litigation library at LawSikho. There is nothing in between, although there is a thriving market for securities litigation, which is growing as stock market activity grows and matures in India.

As India is becoming a more formal economy, and startups are maturing enough to list on the stock exchange, guess what work is growing rapidly? Yes, it is securities litigation of all kinds.

Actually, in our country, there are a lot of securities laws courses. These courses talk about the basics of securities regulations. They also discuss some case laws. But none of them even promise to prepare you to practice as a securities litigator! 

Don’t believe me, just ask the course providers. Can I argue my own cases in SAT after doing your course? And see what they have to say. They will fumble, jumble and crumble.

That’s crazy. What is the point of doing a theoretical securities law course and not learning to do the actual work before the tribunal? Or maybe at least learn to do capital market transactions?

Securities litigation is specialized work. You have to specifically learn how to do this work. It needs an in-depth understanding of how the securities laws work, and a grasp of procedural and strategic aspects. It is not everyone’s cup of tea. 

But why then, would you, get into the securities litigation field?

^{Existence of a Solid Market}

If you do acquire this specialisation, the kind of growth you can create is unimaginable. This is a relatively uncrowded field that is at the same time highly well remunerated. I never understood why so many people who are crazy about corporate litigation or M&A do not pursue securities litigation instead, given that there is as much money in it while there are fewer people trying to break into it!

Check out how many large brokerage firms are there in this country. They aren’t exactly skilled in how the SEBI regulations apply to them and how they can avoid getting in the bad books of SEBI. It’s true that smaller firms can have a lower-paying capacity, but if you make a name for yourself, people see you as a medium of getting assured results and then they are willing to pay. Much like people would be willing to pay a dietician whose maximum clients have achieved expected weight losses. 

Also, consider this: brokers are only one type of the many intermediaries regulated by SEBI. There are a significant number of mid-sized portfolio management and investment advisory firms, which though claim to be a pro in share movements, are not very clear of what SEBI regulations apply to them and what compliance is expected of them. 

In addition to these, SEBI has a significant role to play in the registration and regulation of registrars and share transfer agents, debenture trustees and also ‘investment advisors’. 

In smaller sized firms, a notice from SEBI may spell terror. Many of these may not have an in-house legal department and have no clue how to deal with it. If you appear to be someone who knows exactly how to deal with this, they will be very interested in you.

Click Above 

Interestingly, since the last presiding officer of the Securities Appellate Tribunal has been appointed, the tribunal is as questioning of the regulator as it is of the industry. It has been giving due importance to the principles of natural justice. Hence the fact that you have SEBI as the opposite party does not come in the way of your getting a judgment in your favor as long as you have firm grounds in fundamentals of securities laws and have been denied opportunities against natural justice.

Often, the company secretarial functions of listed entities are not aware of how exactly to build systems ensuring compliance with the SEBI regulations applicable to them as listed entities, and they require assistance from securities law experts. Someone who has an in-depth understanding of what exactly regulators look for and have handled litigations will be able to guide on establishing systems in a company that can prove that the entity took all steps possible and does not deserve a penalty.

Apart from this, there are a lot of offenses under various securities laws from insider trading to securities fraud, and processes such as compounding of offences and consent mechanism. All of these represent a golden opportunity for securities litigators.

It is Intellectually Stimulating

Many people broke their heads trying to understand how the big bulls of the securities market like Harshad Mehta, Ketan Parekh, C. R. Bhansali, etc. operated. Even to date, things like these keep happening, since somewhere, someone tries to tilt the balance of the market in their favor and take the benefit of unwary gullible investors. 

If you’re thorough in understanding what constitutes conduct enough to initiate a legal proceeding, you can work for SEBI as something like an ‘ethical hacker in the securities market’. You can also work in defence of corporate bigwigs who have been accused of various offences or wrongdoing.

Securities laws are very stimulating intellectually, and litigation can be even more so since you would thoroughly need to get a grip on and understand the facts and the intent behind the actions before applying the law. It’s not all procedural and dry.

The Rewards are Attractive

Take this example – under Section 15HA of the Securities and Exchange Board of India Act, 1992, where a person engages in fraudulent or unfair trade practices in the securities market, he is liable to pay a penalty which shall not be less than five lakh rupees but which may extend to twenty five crore rupees or three times the amount of profits made out of such practices, whichever is higher.

Think of this – someone can be fined rupees five lakhs in the minimum and depending upon how serious the regulator considers the violation to be, the penalties may run into hundreds of crores. If someone has been fined ten lakh rupees and if you represent them before SEBI / Securities Appellate Tribunal (SAT) and your arguments are effective enough to demonstrate that the client took all steps as required and SEBI / SAT are convinced for the penalty to be reduced to half, the client wouldn’t mind paying you a hefty fee. What could it be? Any guesses? 

Penalty for insider trading is even higher than that as in the minimum amount of penalty is rupees ten lakhs. These matters, therefore, have significant financial implications for a client and as a corollary, lawyers who can effectively represent such clients are paid handsomely.

Sustained practice may enable earnings in other spheres

If you are frequently representing clients before the Securities Appellate Tribunal, you might be able to guide clients on how they should develop their systems so that they do not land themselves in trouble with SEBI. You may also be able to help with how to document and keep a record/track of transactions, since matters may even be taken up by SEBI after a period of 5-7 years. The consultancy and advisory fees here will also be of a decent level since the clients can otherwise be subject to heavy penalties.

A sustained practice may also enable you to write books, offer corporate training, and become a well-paid professional speaker. As I am writing this, I cannot find any books on Amazon about the Securities Appellate Tribunal except for a compendium of cases – there’s immense scope. 

Many tribunal lawyers have written books about various matters dealt with by specific tribunals and this often goes into many editions. Apart from that, there is a high demand for trainers who can explain how securities laws work to directors and top executives. 

You may end up being an SAT member!

How great would it be if you end up on the other side of the tribunal! Many people have this belief that no one other than judges can become tribunal members, but under the Securities and Exchange Board of India Act, 1992, only the presiding officer of the SAT needs to be a sitting or retired judge. If you have demonstrated consistent capacity in dealing with problems in the securities market, as discussed above, have a few books to your name and clients have consistently valued your opinion, nothing stops you from being inducted as a tribunal member. Further, currently, there is only one bench of the SAT, but there would certainly be more regional benches in the years to come and there will be a lack of people having this niche knowledge. I personally know of a company secretary and lawyer who ended up being on the primary markets advisory committee of SEBI due to his sheer knowledge. Nothing stops you from doing big things except for your own limiting beliefs.

So are you going to let your limiting beliefs stop you from taking the first step towards gaining this knowledge? Don’t. Enroll here and work your way through the amazing field of securities litigation.  

And yes, we assure you that you will be able to argue your own cases before SAT and do a lot of the work described above after you do this course. It may take you a long time to get really good at it, but in the next 3 months, you could learn all the basics rapidly, as much as what new entrants take 2-3 years to learn.

Here are some other courses you can enroll in until 15th:

Diploma

Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution

Diploma in M&A, Institutional Finance and Investment Laws (PE and VC transactions)

Diploma in Entrepreneurship Administration and Business Laws

Executive Certificate Courses

Certificate Course in Advanced Corporate Taxation

Certificate Course in Insolvency and Bankruptcy Code

Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting

Certificate Course in Legal Practice Development and Management

Certificate Course in Securities Laws, Insider Trading and SEBI Litigation

Certificate Course in Media and Entertainment Law: Contracts, Licensing and Regulations

The post Why we Launched a Securities Law Litigation Course appeared first on iPleaders.