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Top 2019 judgements by Supreme Court

The Supreme Court is the highest court of appeal and hence, it plays an essential role in the development of the law. It acts as a last resort tribunal, as its rulings cannot be appealed. The Supreme Court is the guardian of the constitution as it upholds the Indian Constitution and protects the rights and liberties of the citizens.

Following are certain landmark Judgements passed by the Supreme Court of India in 2019.

1. Ayodhya Case

M Siddiq (D) ThrLrs  V/s  Mahant Suresh Das and Ors

Civil Appeal No 10866-10867 of 2010

Facts of the Case

The suit was filed by a next friend on behalf of the deity BhagwanShri Ram Virajman. The lawsuit was instituted in the year 1989, for the declaration of title of the disputed land and also to restrain the Sunni Waqf Board from interfering or raising objection with regards to the construction of the temple. There were three main parties to the dispute. The 1st party, NirmohiAkhara demanded to construct a Ram temple on disputed land and also wanted the management rights of the land. The 2nd party, Hindu Mahasabha demanded the entire land and so that no part of the land is given to the other two parties. The 3rd party, Sunni Waqf Board requested that the Babri Masjid must be restored to its earlier form.  In the year 2010, the Allahabad High Court had held that the disputed land should be divided equally between the above three Litigants. This case is related to the ownership of the land. It is to be decided that, whether a temple should be constructed at the place where the Babri Masjid was in existence.

Issues

  1. Whether the claim made by the Hindu’s is time-barred?
  2. The disputed land belongs to whom?

Held

The High Court of Allahabad held that the suit filed on behalf of a deity is not barred by the limitation period whereas the two suits filed by NirmohiAkhara and Sunni Waqf Board were held to be time-barred. The Court held that the entire 2.77 acres of disputed land must be handed over for the construction of Ram Mandir. An alternate plot of 5 Acres was allotted to the Sunni Waqf Board for the construction of Mosque. It was directed to form a board of trustees that must be set up for the construction of the temple. Also, the Central Government was directed to formulate a scheme in this regard within a period of 3 months.

2. Constitutional Validity of IBC

Swiss Ribbons Private Limited and Another V/s Union of India and Others

Writ Petition (Civil) No. 99 of 2018

Facts of the Case

There was a petition filed stating that the provisions mentioned under the Insolvency and Bankruptcy Act 2016 violates the Constitution of India. It was also contended that the Act discriminates between the operational creditor and financial creditor. As compared to the financial creditor, the provisions of the act were unfair to the operational creditor. Section 12A states that there is a requirement of 90% voting share of the committee of creditors in order to allow withdrawal of a corporate debtor from the Corporate Insolvency Resolution Process (CIRP). It was argued that section 53 of IBC is violative of Article 14 of the Constitution as it is detrimental to the interest of the operational creditors as they rank below all the other creditors.

Issue

Whether the provisions mentioned under IBC violates the Constitution of India?

Held

On 25th January 2019, the Court held that there is a clear difference between the financial creditor and the operational creditor. The court explained the difference between the terms after referring to the IBC. The court held that the provisions mentioned under section 12A of IBC are valid. The Court compared the extent of the power of Resolution professional with that of a Liquidator and thus observed that the Resolution Professional exercise administrative powers and does not enjoy quasi-judicial powers. The Court held that the ‘related person’ should be a person who is connected to the defaulting organization, in order to restrain them from participating in the resolution process under section 29A. It was held that section 53 of the IBC does not violate Article 14 of the Constitution. Hence, the Court held that the provision mentioned under the IBC does not violate the Constitution of India.

3. Treating Homebuyers as Financial Creditors

Pioneer Urban Land and Infrastructure Limited and Anr.V/s Union of India and Ors.

Writ Petition (Civil) No. 43/2019

Facts of the Case

In 2018, the Insolvency and Bankruptcy Code (IBC) was amended in order to treat homebuyers as financial creditors. Firstly, the challenge was related to the explanation which was added to section 5(8)(f) of the IBC and after that many petitions were filed by the real estate agent stating that the provisions of the amended act are arbitrary in nature. The real estate companies were of the opinion that, there is a separate remedy for the homebuyers under the Real Estate (Regulation and Development) Act 2016 (RERA) for the Redressal of their grievances.

Issues

  1. Whether the amendments made under IBC violates Article 14 and 19(1)(g) of the Constitution of India?
  2. Whether homebuyers can be treated as financial creditors under IBC?

Held

On 9th August 2019, the Court held that the amendments which were made under IBC do not violate Article 14 and 19(1)(g) of the Constitution of India. It was observed by the Court that the amendments were made on the basis of the report of the Insolvency Law Committee. In the case of Chitra Sharma, the Court had given permission to the allottees of the Jaypee to participate in the meeting of Committee of Creditors. It was argued that the advance payment by the homebuyers for booking their flats could not be considered as financial lending and at the most, they could be considered as operational creditors. To this, the court gave a detailed explanation and held that the homebuyers can be treated as financial creditors. It was also argued that the unequal are getting equal treatment on which the court stated that the unequal are not being treated as equal. The Court stated that the RERA must be read harmoniously with the IBC, and in the event of a conflict between them, the IBC will prevail over RERA.

4. Appointment of Amicus Curiae

Anokhilal V/s State of Madhya Pradesh

Criminal Appeal Nos. 62-63/2014

Facts of the Case

Ramlal lodged a missing report of his daughter on 30th January 2013. She was nine years old and was missing since 6 pm. Anokhilal was his neighbour, and he had sent that girl to get a bidi from a Kirana shop, but she never returned back. An FIR was registered on the same day under sections 363 and 366 of the Indian Penal Code (IPC) against Anokhilal. On 1st February 2013, the body of the missing girl was found in an open field. Anokhilal was arrested on 4th February 2013 and on 13th February 2013; a charge-sheet was filed. On 19th February 2013, charges were framed under sections 302, 363, 366, 376(2)(f) and 377 of the IPC and under sections 4, 5 and 6 of Protection of Children from Sexual Offences Act, 2012 (POCSO).

Issues of the case

  1. Whether the appellant was given an extended real and meaningful assistance while granting free legal aid?
  2. Qualification of Lawyers for the appointment of Amicus Curiae or for representing accused in trial for the offences which are punishable with Life Imprisonment or the Death penalty?

Held

The Session Court imposed the death sentence and other sentences onAnokhilal. A Criminal Reference No. 4 of 2013 was registered with the High Court for the confirmation of the death sentence. Also, a criminal appeal no 748/2013 was preferred by Anokhilal for challenging his conviction. High Court upheld the penalties imposed by the Session Court. It was held by the Supreme Court that while granting free legal aid, the appellant was not given an extended real and meaningful assistance. On 18th December 2019, the Supreme Court set aside the order of conviction passed by the Session Court and High Court. Certain norms were laid down so that the infirmities would not be repeated again. One of the norms was that only the lawyers with minimum ten years of practice shall be considered to be appointed as Amicus Curiae or for representing accused in a trial where the offences are punishable with Life Imprisonment or a death penalty.

5. Liquor Consumption Case

Satvinder Singh and Ors. V/s State of Bihar

Criminal Appeal No. 951/2019

Facts of the Case

At Rajauli check-post in Bihar, the Appellants were found drunk inside a private vehicle. A charge-sheet was filed under section 53(a) of the Bihar Excise (Amendment) Act 2016. Section 53(a) states that any person who is found consuming liquor in a public place should be punished. An Appeal was filed in the Supreme Court against the order dated 16th February 2018 of the Patna High Court, as it dismissed the application filed under section 482 of Cr.P.C for setting aside the order dated 30th April 2016 by the Judicial Magistrate.

Issues

  1. Whether private vehicles are exempted from the definition of “public place” under the Bihar Excise Act 2016?
  2. Whether a person can be punished under Bihar laws for consuming alcohol outside Bihar?

Held

A public place is defined under section 2(17A) of the Bihar Excise (Amendment) Act. The Keyword under this definition is ‘access’. If any person has access to such a place, then it will be considered as a public place. Section 2 (53) of the Bihar Prohibition and Excise Act 2016 includes both public and private means of transport. In the present case, the Supreme Court held that a private vehicle is not exempted from the definition of a public place. If there is the consumption of liquor in a private vehicle, which is in public place, then it will be considered as an offence under the prohibition laws in Bihar. It was also held that if a person is found drunk in Bihar, then he can be punished under Bihar law irrespective of the fact that, whether he had consumed liquor outside the state. An appeal was dismissed as the issue whether they had consumed liquor within Bihar or not is a question of fact, and this cannot be decided by an appeal which is from the proceeding under section 482 of Cr.P.C.

6. INX  Media case

P. Chidambaram V/s Directorate Of Enforcement

Criminal Appellate Jurisdiction

Criminal Appeal No.1831/2019

(Arising out of S.L.P.(Criminal) No.10493 of 2019 )

Facts of the Case

In 2017, when the CBI had filed a complaint against the India International Exchange (INX) media for violating the Foreign Investment Promotion Board (FIPB) approval given to the company and receiving overseas funds to the sum of Rs 305 crores. The Finance minister Palaniappan Chidambaram and his son ( Karti  Chidambaram)  were involved in the INX Media and money laundering case. His son is the main accused, and he had received bribes from the company. When his father was the finance minister, he only gave the clearance to him for Foreign Direct Investment (FDI) and evaded punitive measures for not having the necessary approvals from the Foreign Investment Promotion Board. In 2018, the Enforcement Directorate(ED) lodged a related money-laundering case.

IndraniMukerjea and her husband (Peter Mukherjea), are co-founders of INX media.

Issue

Whether the finance minister misused his position?

Held

Delhi High court had allowed IndraniMukerjea, who is a prime accused in the murder of her daughter Sheena Bora, to turn approver in the INX case and Karti Chidambaram was arrested by CBI. The court sends him to one-day police custody. The High Court grants interim protection from arrest to P Chidambaram. The court had rejected a bail appeal filed by P Chidambaram.

The Supreme Court ordered that the Finance minister was ignoring the ‘serious illegalities’ committed by INX media by abusing their official position. The court asked Karti Chidambaram to appear before the CBI on 23rd August. Later, the court had ordered that an anticipatory bail granted to former Union Finance Minister P Chidambaram in the INX Media money laundering case.

7. Nirbhaya Case

Mukesh and Anr V/s State For NCT of Delhi & Ors

Criminal Appeal No. 607-608 of 2017

(Arising out of S.L.P (Criminal) No. 3119-3120 of 2014

Facts of the Case

In Delhi, a 23-year-old paramedic student was raped and assaulted by six men in a moving bus on the night of 16th December 2012. She, as a victim, was later named Nirbhaya by the general public. On 29th December, she died at Mount Elizabeth Hospital. The six (6) accused were arrested by the Delhi police. Out of this six accused, one was a minor, and the other one had committed suicide in Tihar Jail.     

Issues

  1. Why didn’t the Minor get capital punishment?
  2. Delhi court issues death/black warrant it, is it valid?

Held

In September 2013, the Delhi court ordered capital punishment for all the accused. The death warrant is a part of the Code of Criminal Procedure, which lists the time and place of execution. 

On 9th July 2018, the three convicts had filed a review plea to the court, but the Supreme Court dismissed the review plea, directing that according to Article 137 of the constitution, there are no grounds which have been created to review 2017 judgment.  The court held that in this case, one of the six accused, Ram Singh had committed suicide in the Tihar Jail and one accused was a minor at the time of the commission of the offence and was therefore sent to a reform facility and was released after three years. The court ordered that the four accused will be hung on 22nd January (the date has been further postponed) at 7 am in Tihar Jail.

On December 18, 2019, the Supreme Court of India dismissed the plea filed by Akshay Kumar Singh one of the four convicts of nirbhaya gang rape case. The plea was dismissed as there were no grounds left to review the petition of 2017 verdict again and all the elements of the case have already been covered in the main judgement. However, advocate AP Singh, appearing for Akshay Kumar Singh has asked the court to give three week time to file the mercy petition before the President. 

8. Sabarimala Case

Indian Young Lawyers Association and Ors. V/s The State of Kerala and Ors.

Writ Petition (Civil) No. 373 of 2006

KantaruRajeevaru V/s Indian Young Lawyers Association and Ors.

Review Petition (Civil) No. 3358/2018

Facts of the Case

The Indian Young Lawyers Association filed a PIL against the restriction on the entry of women who are of menstruating age, inside the temple. Rule 3 (b) of the Kerala Hindu Places of Worship (Authorization to Entry) Rules 1956, states the exception of the entry of women who are between the age of 10-50 years to Sabarimala temple based on the celibate nature of the deity. The issue relating to the restriction of women in worship places is not only limited to Sabarimala but also in the cases of Muslim women entering into a Durgah/Mosque and even to the Parsi women who have married to Non-Parsi entering into the holy fireplace of an Agyari.

Issues

  1. Whether the Kerala Hindu Places of Worship (Authorization to Entry) Rules 1956, violates the Constitution of India?
  2. Whether there was any stay on the Supreme Court order dated 28th September 2018?

Held

On 28th September 2018, the Court held that there should be no ban on the entry of the women inside the Sabarimala temple. It struck down the Kerala Hindu Places of Worship (Authorization of Entry) Rules 1956 on the grounds as being violative of Articles 15,25,26 of the Constitution of India. There were several Review petitions filed before the court. There were many questions related to the essential religious practices. Hence on 14th November 2019, the Supreme Court decided to keep the review petitions pending until a larger bench determines such questions. The order dated 14th November 2019 is silent on any stay on the order which was passed on 28th September 2018. The court believed that the decision by a larger bench would answer all the issues which are relating to the rights mentioned under Articles 25 & 26.

9. Striking down of Section 87 of Arbitration and Conciliation Act 1996

Hindustan Construction Company Limited and Anr V/s Union of India and Ors.

Writ Petition (Civil) No. 1074/2019

Facts of the Case

A set of writ petitions were filed by the Hindustan Construction Company Limited and others challenging the Constitutional validity of Section 87 of the Arbitration and Conciliation Act 1996, as it was inserted by the Parliament through section 13 of the Arbitration and Conciliation (Amendment) Act 2019. The provisions of Section 87 provides for an automatic stay on an arbitral award as soon as it is challenged before the court. Application of Section 87 would result in the delay in disposing of the arbitration proceedings. It would also defeat the objects of the Arbitration and Conciliation Act 1996, as it leads to an increase in the interference of courts in arbitration cases. In BCCI V/s Kochi Cricket Private Limited, the Supreme Court held that the application of the automatic stay is prospective in nature. The provisions mentioned under section 87 were against the judgement of Kochi Cricket Private Limited.

Issue

Whether the provision mentioned under section 87 of the Arbitration and Conciliation Act, 1996 violates the Constitution of India?

Held

Supreme Court held that the provisions mentioned under section 87 of the Arbitration and Conciliation Act 1996 is being violative of Article 14 of the Constitution of India and it was held to be arbitrary in nature. The court observed that the restoration of the provision relating to the automatic stay of an arbitral award would result into insolvency of the arbitral award holders as the money which they were about to receive in future might get blocked. Hence, the Supreme Court struck down Section 87 of the Arbitration and Conciliation Act 1996, which was inserted by the Parliament through the Arbitration and Conciliation (Amendment) Act 2019.

10. The Police officer cannot attach immovable property under section 102 of the Criminal Procedure Code

Nevada Properties Private Limited Through its directors V/s State of Maharashtra and Another

Criminal Appeal No. 1481/2019

Arising out of Special Leave Petition (Criminal) No. 1513/2011

Facts of the Case

Nevada Properties Private Limited had filed a criminal appeal arising out of special leave petition. This appeal arises from the order of the Bombay High Court dated 29th November 2010, wherein it was stated that under section 102 of the criminal procedure code, the expression “any property” does not include immovable property. The majority view holds that a police officer during his investigation cannot take custody of an immovable property whereas the minority believed that the police officer has the power to attach/seize any property, i.e. both movable and immovable property. For deciding this case, section 102 of the criminal procedure code has been taken into consideration. The provisions mentioned under section 102 of the criminal procedure code deals with the power of the police officer to seize any property which may have been alleged or suspected to be stolen or which may have been found under such circumstances which create suspicion of the commission of an offence.

Issue

Whether the expression ‘any property’ mentioned under section 102 of the Criminal procedure code includes immovable property?

Held

On 24th September 2019, the Court held that the expression ‘any property’ mentioned under section 102 of the criminal procedure code does not include immovable property. The power to attach/seize as discussed under section 102of the criminal procedure code is to be limited only to the movable property. It is observed by the court that if there is an inclusion of immovable property under section 102 of the criminal procedure code, then it may lead to a chaotic situation as the police officers would be holding power to seize immovable property.

National Medical Commission Act 2019

The National Medical Commission Act (NMC) 2019 has come into force on 8th August 2019. The main aim of this Act is to provide a high quality of medical education, adequate availability of medical professional, equitable and universal healthcare facilities and to establish an effective grievance redressal system. Earlier the Medical Council of India (MCI) was held responsible for regulating medical education and practice. The NMC Act 2019 has repealed the Indian Medical Council Act 1956 and has replaced the MCI with the NMC. There are 8 chapters and 1 Schedule mentioned under the NMC Act 2019. Under NMC, the states shall establish their respective State Medical Councils within a period of 3 years.

Composition of NMC members

Chapter II of the NMC Act deals with the provisions relating to the constitution of the NMC. The NMC consist of 25 members. The members of the NMC will be appointed by the Central Government based on the recommendation of a committee.

Following members shall be included:-

  • A chairperson (who must be a senior medical practitioner and an academic with the experience of at least 20 years).
  • Ten ex-officio members (which will include the director-general of Indian Council of Medical Research, director of one of the AIIMS and the presidents of under-graduate and postgraduate medical education boards).
  • Fourteen part-time members (which will include the nominees of the states and union territories and experts from the field of law, management, medical ethics, etc.).

Functions of the NMC

The Functions of NMC are as follows:-

  • To lay down the policies for maintaining high quality and high standards in medical education.
  • To lay down the policies for the regulation of medical institutions, medical researches and medical professionals.
  • Assess the requirements in healthcare (including human resources for health and healthcare infrastructure).
  • To promote, co-ordinate and frame guidelines for the proper functioning of Autonomous Boards.
  • Any other function as mentioned under the Act

National Examination

Chapter IV of the NMC Act deals with the National Examination. There will be a uniform National Eligibility-cum-Entrance Test for the admission to undergraduate and postgraduate medical education. NMC has also introduced a standard final year undergraduate examination called the National Exit Test. The National Exit Test will serve multiple purposes such as to grant the license to practice medicine, as an entrance exam for the admission in postgraduate course and also a screening test for foreign medical graduates.

Autonomous Boards

Chapter V of the NMC Act deals with the provisions relating to the constitution of Autonomous Boards. There are four regulatory bodies that are set up under the NMC Act, and they are as follows:- the Under-Graduate Medical Education Board, the Post-Graduate Medical Education Board, the Medical Assessment and Rating Board and the Ethics and Medical Registration Board. The Ethics and Medical Registration Board will maintain a national register of all the licensed medical practitioners and the community health providers in the country.The NMC Act also states the provision for granting a limited license to community health providers.

Complaints Redressal Commission

The complaints relating to the professional/ethical misconduct against the registered medical practitioner shall be made to the State Medical Council. Before taking any action against the medical practitioner (including the imposition of fine), the State Medical Council shall give an opportunity of the hearing to the concerned medical practitioner or professional. An appeal can be filed by the medical practitioner or professional to the Ethics and Medical Registration Board against the order of the State Medical Council.The NMC act as an appellate authority. If the medical practitioner or professional is aggrieved by order of the Ethics and Medical Registration Board, then an appeal can be filed to the NMC.

Effects of NMC

Under NMC, the term Community Health Provider has been defined vaguely as “a person who is connected with modern scientific medical profession” and is empowering the commission to grant limited license to practice medicine at mid-level. Community Health Provider will allow people to practice medicine without having sufficient medical knowledge and background. Under MCI, there was no requirement of giving test (National Exit Test) in order to obtain a license. The only requirement was to get registered with a State Medical Council to practice. Under NMC, the commission will frame guidelines for determination of fees and all other charges in respect of only 50% of the seats in private medical institutions and deemed to be universities. Earlier under MCI, 85% of the seats were decided by the State Government.

Conclusion

The MCI consist of 70% of the elected representatives, whereas the NMC consist of only 20% of the elected representatives. Under MCI, the action against the president of MCI could be taken only on the directions of the court whereas, under NMC, the Central Government has the power to remove the chairperson or any other member of the NMC. Earlier the decisions of the MCI were not binding on the State Medical Council whereas now under NMC, the ethics board has the power to exercise the jurisdiction relating to the compliance of the ethical issues over the State Medical Council. NMC is thus considered as a government-controlled regulatory body.

Money Laundering

Over the decades, money laundering has become a prevalent issue. Both government and financial institutions are constantly looking for new ways to prevent money laundering. It is the process by which criminally derived property may be laundered are extensive. Money laundering refers to convert the illegally earned money into legitimate money. It is the way to hide the illegally acquired money. The government does not receive any tax on the money earned due to money laundering as they do not have any accounting for this.

In money laundering, money is invested in such a way that even the investigating agencies can’t trace the primary source of wealth. The person who manipulates the money is called as a launderer.

Indian laws governing money laundering

Prevention of Money-laundering Act (PMLA), 2002: Initially, the money laundering act was enacted in the year 2002, but it has been amended in the year 2005, 2009 and 2012.

The Money laundering act is enacted for the following reasons:

  • To prevent the activity of money laundering.
  • To impound and seize the property obtained from money laundering.
  • To deal with the issues related to money laundering in India.
  • The act has put concealment of funds, acquisition of a possession, use of proceeds of crime and possession of money in the criminal list.
  • SEBI, RBI and IRDA (Insurance Regulatory and Development Authority) are also brought under the purview of the PMLA.
  • The provision of this act shall also apply to all financial institutions like banks, mutual funds, insurance companies and their other financial intermediaries.
  • The money of a criminal may be laundered without the assistance of the financial sector, but the reality is that billions of dollars of criminally derived money are mainly laundered through financial institutions.

Anti - Money Laundering:

The term anti-money laundering refers to the policies and regulations that force financial institution to monitor their clients to prevent money laundering and corruption. The Anti-money laundering laws entered the global arena after the Financial Action Task Force (FATF) was created. After putting the framework, FATF began to systematically identify what countries did not have proper legislation in relation to money laundering. The financial institutions play an essential role in the financial world. The employees of the financial institutions must be adequately trained to prevent and handle the money laundering. Every bank employee is trained in anti-money laundering, and they are legally bound to report any suspicious activity.

Stages of Money Laundering:

The money laundering has been described in three distinct phases as follows:

  • Placement: It is the stage at which criminally derived funds are placed in the financial system and economy.
  • Layering: Layering is the substantive stage of the process in which the property is washed, and its ownership and source are disguised.
  • Integration: It is the final stage where the laundered property is re-introduced in the legitimate economy.

Penalties for Money Laundering:

The PMLAprescribed under section 4 that any person found guilty of Money laundering shall be punishable with rigorous imprisonment from 3 - 7 years and a penalty of Rs 5 lakh.

Also, any offence under the Narcotic Drugs and Psychotropic Substances Act, 1985, the maximum punishment may extend to 10 years.

The PMLA gives vast powers to the Director or any other officer, not below the rank of any other officer not below the rank of Dy. Director to attach the property.

The authority may by the order attach the property for a period not exceeding 180 days from the date of order.

Hindu Undivided Family (HUF)

The HUF is an Indian form of business organization that is primarily used for the Joint Hindu Family Business's, governed by the Hindu Law.

It is a body consisting of people descended from the same ancestral head, including the wives and daughters of the male descendants who live together.

The size of the HUF is continuously fluctuating. It increases with the birth of a member in the family and decreases on the death of a member of the family. For the formation of the HUF, one does not require to submit any documents, the admission of the member of the HUF is by birth.

Hence, even minors will be a part of the HUF.

The essentials of HUF are:

  • Hindu, Jains, Sikhs and Buddhists shall be considered Hindus for the purpose of this definition.
  • There should be a family, i.e. a group of people more than one.
  • The family should be undivided, i.e. living jointly and having a sense of commonness among themselves.
  • Lastly, there must be some assets or ancestral property that they have inherited or will inherit.

Who is a Karta?

The eldest member of the family will be the head of the Joint Family. He is known as the 'Karta', and he is the main person responsible for the business and finances of the family. At the death of  Karta, the next eldest member shall become the Karta of the HUF.

Who is a Coparcener?

The Hindu Coparcenary is a narrower body within the HUF.  These are the individuals (known as the 'Coparcener') who acquire an interest in the joint family property by their birth.

Advantages and Disadvantages of HUF

Advantages:

  • Several exemptions can be claimed by the HUF in its income tax returns. A HUF is taxed at the same rate as an individual.
  • An adopted child shall also become a member of the HUF.
  • The joint family has a lot of scope of disagreements and conflicts due to a difference in opinion, but since the Karta has the ultimate and absolute power, there shall be effective management.
  • The existence of HUF is perpetual. The death of the Karta will not affect the workings of the HUF as the next eldest member will resume the position of the Karta.
  • There is a constant balance between the powers and liabilities under the HUF. The members and the coparceners do not have control over the management of the HUF, and hence, their liability is limited only to their share in the property. The Karta has total control over the management and therefore is entirely liable for the HUF businesses.
  • The trust amongst members ensures overall cooperation since all the members of the HUF are relatives and have a certain sense of loyalty towards each other.

Disadvantages:

  • Since the HUF does not accept members other than family members as part of the HUF, it is challenging to get additional capital and therefore, the scope of the business is hampered.
  • Due to the unlimited liability faced by the Karta, he may not be able to take challenging and risky business decisions in favour of the HUF.
  • The Karta may be wrongfully held liable for the actions of the other members of the HUF.
  • Conflicts may arise in the family due to the dominance of the Karta.
  • The Karta may not possibly be the most qualified person to take on the business of the HUF.
  • Since every member has some right on every asset of the family, the common property of the HUF cannot be sold without the consent of every member involved. Hence, the partition of the HUF is even more complicated than opening a HUF.

Currently, joint families are losing their importance as there are several cases wherein members of the HUF are fighting over property.

Child Labour

"Child Labour" is defined as work that robs children of their childhood, their dignity, their potential, and which is detrimental to physical and mental development.

It refers to work which is mentally, physically, socially or morally dangerous and harmful to children; and hinders with a child's ability to attend and participate in school fully by compelling them to leave school; or requiring them to attempt to combine school attendance with excessively long and heavy work.

According to 2011 Census, the child population in India between the age group (5-14) years is 259.6 million out of these, 10.1 million (3.9% of total child population) are either working as 'main worker' or as 'marginal worker'. Moreover, around 42.7 million children in India are out of school. Nevertheless, the positive news is that child labour incidents have decreased in India by 2.6 million between the year 2001 and 2011. This decline was more visible in rural areas, while the number of child workers has increased in urban areas, indicating the growing demand for child workers in menial jobs. Child labour has different ramifications in both rural and urban India.

Child labour deters children from gaining the skills and education they need to have opportunities for proper work when adult. Inequality, lack of education, slow demographic shift, traditions and cultural expectations all contribute to the continuity of the child labour in India. The ILO believes that stable economic growth, respect for labour standards, social protection, decent work, universal education, understanding the needs and rights of the children — together with help can tackle the root causes of child labour.

The enforcement of the Child Labour Amendment (Prohibition and Regulation) Act, 2016 and The Right to Education Act 2009 have made way for ratification of ILO's two core conventions

1. Convention No 138 which stipulates that the minimum age at which children can start work shouldn't be below the compulsory schooling age and in any case not less than 15 years; with a possible exception for developing countries.

2. Convention No. 182 prohibits hazardous work which is likely to endanger children's physical and mental health. Its objective is the immediate elimination of the worst forms of child labour for children below 18 years.

India has now ratified six out of eight core ILO conventions, with the ratification of the two core ILO conventions. Four other conventions were related to equal remuneration, the abolition of forced labour,  and no discrimination based on gender in employment and occupation.

The Central government through Child labour (Prohibition and Prevention) Amendment Act, 2016 has banned employment of child labour below 14 years age in all occupations and processes. It further prohibits the employment of adolescents (14-18 years of age) in hazardous occupations. However, children are allowed to "help" families in running their domestic enterprises only after school hours.

As a conclusion, children are expected to be enjoying their childhood and should be allowed to educate themselves at early ages. Government has introduced many schemes to reduce child labour, like providing free education and taking severe actions against those who promote child labour. Child labour happens in all walks from within families to factories. Thus, the mindset of the society should be changed to emphasize that children must go to school and adults should be employed. The children should be encouraged to speak up for themselves and say no to child labour. After all, what kind of citizens do we expect them to be after such types of abuse? We need to think about it. Children are the assets of the nation. When they fail, the country fails.

Endorsement under Negotiable Instrument Act

When the holder or the maker of negotiable instrument signs on the face, back or on the slip of paper annexed to it, or signs for the same purpose a stamped paper intends to be completed as an instrument which is negotiable, the maker or the holder is said to endorse the instrument. It can be endorsed by the Drawer, Maker, Holder or Payee. A person making endorsement is called ‘Endorser’ and the person to whom endorsement is made called ‘Endorsee’.

 

The endorsement is the mode of negotiating the Negotiable Instrument. The word endorsement is derived from the Latin term ‘en’ means ‘upon’ and ‘dorsum’, ‘the back’. The endorsement may be even made on the slip of the paper attached to it. The attached slip of paper is called as ‘Allonge’.

 

Essentials of a valid Endorsement:

  • The Endorsement should be written on the instrument itself and must be signed by the endorser. The signature of the endorser is sufficient. The endorsement written on an allonge is considered as written on the instrument.
  • The holder or maker must sign it, a stranger can not endorse it.
  • The endorsement must be on the entire instrument. A partial endorsement does not operate as a negotiation of the instrument. An endorsement which purports to transfer the endorsee a part of the payable amount or which implies to transfer the instrument to two or more endorsees exclusively is known as a partial endorsement.
  • A negotiable instrument payable to two or more payees or endorsees who are not partners, all must endorse the instrument unless the one endorsee has an authority to endorse for others.
  • If the payee or endorsee has wrongly designated or has made a mistake in his name, he should sign in the same way as in instrument.
  • When two or more endorsements are made on an instrument, and each is deemed to have been made in the order that appears on the instrument until the contrary is provided.
  • An endorsement may be made in particular or blank. It may also be restrictive.
  • The signature should be in ink and not by pencil or rubber stamp.
  • No particular words are necessary to develop a contractual relationship between endorser and endorsee.

 

Kinds of Endorsement

According to the Negotiable Instrument Act, 1881 endorsement can be of the following types:

 

The endorsement in blank or general endorsement:

In case of blank endorsement, the payee or endorser signs his name, the payee or endorser does not specify an endorsee.

 

Full or Special Endorsement:

When the payee or endorser specifies the name of the person to whom or to whose order the instrument is paid, this type of endorsement is called as a full or special endorsement.

 

Restrictive Endorsement:

When an endorsement is restricted or prohibited for further negotiation of a negotiable instrument is known as restrictive Endorsement. The endorsement may be by the express words, restrict or exclude the right to pay or negotiate the endorsee or to receive its contents for the endorser or for some other specified person.

 

Partial Endorsement:

When only a part of the amount of instrument is endorsed, then it is known as a partial endorsement. An endorsement which transfers the instrument to two or more endorsees separately is not valid.

 

Conditional Endorsement:

If the endorser of a negotiable instrument makes his liability or the right of endorsee to receive the due amount, by express words in the endorsement, dependent on happening of the specific event, although such event may never happen, this type of endorsement is called as a conditional endorsement.

He may make his liability on the conditional happening of a particular event. He will not be liable to that particular holder if the event specified does not take place to the instrument even before the particular event takes place.

 

Unconditional Endorsement:

An unconditional endorsement followed by its unconditional delivery has the effect of transferring the property to the endorsee. The endorsee has the right to negotiate the instrument further to anyone he prefers, or he wants to transfer.

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