In this blog post, Srishti Khindaria, a student of Amity Law School, Delhi, Guru Gobind Singh Indraprastha University, analyses how surrogacy is leading to serious troubles instead of solving problems in the lives of people and also how the government is undertaking certain legislative actions to safeguard the rights of surrogate mothers.

Some women due to certain biological or physiological conditions are unable to give birth to their off-springs. They thus go searching for alternative solutions and surrogacy is one of the most viable options. Advancement in the field of assisted reproductive techniques (ARTs) has revolutionized the process of surrogacy, thus making it the most sought after options. This system has been a ray hope to many infertile couples.

The word ‘surrogate’ literally means ‘substitute.’ It means that the genetic-biological mother is substituted by the surrogate mother. In common parlance, a surrogate mother is someone who is hired to bear a child, which is handed over to an employer at its birth. According to the Assisted Reproductive Technology (Regulation) Bill 2014 “surrogacy” means an arrangement in which a woman agrees to a pregnancy, achieved through assisted reproductive technology, in which neither of the gametes belongs to her or her husband, with the intention to carry it and hand over the child to the commissioning couple for whom she is acting as a surrogate. [1]

In the past, surrogacy arrangements were confined to close kith and kin, family or friends and usually a selfless deed. However, with an introduction of financial arrangements the ‘network of surrogacy’ has extended beyond the family, community, state and in recent times even the country, the industry has been commercialized to such an extent that surrogate wombs are now ‘recruited’ and ‘rented’ and agencies- that make huge profits- have cropped up. Such rapid commercialization raises fears of malpractices like black marketing, baby selling, and breeding farms. Some agencies have degraded pregnancy under surrogacy to a ‘service’ and the baby a ‘product’.

Troubles with Surrogacy in India

Surrogacy is estimated to be an industry worth nearly $2.3 billion; however surrogate mothers in India are less than tenth of what they would ordinarily get in any other part of the world. With a rapid surge in the number of IVF clinics, the absence of a rigid regulatory framework and ready availability of poor women who are willing to rent out their wombs, India has become an attractive option. However, all of this comes at a cost.

At one glance, surrogacy seems like a highly viable option, the poor surrogate gets much-needed money, and an infertile couple gets a child, but if we dig deeper, the real picture is much harsher. Due to lack of a legislative framework, both surrogate mothers and the parents are in most cases exploited, and commercial agencies and middlemen end up earning profits. There is no transparency and a high risk of getting tangled in legal hassles due to the unpredictable regulations regarding surrogacy in our country. Legal since 2002, commercial surrogacy has been open to grave misuse in India.

Under the Artificial Reproductive Technology (Regulation) Bill a surrogate mother ‘is a woman who agrees to have an embryo generated from the sperm of a man who is not her husband, and the oocyte for another woman implanted in her to carry the pregnancy to full term and deliver the child to its biological parents(s).’

By this definition, any surrogacy contract which involves the woman using her oocyte or egg to bear the child along with that of the commissioning man would be illegal. Also by the definition of surrogacy under section 2 (zq) all fertile surrogate mothers will have to use necessarily technology used to infertility treatment- i.e. in-vitro technologies- even if pregnancy can be introduced by other methods such as artificial insemination, which is much safer. Further, there is not standardization of the drugs used, no proper procedure of documentation, lack of information to the surrogate mothers about the side-effects of the drugs used and no limit set as to the number of times a woman may go through such a procedure.

Surrogacy that crosses borders also leads to several problems of citizenship, nationality, parentage, motherhood and also rights of the child. There are several occasions where children are denied nationality in the country of their actual parents which could result in a long-winding legal battle as happened with German couple who had twin surrogate children or an Israeli couple who underwent a DNA test to establish their parentage, there are also several instances where at a later stage the child was abandoned by the intended parents and had to spend his/her life in an orphanage, which hampers the growth and well-being of the child.

Changes and Legislative Action

In light of the Assisted Reproductive Technology (Regulation) Bill, 2014

India, as mentioned earlier, has emerged as the booming market for surrogacy. Cheap medical facilities and advance know-how in reproductive technologies coupled with backward socio-economic conditions and lack of firm legislative frameworks have led to making Indian a popular destination. Reports suggest that the revenue from commercial surrogacy could be anywhere $500 million to $2.3 billion, annually. A major reason for this is the influx of foreigners availing such services in India. However, developments over the past few months may have a major impact on the outflows of this industry and also possibly help safeguard interests of surrogate mothers.

Firstly, the Union Health Ministry in 2015 sought a permanent ban on commercial surrogacy in India. And according to the guidelines issued by the Department of Health Research (DHR), the import of ‘human embryo’ except for research purposes has also been banned. This has been seen as a significant step in insuring the rights of surrogate mothers and the children they bear. The Health Ministry’s affidavit clearly states “The Government of India does not support commercial surrogacy”, and that surrogacy should be available to Indian married infertile couples only and not to foreigners.”

Also, the new Assisted Reproductive Technology (Regulation) Bill, 2014 has been released by the Health Ministry, which seeks to restrict ART services in India to Indians only. The bill follows previous legislations in 2008, 2010 and 2013; the law commission had also commented on a need for ART regulation and the Indian Council for Medical Research developed guidelines to compensate for the legislative vacuum.

According to Ministry of Home Affairs (MHA), guidelines dated July 9, 2012, surrogacy was restricted to foreign nationals or a man and woman who had been married for at least two years. However the new 2014 Bill lays down more stringent laws; surrogacy is now restricted to married Indian infertile couples only, thus debarring all foreign nationals other than married PIOs (Person of Indian Origin), OCIs (Overseas Citizen of India) and NRI (Non-Resident Indian). It also seeks to end all forms of commercial surrogacy.

Some of the other prominent provisions of the bill are as follows:

• The bill by defining a couple as a “married man and woman” shuts doors on homosexuals and people in live-in- relationships.
• The bill proposes to make mandatory for all couples who commission surrogacy to accept custody of the child/children irrespective of any inherent abnormality that may be present.
• The couple shall also have to submit a certificate indicating that the child born through surrogacy is genetically linked to them and that they child shall not be involved in any pedophilia or pornography.
• Married, single, divorced or widowed women are allowed to act as surrogates. The minimum age of a surrogate mother shall be 23 years and maximum 35 years, and she must have at least one live child of her own who is at least three years old. And that no woman shall be allowed to act as a surrogate for more than one successful live birth in her lifetime, and there must be a time gap of at least two years between the surrogate delivery and that of her child.
• If a child is born to a foreign nation married to an Indian citizen by sperm/egg donation or surrogacy, then the child shall not be an Indian citizen, despite that fact that he/she was born in India. The child shall be entitled to Overseas Citizenship of India under Section 7A of the Citizenship Act, 1955.
• The draft also includes various provisions to regulate the clinics that provide such facilities in India. It states that not ART clinic shall provide the couple with a child of pre-determined sex and no ART clinic, or bank shall provide any information about the surrogate or potential surrogate to anyone.

Conclusion

Such steps do seem like the way forward in safeguarding interests of all parties; the childless couple, the surrogate mother and the newborn child. These are essential to prevent exploitation, my middlemen. However, such drafts just on paper will not help, it is essential that a firm legislation is passed as soon as possible by the legislators of our country to ensure that surrogate motherhood which is seen as an ethical way to provide childless couples with children does not turn into a completely commercialized sector with no ethics or responsibility and severe exploitation of the surrogate mother.

Footnote:

[1]Assisted Reproductive Technology (Regulation) Bill 2014, Section 2 (zq)

The post Surrogacy – Commercial Or Ethical? appeared first on iPleaders.

In this blog post, Srishti Khindaria, a student of Amity Law School, Delhi, Guru Gobind Singh Indraprastha University, analyses the dark realities of the Triple or Oral Talaq system, and how it is being used as a tool to suppress women in the wake of the recent petition by the Bharatiya Muslim Mahila Andolan and the horrifying case of Saira Banu.

The word Talaq (Arabic for divorce) means “rejection” or “repudiation.” Under Muslim Law, it means immediate or eventual release from a marriage bond.  In a narrower sense, it could be associated with usage of certain words by the husband but is associated with all kinds of divorce, particularly repudiation by or on behalf of the husband. In Talaq, the husband pronounces the phrase “I divorce you” to his wife. A man is given the possibility to divorce his wife thrice, with the choice to take her back after the first two. After the third Talaq, the divorce is irrevocable, unless under Halala.

The first Talaq is known is Ahsan or best method of divorce, and it is believed by many jurists that this must be given by the husband to the wife in her Thur or menses-free time. Such a Talaq is revocable during the period of Iddat– the waiting period. Should the husband not do so, the divorce takes effect upon expiry of Iddat. However, the divorced couple has the choice to remarry at a later date.

A second Talaq by the husband is known as Hassan (good), following the same procedure adopted in Ahsan. And he may once again revoke the Talaq before the expiry of the Iddat period, and the divorced couple may remarry at a future date- after the expiry of Iddat– if they choose to.

However, when the Talaq is given for the third time by the husband to his wife, the marriage is dissolved. There is no period of Iddat, no room for later reconciliation and the divorce is irremediable. The divorced couple can only remarry if the woman marries another man who subsequently divorces her, that is, she consummates her marriage with another man. This system of an intervening marriage is called Halala.

The system of Halala is often exploited, used a tool to overcome the Islamic prescription that prohibits remarriage of couples who have been divorced thrice. To many, it might seem amusing that a woman would wish to re-marry a man who has divorced her thrice already, but this is precisely where the harshness of another practice of Talaq known as Talaq-ul-Bidat comes to light. Talaq-ul-Biddat or Triple Talaq is where the husband repeats thrice “Talaq, Talaq, Talaq” or any similar connotations or adds the word “triple” to Talaq. This ends up having the same consequences as an irrevocable divorce and the marriage dissolves immediately. According to the Hanafi School of Thought Talaq-ul-Biddat is deemed “sinful and innovative.”[1]

Talaq-ul-Biddat is said to be an innovation undertaken to ensure that an incorrigibly acrimonious couple could part ways as quickly as possible. [2] Pointing to Quran 65:1, many Islamic scholars believe that a waiting period is essential between the three talaqs. However, the practice of Talaq-ul-Biddat or “triple talaq” at one sitting has been legally recognized historically and received consensus among the scholars fromfour Sunni schools of jurisprudence – Hanafi, Maliki, Hanbali, and Shafi. However, this consensus was broken by Ibn Taimiyah, a Hanbali scholar, who argued that three talaqs in one sitting counts as one. This “three equals one” position of Taimiyah was considered to be a minority view, but more than 20 countries have adopted it over the last century, with Egypt being the first. The Indian legal framework though still gives Triple Talaq validity.

The Fight against Triple Talaq in India

Several organizations- especially women’s groups- within our country have been fighting for the abolition of triple Talaq, calling it an “un-Quranic” practice, which is used as a tool to exploit women.India is one of the few countries that still recognizes oral and triple Talaq. The Muslim Personal Law (Shariat) Application Act 1937 governs personal laws of Muslims in our country. This personal law is uncodified and open to interpretation by the local clergy, thus adding to the agony of the women.

Very recently, the Bharatiya Muslim Mahila Andolan (BMMA), sought the support of the National Commission for Women to abolish the practice of triple Talaq owing to its widespread misuse, with instances such as husbands using emails and WhatsApp to divorce their wives, and around 50,000 Muslim women have signed a petition by the organization, to abolish this system of Triple Talaq.

“Muslim law is not fortified in India, which means that there is no law. It is open to interpretation by anyone. This is the main reason why Muslim men can get away with almost anything. It has become easier for them to divorce their wives in the digital era. We are encountering some cases now where the men are using digital media to divorce their wives”, says Noorjehan Safia Niaz, founding a member of Bharatiya Muslim Mahila Andolan.[3] Today, women are divorced by their husbands for the flimsiest of reasons, ranging from wearing spectacles to not being a good cook[4] and digital media divorce has only added to the suffering. What adds to the agony is that even the clergy is unsure of the validity of divorce using social media. A survey of about 5,000 women across ten states conducted by the Bharatiya Muslim Mahila Andolan (BMMA) found that over 90% of these women wanted an end to the practice of polygamy and triple Talaq. And of the 525 divorced women surveyed, 78% had been given triple Talaq; and 76 of these women had to practice Halala i.e.consummate another marriage so that they could go back to their former husbands. [5]

Saira Banu case

The case of Saira Banu has also added fuel to the fire for the fight against triple Talaq. Her story, as reported by the media, is heartbreaking and gut-wrenching. Saira, braved a rotten marriage, an abusive husband and several forced abortions that lead to severe physical and metal agony, for over a decade. Then, last year, her “husband” sent her a letter at her parents’ home- where she had been staying for almost a year, and inscribed on that piece of paper were the three words: “Talaq, Talaq, Talaq.”

Saira Banu, a sociology graduate, instead of accepting her circumstances, decided to fight. But instead of approaching the court and ask that it order her husband to pay her maintenance, she has started an even greater fight. Saira Banu has boldly challenged the validity of her husband’s actions of kicking her out at his fancy using the triple Talaq formula. She had filed a petition in the Supreme Court seeking the illegal status of not just triple Talaq but also polygamy and Halala.

The All India Muslim Personal Law Board (AIMPLB) is against any such actions and says it is outside the jurisdiction of the Apex Court to intervene in Muslim Personal Law.[6] However, the AIMPLB has been criticized by several known jurists for clinging on to outdated, draconian laws and medieval customs.Moreover, the Muslim Personal Law Board defends a practice that is in its true sense un-Islamic in the name of Sharia. And it is high time that their bluff must be called. [7]

It is true that triple Talaq did receive a sanction, especially during the reign of the second Caliph Omar, but what has been done now by the self-severing Muslim clerics is that the letter of the law has been adopted, while its spirit; junked. The Caliph Omar pronounced triple Talaq as a final resort in cases where the woman wanted to walk desperately out of a bad marriage, and their husbands were delaying the divorce by misusing the long-drawn procedure prescribed by the Quran. So it was for the sake of the women that the Caliph Omar had given legal sanction to Triple Talaq back in the 7^th century. But what present day clerics have done is to twist it to suit their patriarchal ends.

The Road Ahead

“I think it should be stopped. Many a time, husbands get drunk and just say Talaq thrice. Then the woman is just left nowhere. This is not right,” said a student on condition of anonymity to an NDTV reporter. Such a Talaq renders wives extremely insecure and vulnerable regarding their marital status, leaving them in a constant state of flux and after such a divorce women are shunned both by family and society.

Saira Banu’s case provides a window into the lives of these victims and is a great opportunity to usher in a much-needed reform. The government and the Supreme Court must work towards appraisal of the condition of Muslim women. The Muslims Personal Law Board must be shown its place. Saira Banu must not meet the fate of Shah Bano, where the legislature succumbed to the heretical pressure groups within the community. The government must intervene.The bias in Muslim laws must be removed; a woman may seek a divorce from her husband under Khulla, but for this, she requires the permission of her husband whereas the man may simply utter Talaq thrice to obtain a divorce. It must be stated clearly that the Muslim Personal Law Board should fall in line with the modern secular law when it comes to the rights of women, or it should simply perish. It can’t be allowed to carry on with its whimsical and patriarchal ways in the name of securing the Sharia law at the cost of the basic dignity of women. Further, A high-level committee set up by the Central government to review the status of women in India has sought a ban on the practice of oral, triple and unilateral Talaq or divorce, as well as polygamy.

Conclusion

Lastly, the question that arises isif laws in countries- with majority Muslim population- like Egypt, Kuwait, Morocco, Iraq, Jordan, the UAE, Sudan, Yemen, the Philippines, and Syria have totally derecognized the concepts of triple Talaq and halala, then why should the All India Muslim Personal Law Board be allowed to parade these inhuman and illegal practices in the 21^st century within a secular and democratic nation like India?

Footnotes:

[1]http://www.irfi.org/articles/articles_151_200/triple__talaq.htm

[2]http://scroll.in/article/806299/if-pakistan-and-21-other-counties-have-abolished-triple-talaq-why-shouldnt-india

[3]http://www.contributoria.com/issue/2014-11/54117a4bce8de2c86a00016f/

[4]http://www.contributoria.com/issue/2014-11/54117a4bce8de2c86a00016f/

[5]http://www.ndtv.com/blog/ban-triple-talaq-declare-muslim-personal-law-board-illegal-1396658

[6]http://timesofindia.indiatimes.com/india/Muslim-personal-law-outside-SC-jurisdiction-asserts-board/articleshow/51534701.cms

[7]http://www.ndtv.com/blog/ban-triple-talaq-declare-muslim-personal-law-board-illegal-1396658

The post The Dark Realities Of Triple Talaq appeared first on iPleaders.

In this blog post, Srishti Khindaria, a student of Amity Law School, Delhi, Guru Gobind Singh Indraprastha University, analyses the concept of the right to die on the debate over euthanasia. The blog post also analyses the implication of the Aruna Shanbaug case and also how The Medical Treatment of Terminally Ill patients (Protection of Patients and Medical Practitioners) Bill, 2016 could be of some help.

The Right to Life is enshrined under Article 21 of The Indian Constitution as a fundamental right guaranteed to each and every citizen of Indian. This right has been liberally interpreted by the courts so as to mean something beyond just mere survival and existence and the Supreme Court further went on to assert that this right is the heart of the fundamental rights enshrined under part III of the constitution. [1]

In India, the Right to Life has received the broadest and widest possible interpretation at the hands of the judiciary. It not only includes protection of a person’s life but also confers upon the citizens a right to live a dignified life. It takes within its ambit some of “the finer graces of human civilization, which make life worth living,” and it has expanded its scope to include the culture, tradition and language of the person concerned. Now the question that arises is if the right to life includes living with dignity would the right to end life with dignity also fall within this right? Many have argued that Article 21 confers upon an individual the right to live with the dignity it should also bestow upon individuals the “Right to Die.”

The right to die however contravenes the provision under section 309 of the Indian Penal Code as well as section 306. According to Section 309,

“Whoever attempts to commit suicide and does any act toward the commission of such offense, shall be punished with simple imprisonment for a term which may extend to one year [or with fine, or with both].“

Those in favour of this section argue that it is based upon on the principle that lives of men are not only valuable to them but to the state too, which protects them. However, this provision has been questioned on moral and constitutional grounds not only by human rights activists but also the courts of law.

This question of law came up for the first time before the Bombay High Court in State of Maharashtra v. Maruti Sripati Dubai. The court held that right to life under Article 21 included the right to die, and it struck down section 309 of the Indian Penal Code as unconstitutional. Further in P Rathinam v. Union of India supporting the decision of the Bombay High Court in Maruti Sripati Dubai, a Division Bench of the Supreme Court held that right to die was included in Article 21 and also declared section 309 of the Indian Penal Code as unconstitutional.

In 1996, the case of Gian Kaur v. the State of Punjab came to the Supreme Court where abatement of the commission of suicide under section 306 of the Indian Penal Code was under question. The accused contended that any person abetting the commission of suicide by another is merely assisting them in enforcing their fundamental right under Article 21. However the Constitution Bench of the Supreme Court held that right to die is not included under Article 21 or the “right to be killed.” Any aspect of life which makes life dignified may be included but none that extinguishes it. And that the “right to die- if any- is inherently inconsistent with the right to life as is “death” with “Life”.”

The Debate over Euthanasia

Euthanasia is derived from the Greek words “eu” meaning well or good and “thanatos” meaning death. Therefore, euthanasia could be seen to mean good death. The Oxford dictionary defines Euthanasia  as “painless killing of a person who has an incurable disease or who is in an irreversible coma.”  According to the House of Lords Select Committee on Medical Ethics, it is “a deliberate intervention undertaken with the express intention of ending life to relieve intractable suffering”.

Euthanasia encompasses various dimensions; it could be;

• Active Euthanasia – It is brought about by an act, by introducing something that facilitates death. Direct and deliberate measures are taken to cause the death of the patient. For example, an overdose of painkillers
• Passive Euthanasia – No direct actions are taken. Instead, measures are taken to withhold or withdraw supportive measures i.e. death is brought about by an omission. For example, switching off the ventilator machine which is sustaining the life of the person.
• Voluntary Euthanasia – It takes place with the consent of the person who is about to die.
• Non-Voluntary Euthanasia – It includes cases where a person is unable to make an informed decision about living and dying or is unconscious, and someone else takes the decision on his/her behalf.

It also covers cases of children who are mentally ill and emotionally able to make decisions but not old enough in the eyes of the law to make such a choice so someone else must make it on their behalf.

• Involuntary Euthanasia – It includes cases where people not willing to die- i.e. those who choose to live- are killed anyway. It is usually termed as murder, but it may be possible to think of cases where such acts would be for the benefit of the person dying.

Such a request for premature ending of life has led to serious debates about the role of such practices and their impact on contemporary health care practices. This debate cuts out several dynamic and complex aspects such as ethical, legal, religious, human rights, economic, cultural and social.

Euthanasia in India and the Aruna Shanbaug case

In the Indian context, the demand for legalization of euthanasia gained notable attention only after the Aruna Shanbaug case. Demands were made before this case too, through several petitions submitted to different courts and Presidents. This was, however, the first case where the subject of euthanasia was entertained by any court.

Aruna Shanbaug was a 24-year-old nurse from Karnataka working in King Edward Memorial Hospital in Mumbai. On the evening of 27^th November 1973 while Aruna was on duty, hospital sweeper attacked her and tried to rape her. The sweeper sodomized- when he found out that she was menstruating her- in the most brutal of ways in the canine experiment room of the ways. He strangulated her by wrapping a dog chain around her neck. She was found the next morning, unconscious with blood all over her. It was suspected that due to strangulation blood supply to her brain had stopped and caused damage. She received serious injuries to her brain stem and cervical cord and pushed her into a PVS (permanent vegetative state). Aruna Shanbaug remained in a vegetative state for over 40 years in the same hospital and finally breathed her last on 18 May 2015.

The case was taken up as a writ petition filed in 2009 under Article 32 of the Indian Constitution by Pinki Virani- claiming to be Aruna’s next friend. [2] The court held that active euthanasia is a crime world over except where permitted by legislation. In India, active euthanasia is a crime under sections 302 & 304 of  IPC and physician-assisted suicide is a crime under Section 306 of IPC, which deals with abetment to suicide. The Supreme Court turned down the plea for euthanasia in her case but went on lay down guidelines for passive euthanasia in the ‘rarest of rare circumstances.’

The judgment however, is considered historic; its recommendations for allowing passive euthanasia are as follows:

• Any petition for application Passive Euthanasia has to be filed with the relevant high court. The Chief Justice of that High Court would then constitute a Bench of at least two Judges who would decide whether or not to grant approval.
• Before taking any decision, the bench should seek the opinion of a committee of three reputed doctors to be nominated by the bench. Preferably, one of the three doctors should be a neurologist; one should be a psychiatrist, and the third a physician.
• The High Court Bench should issue the notice to the State and close relatives e.g. parents, spouse, siblings etc. of the patient and the next friend, in their absence.
• The Court should supply a copy of the report of the doctor’s committee to them as soon as it is available.
• After hearing pleas of all the parties, the High Court should give its verdict.
• This verdict should be given at the earliest.

Further, Lodha J in the case of Naresh Marotrao Sakhre v. Union of India affirmed that Euthanasia or mercy killing is nothing but homicide whatever the circumstances in which it takes place.

The Medical Treatment of Terminally Ill patients (Protection of Patients and Medical Practitioners) Bill, 2016

Addressing the heavily debated issue of mercy killings and euthanasia the government has come up with draft Bill on passive euthanasia which shall grant terminally ill patients the right to withhold treatment. According to the draft, any terminally ill patient above the age of 16 is competent to decide whether or not he/she wants further treatment administered.

If a person is capable of making an informed decision about the course of his or her treatment and can effectively communicate it then such a decision is binding on the doctor treating the patient, provided the doctor too feels that the patient is making an informed decision and such decision has been communicated to his/her family.

 However, the bill is facing severe and bitter criticism; firstly many oppose the age of consent being set at 16, and secondly many doctors and experts feel that the draft Bill is a colossal disappointment. [3]

Conclusion

Though the government is trying to take legislative actions to legalize passive euthanasia, their actions seem misguided. The new draft bill only covers voluntary passive euthanasia in cases where the patient is above the age of 16 and, where the patient has capable of making an “informed decision.” It fails to provide proper care in cases where the patient may be incompetent- that is below the age of 16, unconscious, of unsound mind, brain dead, in a permanent vegetative state or a state of unconsciousness as the family members who want to withhold treatment will have to move to the High Court. This will add to the burden of the already overburdened courts, with about 3 million cases pending with them already. Further, our system only recognizes passive euthanasia which according to doctors has been abandoned by modern medicine.

Footnotes:

[1] Unni Krishnan v. State of Andhra Pradesh

[2]Aruna Ramchandra Shanbaug v. The Union of India  

[3]http://scroll.in/article/808096/draft-bill-on-euthanasia-says-16-year-olds-can-decide-on-withdrawing-life-support

The post Do We Have The Right To Die? appeared first on iPleaders.

In this blog post, Srishti Khindaria, a student of Amity Law School, Delhi, Guru Gobind Singh Indraprastha University, talks about the need for a Uniform Civil Code (UCC)  which is laid down as a Directive Principle of State Policy under Article 44 of The Indian Constitution. The writer tries to debunk certain myths associated with the UCC and how certain judicial decisions such as the Shah Bano Case and the Sarla Mudgal have played a decisive role in showing the pressing need for a uniform code for the country.

The term Uniform Civil Code (UCC) envisages administration of the same set of secular rules to govern people belonging to different regions and holding different religious beliefs. The term is used to denote a set of rules and regulations that govern all personal matters like; marriage, adoption, divorce, maintenance and inheritance- including matters related to property and personal status of citizens.

Article 44 of the Indian Constitution enshrines this principle as a Directive Principle of State Policy, it reads;

 “The State shall endeavor to secure for the citizens a Uniform Civil Code throughout the territory of India.”

Though the exact outlines of such of code are yet to be spelled out it should presumably incorporate the most progressive and modern aspects from all existing personal laws of various religions while disregarding those who are regressive. As things currently stand in India, different communities have different laws governing different aspects of their daily lives, i.e. the laws governing inheritance and divorce among Muslims would be different from those of Christians and Hindus.

The Uniform Civil Code (UCC) is seen as the sign of a progressive nation; it shows that the nation has moved beyond the traditional demarcations based on religion, sex, caste and place of birth. It is seen as a beacon to facilitate much needed social growth in India along with economic growth.However, there are many who advocate that with the implementation of UCC the secular fabric of our country would be threatened, and it would be a potential threat to the religious freedom, especially for minorities.

Why UCC Doesn’t Limit Religious Freedom?

UCC does not limit the freedom of people to follow their religion; it means every person should be treated equally. Most of the personal laws have an inherent bias against the rights of women such as Unilateral Oral Talaq in Muslim Law, limited property rights of women in Christian Law or restitution of conjugal rights issue under Hindu Personal Law. This bias does not operate only against women, but also men.

The Hindu Marriage Act, 1955, is the only personal law that provides for alimony from the wife to the husband, even the Foreign Marriage Act, 1969, or The Special Marriage Act, 1954, which are supposed to be gender neutral have no provision under which the husband can demand alimony from his wife. Similarly, personal laws do not provide for inter-religious marriages[1] thus prove to be divisive in society. Some benefits may also be considered unconstitutional for example, the Hindu Undivided Family gets tax exemptions, and Muslims must not register gift deeds; such benefits are based on religion and thus unconstitutional.

Further, an extra burden is added on the judiciary when different communities are governed by different laws. Bringing in a Uniform Civil Code would help reduce it and also help simplify a lot of technicalities and inherent confusions that are attached to present personal laws. Thus, addressing loopholes present in pre-existing personal laws.

Another important advantage of implementing the Uniform Civil Code is that it will bring an end to dirty vote bank politics which is relied upon by a majority of the political class to meet their ends. This is because if all of the India has the same set of laws governing it, then the politicians will have nothing to offer to the community on religious grounds in exchange for votes. The Supreme Court of India also has time and again reiterated the importance of enacting a Uniform Civil Code. During the Constituent Assembly Debates, B.R. Ambedkar had also demonstrated his will to reform Indian society by recommending the adoption of a Civil Code of western inspiration and he went on to add;

“I do not understand why religion should be given this vast, expansive jurisdiction, so as to cover the whole of life and to prevent the legislature from encroaching upon that field.”[2]

Every modern nation which has truly embraced ‘Secularism’ has a Uniform Civil Code.

Shah Bano Case

The conflict between religious and secular authorities over the issue of UCC eventually subsided, until the advent of the Shah Bano case in 1985[3]. This case was controversial in many aspects, chiefly because it allowed for alimony and maintenance to Muslim women beyond the Iddat (or waiting) period. In this case, the Supreme Court ruled for Shah Bano Begun under the provision of Section 125 of the Code of Criminal Procedure, which allows right to maintenance to a wife, and is applied to all citizens irrespective of religion.

“Under section 125 (1) (a), a person, who, having sufficient means, neglects or refuses to maintain his wife who is unable to maintain herself, can be asked by the Court to pay a monthly maintenance to her at a rate not exceeding five hundred rupees… ‘wife’ includes a divorced woman who has not remarried”[4]

The Supreme Court thus, allowed for maintenance of a Muslim woman post-divorce on a monthly basis. However, this became a largely debated controversy and in the wake of the Anti-Sikh riots of 1984, the minorities in India, felt a need to safeguard their interests and their culture, especially the Muslims, who are the largest majority in the country. Section 125 of the Code of Criminal Procedure was seen as a threat to pre-existing Muslim Personal Law and the All India Muslim Personal Law Board members campaigned for complete autonomy in their personal laws and further accused the government of promoting and imposing Hindu dominance over all citizens at the expense of the minorities of the nation.

The Union Government fearing loss of a bulk of its Muslim vote share, overturned the decision of the of the Supreme Court in the Shah Bano Case and a legislation- The Muslim Women (Protection of Rights on Divorce) Act, 1986– was passed by the Parliament with full majority, though it was strongly opposed, and the government faced severe backlash from Muslim Liberals and women’s organizations. [5]

Sarla Mudgal Case

In the case of Sarla Mudgal[6], the issue of bigamy and the conflict between pre-existing personal laws on the matters of marriage were brought in front of the Supreme Court. It invoked Article 44 of the Constitution. This judgment is considered a landmark decision that accentuated upon the need for a uniform civil code in our country.

The Supreme Court said that it appeared that even after 41 years the Rulers of the day are not in the mood to fetch Article 44 from the “cold storage” where it has been lying since 1949. The governments which had so far come and gone had failed to any serious effort towards a unified personal law for all of the India.  “When more than 80% of the citizens have already been brought under the codified personal law, there is no justification whatsoever to keep in abeyance, anymore, the introduction of Uniform Civil Code for all citizens in India.[7]

The apex court further observed that “It does not matter of doubt that marriage, succession and like matters of secular character can’t be brought within the guarantee enshrined under Article 25 and Article 26 of the constitution.” Further, in John Vallamattom v. Union of India[8], the Supreme Court again reiterated that a framing of a uniform civil code by the Parliament will be a great step towards removing contradictions of people based on ideologies and will lead to national integration.

The Road Ahead For Uniform Civil Code

The issue of implementation of a Uniform Civil Code has been severely politicized, with two upper sides that have now formed; the Congress along with Muslim conservatives versus the Right wing and Left. The debate over UCC is one of the most controversial issues in 21^st century India with its manifold implications, mainly on the secularism of the country.

One of the major problems of implementing UCC is the diversity in religious laws of our country which differ by community, region, section, and caste. The seed of doubt in the minds of people- especially the minorities- that the religious ideologies of the majority religion will be imposed upon them is what needs to be eradicated, for an introduction of a draft of UCC and a subsequent smooth implementation.

Presently Goa has a common family law, also known as the Goa Civil Code. It is a set of civil laws that governs all Goans, irrespective of their religious beliefs; though it is quite different from a uniform civil code and has certain exceptions for some communities it shows that enactment of a uniform code is indeed quite feasible in India.

Bringing the UCC would help and reduce many technicalities and loopholes present in present existing personal laws, it was an aspiration of our Constitution makers. The Government must draft a common civil code with the view of all minorities and their best interests in mind; it must consult the Law Commission, National Commission for Women, National Human Rights Commission, Former Judges of Supreme Court, High Courts, Attorney Generals and Solicitors General. A sudden enactment might disrupt communal harmony. Thus a set of steady reforms is the must. The government must implement the uniform civil code in the true spirit of Article 44 of the Constitution.

Footnotes:

[1]http://www.oneindia.com/feature/why-india-urgently-needs-uniform-civil-code-2037892.html

[2]http://www.outlookindia.com/website/story/ambedkar-and-the-uniform-civil-code/221068

[3]Mohd. Ahmed Khan v. Shah Bano Begum (1985 SCR (3) 844

[4] Code Of Criminal Procedure, 1973

[5]http://www.youthkiawaaz.com/2012/06/the-shah-bano-case-a-landmark-case-in-indian-family-law/

[6]Sarla Mudgal, & others. v. Union of India,AIR 1995 SC 1531

[7]” http://centreright.in/2013/08/is-indianization-through-a-uniform-civil-code-a-communal-objective/

[8]  (2003) 6 SCC 611

The post The Need For Uniform Civil Code In India appeared first on iPleaders.

In this blog post, Srishti Khindaria, a student of Amity Law School, Delhi, Guru Gobind Singh Indraprastha University writes about the new Income Declaration Scheme introduced in the Finance Act of 2016.

The Income Declaration Scheme, 2016 is contained in Chapter IX of the Finance Act, 2016 and provides an opportunity to all persons who have not declared their income correctly in the previous years to come forward and do so now. A scheme of similar nature was launched earlier too in 1997, known as the Voluntary Disclosure of Income Scheme (VIDS).  This new Income Declaration Scheme of 2016 will remain in force from 1^st June 2016 to 30^th September 2016, i.e. a period of four months.

The Prime Minister, too in the 21st edition of his Man Ki Baat on 26th June 2016 asked all citizens to declare by 30th September their undisclosed income, making it clear that this would be the last chance to avoid any problems which would follow after this window closes. Mr. Modi said on his monthly radio program “For those having undisclosed income, the government has provided a special chance to declare it by September 30.”[1]

Who can avail this scheme?

This scheme is a window for all those who have not paid taxes or concealed assets in the past to come forward and declare their income and pay tax, surcharge and penalty totaling in all to forty-five per cent of such undisclosed income declared (further explained below).

This scheme shall apply to

1. Any income or
2. Any income in the form of investment in an asset located in India

Fair market value of the asset as on 1^st June 2016 is deemed to be the undisclosed income.

1. And acquired out of income that is taxable in India under the Income Tax Act
2. For an assessment year before 2017-18.

What is the rate of tax that will be charged?

Under this scheme the income declares would be taxed at the rate of 30% plus a “Krishi Kalyan Cess”of 25% on the tax payable and a penalty at the rate of 25% on the payable tax , therefore 45% of the income declared under the scheme is taxed.

What is the process of declaration?

1. A declaration can be made at any time from 1^st June 2016 up to 30^th September 2016 in Form-1.
2. Post-filing the declaration the Principal CIT who has jurisdiction or the CIT shall issue an acknowledgment in Form-2 within 15 days from the end of the month in which the declaration under Form-1 was made.
3. This acknowledgment will ensure that the declarant is not liable for any adverse consequences under the scheme on any income which has been declared under the scheme but found to be ineligible for declaration.
4. The declarant shall have to furnish proof of payment of tax, surcharge and penalty in Form-3 to the jurisdictional Principal CIT/CIT.
5. After this proof has been furnished by the declarant, the jurisdictional Principal CIT/CIT shall issue Form-4 within 15 days. Form-4 certifies that the declaration has been accepted.
6. The last date for payment is 30^th November 2016.

In what cases is the declaration applicable?

The declaration is not applicable in all cases. As per the scheme the declaration for the assessment year 2016-17 or any earlier assessment year cannot be made in the following circumstances;

1. Where a notice has been issued under section 142 or section 143(2) or section 148 or section 153A or section 153C of the Income Tax Act in respect of such assessment year and a proceeding is pending before the Assessing Officer. The notice must have been served upon the person on or before 31^st May 2016 i.e. before the date of commencement of the scheme.

In the form of declaration i.e. Form-1, the declarant shall have to verify that he/she has not been served with any notice on or before 31^st May 2016.

1. The declaration cannot be made where a search has been conducted under section 132 or section 132A of the Income Tax Act, or a survey has been carried out under section 133A in the previous year and the time for issuance of a notice under section 143 (2) or section 153A or section 153C for the relevant assessment year has not expired.

In the form of declaration (Form-1), the declarant will also verify that these facts do not prevail in his case.

1. Cases covered under the Black Money (Undisclosed Foreign Income & Assets) and Imposition of Tax Act, 2015 are also not considered valid.
2. Any person in respect of whom proceedings for prosecution have been initiated under Chapter IX (offences relating to public servants) or under Chapter XVII (offences against property) of the Indian Penal Code, 1860 or the Narcotic Drugs and Psychotropic Substances Act, 1985 or the Prevention of Corruption Act, 1988 shall not be eligible to make a declaration under this scheme.
3. Also, any person who has been notified under section 3 of the Special Court (Trail of Offences Relating to Transactions in Securities) Act, 1992 or any person in respect of whom a detention order has been made under the COFEPOSA (Conservation of Foreign Exchange and Prevention of Smuggling Activities Act), 1974 shall not be eligible for making declarations under the scheme.

Invalid declarations

Under the scheme a declaration shall be deemed to be void and never have been made in the following circumstances;

(a) If the declarant fails to pay the entire amount of tax, surcharge and penalty by 30^th November 2016.

(b) If the declaration has been made by misrepresentation or suppression of facts or information.

Where the declaration is deemed to be void for the above-stated reasons it shall be deemed to have never been paid and all provisions, penalties and prosecutions under the Income Tax Act shall also apply if any tax surcharge or penalty has been earlier paid it shall not be refunded.

Effects of declaration

If a detailed valid declaration has been made then it will have the following consequences;

1. The amount of undisclosed income which has been declared will not be included in the total income of the declarant for any assessment year under the Income Tax Act.
2. The contents of the declaration shall not be admissible as evidence under the Income Tax Act and the Wealth Tax Act against the declarant in any penalty or proceedings.
3. On assets disclosed in the declaration the declarant will receive immunity from the Benami Transactions (Prohibition) Act, 1988 provided that the asset with respect of which declaration of undisclosed income is made has been made transferred to the declarant or his legal representative by the Benamdar on or before 30^th September 2017.
4. The value of the asset declared shall not be chargeable to Wealth-tax for any assessment year(s).
5. Such a declaration will not affect the finality of completed assessments, and the declarant shall not be entitled to claim re-assessment of any earlier year or any benefit or revision of any order or set off or relief in any appeal or proceedings under the Income Tax Act with respect to the undisclosed income or any tax, surcharge or penalty paid thereon.

Who is the declaration signed by?

The declaration is signed by the following

Where can the declaration be filed?

A declaration can be filed in one the following ways;

1. Before the jurisdictional principal CIT/CIT in paper
2. Online on the website of the Income Tax office using the digital signature of the declarant or through electronic verification code.

Conclusion

The tax to GDP ratio of India is one of the worst globally. Undisclosed income is ferreted away year after year and is currently estimated to run into trillions of rupees. And this scheme is seen as a bid by the Centre to recover this stash. This is a beneficial scheme for eligible taxpayers to declare undisclosed income which was not offered to the taxation authorities in the previous financial years.

Footnote:

[1]http://www.financialexpress.com/article/personal-finance/narendra-modi-wants-you-to-reveal-your-undeclared-wealth-all-you-need-to-know-about-income-declaration-scheme-2016/297545/

References:

1. http://www.incometaxindia.gov.in/Pages/default.aspx
2. http://www.incometaxindia.gov.in/communications/circular/circular16_2016.pdf
3. http://www.incometaxindia.gov.in/communications/notification/notification32_2016.pdf
4. http://www.incometaxindia.gov.in/communications/circular/circular17_2016.pdf
5. http://www.incometaxindia.gov.in/Documents/IDS-2016/Form-1-User-Manual.pdf

The post Overview Of The Income Declaration Scheme, 2016 appeared first on iPleaders.

In this blog post, Srishti Khindaria, a student of Amity Law School, Guru Gobind Singh Indraprastha University, Delhi, analyses the concept of M&As and due diligence and why due diligence is important in M&A transactions with the help of examples from contemporary times.

What is an M&A?

Mergers and Acquisitions (M&As) have become a common phenomenon throughout the country ever since the introduction of New Economic Policy (NEP) of 1991 which lead to liberalization and the opening of Indian markets to the foreign ones.

The merger is a combination of two companies, where one company merges itself into the other and loses its identity, while the other prominent company gains greater importance and consolidates itself with or absorbs the other company.The term ‘amalgamation’ has been used synonymously with a merger in The Companies Act, 1956 and both these terms are used interchangeably, but both are not precisely defined.

In an acquisition, there is an acquiring company and an acquired company. The acquiring company purchases the interest of the acquired company’s shareholders. Thus, a merger is an arrangement through which two or more companies are brought together, and their control is vested in one company. Here both companies pool in their interests. While in an acquisition the ownership of one company is bought in tangible or intangible assets by another company in ways such as purchasing the controlling interest in share capital or the voting rights. In a highly competitive environment globally, mergers and acquisitions have turned out to be one of the fastest ways for companies to gain a competitive advantage.

What is Due Diligence?

Due diligence refers to any reasonable person/business entity must take before entering a legal contract or business transaction. Performance of thorough due diligence before any investment or acquisition is made by the business is a fiduciary duty entrusted with the officers of companies

Due diligence is a through and through examination of all the critical aspects of business. Every aspect of the business must be examined through due diligence- financial, operational, tax, commercial, tax, IT, integrity, social, environmental, health and safety, regulatory, etc. It is seen as a comprehensive appraisal of the business by a prospective buyer to evaluate the assets and liabilities and other factors of business.

Role of Due Diligence in M&As

Mergers and Acquisitions involve a reasonable amount of due diligence by the buyer as before committing to the transaction it essential for the buyer to know what it will be buying and what all obligations it will assume with the purchase, the nature, and extent of liabilities of the target company, litigation issues, intellectual property issues, etc. This is particularly important in the case of private companies where the target company has not yet been subject to the scrutiny of the public and where the buyer has very little ability to obtain information that it could ordinarily obtain from public sources.

Thus it can be said that the basic function of due diligence in any merger or acquisition is to assess the potential risks involved in the proposed transaction by inquiring into all relevant aspects of the business to be purchased in its past, present and predictable future.

The four core areas of due diligence in a merger transaction are as follows;

• Financial statements review: This is done to confirm in the balance sheet the existence of assets, liabilities, and equity, and analyze the income statement of the company to determine its financial health.
• Management and operations review: This is done to determine reliability and quality of financial statements, and to gain a sense of contingencies which exist beyond the financial statements.
• Legal compliance review: This is done to review and check for potential legal problems that could arise in the future stemming from the target company’s past.
• Document and transaction review: This is done to ensure that the paperwork of the deal is in proper order and that the transaction structure is appropriate.

In 2008 Bank of America’s acquisition of Countrywide Financial for about $4 billion serves as a perfect example as to why due diligence is important.[1] Countrywide Financial has been a key player in subprime mortgage market through the 21^st-century real estate boom.

 A subprime mortgage refers to those mortgages which are given to borrowers who have less than perfect credit score. Analysts discover years after the deal took place a lack of oversight on the part of employees and brokers- who had financial incentives in the way of commissions backing their actions- who pushed through mortgage approvals on overvalued properties that the borrowers may have trouble repaying.

Subprime mortgages held by major financial institutions such as Lehman Brothers, Countrywide Financial and Bear Stearns, in the form of securities. However as these securities had no market price and were illiquid, the firms were not able to value them on a market-to-market basis and subsequently went on to value them for many times their actual worth. Countrywide Financial too had a large inventory or such securities on its books, and they were valued using spurious methods.

When Bank of American acquired Countrywide Financial, while conducting due diligence, its officials failed to recognize that these subprime securities where worth much less than stated and as a result along with the $4 billion purchase price there was over $40 billion attached as a liability that Bank of America was unaware of.

Another example to showcase the importance of due diligence would be that of the deal between Dai-Ichi Sankyo and Ranbaxy. Initially, Dai-Ichi Sankyo paid Ranbaxy $4.6 billion for 63% of its share however late wrote down the acquisition’s value by $3.6 billion. The reason being that they were never fully aware of the extent of the Food and Drug (FDA) Investigation into Ranbaxy when it was asked to shut down all its pending and future drug applications from its Ponta Sahib plant in 2009. The first-to-file atorvastatin which was the greatest attraction for Dai Ichi was fraught with many problems. As Dai-Ichi failed to conduct adequate due diligence, they ended up suffering huge losses.

“Only Fools Rush”

 Why is due diligence important for any M&A transaction?

Though a slightly time-consuming process due diligence is essential before any M&A is undertaken. And the companies entering into an M&A must make sure it is conducted in a proper manner as it is essential to investigate the affairs of business as a prudent person would.

The other advantages of Due Diligence are as follows;

• It helps assess the risks and opportunities that shall be present in the proposed transaction and reduces the risk of unpleasant post-transaction surprises.
• It confirms all material facts of the business and that the business is exactly as it appears without any discrepancies.
• Due diligence helps create a relationship of trust between two otherwise unrelated parties.
• It helps identify potential deal killers and defects in the target business that help avoid bad business transactions.
• It helps gain information which would be useful for valuation of assets, indemnification and also negotiation processes.
• It also helps verify that the target business has bene complying with norms of the industry and identify potential “red flags.”
• Lastly, due diligence also helps in analyzing the target before a controlling interest is acquired in it.

As it has been said, “Due diligence is not judgment making it just bringing out all facts to the fore.”[2]

Conclusion

A comprehensive due diligence process is essential for the success of any merger and acquisition transaction. The fundamental purpose of due diligence is to validate assumptions on identification and valuation of risks. It must be ensured that the scope of investigations is tailored to the nature of the transaction. Due diligence is of utmost importance and it cannot be emphasized enough that most deals fail due to nothing more than inadequate due diligence due to which the buyer ends up overpaying or experiencing major integration problems or assuming unknown liabilities.

Footnotes:

[1]http://www.investopedia.com/ask/answers/010615/why-due-diligence-important-company-acquisition.asp

[2]http://www.assocham.org/upload/event/recent/event_1096/Pavan-Kumar-Vijay.pdf

The post Due Diligence In M&A Transactions appeared first on iPleaders.

In this blog post, Pramit Bhattacharya, Damodaram Sanjivayya National Law University writes about the concept of Vicarious Liability in the case of civil and criminal law. The post also touches upon the issue of liability of Corporations, the State and the licensee with regards to the doctrine of vicarious liability.

Under the concept of vicarious liability, one person is held responsible for the wrong committed by the other. The doctrine of vicarious liability is also known by the name of joint liability. Vicarious liability can occur under both civil and criminal law. Such a liability arises only when there is some legal relation between the two parties, or the parties are somehow connected to each other.

Tort Law or Civil Law

There are some essential conditions which should be fulfilled to constitute vicarious liability under torts or civil law.

Relation

There should be some relationship between the wrongdoer and the other party. The relationship can be of principal-agent, master-servant, employer-employee, etc. Under service also there are two categories-

• Contract of Service- Under this contract, one person is already under the contract of the other, and the service is of particular nature. This is a kind of general contract, and there is not many limitations on the controlling power over the other, for instance, master-servant relationship.
• Contract for Service- This is a contract for a particular reason, and there is a limitation on the controlling power over the acts of the other, for instance, employer-employee relation.

Ratification

Under torts or civil law, a person may also be liable for the wrongful act or omission of some other party in the following ways-

• If the person abets the wrongful act or omission committed by the other person.
• If the former ratifies or authorizes the act of the other knowing that the act committed or omission done was tortious in nature.
• As standing towards the party who committed a wrong in such a relation that it entails responsibility for the acts or omission done by the other person.

The concept of “in the course of employment” also comes into play when the doctrine of vicarious liability is evoked. An act is deemed to be done in the course of employment if the authority to give a wrongful act is given by the master to the servant; or some legal act is done by the servant in an illegal way.

The judicial pronouncement of Short v J&W Ltd.[1] is the first case which gave the conditions that were needed to be fulfilled in order to make the master vicariously liable for the acts of the servant. The Court observed that the master should have the power to select his servant. Further the master controlled the way his servant worked, and the master also had the right to dismiss or suspend the services of the servant. But in the Indian case of Dharangandhara Chemical Works v State of Saurashtra,[2] it was held that sometimes these condition needed to be diluted because it was not always possible to fulfill all the conditions simultaneously. But the control of the master wouldn’t be diluted, and he’ll be liable for the acts of the servant.

Reasons for Holding the Master Vicariously Liable

• Respondent superior- this principle follows the rule that let the principal or master be responsible.
• Damages- for the purpose of giving the damages to the aggrieved party and to stop the blame game between the servant and the master.
• Avoiding exploitation of the servant- master is also held liable for the acts of the servant because many time the masters exploit their servants by first directing the servants to do some tortious act and then firing them to avoid responsibility.
• Qui facet alium facet perse– any act which is done by the servant in the course of his employment is considered to be done by the master, and in principle means that the master has done the act.

Criminal Law

Under criminal law also one person can become liable for the act of the other if he is a party to the offense. For instance, a driver of a car which goes and robs a bank will also be liable even though the driver did not get out of the car. The principle which is followed in the criminal law is that a person may be held liable as the principal offender, even though the actus reus was committed by some other person. The person committing the act on the instruction of the other will not be considered as innocent and will also be held liable. The law focuses on the relationship between the two parties and attributes the act of the one to the other. It should be noted that the concept of vicarious liability is a civil concept and in the case of criminal law it is an exception rather than a rule.

Indian View

Although the doctrine of vicarious liability is generally applicable to civil law, in some exceptional cases it is applicable in criminal cases also. Section 149 of the IPC. Under Section 149 of the IPC if any member of an unlawful assembly commits any offense in furtherance of a common objective, every member of that unlawful assembly will be held liable for that offense.

Section 154[3] of the IPC relates to occupiers or owner of a land. If such occupier or owner or any person who has some interest in the piece of land does not inform the proper public authority about unlawful assembly on that land, or do not take necessary steps taking place on the land, will also be held liable for such activities. The liability has been fixed on the assumption that being the owner or the occupier of the land; the person will be able to control the activities which is happening on their property. Section 155[4] also makes a person vicariously liable on the owner or occupier of the land for the omission of their agent or manager if any activity takes place on the land and the agent or manager does not prevent illegal activities happening on their property. Section 156[5] imposes personal liability on the agent or the manager if some illegal activity takes place on the particular property.

Section 268[6] and Section 269[7] deals with public nuisance and makes the master personally liable if the servant is creating any public nuisance. Section 499[8] of the IPC also makes the master personally liable in case the servant defames somebody (provided it falls under the definition of defamation given under this section).

Liability of Corporations in Cases of Criminal Wrongs

The earlier view was that a corporation cannot commit a criminal wrong. But that view has changed in the present scenario. A corporation has a separate legal entity and is an artificial person. But it cannot work on their own. It works through its agents. So whenever some act is committed by a company which is not legal, its agents are punished and hence, the liability is necessarily vicarious. A corporation cannot commit crimes like rape, murder, perjury, etc. But it has been recognized that a company can commit activities which have criminal intent.

Liability of State for Acts of Employees

In England, the state cannot be held liable for the acts which have been committed by its servant. The principle behind this is based on the doctrine of Rex non-potestpeccare[9] which states that the King can do no wrong.

In India also, the same position existed till 1967 and the State couldn’t be sued for the action of its servants. But in the judicial pronouncement of Superintendent and Remembrance of Legal Affairs, West Bengal v Corp. of Calcutta,[10] it was held by the Court that the principle that the State isn’t bound by any statute is not the law of the land after the Constitution has come into force. Civil and criminal statues now apply to citizens and state alike. In the case of Saheli v, Commissioner of Police,[11] the Court was of the opinion that the concept of sovereign immunity does not hold good with the evolution of law, and Constitutional Regime and the State can also be made liable.

Licensee and his Liabilities

The licensee is responsible for the acts done by this employee I the course of the employment. Even if the acts were done were opposite to the instructions given by the licensee, he still would be held liable. In the case of Emperor v. Magadevappa Hanmantappa,[12] this proposition of law was made clear. The accused held a license under the Indian Explosive Act, 1884. The Act stated that the manufacture of any explosives should be done away from a dwelling place. It should be done in a building exclusively meant for the manufacturing purpose. One day the servant took some material from the building to carry out some manufacturing process. At that time, there was an explosion. The accused was held liable for the same by the Court.

Conclusion

It can be said that the concept of vicarious liability is a civil one, but with the evolution of law, the Courts have started to apply the doctrine to criminal cases also. Sometimes it becomes very important to fix a liability on the principal, so as to protect the interest of the aggrieved party and also to avoid blame game between the parties, which in turn may delay justice.

Footnotes:

[1](1946) 62 T.L.R. 427

[2]1957 AIR 264

[3]https://indiankanoon.org/doc/1034470/

[4]https://indiankanoon.org/doc/1062869/

[5]https://indiankanoon.org/doc/833310/

[6]https://indiankanoon.org/doc/209076/

[7]https://indiankanoon.org/doc/734195/

[8]https://indiankanoon.org/doc/1041742/

[9]http://www.duhaime.org/LegalDictionary/R/RexNonPotestPeccare.aspx

[10]AIR 1960 SC 1355

[11]1990 AIR 513

[12]AIR 1927 Bom 209

The post Doctrine of Vicarious Liability appeared first on iPleaders.

In this blog post, Pramit Bhattacharya, Student, Damodaram Sanjivayya National Law University, writes about the issue of custody of a person under criminal law in India. The post highlights the provision of Section 167 of the CrPC and also other related Sections. Rights of a person in custody are discussed in this post. The post also highlights the remedies on which a person in custody may rely upon.

Many time it happens that when a person is arrested in connection with a crime or suspicion of a crime, the police may not be able to complete the investigation within 24 hours and present the person in front of the magistrate. At this point in time, with it is important to keep the person away from the society, for the security of the society and the security of the person himself. It is also necessary that he is present for further investigation and inquiry and does not evade the law. In such a case, the person may be kept police custody. The person any also be submitted to judicial custody.

Holding a person in custody for further inquiry and investigation is governed by Section 167 of the Code of Criminal Procedure. Section 167[1] provides that a person may be kept in police custody to the extent of 15 days at the order of the Magistrate. Inthe case of an Executive Magistrate, the Executive Magistrate may grant custody of police to the extent of seven days. A Judicial Magistrate has the power to grant police the custody of a person for 15 days. Police custody can only extend up to the period of 15 days. Beyond this, even if the custody of the person is required, it has to be judicial custody.

A judicial custody may extend up to the period of 90 days if the person is arrested in connection to a crime which is punishable by an imprisonment of 10 years or more, life imprisonment, and capital sentence. In any other case, the judicial custody of such person may extend up to the period of 60 days.[2] After the period of 60 or 90 days, the person is entitled to bail, till the time police have not filed the charge sheet. Once the police files the charge sheet, the person cannot claim bail as a matter of right.

As already stated above, the Magistrate may grant police or judicial custody of the person. The detaining authority may be changed during the pendency of the detention, subject to the fact that the period of detention has not crossed the 15 days mark. If in between police custody, the person is shifted to judicial custody, the number of days served in police custody is deducted from the number of days of judicial custody.

The difference between police custody and judicial custody, first of all, relates to the authority. Also, in a case of police custody, a person can be interrogated, but in judicial custody, a person cannot be interrogated except in exceptional circumstances. Police custody starts as soon as a person is arrested, but judicial custody starts when the Magistrate orders it.

Rights of the Person in Custody

Rights of a person start as soon as the person is arrested. Under Article 22[3] of the Indian Constitution provides for protection of the arrested person. He has to be informed about the reason for his arrest. Article 22 (1) states that the person should be allowed to consult a lawyer of his own choice. Section 50[4] of the CRPC is a supplementary to Article 22 (1) and (5) which states that the person should be given the reason for his arrest and has the right to bail.

A deep reading of Section 167 (1) states that the officer in charge of a police station or the investigation officer dealing with the case can only ask for police custody only when there are reasonable grounds, and there is no chance that the investigation can be finished within 24 hours as mentioned under Section 57 of the CRPC. Hence, the power to grant police custody is not mechanically give to the magistrate. He should ensure that there is sufficient cause to grant police custody. This was also stated in the case of Raj Pal Singh v the State of UP.[5]

The accused has the right to be brought before the magistrate within 24 hours of his arrest. Thisperiod of 24 hours is calculated excluding the time taken for transportation of the accused from one place to the other. If no Judicial Magistrate is available, the accused has to be taken to Executive Magistrate, who may, if he thinks fit, grant police custody to the extent of 7 days. In the judicial pronouncement of CBI v Anupam J Kulkarni[6], the question regarding arrest and detention of a person was dealt with. The Court stated that under Sec 167 (2) of the CRPC, a Magistrate has the power to grant police custody, but again, the police custody should not exceed the time limit of 15 days as a whole.

The term “not exceeding fifteen days in whole” is of vital importance. If Section 167 (2) and (2A)[7] is read together, it becomes clear that a judicial magistrate can send a person to police custody, where the person has been forwarded to him by the Executive Magistrate after deducting the period of police custody which has already been granted by the Executive Magistrate.

There are other rights also if the arrested person become ill or is medically unfit. They shouldn’t be moved until they are fit enough.  Also, in the case of women accused, who is to be arrested in connection with any crime, she has the right not to be taken in custody until she has recovered and there is no personal risk to her health. In such circumstances the accused person should be sent to the nearest dispensary and shouldn’t be taken in custody until and unless a medical practitioner certifies that they have recovered and can be moved or taken into custody. The police have to take the permission of the Magistrate to place the accused under detention at their homes or the place where the accused has been taken for treatment. This kind of detention which beyond the period of 24 hours can be allowed under Section 57[8] of the CRPC, subject to special order given by the Magistrate under Section 167 of the CRPC

The basic principles of natural justice also have to be followed. The accused has the right to get over with his case as soon as possible. In the judicial pronouncement of Elumalai v State of TN[9], the Court held that speedy trial is right of the accused also, and the prosecution should complete the investigation and file their reports as quickly as possible to ensure a speedy trial.

Remedies

First of all, if a person has been arrested and the custody has extended up to the period of 90/60 days, the person can give an application for bail.  The bail will be valid only till the charge sheet is filed.

The person who has been arrested and kept in custody can file the writ of habeas corpus if he feels that the proper procedure hadn’t been followed while taking him into custody, or no reason for the arrest was given, or the custody wasn’t granted by the proper authority, or if it did not pass through the proper structure and framework of the law. The Writ can be filed either under Article 32[10] or Article 226[11] of the Constitution. The point here to be noted here is that the writ wouldn’t provide relief to the person in custody, if the custody is done in a valid way, no matter how many rights of the person has been violated.

In the case of K Sanyal v District Magistrate, Darjeeling[12], the Apex Court was of the view that when a person has been sent to police custody, and such order of sending the person does not prima facie looks illegal, or for that matter without jurisdiction, the writ of habeas corpus cannot be granted.

In the case of K v State of Rajasthan,[13] the Supreme Court also opined that if the detention of the accused is done legally, and a bail application has been moved by the accused, any previous illegality in detentions should not be considered and bail should be given only on the merits of the present case.

Concluding Remarks

In India matters of law enforcement is very tricky. The rights of the underprivileged section of the society often get buried under factors like red tapism, corruption and lethargic attitude of the authorities. For instance, let us take Section 167 (c)[14] of the CRPC which states that a person should be released on bail if there are no sound reasons of ground to keep him in custody. But the section also states very specifically that the person would be released on bail only if he can furnish the amount of the bail. In case he is not able to furnish the amount, the person keeps on languishing in custody, even when there is no reason to keep him under custody. The Supreme Court, in the case of Laxmi Narain Gupta v State,[15] made a very important observation. It observed that many accused or suspects remain in custody just because they are poor and can’t furnish the bail. While they are entitled to bail and are not able to furnish it, their rights are being violated because the orders for remand are being passed as a routine thing.

The problem also occurs when people are not aware of their rights.

While Section 167 has been denied by the statute very clearly, the same can’t be said about other provisions like the inability of the police to get custody when a person is ill, or if taking a person into physical custody is not practicable at all.

These questions remain unanswered, and both the victim (accused or the suspect in this case) and the authorities face challenges when such situation arises.

The law tries to provide as many safeguards as it can against abuse. But the need of the hour is to remove the contradictions and other ancillary barriers. Section 167 should also be amended to make its scope broader, where more remedies are available. The executive should also play their role and make sure that people are aware of their rights.

Footnotes:

[1]https://indiankanoon.org/doc/1687975/

[2] Section 167 (2) (a) (i) and (ii)

[3]https://indiankanoon.org/doc/581566/

[4]https://indiankanoon.org/doc/1848903/

[5]1983 CriLJ 1009

[6]AIR 1992 SC 1768

[7] subs. by Act 45 of 1978, s, 13, for paragraph (a) (w, e, f, 18- 12- 1978 ).

[8]https://indiankanoon.org/doc/571025/

[9]1983 Mad LW (Cri) 121

[10]https://indiankanoon.org/doc/981147/

[11] https://indiankanoon.org/doc/1712542/

[12]1990 CriLJ 2685

[13]1980 Cri LJ 344

[14]For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail , supra 2

[15]2002 CriLJ 2907

The post Custody of a Person under Criminal Law in India appeared first on iPleaders.

In this blog post, Pramit Bhattacharya, Student, Damodaram Sanjivayya National Law University, writes about the concept of Capital Restructuring through Buybacks of Shares. This post highlights the different methods of buybacks which are used by a company to repurchase its shares. This post also looks into the provisions which governed buybacks of shares under both Companies Act, 1956 and Companies Act, 2013.

In today’s competitive world, and dynamic market condition, a company, has to adapt itself and reinvent itself to maintain its competitiveness and survive in the market. Financial, managerial and operational activities are often subject to restructuring to maintain this competitive advantage.

Capital restructuring falls under operational restructuring framework. It is a change in the capital structure of a company to deal with a shift in the financial stability of the business. Buyback of shares or stock purchase is one of the most prominent methods companies use to restructure their capital structure. The procedure through which a company acquires its stock from the market is called buyback of shares. One motive to buyback shares is to increase the value of the shares. By purchasing the shares available in the market, the supply of the shares reduce when demand remains the same. This enhances the value of the shares. The second motive of a buyback is to eliminate any threat of controlling shares. When a company has an excess of cash, the company buybacks its shares. A buyback is also done to eliminate the risk of takeover from any other company.

There are many benefits of a buyback of shares. Buyback can be considered as one tome return of cash. Instead of paying dividends a company can use the excess cash to repurchase the shares and increase their value. Share buy-backs are also one of the quickest ways to restructure the capital.

On the other hand, engaging in buybacks too often may have certain negative impacts. First of all, when a company is using cash to buyback the shares, the liquid assets gets eroded, and the company may lose growth opportunities. Secondly, the market may perceive this as a danger sign that the company does not have any profitable venture in which they can invest and hence it’ll impact the company. Also, if the repurchases are not adequately managed, there stands a huge risk of insolvency also.

The process of buyback includes several methods like open market purchase, private negotiations with the shareholders and tender purchase.

In the case where the method of tender purchase is used, it is to buyback a large number of shares. The company floats its cash in the market with a few conditions like how many shares the company wants to repurchase, at what price the company will repurchase the shares, and till what time such tender offer will be kept opened.

In markets, which are developed, the method of open market purchases is preferred. Firstly, it is cheaper than tender purchase. And secondly, they can be spread over a longer period. This method is used to repurchase a small number of shares at a time, instead of a significant number of shares at one go.

Coming to private negotiations, this method is used to eliminate the threat from any individual who seeks to gain controlling shares in the company. In the case of this procedure, a small number of investors are involved who hold a large percentage of shares. To summarize, there can be three ways of buyback-[1]

• Repurchase through tender offer
• Repurchase through open market
• Repurchase through personal negotiation

Under the Companies Act, 1956, the buyback of shares was regulated by Section 77A, 77AA, and 77B. This was before the Act of 2013. The Security Exchange Board of India also formulated rules regarding buyback of shares which were given under the SEBI (Buyback of Securities) Regulations, 1999. Under the Companies Act, 2013, buyback of securities is dealt with, under section 68-70.

Buyback under the Companies Act, 1956

Earlier companies were not allowed to purchase their shares, apart from a few exceptions which were given under Section 77 of the Companies Act, 1956. Through the Companies (Amendment) Act, 1999, Section 77A was inserted, and the change was made, and companies were allowed to buyback their shares. Sub-section (1) mentions the funds through which buyback could be done. The sources of funds which were allowed to be used were the proceeds from the earlier issue of shares, the premium on securities and the free reserves of the company.[2]  No repurchase of the same kind of shares is allowed from the proceeds of the earlier issues.

Sub-section (2) states the formalities which are to be followed. There has to be a provision in the Articles of the Company, which authorizes a buyback of shares. When such authority is exercised, a special resolution by shareholders should be passed. This allows for buyback of shares to the extent of 25% of free reserves and total-paid up capital of the company. A resolution by Board of Directors can also be passed; wherein they can decide to buyback shares of the company. But the extent of the buyback is limited to 10% of the total paid-up equity capital and free reserves of the company.[3]

If a resolution is passed authorizing a purchase of shares but it does not fulfill the statutory regulations, then the resolution will not have a binding force. It cannot be enforced against the company.

Another important thing which is essential that the company has to ensure stakeholders about its financial status. A declaration of solvency is to be given to SEBI and Registrar of Companies, and this declaration has to be given even before the resolution for a buyback is passed.[4] Also, in case a company has decided to buyback its shares, it cannot issue any new shares or securities of the same kind within six months.[5] However, the company is under no restriction to issue bonus shares and discharge any of its existing or previous obligations. The restriction which is placed on the company is only with regards to the type of shares which has been bought back. They are free to issue any different kind of securities.

The buyback can’t be done through any other channel or any other company. The issuer has to buyback the securities directly. Buyback even through subsidiaries is not allowed. The repurchase can’t be done through any investment company also.[6] A company cannot repurchase its shares or go for buyback if it has defaulted in repayment of a term loan or payment of deposits or redemption of debentures and preference shares.

Buyback under Companies Act, 2013 and the Changes Made

Under the 1956 Act, Section 77A (4) mentioned that the buyback has to be done within 12 months after passing the resolution for it. This discouraged many companies for fixing a specific time frame for the buyback options. They used to keep the option open for the entire 12 months. But many instances have happened where the company couldn’t get even the minimum number of shares which were required for a buyback. It had also been observed that companies use to exercise their buyback option at their discretion and the price they quoted for the shares differed from the current market price that prevailed. There was no specific provision either in the Companies Act, 1956 or the SEBI Regulations which mentioned the quantity and price of the securities which the companies wanted to buyback. One more thing which was observed that the companies used this option to artificially increase the price of their securities by creating a demand-supply flux.

Under the 2013 Act, buyback of securities is governed by sections 68-70. Changes have been made by the new Act regarding finances and funding, where the company looks to but back share for the benefit of the employees. This is allowed, only if through a special resolution, the company approves the scheme.[7]

Here are some significant changes which have been introduced through the new Act- [8]

1. The 2013 Act has added compliance with provisions relating to declaration of dividend as an eligibility condition for buy-back.[9]
2. With the approval of the General Body, buyback up to 25% of free reserves and paid up capital is allowed. In the case of buyback of equity shares, the buyback is limited to the extent of 25% of the paid-up equity capital only.[10] The exclusion of a number of free reserves decreases the amount substantially; wherein buyback wouldn’t be viable for the company in most cases. This restriction is there to protect the interest of equity shareholders of the company.
3. The new Act also states that there should be a minimum gap of one year between two buybacks. Under the 1956 Act, this restriction was only applicable to buybacks which were approved by the Board. But now, such restriction is placed even upon buybacks which have been approved by the General Body.
4. The Act of 1956 spoke about the transfer of some amount on redemption of preference shares to the Capital Redemption Reserve. The Act of 2013 provides for the creation of CRR not in relation to reference of preference shares. The 2013 Act also states that CRR created in relation to buyback can be used to issue bonus shares.[11]
5. The Act of 1956 spoke about the mode of buyback of odd lots of securities, but this provision has been removed in the 2013 Act.
6. Under the old Act, a company was not allowed to buyback shares in case it has defaulted in some payment or redemption. Under the new Act, this rule has been made more stringent. Any company which has defaulted in any manner is not allowed to buyback for a period of subsequent three years even when the default has been made good.

Concluding Remarks

One of the main purposes of a repurchase of shares is to protect the interest of creditors and shareholders of the company.

In India, the legal setup regarding buybacks should be changed and amended keeping the current scenario in mind. There are laws and regulations of issues like these, but still, scams take place. In such a case, allowing unregulated buyback can result in manipulation of share price and also go against the interest of small shareholders.

Footnotes:

[1]https://www.moneyinstructor.com/doc/capitalrestructuring.asp

[2]The Companies Act 1956, s 77A (1).

[3]https://www.taxmanagementindia.com/visitor/detail_manual.asp?ID=626

[4]The Companies Act 1956, s 77A (6).

[5]The Companies Act 1956,s 77A (8).

[6]The Companies Act 1956, s 77B

[7]The Companies Act 2013, s 68 (5).

[8]http://www.lawctopus.com/academike/capital-restructuring-via-buy-back-of-shares/#_ednref1

[9]The Companies Act 2013,s 68 (1).

[10]The Companies Act 2013,s 68 (2) proviso.

[11]The Companies Act 2013,s 69 (1) and (2)

The post Capital Restructuring and Buyback of Shares appeared first on iPleaders.

In this blog post, Pramit Bhattacharya, Student, Damodaram Sanjivayya National Law University, writes about unconventional trademarks. The law in India regarding unconventional trademarks has also been discussed in this post.

Whenever we are talking about trademarks, whether conventional or unconventional, the concept of Intellectual Property Rights (IPR) comes in. IPR gives the ownership rights right to a person, who has created any creative or innovative product, to own innovation or creative idea in the same manner as any other physical product.[1] Trademark, like copyrights and patents, is one of the parts of IPR laws, and its function is to protect the “mark” of the product or the service. So, a trademark can be defined as any mark which can be represented which can be represented in some form and can distinguish the product or service which it is representing. A trademark can be any particular color, any particular shape, name, shape, signature, sound, etc.[2] 

In recent times, the field of IPR has seen a lot of development, especially with regards to trademarks. The TRIPS agreement recognizes various kinds of trademarks. India has also made necessary changes in its laws to comply with the provisions of the TRIPS agreement. There are certain kinds of unconventional trademarks which are beyond the current regime of trademark laws, both at the international and the local level. So it becomes important to know how these unconventional trademarks are recognized.
It is noteworthy that trademark laws in India have always kept its pace with the ever changing times.[3] The current trademark law in India is the third one and is in full compliance with the international standards. The legislature has been working constantly to create laws which are in compliance with the globally accepted TRIPS Agreement. 

Every day, new technology is being developed. New products are being created and sold. Nowadays, even the way to advertise the products has also changed. With the growing competition in the economy due to globalization and liberalization policy, the selling power of a brand is no longer limited to the quality of products. It also depends on how much people recognize a product, and how much customer base can a product create through its mark. Apart from marks, jingles, songs or stories which are related to the product can also create recognition of a product or a brand among its customers.[4]

In India, the earliest law relating to trademarks was the Trade and Merchandise Act, 1958. It was later replaced by the Trademarks Act, 1999, through which the law relating to trademarks was amended and consolidated. The introduction of the new Act was considered necessary by the legislature so that India could comply with the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement and to meet its obligation as the member of the World Trade Organization. Going by the old act, unconventional trademarks like any particular sound, color scheme, etc. couldn’t be registered.

Both, international treaties and national laws aim to provide a wide definition for the word trademark. According to Article 15 (1) of TRIPS[5] The agreement, Trademark means any sign or combination of signs which can distinguish the product from any other product. For instance, registration of sound as a trademark is very common in the US and the European Countries.

The Indian Legislature and the Judiciary have adopted a developing approach towards the Trade Mark laws and hence the position in India is not yet concrete. The Indian Judiciary is taking guidance from precedents where the matter is settled to develop its law.

What are Unconventional Trademarks?

When talking about trademarks, traditionally trademarks can be defined as any mark which is unique to the product and was identified with the origin of the product. An unconventional trademark is a new type of trademark which does not fall into the category of conventional or traditional trademarks. These trademarks fulfill the conditions of being a trademark but are difficult to register because of their unusual nature.[6]

In recent years, the registering authorities have faced many challenges due to the number of trademarks brought forth for being registered. These unconventional trademarks included texture, shape, scent, outline, body movement, and even Tarzan’s yell.[7] This rise in the number of unconventional trademarks can be attributed to the non-concrete legal definition provided for a trademark. On one hand, trademark laws emphasize on having an open definition for the term, where the function of the mark is given primary importance.[8] Any mark which fulfills the commercial function of differentiating the said product from other products can be registered as a trademark. On the other hand, the development of the law relating to a trademark has been in a way which gave more preference to traditional and conventional marks.

Certain conditions are required to be fulfilled to register an unconventional trademark-

• The mark should be intrinsically distinctive.
• The mark should be able to distinguish the particular product from other products.
• The mark should be capable of graphical representation.

These kinds of unconventional trademarks raise a fascinating question that what all can be included within the ambit of a trademark. Considering the Indian scenario, the laws are developing. It was reported that the sound marks for Yahoo![9] And Allianz Aktiengesellschaft[10] Were registered by the Indian Trade Mark Registry. The Delhi High Court also gave a favorable decision against a trade mark infringement which was claimed by “Zippo Lighters” to protect the shape of their products.[11]

It has been observed that earlier unconventional trademarks were thought to be unregisterable. But this situation has changed and even trademarks like shape, color, sound, smell, etc. are being registered as trademarks.[12]

Laws in India

The trademark law in India has developed a lot since the last decade. To meet its obligation under the Paris Convention for Protection of Industrial Property and the TRIPS Agreement, the Trademarks Act, 1999 was enacted (in force since 2003). After the enactment of the Act, a lot of further development was made, for instance, electronic filing of a trademark application.

Section 2 (1) (zb) and 2 (1) (m) of the Trademarks Act[13] Should be read together. Interpretation of these two sections shows that definition of a trademark includes packaging, shapes, color, etc. Notwithstanding these provisions, special care should be taken when registering trademarks like color, smell, sound, shape, etc.

It is not necessary that nonconventional trademarks can always be defined and represented in a graphical manner, but they still can be used to describe a product, provided that they clearly define the product.

The Indian Legislation, on the other hand, has laid explicitly the need for marks to be graphically represented. It is conditional that a mark should be graphically represented when-[14]

1. The sign can be precisely determined by the graphical representation.
2. The mark or sign can be replaced by the graphical representation.
3. It is practicable for a person to understand what the trademark stands for.

Therefore, when India granted registration for sound trademarks, India simply borrowed the Shield Mark doctrine which was given in the case of Shield Mark BV v Joost Kist, by the ECJ. The ECJ regarded the description of sound by its written description and held that since the written description of a sound lacked the clarity and precision, it cannot be considered a graphical representation. But the Court also opined that if the sound was distinctive and people were able to recognize it, there was no reason why such sound couldn’t be registered as a trademark.

In India, the Trade Mark Registry has not explored much in the area of sound as a trademark. The government has turned its attention towards formulating clearer laws and efficient and transparent working of the Registry.

Concluding Remarks

Technically speaking, there exists no difference between conventional and non-conventional trademarks. The law clearly states that if a sign or a mark is capable of distinguishing a product from other products it can be considered as a trademark. Even unconventional trademarks fulfill that requirement. It is just that unconventional trademarks are of mystifying origin, and hence, it is just a bit difficult to register them. The law relating to trademarks is very dynamic. The law should also be flexible so that it can accommodate the changes taking place.

Footnotes:

[1] Anita Rao and V.Bhanoji Rao, Intellectual Property-A Primer(1st edition, Eastern Book Company)

[2] Source http://www.businessgyan.com/content/view/623/220/

[3] Introduction to Intellectual Property-theory and Practice(Kluwer Law International,1997)

[4] Rachna Bakru & Manav Kumar, “India’s Approach to Non-Conventional Trademarks”,http://www.worldtrademarkreview.com/Magazine/Issue/32/Country-correspondents/India-Ranjan-Narula-Associates

[5] Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh; Agreement Establishing the World Trade Organization, Annex 1C (1994) 33 I.L.M. 1197.

[6] Emerging Trends In Intellectual Property Law: Non-Conventional Trademarks by Institute of International Trade, available at www.iitrade.ac.in

[7] Non-Conventional Trade Marks In India By Dev Gangjee Vol. 22(1)

[8] Unconventional Trademarks: The Emergent Need For A Change by Harsimran Kalra

[9] P. Manoj, Yahoo Awarded India’s First Sound Mark; Nokia in Queue LIVE MINT, Aug. 22, 2008; Yahoo! Yodels into India’s Trade Mark Registry MANAGING INTELLECTUAL PROPERTY WEEKLY NEWS, Sep. 1, 2008.

[10] Yet Another Sound Mark Granted, available at, http://spicyipindia.blogspot.com/2009/ 07/yet-another-sound-mark-granted.html.

[11] Zippo, IA 7356/2006, (High Court of Delhi) (13 July 2006) (H.R. Malhotra, J)

[12] Vaver D, “Unconventional And Well Known Trademarks”, Singapore Journal of Legal studies, 1 (2005) 16.

[13] https://indiankanoon.org/doc/117176/

[14] http://www.lawctopus.com/academike/sound-unconventional-trademark/#_edn26

The post Unconventional Trademarks appeared first on iPleaders.

As an employee, it is essential for you to know about your rights and entitlements that have been granted to you by law. As an employer too, one should be aware of the limitations that have been imposed by law on terms of service of an employment contract. In this blog post, Suhani Chanchlani of Amity Law School, Delhi, GGSIPU, examines provisions of the Delhi Shops Establishment Act that every person should be aware of as an employee or employer in a shop or a commercial establishment located in the Union Territory of Delhi.

Applicability

The Act extends to the whole of the Union Territory of Delhi. It applies to all shops and commercial establishments which include any premises wherein any trade, business or profession is carried out. It relates to the regulation of terms of services, leaves, wages, hours of work and other conditions of the work of employees employed to work in such shops or commercial establishments.

Salient Features of the Act

Registration of the Establishment

• The proprietor of every establishment must send a statement in the prescribed format to the Chief Inspector along with the fees. This statement must contain following particulars:-
  • Name of the employer and manager(s) if any.
  • Name of the establishment if any is designated to it.
  • Postal address of the establishment
  • Category of the establishment, if it is a shop, commercial establishment, hotel, theater or another place of amusement or entertainment, restaurant or other eating house.
  • Number of employees working in the establishment
  • Such other particulars as may be prescribed.
• This statement with the particulars as mentioned above must be sent from 90 days of coming into force of this Act. In case a new establishment is formed, the proprietor must send the statement from the day the establishment commences work.
• In the event of any difference of opinion between the Chief Inspector and the Proprietor on the category that the establishment belongs to, the matter shall be referred to the state government, and any decision made in addition to that shall be final for the purpose of this Act.
• On receipt of the statement, the Chief Inspector after being satisfied on the correctness of the particulars of the statement shall register the establishment in the Registrar of Establishments and also issue a registration certificate in the prescribed format to the proprietor of the establishment.
• It is the duty of the proprietor of the establishment to intimate the Chief Inspector about any changes that may occur with regards to the information submitted to the Chief Inspector in the statement at the time of the registration.
• If the proprietor closes his establishment, it is his duty to inform the same to Chief Inspector within 15 days of closing. The Registrar would accordingly cancel the registration certificate and remove the name of the establishment from the register of establishments.

Important Provisions on Hours of Work

• No adult can be made to work more than nine hours in a day or 48 hours in a week. But at the time of making accounts or for the purpose of any such prescribed activity, adults can be made to work for more than the prescribed hours provided that the working hours do not exceed 54 hours in a week. Moreover, any person made to work overtime is entitled to be paid at double the rate per hour he is paid to work for normal working hours.
• No employee can be made to work for more than five hours continuously without a period of rest or meal of at least half an hour. The total period of work inclusive of time given for rest or meal must not exceed more than 10 hours in a day.
• Employers cannot employ the child, i.e., persons below the age of 14 years regardless of the fact that the child is a member of the family that is running the business.
• No young person or woman shall be allowed or required to work whether as an employee or otherwise in any establishment between 9 p.m. and seven a.m. during the summer season and between 8 p.m. to 8 a.m. during the winter season.
• No shop or commercial establishment on any day, be opened earlier than such hour or closed later than such hour, as may be fixed by the Government by general or special order made in that behalf.

Important Provisions on Holidays and Leaves

• Every shop and commercial establishment shall remain closed on a close day. The closed day is that day of the week on which the shop or the commercial establishment remains closed. Closed days can be specified for different classes of shops and establishments.
• In addition to the closed day, every shop and commercial establishment shall remain closed on three of the National holidays each year.
• Every employee shall be allowed at least twenty-four consecutive hours of rest (weekly holiday) in every week.
• No deduction can be made from the salary of the employees for holidays on closed days or for national holidays. If an employee is employed on a daily wage, he shall nonetheless be paid his daily wage for the holiday and where an employee is paid on piece rates, he shall receive the average of the wages received during the week.
• Every employee is entitled to privileged leave after 12 months of continuous employment for a total period of not less than 15 days.
• Such an employee who wants to avail the benefit of privileged leave may intimate his employer in writing about the period from which he would like to take leave. The employer is bound to respect this request unless he has a valid cause. An employer must respond to such request within seven days from the date when such a request is made.
• An employee is also entitled to take sick leaves of not less than 12 days in a year. An employer cannot refuse leave to the employee when he is sick, his wife or child is sick, he has sustained a physical injury on account of an accident, or when there is a death in the family.
• An employer cannot refuse sick leaves to any employee. However, if an employer doubts the correctness of the assertion of an employee to take a sick leave, then he can either ask the employee to present a medical certificate from a registered doctor or get the employee or his wife or child as the case may be, to be examined by a doctor at his expense to verify the particulars of the sick leave application.
• An employer cannot terminate the employment of an employee who has been working continuously for more than three months without giving a notice of at least one month in writing or wages in lieu of such notice period.
• An employer can terminate the employment of an employee if he has committed something on account of his wilful misconduct. However, such employee must be given an opportunity to explain himself before his dismissal.

Important Provisions on Wages

• Wages must be paid to employees regularly, and payment of wages cannot be delayed by over one month.
• An employee must be given wages without any deductions. However, an employer can deduct wages in the following manner:-
  • Fines
  • Deduction for absence from work.
  • Deduction for loss incurred from the damage caused to goods specially entrusted in the custody of the employee or for the loss of money that the employee was responsible for keeping an account.
  • Deduction for house accommodation provided by the employer. 
  • Deduction for the provision of any amenity or service by the employer as the government may authorize to be charged through a general or special order.
  • Deduction for any advances made or for adjustments of wages paid more than regular wages.
  • Deductions for the purpose of payment of income tax by the employee.
  • Deductions that have been so mandated by an order of the Court or by any other competent authority.
  • Deductions for a subscription to provident funds.
  • Deductions for a scheme of insurance that has been approved by the government or deductions for payments made to a recognized co-operative society.
• If an employer imposes a fine on the employee, he must intimate him about the amount of the fine and must also assign a reason for the imposition of such fine. An opportunity must be given to the employee to offer an explanation in the presence of another person.

Letter of Appointment to Employee

It is mandatory for every employer to issue a letter of appointment on the appointment of an employee in the establishment. Such document must contain following particulars:-

• Salary or the rate of wages.
• Designation of the employee and the kind of work for which employed whether it is manual work, clerical, supervisory or any other.
• Concessions and benefits that have been conferred to an employee that is special to his post if any.

References:-

1. http://www.delhi.gov.in/wps/wcm/connect/doit_labour/Labour/Home/Acts+Implemented/Details+of+the+Rules+Implemented/The+Delhi+Shops+Rules,+1954/The+Delhi+Shops+and+Establishments+Rules,+1954.

The post An Analysis of Delhi Shops Establishment Act, 1954 appeared first on iPleaders.

In this blog post, Pranav Rudresh, a student of Lloyd Law College, Greater Noida, tries to look into the various factors that contribute to the inefficiency of the judicial system in India.

The Indian judicial system, a part of world’s largest democracy, is very old to follow. Right from the monarchical rule to the British era and the modern system of the independent India, the Indian judicial system has always tried to seek justice for the innocent and punishment for the guilty. The modern day judicial system administers a common law system of legal jurisdiction. The laws are codified, and different types of punishment are given depending upon the crime of the culprit.

Let’s take a look at how the Indian judiciary works. There are various levels of judicial bodies in India. If we look at the hierarchy, it is as follows:

• The Supreme Court.
• The High Courts.
• The District Courts.
• The Village Courts/Panchayats.

All these courts have their jurisdictions and are to follow the laws according to the Constitution of India. It is their duty, as mandated by the Constitution, to be its watchdog. They do so by calling into scrutiny any act of the legislature or the executive, who otherwise, are free to enact or implement these, from overstepping the boundaries set for them by the Constitution. The Indian judicial system is independent from legislative and executive bodies in India.

Let’s now take a look at the functions of the courts as mentioned above and their jurisdictions:

The Supreme Court of India

The Supreme Court of India is the highest judicial body in India, having jurisdiction all over India. It has been established under Part V Chapter VI of the Indian Constitution. It comprises of one Chief Justice and 30 Judges, the selection of whom is done through the collegium system. Article 124-147 of the Indian Constitution describes the working and functions of the Supreme Court of India. The main function of Supreme Court is to review the judgment given by the High Courts; however one can directly file a petition in the Supreme Court, as stated in Article 32 of the Constitution.

The High Court

At present, there are 24 High Courts situated in different states and union territories. The High Courts have their jurisdictions limited to their related states or union territories. According to Article 141 of the Indian Constitution, the High Courts are bound to follow the orders of the Supreme Court and their guidelines. A petitioner can appeal to a High Court as per article 226 of the Constitution. The oldest High Court in India is the Calcutta High Court.

The District Courts of India

The district courts are established by the state governments in a different district of the states depending on the population and number of cases. The high courts act as the watchdog for the functions of district courts in India. The district courts are provided with one district judge and also numerous assistant judges depending upon the workload of the particular court.

Issues with the Indian judicial system

Despite the independence of the judiciary from the executive and legislative bodies, the Indian judicial system faces a lot of problems. We will now discuss a few problems that the Indian judicial system faces.

The major issues that the Indian judicial system faces are:

• The pendency of cases.
• Corruption.
• Lack of transparency (particularly in the appointment of judges).
• Under trials of the accused.
• Lack of information and interaction among people and courts.

Let’s now try to elaborate the following points.

The pendency of Cases:

One of the primary issues with the Indian judicial system is the pendency of cases. If the vacancies are filled, pendency would go down and make the justice delivery system efficient. According to a report of 2015, there were close to 400 vacancies for the post of judges in the 24 High Courts of the country. The pending number of cases in the Supreme Court has mounted to around 60,000. There are some 25-30 million cases in various courts. Budget allocation for the judiciary is just 0.2 percent of the GDP. The judge-population ratio is 10.5-11 to one million, which should be at least 50-55 to one million.

A Large number of cases that are pending in the Supreme Court as well as the other lower courts has defeated the purpose of the judicial system. A famous proverb says, ‘justice delayed is justice denied’. Judiciary is no longer attracting the best legal talent because of disparity in the income of bright young lawyers and the emoluments of judicial officers. To attract persons of true potential to the judicial cadre, the system must improve their service conditions, particularly the conditions of the trial court judges.

In general, when the victim is not economically well off, they need to suffer as they are financially weak and hence cannot afford high profile lawyers who can win the case in a limited span of time. Meanwhile, the rich can easily afford expensive lawyers and change the course of dispensation of the justice in their favour (not necessarily true if the lawyer follows ethical standards). This also creates a big blockade for international investors and corporations who want to conduct business operations in India. According to a report, in Mumbai, India’s financial hub, the courts are burdened with age-old land disputes which act as a hurdle to the city’s industrial development. Thus, the pendency of cases and lack of lawyers and judges is a big challenge to the Indian judicial system.

 Corruption:

Like the other pillars of democracy, the executive and the legislative, the judiciary too (in some instances) has been found to engage in corruption. There has not been established any system of accountability. In the case of judicial processes, even the media is unable to give a proper and clear picture of the corruption scenario. The media seems to be more focused on exposing corruption in other fields, especially the executive. A minister taking a bribe or distributing money during elections may become a headline, but a courtroom clerk taking a bribe and altering the date of the trial remains unnoticed.

As per the constitutional provision, there is no provision yet for registering an FIR against a judge who has taken bribe without taking the permission of the Chief Justice of India. Obviously, visiting the CJI, seeking his permission, and then registering an FIR is not what a poor man will prefer to do. This will prove  to be more expensive and time consuming for him, besides the court and lawyer’s expenses.

The Professional arrogance of the judges whereby judges do not do their homework and arrive at decisions of grave importance while ignoring precedent or judicial principle delays justice and adds to trial’s spam. In 2011, Soumitra Sen, a former judge at the Calcutta High Court became the first judge in the India to be impeached by the Rajya Sabha alleged for misappropriation of funds.

Lack of transparency (particularly in the appointment of judges):

In the recent past, there have been many debates around all over the nation regarding the Collegium system and the new system that the government wants to introduce for the appointment of judges, the NJAC. Well, be it the collegium system or the NJAC, none seem to be transparent enough to make the selection process of judges clear and understandable to the common public. All democracies are swiftly moving toward an open government and a citizen’s right to know — an international trend increasingly being supported by judicial decisions. Further, the right to know is a part of the freedom of speech and expression and the present secretive system, as implemented by the collegium system, violates this fundamental right. The principle of open trials and justice is highly essential for the fair administration of justice.

The current government led by Prime Minister Modi states that the introduction of NJAC shall be more transparency in appointment of judges. The supreme court of India, however, denied the fact and said there is a need for the even higher level of law for the appointment of judges as NJAC is not “perfect.” According to the SC, the bar council was invited to amend the NJAC saying that the committee must comprise of the Chief Justice of India and four senior judges of the supreme court.

Well, let’s say on this matter the government and the supreme court stand face to face, but the fact is still unanswered whether the stated amendment or even the current proposal bring transparency in the selection of judges and make the framework clear to the common public?

Accused under trial:

Another drawback that  arises from the above-stated drawbacks is the under trials of the accused. Precisely, for those who have committed a crime, it is OK, but is it fair for an innocent to spend more time in jail just for waiting for his trial? The Indian jails are full of people under trials; they are confined to the jails till their case comes to a definite conclusion. Mostly, they end up spending more time in the jail than the actual term that might have had been awarded to them had the case been decided on a time and, assuming it was decided against them. Moreover, all the expenses, pain and agony that are used by them to defend themselves in courts are worse than serving the actual sentence. Under trials are not guilty till convicted. On the other hand, the rich and powerful people can bring the police to their sides, and the police can harass or silence inconvenienced and poor persons, during the long ordeals in the courts.

Lack of interaction among people and courts:

For any Judiciary to be successful, it is necessary that the general public must know the mechanics of judiciary. The society must participate in the court proceedings. However, it is the duty of public as well to make sure that they are participative enough to have the knowledge related to the judiciary. The law officer and makers must be close to the public and seek their opinion on a particular law or judgments.

Conclusion

There is no doubt upon the credibility of the Indian judiciary system. It is one of the largest judicial systems around the world having a law for almost all sorts of criminal activities. If we look at the history, the Supreme Court, since its inaugural sitting on 28^th of January 1950 has delivered over 25000 reported judgments. But the issues of corruption, pending cases, lack of transparency in the judiciary cannot be avoided. Thus if the judicial system removes these backlogs, we might see Indian judicial system as the best judicial system in the world. Also, the faith of the common person in judiciary may be restored before it’s completely lost.

The post Issues With The Indian Judicial System appeared first on iPleaders.

In this blog post, Sunidhi Pubreja, a student of Rajiv Gandhi National University of Law, Patiala has written a comprehensive guide to filing a complaint in CREDAI and further explained the key points that need to be kept in mind by the complainant while filing such complaints.

Introduction

Thinking about investing your savings in real estate and the most common advice you will get from experts is to be diligent while choosing a builder. Being diligent means taking notice of builder’s previous work, quality of service provided by him/her, compliance with the plan, etc. This industry is plagued with fraudulent builders. So, the buyer needs to be cautious, and it is wise to invest with a builder who is registered with a credible governing body such as CREDAI.

What Is CREDAI?

CREDAI stands for Confederation of Real Estate Developers’ Associations of India. CREDAI is a regulatory body of builders developed to administer the working and dealing of builders and to control the increasing number of fraudulent builders in this industry. It works to promote the interest of builders as well as investors and to bring transparency in the dealings between the two.

CREDAI seeks to create a favorable policy climate to ensure housing for all. CREDAI specially articulates the concerns of private housing providers. To generate confidence in this industry CREDAI has set a code of conduct and it is mandatory for all the members to abide by it. For example, consistent agreement clauses for all the investors, launch of projects only after securing all the approvals, detailed area statements of the saleable item, etc.

Malpractices Of Builders

The builders, too, earn huge amount of profit befool the buyers. The builders indulge in such malpractices whose consequences are faced by buyers. For example, DLF was served with a public notice by Bangalore City Corporation, Bruhat Bangalore MahanagaraPalike (BBMP), regarding for not obtaining necessary clearance approvals such as environment, power, etc. Its major impact was on those buyers who had already invested their money in it. The authorities stated that such flats would not get No Objection Certificate (NOC) as the necessary clearance has not been obtained, so it is illegal to start construction for the same. Hence, it bars the buyers from completing other transaction with civic authorities.

The builders promise to complete the construction on time, but they delay the construction without any genuine reason just to charge extra-exorbitant amount of money from buyers. They even misrepresent the facts, they may not provide agreed quality of products for construction, or indulge in any other fraudulent activity. Once the construction starts and the builders start demanding the exorbitant amount of money the buyers feels stuck in it.

However many times, despite our best efforts we feel deceived by our builders. What does one do in that case? The buyers have recourse to file a complaint against the builder if they feel cheated by their builders. First, the buyers can warn the builder about his/her malpractices. If the builder still does not stop his corrupt activities, then the buyer can approach the governing body if the builder is registered with a governing body. If the buyer is still not satisfied, then he can file a civil or criminal suit depending upon the nature of the complaint. There is no hierarchy in this chain.

How To File A Complaint Against a Builder?

To redress your grievances you can directly approach the builder. Nowadays, the rule of Caveat Venditor is prevalent in the market so most of the builders are customer oriented and would gladly oblige the customer or offer compensation if required.

1. The preliminary action against the buyer is to write to grievance cell of the company of the builder for redressal of his/her grievance.
2. If the developer is a member of CREDAI and he/she is not obliging, the complaint can be taken up with the CREDAI Chapter in the city having the Consumer Grievance Redressal Forum to resolve the issue.

CREDAI has established a Consumer Grievance Redressal Forum where an aggrieved buyer can register a complaint against CREDAI member developer. By translating investor interest protection into a mechanism, the apex body of real estate developers resolves consumer complaints expeditiously and prompts bestselling practice amongst the developer fraternity. The mechanism consists of the respective developer downloading the complaint lodged by the buyer from the website and informing the number of days that will be needed for resolution of the complaint. The period to resolve complaints ranges from 7 to 45 days depending on the nature of the complaint. To reduce the incidence of complaints, the developers are encouraged to adopt standard procedures, protect buyer’s interest and embrace transparent practices.[1]

To keep the resolution process free from internal influences, a provision has been made for experienced Legal and Technical Experts of developers to facilitate such resolutions. So far, Consumer Redressal Forum has registered approximately 1265 complaints and effectively resolved 1119 cases (as in June 2014). Out of the remaining 146 cases, 115 are in the process of being resolved. The above figure shows that CREDAI NCR has already resolved around 90% cases. The success rate shows that general customer is gaining confidence in Consumer Grievance Forum of CREDAI NCR.[2]

Guidelines to be remembered before filing a complaint with CREDAI

• CGRF functions neither as quasi-judicial nor as an arbitrator but only as a mediator.
• The Secretariat of Association can only register the complaint against a member builder only.
• The processing fee for filing a complaint is Rs 2000/- and in no case, more money can be demanded. In case the builder is found guilty at then, he is obliged to pay this amount.
• Once the grievance has been resolved by CGRF, it shall not be entertained again on a complaint from same parties.
• If the verdict of CRGF goes against the member, then he is obliged to comply with it. But if he does not comply with it CREDAI can then cancel his/her membership and expel him/her.
• If the matter is sub judice and both the parties agree to resolve the issue through CRGF, then CRGF will take cognizance of the offense. Otherwise, it has no jurisdiction to take the matter.

The Procedure to file a complaint with CREDAI

• You can file a complaint against the builder online at http://credai.org/register-your-complaint. Once the complaint is received by them, a serial number is allotted to it and sent to the member against whom it is filed.
• After the complaint has been sent to the respective member, he is required to send a reply within a stipulated time from the date it was received by him/her. If the builder fails to reply then, the buyer has to report the same to the Grievance Committee for required action. And the committee sends the message of the builder to the complainant, and he has to reply within seven bank working days.
• If the committee feels necessary, then it can also order its members to carry out the inspection at the site to resolve the issue.
• If the complainant is not satisfied with the reply of the buyer, then it has to inform the committee. Then the committee will call both the parties together and tries to resolve the matter with a mutually acceptable order and end the matter.

3. CREDAI is a national-level governing body. There are many other local levels governing bodies as well which can help a buyer to resolve the grievance if the builder is a member of that local level body. For example, Ahmedabad Realtors Association (ARA), Bangalore Realtors Association India (BRAI), Coimbatore Association of Realtors (COREAA), Andhra Pradesh Realtors Association (APRA), Realtors and Estate Consultants Association of Kolkata (RECA), South Metro City Association of Realtors (SMART), Association of Real Estate Consultants -Nasik (ARC), Real Estate Agents Association of Rajkot (REAAR), etc. are branches of National Association of Realtors-India (NAR). NAR India is a registered non-profit society registered in 2007 and is an umbrella organization covering real estate associations in India.
4. The buyers who bought property with a builder who is not a registered with CREDAI builders can approach the National Consumer Helpline (1800-11-4000) and CORE (http://core.nic.in/Complainant/CRegistration.aspx). These two help lines take care of all the complaints of a consumer and provide a remedy to them against unscrupulous activities of the seller.

• National Consumer Helpline aims to provide telephonic advice, information and guidance to empower Indian consumers and persuade businesses to reorient their policy and management systems to address consumer concerns and grievances adopting world class standards.[3]
• Core Centre aims to work in close cooperation with all the stakeholders in protecting consumer interests by providing state-of-art infrastructure for consumer’s grievances redressal, training, research, and class action litigation having necessary resources.[4]

So, these two forums help you redress your complaint if you fail to register your complaint because the builder is not the member of CREDAI or any other governing body.

5. The buyer also has recourse to file a complaint against the unscrupulous activities of the builders before the Competition Commission of India. Competition Commission of India (CCI) has the power to enquire anti-competitive and unambitious practices and impose rigorous sanctions on the delinquent builder. A fully functional committee with a Chairperson and six members appointed by the Parliament, the Commission, works towards protecting the rights of the consumers.
6. The last resort, if the consumer is still not satisfied, is that he/she can then approach the consumer/ civil/ criminal court depending upon the nature of the complaint and take a legal action against the defaulting builder. He/she can even claim damages for the amount of interest he could have earned if he/she had invested the money somewhere else or any other damages incurred by the buyer due to fraudulent practices of the builder. Depending upon the facts of the case if the judges are convinced that the buyer has incurred some real damages the court may award special damages or punitive or non-compensatory damages (These damages are not awarded in order to compensate the plaintiff, but in order to reform or deter the defendant and similar persons from pursuing a course of action such as that which damaged the plaintiff).

So, next time if a builder has befooled you or your known ones beware of the mechanism to file a complaint against the defaulters and get an appropriate remedy.

Footnotes:

[1]Available at http://credai.org/cgrf, last accessed on July 5, 201 at 1:50 p.m.

[2]Ibid.

[3]Available at http://www.nationalconsumerhelpline.in/, last assessed on July 5, 2016, at 3:26 p.m.

[4]Available at http://www.cccindia.co/corecentre/guest/aboutus.asp, last assessed on July 5, 3:28 p.m.

The post How To File A Complaint Against Builders In CREDAI appeared first on iPleaders.

In this blog post, Osita Kirti Ranjan, a student of Vinoba Bhave University, Jharkhand writes about section 498A of India Penal Code, 1860 and tries to portray two characteristically different sides of the same provision in the context of the Indian society. She tries to explain the legislative intent of enacting the provision and compares it with the actual implications of implementation of this provision India today.

A woman has predominantly been at a disadvantageous position in the society. She has to go through many obstacles at every stage of her life.  But her life becomes worse when she is married to a wrong person and is subjected to cruelty. Not only her husband but the relatives of her husband also start demanding dowry. They coercively demand money, jewelry, any property or a share in the property.

If she fails to fulfill their unlawful demands, then she is harassed and has to face mental and physical cruelty. Often she ends up committing suicide due to depression or is murdered by her in-laws. This is the very pathetic condition of unnatural death of young girls.  It is a criminal offense, and the entire family can be jailed under Section 498A of India Penal Code based on a complaint in the police station.

Section 498A was introduced in the Indian Penal Code by Criminal Law (second Amendment) Act, 1983. It was brought with the view of curbing domestic violence, marital violence and to protect women from dowry harassment and abuse committed by husband or in-laws.

Legal aspect of Section 498A

Section 498A states that – Whoever being the husband or relative of husband of the woman, subjects such woman to cruelty shall be punished with the imprisonment for a term which may extend to three years and also be liable to fine.

Explanation- for the purpose of this section, “cruelty” means-

1. Any willful conduct which is of such nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
2. Harassment of the woman where such harassment is to (or “intending to”) coercing her or any person related to her meet any unlawful demand for any person related to her meet such demand.

Analysis of the section shows that the following amounts to cruelty:

• Any conduct that is likely to drive a woman to suicide
• Any conduct which is likely to cause grave injury to the life, limb or health of the woman,
• Harassment with the purpose of forcing the woman or her relatives to give some property.
• Harassment because the woman or her relatives are either unable to yield to the demand for more money or do not give some share of the property.

Section 113A of Indian Evidence Act

This has been added to the Indian Evidence Act to raise plausibility either dowry death or abatement to suicide of a married woman. This section shall have the same meaning as defined in section 304B of IPC. The acknowledged object is to combat the menace of dowry death and cruelty.

• Cruelty: An evil

Kaliyaperumal vs. State of Tamil Nadu

It was held that cruelty is an essential common element in offenses under both the sections 304B and 498A of IPC. Both these offenses are distinct, but one who is convicted for dowry death can also be convicted for 498A of IPC. Section 304B does not define the meaning of cruelty, but the meaning of cruelty and harassment gave in Section 498A applies in section 304B as well.

• Kinds of cruelty covered under this section as follows:

1. Cruelty by vexatious litigation
2. Cruelty by deprivation and wasteful habits
3. Cruelty by persistent demand
4. Cruelty by extra-marital relations
5. Harassment for non-dowry demand
6. Cruelty by non-acceptance of baby girl
7. Cruelty by false attacks on chastity
8. Taking away children

• Misuse of 498A

Every coin has two sides. There is no doubt that this law has helped many women get justice, but this scenario is changing. This shield is becoming a weapon for the disgruntled wife to take revenge from her husband. It has become the easiest way to get out of the marital institution. Now-a-days social conditions have changed. Women do not hesitate to establish physical relationship men other than her husband. When they are involved in adultery and are caught in that act, then they smartly cover up their wrongdoing with dowry harassment to get social sympathy.  On the other hand, some wives want control over their husband. They compel their husband not to support his family and break his bonds with them and give up his responsibilities. His failure to do so will result in a 498A case against him. If her parents fail to marry her to a guy of her choice, she uses 498A as a weapon to get out of the marriage arranged by her parents.

Rajkumar vs. State o f M.P 120 of 2004

Wife was murdered brutally in her room. Her husband was accused under Ss. 498A and 302 of IPC.  There was a deficiency of evidence material enough to prove the allegation against the accused husband. It was held that mere doubt against a man is not enough for conviction.

Judiciary and police department

We always talk about gender equality but what happens when an innocent husband is trapped by his greedy wife and her relatives. Husband is beaten up by his wife or her relatives. Sometimes such an injury can be very fatal. But the judiciary does nothing against wife and her relatives. Wife and her relatives are given a free license to engage in atrocious behaviour in the name of 498A. First, they commit the crime and then file a complaint of 498A to cover it up. Despite that, judges do not follow the due process in such cases and allow any number of adjournments to the wife when she does not attend the court hearings. Also, judges do not dismiss the case when the wife does not attend the court for several years. Judiciary should stop working as an agent for such a wife.

On the other hand, police arrest the accused husband without proper investigation and they try to make money and demand a bribe from both the sides. They go to husband’s place of occupation and insult him in public and harass him.  There is huge corruption in the system. Interim bail does not provide any relief to the husband because he will ultimately be put behind the bars with the help of his wife or her relatives and alleged police officers. It is observed that bed-ridden mother-in-laws and father-in-laws are made accused of this section. Sister-in-laws living in abroad are also being accused under dowry laws. This is an absolute injustice to the husband if he is innocent.

Amendment is needed

The Delhi High Court urged the government to review the provisions. Judge J.D. Kapoor urged the government to review this law while rejecting the plea by Savitri Devi seeking for the arrest of her brother-in-law and sister-in-law. He also added that this provision was implemented with the good intentions but after a passage of time it is giving a bad taste and hitting the foundation of marriage itself, and it is not good for the health of society at large.

Delhi High Court also added that Ss. 498A and 406 of IPC should be made bailable because this is becoming a tool for demand of ransom. Some people treat it as legal terrorism. It was reported that about 35% rise in deaths of husbands was due to them being caught in dowry disputes during 2007-09. Dowry deaths in case of women grew by just about 3.5% during the same period. The act of appellant in filing a false complaintamounts to cruelty and can be ground to the dissolution of marriage. Besides, this section should be turned into a compoundable. If parties are ready to solve their dispute by deciding to put an end to their marriage by mutual divorce then, it should be allowed.

Supreme Court has come to the rescue of all such families who have falsely been arrested on such charges. The Supreme Court ruled that the police cannot arrest accused in such cases automatically, and it must give reasons for taking such steps which would be judicially examined. SC directed all State governments to ensure that police do not resort to arresting in all offenses punishable up to seven-year jail term including dowry harassment cases.

Conclusion

It is very essential to protect a woman in the patriarchal system, but it does not mean that justice is only meant for women. Article 14 of Constitution is to be upheld as well. There should not be any form of gender bias. There is an extreme need to review some provisions under Section 498A so that innocent men and their families do not suffer because of a disgruntled wife.

The post Section 498A of IPC – A Shield or A Weapon? appeared first on iPleaders.

In this Blog Post, Sakshi Bhatnagar, a student of National Law University Odisha, Cuttack writes about the position of crime reporting of offenses committed against women in India. She presents this data with statistical proof. 

Crime statistics are imperative and crucial inputs for evaluating the personal satisfaction and human rights circumstance. In the general public, such reports are used by authorities at various levels for the purpose of framing new policies, and ascertaining the position of current ones. In any case, this framework has not been investigated over time from the perspective of scope, exactness, opportuneness and importance.[1]

With an aim of comprehensive improvement of the statistical system in the country, a mechanism called the ‘Conference of Central and State Statistical Organisations’ (COCSSO) was set up by the Ministry of Statistics & Programme Implementation. Reporting on crime and criminal justice help Governments to assess and monitor the conditions, circumstances, and trends of the well-being of the society and the social impact of public expenditures and policies. The collection of reliable and comprehensive criminal justice statistics in countries is of immense importance to everyone involved with criminal justice, especially to the criminal justice administrator.

Violence Against Women and Recording and Reporting of Violence Against Women

Crimes against women have been a barrier to complete development of the society and the situation is not unknown to any authority. The reluctance of public authorities to deal with it are long-standing themes of public debate in India. They have been part of India’s Public Policy agenda since the landmark rape case in 1972 of a teenage girl known only as Mathura.[2] Another highly publicized case that apparently paved the way for new implantations in legal procedure was the Nirbhaya case that happened 40 years after the above cited Mathura case in 2012. The response of the appropriate authorities was, despite such a long gap, was more or less the same, of reluctance. They leave no doubt that violence against women is a serious challenge to Indian society, law enforcement, and judicial affairs. These extremely publicized incidents focus attention on the widespread however poorly .understood downside of violence against women. 

Internationally, violence against women is recognized as ‘one of the most systematic and widespread human rights violations.[3] One reason of this may be that violence is rooted in the gendered and social structures instead of random acts done by individual minds; and ‘cuts across age, socio-economic, educational and geographic boundaries; affects all societies, and is a major obstacle to ending gender inequality and discrimination globally.[4]

In international rankings, India’s overall rate of reported lethal violence is low to mid-level, compared to far off societies such as Brazil, the Russian Federation, or South Africa.[5] India’s low rate of national violence, however, conceals it’s large absolute scale, with an annual average of 35,848 violent deaths of men and women between 2007 and 2012.[6]From a sexual orientation point of view, these insights give just an impression of viciousness against women

The key figures for violent crimes against women in India are the annual statistics released by the National Crime Records Bureau (NCRB). As a police agency operating under the Ministry of Home Affairs, the NCRB is responsible for all official, national crime statistics, relying on data submitted by state and city law enforcement agencies’.[7] In 1989,a separate section on ‘Crimes against Women’ was introduced by the agency to its annual report. In this section, acts of violence against women are recorded under two separate categories: the Indian Penal Code (IPC), and crimes recorded under specific gender laws, called the Special and Local Laws.[8]

NCRB reporting also involves judgments by police about the causes of a crime—a problem most evident in certain categories, such as motives for sexual affairs or killings due to allegations of witchcraft which raises questions about misreporting.[9]

Gendered Underreporting

Underreporting by law enforcement agencies of violent crime against women is a global concern.[10]By adequately disguising the genuine size of the issue, underreporting redirects open and political consideration, accordingly hindering conceivably viable reactions. Evidence of massive underreporting in India comes from a study in 2010 that found that approximately 66 percent of New Delhi’s women had been sexually harassed during the previous year, on an average of two to five times.[11]The weakness of Indian crime data, especially poor reporting and lack of comprehensiveness, limits insights into all aspects of Indian violence and acts as a challenge to complete societal development.

As per the data available, the NCRB reported just 82 cases of infanticide nationwide in the year 2014—a remarkably low figure for such a large country.[12]The concept of missing women in Asia explains much about the gendered underreporting of violent crimes against women in this region. 25 years ago, Amartya Sen, through his writings, showed that India and other countries in Asia were missing millions of women due to selective abortion, infanticide, and unequal treatment of female children, including the denial of food and health care.[13]In India, notions of shame, modesty, and honor remain the dominant concepts in public discourse for justifying sexual assaults on women.[14]

Sex-selective Foeticide and Female Infanticide

Gender-based discrimination begins early in a human life in India. A family with an apparent predilection for having a son, rather than a daughter, can use prenatal testing to determine the sex of a fetus and organize a sex-selective abortion to escape birth of a girl[15]. In 1996, India enacted a law to avert prenatal scanning for the purposes of determining the sex of a fetus. Such a law is tremendously difficult to enforce because an extensive yet poorly regulated private medical system exists. Not everyone is aware of the existence of such a law, mainly in the remote areas.

The deficiencies of official reporting on female foeticide and infanticide appear implausibly low for a country of more than 1.2 billion. The trends may be more meaningful than the individual figures as they indicate a steady rise in reported foeticide cases but the national total in 2013 was still only 221 reports, which is not enough to register statistically in overall crimes against women. Meanwhile, the number of reported infanticide cases has gone down.

These figures only hint at the inadequacy of official crime figures. Studies suggest that, in reality, 4 to 12 million foetuses-virtually all female -may have been aborted in India over the past three decades[16]. This estimate excludes the crucial aspect of post-birth infanticide or death due to willful neglect. The data on missing women refers not just to the systematic prevention of the birth of females through sex-selected foeticide but also to the widespread killing of female infants and young girls, typically under the age of six. The methods of female infanticide vary, with many traditions. One researcher observed the methods of inducing pneumonia and diarrhea:

The infant was wrapped in a wet towel or dipped in cold water as soon as it was born or when it came back home from the hospital. If, after a couple of hours, if it was still alive, it was taken to a doctor who would diagnose pneumonia and prescribe medicine, which the parents promptly threw away. When the child finally died, the parents had a medical certificate to prove pneumonia. Sometimes the infant was given a drop of alcohol to create diarrhea, another ‘certifiable disease’.[17]

A critical study shows skewed survival rates for girls of one month to five years of age, who are 25 to 50 percent more likely to die of pneumonia and diarrhea than boys of the same age[18]Domestic violence is yet another strong reason for the abnormally high rate of female deaths.

The reported ratio of girls born for every 1,000 boys born has increased since 2000. In that year, only 892 girls were reported born for every 1,000 boys, suggesting a notable rate of foeticide and infanticide. By 2008, 904 girls were reported born for every 1,000 boys[19]. This increase in births of girls is offset, however, by a steady decline in girls to boys under the age of six, a decrease from 927 girls for every 1,000 boys in 2001, to 914 girls in 2011[20].

Domestic Violence

Girls and women are often subjected to physical and sexual abuse, both inside the home and outside. Although definitive surveys and estimates are lacking, domestic violence appears to be the most common form of violence perpetrated against women[21]. That said, it seems to go virtually unreported to police except for some of its nastiest manifestations. This makes domestic violence probably the most precarious category of violence against women for which systematic data is lacking. In lieu of criminal reporting, survey research on domestic violence is the strongest indicative measure of its significance. Survey findings put forward that approximately 40 percent of women in India who have ever been married have been subjected to spousal violence. The same survey shows an estimated one percent of married women have acted violently towards their husbands[22].

Shockingly, a survey done by the Population Reference Bureau found that 30 percent of women and 26 percent of men in India agree that wife-beating is acceptable[23]. Other research shows that women who marry young usually meaning before 18 in India are more likely than women who marry later to believe this and to experience domestic violence[24].

Domestic violence means violence between spouses and violence perpetrated by other family members. It is widely presumed to include physical intimidation and violence towards daughters-in-law, typically carried out by members of extended families who live in the same household. In 2013, police records capturing ‘Cruelty by Husband and Relatives’ against women the principal category for the most grave of such incidents accounted for 38 percent of all the crimes covered under the Indian Penal Code, 1860.

The key state response to domestic violence is the Protection of Women from Domestic Violence Act 2005, which extends to the whole of the country, except for the states of Jammu and Kashmir [Gazette of India, 2005, art. 1(2)]. While the Act contains no new punitive features, it emphasizes on protecting the fundamental civil rights and humanitarian needs of women, such as a woman’s right to reside violence-free in her matrimonial or parental home.

Dowry-related Violence

Under the country’s Dowry Prohibition Act, 1961, dowries in India almost always paid by families of the bride were declared illegal; yet it is still a common practice in the culture of marriage in India. Research confirms that the practice continues unchecked and dowry-based violence has become more common, despite official efforts to suppress it[25]. A study conducted by the UN on the culture of dowry and domestic violence in India found that the crimes related with dowries tend to relate to financial demands made by the families of bridegrooms and the tensions caused by changing social traditions and emerging opportunities for women.

Dowry expectations can amount to several times the annual wealth of a poor family. When the bride’s family cannot afford the dowry requested, conflict may result, sometimes culminating in lethal attacks committed by the family of the groom on the bride and threats of breaking the marriage. A new bride might be abused by her husband’s family until her parents pay certain debts or provide gifts requested. Similarly, dowries have grown to include other ritual occasions, such as gifts to mark the birth of a child or other significant events. 

The social and financial burden of such expectations can affect a family’s decision to selectively abort a female fetus or kill a baby girl, as she, in turn, will incur considerable dowry costs when she attains marriageable age. Another extreme example of dowry-related violence is burning to death a bride who can be dismissed as a kitchen accident or suicide. Sometimes, the family of the bride fears the hampering of their image and position in the society due to which, they do not file any complaints or any case against the family of the groom. What is to be understood is that such a fear encourages the culprits as they are assured that no legal complications will arise.

Reports of dowry-related violence in India have been rising. NCRB figures show a surge from 4,836 dowry deaths reported in 1990 to 8,083 in 2013—an increase of more than 67 percent. As with other forms of violence against women, this figure is widely regarded as incomplete. The states where most dowry violence occurs are concentrated in the north of the country: certain states report no dowry-related deaths at all. Some of these reports may point to more favorable regional social environments while others suggest poor reporting practices.

Honour Killing

“Honour” killings are among the most severe indications of violence against ladies and young women around the world.[26] Such killings carried out for the sake of custom, are executed by male relatives to attest power over ladies’ decisions of a close partner or opportunity of development.[27] Murdering for the sake of respect may take numerous structures. A young lady or woman might be stoned, compelled to submit suicide in the wake of being reprimanded in broad daylight, or blazed and distorted with corrosive, which thus can bring about death or suicide.[28]

Universally, honour killings are accepted to be extremely under reported.[29] In India, the NCRB information does not have a different classification for such killings. Rather, reports rise just about entirely through the media and NGOs. UN bodies have likewise communicated concern that respect related violations and murders are under-archived, once in a while examined by police, and typically go unpunished.[30] 

The Supreme Court unequivocally ensures the act of khap/katta panchayats, taking the law into their own hands and enjoying hostile exercises which put in danger the individual existences of the general population wedding as per their will. To the extent India is concerned, “honor killings” are for the most part reported from the States of Haryana, Punjab, Rajasthan and U.P. Bhagalpur in Bihar is likewise one of the known places for “honor killings.” Indeed, even a few occurrences are accounted for from Delhi and Tamil Nadu. Getting hitched to individuals from different stations or the couple leaving the parental home to live respectively and we’d incite the unsafe demonstrations against the couple and prompt relatives. The Law Commission of India attempted to learn the quantity of such occurrences; the blamed included, the particular reasons, and so forth, to have a thought of the general wrongdoing rate in such cases.[31] The Government powers have cited this in AnverEmon’s Article on Honour Killings. States where episodes frequently happen have been tended to outfit the data. The main reasons for honor killings seem to be love marriages, wish to marry outside the village or caste or against the consent of the parents. Relational unions between the couple having a place with same Gotra (family name) have likewise frequently prompted the savage response from the relatives or the group individuals. This is a troublesome circumstance to be into be not kidding, as it is seen as a condemnable demonstration to both, wed outside the group and inside of the same family name. The Caste gatherings or Panchayats, prominently known as ‘Khap Panchayats’[32], attempt to receive the excellent course of ‘moral vigilantism’ and uphold their diktats by accepting to themselves the part of social or group Watchmen.

Violence Against Women In Public Spaces

As ladies and young girls venture out from the private circle of home and family and into open spaces for advanced education, paid business, and social engagement, they go up against new dangers of sexual animosity intrinsic to a culture that frequently supports or neglects lewd behavior in the city.[33]In an endeavor to comprehend savagery against ladies in urban open spaces, some universal associations and NGOs have directed free studies. In 2010, an overview upheld by UN Women in regards to the boundaries to making New Delhi more secure for ladies, what’s more, young girls found that the ‘trepidation of being badgering’ in broad daylight spaces was as genuine an issue as the ‘experience of being bugged’.[34]

More than 85 for every percent of ladies reviewed reported fears of inappropriate behavior out in the open.Almost 66% reported having confronted episodes of lewd behaviour—from foul remarks to being grabbed, stalked, or sexually attacked—somewhere around two and five times in the earlier year. As anyone might expect, vast extents of ladies said that they maintained a strategic distance from open places, particularly around evening hours. The remarkable extent of their encounters may clarify the power of the general population response to the group rape and murder of 2012 in Delhi.[35]

Rape and Sexual Assault

Assault is seen as a show of dominance by male members of the family over the female members. Females are beaten up if they do not abide by the ‘instructions’ given by their husband and if they do anything which is considered outside of their traditional roles. While reporting seems low, the quantity of reported episodes has risen forcefully lately, from 24,206 in 2011 to 33,707 in 2013—a 39 for each percentage increment in two years.[36]This increase in reporting comes following quite a while of steady and low reporting. Existing NCRB information does not uncover whether the increment is because of another ability among casualties and families to report the wrongdoing, to an adjustment in the readiness of police to record such violations, or to an ascent in the assault cases themselves. The aggregate number of assaults reports for which the culprits were known not casualties was 31,807.[37]According to NCRB information, 93 ladies are assaulted in India every day. The conditions of Madhya Pradesh and Rajasthan recorded the most elevated number of cases in 2013 with 4,335 and 3,285 individually. The most elevated rates of reported assault were in the Delhi national capital domain and the north-eastern condition of Mizoram[38]. Whether these states emerge due to higher real occasions or the complete reporting is indeterminate. An outstanding issue in assault cases is the character of assailants. Of the 33,707 assaults formally recorded in 2013, the casualty apparently knew her rapist.

The principal concern is Dalits (‘mistreated’ in Hindi and Marathi, vitally alluded to as ‘untouchables’), who are at the base of India’s rank progressive system. Dalits seem significantly more prone to be deceived, and a great deal more averse to see their affirmations considered significant by the legal framework. An unmistakable investigation of brutality against Dalit ladies observed them be as much of hazard from fierce assaults inside of their group as from non-Dalits.[39] Family strife is frequently a reason for the bad passing of a lady among Dalits. The social dimensions of brutality against Dalit women were uncovered by a study that found that some may see assault as “appointed” because of their twofold detriment of being Dalit and female (Sengupta, 2009).

Equity is routinely denied to Dalits, in spite of legal changes, for example, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989, proposed to enable powers to manage savage wrongdoings against these groups. Police can be hesitant to handle rank related viciousness, register cases, or react to pleas for help. An examination of brutal violations carried out by non-Dalits against Dalit ladies uncovered efficient defers or a through and through inability to acknowledge reports of affirmed wrongdoings, to explore, or to arraign culprits).

Conclusion

Though the crimes against women are continuously rising, there has not been any new initiative to record these crimes, and the traditional practices are still followed. These reports, which are produced by the government authorities are questionable on many bases and cannot be completely relied upon. All this ultimately hampers the process of framing effective policies. There is an immediate need to rectify the errors in the reports and cover the offenses, which were not covered previously, under new categories.

Footnotes: 

[1]Report of the Committee on Crime Statistics, Ministry of Statistics & Programme Implementation (29.06.11)

[2]Basu, 2013

[3]UN Women, 2013, p. 2; UNFPA, UNIFEM, and OSAGI, 2005

[4]UN Women, 2013, p. 2

[5]Acharya and Karp, 2011, p. 2

[6]Geneva Declaration Secretariat, n.d.

[7]Shrinivasan, 2013; Acharya and Karp, 2011, p. 2

[8]NCRB, 2014, p. 79

[9]NCRB, 2014,pp. 55–56

[10]Dziewanski, LeBrun, and Racovita, 2014, p. 11

[11]Jagori and UN Women, 2011, pp. 20–21

[12]NCRB, 2014, p. 96

[13]Lyn, 2011; Sen, 1990

[14]Verma, Seth, and Subramanium, 2013, p. 14

[15] UNICEF, 2006, p. 4

[16] Ram et al., 2013, p. e224

[17]Aravamudan, 2007, pp. 20–22

[18] Ram et al., 2013, pp. e224–e25

[19] UNFPA, 2010

[20] NFHS, 2007, p. xxx; GoI, 2012, p. 6

[21] Smith et al., 2003, p. 13

[22] NFHS, 2007, pp. 508, 521

[23] PRB, 2011, p. 2

[24]Jejeebhoy, 1998, p. 859

[25] Banerjee, 2014

[26]HRC, 2012, Para. 43

[27] HRC, 2012, Para. 43

[28]HRC, 2012, Para. 45

[29]HRC, 2012, Para. 44

[30]HRC, 2012, paras. 43–44

[31]Prevention of Interference with the Freedom of Matrimonial Alliances (in the name of Honour and Tradition): A Suggested Legal Framework. Report No.242

[32]AnverEmon is a professor of Islamic Law.

[33]Jager and UN Women, 2011, p. 43

[34] HRC, 2012, paras. 95-99

[35] HRC, 2012, paras. 100-101

[36] NCRB, 2014, p. 81

[37] NCRB 2014, p. 399

[38]NCRB, 2014, p. 387

[39]Navsarjan Trust, 2011, p. 6

The post Position Of Crime Reporting Of Offenses Against Women appeared first on iPleaders.

In this blog post, Suhani Chanchlani of Amity Law School, Delhi, analyses the indirect tax regime on goods as prevailing under Value Added Tax. Before you proceed to understand Goods and Services Tax, it is important to understand the aspects of present taxation regime that GST Bill seeks to replace. The rationale behind VAT, its merits and demerits would also be examined.

What is VAT?

Value Added Tax is an indirect tax that is levied at each stage of value addition of production or distribution chain. Although it is levied from producers, it`s final burden rests on consumers. VAT constitutes a major source of revenue for different states and union territories. However, the Department of Revenue under the Ministry of Finance facilitates the implementation of VAT.

Why was VAT Introduced?

In the previous taxation system, goods were taxed a multiple number of times. For instance, a manufacturer on purchasing inputs would also pay taxes on those inputs. The distributor buying goods from a manufacturer would pay the price of the output of the manufacturer that is inclusive of taxes paid by the manufacturer as well as pay additional taxes on the output of the manufacturer.

The consumer, on the other on his purchase of a good from the distributor would pay a price that is inclusive of the price of the output of the distributor which is again inclusive of taxes paid by the manufacturer and himself. Oh! Don`t forget the additional taxes that the consumer would pay the price of a good! As and when you would proceed further in the value addition chain, the next producer would be obligated to pay higher and higher taxes. And the burden of all this would ultimately lie on the consumer. To make matters worse, some states even levied taxes related to sales such as turnover tax, a surcharge on sales tax and additional surcharge. It wasn`t too bright for the revenue authorities too. Tax evasion for the taxes mentioned above was common. Moreover, it was not too easy to catch hold of defaulters.

VAT was thus, introduced to rationalize the taxation regime of indirect taxes. Taxes such as turnover taxes, a surcharge on sales tax, additional surcharge and Special Additional Tax were abolished while it was decided to phase out Central Sales Tax.

How does VAT Work?

When a producer buys an input, he will pay a price for it that is inclusive of taxes. However, he would get a set-off or input tax credit on the purchase of inputs whereas his output would be taxed. Input tax credit means setting off or canceling of taxes paid on inputs as against the taxes paid on output. VAT is thus, the difference between the taxes paid on outputs and the tax credit received on inputs in a particular period. In case, the tax credit received is greater than the taxes on output; then the tax credit can be carried on to the next financial year. Moreover, this input tax would be given to both traders and manufacturers, irrespective of the state where they would sell their output or the period when they would sell or utilize the input.

For exports, the taxes paid within the State would be refunded within three months. Under this scheme, however, taxes paid on inputs procured from other states or stock transfer would not be credited. This payment of inter-state taxes is proposed to be phased out soon. All producers (manufacturers, wholesalers, distributors, retailers and the like) who have a turnover or sales exceeding a prescribed amount (this amount is set at different values by different states) are liable to pay VAT. 

It is pertinent to note that documentation of invoices, bills or cash memos is necessary. All those who are liable to pay VAT are ordained to issue tax invoices to purchasers of their products, having all the prescribed specifications.

Moreover, small dealers whose annual gross turnover does not exceed Rs. 50 Lakhs and are otherwise liable to pay VAT, have an option of either paying VAT or opting for the composition scheme. Under the composition scheme, the producers would be liable to pay taxes which would be equivalent to a small percentage of their gross turnover. After opting the composition scheme, the producer would not be able to avail any input tax credit.

VAT Rates and Classification of Commodities

Despite the fact that the method of classification of goods for the purpose of imposition of differential rate of VAT differs from state to state, the following classification substantially applies to most of the states:-

Goods exempted from VAT: – These include commodities that are of social importance and also those on which taxation is barred by the law. Some of these commodities are khadi, salt, condoms and aids used by differently abled. Many states have also included unprocessed goods sold in natural form by the unorganized sector.

1%: – This special VAT rate only applies to precious metals such as platinum, silver and gold in some of the states.

4-5% of VAT is imposed on items of daily usage that are necessary for basic living such as oil, medicines, certain capital goods and some agricultural and industrial inputs.

General VAT rate i.e. 12.5% is imposed on goods such as liquor and cigarette that does not fall under any of the above-mentioned categories.

Merits of VAT

• It contains tax evasion: – Since; it would not be possible for producers to claim input tax credit without presenting proper invoices of inputs purchased; they would be obligated to maintain proper records of their purchases. Also, the input tax credit would only be set off against taxes on outputs. Thus, a producer is less likely to suppress the record of his purchases as he would not get input tax credit then. He is also less likely to suppress the taxes he paid on his outputs as that would reduce the record of his sales or turnover. 
• It keeps the prices in check: – VAT rectified the scourge of double taxation. Under the earlier taxation system, the producers that were located lower in the production chain had to pay higher taxes and the consumers ultimately borne the brunt. As a result, prices of those goods that involved more people in the production chain were higher than those goods that involved a relatively lesser number of people. VAT thus, has also rationalized the pricing mechanisms of goods. The price is now no longer dependent on the number of people involved in a production chain.
• It is transparent: – Proper maintenance of invoices alone would allow a producer to claim input tax credit. Because of this requirement, the buyers are presented with invoices from which they get to know what portion of the money that they paid is taxed and on what other basis is a producer charging them.
• A collection of taxes is easier: – The practice of maintenance of tax invoices, proper documentation of purchases and sales, makes it all the easier for the revenue department to collect taxes. Moreover, there would be no need for compulsory assessment at the end of each year. This has reduced the administration of costs of procuring taxes.

Demerits of VAT

• VAT does not ensure full-proof measures against tax evasion. When there are differential rates of VAT, exempted category of goods and schemes like composition schemes, tax evasion cannot be weeded out completed as these measures all for way around.
• As VAT applies by laws and rules formulated within different states, it only ensures against the cascading effect of taxation if goods are sold and purchased within the states. Input tax credit is not provided for goods purchased from outside a particular state.
• Unlike sales tax where taxes are imposed at the last stage of consumption, VAT is levied at every stage of the production chain. This increases the administration cost as the revenue authorities would have to collect taxes from each and every producer.

Concluding Remarks

VAT rectified many of the shortcomings of the previous tax regime. However, it is not without its limitations. Indirect taxation has to be more rationalized to make way for a common domestic market, competitive prices and elimination of cascading effect of taxes. To achieve this, the government has proposed Goods and Services Tax under which all the indirect taxes including VAT would be subsumed under one head.

The post All that you would need to know about VAT appeared first on iPleaders.

In this blog-post, Disha Pareek, a student of RGNUL, Punjab discusses raids conducted in cases of software piracy. The blog post focuses on the rights of defendants (the one who is being raided).

Introduction

The issue of software raids, which is much talked-about can be looked at from two perspectives; first from the point of view of the raided party, to whom such kinds of raids seem to be preferential or biased and the other being from the point of view of an IP enforcer, who wants to ensure absolute protection of their IP rights.

Firstly, the National Association of Software and Services Companies (NASSCOM) defines software piracy as “involving the use, reproduction or distribution without having received the express permission of the software author.”[1]

From the point of Indian law, The Copyright Act does not legalize making or distributing copies of copyrighted software without proper or specific authorization. As per the Indian Copyright Law, an infringing copy is one which is used without the license and permission granted by the owner of the copyright as per Section 51 of the Copyright Act.[2] This kind of infringement violates the exclusive right of the owner. Each infringement of the software is in violation of the exclusive right granted to the owner and amounts to infringement as defined under Section 51 of the Copyright Act, 1957 and is punishable under the provisions of Section 63 of the Copyright Act, 1957. The only exception is provided under Section 52 of the Act, which allows a backup copy purely as a temporary protection against loss, distribution or damage to the original copy. Further, the 1994 amendment to the Copyright Act has incorporated a special penal provision i.e. Section 63-B for knowingly using infringing computer software.[3]

The punishment provided for this act is imprisonment for a term of seven days to a maximum of three years and a fine not less than fifty thousand and which can go up to two lakh rupees. In case the infringing copy of the computer software is used not for pecuniary gain or in the course of trade or business, the imprisonment can be relaxed and fine can be of fifty thousand rupees.[4]

Despite the bulk of the laws on copyright, there are some of the gray areas which need to be interpreted in a broader sense.  A huge debate has been taking place about the rights of the IP enforcers, but very little attention is given to the rights of the raided party. There must be a balance in the issue of piracy of software. But lately, it is being realized that the big giants like Microsoft/Abode, in collaboration with Indian judiciary and Police, are more or less harassing the Small and Medium Enterprises (SMEs).

The law applicable in these cases is of Copyright Act, 1957. Section 64 (amended in 1984) of the said Act gives power to the police officer of the rank of a sub-inspector and above, to seize without warrant all infringing copies of works “if he is satisfied” that an offence of infringement under section 63, “has been, is being, or is likely to be, committed”.[5]

Before the amendment of 1984, this power could only be exercised by a police officer when a Magistrate had already taken cognizance of the matter. On the face of it, this is a very extensive and boundless power since the judiciary does not supervise it, and it simply depends on the “satisfaction” of the officer, which is very subjective and differs from case to case. To put matters in perspective, under the Income Tax Act, dealing with the far more sensitive issue of tax evasion, a search and seizure can only be conducted based on information already in the possession of the investigating authority.[6] Thus, it can be said that, Article 64 gives arbitrary powers to police personnel, and mostly, they do not abide by Sections 51, 52 and 52A and Section 64(2) of the Copyright Act, which asks police not to act arbitrarily and the “satisfaction” be based on some material facts and not some absurd propositions.

Anton Piller order

This order gained prominence in the United Kingdom and Lord Denning explained its importance in Yusuf v. Salamon[7] ,”the order intends to prevent the danger of destruction of evidence.” The order is not a search warrant but authorizes to inspect by permission of defendant. Otherwise, it will be considered a trespass. There is a possibility of abuse of this order by the plaintiff (IP enforcer) so here must be the protection of defendants against such orders.

According to Rule 8, order 39 CPC provides that before making such order court has to give prior notice to the person concerned, but the dark reality is that these raids take place on a surprise basis.[8]

Supreme Court in the case of Selvi v. the State of Karnataka opined “the search and seizure conducted in light of the order, there is abuse by the authorities towards defendants and resultantly causes violations of a person’s Constitutional Right against Self-incrimination, Right to life (right to a fair trial), and most importantly his Right to privacy.”[9]

Rights available to defendants

In this case, the defendant (the party at fault) should know about his rights and remedies,

• The most important right in defendant’s favor when he is being raided by the police officer is denying the entry; it’s their discretion whether to allow the plaintiff in the premises for the purpose of search and seizure.
• The second being, if a company gets a call representing a company, the former has all rights to ask for the authority of the said company and whether they have authority to ask for any evidence of any sorts.
• If a bunch of people raids the house/office, the person has all right to see whether they have authorization from the court and they must have a court order (in this case, District Court having proper jurisdiction).
• As per the provisions of Article 64 of Copyright Act, the police can only seize the systems that use pirated software, but in many cases it is alleged by people that police who are given plenary powers misuse it, and all the equipment of the defendants’ company are seized through these raids being carried out by Local Commissioner appointed by the courts along with the technical experts who work for the Plaintiff.[10]
• The problem does not end here, to avoid unnecessary media attention, many a time these firms have to pay a lot of money demanded by plaintiff’s firm on the pretext of an out-of-court settlement, the amount of which ranges between 5 to 20 Lakhs. But their demand is always higher than this amount.

For instance, one of the largest insurance companies in Guatemala has sued Microsoft over an extortion-like anti-piracy raid. With the help of local law enforcement Microsoft allegedly demanded an on the spot payment of $70,000 for the use of pirated software or the alternative of confiscating all of the company’s computers.[11]

• Sometimes, the companies do not even use pirated software, but since these raids are uncalled for and surprising, they cannot gather information and keep it safe; therefore, it is advisable that they keep all information at their hand so that it is easily available and the person can rebut the claims against themselves and be saved from harassment.

• The Delhi HC gave some guidelines one of which is that the defendant must be offered the right to backup his/her data. Such data must not only include data created on licensed software, but also data created using unlicensed software. After all, such “data” can hardly belong to the plaintiff copyright owner.

Having said this, it is important to appreciate that the copyright owner can certainly claim damages based on the “use” to which the infringing material has been put. In other words, if data has been created on unlicensed software, the copyright owner can insist on damages for the said “use” of the software to create that data.

Conclusion

The Indian Courts are moving in the right direction but at the same time, they need to ensure that the entire purpose of such orders is not defeated or misused. While exercising its inherent jurisdiction under the provisions of CPC, the Delhi High Court in The Indian Performing Right vs. Mr.Badal Dhar Chowdhary[12] held those abstract injunctions may not be issued and categorically stated that “vague injunction can be an abuse of the process of the court and such vague and general injunction of anticipatory nature can never be granted.”

 The main problem also lies in the usage of John Doe orders. The extent of such orders needs to be categorically stated to avoid any misuse. Usage of John Doe orders in India has brought in awareness and protection to holders of IP rights, but the question is how such orders will be implemented and enforced. Appointment of Commissioners for search and seizure, new guidelines for curbing copyright infringement are all modes of effectuating John Doe orders. But still, the notion seems to be at initial stage with the handful of orders being passed and not many people have knowledge about its application.

One suggestion to improve the current system lies in setting up of an effective mechanism to implement such tough orders. The proposed infringers must be properly communicated, by this way only John Doe can be improved.

Footnotes:

[1] Available at, http://mmsoftwarepiracy.blogspot.in/2011/07/software-piracy-laws-in-india.html

[2] Section 51, Indian Copyright Act, 1957

[3] Section 52, Copyright Act, 1957

[4]ShivveDatta Sharma, Creative Activities, and the Law: Human Rights Approach, Deep, and Deep Publications, 2007

[5]Section 64, Copyright Act, 1957

[6] Available at http://cis-india.org/internet-governance/front-page/blog/privacy/copyright-enforcement

[7] (1980) 3 ALL ER 405 at p 406

[8]Jatindra Kumar Das,  Law of Copyright, PHI Learning Pvt Ltd, 2015, at p 484

[9]AIR 2010 SC 1974

[10] Michal W. Morte, School Law: Cases and Concepts, Allyn and Bacon, 2005

[11] Kevin Mc Laughlin, Microsoft sued for allegedly using Armed cops in Software Piracy raids, Business Insider, June 18, 2013.

[12]Available at, https://indiankanoon.org/doc/3810000/.

The post Rights Of A Firm When Raided For Software Piracy appeared first on iPleaders.

In this blog post, Sunidhi Pubreja, a student of Rajiv Gandhi National University of Law, Patiala lists out the benefits of changing the age old tax regime in India to GST and its impact on the overall growth and development of the Indian economy.

Goods and Service Tax (GST) is a broad based and single comprehensive tax levied on goods and services consumed in an economy. GST is levied at every stage of the production-distribution chain with applicable set-offs in respect of the tax remitted at a previous stage. It is a tax on final consumption. In simple terms, GST may be defined as a tax on goods and services, in which at the time of sale of goods or providing the services, the seller or service provider may claim the input credit of tax which he has paid while purchasing the goods or procuring the service.[1] As VAT can be applied to goods as well as services, it has been termed as Goods and Services Tax. During the last few decades, VAT has become a significant instrument of indirect taxation in more than 130 countries resulting in one-fifth of the world’s tax revenue. It is a tax on goods and services with a continuous chain of set-off advantage. This will be beneficial for the business as it is transparent with a complete chain of set-off, which will result in increased Tax base and better tax payments.

Opportunities

The Goods and Services Tax (GST) aims at simplifying India’s tax structure so as to widen the tax base and create a market that will benefit both corporate and the economy. The implementation of GST would ensure that India provides a tax regime that is almost similar to the rest of the world. Implementation of GST will have following benefits:

• National interest is above all the benefits which anything can provide. The introduction of GST as quoted by Apex Chamber of the Associated Chambers of Commerce and Industry of India (ASSOCHAM) could increase GDP growth rate by 1.4 to 1.7 percent with an annual revenue increase of Rupees 1.2 Lakh Crore at a current level. This will also result in a boost in Tax GDP from 1.5% to 2%.[2]
• There are two kinds of Black money i.e. the one lying outside India and other existing within India. This bill will put an end in the latter category of the black money. In generic terminology, the black money stems from a transaction which has evaded taxes. An example of such black money in the present day is as follows:-
• “When a citizen purchases a brush from a shopkeeper but declines a bill, the shopkeeper tells him that the brush will cost 15% more and he helps the shopkeeper evade taxes and generates the black economy.”[3]The Goods and Service Tax will not support such cash transactions as the shop keeper will lose credit for the taxes paid at the earlier stages of manufacture and distribution if he does not give a bill.
• Poverty reduction has always been the main aim of economic policy making in India. Any policy for poverty reduction must provide at least, food, clothing, shelter, education and health. At present, primary food articles like wheat and rice are liable to tax in many states. However under the GST, all food items covered under the public distribution system are proposed to be exempt from GST i.e. no output tax on the final poor consumer. Similarly, basic health and education services are also intended to be fully exempt.  Housing is yet another important need of the poor. The GST provide for including within its scope, the transaction in real estate. Therefore, for a registered real estate builder, all taxes on inputs (including on land) will be set off against the tax payable on the constructed property.[4] This will reduce the cost of housing. At present, there is no mechanism for complete set-off of stamp duty on land and other indirect taxes on inputs. Since food and these services are necessary to meet basic human needs, the tax exemption for these services will enable the poor to have cheaper accessibility.
• A business person will be heavily benefited from the GST regime as it will offer them a uniform and simple taxation regime. Additionally, it will also bring Indian manufacturers an edge over the Chinese manufacturers as the costs of production will be turned down. As per ASSOCHAM, overall cost and thus prices of goods manufactured in India may reduce by 10%.[5]This will bring Indian economy in competition with cheap Chinese markets regarding prices. However, as explained above, the business person will not be able to evade taxes by not providing a bill for the transaction. Hence an illegal source for their tax-free black income will begone.
• The terms of trade can also be expected to improve for agriculture vis-à-vis manufacture goods. The prices of agricultural goods would increase between 0.61 and 1.18% whereas the overall prices of all manufacturing sector would decline between 1.22 and 2.53%. Consequently, the terms of trade will move for agriculture between 1.9 to 3.8%. The increase in agricultural prices would benefit millions of farmers in India. About foods crops, poor would continue to remain safe under PDS. The prices of many other consumer goods like sugar, beverages, wool, textile products, etc. are likely to decline to reduce the burden on the pockets of common masses.
• As the GST provides for a single and low rate of tax, this will significantly reduce evasion of taxes. Therefore, there will be little incentive for producers and distributors to evade turnover. The result will be higher compliance and upsurge in revenue. This will also have an indirect but a positive effect on direct tax revenue.
• The GST envisages a mechanism whereby government at both the levels will cease to have any independent power to make changes in the design and structure once set. Since both levels of government would be similarly placed, this will have no impact on the balance of power.
• The GST will remove the complex system by having a unified code for implementation of State GST in different states. It will not only subsume many indirect taxes but also simplify the classification issues by implementing only one or two rates of tax. It will also solve the problem of tax cascading by input tax credit mechanisms. Under this system, manufacturers, wholesalers and retailers can avail credits for the GST paid on procurement of stock.
• There are a large number of works contracts which involve the supply of goods and services which are available to customers from different suppliers from different parts of India. Such situations arise when there is either gap or overlapping taxation power as service tax cannot be imposed under VAT, and the CENVAT does not have the power to impose a tax on sale within the state. GST is the comprehensive solution in this case.

Conclusion

The introduction of GST will consolidate goods and service taxes for the purpose of set-off relief and lead to increase in revenue through the broadening of the dealer base by including value addition in the distribution chain and increased compliance. In the GST, the limitation of both CENVAT and Service tax are eliminated with set-off, and a continuous chain of set-off from the original producer and service provider to retailer’s level is established which decreases the burden of allcascading effects. Also, with the implementation of GST, burden of Central Sales Tax (CST) will also be eliminated. GST at the state level will be a major improvement in its tax base for future revenue generation as the service sector is growing at much faster pace than manufacturing sector. As per 2011 data on GDP, the service sector contributes about 57% while industrial sector contributes about 28% of GDP of India. This is the true meaning of GST, and this is the reason GST is not simply consolidation VAT and Service tax, but it is an improvement of the previous system of VAT and service tax.

In the end, on the viability of centralized GST, a statement ofSushil Kumar Modi is apt to cite: -“If they can have one currency Euro and common tax regime, then India with 29 States is capable of achieving it.”

Footnotes:

[1] Kishore Kumar Shah, Goods and Services Tax (GST) In India: Challenges and Opportunities, Global Journal of Multidisciplinary Studies, 209 (2014).

[2] ASSOCHAM: Rational GST regime can improve tax revenues by Rs 1.2 lakh crore, available at http://www.commodityonline.com/news/assochamrational-gst-regime-can-improve-tax-revenues-by-rs-12-lakh-crore-41339-3-1.html (19 Dec. 2011).

[3]Gurucharan Das, Answer to black money is to pass GST, available at http://post.jagran.com/answer-to-black-money-is-to- pass-gst-1307886857 (21 Feb 2016).

[4] GST: Impact on the Poor, available at http://www.lawcrux.com/GST%20Impact%20on%20the%20poor.html (21 Feb 2016).

[5] Supra Note 2.

The post Benefits Of The Goods And Service Tax appeared first on iPleaders.

In this blog post, Pranav Rudresh, a student of Lloyd Law College, Greater Noida, writes about the legal procedure for getting married in India, salient features of the marriage registration processes and the costs behind them.

Sociologically, marriage can be defined as the approval of union between two people which must be a steady and lasting relationship. Marriage creates an environment for cultivation and fulfilment of love. In legal terms, marriage is defined as a contract by which a man and a woman reciprocally engage with each other so as to live together. Legally, it is important for both the parties to subscribe to the contract by will if they want to call it as marriage.

It is important to know what are the legal procedures involved in a valid marriage. This article gives a brief idea about the same. Firstly, let’s figure out which acts are related to marriage in India. In India, there are different marriage acts for different religions. For Hindus, there is the Hindu Marriage Act, 1955, which is also applicable for Jains, Sikhs, and the Buddhists. Muslims also have their personal law, which states that Nikah or marriage is a contract and may be permanent or temporary and permits a man to have four wives, the condition being that he must treat all of them equally. For the Parsees, there is a Parsee Marriage & Divorce Act, 1939, which governs the provisions of their marriage and law. For an Indian Christian, there is the Indian Christian Marriage Act 1889.

 Thus the Acts related to marriage in India are

• The Hindu Marriage Act, 1955.

• The personal laws of marriage and divorce.

Procedures of marriage and registration under the Hindu Marriage Act, 1955

As stated above, the Hindu Marriage Act, 1955 applies to many religions such as the Hindus, Jains, Sikhs and the Buddhists. It is also applicable to the persons if they have converted to any of these religions from any other religion. The primary condition according to this act is the age of the bride and the bridegroom. While in the case of bride it has been stated as 18 years, in the case of the bridegroom, it is 21. This means that no male or female belonging to any of the above-mentioned religions shall be legally allowed to marry before attaining the aforementioned ages. The Hindu marriage act applies to all over Indian states and the Union territories, Jammu and Kashmir being an exception to it.

According to the law and as per the recent strict guidelines of the Supreme Court, it is highly necessary to register the marriages. Let’s now take a look at few the registration processes and the cost of the same.

As per the Hindu Marriage Act, 1955, following are the requirements for registration:

• One can apply for marriage at any sub-divisional magistrate’s office; the offline application method can be initiated from there itself; the registration can be done online as well. The details are required after confirming your district/state. In the case of Hindu Marriage Act, one has to wait only 15 days for an appointment while it may extend to 30 days in case of Special Marriage Act.
• The registration form must be duly signed by both male and female with a sound state of mind. Both the parties must not fall within any degree of prohibited relationship.
• The second requirement for registration under Hindu Marriage Act, 1955 is any document that provides the date of birth of the individuals. The documents maybe the birth certificate, matriculation certificate, passports, PAN cards, etc.
• Two passport size photographs of both the parties are required, also one marriage photograph and Marriage invitation card (which although is not mandatory).
• In a case where the individuals have converted to any of the religions which the Hindu Marriage Act, 1955 covers, the conversion certificate duly verified by a priest to the religion which the individuals have converted to, is also required.
• The most important process for the registration to complete is the attestation of a Gazetted officer. All the above-mentioned documents must be verified by a Gazetted officer.
• After the submission of all the above-mentioned documents duly verified, it shall be the duty of the district court to confirm and put a final thumbs up on the marriage registration of the individuals.

Cost of registration:

The basic cost of registration differs from state to state; it is however in between Rs. 100-200.

Procedures of marriage and registration under the Special Marriage Act, 1954

The Indian Special Marriage Act is for those who don’t opt the religious way of marriage, i.e. those who prefer other methods of getting married apart from the religious methods such as court marriage.

Marriage between an Indian and a foreigner:

The Special Marriage Act also gives guidelines for marriage between the Indians and Non Indians (foreigners), the condition for which the marriage is taking place in India and not anywhere else. It is also highly necessary for one of the two partners to be at least temporarily residing in India. If one of the partners is residing outside India, it is important for the partner residing in India to fill the Marriage notice which can be obtained from any marriage registrar the individual wishes. This notice will then be sent to the foreign partner who will have to fill it accordingly and submit back to the registrar. The couple then needs to wait for a month to be married.

This process can also be legally useful in applying for Visa or some sort of property issues.

Now the question is whether like the Hindu Marriage Act, 1955, documents are required for registration under the Special Marriage Act, 1954 too? The answer to this is yes, just as the Hindu Marriage Act, documents for registration are required under the Special Marriage Act too. Following are the list of documents required for registration under the special marriage act:

• Passport – A valid passport is a must requirement in the case of registration under the special marriage act.
• Birth certificate.
• A copy of the divorce certificate in case of divorcees.
• Death certificate of the deceased spouse in case of widowed partner.
• The certificate mentioning the stay of a couple in India for the period of 30 days.

The special marriage act also covers the requirements of court marriages in India. Court marriage can be between an Indian male and a female irrespective of their caste, religion or creed. It can also be between an Indian and a foreigner, rules of which have been already explained just above. What court marriage does is it removes the rituals and ceremonies that happen the traditional/religious marriages. The interested parties can directly apply to the Marriage Registrar for registration of marriage and be granted of the marriage certificate by the registrar.

There are different situations in court marriage. To mention a few, court marriages can be done among these:

1. Both male and female are Hindus.
2. Both male and female belong to different religions.
3. Between an Indian and foreigner.

According to the Special Marriage Act, when two individuals are willing to do a court marriage, they need to ensure the following things:

• Both the individuals must not be married substantially to any other partner, i.e. both the parties are required to be unmarried.
• Both the individuals must have attained the legal age of marriage, i.e. 21 in the case of the groom (male) and 18 in the case of the bride (female).
• Both the individuals should be marrying with the sound state of mind, and none shall be under any sought of unsound state of mind.

Conditions and requirements for registration when both male and female are Hindus:

Now let’s take a look at the procedure followed in case of both individuals being Hindu:

• The individuals are required to fill the form and submit it to the marriage registrar in one of the districts in which either of the individuals has resided for not less than a month.
• The marriage may be allowed only after 30 days unless there is any sort of objection from any of the individual.
• The marriage is required to take place only at the specified marriage office.
• Both the individuals are required to be present physically at the time of marriage.
• The presence of 3 eye witnesses.

Now we look at the most important thing. The documents required for registration. The documents required are as follows:

• Passport sized photos of the individuals along with the given form and prescribed fee.
• Resident proof of the individuals.
• Birth certificate of the individuals.
• Photos and residential proof of eye witnesses.

Conditions and requirements for registration when both individuals are of different religion:

Under Special Marriage Act, the procedure, as well as the documents necessary for marriage where both individuals are of different religions is almost the same as that in the case where both the individuals are Hindus. Both individuals must file their application in the marriage registrar’s office in the same process as mentioned above. The documents requirement are also the same as mentioned above unless any special circumstances.

Charges an individual has to pay to get married under the Special Marriage Act:

There is no charge taken by the registrar. Registration form charges differ from state to state. The individuals are required to submit the form charges along with the required documents at the time of registration. Generally it is between Rs. 150-200.

A brief account of the personal marriage and divorce Acts

India, being a multi-religion nation, required a law apart from the Hindu marriage act and the special marriage act. Thus each citizen of India is entitled to have his personal laws in case of marriage and divorce.

It has been earlier stated as well that in a case of the Hindus, Sikhs, Jains, and Buddhists, they are governed by the Hindu Marriage Act, 1955, which provides an essential condition as to which the bridegroom should be the age of 21 years and bride of 18 years. Divorce under the Hindu Marriage Act 1955 can be obtained on the various grounds.

Muslims also have their personal law, which states that Nikah or marriage is a contract and may be permanent or temporary and permits a man, four wives if he treats all of them equally.

Similarly, for the Parsees, there is a Parsee Marriage & Divorce Act, 1939, which governs the provisions of their marriage and law. The Indian Christians are to follow the Indian Christian Marriage Act 1889.

Recently the Supreme Court of India, in the case of Smt. Seema v. Ashwani Kumar on 14 February 2006 issued an order to all the states that marriages must be registered and that it should take no longer than three months. The petition was filed by Seema, a divorced woman, seeking compulsory marriage registrations. The woman’s former husband had refused to pay her alimony claiming that they were never married. The petitioner’s counsel, Balraj Diwan, said the man was taking advantage of the fact that the marriage was never registered. In February 2006; the court held that compulsory registration of marriages of all religions would be a step in the right direction for the prevention of child marriage – a practice that is still widespread in many parts of the country. It said that one way to check the practice was to make it legally binding on all couples to register their marriages, mentioning their ages at the time of marriage.

Thus for any marriage to be termed legal, the registration in the respective registrar’s office must be done within three months. This would not only help government for easy gathering of married people’s census but also help the government to seek out ways to fight against marriage related crimes.

The post Legal Procedure For Registration Of Marriage in India appeared first on iPleaders.

In this blog post, Suhani Chanchlani of Amity Law School Delhi gives a brief layout of the procedure for licensing trademarks in India. The essentials of a licensing agreement and the benefits of licensing a trademark would also be highlighted.

What is a Trademark?

A trademark is a unique symbol, sign, logo, graphics, design, word, phrases or any combination of these, that distinguishes and identifies a company, brand or firm`s name and or their goods and services from the other entities. It assures the buyers of the genuineness of the products of the companies having a particular trade name and protects the proprietors from unauthorized use of trade-name by third-parties. Trademarks must be distinctive in nature. They cannot be descriptive. A trademark is different from a patent. While a patent is a limited duration intellectual property right over an invention, a trademark is an intellectual right of ownership over those set of words and graphics that distinguishes and identifies a brand name from others. Trademarks are usually granted for 7 to 20 years and unlike patents, they can be renewed indefinitely.

What is Meant by Licensing?

When a proprietor of a registered intellectual property authorizes a person to use his intellectual property in a particular manner, under a licensing agreement, it is called licensing. The proprietor of the intellectual property who grants the license is known as a licensor and the person to whom the license is issued is known as a licensee. Licensing is essential for a proprietor as it allows him to engage with those entities that distribute his products to its end users.

How to License a Trademark

Make a Licensing Agreement: A licensing agreement is essential for laying down the terms and conditions of the use of a trademark. Some of the key elements that can be made a part of the agreement subject to special needs and circumstances of the parties include:

• Provision for quality control: The provision for quality control is essential for maintaining the goodwill and reputation of the trademark. The agreement must provide for consequences of infringement of quality measures so as to ensure that the quality of the product is maintained.
• Duration of the license
• Exclusive or Non-exclusive license
• If sub-licensing is permitted then the extent of then the terms on which it is permitted and the extent of its use.
• Commercial terms such as the payment of royalties, escalations, etc.
• Circumstances under which the license would be canceled.
• Specific restrictions or terms on the use of trade-name.
• A dispute settlement mechanism.

The above list of provisions is indicative in nature. Parties need to draft the provisions of their licensing agreement by their requirements.

Register your Licensing Agreement with the Registrar of Trademarks: Although third-parties are allowed to use trademarks if they are permitted by the owners of the trademark. To consolidate the legal position of parties involved, it is advisable to get the license agreement recorded with the Registrar of Trademarks. For this following procedure must be followed:-

• The application for record of the licensing agreement must be made within six months from the date of entering the agreement.
• The licensor and the licensee must jointly apply in writing to the registrar on TM-28.
• The proprietor must also submit an affidavit specifying:
  • the particulars of the relationship between him and the licensee;
  • the control that he holds over the use made by the licensee;
  • the extent to which the licensee can make use of the trademark;
  • the terms and conditions of the use;
  • period of permitted use, or any other relevant matter.
• The parties must also submit all the other related documents that the Registrar may ask them to submit.
• Once the Registrar is satisfied with the application and the particulars entailed in it, the licensee or the proposed user of the trademark would be duly registered. The date on which the application for registration was submitted would be entered in the register and from this date only the licensee would become a registered user of a trademark for the third parties. The particulars of the relationship between the licensor and the licensee would be recorded in the Trademarks Journal within two months from the date of registration.
• The Registrar would after that send a notice of the registration of the licensee as a licensed user to other licensed users, if any, of a particular trademark.
• Upon the request of an applicant, the Registrar if he is satisfied, would not disclose the particulars of the registration of the licensing agreement, so as to protect against the disclosure of information to rivals.
• The Registrar can cancel the registration of the licensed user on grounds that include – unauthorised use of trademark, failure of the proprietor or licensor to disclose any material information or fact for the use of trademark, or the failure of the licensee to abide by the stipulations with respect to quality standards, or change of circumstances from the date of registration. Before the cancellation of the license, the Registrar serves a notice to both the parties and makes a decision after hearing both the parties.

Rights of the Licensee/Registered User

A licensee or registered user can call the attention of the proprietor to an infringement of the trademark. He can even initiate proceedings against an infringement of the trademark in his name as if he is the proprietor of the trademark after a one month notice to the proprietor. If he does so, it is advisable for him to cite the proprietor as his co-defendant. However, he shall not be liable to bear any costs if he does not initiate any proceedings.

A registered user does not have a right to assignment or any transmissible right on the use of the trademark. This means that he does not have a right to permit sub-licensing to any third-party without the prior consent of the proprietor.

Benefits of Licensing Trademarks

• It allows brand owners to take maximum economic benefits of the goodwill of their brand without having to invest in infrastructure for marketing of their products. It ensures them of a regular stream of revenue on account of regular receipt of royalties from the licensee of the trademark.
• Licensing is also beneficial for a licensee. Upon starting an enterprise under a trademark of a reputable business, a licensee can be assured of stable returns. This substantially reduces the overall risk of starting a new venture.
• Licensing is of special importance to multi-national companies. If the government has imposed restrictions on shareholding in certain sectors, then a foreign company can still retain control of its outlets by dictating terms and conditions to the licensee of the trademark through a licensing agreement. In this way, foreign companies can build their brand presence even though they might not have invested so much in a particular market.

The post A Guide to Licensing Trademarks in India appeared first on iPleaders.