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In this blog post, Sreeraj K.V, a student of Government Law College, Ernakulam, Kerala analyses the Narcotic Drugs and Psychotropic Substances Act, 1985. This post covers areas like the importance of this Act in our country, certain provisions which regulate the usage of drugs as well as its possession and also possible remedies for overcoming substance abuse.

Introduction

India has a vast history in consumption of drugs and other substances of the same nature. There is a mention about the consumption of cannabis in the Atharvaveda. So we can state that the consumption of alcohol as well as dangerous drugs has been prevalent since the Vedic age. One of the main reasons behind such widespread usage of drugs in India was that there were no special enactments for preventing people from the explicit usage of such substances except the Opium Act of 1857 and the Dangerous Drugs Act of 1930. The Narcotic Drugs and Psychotropic Substances Act, popularly known as NDPS Act, came into force on 14^th November 1985.

The main intention behind the enactment of the Act was that till date there was no separate law for handling cases in connection with the explicit usage of drugs and other deadly substances enacted in India. The Act very effectively abolished the usage of dangerous drugs like cannabis, charas, and bhang and stopped its sales in India.

The Act abolishes the usage, production, cultivation or possession of any narcotic and psychotropic drugs and substances and it covers a wide area of operation as it applies to every citizen inside and outside India as well as persons working on ships and aircraft registered in India. Narcotic substances include all types of plant – based products such as opium, codeine and heroin and synthetic narcotics such as methadone and pethidine as well as cannabis, coca and cocaine.[1] Psychotropic substances include all such substances which affect the brain resulting in alterations in perceptions, mood, and consciousness.

Under one of the provisions of the Act, the Narcotics Control Bureau was set up to monitor the usage of such drugs regularly and for taking correctional steps against such cases. The Act also provides authority to the Central Government to take adequate measures to prevent the consumption of illicit drugs and its abuse. Section 8 of the Act provides for prohibition, control and regulation of certain operations such as production or cultivation of substances like coca plant, opium puppy or any cannabis plant inside India.

Article 47 of the Constitution of India provides the State to bring about the prohibition of certain intoxicating drinks and drugs which are injurious to health except for medical purposes. From this, it is clear that even before the enforcement of the Act, the Constitution made it well clear that consumption of such deadly substances will be held unlawful.

Importance of the Act

The importance of such an Act in the present Indian scenario is that there is a drastic pace in the usage of drugs and other narcotic substances mainly by teenagers.[2] This causes serious health issues like cancer, lung disorders, etc. As the Act provides various powers and duties to both the Central and State Government officials, it helps them to implement certain action plans for preventing the usage of certain drugs depending upon the consumption level of such drugs either district wise or state wise. The Act also classifies the quantity of the prohibited substances regarding small quantity and commercial quantity. The quantity for possessing the drugs is determined depending upon the nature and character of each one.

For instance, in the case of cocaine, the small quantity is 2 grams, and commercial quantity is 100 grams. But for Ganja, it is 1 kg and 20 kg respectively. The period of punishment also changes depending upon the quantity of drugs possessed. A person has to undergo one-year rigorous imprisonment along with fine if the drug possessed is of a smaller quantity and it may extend to a period of 20 years along with a fine for possession of a lot of drugs.[3]

The Act also provides provisions for the implementation of various Special Courts exclusively dealing with cases involving possession or consumption of any substances which falls under the Act. Even the Act has its power to award capital punishment in some special circumstances. In the year 2008, two persons were sentenced to death by NDPS Special Court in Mumbai and Ahmedabad.[4]

Amendments to the Act

Till date, the Act has been amended thrice, firstly in the year 1988 than in 2001 and lastly in the year 2014. The final amendment to the Act included various new provisions and regulations in the use of narcotic substances and psychotropic drugs. It also confers many additional duties to the concerned officials regarding the investigation and production of evidence. The main reason behind such amendments is that there will be rapid changes in the society towards the consumption of drugs; the Law must be updated in such a way that it makes necessary changes in the society.

There were landmark judgments in the cases regarding possession and consumption of narcotic drugs and illicit materials. One among them was Mohanlal v. State of Rajasthan[5], wherein the Court provided various definitions to the word ‘possession’. It was held that the word ‘possession’ includes two concepts; first, it includes all such actions involving physical control or corpus, and second it includes the element of animus, i.e., mental intention which has reference to the exercise of the said control[6]. This word has importance in the field of drug abuse as while consuming or possessing such drugs; people are unaware of the legal consequences of such acts when brought into the court of Law.

Power of the Court and Police

The Act also provides certain powers to the court. A Metropolitan Magistrate or the Magistrate of the First class or any Magistrate of the second class of special courts specially empowered by the State Government in such cases, may issue a warrant against such persons whom he has reason to believe to have committed an offense coming under this Act. The Act also states that any person can be arrested or questioned by the appropriate authority without a warrant if there is a reason to doubt the accused. Section 42 of the Act states that an officer can legally search and arrest a person if he believes that the time required for a warrant will enable the person to hide or destroy such contraband. The officer should record such reasons before the search and inform the matter to his immediate superior within 72 hours. The Act also provides certain rights to the person who is being searched, i.e., right to have a Magistrate or Gazetted officer present during the time of search and the person must be informed of this right by the officer. A woman must be searched by another woman only (Section 50).

Section 42 of the Act states that an officer can legally search and arrest a person if he believes that the time required for a warrant will enable the person to hide or destroy such contraband. The officer should record such reasons before the search and inform the matter to his immediate superior within 72 hours. The Act also provides certain rights to the person who is being searched, i.e., right to have a Magistrate or Gazetted officer present during the time of search and the person must be informed of this right by the officer. A woman must be searched by another woman only (Section 50).[7]

Conclusion

The importance of this Act in the present scenario is that nowadays we hear a lot about consumption of drugs and such other illicit substances. Even the Government took a brave step by banning all such drugs like HANS, KHAINI, etc. But people are still consuming such deadly substances as they are still available in the market. Another problem arising out of this issue is that even the school going children have started consuming such illicit substances with the help of many middlemen between them and the suppliers of such drugs. Such situations have to be handled by the concerned authorities and also by the parents so that they stop using such drugs. No actions can be adopted by the authorities if there is no public participation in such issues. People living in residential communities may arrange certain awareness programs and periodical inspections at the places where they feel there is a regular consumption of such products. People can also form various action committees for abolishing the explicit usage of such items from the society as such acts do not affect a person alone, but the society as a whole.

Footnotes:

[1] Retrieved on: https://en.wikipedia.org/wiki/Narcotic

[2] Retrieved on:https://www.betterhealth.vic.gov.au/health/healthyliving/drugs-teenagers

[3] Retrieved on: http://idhdp.com/media/400258/idpc-briefing-paper_drug-policy-in-india.pdf

[4] Retrieved on: http://idhdp.com/media/400258/idpc-briefing-paper_drug-policy-in-india.pdf

[5] Mohanlal v. State of Rajasthan Criminal appeal number 1393 of 2010

[6] Retrieved on http://supremecourtofindia.nic.in/FileServer/2015-04-17_1429263295.pdf

[7] Section 42, 50 – NDPS ACT 1985. Retrieved on: http://blog.mylaw.net/tag/ndps-act/

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In this blog post, Sreeraj K.V., a student of Government Law College, Ernakulam, Kerala writes about the norms for registering a company in India. The post includes areas such as the purpose of incorporation of a company, procedures to be followed, the effect of incorporation as well as the principle which has been laid down regarding the functions of a company.

Introduction

India is a mixed economy where there are both public as well as private limited companies which invest their time and money for the development of our country. The Companies Act, 1956 plays an inevitable role in providing certain rules and guidelines regarding the registration of both public as well as private companies in our country. In India, the most commonly used corporate form is the limited company, unlimited companies are relatively uncommon. A company is formed by registering the Memorandum of Association as well as articles of association with the Registrar of the Companies of the State in which the main office is to be located. Not only the native companies but also companies abroad who are engaged in business activities in India are permitted to open branches in India strictly for the purpose of carrying out the following functions:

To represent the parent company in various activities in India such as buying/selling of agents in India.
To conduct various research works by the parent company so that the results will be made available to Indian companies.
To undertake export/import trading activities.
To promote various technical and financial collaborations with Indian companies.[1]

Incorporation of a Company

All companies working in India are incorporated by complying with certain procedures mentioned under Section 25 of the Companies Act. The first step for the formation of the company is obtaining the approval of the name of the company by the Registrar of the Companies (ROC) of the concerned State where the company is starting its registered office. The approval is provided upon certain conditions such as there must not be an existing company in the same name. The name must also end with the word ‘private limited’ for private companies as well as ‘limited’ for public companies.[2]

Stepwise Procedures for Formation or Incorporation of a New Company

Selection of the type of the company
Selection of name of the proposed company
Application for the Directors Identification Number and Digital Signature
Drafting of Memorandum and Articles of Association
Stamping, digitally signing and e-filing various documents with the Registrar.
Payment of fees
Obtaining certificate of incorporation
Preparation and filing of prospectus/statement in lieu of prospectus and e-Form 19/20 for obtaining the certificate of commencement of business.
Obtaining a certificate for commencement of business.[3]

Memorandum and Articles of Association

Memorandum of Association, as well as Articles of Association, are the most important documents during the time of incorporation of a company. The Memorandum of Association can be stated as the Constitution of the company. It contains the scope of the company in conducting its business as well as the relationship of the company with the outside world. On the other hand, the Articles of Association contains certain rules and regulations which guide the internal affairs of the company as well as its objectives and purpose of incorporation. The ROC will provide the certificate of incorporation after the required documents are presented along with the prescribed registration fee, which is scaled according to the shares of the company prescribed in its Memorandum.

The public company has an option of inviting the public for subscription to its share capital. The company has to issue a prospectus which provides information about the company to its investors. There are certain other miscellaneous documents to be filed duly along with the Memorandum of Association as well as Articles of Association for the incorporation of a company, like:

Declaration of compliance, duly stamped
Notice of the situation of the Registered office of the company
Particulars regarding Directors, managers or secretary
Authority executed on a non-judicial stamp paper, in favor of any one of the subscribers to the Memorandum authorizing him to make necessary changes like a correction in the documents, if necessary.
The ROC’s letter indicating the availability of the name of the company.[4]

As mentioned before, all the provisions regarding the registration and incorporation of a company are stated under section 25 of the Companies Act. In India, the number of companies registering so the Central Government has implemented online service regarding registration of companies. It makes the registration much simpler, easier as well as time effective when compared to the manual mode of registration.

The Act was last amended in 2013 and contained certain provisions such as mandatory attainment of Digital Signature, Directors Identification Number, Validity of the name approved by the ROC, preparation of both the Memorandum as well as the Articles of Association, application of incorporation in case of a private company, proper proof of identity of the Directors and certain other important information regarding the company.

Advantages of Incorporation of a Company

Corporate existence: After the incorporation, the company enjoys full rights as a separate legal entity, and becomes capable of functioning independently, as a corporate individual, apart from its members.
Liability: Liability of the members is limited depending upon the amount of shares subscribed by them. In the case of a company limited by guarantee, the liability of a member is limited to the amount guaranteed by him.
Transferability of shares: Shares can be transferred easily, without the consent of any other member.
Perpetual existence and succession: A company incorporated never dies. The death or insolvency of the members does not affect the existence of the company.
Capacity to sue and be sued: A company being a body corporate, can sue and be sued in its name.

Once the company is registered, it becomes a body corporate, the only method to end the company is in the way of winding up. The certificate of incorporation cannot be cancelled by the Registrar of Companies, even though it is irregular.

Doctrine of Ultra Vires

‘Ultra’ means beyond and ‘vires’ means powers. So the term ‘ultra vires’ means beyond the powers of a company. The company can perform only certain objectives which are stated in the object clause. It can also perform certain acts, which are incidental or consequential to the specific objects of the company. The object of this doctrine is to protect the interest of the investors and creditors by ensuring that the company does not utilize money on those acts, which is not contemplated by any creditors or shareholders of the company. This principle is clearly portrayed in the case of Lakshmana Sami Mudaliyar v. LIC of India.[5]

Conclusion

Registration and incorporation of a company plays an inevitable role in the Business and Economic sector in recent times. It can be stated that a company can enjoy no freedom of operations unless and until it is incorporated under the Companies Act by complying with all its formalities. The reason behind this can be stated as even the Government can look into matters of companies only when it is registered and has documented proof. The government can also provide certain benefits and concessions to those companies which are incorporated so that it can develop its own field of operations by implementing various developmental plans of a vivid nature.

References:

[1] Retrieved on: http://www.legalserviceindia.com/company%20law/company_formation_procedure.htm

[2] Retrieved on: http://www.legalserviceindia.com/company%20law/company_formation_procedure.htm

[3] Retrieved on: http://www.newagepublishers.com/samplechapter/001586.pdf

[4] Retrieved on: http://www.legalserviceindia.com/company%20law/company_formation_procedure.htm

[5] Lakshmana Sami Mudaliyar v. LIC of India 1963 AIR Sc 1185

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In this blog post, Sreeraj K.V, a student of Government Law College, Ernakulam, Kerala writes about pornography and its legal recourse in India. This post covers areas like the definition to the term ‘pornography’, its impact on the society, various remedies for regulation as well as steps taken by the Government in regulating cyber pornography in India.

Introduction

Man is the most rational living being in this world. His attitude changes from time to time. His likes and dislikes change accordingly. Same in the case of his sexual fantasies also. Reports state that around 60% of India’s youth are addicted to various adult videos as well as sites which provide such explicit contents. The Government, with the help of various statutes in this field, is trying to regulate the usage of such X-rated video sites by the people. Only a regulation from the Government will help in reducing this issue as such activities are done only inside four walls by the people. So it is not possible to interfere much in these matters as then a question arises that whether viewing such pornographic contents privately by an individual will affect the society and its people? For that, the answer will be a ‘no’.

The term pornography itself means any portrayal of sexual subject matters for the purpose of sexual satisfaction. It may be present in various Medias such as books, magazines, photography, postcards, sound recording, film, video or video games.[1] In India, we have the Information Technology Act, 2000 and also the Information Technology (Intermediary Guidelines) Rules, 2011 for looking into various aspects regarding the matter.

In the light of various issues regarding the excessive usage and exploitation of such pornographic videos, the Supreme Court observed that appropriate steps must be taken against such websites containing pornography especially child pornography. For this purpose, Section 79 of the IT Act may be adopted. It contains various provisions regarding certain conditions wherein various Internet Service Providers (ISP), and intermediaries are exempted from the culpability of certain uploads done by third parties. It makes an obligation on such intermediaries to exercise “due diligence” and to act according to the orders of the Court and the Government to gain immunity.[2] Section 79(3)(b) states that no exemption will be provided to the intermediaries if they fail “expeditiously” to remove such content within a reasonable period upon the information or notification by the Government or its agencies that such content is being used for unlawful purposes. Under the Information Technology Rules, 2011, it has been stated that the intermediaries must inform users not to host, display, share, upload or transmit any such information that contains pornographic or obscene content which may cause harm mainly to minors.

Nowadays we hear a lot about such incidents where a person intentionally uploads various private photos and images of their known one’s or even of strangers simply for the sake of mental satisfaction as well as for various other unlawful needs. Such acts may be clearly classified as Cyber pornography. Section 67 of the IT Act purely deals with cyber pornography and provides strict penal treatments against such persons who are involved in such acts. The Act of cyber pornography has been banned in many parts of the world but in India, under the Act, it has not been banned but has not been legalized too. Section 67 of the Act states that any publication, transmission of any information which contains pornographic or obscene contents or causing to be published or transmitted, will be punishable with up to 3 years’ imprisonment and a fine of Rs. Five Lakh.

From the above, it may be stated that:

Viewing cyber pornography is not illegal in India, and its mere download does not amount to any offense.
Publication of such pornographic content is illegal.
Possession of such pornographic content is not illegal.
Transmission of such pornographic content through any electronic medium is unlawful.[3]

There were many plans by the existing Government in banning a large number of porn sites in India. But IT experts calls it a failure due to the reason that nobody including the Government can look into the private matters of an individual and if done, it may result in the violation of his fundamental rights. While referring to the Indian Penal Code, Section 292 deals with any act for the purpose of selling, hiring or publishing any books, pamphlets, paper, writing, drawing or painting of any object, shall deemed to be obscene, lascivious or prurient in nature or may likely to harm any other person, is liable for a punishment for a period of two years along with a fine or both. Section 354A of the Code also provides certain liabilities to a person who exhibits pornographic content to any women against her will. Such provisions state that explicit and exploitative usage of such content may result in certain penal liabilities.

Effects of Pornography

Many surveys reveal that a person who is addicted to pornography has a change in attitude towards himself and his family.

Pornography which is usually viewed in private often leads to deception in marriage and which may, later on, affect their family life.
It may lead to adultery, prostitution and many unreal expectations that can result in dangerous promiscuous behaviour.
Pornography may lead to addiction, escalation, desensitization and acting out sexually by one person.[4]

In one sense or the other, pornography or publishing such explicit, obscene contents of a person without his/her consent can be considered as a pure case of human rights violation. The reason behind such a statement is that the consent of a person plays a major role in such acts. Experts also state that unless such acts involve the non-consent of the other person, it does not violate human rights.[5] Another important issue regarding the topic is child pornography. It was revealed that India is one of the best markets for publication of porn sites and such content mainly relating to child sexual abuses. It was stated in many surveys that children around 12 to 15 years are the primary victims of such inhumane activities. Many internet service providers are still being criticized for not closing down such child porn sites in India. [6]

Conclusion

As mentioned before, our Government planned to take action against around 900 sites in India, which contains porn and such related obscene videos and pictures. But it could not be implemented properly till date because there are no such provisions in any law relating to information technology which states that possession and viewing of such videos are illegal. Thus, the Government can make only a regulation on this matter rather than banning or abolishing it completely. We have to be well aware of that fact that viewing such obscene content creates various false expectations in our life as they are not real. Surveys reveal that people between the ages of 16 to 30 are mostly addicted to such porn sites. So primary steps have to be taken from their home itself. There must be a friendly relationship among the family members so that no one will be addicted to such explicit video sites. Also, various awareness programmes may be conducted for young people so that they can utilise their valuable time effectively rather than investing them in such unproductive materials around them.

Footnotes:

[1] Retrieved on: https://en.wikipedia.org/wiki/Pornography

[2] Retrieved on: http://indianexpress.com/article/explained/background-and-legal-aspects-of-porn-block-on-internet/

[3] Retrieved on: http://blog.ipleaders.in/cyber-pornography-law-in-india-the-grey-law-decoded/

[4] Retrieved on: http://www.cyberlawsindia.net/index1.html

[5] Retrieved on: https://www.quora.com/Why-is-pornography-not-regarded-as-a-violation-of-human-rights

[6] Retrieved on: http://www.ethicalconsumer.org/commentanalysis/humanrights/pornography.aspx

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In this blog post, Sreeraj K.V, a student of Government Law College, Ernakulam, Kerala writes about internal emergency and its impact on India. This article covers areas like various types of emergency contained in the Constitution of India, reason for the proclamation of emergency in India as well as its impact on our country.

Emergency in India or at the global scale is not a new concept. In India, the proclamation of emergency during the time of the Indira Gandhi Government was a shock to other countries also. But no one could resist such situations as there are clear provisions regarding implementing an emergency when there arises such a situation in the country.

Types of Emergency

To protect the nation and its people from any unusual situations which may be likely to take place, Part XVIII of the Indian Constitution provides certain provisions of implementing an emergency which is framed under Article 352 to 360 of the Constitution which are:

National emergency (Art.352) – Emergency due to war, external aggression, and internal disturbances
State emergency (Art.356) – Emergency in the case of failure of Constitutional machinery in the country.
Financial emergency (Art.360) – Emergency in the case of any financial crises.

In India, there were certain internal disturbances due to the issues regarding a case filed by Mr. Raj Narain, who was defeated by Indira Gandhi in the Parliamentary elections claiming that the defendant had done an election fraud and the PM was even cross-examined in the Court and was found guilty of her acts. Indira Gandhi challenged this decision in the Supreme Court, but the Court upheld the decision of High Court and ordered her to stop all her privileges as an MP and also debarred her from voting but conferred the right to continue as the PM.

Next day, Jayaprakash Narayan, a popular leader, conducted a rally in Delhi, and it resulted in various signs of inciting rebellion in the country. On the light of certain events, Indira Gandhi, on a complaint to the President, requested to issue a proclamation for state emergency in India. It resulted in the deprivation of all the civil rights of the citizen to bring back national peace and security.

Impact of Emergency in India

Deprivation of fundamental rights to the citizen
All possible bans on media
Ruling out of certain other political parties
Political revolutions inside the country

Now looking at the matters affecting human rights of the people during the time of emergency, it has to be stated that it was one of the most arbitrary powers exercised by the Constitution as well as by the Government towards its people. Constitution, a most sacred document of fundamental rights subverted into the most ruthless manner possible.[1] Many places in India faced situations where military forces were assembled to stop people from forming groups and talking about matters that were not personal. One of the major functions assigned to the police and the military was to stop people from forming groups as well as arrest persons who looked or behaved suspiciously. No media was allowed to publish the news without censorship. All such instances resulted in the violation of certain fundamental rights as well as a pure case of human rights violation.

Constitutional Provisions

Article 352, 356 and 360 deals with provisions regarding the emergency. As mentioned earlier, there are three types of emergency. The effect of proclamation of emergency is clearly stated in Article 353 of the Constitution which reads as:

The executive power of the Union shall extend to the giving of directions to any State as to the manner in which the executive power thereof to be exercised.
The power of Parliament includes the power to make laws conferring powers and imposing duties, or conferring powers and duties upon the union and officers, notwithstanding that it is one which is not entitled to the Union list.

Emergency not only gave immense power to Indira Gandhi but also to her son Sanjay Gandhi. He performed certain atrocities of sterilization covered under a reason of ‘family planning’. It must also be stated that the 38^th to 42^nd amendments of the Constitution was done during the time of emergency. Provisions under 38^th amendment dealt with barring the review of the proclamation of emergency, judicial review of overlapping proclamation or promulgation by the Governors and of laws that contravened the Fundamental Rights. 39^th amendment dealt with the protection of Prime Minister from Supreme Court actions resulting from election cases. 41^st amendment stated that no actions must be taken against the President, Prime Minister or Governors during their term of office and the 42^nd amendment gave unrestrained powers to the Government to make changes in the Constitution as well as to invalidate the Kesavanatha Bharathi judgment by the Supreme Court that Government has no power to change the Constitution.[2]

There were a large number of protests and revolts in various parts of the country for winding up the emergency as well as for the formation of a new Government. But it took 21 months from 1975-77 to get a solution to the crises that Indian people faced. K.R.Sundar Rajan, then an assistant editor at the Times of India stated that “Indian democracy lay in serious jeopardy in 1975 when Indira Gandhi’s Emergency destroyed the country’s democratic framework. Fortunately, that long day’s journey into the night ended in March 1977”. Mr. Sundar Rajan was imprisoned during the time of emergency. He also stated that the emergency was reflected as the darkest hour in the fifty years of freedom.[3]

Conclusion

21 months of emergency proved to us that the Government has powers to make certain orders. Emergency affected Indira Gandhi, as well as the Government under her Governance badly but certain political strategies as well as plans and actions, made her the Prime Minister again. The main slogan of the Government was ‘Hatao Garibi’ which means eliminate poverty throughout their period of Governance. Many critics stated that the Iron Lady of India made one of the biggest mistakes in the history of India.

Footnotes:

[1] Retrieved on: http://theviewspaper.net/emergency-the-darkest-period-in-indian-democracy/

[2] Retrieved on: http://indianexpress.com/article/explained/40-years-on-those-21-months-of-emergency/

[3] Retrieved on: http://www.rediff.com/freedom/30rajan.htm

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In this blog post, Isha Singh, a student pursuing her LL.B (5h year) Hons. fromRajiv Gandhi National University of Law, Patiala, Punjab and a Diploma in Entrepreneurship Administration and Business Laws from NUJS, Kolkata, provides and an overview of the Maharashtra Ownership of Flats Act, 1963.

Introduction

The Maharashtra Ownership Flats (Regulation of the Promotion, Construction, Sale, Management and Transfer) Act, 1963 (Hereinafter referred to as “the MOFA”) was an attempt to mitigate all the unscrupulous practices pertaining to promotion, construction, sale, management and transfer of flats sold on an ownership basis within the State of Maharashtra.

The Act defines a “flat” as:

“A separate and self-contained premises, which is used or is intended to be used as a Residence, Office, Showroom, Shop, Godown, carrying on of any industry or business including a Garage and the premises forms part of a building.

Explanation: Notwithstanding that provisions are made for sanitary, washing, bathing or other conveniences as common to two ‘or more sets of premises, the premises shall be deemed to be separate and self-contained.”[1]

Moreover, a “promoter” is one who is defined as follows:

“…a person who constructs or causes to be constructed a block or building of flats [or apartments] for the purpose of selling some or all of them to other persons, or to a company, co-operative society, or other association of persons, and includes his assignees; and where the person who builds and the person who sells are different persons, the term includes both.”[2]

The Sections 10 and 11 under MOFA jointly regulate the conveyance of title. Section10 mandates that as and when the minimum requisite individuals for a co-operative society or company have purchased flats, the promoter is required to submit an application, within the prescribed period, for the registration of the conglomerate of persons who take the flat either as a cooperative society or as a company.

This is followed by Section 11, wherein, the promoter shall take all the necessary steps to complete his title and convey, to the conglomerate of persons, registered either as a company or a co-operative housing society, who purchase flats, his right, title, and interest in the building and execute all the relevant documents thereof in accordance with the agreement. This period for the execution of the conveyance could either be agreed upon or if not, then the execution must be done in the prescribed period and documents of title, in the promoter’s possession or power is delivered.

Therefore, once the title is conveyed to the conglomerate of persons registered as a society, here is when the question of transfer of shares crops up, which is discussed in detail in the following paragraphs.

Law Relating to Transfer of Shares of a Society in Maharashtra

Section 29 of the Maharashtra Co-operative Societies Act, 1960 and Rule 24 of the Maharashtra Co-operative Societies Rules, 1961 and Bye-laws 37 and 38 are the major provisions concerned with the transfer of flats.

Procedure for Transfer: Compliance with Essential Requirements

Under Section 29 (2) (a) of the Maharashtra Co-operative Societies Act, 1960, a member has to hold the shares for at least a period of one year before he transfers his shares together with his interest in the flat. According to the Rule 24 of Maharashtra Co-operative Societies Rules, 1961 every transfer of shares, as a mandate, has to be as per the bye-laws adopted by the Society, order to be effective. Further important requirements for transfer are as under:

Clear fifteen days’ notice in writing is required to be given to the Society indicating therein the name of the proposed transferee, his consent and the value proposed to be paid by the transferee.[3] On receipt of this notice, the secretary of the society will place it before the meeting of the committee held next, pointing out whether the member is prima facie eligible to transfer his shares and interest in the capital or property of the society or not. If the committee is satisfied that the member is prima facie eligible to transfer his shares and interest in the capital or property of the society or ineligible therefor, it will direct the secretary to inform the member within three days.[4]
All dues and liabilities of the transferor due to the Society including any charge in favor of the Society on the share so transferred, are to be discharged[5];
Application in the prescribed form, for transfer of shares and interest in the capital/property of the society, along with the share certificate are to be submitted[6];
Resignation by the original member has to be tendered[7]
The application has to be submitted by the proposed transferee for membership of the Society[8]
Payment of Transfer fee as may be prescribed under the bye-laws of the Society, i.e., Rs.500[9]
Transfer premium at the rate fixed by the general body, but within the limit prescribed by circulars issued by the Government from time to time. As per the circular dated 20/12/1989 the transfer premium should not exceed 25,000/-[10]
A copy of duly registered agreement with appropriate stamp duty must be paid to the Society[11]
Declaration by the transferee to use the flat for residence purpose only, or state the reasons otherwise when use is apart from residential purpose[12]
An Undertaking by the transferor to discharge all liabilities to the Society[13]
If the transferor has availed of any loan for purchasing the flat from any bank, housing financing agency, no objection from that bank or housing financing agency is required to be submitted to the Society.[14]

Disposal of Transfer Applications

The Bye-Law no. 38 deals with the disposal of transfer applications. The Secretary should scrutinize the documents received and verify as to the conformity with the Act, Rules, and Bye-laws of the Society and place the same before the Managing Committee of the Society for its approval. If such application is rejected, the Secretary has to communicate the decision to the applicant within 15 days from the date of the decision or within 3 months from the date of receipt of the application, whichever is earlier. If the applicant does not receive intimation from the Society within 3 months from the date of submission of application, it is deemed that the application for membership is accepted.[15]

Restrictions on Transfer of Shares

Under Section 29 (2) (a) of the Maharashtra Co-operative Societies Act, 1960, no share can be transferred unless the share has been held for one year before the transfer and it is made to no one else but the member of the society, or one whose application for membership has been accepted or one who is deemed to be a member of the society.

Transfer v. Transmission of Shares

Transfer of shares in a CHS together with the interest of the member in the flat allotted to him as a member of the society can be by way of sale or by gift whereas transmission takes place on demise of the member either according to the will of the deceased member or according to personal law of succession applicable to the deceased member, in absence of his valid will.

In case of transfer by sale, proper sale deed is required to be executed by and between the seller and the buyer, proper stamp duty as per the market value of such flat as specified in the Stamp Duty Ready Reckoner is required to be paid and the sale deed also needs to be registered as required under The Registration Act,1908. Further, as per the bye-law of the Society, transfer premium up to a maximum of ` 25,000/- is payable to the Society. Whereas in the case of transmission no such documentation is required and as such, no stamp duty is payable as well no transfer premium is payable to the Society.[16]

Conclusion

Every Society must have their bye-laws laid down so that compliance becomes easier in cases of transfers between members.

Footnotes:

[1] Section 2 (a), MOFA.

[2] Section 2 (d), MOFA.

[3] Rule 24(1)(b) of Maharashtra Co-operative Societies Rules, 1961.

[4] Bye-Law No. 37 (a) & (b) of Model Bye-Laws of Cooperative Housing Societies, 2014.

[5] Rules 24(1)(c) & 24(2) of Maharashtra Co-operative Societies Rules, 1961.

[6] Bye-Law No. 37 (e)(i) of Model Bye-Laws of Cooperative Housing Societies, 2014.

[7] Bye-Law No. 37 (e)(iv) of Model Bye-Laws of Cooperative Housing Societies, 2014.

[8] Bye-Law No. 37 (e)(ii) of Model Bye-Laws of Cooperative Housing Societies, 2014.

[9] Bye-Law No. 37 (e)(vii) of Model Bye-Laws of Cooperative Housing Societies, 2014.

[10] Bye-Law No. 37 (e)(ix) of Model Bye-Laws of Cooperative Housing Societies, 2014.

[11] Bye-Law No. 37 (e)(iv) of Model Bye-Laws of Cooperative Housing Societies, 2014.

[12] Bye-Law No. 37 (e)(v) of Model Bye-Laws of Cooperative Housing Societies, 2014.

[13] Bye-Law No. 37 (e)(vi) of Model Bye-Laws of Cooperative Housing Societies, 2014.

[14] Bye-Law No. 37 (e)(x) of Model Bye-Laws of Cooperative Housing Societies, 2014.

[15] Retrieved from < http://ctconline.org/pdf/chamber-journal/CJ_April_2013/CJ_April_2013_09.pdf> on 31.05.2016 at 23:19 hours IST.

[16] Retrieved from < http://ctconline.org/pdf/chamber-journal/CJ_April_2013/CJ_April_2013_09.pdf> on 31.05.2016 at 23:19 hours IST.

The post TRANSFER OF SHARES IN A SOCIETY- A CASE STUDY OF MAHARASHTRA OWNERSHIP OF FLATS ACT, 1963 appeared first on iPleaders.

In this blog post, Sreeraj K.V, a student of Government Law College, Ernakulam, Kerala writes about the effect of vicarious liability under Indian laws of contract. This post covers areas like the definition, elements of vicarious liability, major cases dealing the matter as well as certain exceptions to this term.

Introduction

Vicarious liability can be defined as such liabilities wherein a person will be held liable for an act done by someone else. In the field of tort, it is considered to be an exception to the general rule that a person will be liable for his own acts only. So that the liability of a person for the act of someone else may arise, it is necessary that there should be certain kind of relationship among both the persons and the wrongful act. This must be connected with their relationship.[1]

Common examples of such liabilities are:

Liability of the Principal for the tort of his agent
Liability of partners for each other’s tort
Liability of master for the tort of his servant

In a case of vicarious liability, both the person at whose behest the act is done as well as the person who does the act is liable. Thus, employers are vicariously liable for the torts of their employees that are committed during their employment.[2]

Reasons for Vicarious Liability

There are several reasons for a person to commit an act which results in vicarious liability:

The wealth of a defendant or his access to financial resources and in some cases had an unconscious influence on the development of legal principles.
Vicarious liability encourages prevention of an accident by giving an employer a financial interest in encouraging his employees to take care of the safety of others.
As employers gain from any profit from his employees, he also bears any losses caused by them.[3]

Under the Indian Contract Act, there is no special provision regarding the term ‘vicarious liability’. But the Act defines certain terms such as ‘principal’, ‘agent’ as well as various provisions relating to the principal and agent as well as their duties and liabilities. Section 182 to 238 of the Act states such provisions. It also provides provision regarding nature of principal – agent relationship as well as extends the liabilities of both principal and agent.[4] The Act, under section 183, states that no person can be an agent unless he attains the age of majority and has a sound mind. In the words of Lord Chelmsford, “it has been established by law that a master is liable to third persons for any injury or damage done through the negligence or unskillfulness of a servant acting in his master’s employ. The reason is that every act done by the servant in the course of his duty is regarded as done by his master’s order, and, consequently it is the same as if it were master’s act”[5].

For example, A has a car Driver B. If he negligently knocks down X, then A will be liable. But if he hires a taxi towards railway station and the taxi driver negligently hits X, then A will not be liable towards X because the taxi driver is not the servant of A but an independent contractor. In every case involving vicarious liability, the doctrine of ‘Respondeat Superior’ (let the master answer) will be applicable. In every instance which leads to the situation of vicarious liability, the employer-employee or the principal-agent relationship will be the key factor. In such instances, the principle will be liable for the act done by his agent. There are three elements generally:

Was the act committed within the time and space limit of the agency?
Was the offense confidential, or of the same general nature as, the responsibilities the agent is authorized to perform?
Was the agent motivated to any degree to benefit the principal by committing the act?[6]

In the Contract Act, it is up to the principal to prove whether the act committed by his agent does not come under the frame of their principal agent relationship and if he fails to prove so, he will be held liable for the act done by his agent under the head of vicarious liability. In India, there are various cases involving offenses done by the agent and the principal being liable for the same.

In the case of State of Rajasthan v. Smt Shekhu and ors[7], the deceased and his brother were going on a bicycle and a jeep which was owned by Distt. Collector came from the opposite side and hit them which resulted in the death of the deceased. In this case, the Court clearly stated that definition of ‘vicarious liability’ means that one person takes or supplies the place of another so far as the liability is concerned. It means the liability of a person for the tort of another in which he had no part. The court also stated that an owner of a car would be liable for an accident caused by his servant during the time of his employment. From this statement, it was made clear that in this case, the respondent was held liable. In many other cases such as K.K.Ahuja v. V.K.Vora and ors[8], the Supreme Court held that vicarious liability would apply to companies also as the case dealt with the liability of a deputy manager of a bank in the issue of a dishonored cheque.

Exceptions to the Liability

There are certain exceptions granted to the principal from the acts done by his servant which comes under vicarious liability which include:

Act was done by the agent other than the one stated by the principal.
Act was done by the agent which does not come under the agency norms between them.
An act was done by the person before or after termination of the contract of agency.

Even though there are various other exceptions, these are the general exceptions levied under the provisions regarding vicarious liability in India.

Conclusion

The rule of vicarious liability can be clearly traced out from the famous doctrine of “qui facit per se per alium facit per se” which means he who does an act through another does the act himself. So a master will be held liable for the acts done by his employee even though he is unaware of the act. But someone who employs a contractor to work on behalf of that person is not responsible for any tort committed by the contractor in the course of execution of work except in certain exceptional cases. Formation of a principal-agent relationship is purely based on the trust which the principal has with his agent. Hence, the act leading to vicarious liability surely amounts to the infringement of that trust on the part of the agent. So agents are advised not to perform any such activities which result in an act which makes his principal liable. The principal, on the other hand, also needs to be very curious about the acts of his agent so that if he finds that the agent is not fit to continue his works, the principal can take several measures as to the termination of the agent from working under the principal. In companies, such immediate termination is not possible as there are certainly other issues regarding the appointment and termination of employees. In such instances, companies can adopt strict guidelines as to the code of conduct of the employees as well as their works so that they will be restricted from performing any acts which make the higher official liable.

Footnotes:

[1] Retrieved on: http://www.legalservicesindia.com/article/article/vicarious-liability-in-india-1634-1.html

[2] Retrieved on: http://www.legalservicesindia.com/article/article/vicarious-liability-in-india-1634-1.html

[3] Retrieved on: http://www.legalservicesindia.com/article/article/vicarious-liability-in-india-1634-1.html

[4] Retrieved on: http://comtax.up.nic.in/Miscellaneous%20Act/the-indian-contract-act-1872.pdf

[5] Retrieved on http://www.legalservicesindia.com/article/article/vicarious-liability-in-india-1634-1.html

[6] Retrieved on: https://en.wikipedia.org/wiki/Respondeat_superior

[7] the State of Rajasthan v. Smt Shekhu and ors I (2005) ACC 156

Retrieved on: https://indiankanoon.org/doc/58441/

[8]K.K.Ahuja v. V.K.Vora and ors Criminal appeal no. 1130-31 of 2003

Retrieved on: http://www.lawyersclubindia.com/forum/SC-judgment-on-Vicarious-Liability-in-138-cases-10753.asp#.Vyhh7fl97IU

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In this blog post, Sreeraj K. V, a student of Government Law College, Ernakulam, Kerala analyses and interprets the amendments to the Arbitration and Conciliation (Amendment) Act, 2015. This post throws light on the major areas of the new amendment to the Arbitration and Conciliation Act, its objectives, major cases which look into the said matter and provides a critical analysis of the newly amended Act of 2015.

Introduction

Arbitration has been a preferred way of settlement of disputes globally as well as in India. Provisions relating to the resolution of disputes in the way of arbitration is contained in the Arbitration and Conciliation Act, 1996. It was time that urgent steps be taken to ensure quick enforcement of contracts, easy recovery of money claims, reduce the pendency of cases in courts and fasten the process of dispute resolution in the way of arbitration.[1]

The Arbitration and Conciliation (Amendment) Act, 2015, was passed by both the houses and received the assent of the President on the 31^st of December 2015. The Act was notified in the Gazette of India and came into force on January 1^st, 2016. The Lok Sabha, while clarifying the Bill clearly stated that it would not affect the pending cases unless the parties agreed otherwise. The new amendment towards the Act brings about certain clarifications in the form of Section 26 which was introduced to settle the issue that unless the parties agree otherwise, the new Amendment Act will not apply to the arbitrations that were initiated before the commencement of the Act. Section 12 of the Amendment Act states that it shall be deemed to be applicable from 23^rd October 2015.

Apart from this, the Ordinance in its transformation to an Act does not see any other changes. The Ordinance has now been repealed. However Section 27 of the Act, saves all actions undertaken by the parties under the Ordinance. Hence, orders passed by the courts, arbitrations or any other actions commenced by the parties under the Ordinance will be valid in law, despite its repeal.[2]

Objectives of the New Amendment to the Act

There are mainly two objectives behind the amendment of the Arbitration and Conciliation Act which are as follows:

To make arbitration more investor friendly, cost-effective and suitable for expeditious disposal of cases.
To facilitate in making India a major centre for International Commercial Arbitration.[3]

Key Amendments

The Amendment Act has brought some of the major changes to the principal Act. A brief summary of the amendment are as follows:

Amendment to section 2(e): Definition of the term ‘court’ is amended to provide certain provisions of the Part I of the Act such as interim relief (Section 9), court assistance in taking evidence (Section 27) and appeal to interim relief under Section 9 (Section 37) shall also apply to International Commercial Arbitration, even if the place of arbitration is outside India, subject to an agreement to the contrary between the parties to the dispute. In such cases, the High Court will act as the ‘court’ in relief to such disputes.
Amendment to Section 7: An arbitration agreement in the way of electronic means will also be considered as an arbitration agreement in writing.
Amendment to Section 8: If the judiciary finds that prima facie no valid arbitration agreement exists; the judicial authority may refer the parties to the arbitration on the action brought by the party to arbitration agreement on the person claiming through or under him. If the party is not having original or certified copy of arbitration agreement or is retained by the other party, the party can make an application to the court to call upon the other party to produce the said documents before the court.
Amendment to Section 9: The arbitral proceedings shall commence within a period of ninety days from the date of order. Once the arbitration tribunal is constituted, the court shall not entertain an application for interim measures unless it finds circumstances that may render remedy provided under Section 17 ineffective.
Amendment to Section 11: Appointment of an Arbitrator shall be made by the Supreme Court of India or the High Court instead of a Chief Justice of India or Chief Justice of High Court. The High Court is empowered to frame rules for the determination of fees according to the Fourth Schedule of the Act.
Amendment to Section 12: Ensuring neutrality of arbitrators, when a person is approached for an appointment as an arbitrator, he must disclose any information to prove his neutrality. A person having any such relationships as mentioned in the Seventh Schedule of the Act is not eligible for appointment as an arbitrator.
Amendment to Section 14: Termination of an arbitrator as well as the substitution of another arbitrator.
Amendment to Section 17: The Arbitral Tribunal has all the powers to grant interim measures which the court is empowered to have under Section 9 of the Act. Any order issued by the Tribunal will be deemed to be an order of the court for all purposes and shall be enforceable under the Code of Civil Procedures, 1908.
Amendment to Section 23: The respondent, in support of his case, may submit a counterclaim or a set-off, within the scope of the arbitration agreement.
Amendment to Section 24: The Tribunal shall hold an oral hearing for the presentation of evidence on day to day basis and shall not grant any adjournments without sufficient cause.
Amendment to Section 25: The right of the respondent to file the statement of defense have been forfeited, if he fails to communicate such a statement within the timeline agreed by the parties or the Tribunal without reasonable cause.
Amendment to Section 28: The Arbitral Tribunal while deciding and making an award, shall take into account the terms of the contract and trade usages applicable to the transaction.
Insertion of new provision – section 29A – The Tribunal shall ensure speedy completion of arbitration proceedings within a period of twelve months from the date of reference. However, the parties may extend the time not exceeding six months. If the award is made within six months, the Tribunal is entitled to receive additional fees as parties agree. The mandate of the arbitrator may be terminated if the award is not being made within the term of six months unless the court extends the time.
Section 29B: The new provision provides for fast-track procedures for conducting arbitral proceedings if the parties agree to such proceedings. In such cases, the award must be made within six months from the date of reference.
Amendment to Section 31: A sum directed to be paid by an arbitral award shall, unless the award otherwise directs, carry interest at the rate of two percent higher than the current rate, and shall be payable from the date of award to the date of payment.
Insertion of new subsection 2(A) in section 34: It provides an additional ground of patent illegality to challenge an arbitral award other than International
Commercial Arbitrations.
Insertion of new subsection (5) in Section 34: An application for setting aside of an award is to be filed after issuing a prior notice to the other party.
Insertion of new subsection (6)in Section 34: A period of one year has been prescribed for disposal of an application for setting aside an arbitral award.
Amendment to Section 36: Mere filing of an application for setting aside an arbitral would not render that award unenforceable unless the court orders to stay on the operation of the said award on a separate application made for that purpose.[4]

While looking into various judgments held by the Supreme Court of India, it will be clear that the judgments were much effective in implementing the said provisions of the Act. One such case was the Bharat Aluminium and Co. v. Kaiser Aluminium and Co. (BALCO)[5], wherein the Court held that Part I of the Act was mandatorily applicable to all arbitrations held in India. Also, Part I applied to arbitration conducted outside India unless it was expressly or impliedly excluded.

This provision was applied in many cases till BALCO case’s judgment. In this case, the Court decided that Part I and Part II of the Act are exclusive of each other, and the Parliament intended that the Act must be territorial in nature, and section 9 and 34 will be applicable only when the seat of arbitration is in India. Even though this judgment was favorable for reducing judicial interference but it also led to some unwanted results. A foreign party would obtain an award in its favor only to realize that the other party or company has stripped its assets and converted themselves into a shell company. Parties to arbitration proceedings outside India will be able to approach Indian courts for interim measures even before the commencement of arbitration proceedings.

The Supreme Court further expanded the scope of public policy in the case of Renusagar Power Co. v. General Electric Company[6] by stating that Public policy means statutory provisions of Indian Law or even the terms of the contract. This was further expanded on ONGC v. Western Geo International Ltd[7] wherein the Court assumed the power to modify the subject matter of an award for violation of the ground of fundamental policy of the Indian Statute under Section 34(2)(b)(ii) of the Arbitration and Conciliation Act, 1996. The Court held that if the arbitrators failed to make an interference which should have been made, or has made a prima facie inference, “then the adjudication made by an Arbitral Tribunal that enjoys a considerable latitude and play at the joints in making awards will be open to challenge and may be cast away or be modified…” (para 30).[8]

There is a very recent judgment on the neutrality of arbitrators by the Delhi High Court in the case of Assignia-Vil JV v. Rail Vikas Nigam Limited[9] wherein the Court held that Section 12(5) of the Act “mandates” that if the arbitrator and the parties enjoy any of the relationship mentioned under the Seventh Schedule of the Act, they cannot be appointed as an arbitrator. In fact, the provisions of the newly amended Act will be applicable only to the cases that are commenced on or after October 2015. The provision includes—

“Unless otherwise agreed by the parties, the arbitral proceedings, in respect of a particular dispute commence on the date on which the respondent receives a request for that dispute to be referred to arbitration.”

The court also stated that arbitration proceedings must be carried on by a person who is independent and impartial in nature and does not have any relationship between any of the parties which are mentioned under the Seventh Schedule of the Act.

Critical Analysis

Despite major efforts to consolidate the law and make effective changes to the previous legislation for achieving effective alternative disputes resolution, the 1996 Act paved the way for unprecedented litigation on the arbitration process. The process suffered substantial delay. In this background, the 2015 amendment aims to achieve two primary objectives. First, to expedite the arbitration process and second, to lay down certain guidelines and provisions for the judiciary to abide by, while disposing of applications before it.

Alternative dispute resolution, mainly focusing on arbitration, conciliation as well as mediation, has been an effective alternative to the traditional judicial system. In India, the prevailing system is that avoiding fast track judicial proceedings, the effective alternative way in the field of International Commercial Arbitration (ICA), etc. has been seen familiar. In this context, the changes affected by the new amendment may be considered as an opportunity lost to the lawyers as they find it useful in dealing with cases concerning commercial arbitration as well as defeating ICA in such cases. Today, we are experiencing unprecedented transactions across the borders, jurisdictions, and countries, with the advancement of Information Technology, therefore, International Commercial Arbitration needs greater importance. The amendment ought to have considered setting up quarantined international arbitration centers so that India can be an example in the line of certain other countries dealing with the same.

The Arbitration Act of 1940 had a provision under Section 28 where the courts only could enlarge the time for making awards unless the arbitration agreement is provided with the consent of both the parties. At times, the parties request for a time extension, and it’s mostly during the last hours of the time of expiry of such an award. This results in uncertainties, delays, and additional costs. The amendment of Section 29A mandates that court alone can extend the time. The courts have also been empowered to make certain additional directions while extending the time including the substitution of an arbitrator without annulling previous proceedings. This is an area where there is an increase in the court’s intervention in arbitral proceedings.[10]

The amendment brought to the 1996 Act is a positive step towards making the process of arbitration cost-effective, expeditious and a ‘party-friendly’ process. The new amendment leads to sort out certain practices leading to wastage of time, money and energy of both parties as well as to the arbitrators. The new amendment also brings a sense of independence and impartiality to the arbitrators when compared to the previous practices in the field of arbitration. It also ensures that the process of arbitration does not go beyond a reasonable limit of time and checks whether it is within the capacity of the arbitrator to make a possible solution. Such steps will provide self-discipline as well as a control on the case amongst the arbitrators. It must also be stated that the current amendment has travelled a lot more distance by reducing the excessive interference of the court in arbitral proceedings that has been a consistent effort by the legislature since the passing of the 1996 Act.[11]

Footnotes:

[1] Retrieved on: http://www.legallyindia.com/blogs/the-arbitration-and-conciliation-amendment-act-2015

[2] Retrieved on: http://www.mondaq.com/india/x/455538/Arbitration+Dispute+Resolution/Arbitration+Conciliation+Amendment+Act+2015+passed+by+Parliament

[3] Retrieved on: http://byjus.com/free-ias-prep/arbitration-and-conciliation-bill

[4] Retrieved on: http://www.legallyindia.com/blogs/the-arbitration-and-conciliation-amendment-act-2015

[5]Bharat Aluminium and co. v. Kaiser Aluminium and co. (BALCO) (2012) 9 SCC 552

Retrieved on: http://blog.ipleaders.in/interim-reliefs-arbitration-conciliation-amendment-ordinance-2015/

[6]Renusagar Power Co. v. General Electric company 1994 Supp (1) SCC 644,

retrieved on: http://blog.ipleaders.in/arbitration-and-conciliation-ordinance-2015/#_ftn7

[7]ONGC v. Western Geo International Ltd (2014) 9 SCC 263, retrieved on http://blog.ipleaders.in/arbitration-and-conciliation-ordinance-2015/#_ftn8

[8] Retrieved on: http://kluwerarbitrationblog.com/2015/01/07/ongc-v-western-geco-a-new-impediment-in-indian-arbitration/

[9]Assignia-Vil JV v. Rail Vikas Nigam Limited Arb.P.No.677/2015, retrieved onhttps://indiankanoon.org/doc/115973945/

[10] Retrieved on: https://tuljapurkars.wordpress.com/2015/10/28/arbitration-and-conciliation-amendment-ordinance-2015-a-critical-analysis/

[11] Retrieved on: http://www.mondaq.com/india/x/448666/Arbitration+Dispute+Resolution/Highlights+Of+Amendment+To+The+Arbitration+And+Conciliation+Act+1996+Via+Arbitration+Ordinance+2015

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In this blog post, Sreeraj K. V, a student of Government Law College, Ernakulam, Kerala writes about employer’s liabilities under Labor Law. This post includes provisions under the Industrial Disputes Act, Workmen Compensation Act as well as Employers Liability Act, which deals with the provisions relating to employer’s liability towards his workmen.

Introduction

An employer, in simple terms, is a person or legal entity that controls or directs a servant or worker under an expressive or implied contract of employment and pays him/her salary or wages as compensation.[1] Employers include everything from individuals hiring a babysitter to Governments and business which may hire thousands of employees. In most of the western countries, Governments are the single largest employers, but most of the workforce is employed in small and medium businesses in the private sectors.[2]

Speaking legally, Section 2(g) of the Industrial Disputes Act deals with the term employer as:

About an industry carried on by or under the authority of any department of the Central or State Government, the authority prescribed in this behalf, where no authority is prescribed, the Head of the Department;
About an industry carried on by or on behalf of a local authority, the chief executive officer of that authority.[3]

Under the Workmen’s Compensation Act, 1923, section 3 of the Act provides for the liability of an employer to pay compensation to the employee which includes:

If personal injury is caused to a workman by accident, arising out of and in the course of his employment, the employer shall be liable to pay compensation under the provisions of Chapter II of the Act:

Provided that the employer shall not be so liable –

In respect of any injury which does not result in the total or partial disablement of the workman.
In respect of an accident which is directly attributable to –
The workman was under the influence of drinks or drugs, or
The wilful disobedience of the workman to the orders for the purpose of securing his safety, or

The willful removal or disregard by the workman of any safety guard or devices for the purpose of securing the safety of workmen.

Amount of Compensation

Subject to the provisions of the Act, the amount of compensation payable by the employer in case of an accident to the employee will be as follows:

Where death results from the injury which, an amount equal to fifty percent of the monthly wages of the deceased workman, multiplied by the relevant factor; or an amount of fifty thousand whichever is more.
Where permanent or total disablement results from the injury, an amount equal to sixty percent of the monthly wages of the injured workman multiplied by the relevant factor; or an amount of sixty thousand or more.[4]

Employers Liability Act, 1938

One of the main objectives of the Act was to declare certain defenses which shall not be raised in suits for damages in respect of the injuries caused by the workmen. The Act makes certain provisions for the safeguard and good condition of work as well. Section 2(b) of the Act defines the term employer as well as certain other provisions of the Act, which provides for certain liabilities of the employer in case of the injury or damages caused to the workmen. The main aim of the Act was ruling out certain defenses to the employer arising out of the injuries and damages sustained by the workmen. The law also stands for the protection of workmen in safeguarding their interests which bring suits for damages occurred to them during their operation.

Section 3 of the Act provides for defense of common employment barred in certain cases where employee causes personal injuries and its states that:

By reason of the omission of the employer to maintain good and safe conditions of work, machinery or plant connected to his trade or business, or the omission on the part of any person in the service of the employer with the duty if seeing that such works, plant, and machinery are in good and safe condition, or
Because of negligence of any person in the service of his employer who has any superintendence entrusted in him, while in the exercise of such superintendence; or
Because of the negligence of any person in the service of his employer to whose orders or directions the workman at the time of injury was bound to conform and did conform, where the injury resulted on his having so confirmed.

There are certain other provisions of the Act which states that any suit for damages raised by any workman who had suffered from any personal injury due to non-maintenance of healthy conditions of work, good and sound machinery, equipment etc., or by reason of the negligence on the part of the persons employed by the employer, such suit shall not be failed by reason of employment of such workman with the employer.[5]

Employer NOT Liable to Pay Compensation

Employers are not liable to pay any compensation under certain circumstances:

The injury will not result in a permanent incapacity or incapacitates the workman from doing his normal works.
The injury is self-inflicted.
The death or disablement results from the injury were falsely claimed by the employee to be free of to the employer.
The injury was caused due to the consumption of alcohol or drugs by the employee during the time of his work.[6]

There are notable cases which dealt with the matter of liability of the employer in providing compensation to his/her employee. One among them is Dhropadabai and Ors v. M/s Technocraft Toolings, in which the Court stated that the claimant is entitled to compensation as the employee took his last breath during the time of his employment as well as at the place of his work. Even though the cause of death has no connection with his employment, the respondent is liable to pay compensation to the claimant as the death occurred during the employment of the deceased.[7]

Conclusion

It is common that whenever there arises an employer – employee relationship, there arises certain disputes among them as well. In such situations, the above-stated enactments provide certain guidelines to both of them so that they can arrive at a conclusion as well as in a settlement too. While looking into the liability of the employer for providing compensation to the employee, it will be clear that in one way or the other, the employee has undergone certain injuries or damages. There are many companies which look after their employees properly with adequate facilities as well as compensations and rewards whenever necessary. But there are certainly other areas wherein employees are treated in a much disappointing way. All such statutes stand for the good running of a business organization as well as for building up healthy relation among the employer and employee as well. Hence, both of them must be aware of their rights and responsibilities and not to violate the said statutes for their personal gains.

Footnotes:

[1] Retrieved on: http://www.businessdictionary.com/definition/employer.html

[2] Retrieved on: https://simple.wikipedia.org/wiki/Employer

[3] Retrieved on: http://www.lawyersclubindia.com/experts/-employer-means-in-terms-of-section-2-g-ii-of-I-D-Act-39701.asp

[4] Retrieved on: http://admis.hp.nic.in/himpol/Citizen/LawLib/C280.htm#s3

[5] Retrieved on: http://blog.ipleaders.in/employers-liability-act-1938/

[6] Retrieved on: http://www.clic.org.hk/en/topics/employmentDisputes/mattersRelatedToEmployees_compensationOrdinance/work_relatedInjuriesAndTheRelevantCompensations/q2.shtml

[7] Dhropadabai and Ors v. M/s Techno craft Toolings CIVIL APPEAL NO. 8155 of 2014

Retrieved on: http://supremecourtofindia.nic.in/FileServer/2015-03-25_1427268447.pdf

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In this blog post, Harsha Asnani, student, NIRMA University, Ahmedabad analyzes the Transgender Persons Bill, 2016.

Introduction

Ostracized from the mainstream community coupled with the lack of any recourse on gender identification, one of the major chunks of India’s population, popularly known as the “transgender,” continues to face serious human and legal right violations. This issue has come into the limelight with the passing of the Supreme Court Judgement by a two-judge bench in the case of National Legal Services Authority v. Union of India which in the words of Justice K.S. Radhakrishnan had ruled that “recognition of transgender as a third gender is not a social or medical issue but a serious human right issue.” Concerned with this widespread, entrenched discrimination and lack of practical implementation of the said judgment, the Indian legislature has taken a major step to tackle this social exclusion issue.

Overview of the Transgender Persons Bill, 2014

The Rajya Sabha passed the Transgender Persons Bill, 2014 on April 24, 2015. The Bill consists of various rights on social, economic and political entitlements, privileges, and immunities for transgenders. It also entails several duties on educational and employment providing institutions to provide equal and inclusive opportunities to this unidentified community. In addition to this provisions have been made for enactment and implementation of necessary schemes in order to provide social security, rehabilitation, and recreation to the transgender. Providing safeguards and promotion of rights of transgender persons for attaining adequate living standards and conditions to enable them to live independently in the community is another peculiar feature of this Bill.

The introducers of the Transgender Persons Bill were of the opinion that the issue of transgenders should not be mixed with the lesbian-gay-bisexual issues because of diverging concerns of the two groups. The former suffers from a grave problem of lack of one’s identification in various walks of life whereas the latter’s problems are concerned with the acceptance of their sexual orientation by the social and legal community.

Rights Guaranteed under the Bill

Chapter II deals with the rights and entitlements that this act envisages to provide to the transgender. Firstly, it provides them with the right to equality regarding Article 14, 15, 16. Regarding Article 19, the bill provides an opportunity to the transgenders to have an equal basis as that of all other persons regarding expressing their views in matters that directly or indirectly affect them.

Concerning Article 21, this bill aims at providing a right to dignified life and personal liberty on an equal basis with that of people belonging to other genders. This includes right to live within a community and places of one’s choice, assurance of a free and unrestricted access to a range of in-house and community support services coupled with necessary assistance for supporting a living and inclusion within the community. Right to life within this bill also includes the right to respect for his or her physical and mental integrity and the right to protection from any subjection to torture, inhuman and cruel treatment, abuse, violence or exploitation. The interpretation of Right to life under this Bill has been extended to the right to home and family, i.e., no transgender child shall be forced to live away from his or her parents except under conditions where a competent court is of the opinion that it is in the best interests of child or where the parents or the immediate guardians of the child are unable to take care of him, or her then assign the custody of such a child to his or her extended family, or within the community in a family setting.

Following the imprints of interpretation of Article 21 of the Indian Constitution other rights that have been included in this Bill are right to decent living conditions in matters related to healthcare, food and nutrition, counselling etc., right to shelter to those transgender children who have no families and without any means of livelihood and shelter, right to safe drinking water and sanitation facilities in all areas especially urban slums and rural areas, right to pension similar to that of other persons subjected to income limits, right to unemployment, allowances to transgenders suffering through the phase of unemployment provided that they are registered with an employment exchange agency for not less than two years and those who could not find any means of gainful employment or occupation.

The Act covers a very broad array of sectors wherein it envisions creating provisions to uplift the community of transgenders so that they can be brought at par with men and women.

Duties entailed on Various Agencies

The Transgender Persons Bill, 2014 levies a few duties on certain government agencies in furtherance of achieving the objectives as envisaged by this piece of legislation. It gives power to the government and local authorities to take necessary steps to establish proper means of accommodation for the people belonging to the transgender community. Also, the Government and local authorities need to ensure that the community services and facilities are available generally and on an equal basis to the transgender persons; that they are not subjected to torture or abuse either inside nor outside their homes.

Any Executive Magistrate, on receipt of the information from a person or a registered organisation who has a reason to believe that any act of abuse, violence or exploitation is about to be committed or has been committed against a transgender, shall take immediate steps to ensure that this act has been refrained from occurring and the victim is rescued and rehabilitated to a place of safe custody.

The police officers, on receipt of an information regarding any case of abuse, torture, exploitation, are obliged to make the victims aware of their rights under this proposed legislation which includes information regarding right to protection, right to filling complaint, right to free legal services as provided under the Legal Services Authorities Act, 1987 or any other services offered by the National or State Legal Services Authority information and particulars of the agencies working for rehabilitation of such transgender persons subjected to abuse, torture etc.

The educational institutions maintained, recognized or funded by the Government or other local authorities are mandated to admit transgender students and create no distinction or practice discrimination. Education also includes promoting opportunities for sports, recreation and leisure activities, creating reasonable accommodation as per individual’s requirements, creating a supportive environment in maximizing social and academic development for creating full inclusion. They are also required to ensure, monitor their participation and completion of education of all transgender children. Along with regular courses, adult education should also be provided to the transgender children.

As far as employment opportunities of transgenders are concerned, the Government’s role is not only limited to creating schemes and programs to help transgenders in finding employment opportunities but also extends to vocational training and instituting mechanisms for providing loans with concessional rates of interest for promoting self-employment ventures and marketing their respective products. The employing agencies are also mandated to create no discrimination in matters related to employment, the right to appear for selection, etc.

Separate HIV Sero-surveillance Centres have to be set up to tackle various health issues related to sexual matters. These centers should provide free of cost sex reassignment surgery and a barrier-free access to such health care centers.

The Act requires the establishment of National and State level Commission for Transgender Persons which is assigned with various functions. These functions, in a nutshell, involve monitoring, supervising and reviewing the implementation and enforcement of all the provisions of this act or any schemes and programs made thereof. Chapter VIII deals with the establishment of Transgender Rights Courts for easy disposal of civil cases which are filed by transgender persons in respect of infringement of their rights under any law in force within the territory of India.

Shortcomings of the Bill

Although the Transgender Persons Bill, 2014 aims at covering all the loopholes in matters related to the treatment of transgender in the country but in response to this Bill, the Ministry of Social Justice and Empowerment had come with a few areas where this Bill stands to be disappointing. Firstly they are of the opinion that the Transgender Bill does not comprehensively reflect the existing literature over the rights of transgender. It is suggested that the Intersex people should also be included in the present bill as they also face such acute issues of recognition, healthcare, nutrition, etc. Secondly, self-identification is recommended by way of notarized legal affidavits so that they can be used to make necessary changes to the legal gender markers and hence not remain limited to general identity cards such as ration cards, PAN cards, etc. It is recommended that issuing of the transgender certificate be carried on by a Governmental authority as it will lead to setting up of gatekeepers or brokers at different levels. Further a separate chapter on healthcare should be brought up. Transgender should be recognized as socially backward groups, and affirmative action should be planned for their upliftment.

Special focus should be brought about to avoid higher drop-out ratios due to harassment and hostile environment in school. Counseling and training sessions should be organized for parents and teachers respectively for providing sensitisation. Adequate medical leaves are provided for sex reassignment surgeries, internationally accepted health practices be adopted.

The post Overview and Critical Analysis of the Transgender Persons Bill, 2014 appeared first on iPleaders.

In today’s world when people are turning their back to agriculture, an NLU law graduate says he is not interested in a corporate law career and wants to concentrate on his organic farming business.

Praveen Kumar did his BBA from MDU, Rohtak and LLB from Faculty of Law, Delhi University. Unlike his batch mates he is not looking forward to a corporate law career and wants to expand his organic farming business. He owns an organic farm in Rewari, Haryana and works with farmers from 15 to 20 villages around his farm. He educates them about organic farming and the benefits of it. He motivates them to take it up instead of conventional farming methods. He has a very wide network of farmers who have turned to organic farming after he made them realize the benefits of it. He himself owns one of the largest organic farms in Rewari. As of now, he doesn’t market his products but he dominates the local farmers markets and the big mandis.

He is passionate about social causes and took up organic farming also because of this. He wants to uplift the farmers and give them a profitable way of livelihood, while ensuring that the environmental issues due to the usage pesticides and insecticide by farmers is taken care of. As per him, organic farming is the only way to control the rising levels of pesticide and other harmful chemicals used in agriculture, which is destroying the environment as well as our health.

He is so passionate about social causes, the only reason why he took up law after his BBA was to help people. He never wanted a law career, but he wants to use his legal knowledge to help people and raise awareness about social causes. He says “The knowledge of law is empowering and without this power of knowledge, you really can’t do much for the society”. He runs an NGO named Community for Nation, which works with farmers, low-income groups and other marginalized sections of the society and educates them about different Govt and non-Govt welfare schemes they are entitled to and helps them avail the benefits of these schemes.

He recently completed the NUJS Diploma in Entrepreneurship Administration and Business Laws. We asked Praveen, what made him sign up for an online diploma course after a BBA and an LLB and here is what he had to say. Over to Praveen:

I joined the NUJS diploma in Entrepreneurship Administration and Business Laws while I was in the second year of my law school. I was looking for a course which would help me understand the business laws in detail and I took to the internet. I came across the advertisement of the NUJS diploma course while searching the internet. I found the course structure and the syllabus to be practical and detailed. Secondly, the tag of NUJS was attractive.

Apart from this, I was inspired by reading the success stories of students of this diploma course on the iPleaders blog, what attracted me most was the fact that not only students but lawyers and professional were taking up this diploma course from NUJS. I was sure that this course would be beneficial, otherwise, why would established people take this course.

By the time of joining the course, I had made up my mind that I will not be practicing as a lawyer and would concentrate on my organic farming business only. So I wanted a better understanding of business laws and entrepreneurship; how the laws are used while negotiating contracts, how to structure a business, labor laws etc. When I came across the content of the course, I felt that it was in line with my needs and gave a good insight into business laws.

The course syllabus covered subjects such as business structuring, labor laws etc which are very practical subjects in terms of my business. The knowledge gained through this course helped me manage and plan my business better. Not just my business, the course helped me in my studies also. As I was in law school at the time of doing this course, it gave me an edge over others, in my class. I was already aware of topics which were yet to be covered in class and this knowledge helped me grasp the subjects taught in the class very well.

In future, I plan to launch a brand of my organic products and market them in big retail chains like eazyday, big bazaar etc. This course would come handy then, as I would be better-prepared to handle contracts, marketing my brand etc.

As of now I’m not able to use much of the learning from this course, as I deal with local farmers markets, mandis etc but this would be beneficial in future when I would be dealing with retail chains.

I would definitely recommend this course to any who wants to start a business. I would say anyone who wants to startup business or join their family business should do this course; so that they get to know about different aspects of business laws. This course is helpful to everyone because of its great content.

The post Praveen Kumar: A Lawyer, a BBA and above all an organic farmer; on how the NUJS diploma course is benefiting him appeared first on iPleaders.

In this blog post, Pranav Rudresh, Student of Lloyd Law College, Greater Noida and a Diploma in Entrepreneurship Administration and Business Laws from NUJS, Kolkata, writes about one of the recent laws amended by the parliament known as the Anti-Hijacking (Amendment) Bill, 2016.

Introduction

In 1982, an act was passed by the Parliament of India for suppression of unlawful seizure of aircraft’s registered in India[1] and was known as the Anti-Hijacking Act, 1982. According to the act, whoever on board aircraft in flight attempts by force or threat and intends to control the aircraft for unlawful purposes shall be charged with the offense to commit a hijack. The punishment under such charge, if proved, was life imprisonment and fine.

In December 1999, an Indian Airlines aircraft popularly known as IC-814 was hijacked while traveling on its way back to Delhi from Kathmandu, Nepal. Despite several attempts of negotiation with the hijackers, the Indian government was forced to release three terrorist namely Maulana Masood Azhar, Ahmed Saeed Sheikh and Mushtaq Ahmed Zargar. One of the passengers was killed while several others were injured. Later the case was investigated by the Central Bureau of Investigation (CBI), which charged 10 people, of which seven people were absconding including the 5 hijackers. The 3 people who were charged with helping the hijackers were awarded life imprisonment.

Yusuf Nepali, who was among the three people charged with helping the hijackers was awarded life imprisonment, the CBI had however moved the Punjab-Haryana high court seeking the death penalty for him, which was rejected by the court on grounds of his prolonged custody. Nepali was released from jail in April 2014 and later claimed that he was not a part of hijacking although CBI had proved his active participation in helping the hijackers.In December 1999, an Indian Airlines aircraft popularly known as IC-814 was hijacked while traveling on its way back to Delhi from Kathmandu, Nepal.

Despite several attempts of negotiation with the hijackers, the Indian government was forced to release three terrorist namely Maulana Masood Azhar, Ahmed Saeed Sheikh and Mushtaq Ahmed Zargar. One of the passengers was killed while several others were injured. Later the case was investigated by the Central Bureau of Investigation (CBI), which charged ten people, of which seven people were absconding including the five hijackers. The three people who were charged with helping the hijackers were awarded life imprisonment.

All these events led to the question whether the death penalty should be imposed upon a person involved or related with hijacking. The bill was last amended in the year 1994, A few amendments were planned in 2010 but were unsuccessful in implementing.

The Anti-hijacking Act, 2016

Reforms in the Anti-hijacking Act, 1982 were presented, and first bought up in 2010 however the amendments couldn’t see much of daylight. It was this year in the month of May when the Anti-hijacking Amendment Act was passed in both houses successfully as well as it received the assent of the President. The Anti-hijacking Act, 2016 has been divided into three chapters mainly: The first chapter deals with the definition of hijacking and other things such as aircraft, hostage, military aircraft, etc. The second chapter deals with the punishment for the accused. Notably, the provisions of the Code of Criminal Procedure, 1973 has been enabled. Chapter 2 also describes the powers of the central government. It also defines the jurisdiction of the law. The third chapter contains the miscellaneous provisions such as the power to treat certain aircraft to be registered in Convention countries[2].The persons acting in good faith and doing anything required under their duties under this Act are protected under this Act against any suit.

The new bill is with effect to the Hague Convention, 1971[3]and the Beijing Protocol, 2010[4]. Some of the important modifications in the new bill are:

Change in definition of the word “hijacking”: One of the most important amendments that have been mentioned in the Act is in Section 3; which changes the definition of the word “hijacking.” It is for the first time that in this bill the term “technological means” has been used. The law now defines hijacking as “Whoever unlawfully and intentionally seizes or exercises control of an aircraft in service by force or threat thereof, or by coercion, or by any other form of intimidation, or by any technological means, commits the offense of hijacking”[5]. In the law of 1982, the term technological means has not been used. The Section 3(1) of the anti-hijacking act, 1982 defined hijacking as “Whoever onboard an aircraft in flight, unlawfully, by force or threat of force or by any other form of intimidation, seizes or exercises control of that aircraft, commits the offense of hijacking”.

Provision of capital punishment and Role of Central Government: Another notable amendment in the Anti-hijacking Amendment Act is the introduction of capital punishment. It has been mentioned in Section 4 of the Amendment Act that in case of hijack, if the accused has conducted any act of violence which may result in death of any of the passengers or crew members and the security personnel or any such other person not involved in the offence present in the aircraft, he may be liable for death penalty.The accused will still be charged with life imprisonment and fine, along with confiscation of his movable and immovable properties in case the accused is charged only of hijack. It is to be noted that Section 5 of the Act of 1982 had provisions of the death penalty for the accused however only in case killing of hostages such as passengers and crew members directly. The Section 6(2) of the Amendment Act also empowers the Central Government for investigation, arrest, and prosecution of any officer of the Central Government or National Investigation Agency (NIA) in the case of suspicion. Section 20 of the Anti-hijacking Amendment Act empowers the Central Government to lay down new rules if required and present before both the Houses of Parliament for discussion and approval before implementation while the house is in session. If the houses disapprove the presented rules, the law shall remain unaffected.

Change of jurisdiction of the law to “Universal”: Another important amendment included in the Anti-hijacking Act, 2016 is the change of jurisdiction of the law.The law now covers provisions against highjacking of aircraft’s registered in India or consisting of Indian passengers or highjack committed by an Indian anywhere in the world. According to the law, if the hijacker is a resident of India, or if the hijacked aircraft is registered in India or if any foreign registered aircraft lands in India with the alleged offender still on board or when the aircraft is hijacked anywhere in the world, and an Indian citizen is on board, proceedings under Anti-hijacking Act may be applicable upon the hijacker. It has been mentioned in Section 7 of the amended act.

Conclusion

The Anti-hijacking Amendment Act, 2016 covers a considerable amount of improvements compared to the act of 1982 or the amendments made in 1994. With the implementation of this act, the Indian legislation surely tightens its stand against incidents related to hijacking as it brings both technology and manpower to work together more vigilantly for the safety of passengers. India has witnessed 19 highjacks so far and every time it has cost us something. Implementation of this law will impact India’s strong stand against incidents like highjacking. There are still certain points to be covered to make this law even stronger such as to allow the security forces to shoot down an aircraft which may be used as a missile or the power to concerned authorities or security forces to prevent take off for suspected flights.The new act has also been framed by the Beijing Protocol, 2010 which makes it noted globally as many countries frame their civil aviation laws by this protocol.

We can only hope that we don’t need to enforce these laws on someone shortly.

References:

[1] Aircraft registered in India means any aircraft apart from military and police or custom services which at the time being have been registered in the jurisdiction of India. (Section 1(3) Anti-hijacking Act, 1982)

[2] Countries that have agreed and accepted the Hague Convention

[3] The Convention for the Suppression of Unlawful Seizure of Aircraft signed at The Hague on the 16th of December, 1970

[4]The Convention held at Beijing for Suppression of Unlawful Acts Relating to International Civil Aviation is a treaty by which nations agreed to criminalize certain terrorist actions against civil aviation in September 2010.

[5] Source: http://www.indiacode.nic.in/acts-in-pdf/2016/201630.pdf

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In this blog post, Harshit Singh Jadoun, a Third Year student of B.A. LLB(HONS) from Institute of Law, Nirma University, Ahmedabad and a Diploma in Entrepreneurship Administration and Business Laws from NUJS, Kolkata, analyses the reasons why a majority of companies in India are incorporated in Mumbai.

Introduction

India is no doubt playing a crucial role in the global market and is even emerging as a key player in implementing as well as executing policies inclusively. Establishing an enterprise requires various prerequisites to be taken care of with several formalities to be completed that are necessary according to law to be complied with. Apart from these procedures and practices, there are multiple factors that govern and regulate the outcome and performance of the corporation; location is inter alia one of the key factors that have a bearing upon the business of the venture. Every entrepreneur aims at positioning its undertaking at an economical place and where sufficient manpower is available to carry on the project effectively; therefore, a decision regarding choosing the location turns out to be a strategic and an important one. Mumbai is known as the commercial capital of India and its firm economic growth, geographical location and proximity to other cities (outside as well as inside India) due to the effective mode of communication and transportation fascinates industrialists and many freshers to establish their business in the city.

In this article, the author tries to highlight the reasons and the grounds as to why most private companies in India are incorporated in Bombay.

Location: An Essential Factor for Incorporating a Private Company

Incorporation of a company is the primary step in laying its foundation and giving a platform to the entrepreneur to initiate the business with the hope of achieving future economic prospect, but there are numerous risks that an entrepreneur has to undertake to establish his business by combating and overcoming all the menaces tangled in it. Albeit, business benefits, investment, and profits are sin qua non of a successful enterprise but choosing the appropriate location for the business stands equally at an indispensable footing with other factors concerned to make a lucrative venture. Resolution regarding the location of the business is very pertinent to all types of companies irrespective of its size; it has several impacts on the long-term economic growth of the company along with the cost of operation and consumers suitability.[1]

Usually, it is incongruous to alter or shift the location of the company once settled because it may result in considerable amount of loss to the companies and members associated with it. Moreover, the consumers attached to it may find it incompatible to get settled with the new location. Therefore, decisions once taken regarding the location is hard to undo.[2] Various prerequisites have to be taken into consideration before choosing up a location which is apt for the business, some of them being the availability of raw material, proximity to market, availability of labor, transport facilities, external economies, power, finance, etc.[3]

Mumbai as an Apt Location for Private Companies

Financial Capital: The existence of various Indian stalwarts along with strong industrial base act as a hub for trade, business and industries and the contribution of the city to the economic growth and gross domestic product of the country leaves no stone unturned for it to not to be called as the financial capital of the country. Mumbai has two largest stock exchanges namely the National Stock Exchange and the Bombay stock exchange. The headquarters of Reserve Bank of India, Security Exchange Board of India and almost all major banks makes the city financially resilient which fascinates freshers to set up their enterprise irrespective of the risk involved. The city gained its importance from the time when a protected deep-sea harbor was discovered due to which East India Company bought the island from the crown and shifted its headquarters from Surat to Bombay. Businesspeople from Gujarat who are an expert in stock trading add their culture and skill and are prompt in reacting to the bids and offers in the market. Their plain lifestyle and lowest cost of operation in the world makes them a significant player in the financial world of the country.[4]
Investment Policies and Incentives: The extensive industrial development in Mumbai appeals to both foreign as well as domestic investors. The policy framed by the State Government provides an ideal business climate by encouraging the investors to invest in various sectors of the state and contribute to the overall development of the economy. The robust infrastructure, skilled manpower and high professional ethics offers and conducive business environment and well-established sectors in engineering, automobiles, drugs, textiles, and biotechnology attract the largest quantum of investment. Mumbai is also said to be the land of opportunities due to a large number of employment opportunities that it provides through the service sector and grants various incentives and perks to the people employed which give stability to businesses, promoting investment and growth. The tax incentives bestowed by the State Government and the availability of major nationalized banks makes it easier to acquire timely funds by the entrepreneurs. Therefore, they are encouraged to set up their business in Mumbai. The city gives them a platform for huge segments of buyers and traders to make a trade which helps their business to prosper across major corners of the country.
Robust Infrastructure: The heavy infrastructure with well-built institutions provides a reputable platform for the investors to invest due to established connectivity to every sector and place in the world. The city has consistent and cost effective telecom connectivity and to substantiate with some statistics the city consists of 11 percent of National Road Network along with 9 percent of the National Railway Network. The state airports handle 34 percent of India’s international passengers and cargo. Recently the State Government is planning to set up “Industrial Township Authorities” in the respective industrial areas of the state that will be responsible for managing common infrastructure with active participation from the industrial units located in the area.[5] The transport infrastructure being carried out in Mumbai by the Maharashtra State Road Development Corporation (MSRDC) is tremendous and has added a lot to the economic growth of the city. The corporation is bringing into existence several notable projects such as the Mumbai-Pune Expressway and many other flyover projects in Mumbai.[6] To name a few upcoming projects which will further bolster the infrastructure would be the Mumbai Trans Harbour Link (MTHL) Project, which would effectively reduce the commute time from South Mumbai to Navi Mumbai to 30 minutes, enhancing the entire traffic and development dynamics of the region,[7] Adding more to this CIDCO has proposed the Navi Mumbai International Airport, which promises to provide world-class facilities to passengers, aircrafts and airlines.[8] The power sector in Mumbai is given no less regard, due to the existence of major stalwarts like Tata and Reliance the city has an abundant power supply which adds a feather to the stout infrastructure of the city.
Special Economic Zone: The central aim of the Government behind building these zones is to augment industrialization and foster economic growth parallel with sustainable development. The foremost advantage of the special economic zone in Mumbai is that they get tax rebates with fiscal incentives along with land at a reasonable price which makes it easier for the entrepreneurs to start-up their business at a sound rate.[9] There are uncountable benefits attached to the Special Economic Zone such as the promotion of economic activity, exports of goods and services, investment from domestic and foreign sources, the creation of employment and many others.[10] The Special economic zones unit in Mumbai provide an exemption from VAT on domestic sourcing of capital; there is income tax holidays on business incomes, 10% FDI is allowed for all manufacturing activities, customs clearances, easy access to the airport and railway authorities. Some of the SEZ established in Mumbai are SEEPZ (Santacruz Electronics Export Processing Zone), Khopata, Navi- Mumbai.[11]

Conclusion

Mumbai no doubt is a great hub for entrepreneurs and freshers as it offers great opportunities with resources to enter the world of business and compete with others already present. The city has always been considered to be the land of opportunities and has certainly changed the fate of many people. In the context of this manuscript, it can in no way be denied that the city has ascended the growth of private companies due to the unrestricted capital, resources that it bestows to the firms and companies. Certainly, there is a lot more that can be modified and developed in the city to make it more welcoming to the new companies and set up an environment compatible with their business set up.

Footnotes:

[1] Abhishek Nayak, Why are most private companies incorporated in Bombay? Ipleaders, http://blog.ipleaders.in/8116-2/, last seen 27/05/2016.

[2] Business Location (Introduction), http://www.tutor2u.net/business/reference/business-location-introduction, last seen 27/05/2016.

[3] Factors Influencing Industrial Location, http://teacherweb.ftl.pinecrest.edu/snyderd/APHG/Unit%207/Location%20Factors.htm, last seen 27/05/2016.

[4] T Thomas, Mumbai a global financial center? Of course! Business Standards, http://www.rediff.com/money/column/mumbai/20070427.htm, last seen 28/05/2016.

[5] Policies, Infrastructure Policies, Doing Business in Maharashtra, http://www.doingbusinessinmaharashtra.org/infrastructure_policy.aspx, last seen 30/05/2106.

[6] Ibid 5.

[7] Navi Mumbai Special Economic Zone, http://www.nmsez.com/infra.html, last seen 31/05/2016.

[8] Ibid 7.

[9] Advantages of SEZ Units in India, Business Maps of India, http://business.mapsofindia.com/sez/advantages-units-india.html, Last seen 31/05/2016.

[10] Ibid 9.

[11] Ibid 10.

The post A Critical Analysis of the Incorporation of Most Private Companies in Mumbai appeared first on iPleaders.

In this blog post, Saakshi Jain, student, Amity University, Lucknow Campus writes about Mediation, a must and compulsory process in India. This post also covers the need, advantages, and disadvantages of mediation and its impact on Indian divorces.

Need for Mediation before Divorce Proceedings in India

Mediation is a part of conflict management of the Alternative Dispute Resolution method under Section 89 of the Code of Civil Procedure Code. The emerging concept of mediation centers is rising rapidly.

Mediation is a process of intervening between two parties to resolve disputes. It is an attempt made by a third party who is called a mediator. The mediator is one who is impartial, neutral towards both the parties. Mediators do not give a judgment but allow resolution of the disagreement or disputes between the parties. Under mediation, open communication is held between the parties so that both of them can clear their doubts and misunderstandings and with the help and suggestions of the mediator, come to a common conclusion. Many people before going to the court prefer to go first to the mediation center. Anyone can make a request for mediation by informing in advance through a written notice.

The mediation process is a long process because the mediator needs to analyze the problems and then find the solution to it. Some of the cases may last for 30 days and some for 7 to 8 months. It depends on the case of the client.

Mediation is a very flexible process as the parties to it decide their own suitable time. Mediation can be used in divorce, labor disputes or bargaining, real estate, and in other disputes so to avoid taking the case to court. Mediation is an informal process to resolve disputes, and the third-party is the mediator who clarifies the misunderstanding between the parties. The misunderstanding can be for a commercial, legal, family matters and many more purposes which need to be solved by an impartial mediator.

At the initial stage, both the parties are not comfortable with revealing their private life to another or a third person. So the communication skills of the mediator should be strong enough to make the parties comfortable and speak out their problems without any privacy problem. The mediator should begin by asking basic questions and when, the parties are comfortable, then only should the deep questioning begin. The communication skills of the mediator should be effective enough to fetch out the problem of the parties and work upon it. Earlier it was not the duty of mediation centers to reconcile the disputes of the couples. But with growing time, to remove the burden of the court and to give a broader look to the Indian judiciary, mediation centers are established and are running successfully.

Types of Mediation

There are two types of mediation:

Mediation through court- Section 89 of the Code of Civil Procedure, 1908 deals with the mediation for pending cases in the court which are referred by the court itself.

Private mediation- Private service is given by qualified mediators. Free service is provided to the court or public members to resolve their disputes regarding any matter. Private Mediation is used to resolve the disputes pending in court and pre-litigation disputes.

Need for Mediation Centers

There should be a conflict resolving management in a country because every case cannot be of such nature to deal with courts. In many cases, there is only a misunderstanding which can be resolved through the mediation centers. There is no need of going to court.

In fact, the court is overburdened by its pending and upcoming cases. Litigation is a very slow process and takes the time to come to any conclusion. Therefore, there is a great need for mediation centers in India to solve minor disputes so that no litigation process is taken further. But if the parties are not satisfied with the conclusion of the mediation center and find that nothing is well, then they can move towards the court. Therefore, the basic and foremost need of mediation is to avoid going to court and resolve the dispute in a normal and confidential way.

Mediation in Divorce

Nowadays, many cases have been registered among young couples for divorce. They fight for a small reason and make it a big one. Sometimes one feels that there is a huge problem, but when one sits backs and looks at it, the problem isn’t that huge, it’s just the two partners who make an issue out of it. Divorce can be initiated by either of the spouses. The major reason for this initiation is a lack of trust, love, care, respect, cruelty, etc. so when a couple feels that there is some possibility to save the relation, they approach the mediation center.

Mediation centers have their process of handling the case in their way. Hence, couples are first referred to go for mediation and then move towards the court. Mediators are usually appointed by the court. The court appoints the mediators according to their qualifications for particular matters.

Advantages and Disadvantages

There are certain advantages and disadvantages to the mediation process for divorce.

Advantages: Mediation cuts the price and the long process of litigation. It is a confidential and ethical process and does not harm the sentiments of either party. A neutral person assists the matter and hence, derives a conclusion which fits perfectly for both parties. Therefore, it is a neutral process. Mediation is a simple and flexible process and does not need much formality to it.

Disadvantages: Under the mediation process, the mediator cannot compel or force either of the party to cooperate. It is one’s choice whether to co-operate or not. Hence, the divorcing couples should firstly try to solve the problem on their own and then only go for mediation if no results are found.

Duty of the Court

Section 9 of the Family Court Act, 1984 states the duty of the Family Court to make efforts for a settlement.-

In every suit or proceeding, endeavor shall be made by the Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the suit or proceeding and for this purpose a Family Court may, subject to any rules made by the High Court, follow such procedure as it may deem fit.
If in any suit or proceeding, at any stage, it appears to the Family Court that there is a reasonable possibility of a settlement between the parties, the Family Court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect such a settlement.
The power conferred by sub-section (2) shall be in addition to, and not in derogation of any other power of the Family Court to adjourn the proceedings. [1]

Section 9 of the Family Court Act, makes is it mandatory to settle a matrimonial dispute in relation to maintenance, child custody, divorces, etc., through the process of mediation. It also states to refer the parties to visit a mediation center with their consent. The family court can take the help of the counselors if needed for resolving disputes. Mediation centers should give a time limit for the completion of the conflict dispute to avoid further or unnecessary delay in the matter.

In the case of K. Srinivas Rao vs. D.A.Deepa [2], the apex court held that mediation is a must before a divorce. When any case occurs under Section 489A of IPC, the apex court directs the criminal courts not to deal with this complaint unless the matter is dealt by the mediation centers but in few cases where the cruelty amounts to be a very rigorous and a dangerous one, the criminal courts can take up the case without referring it to the meditation centers. Further, it has been held that all the mediation centers should set up their own personal litigation clinics so that the matrimonial disputes can be resolved under this without going to court.

By the statistical data of Bangalore mediation, over 20, 000 cases of 30, 000 have been settled through mediation in the year of 2007 to 2014.

Conclusion

Mediation is a negotiation process. Parties who go through the mediation process participate directly and with free consent to this process. Resolving the disputes through a process which is under the supervision of a mediator is called mediation. The aim of mediation is to provide a fair, neutral, speedy decision or conclusion to the parties. Meditation can be done for any matter. But nowadays, the concerned topic is Divorce. Mediation for divorce is a must process and needs to be done before going to the court. Through mediation, the burden of the court becomes less and the parties can confidently make their point clear to each other. Mediation is a non-judicial and informal process that needs to be done by the divorcing couples. Mediation centers do not pass the judgment but give the couples solutions to smoothly repair the cracks in their marriage. After the mediation process, the divorcing couples may give another chance to their relationship or file a petition for divorce in the court. After the mediation process, the divorce becomes a mutual divorce with the consent of both the spouse. Section 9 of Family Court Act, 1984 also states that before going to the court, the partners need to go through the mediation process. Therefore, mediation is a must for all the divorcing couples to give their marriage one more chance.

Footnotes:

[1] https://indiankanoon.org/doc/1558811/

[2] Civil Appeal No. 1794 of 2013

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In this blog post, Sreeraj K. V., a student of Government Law College, Ernakulam, Kerala writes about the relevance of an expert witness in criminal law. The blog post covers areas like the definition of an expert and expert evidence, various provisions of the Indian Evidence Act and the importance and admissibility of expert evidence. The blog post also gives an analysis of certain cases which prove the evidentiary value of expert evidence in India.

In simple words, an ‘expert’ is a person who has a high level of skill or knowledge in a particular subject or field. In the field of law, an expert and his opinion as an expert witness in a case plays a key role in deciding the case by the court. Legally speaking, an expert is a person who specializes in a field of knowledge, often technical and who may present with his/her expert opinion without having been a witness to any occurrence relating to the lawsuit or a criminal case. It is an exception to the rule against giving an opinion in the trial, provided that the expert is qualified by evidence of his/her expertise, training or special knowledge. If the expert is challenged, the attorney for the party calling the ‘expert’ must show necessary background through questions in court.

In the law of evidence, an expert witness is a person who is allowed to give opinion evidence as opposed to evidence of his perception. This is the case only if the witness is skilled in some appropriate discipline. An exception to the usual rule of practice whereby witnesses are heard one after the other and do not hear the evidence of the preceding witness is made of competing experts.[1] According to Section 45 of the Indian Evidence Act, it provides for certain provisions as to the opinion of experts. ‘When the court has to form an opinion on a point of foreign law, science or art, or has to identify handwriting, the opinions upon that point of persons especially skilled in such foreign law, science or art, are relevant facts. Such persons are called experts.[2] In fact, the provisions enumerated under Sections 45 to 51 of the Indian Evidence Act provides the relevancy of experts, and the opinion is exceptional to nature of the general rule that evidence is to be given to the facts only which are within the knowledge of the witness. This exception is based on the principle that the court can’t form an opinion on the matters which are technically complicated and professionally sophisticated without the assistance of the persons who have acquired special knowledge and skill on those matters. Conditions for the admissibility of expert opinion are:

That the dispute can’t be resolved without expert opinion
That the witness expressing the opinion is an expert.[3]

Duties of an expert

An expert is not a witness of fact
His evidence is of advisory character
An export deposes and does not decide
An expert has to furnish necessary scientific evidence to the judge so that he can frame independent judgments by e-application of such evidence.

There is much difference between expert evidence as well as the evidence given by an ordinary person. An expert gives his opinion on a particular field of knowledge such as fingerprint, handwriting, etc. which is of an advisory character. The court can’t pass an order of conviction purely on this basis as it is not conclusive. An expert gives his opinion on his experience, skills, and knowledge in that particular field. On the other hand, an ordinary witness states the fact in connection with that particular incident only. The opinion of a normal witness is non-admissible. The court may pass an order by the evidence given by the eyewitness. A normal witness provides facts of the incident what he had seen heard or perceived.[4]

Admissibility of expert evidence

Expert opinion will be admissible only when the expert is examined as a witness in the court. The opinion of the expert will not be admissible in the court unless the expert gives proper reasons for his opinion and it is being tested during the cross-examination by the adverse party. But in order to curtail the delay and expenses involved in securing assistance of experts, the law has provided certain provisions regarding the examination of scientific experts.

According to Section 293 of the Code of Criminal Procedure, the report of certain government scientific experts provided under this section will be held admissible as evidence in inquiry, trial or other proceedings and the court, if finds to be fit, summon or examine the experts. It is argued that after all, the expert is a human being and however impartial he may be, he will be producing certain evidence and opinions for the party which calls him to an extent. One of the rules of caution that all courts follow as regards expert opinion is that they must never surrender their free will or independence to an expert. In all cases, wherein expert evidence is needed, the court must after giving it proper importance, make up its mind on the issue upon which expert testimony is given.[5]

There are some cases which give us a clear picture regarding the importance and admissibility of expert and the evidence produced by them. In the case of Kishan Chand v. Sita Ram[6], the court stated that the opinions of the experts on the question whether the same person wrote two or more documents, or different persons are relevant. Conflict of opinions of experts leads to the discretion of the court in forming its decision after looking into the signatures on such documents.[7] There are various other cases such as Ram Narain Singh v. State of Punjab[8], in which the court questioned the opinion of the expert by stating that both evidence provided by the normal witness as well as expert evidence are colliding. Thus, the prosecution was not able to prove its case against the accused person and hence the accused was freed. Such cases state that expert evidence can also be questioned in the court when they are in collision with the actual evidence or the evidence produced by a normal person regarding the case.

Conclusion

From the above, it will be very clear that an expert and his evidence play a crucial role in the case in which he/she has made an opinion. Usually, the opinion of an expert is taken in the fields of medical science, during the time of the death of a person, regarding the age of parties, cause of death, nature and kind of weapons used disease, injury, sanity or insanity of a person, etc. Now-a-days, DNA test is also used in fixing the paternity of the child in family law in connection with the maintenance and legitimacy of that child.[9] A witness, whether expert or not, must be competent to provide certain evidence or documents supporting his/her evidence only if he/she is competent to do so. Unless and until they are not, they will be not regarded as proper witness under the tagline of experts. It is not mandatory that a court must look only into the opinion of one single person; the court has its discretion to examine one or more experts depending upon the facts and circumstances of each case concerned. As there are certain provisions regarding who has to be an expert under the Evidence Act, court will not find any difficulty in deciding the cases involving expert testimonies as the court itself is equipped with proper guidelines by the said statutes of our country. On the whole, the expert evidence makes a case or the facts of the case much more relevant than they were before. It also makes it clear that an act can be made more particular when it is corroborated by an expert’s evidence.

Footnotes:

[1] Retrieved on: http://legal-dictionary.thefreedictionary.com/expert+witness

[2] Retrieved on: https://indiankanoon.org/doc/1025384/

[3] Retrieved on: http://www.legalservicesindia.com/article/article/experts-opinion-and-its-admissibility-and-relevancy-law-of-evidence-1583-1.html

[4] Retrieved on: http://www.legalservicesindia.com/article/article/experts-opinion-and-its-admissibility-and-relevancy-law-of-evidence-1583-1.html

[5] Retrieved on: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1651148

[6] Kishan Chand v. Sita Ram AIR 2005 P-H 156

[7]Retrieved on: https://indiankanoon.org/doc/1025384/

[8] Raj Narain Singh v. State of Punjab 1975 AIR 1727

Retrieved on: https://indiankanoon.org/doc/1995089/

[9] Retrieved on: http://www.vakilno1.com/legalviews/role-of-experts-in-litigations.html

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In this blog post, Sreeraj K.V., a student of Government Law College, Ernakulam, Kerala writes about road accidents and legal recourse to be taken once such accidents take place. This blog post includes the current status of India in connection with road accidents, provisions of the MV Act and also certain procedures that must be fulfilled by the parties immediately after an accident.

Introduction

Road accidents have turned out to be a common issue in India in the recent times. India has seen the largest number of road accidents in the past few years. The main reason behind this phenomenon is that we show our decency in the society but not on the road. Rash and negligent driving, avoiding proper signals, drinking and drive, etc. lead to most of the accidents in India. Reports states that there is one death in every four minutes due to road accidents in India and 25% of such accidents have occurred to persons driving two-wheeler. This is a shocking report because it indicates how negligently we are behaving on roads. The report also states that Delhi is in the top position on the highest number of road accidents in India.[1]

While looking into to the laws and statutes which ensure road safety as well as protection for the victims of road accidents, these laws include Motor Vehicles Act, 1988 and certain provisions of criminal law in the case of the death of the victim of road accidents. The Motor Vehicles Act prescribes certain important provisions which every driver should follow. It includes:

Section 112: Prescribes the maximum limit at which each class of vehicle can be driven.
Section 113: A person should not drive a vehicle exceeding the permitted weight it can carry.
Section 129: A person driving a motorcycle shall wear a helmet.
Section 134: Duty of a person in case of an accident and injury to a person including securing medical attention to the injured person and reporting to a police officer or at the nearest police station within 24 hours.
Section 185: Driving by a drunken person or by a person under the influence of the drug is prohibited.

There are also provisions under Section 279 of the IPC dealing with a rash and negligent driving as well as Section 304A dealing with causing death by negligence which is read along with Section 279 in the case of death of the victim of an accident. Now, looking into various reasons of accidents, it has to be stated that many of the drivers undertake rash and negligent driving, as well as the reckless drivers of buses and trucks, are in a habit of drinking. Under the influence of drugs, they drive their vehicle at high speeds by negligently avoiding traffic signals and hence causing road accidents and sometimes being victims themselves.[2]

Using mobile phones during the time of driving has also been common now-a-days. Government as well as the Motor Vehicles Department has provided strict regulations that a person must stop his vehicle towards the side of the road for attending a call or calling through mobile phones. But 90% of the drivers attend their phones while driving, mainly the taxi drivers who are in a hurry to pick their customers from different places. Not only them, but also car drivers, mainly elite class people, use their phones during the time of driving as they very well know that money will resolve every issue.

The attitude of the police at the time of an accident is quite surprising. Now-a-days, we see many people riding their bikes at a very high speed as well as in a rash and negligent way through highways as well as on roads where there is a high rush of vehicles. The impact of such accidents will be very high when compared to other accidents. The main factor behind such accidents is that, in such cases, these bike riders will be colliding with a vehicle which will be a bigger one, say a car or any other heavy vehicle. In such instances, no person shall admit that two-wheeler was at fault. Rather, they will blame the driver of the four-wheeler so that the driver of the two-wheeler can secure some compensation. For instance, there was an accident in the Bangalore-Tumkur highway where a person was in his car. A bike had suddenly come and collided with a car from behind. The people nearby as well as the bike rider blamed the car driver and he was forced to give compensation. There is a loophole in the traffic regulation laws which make the person is driving bigger vehicle liable for the accident without even looking into the nature of the accident. This is quite disappointing since the person driving the bigger vehicle does not get a chance to prove that the other person was at fault.

Legal recourse

During the time of an accident, the very first thing that a person should do is take the injured person to the hospital and provide him with proper medical attention to save his life. Then he may approach to the nearest police station seeking legal guidance regarding the matter and lodge a complaint against the person who made the fault. In many cases, the complaint will be against the driver of bigger vehicles as it is a commonly seen aspect in India. After lodging the complaint, the case may be registered at the concerned police station under various provisions of the Motor Vehicles Act, 1988 as well as various other criminal laws if needed. After registering the FIR, the vehicle/vehicles which caused the accident will be taken to the police station for proper fitness certification by the officials of the Motor Vehicles Department. During that time, driver/drivers involved will be called and their statements will be taken, and then the case will be forwarded to the concerned Motor Accidents Claims Tribunal (MACT). At that time, proper documents such as Registration Certificate of the vehicle, a copy of the FIR, post-mortem report if any person is dead, proper insurance papers, documents containing the age of the victim, proof of the income of the victim, etc. Have to be submitted. During the time of the trial, both the accused and the victim get a chance to plead and it is up to the insurance company to act accordingly in terms of the compensation to be given to the victim.[3]

Conclusion

Road accidents are increasing at an alarming rate day by day and the police as well as the judiciary find it very difficult to resolve the cases in a short period. Latest statistics reveal that it takes around three to five years for the court to make a decision in a case concerned. Keeping this in mind, the government and the Judiciary planned to establish some courts dealing with the issues of road accidents. Now, we have Motor Accidents Claims Tribunal (MACT) all over India to deal with the cases of road accidents. The main goal behind the establishment of MACT was to decide accident related cases in a much faster way as compared to ordinary courts. But still, pending cases are very high as compared to the cases resolved. Certain other machinery such as alternative disputes resolution may also be applied for accident cases where there are fewer amounts of damages which can be resolved by way of compensation.

Footnotes:

[1] Retrieved on: http://sites.ndtv.com/roadsafety/important-feature-to-you-in-your-car/

[2] Retrieved on: http://www.shareyouressays.com/3161/552-words-essay-on-a-road-accident-in-india

[3] Retrieved on: http://www.vakilno1.com/legal-faq/mact-motor-accidents-claims-tribunal.html

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In this blog post, Sreeraj K. V., a student of Government Law College, Ernakulam, Kerala writes about the legal procedures to be complied with when a cheque is dishonoured. This blog post covers areas like the importance of cheque, dishonor of a cheque and its remedies and the legal recourse available with the help of certain laws in India.

Introduction

All banks in India are being administered and their operations amended purely with the help of certain statutes, mainly by the Negotiable Instruments Act, 1881, the Reserve Bank of India Act, 1934 and the Banking Regulations Act, 1949. Now, let’s look into the various matters affecting a cheque as a major negotiable instrument and the legal formalities to be fulfilled by the parties when a cheque gets bounced or is dishonoured.

Cheque

A cheque as a negotiable instrument has been clearly defined under Section 6 of the negotiable instrument Act. A ‘cheque’ is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand, and it includes the electronic image of a truncated cheque and a cheque in the electronic form[1]. In simple words, a cheque is a document drawn by a person for another person to whom he has agreed to pay a certain sum of money within a certain period. Business transactions are growing at a rapid pace. So, it is difficult for a person to transfer liquid money to another person. In such situations, a cheque acts as a medium of transferring money from person to person so that the transfer will be safe and both the parties can save their time to a great extent.

Even though a cheque has many merits on one hand, transfer of money through the way of cheque needs some procedures to be followed.The person who issues the cheque (drawer) must have a bank account; the cheque must be given some liability to the recipient (payee) and in terms of money, there must be sufficient amount in the bank account of the drawer for the cheque to be issued and not to be dishonoured due to insufficiency of fund; and most importantly, it must be a crossed cheque so that only the payee can receive the amount and the misuse of cheque can be reduced.

Dishonour of cheque

Business transactions of people is increasing day by day and the stability of maintaining bank balance has been fluctuating depending upon the financial needs of the people. If a person issues a cheque to another, he/she may not be aware of the current bank balance and thus the cheque may be dishonoured. In such situations, the drawer of the cheque is given a 30 days’ time for repaying the amount back to the payee. But after that period, if the drawer is not willing to pay the amount, the payee has an option to file a suit against the drawer for payment of the amount of the cheque as well as an amount of interest as compensation for the default caused by the drawer.

Legal recourse

When a cheque is dishonored, the bank will issue a ‘cheque return memo’ to the banker of the payee mentioning the reason behind the dishonor of cheque. The banker then transfers the cheque return memo along with the dishonored cheque to the payee. Then the payee may issue a notice to the drawer for the payment of amount within 15 days from the date of issue of the cheque and resubmit the cheque within 30 days from the date mentioned on the cheque on a belief that the cheque will not be dishonored this time. If the cheque is being dishonored again, the payee has the right to prosecute the drawer legally for the dishonour of the cheque. The payee can prosecute the drawer of the cheque only when the cheque has been issued towards the discharge of liability or debt by the drawer. If the cheque was issued as a gift or towards lending of loan for any unlawful purposes, the payee has no right to sue the drawer when the cheque gets dishonoured.

The Negotiable Instruments Act, 1881 deals with the cases of dishonour of cheques. According to Section 138 of the Act[2], dishonour of the cheque is a criminal offense and is punishable by an imprisonment of two years along with a monetary compensation as fine or both. This Section of the Act states that the dishonour of the cheque may occur when a person, for the payment of any liability or debt to another person, issues a cheque in favour of that person and due to the insufficiency of fund or if the prescribed amount exceeds the limit of amount to be paid from that bank, then the person is deemed to have committed the offence. The bank also has a right to stop the cheque facility to the person and even close his account when repeated offenses of cheque bounce occur.

In certain cases, the defaulter can appeal to the Sessions Court within one month from the date of judgment of the lower court. If both the parties are not interested in wasting much time, an out of court settlement is also applicable at any point. In many cases, the party files a separate civil suit against the defaulter for the recovery of the amount mentioned in the cheque along with a reasonable rate of interest as compensation.

Summary suits

In many circumstances, the defendant will have no defense of his own. In such a situation, the plaintiff can file a ‘summary suit’ under Order 37 of the Code of Civil Procedure, 1908[3]. Here the defendant will be given no chance to defend himself unless he procures permission from the court to defend. Summary suits are being filed mainly in civil matters based on recovery procedures. It includes promissory notes, bills of exchange and cheques. It does not have a form of criminal charge as it only focuses on the recovery of the debt or property from the defendant without much delay.

Amendment to the Act

Even though Negotiable Instruments Act has been amended many times due to several reasons, the landmark amendments in the Act were done twice before the recent amendment done in 2015. The latest amendment adopts various principles regarding the jurisdiction of the courts in dealing with such matters. In many cases, the drawer will be in one place, and the payee will be far away from the drawer. In such cases, the parties find it difficult to go through the penal actions which follow. By the new amendment, the holder of the cheque can file a suit before a magistrate at his place of residence and the place where he tendered the cheque. Thus litigation expenses will be reduced, and the drawers of the cheque will be more careful while signing the cheque[4].

According to the newly implemented Section 142A, any case of the same nature, whether filed before or transferred before, shall go to the courts having jurisdiction under the new procedure[5].

Conclusion

Dishonour of the cheque is one of the major issues faced by the parties while transferring money through negotiable instruments. It will make the drawer liable even though he was unaware of the insufficiency of the fund in his account within a prescribed limit of time. But the law itself provides a reasonable time for them to repay back the amount to the payee. The default made after such a period has to be considered as a criminal act as it involves an unlawful intention of not paying back the money to the deserving party. Thus, the law makes it clear that the parties while signing a cheque have to be aware of the amount of money in their concerned banks.

Footnotes:

[1]Section 6 – Negotiable Instruments Act, 1881

[2]Section 138 – Negotiable Instruments Act, 1881

[3]Order 37 – Code of Civil Procedure – Summary suit

[4]Retrieved on http://www.business-standard.com/article/opinion/the-negotiable-instruments-amendment-bill-2015-115080900761_1.html

[5]Section 142 A – Negotiable Instruments Act, 1881, retrieved on http://www.business-standard.com/article/opinion/the-negotiable-instruments-amendment-bill-2015-115080900761_1.html

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In this blog post, Abhiraj Thakur, a student of NALSAR University of Law, Hyderabad writes about the various issues that surround the admissibility of electronic evidence in courts under the Indian legal system. The legislature though has recognized e-evidence but has left certain loopholes unaddressed in the procedures to be implemented in cases where e-evidence is presented.

Why e-evidence?

The human world today is digitized. Over the course of time, technology has seeped into every aspect of human life. From setting an alarm to wake up in the morning to knowing about the latest government policies, we make use of digital resources available to us. Everything, from communication to processing to documentation has gone digital. Law has not been immune to digitization. In case of India with the ever increasing e-commerce activities and e-governance initiatives from the state, the admissibility of e-evidence in the court of law has become a pertinent issue.

Indian law has for long, grappled with the issue of admissibility of e-evidence in the court of law. Instead of giving due regard to the increasing use of e-evidence around the world and incorporating it in the legal system, Indian courts have also remained sceptical of e-evidence, considering it to be of such nature that can easily be tampered with. Today, a large variety of e-evidences are presented before courts in India every day, ranging from storage devices such as DVD or Hard Disk to mobile SMS or even a mail or website data.

E-evidence under the Evidence Act, 1872

Section 3 of the Indian Evidence Act, 1872 talks about what can constitute valid evidence in the court of law. Under clause 2 of the Section, it has been stated as “All documents produced for the inspection of the court.” It did not include an electronic form of evidence. However, witnessing the increase the presentation of electronic records before the court, Section 3 of the Act was amended in 2000. This was done to accommodate electronic records, and now the section reads as “All documents including electronic records produced for the inspection of the court.” Further, Sections 65A and 65B were introduced to make electronic evidence admissible in the court of law. An amendment was also done to Section 92 of the Information Technology Act of 2000.

Legislative Ambiguity

Though Section 3 of the Evidence Act was changed, no changes were made to the provisions under Sections 61 to 65 of the Act. Sections 61 to 65 deal with documentary evidence in the court of law. The provisions deal with documents or content of documents; no change was made to include electronic documents in that. Thus, the question that whether provisions enumerated under Sections 61 to 65 of Evidence Act would apply to electronic records baffled the Indian judiciary for a long time.

In the case of Utkal Contractors v. State of Orissa, this issue as to whether Sections 61 to 65 of the Evidence Act applies to electronic evidence was dealt with by the Supreme Court. The Supreme Court held that the intention of the legislature was clear for this omission to amend the provisions of Sections 61 to 65. It did not want it to be extended to electronic records. As a result, e-evidence is accepted only as a secondary form of evidence and not a primary form in Indian law.

Admissibility under the Evidence Act

Section 65 elaborately deals with the issue of admissibility of e-evidence. As it is only a secondary form of evidence, there are a few conditions with which e-evidence is accepted as valid evidence in Indian courts. Section 65B(1) states that anything contained in the form of an electronic record if is printed on paper or stored or has been recorded can be accepted as an admissible evidence only when it satisfies certain conditions laid down in subsequent provisions of Section 65B. These conditions can be briefly put in as:

Reliability of the source of electronic record

Section 65B(2) talks about the circumstances under which the computer from where electronic record has been produced can be deemed a reliable source. The computer needs to be of regular use, the one which was frequently used to store the information on the activity concerned. Also, the information derived from the computer must have been fed into it in the ordinary course of activity. Lastly, the computer must have been operating properly for the relevant period concerned.

Limiting the source:

When we talk about computers, several questions may arise due to the nature of the machine, such as, when many computers are connected to each other, which one is to be taken as the source of the evidence. Section 65B(3) removes such ambiguities. Among other things, it states that group or combination of computers connected over the period in question shall be considered as a single computer for the purpose of evidence. Also, if one or more computers act in a succession of each other over the period in consideration, they are also to be considered as a single computer.

Authorisation of the source:

The last condition that an e-evidence needs to satisfy to be admissible in courts is that of authorization or certification. Section 65B(4) states that when in any proceedings the nature of evidence is that of the electronic form, a certificate needs to be issued giving particulars of the device or anything dealing with Sub-section 2 of the Section. The certificate needs to be authorized by a person who holds a responsible official position about the particulars of the device. In most the cases, these people are IT professionals who hold certain expertise in the area of the device concerned.

Thus we see that there are many conditions which need to be fulfilled before an e-evidence can finally be accepted in the court of law. This has its advantages and disadvantages. While minimizing the possibility of falsification of evidence, many a times, it slows down the procedure making it very complex and also acts as an impediment in the course of justice.

Judicial development of e-evidence

Indian courts have, for a long time, been facing different forms of e-evidences in numerous cases and have tussled with the admissibility of it. High courts of different states have given conflicting judgments on the issue.

In the case of Ankur Chawla v. CBI, deciding on charges of corruption, the trial court had convicted the accused through a video CD, considering it to be valid evidence. However on an appeal, the Delhi high court reversed the judgment and raised suspicions over the admissibility of compact disks (CDs) as evidence in a court of law and considering the high probability of it being tampered with and faked, held it to be inadmissible in Indian courts.

About the validity of emails as evidence, in the case of Abdul Rahman Kunji v. State of West Bengal, the Calcutta High Court held that emails satisfying conditions under Section 65B to be admissible evidence in a court of law. Even intercepted phone calls recorded and presented in a CD were considered as valid evidence in the case of Jagdeo Singh v. State and Others.

Many cases have also dealt with the necessity of such stringent conditions enumerated under clauses of Section 65B of the Evidence Act. In Dharambir v. CBI, the Delhi High Court upheld the necessity of provisions under section 65B, stating them to be for the betterment of law. The court also elaborated upon the contemporary provisions dealing with e-evidence in different countries of the world. In this regard, it is necessary to mention that in England, similar precautionary provisions as in Section 65B existed under Section 69 of The Police and Criminal Act of 1984. However, the Law Commission of England in its report among other things, reviewed Section 69 of the Act and recommended it to be unsubstantial and failing on the very grounds for which it was introduced, which was to improve the infallibility of evidence and promote justice. The Parliament of England took cognizance of the fact and Section 69 was finally repealed in the year 1999 through Section 60 of Youth Justice and Criminal Evidence Act.

The varying views surrounding section 65B of the Evidence Act have finally been settled in a recent judgment by Supreme Court. In 2014, while deciding the case of P.V Anvar v. P.K Basheer and Ors., the Supreme Court, taking a positivist line of approach held that as per the current legal framework at hand, Section 65B is very much mandatory, and the courts need to follow the procedure so enumerated in the Section. If any changes are sought for, it is the Legislature that has to take the initiative and not the courts who just follow the procedure laid down by law.

Conclusion

We thus see that the mere mention of e-evidence in the statute cannot help the cause. The procedural glitches that have been induced with the inclusion of e-evidences need to be dealt at the earliest. With changing times, law too needs to keep pace with improvements in technology. While countries like England have realized and accordingly made changes in their law to improve the efficiency of e-evidences, India still is keeping the current scheme. The courts though, on occasions have dealt with the issue, but it is the Legislature that needs to come forward.

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In this blog post, Harsha Asnani, a student of NIRMA University, Ahmedabad the major laws that govern the hotel industry in India.

Introduction

With opening up of the Indian economy after 1991 and the adoption of globalization, there has been a steep rise in the operational activities of various sectors that were earlier very dormant. One of the best examples of this is the hospitality industry. One of the major parts of this sector is the hotel industry.The expanding activities of the hotel industry have turned it into a multimillion-dollar industry. Hotel industry consists of restaurants, lodging places, theme parks, event planning, etc. and includes activities such as facility maintenance and direct operations including servers, porters, housekeepers, bartenders, kitchen keepers, etc. Such services that are provided by the hotels constitute to be the subject matter of laws that regulate the hotel industry. Until recently, there were not many stringent requirements of compliance attached to these laws. Due to rise in the number of cases of food poisoning, rising concerns and public conscience, these laws now demand a stringent compliance. Apart from regulating the areas mentioned above, hotels are also obliged to protect their customers from harms that are criminal in nature such as thefts, bodily harms, and even potential harms from terrorist groups.

Associations governing hotel operations

Apart from certain laws, there are certain industry associations that govern the working of hotels in India:

The Federation of Hotels and Restaurants Association of India
The Hotel and Restaurant Association of Eastern India
The Hotel and Restaurant Association of Northern India
The Southern India Hotel and Restaurant Association
The Hotels and Restaurant Association (Western India)
Hotel Association of India

Licenses required for opening a hotel

To open a hotel, there are various licenses that are required to be obtained. Such licenses include:[1]

Police License / Registration.
A license under Shops & Establishments Act.
A license under Prevention of Food Adulteration Act.
Registration under the Luxury Tax Act.
Registration under the Sales Tax Act.
Registration under the Contract Labour Act.
Registration under the Pollution Control Act.
Registration under the Apprentices Act.
Registration under the Provident Fund Act.
Registration under the ESI Act.
Entertainment License on Festival Occasions.
License for Chimney under the Smoke Nuisance Act.
Registration under the Weights & Measures Act.
Factory License for Laundry.
Central Excise License for Bakery Products.
Registration & Permits under the Motor Vehicle Act for Tourist Coaches / Taxies.
Eating House License.
Municipal Beer Bar License.
License for storage of Diesel Oil.
License for storage of Kerosene & Compressed Gas (LPG).
Sign Board Directions, Neon Signs.
License to deal in Foreign Exchange under FEMA.
Cold Storage License, (if over 25 cubic ft.).
License for Boiler & Generators and Mixers and Grinders.
Bar License (Foreign Liquor).
Dance License
Mild Liquor License.
Temporary License for Awnings & covering of Terrace during monsoon.
Building Completion Certificate.
Copy Right License for Playing of Music.
Lodging House License
Approval from the Department of Tourism, Government of India.
Registration from GTDC for new projects under the Package Scheme of Incentives.

Laws governing Hotel Industry

The laws that govern the Hotel Industry can be classified into the following broad categories.[2]

Establishment and commissioning

The first head of laws that govern the hotel industry include the laws regarding commissioning and construction of hotels, restaurants, guest houses and other establishments of such kind. These laws also include laws such as Foreign Exchange Management Act, Industrial Licensing Policies, and land laws, etc. Hotel insurance policies, especially the customized ones can fulfil the growing needs of the hotel industry. It can cover all its establishments ranging from spa to guest houses and apartments, bed and breakfasts etc. Other insurance policies such as the standard insurance policy would cover risks and damages arising from accidents, fire, natural calamity, etc.

The operation, management, and maintenance

The second head of laws that govern the working of hotel industry are related to matters such as management, maintenance and the operational activities of hotels. Such laws include insurance laws, laws regarding safety and security of workers, food and hygiene standards, obtaining licenses, Food and Drug Administration Act, Shops and Establishment Act, etc. For example, Acts such as the Food Adulteration Act would prohibit the sale of substandard food items thereby protecting the customers from the potential harm caused by poisonous food, and protecting their interest by eliminating the fraudulent practices. The Food Safety and Standards Act would set up a criteria for manufacture, storage, distribution and sale and trade of food substances so that they remain fit for human consumption for a considerable period. The Legal Metrology Act would regulate the use of standards of weights and measures. The Copyright Act would protect the rights relating to expression in the form of literature, drama, music, art or architectural works. In fact, hotels are required to take such copyright licenses before they organize any event such as plays or musical shows, etc.[3]

Taxation, employment, and contracts

The third set of laws that govern the working of a hotel are related to the contracts that it enters into with other enterprises or employment contracts, for example, the Apprentice Act, Employees State Insurance Act, etc. These laws also include the manner in which such entities are taxed. Taxes may include income tax, service tax, expenditure tax, excise duty, luxury tax, entertainment tax, value added tax, etc. Legislations such as the Shops and Establishment Act or the Employees State Insurance Act would aim at regulating the relationship between employers and employees in the hotel. The former would lay certain statutory obligations on the employers in matters related to wages, working hours, holidays, paid leaves, provision for payment for overtime work, etc. The latter is a social security scheme that would mandate the employers to protect the interest of the workers in times of contingencies such as sickness, maternity leaves, physical impairment or injuries occurring from the workplace, subsequent medical care. The Provident Fund Act mandates the creation of provident fund schemes for the employees. The Apprentices Act shall govern the working of apprentices in the Hotel Industry.

Other laws

Other laws that may govern the working of hotels may include local law norms or other local land norms or guidelines issued by the tourism industry such as approval of hotels at project stage and classification & reclassification of hotels, guidelines for classification of heritage hotels, Time Share Resorts (TSR), Stand Alone Restaurants, guidelines for apartment hotels, guidelines for approval of guest houses, Hospitality Development and Promotion Board, implementing a transparent system for the effective monitoring of hotel projects, ensuring timely accrual of approvals / clearances / NOCs by the multiple agencies and facilitating the implementation of hotel projects, expeditious clearances, etc. will enable completion of hotel projects in time leading to enhancement of room availability for the tourists.

Hotel & Restaurant Approval & Classification Committee

The Hotel and Restaurant Approval & Classification Committee inspects and assesses the hotels based on the kind of facilities that they provide. The two categories of hotels that they inspect are first, hotel projects that are approved at the implementation stage and secondly, the operational hotels which are classified into various categories. About the former, the Ministry of Tourism after certain documentation provides project approvals that shall remain valid for five years. Once the hotel reaches its operative stage, the approval ceases to exist within three months. The respective hotel must apply for the classification during these three months. Once the classification is obtained, it becomes valid for 5 years.

Footnotes:

[1] http://www.nishithdesai.com/information/areas-of-service/industry/hotels.html

[2]http://elearning.nokomis.in/upload documents/H.R.%20In%20Hospitality/chap%2013%20Laws,Legislations%20And%20Taxes/Summary/CHAPTER%2013.pdf

[3] ibid

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In this blog post, Harsha Asnani, a student of NIRMA University, Ahmedabad writes about the rights available to arrested persons in India. The author discusses various legislations that govern the rights of arrested persons including the rights provided in the Constitution of India and Code of Criminal Procedure, 1973 and also some special rights to women in matters related to arrest.

“The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two? A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first – the criminal or society, the law violator or the law abider;”[1]

For upholding the sanctity of these words in Indian legal framework, the legislators and the judicial minds have at innumerable instances tried to provide the arrested persons with certain rights to preserve the respect for human rights of liberty. There are various laws under which various rights have been provided to the arrested persons.

Right to know grounds for arrest

Article 22 of the Indian Constitution is the umbrella provision which provides a basic premise upon which rights of arrested persons have been based. The fundamental rights provided under this provision mandate that firstly, any person who is detained in custody shall be informed of the reasons for such an arrest. It is necessary that this right of being informed of the grounds for arrest be given to arrested person because it is only after such information is furnished to him, he or she will be in a position to take a proper legal recourse and apply for an application for issuing of a writ of habeas corpus. In the case of In re Madhu Limaye,[2] the Apex Court had observed where the arrested persons are not informed of the grounds for arrest, they become entitled to be released on a writ of habeas corpus.

In addition to Article 22, Section 50 of Code of Criminal Procedure Code states that every police officer or any other person who has, without warrant, arrested any other person shall communicate to the so arrested person with all details and particulars of the offense for which he or she has been arrested.

A subordinate officer who makes an arrest on orders by a senior police official shall be duty bound to furnish the arrested person with the substance of written order given by his superior specifying the offense or the cause due to which the other person is arrested. According to Section 55, non-compliance of this provision leads to an arrest being termed as illegal.

In cases where the arrest is made under a warrant, then such a warrant, according to Section 75, shall be shown to the arrested person and the grounds for arrest be notified to him. Instances, where a magistrate makes the arrest, nothing in any law shall prevent him from fulfilling all necessary conditions as mandated in Article 22, and hence the grounds for arrest shall be communicated to the arrested person.

The decisions of the Apex Court in the cases of Joginder Singh v. State of U.P.[3] and D. K. Basu v. State of West Bengal[4] has led to the addition of Section 50-A to the Code of Criminal Procedure wherein it is the obligation of the police officer making an arrest to inform a relative or friend about the arrest of the concerned person. Whenever such a person is taken before the Magistrate, it is the Magistrate’s duty to get satisfied regarding this aspect.

Right to consult

All arrested persons shall be entitled to a right to consult and be defended by a lawyer or legal practitioner of his choice. The right to seek legal aid not only includes an opportunity to consult but also provided with all reasonable facilities for exercising this right. In the case of Janardhan Reddy v. the State of Hyderabad,[5] it was held that in capital cases where the defendant is neither able to arrange for a counsel nor make his defence due to unavoidable circumstances such as illiteracy or ignorance, a recourse which is for the accused must be taken and therefore a counsel should be provided to him to defend himself. Although such recourse is not mentioned in any of the Indian legislations, it can be read along with the rules made and circular issued by the High Courts. However, the court has laid down two principles in this regard. Firstly, it is not recognised as a rule of law that a trial gets necessarily vitiated if the accused is not represented and secondly that an appellate court or a court of revision is vested with the power of interference if it is of the opinion that the inadequate representation of arrested person has lead to negation of trial.

This right has been given a form of constitutional mandate in the form of Article 39-A and 2. The Supreme Court has also placed a duty on the magistrates also to inform the accused of his or her right to free legal aid.

Being informed about the right to get released on bail

Section 50(2) of the Code of Criminal Procedure imposes a duty on the police officer making the arrest without a warrant in cases other than non-bailable offenses to inform the arrested person that he has a right of being released on bail and can arrange sureties for the same.

Right to silence

Article 20(3) of the Indian Constitution mandates that the no person arrested shall be compelled to give evidence or statements which are incriminatory in nature or become a witness against himself. In the case of Nandini Sathpathy v. P.L. Dani,[6] it was held that prohibition from forcibly extracting confessions from an accused entails the accused with the right to remain silent during the process of interrogation. In lieu with the same, the Supreme Court has held the use of lie-detector machines, brain mapping and narco-analysis as violative of Article 20 of the Indian Constitution.

Right to be taken to Magistrate within 24 Hours

As per Article 22(2), every such person so arrested by a police officer without a warrant or detained in custody will be taken before a magistrate within a span of twenty-four hours. A similar provision has been included in the Cr.P.C. in the form of Section 56. According to it, the unnecessary delay should be avoided. In the case Harimand v. Jailor,[7] it has been held that the accused shall be entitled to get released in cases where he or she has not been taken before the magistrate within 24 hours. This period of 24 hours shall exclude the time for journey or transportation. The aim behind enacting this clause is to prevent the extracting of confessions using forceful methods, prevent police stations from being turned into the prison, etc. and to get a speedy recourse to a judicial officer other than the police for redressal of matters related to bail.

Right to Trial

Every arrested person has the right to a free and an open court trial. It requires that the convictions should not take place in secret. Also, it must be ensured that trial is of speedy nature.

Right to be examined by a medical practitioner

In cases where a person is arrested on a charge, such that, at the time when he is presented before the magistrate or detained in custody, his medical examination would produce an evidence which can lead to his discharge or establish that he or she has not committed the crime, then the magistrate on request of the accused shall direct the examination of his body by an appointed registered medical practitioner.

Other rights provided to an arrested person under the Indian legal framework include right to be served with a custody memo, police final report, First Information Report on a free basis, making of arrest to be avoided if only suspicion exists, right to compensation for illegal detention or groundless arrest, right not to be kept in police custody if released on bail except in cases where the presence of accused is mandatory, right to medical aid or treatment if the arrested person falls ill in police lock-up, right to every woman to not to be kept in general prison, sub-jails or women homes to be made for such purposes. Special rights to women include right not to be arrested after sunset or before sunrise irrespective of the presence of woman constable; also, women need not necessarily be present in the police station during the process of interrogation.

Footnotes:

[1] Joginder Kumar v. State of U.P. AIR 1994 SC 1349

[2]1977 SCC (4) 551

[3] 1994 SCC (4) 260

[4] (1997) 1 SCC 416

[5] 1951 SCR 344

[6] 1978 SCC (2) 424

[7]1954 CriLJ 1317

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In this blog post, Sakshi Jain, student, Amity Law School, Lucknow Campus writes about animal abuse. Animals are also living creatures and laws are made to prevent them as they can’t fight for their right.

All living creature have the right to live on this earth but some humans fail to understand this. The inhumane and cruel treatment done to animals is undoubtedly unbelievable. Just because they can’t speak and take a stand for their rights; it does not mean that they cannot feel unbearable and insensitive pain. All are God’s creation and every creature has its own purpose on this earth. Letting innocent ones suffer in pain, sends shivers down the spine of every soft-hearted person. Therefore, inhumane treatment of animals should be stopped as soon as possible.

Animal abuse and cruelty is a very concerning topic currently and is growing rapidly in today’s era. The Prevention of Cruelty to Animals Act, 1960 and the Wildlife Protection Act, 1972 are the laws that govern the safety of animals.

Cruelty to Animals under Prevention of Cruelty to Animals Act, 1960

Section 11(1) (a) to (o) of the Prevention of Cruelty to Animals Act, 1960 states the different kinds or forms of cruelty to animals. Within these sections, some offenses are cognizable and some are not cognizable.

According to Section 2(c) of Criminal Procedure Code, cognizable offenses are those offenses under which the police officer is empowered to arrest the offender without a warrant. Whereas, Section 22(l) of Criminal Procedure Code deals with a non-cognizable offense under which the police officer is not empowered to arrest the offender without a warrant. Section 11(1) (1),(n ), (o) and Section 12 are the cognizable offenses and the rest of the sub-sections under Section 11 are non – cognizable offense within Prevention of Cruelty to Animals Act, 1960.

Anyone can make a complaint against animal abuse at the nearest police station and the police officer is under the obligation to carry out an investigation into that complaint. Under Section 34 of the Act, if any complaint is made, then he has the power to seize the animal and produce the same for examination before the nearest magistrate. Section 35 states that the animals are to be produced before the magistrate and if found seriously injured, then they must be taken to the infirmary for further care until they are fit for discharge.

Punishments

Animal Abuse is a punishable offense under Prevention of Cruelty to Animals Act. The offender (in his first offense) will be liable to pay a fine of Rs. Fifty and if in case, the same offense occurs within 3 months of the first offense, then the offender will be liable to pay a fine of not less than twenty-five and not more than hundred rupees or with an imprisonment for the term of three months or both. If it’s a second offense, then the offender’s vehicle shall also be seized.

Section 12 of the Act, penalizes practicing of phooka or doom dev among animals. It is the practice done on the cows or any milch animals for improving their lactation. It is illegal to practice these kinds of activities and is a punishable offense under the act. It is a cognizable offense amounting to a fine of rupees not less than one thousand or with an imprisonment for a term which may be extended up to two years or both.

The law provides that it is illegal to treat animals with cruelty or giving poisonous food to them, and is a punishable offense under this act. It is illegal to kill homeless or stray animals. Section 11 of the Act, makes transportation of animals a punishable offense with a fine of Rs 100 or /and 3 months of imprisonment.

The Prevention of Cruelty to an Animal, 1960 prohibits any person from inflicting, causing, or if it is the owner, permitting, unnecessary pain or suffering to be inflicted on any animals.[1]

The act makes it illegal to beat, kick, harm, torture, and kill the animal. It is also illegal to override, overdrive or overload animals. The act punishes the people who make use of animals in any competition in which the animal may likely to be harmed or die. The owner of the animal will be held liable for not providing sufficient food or shelter to the animal or allow his diseased pet to roam around the street.

Indian Penal Code

Section 428 and 429 of the India Penal Code makes it illegal to cause injury and cruelty to animals. It is a cognizable offense under this Act.

Section 428 of the India Penal Code states – “Mischief by killing or maiming animal of the value of ten rupees.—Whoever commits mischief by killing, poisoning, maiming or rendering useless any animal or animals of the value of ten rupees or upwards, shall be punished with imprisonment for either a term which may extend to two years, or with fine, or with both.” [2]

It deals with the punishment for committing mischief to animals by killing, poisoning or rendering them useless. The animals of the value of ten rupees and more come under the preview of this section. But under Section 429, the value of animals is above the value of Fifty rupees and more.

Section 503 makes intimidation, a cognizable offense. It states that anyone who threatens or intimidates any person taking care of the dogs is liable under the Penal Code and can be arrested without a warrant. Anyone can love and take care of animals according to their wish. No one can stop them from doing so. But if someone does, he/she will be liable for criminal intimidation under Section 503 of Indian penal code.

Constitution of India

Article 21 of the Constitution of India is the heart amongst all the fundamental rights and is very vast. Therefore, it is the liberty of individuals to take care or feed dogs and cannot be infringed or be questioned if done in a reasonable manner. Thus, caring, feeding or providing shelter to an animal is a natural and basic right of an individual.

Article 19 of the Constitution of India deals with the right to freedom of liberty. It guarantees the right to occupation of every citizen, and if someone is caring for animals as his occupation, then no one can stop them because it is their fundamental and legal right.

Article 48 of the Constitution also provides safeguards for the protection of animals. Article 48 deals with the prohibition of cow slaughter, calves or any other milk providing animals. Further, in 1974, Article 51A (g) was introduced which made it a duty of every citizen to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures.[3]

Recent Updates

The Hon’ble High Court of New Delhi has issued an order on 18.12.2010 for feeding stray dogs by the local people. The order stated that “the Animal Welfare Board of India should identify, in consultation with the Residents Welfare Association, Area SHO and the Animal Welfare Organization working in that area, the spots/sites, which in its opinion, would be most suitable for the purpose of feeding dogs”. It further stated that the “Animal Welfare Board of India shall identify suitable sites in the colonies, the subject matter of these petitions, within four weeks from today. It shall also try to cover as many more colonies as it can during that period”. The Hon’ble Court also directed that “the Delhi Police will ensure that no harm is caused to the volunteers of Animal Welfare Organizations feeding dogs in these localities provided that they feed them only during hours to be specified by Animal Welfare Board and provided further that as soon as suitable sites for feeding the dogs are identified, these organizations will feed dogs only on those identified sites and at hours specified by Animal Welfare Board”. [4]

Few people are aware of the laws relating to animal abuse. Even police officers are not aware of these laws; this makes the animals more helpless because they cannot fight for their right and are brutally killed by people. People sometimes beat or kick animals for fun. Even animals are used as a source of income to many people.

Jallikattu is an event held in Tamil Nadu as a part of Pongal celebrations on Mattu Pongal Day. It is one of the oldest blood sports, held in the village as a part of the celebration of Pongal. This game has resulted in a number of injuries and deaths. PETA made a complaint alleging this event to be illegal and amounting to animal cruelty. The Hon’ble Supreme Court in its judgment in May 2014, held Jallikattu as an illegal event and should be stopped as soon as possible as it amounts to cruelty towards bulls in that village. The court held that use of bulls in such festive events, harm the animals which are a punishable offense under Prevention of Cruelty to Animals Act, 1960.

Recently on 15th March 2016, eight puppies were killed by Poonnamma, based in Bangalore because their mother gave birth to them in a drain close to her house. It was a nuisance for her and the immediate action she took was to kill those eight little puppies. “I did this act to teach their mother a lesson and not to litter across my house”, said Poonnamma. The residents of the society and the NGO registered a complaint with Compassion Unlimited Plus Action (CUPA) and the Peenya police respectively on March 17th. The Peenya police have registered the complaint under Section 93 of Karnataka Police Act; punishment for cruelty to animals, Section 11 of The Preventive of Cruelty to Animals Act, 1960 and Section 429 of Indian Penal Code. The case is still pending, and if found guilty, she could end up in prison for 5 years.

Conclusion

Animals are the most innocent creature on this planet. Abuse of animals is an inhumane treatment by any person to them. Prevention of Cruelty to Animals Act, 1960 was enacted with the aim to protect animals and punish the one responsible for their inhumane treatment. Protection of animals is of an important concern because animals cannot fight for their rights. Hence, the Constitution of India also guarantees the preservation of animals within the territory of India. Abuse of animals is a cognizable and a non-cognizable offense under the various heads of Section 11 of Prevention of Cruelty to Animals Act, 1960. Various NGOS’s work towards the betterment of animals and fight for the right and protection of animals.

Footnotes:

[1] https://www.animallaw.info/statute/cruelty-prevention-cruelty-animals-act-1960

[2] https://indiankanoon.org/doc/260462/

[3] . https://indiankanoon.org/doc/1644544/

[4] www.caretrust.in/Animal%20laws%20of%20india.pdf

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