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Intestate Succession
  • By: admin
  • Date: 07 Apr 2020
  • Wills
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As the name suggests, a will is a declaration that expresses the desires or wants of a person with relation to his property and estate and also provides for its transfer upon his/her death. In ordinary language, succession means inheritance. When a person dies, inheritance or succession follows.

 

Hindu Succession Act

The Hindu Succession Act is the act which states the rules and procedures relating to inheritance applicable to Hindus, Sikhs, Jains, and Buddhists etc. Majority of India follows the Hindu Succession Act, whereas for Muslims Sharia law is prevalent in India. The Indian Succession Act which covers Christians as well as those people who are not covered under the Hindu Succession Act and Sharia Law.

Succession is a very complex process in a diverse and dynamic country like India. There are two types of Succession:

  1. Testamentary successionIt is a type of succession in which the deceased had executed a will, and the property is divided as per the execution of the will.
  2. Intestate succession: In India, as per the provisions of Indian Succession Act, 1925 if one dies without writing a valid will, he is said to be died intestate and his property will be distributed as per the provisions of the succession law applicable to him.

 

Intestate Succession

A person is said to die intestate when he/she dies without making a will that means without disposing off his/her property to the heirs.  Sometimes, disposition under the will is also not possible on account of the illegal bequest or invalid bequest.  Intestacy can either be total or partial.

Under the circumstances, when a person dies intestate, the deceased’s assets are distributed among the heirs as per the provisions of the Indian Succession Act. The distribution or vesting of the assets takes place according to the relevant personal laws. There are situations, when there is more than one heir, thus giving rise to complexities and difficulties.

 

Intestate Succession among Hindus                                                                                                                    

The laws relating to intestate succession among Hindus was amended and consolidated by the Hindu Succession Act passed in the year 1956. The law is applied to all the persons who practise religions like Hinduism, Jainism, Sikhism, and Buddhism. In the year, 2005, the act was further amended. The act contains provisions related to the situation where an individual dies without making a will.

 

Below mentioned are the claims that can be made when a male dies without making a will.

1st Claimant: They are known as the Class I legal heir, which includes the mother, wife and children of the deceased. All of them have equal rights over the assets. In case, any child of the deceased is no more than the property is given to the child and wife of the deceased child.

2nd Claimant: When there is no one available from class I legal heirs, then the class II legal heir comes into the picture. They are father, sibling, living children’s grandchildren, sibling’s children of the deceased.

3rd Claimant: When class I legal heirs and class II legal heirs are absent then the property can be claimed by the Agnates. They are defined as the distant blood relatives of father’s side, also known as Male Lineage.

4th Claimant: When all the three levels of the class heir are absent, then the property is given to the Cognates. Cognates are the ones who are blood relatives of the mother’s side, also known as Female Lineage.

 

Below mentioned are the claims that can be made when a female dies without making a will.

1st Claimants: The first claimants of the deceased female are the children and the husband. They can divide the property among them equally.

2nd Claimants: When the class I heirs are not available; the claim is made by the heirs of the husband.

3rd Claimants: In the absence of 1st and 2nd claimants, the mother and father of the deceased can make a claim.

4th Claimants: There are chances when 3rd claimants are not there to claim property, and therefore the heir of the father gets the property.

5th Claimants: At the last, to opt for the property of the deceased, the claim is given to the heir of the mother.

There are circumstances when an intestate dies, and no claimants are available. In such a situation, the property is devolved to the State Government by following the procedure of the law.

 

Where there’s Covid, there’s Will

Due to the recent outbreak of Covid-19 across the country and the lockdown imposed by the Central Government, it is noticed that the number of request for drafting wills had increased tremendously. The older people and rich people have started thinking to execute their wills in the amid fear of Coronavirus. People have started considering that dying after executing a will is far better than dying intestate, for the sake of the family as well as the society.

 

Conclusion

In ancient times, executing a will was considered a taboo in India. However, as the time has passed, people have realised the importance and need of executing a will as it not only saves a lot of time while dividing the property but also helps to divide the property without any conflicts between the family, it is recommended that when a person wants to execute his/her will, they should always consult a legal person whom they trust. Legal advice in such a matter is essential. Writing a will, once considered a somewhat morbid exercise, is now a must-do for India’s rich as well as the middle class.

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Corporate India's Covid-19 Action Plan: How to Balance Data Protection with Emergency Response

By: admin Covid-19 04 Apr 2020

On March 11, 2020, the World Health Organization (WHO) declared COVID-19 as a pandemic, effectively urging countries to take all necessary measures to detect, test, isolate treat people in order to avoid handful of cases resulting into clusters and community transmissions that further stress capacity of global public health institutions. In case of COVID-19, the pandemic declaration is reflective of its spread, unlike intensity. Both prior to and post issuance of the WHO directive, the Indian Government, through the Ministry of Health and Family Welfare, has notified multiple travel, immigration, employment and public health-related advisories to proactively contain and delay onset of the outbreak in India.

Some of these measures include all except specific visas to India to be suspended until April 15, 2020, requiring persons having visited Italy/South Korea to submit negative status COVID-19 declarations from recognized laboratories of such countries as a condition for entry into India, mandatory medically supervised quarantine for a minimum period of 14 days for persons having visited high-risk countries, home quarantine for all travellers entering India, to name a few. The State and municipal authorities have separately issued travel and public health advisories directed at private citizens, organizations and public administration bodies.

The COVID-19 pandemic has resulted in unprecedented disruption to civic and business activities across the world, and it is fair to assume that the evolving situation will continue to demand more resources, mobilization, focus and expense in times to come.

Like other countries, the responsibility of responding to the COVID-19 crisis is largely affixed on immigration and public health professionals in India, however managing a novel crisis of such magnitude surely mandates an organized and consistent response from all capable stakeholders. It’s therefore good to see corporate organizations extending proactive health, safety, accessibility, employment protection and continuity measures to protect their employees and partners from possible exposure. Their objective is two-fold, one – depending on the industry and nature of employees in question, to comply with their statutory obligations relating to providing a safe working environment to all employees; and two – to respond, contain and delay a public health crisis with the means at their disposal, ensure business continuity in view of the expanding nature of the disease, reduce chances of community transmission in their offices in order to avoid a complete shutdown of business activities on a long-term basis.

The initial step of any corporate COVID-19 action plan will be to collect and monitor information pertaining to employees and partners, including their travel history (both official and personal), symptoms including of self and of family members, interaction with suspected or confirmed COVID-19 persons, as well as medical information. It’s fair to assume that most organizations are unlikely to have pre-existing disaster management plans that are specific to prevention of infectious diseases such as COVID-19, that has resulted in companies collecting and asking for information not anticipated either in policies or consent frameworks established till date. This practice is of concern, as it is equally important for employers to understand the need to balance emergency response with protection of privacy of their employees, workers, consultants or extended workforce. It is interesting to see how data protection principles are implemented in practice in times of emergencies, as it is then naturally desirable to find a consent-based or legitimate purpose approach towards personal data to be an academic objective – good to have, but who can really implement this? And if it this endeavour is even proportionate considering the risks involved in taking time to implement a program that is legally compliant? Practical approach is key, but how to implement that is often fraught with uncertainty.

Current legal position in India

The current data protection law (IT Act) classifies an employee’s physiological and / or health information, medical records as sensitive personal data (SPDI), which is considered sensitive and therefore worthy of more protective safeguards. Information such as travel history of self and family members, exposure to suspected persons, may be classifiable as personal data (PI) which is protected but with lesser restrictions.

IT Act – SPDI and PI

The law entails that any SPDI collected, processed or stored either for providing a service or under a lawful contract or otherwise must be described under a privacy policy, informed consent should be obtained prior to collection of the SPDI, purpose of usage of the SPDI should be disclosed in advance, and the SPDI collected should be stored only for the period necessary to serve the specified purpose. Organizations are mandated to implement reasonable security practices and procedures such as ISO 27001 for that are commensurate with nature of its business. Collection, processing and storage of PI can be done provided a privacy policy is put in place.

All employers can therefore collect health information/records or travel history of an employee by stating its intended purpose under a privacy policy. For collection of SPDI, additional consent requirements are to be met, and the SPDI can be collected only in connection with providing a service (say, arranging an insurance provider for health coverage) or under terms of a lawful contract. Organizations are not liable for accuracy of the information submitted by the employees, if it is requested to transfer such information to Government agencies. Employees are legally entitled to refuse consent, though this right seems to be available only when an employer is collecting SPDI for providing a service.

COVID-19 data protection practices in other countries

EU General Data Protection Regulation (EUGDPR) is more nuanced and allows organizations to collect and process information on grounds of legitimate interest, or to comply with their employer or legal obligations, as applicable in each country. Despite this enablement, data protection authorities across Europe have asked employers to exercise caution in implementing their COVID-19 action plans and urged them to consider proportionality even in face of a pandemic situation. Some examples are:

– The Italian Privacy Authority on March 02, 2020 has asked employers not to collect employee health information or ask them about contact with suspected symptom persons in a systematic and generalized manner, and stated that such inquiries and checks should instead be conducted by civic and public health administration authorities.

– In France, the Data Protection Authority has reminded employers of their legal obligations under EUGDPR and French public health codes and clarified that COVID-19 action plans cannot require disclosure of medical and health information which goes beyond the management of suspected exposure, and infringe on privacy rights of employees and visitors. It has specifically stated that checking of body temperature and systematic daily processing of said data, asking employees /visitors to submit health declarations is not legally permissible. It has instead encouraged employers to educate employees, ask employees to undergo tests with public health authorities, and set up remote working facilities.

-The UK data protection authority, Information Commissioner’s Office (ICO) has taken a more pragmatic approach and assured employers that they are cognizant that in pressing times, usual governance and compliance frameworks could be relegated lesser priority, and that employers will not be penalized if they are prioritizing other areas to contain the outbreak amongst their employees, visitors and partners. ICO has however confirmed that this flexibility should not be construed by organizations to forego principles of proportionality, and only such information which is not excessive in the given circumstances should be collected and processed by employers.

Corporate India COVID-19 response

Companies are asking employees, visitors and contractors to share travel history (professional/personal) to high-risk countries, share travel history of family members to high-risk countries, share symptoms of self or family members, undergo mandatory health check-ups, and submit medical declarations. Travel history of self and family members is being correlated with symptoms for persons who have not visited high-risk countries by employers, for possible community transmissions. Persons with suspected or confirmed COVID-19 are asked to identify persons of contact, to assist employers to administer quarantine and hygiene measures. Employees are also asked to submit medical records for processing of leave, medical coverage, and remote working assistance. Employers have also set in place extensive hygiene measures and have encouraged employees with or without symptoms to work from home, discouraged travel plans or any large gatherings.

Areas of concern – data protection perspective

The above measures are helpful in containing community transmission and allowing businesses to address business continuity concerns, but employers are also unknowingly exposing themselves to legal risks by requesting for mass and constant information disclosures. For instance, many employers do not have privacy policies or consent frameworks that envisage collection of information on grounds of prevention of public health emergency, or community transmissions. Many nascent companies have not invested infrastructurally on security procedures relevant for processing and storage of medical records of their employees.

Collection of travel history, exposure to suspected or exposed persons

Travel history of employees, or whether they have and exposure to a suspected or confirmed COVID-19 person is classifiable as PI and can be obtained without consent. While is important for the same to be envisaged under the employer’s privacy policy, at a practical level, official travel data will anyways be visible to employers. If described under the privacy policy or with certain amendments to such policies, travel plans of employees and their family members (if proportionate to responding to the current crisis), any COVID-19 exposure details can be requested.

Collection of medical records or medical condition

Health data – namely, medical information, records, condition, information on exposure to suspected or confirmed COVID-19 persons if accompanied with symptoms is classifiable as SPDI and can be collected, processed or stored with prior consent of the employee/visitors. Some companies may have obtained such consents through employment contracts, code of conduct applicable to employees, but this is a good time to assess if additional information being collected and processed as part of COVID-19 response is legally obtainable through existing consent frameworks. If such consents are not in place, corporates should incorporate obtaining them in their action plan steps. Failure to do so can expose them to compensating persons affected by any negligence or improper handling of their SPDI. Some companies are also asking for health data / declarations from their partners, visitors, consultants etc., and consent requirements will equally apply to such relationships.

Other compliances

Maintenance of adequate security procedures such as ISO 27001 is mandatory for processing and storage of SPDI, and all organizations should assess if their security standards are equipped to handle SPDI particularly health data of various employees and visitors in a systematic manner for a prolonged period of time. The IT Rules also require organizations to store SPDI until the purpose intended has been achieved, upon which the information stored should be destroyed or scrubbed from security systems as per prescribed procedures. Even though principles of data minimization are more explicitly contemplated under the Personal Data Protection Bill, 2019 and not under the IT Act, it’s still advisable for organizations to collect and process data which is proportionate to the threat envisaged to their business structures, and the urge to initiate proactive measures that are more appropriately performed by civil or public health authorities should be curtailed. Data minimization standards will already be applicable to global organizations and should be equally implemented in India. Excessive data collection will ultimately be susceptible to cybersecurity threats, which in context of health data can have complicated outcomes for data subjects.

General Q&A’s for employers

Some general Q&A’s relevant for corporate India are given below. Many of the situations described below are fact-specific, rapidly evolving and will differ in each State. Employers are advised to seek specific counsel prior to implementing their

COVID-19 action plans.

Have employment and public health authorities issued specific guidance to employers? Any specific data protection guidance?

The Ministry of Health and Family Welfare has directed employers to arrange work from home for employees required to undergo home quarantine for minimum 14 days after returning from high-risk countries. Many Indian States such as Delhi, Punjab, Haryana, Karnataka, Orissa, Gujarat, Maharashtra have notified COVID-19 as an epidemic under the Epidemics Diseases Act, 1897 empowering State and district level authorities to undertake expansive measures to contain outbreak of the disease. So far, in context of employers, these notifications only prohibit organizations from sharing any misinformation regarding COVID-19, which in our view would mean sharing of inaccurate information on nature and spread of the disease, its symptoms etc. as that is best addressed by public health bodies who are qualified to dispense such information. Advisories for employers are emerging daily across States and municipalities and will need to be checked on a case to case basis. Karnataka being the IT hub of India has been particularly active in issuing advisories, and has recommended employers to avoid large gatherings, cancel meetings, conferences, and allow remote working facilities for all employees. There are news reports of Karnataka contemplating mandatory work for home for all offices.In Karnataka, all workers covered under ESI Act who are confirmed COVID-19 cases can now avail mandatory paid leave of 28 days from their respective employers by submitting medical certificate issued by ESI hospitals. All non-ESI covered employees can avail an equivalent leave from their employers under applicable provisions of the Karnataka shops and establishment act. In this case, employers will automatically be in receipt of medical records of confirmed COVID-19 employees and can rely on such information to implement quarantine measures and educate other employees to undergo testing at Government facilities.So far, employers have been advised to grant paid leave and implement remote work facilities and except for Karnataka,have not been specifically asked to obtain and store medical records of employees.

Do I need to respond to this crisis?

Legally, the severity of your response is at your discretion. Understandably, corporates across the world are responding actively to this crisis in interest of business continuity, and not necessary to tick a legal compliance. In India, some employment legislations such as the Factories Act, ESI Act require mandatory reporting of occupational diseases by employers but COVID-19 has not been notified under said laws. Public health notices issued by Government authorities such as Bureau of Immigration, Ministry of Health and Family Welfare are also directed at citizens, and not specifically at organizations. No specific data collection obligations have been imposed on employers, though they can be justified by employers in view of other employment laws.

What more can I do to enforce success of company’s quarantine measures?

Persons who have travel history to COVID-19 countries and exposure to suspected or confirmed COVID-19 person are mandatorily required to under medical screening at the nearest hospital, and such communication can be disseminated by employers for wider reach. Government has also encouraged employers to cancel conferences, and any non-essential travel (professional or personal).

Can employees refuse to share their travel history? Or whether they have interacted with any suspected or confirmed COVID-19 person?

No. Official travel history of an employee is employer information, so no specific request is required in this regard. Companies can validly ask employees to divulge personal travel plans, or exposure with suspected or confirmed COVID-19 persons (including family members) in the interest of providing a safe working environment for all employees and third parties visiting the workplace, and also to better inform other employees of exposure and / or quarantine measures. Exposure to suspected or confirmed COVID-19 person if not accompanied with symptoms is not yet a medical condition, hence no specific consent is required to collect such information. Employers can also access CCTV imaging to verify the trail of exposure of suspected employees in order to enforce their quarantine measures. Employers should at all times practice data minimization practices and destroy information which is irrelevant or no longer serving the purpose of COVID-19 action plans.

Can employers ask employees to share their medical condition or records, including whether they have COVID-19 specially when they are displaying symptoms at the workplace?

This is tricky, as technically Government authorities have directly asked citizens to undergo medical screening at hospitals if they have travel history to COVID-19 countries combined with exposure to suspected or confirmed COVID-19 persons. If

any citizen is found to be infected, his/her information is transmitted by the relevant hospital to the district-level health authorities. Private bodies have not been asked to collect such information.

Employers can support requests for collection of SPDI such as medical condition, records on following grounds:

– Employers need to receive medical certificate certifying COVID-19 status in order to grant paid leave to the employee. Karnataka has made this mandatory, other States will follow suit;

– Employers can argue that they need to know such information in interest of providing a safe working environment for all employees, and protect themselves from tortious claims of negligence from other infected employees;

– If employers have obtained prior consent for collection and processing of such SPDI in employment contracts or code of conduct.

If we have legitimate grounds for collection of SPDI, do we really need consent?

Yes, since Indian law does not expressly permit collection of SPDI on grounds of legitimate interest or legal compliance alone. If no prior consent has been obtained, employers should include them as part of their COVID-19 action plans.

Refusal from employees can be expected and should be handled firmly with sensitivity. Employees may be concerned about possible discrimination, leave with no pay, forced quarantine upon disclosure of such information, and employers should extend support in this regard. Having said the above, like global data protection regulators, Indian authorities are likely to be accommodating of governance gaps in some areas provided employers are able to exhibit pressing needs to act upon their emergency plans, without obtaining relevant consents. The gaps should be addressed immediately once the risk is mitigated.

Can employees refuse to give consent for collection of their SPDI, like health records?

Technically, employees cannot refuse consent as the IT Act is unclear on whether employees can deny such information in public health emergencies or only when SPDI is sought in connection with provision of goods or services by the employer. I don’t have consent framework in place, I also don’t have time to do this and would like to contain the infection urgently.

Doesn’t the law envisage an exceptional situation?

Unfortunately, not. While you can continue with your emergency response in order to provide a safe working environment to your employees, from a data protection perspective, you will still not be compliant. We do expect Indian regulators to be accommodating of such gaps however, and this situation will have more clarity in some time.

Once I have obtained the medical reports, what are my obligations?

You are bound to retain and share it, only as permitted under law. Government agencies are permitted to request for SPDI to verify identity, with a written request.

Can I disclose the name of the employee to inform other possibly affected employees?

No. There are better methods of implementing quarantine measures. Personal and sensitive information of an employee should be protected, and names of affected or suspected employees should be scrubbed while being processed internally as part of action plans. It’s also important to mention that employers are obligated to extend measures to protect employees from any form of discrimination that may be attributed to their medical condition or diagnosis.

Should employers report to Government agencies once they have information of any employee’s confirmed COVID-10 status?

There is no such obligation under law as on date. The Government has directed mandated citizens of India to undergo screening and quarantine as per their travel history, symptoms and exposure to suspected COVID-19 persons. Employers should widely disseminate this directive amongst their status and network.

Can I ask employees / visitors to submit to temperature reading, medical tests prior to entering the building?

Depends what you are trying to ascertain. If it’s simply to check a fever prior to allowing entry, anyone can do that. However, any invasive or COVID-19 related checks should only be conducted by a medical professional, who may submit information to the employer or State medical authorities for necessary action. Medical professionals are themselves obligated to receive and handle patient information in a prescribed manner.

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Patenting Covid-19 Related Inventions

By: admin Covid-19 04 Apr 2020

Across the world scientists and researchers are working tirelessly to develop cheap and time effective diagnostic kits, cures and vaccines for the novel COVOD-19. There is also a pressing need for low cost ventilators.

Abbott’s diagnostic test to deliver positive results in five minutes is a major- breakthrough. In India, Mylab Discovery is the first company to receive approval in India for manufacturing their Covid-19 test kits. Even non-pharmaceutical companies are pitching in to help in this time of crisis. One example is Mahindra & Mahindra, which is working towards launching a low-cost ventilator.

In times of emergency, when an invention is the need of the hour, should innovators file patent applications to protect their innovations? What if they don’t file for patents in the larger good? Can innovation still be rewarded pending patent or without patent protection?

PATENTING COVID-19 RELATED INVENTIONS

At the outset, it is important to examine what kind of Covid-19 related inventions may be patentable in India. Like most jurisdictions, under the Indian Patents Act, 1970 ("the Patents Act"), a product or process that satisfy novelty, non-obviousness and utility, can get patent. However, the Patents Act excludes certain inventions from the scope of patentability, e.g. use of a known or already existing drug for treatment of Covid-19 may not be patentable in India.

India also prohibits patenting of methods of treatment. This includes methods of diagnosing a disease. While methods of diagnosing Covid-19 may not be patentable, a diagnostic instrument itself can be protected as a patent. Software per se is not patentable in India. However, software combined with hardware may be patentable. Thus, software enabled diagnostic instruments could be patentable.

As per the well-known Section 3(d) of the Patents Act, exclusion, new forms of a known substance (such as salts, esters, isomers, etc) are not patentable unless such new form results in the enhancement of the known efficacy of that substance.

Indigenous innovators can e-file patent applications in India even during lock-down. Since patent is a territorial right, applications need to be filed either through the Patent Cooperation Treaty or directly in other jurisdictions within prescribed timelines with Indian filing date as priority date1. In case of existing patents, they should be available to meet the demand during exigencies.

EXPLOITING AND REWARDING INNOVATION

We examine a few approaches to enable use or exploitation of pending patent applications and/or granted patents below:

- Acquisition or use of pending or granted patents by Indian Government in public interest

The Patents Act allows government of India to acquire an invention covered by a pending patent application or a granted patented for a public purpose by paying compensation to right holders. Compensation is determined based on several factors such as the expenditure incurred in connection with the invention and, in the case of a granted patent, the term of the patent, the period during which and the manner in which it has already been worked (including the profits made during such period by the patentee or by their licensee).

Separately, the Patents Act also allows the government (state, central or a government undertaking) to use an invention that forms subject matter of patent applications or are granted patents. Such use includes the right to sell the invention. Use by the government must be made upon commercial terms agreed between the patentee/applicant of the invention and the government either before or after use has begun.

Compulsory licensing of existing patents

In times of national emergency/extreme urgency, the Central government can suo moto make a declaration for grant of compulsory license in relation to a patent. Thereafter, any person interested can apply for a compulsory license. A license will then be granted on such terms and conditions decided by the patent controller.

In fact, it has been reported that some countries have already issued compulsory licenses for existing drugs currently being tested for treatment of Covid-19. Israel has issued a compulsory license related to lopinavir/ ritonavir, including in combination with other products.

On the other hand, several companies, including the patentee for the drug lopinavir/ ritonavir, are relinquishing their rights in their patented drugs in view of the pandemic. While companies are foregoing monetary incentives, such acts will bring immense goodwill and are helpful in creating a positive brand image.

Exploitation of pending patents or in the absence of patents

An important question to consider is whether innovators can be rewarded. Pending or in the absence of patent. In this state of urgency, innovators may not file patent applications before commercialising their innovations. Even if a patent application is filed, grant of a patent would take several years in most jurisdictions. Technically, a patentee’s monopoly kicks in once the patent is granted. It should be explored whether in such situations, patent grant may be expedited.

Even in the absence of a patent, innovators could and should still be rewarded. This can be done by way of licensing or royalty deals, acquisition deals or joint venture deals, where the innovator (company or individual) transfers the trade secret, know-how, formulation or technology to other entities with good manufacturing capacities or governments. Joint ventures could also be formed between two or more innovators, who pool in their resources together to find a much-needed resolution for this pandemic in public good.

In all these scenarios, the commercial interest and investment of the innovator are secured, and public good is ensured.

TAKE AWAY

While a patent is an important right, the need of the hour is to balance commercial interests v/s community interest. Making inventions, know-how, technology and formulations available not only in India but across the world is of utmost importance at this stage. Innovators therefore need to decide how to exploit their patents or inventions to battle this pandemic, and whether large profits should be forgone for humanity. At the same time, it is also important for the community to respect inventions and give due credit and respect to research and innovation. Compulsory licensing, royalty based deals, joint ventures and collaborations on reasonable terms, instead of strictly enforcing patent rights, is the need of the hour. When the whole world is fighting this pandemic together at war footing, innovations must act as a weapon which can help in winning this battle.

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LLP Settlement Scheme

By: admin Covid-19 04 Apr 2020

It has been noticed by the Government that a large number of LLPs have failed/defaulted in filing Form-3 LLP [LLP Agreement and changes therein]; Form-4 [Notice of Appointment, cessation, change in name/ address/ designation of Designated Partner or Partner]; Form-8 [Statement of Account & Solvency (Annual or Interim)] and Form-11 [Annual Return of LLP] and in the event of such defaults an additional fee of INR 100/- (Rupees One Hundred Only) is levied under the LLP Act, for every day of such delay.

Due to such hefty fine involved in case of default in filing of e-forms mentioned above by the LLPs, many representations have been made from various quarters for waiver of fees or relaxation in additional fees.

As a part of ease of doing business and to give an onetime relaxation in additional fees to the defaulting LLPs to make good their default by filing pending documents and to serve as a compliant LLP in future the Ministry of Corporate Affairs, vide circular dated 4th March, 2020 have introduced a scheme - ‘LLP Settlement Scheme, 2020’ (“Scheme”), for allowing an onetime condonation of delay in filing the e-forms mentioned above which have not been filed by the LLPs with the Registrar.

Highlights of the Scheme

  • The Scheme shall come into force on 16th March 2020 and shall remain in force till 13th June 2020.
  • The Scheme shall apply only for the filing belated Form 3, Form 4, Form 8 and Form 11 which were due for filing till 31st October 2019. (The Scheme shall not apply to LLPs who have filed Form 24 with the Registrar for striking-off its name from the ROC.)
  • Reduced additional fee: The defaulting LLPs can file the said e-forms during the currency of this Scheme by making payment of an additional fee of INR 10/- per day (as against INR 100/- per day) for the delay in filing in addition to normal fee applicable for filing of suche-forms, however, the maximum additional fee shall not exceed INR 5000/- (Rupees Five Thousand Only) per e-form.
  • The defaulting LLPs availing benefit of this Scheme shall be provided with immunity from prosecution by the Registrar for such defaults.
  • Further, after completing of this Scheme, those LLPs which have not availed this Scheme and are in default of filing any of the e-forms within the specified period as per the LLP Act shall be subject to action/prosecution from the Registrar under the LLP Act

Revised LLP Settlement Scheme, 2020

MCA vide its General Circular No. 13/2020 dated 30th March, 2020, has revised the existing LLP Settlement Scheme, 2020 and thereby the last date of filing of pending documents has changed from 13th June, 2020 to 31st March, 2020. Further, by keeping the existing Scheme, certain additions in the terms and conditions have been made, which are as follows:

  • Revision in the existing Scheme: Apart from the following changes, all other conditions of the existing Scheme shall remain the same:
    1. Para 8(i) of the Scheme, effective Date: Effective date of the LLP Settlement Scheme, 2020 has revised from 16th March, 2020 - 13th June, 2020 to 16th March, 2020 - 31st March, 2020.
    2. Para 8 (vi) of the Scheme, Immunity from Prosecution: Under this Para, the last date of filing of pending documents was 13th June, 2020, which has revised to 31st March, 2020.
  • Extended LLP Settlement Scheme 2020: New Para 8A has been added in the existing Scheme and thereby it has extended to the further period, i.e., from 01st April, 2020 to 30th September, 2020. The details of the Scheme are as follows:
    1. Effective Date of the Scheme: Effective date of LLP Settlement Scheme, 2020 shall be in force from 01st April, 2020 to 30th September, 2020.
    2. Applicability: This Scheme shall be applicable to all the belated filings, which shall be due for filing till 31st August, 2020 at the normal fee. In the previous Scheme, only 4 (Four) forms were allowed to file i.e., Form-3, Form-4, Form-8 and Form-11.
    3. Late filing fee under the Scheme: No late filing fee shall be charged on the belated documents till 30th September, 2020.
    4. The Scheme shall not apply: Further, this Scheme shall not apply to those LLPs who have applied for striking off their names from the register of ROC as per Rule 37(1) of the LLP Rules, 2009
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Companies Fresh Start Scheme, 2020

By: admin Covid-19 04 Apr 2020

In continuation with the several measures from the Ministry of Corporate Affairs (MCA) during the COVID-19 pandemic, one more major relief has announced by the MCA, vide it's General Circular No-12/2020 dated on 30th March, 2020, through the launching of one-time settlement scheme for the Companies popularly known as “Companies Fresh Start Scheme 2020 (“CFSS-2020”) to grant one-time immunity from hefty fee and prosecution against the defaulting Companies.

This CFSS-2020 has introduced to facilitate the Companies registered in India to make a fresh start on a clean slate by making their defaults good. Under this Scheme, the Companies shall be eligible to complete all their belated filings at a reasonable fee, without any penalty or late fee.

  • Effective Date of the Scheme: This Scheme shall be effective from 01st April, 2020 to 30th September, 2020 in which the defaulting Companies can complete their belated filings (any of the documents, statements, returns etc., including annual statutory documents) by paying the normal statutory fee.
  • Applicability of the Scheme: This Scheme is applicable to all the defaulting Companies, whose belated filings with the Registrar of the Companies (ROC) was due on any given date in accordance with the provisions of this Scheme.
  • Scheme for Inactive Companies: The defaulting inactive companies, while filing due documents under this Scheme can simultaneously apply either for:
    1. declaring themselves as Dormant Company under Section 455 of the Companies Act, 2013 (the Act) by filling Form MSC-1 on MCA
    2. striking off the name of the Company by filing Form STK-2 on MCA
  • Forms which cannot be filed under this Scheme: Except below-mentioned forms, all other forms can be filed under this Scheme:
    1. Form SH-7 (Increased in Authorized Capital),
    2. Form CHG-1 (Creation or Modification of Charge),
    3. Form CHG-4 (Satisfaction of Charge),
    4. Form CHG-8 (Application to C.G for extension of time for creation or modification of charge)
    5. Form CHG-9 (Creation or Modification of Charge for Debentures)
  • Non-applicability of the Scheme: The Scheme shall not apply in the following cases:
    1. The Companies which are strike off and the Companies against which strike-off action has been initiated by the concerned authority;
    2. The Companies who have applied for strike off of its names from the register of Companies;
    3. Amalgamated Companies under the Scheme of arrangement or compromised under the Act;
    4. The Companies who have applied for obtaining Dormant status under Section 455 of the Act, before the commencement of this Scheme;
    5. Vanishing Companies;
    6. Filing of forms SH-7, CGH-1, CHG-4, CHG-8 and CHG-9;
  • Consequential Proceedings under the Scheme: This Scheme protects the Companies from the launching of prosecution or proceedings associated with delay of belated filings with the ROC and shall not cover any other consequential proceedings, including those involving the interest of shareholders or any other person, as being the Company or its directors or Key managerial personnel.

For Example, Immunity shall be provided for delay in filing of Form PAS-3 for allotment of shares and not on account of utilization of money raised through private placement beforethe filing of Form PAS-3 for allotment of shares.

  • Withdrawal of appeal or proceeding initiated: The Companies shall require withdrawing all the appeals filed against the order(s) of any competent court or authority made in the matter of statutory filings against the Company, and submit the proof of such withdrawal along with the application form under the Scheme.
  • Extension of the last date for filing of an appeal: MCA has extended the last date for filing of an appeal under Section 454(6) of the Act, against the adjudication order scheduled in between 1st March, 2020 - 31st May, 2020 to 30th September, 2020. Therefore, the Companies and their officers who have missed the last date for filing an appeal can file the same before the Regional Director till 30th September, 2020.

Further, no prosecution under Section 454(8) of the Act shall be initiated against the Companies by the adjudicating authority, during such extended last date, for the delay in filing of any documents, forms, statements etc., on MCA.

  • Application and granting of Immunity Certificate: The application for immunity can be made after completion of all the belated filings, in the Form CFSS-2020 with no filing fees. However, said the application could not be made after the expiry of 6 (Six) months from the closure of the Scheme. Further, Immunity Certificate shall be granted by the designated authority based on the declaration filed by the Company in Form CFSS 2020.

The designated authority upon the filing of an application in the Form CFSS-2020 shall withdraw all the pending proceedings or adjudications, in the name of the Company and its officers, before the concerned court under Section 454 of the Act, except proceedings or adjudications mentioned as follows:

    1. Immunity shall not be applicable, in cases of the pending appeal and the case of management dispute of the Companies pending before the court of law or tribunal;
    2. Immunity shall not be granted, in cases of (i) conviction order issued by the court; (ii) penalty order imposed by the adjudicating authority for which no appeal could be preferred, before the announcement of this Scheme.
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Relief measures introduced by the Ministry of Finance under COVID-19

By: admin Covid-19 04 Apr 2020

Due to an increase in the number of COVID-19 positive cases, Prime Minister Narendra Modi had announced a complete lockdown for a period of 21 days on 24th March. The lockdown will last till 14th April 2020. The Officials have also warned all the citizens of India to practice social distancing in order to fight against COVID-19. The Epidemic Diseases Act 1897 has been invoked by the Central and State Governments after being satisfied that the state/country is threatened with the spread of COVID-19 virus. The Finance Minister Nirmala Sitharaman had introduced various relief measures. They are as follows:

Relief package for poor

The Finance Minister Nirmala Sitharaman announced Rs. 1.7 lakh crore relief package for poor people. The main aim was to help the people, who were hit hardest by the COVID-19 lockdown. It was stated that around 800 million people wouldget free grams and cereals along with cooking gas apart from cash through direct transfers for a period of 3 months. The Pradhan Mantri Garib Kalyan Yojana includes higher wages under the Mahatma Gandhi National Rural Employment Act, Rs. 1,000 ex-gratia payment to nearly 30 million poor senior citizens, widows and disabled people. Farmers will get the first installment of Rs. 2,000 under the KisanSamman Nidhi in the first week of April.

The government had increased the wages under the Mahatma Gandhi National Rural Employment Act scheme from the existing Rs 182 to Rs 202. The women who are holding bank accounts under the financial inclusion scheme Jan Dhan will get an ex-gratia amount of Rs. 500 per month for a period of the next threemonths. The government had announced the supply of 5 kg of either rice or wheat and 1 kg of lentil of choice free of cost to poor households every month for a period of next threemonths, in addition to the existing 5 kg of wheat/rice that was announced earlier.  The government had also announced collateral-free loans worth up to Rs 10 lakh for women self-help groups under the DeenDayal Upadhyaya National Rural Mission scheme. The limit which applied to the existing scheme has been doubled to Rs. 20 Lakh.

Medical Insurance cover for healthcare providers

The Union Health Ministry had stated that 22.12 lakh public healthcare providers, including community health workers, will get Rs. 50 lakh insurance cover under a national scheme for them. They will be covered under the Pradhan Mantri Garib Kalyan Package Insurance Scheme for Health workers fighting COVID-19, which was announced by Finance Minister Nirmala Sitharaman on 26th March.

The Central Government has approved the launch of insurance scheme for health workers fighting COVID-19 outbreak. The scheme will be funded through the National Disaster Response Fund budget operated by the Ministry for this purpose.

The Ministry stated that besides, healthcare workers in Government institutions, the insurance scheme will also cover private hospital staff, retired staff, volunteers, contract workers, daily wagers and even outsourced staff hired by the Central government, State governments and autonomous healthcare institutions.

The Ministry stated that the insurance will provide a comprehensive personal accident cover of Rs. 50 lakh for 90 days to a total of around 22.12 lakh public healthcare providers, including community health workers, who may have to be in direct contact and care of patients suffering from coronavirus infection and who may be at risk of being impacted by this.

The actual payment by the insurance company to the beneficiary will be under certification of the authorized Central/State government officials. The order stated that the insurance provided under this scheme would be over and above any other insurance cover being availed by the beneficiary.

Relief package for the organized sector

The Centre had stated that it will pay Employees Provident Fund contribution on behalf of both the employee and the employer for a period of three months for individualsmall companies. The government had stated that the companies with up to 100 employees in which 90 per cent of the staff is paid less than Rs 15,000 per month wouldbe entitled to receive the benefit. The government will also permit withdrawals of up to 75% of non-refundable advance or three months of wages from the Employees Provident Fund account, whichever is lower.

Reliefs under Income tax

The government has extended the deadline for filing tax returns by three months. The last date for income tax returns for Financial Year 2018-2019 has been extended to 30thJune 2020, and for the delayed payments the interest rate has been reduced to 9% from 12%.

The mandatory linking of Aadhaar cards with PAN cards and the direct tax Vivad se Vishwas scheme has also been extended to 30th June 2020.In Vivad Se Vishwas scheme, the earlier criteria of not paying a 10% additional amount till March 31 was extended to June 30.

For delayed payments of advance tax, self-assessment tax, regular tax, TDS and equalization levy, among others, made between 20th March and 30th June, the interest rate has been reduced to 9% from 12-18% earlier. No late fee and penalty shall be charged for delay relating to this period.

The assesses and/or the tax authorities have got an extended time limit of up to 30th June 2020 where the time limit for the following compliance matter expires between 20th March 2020 and 29th June 2020:

  • Issue of notice/intimation/notification/approval order/sanction order
  • Filing of an appeal/furnishing of a return/statements/reports or any other documents
  • The time limit for the completion of proceedings by the tax authority
  • Investment in saving instruments or investments for rollover benefit of capital gains under the Income Tax Act, Wealth Tax Act, Prohibition of Benami Property Transaction Act, Black Money Act, STT law, CTT Law, Equalization Levy law, and the Vivad Se Vishwas law

Reliefs under Custom Act

The government had stated that the Customs Clearance shouldbe made available on 24*7 basis till 30th June 2020. The time limit for any compliance under the customs act and other allied laws has been extended to 30th June 2020.

Reliefs under GST Act/ Indirect Tax

  • The last date to avail the Saba Vishwas scheme is extended to 30th June 2020. No interest for this period shall be charged if paid by 30 June 2020.
  • The due date of filing GST annual returns for the Financial year 2018-2019 has been extended to 30thJune 2020.
  • The Last date for filing GSTR-3B in March, April and May 2020 will be extended till the last week of 30 June 2020 for those taxpayers who are havingaggregate annual turnover less than Rs. 5 Crore. There will be no interest, late fee, and penalty to be charged. The same benefit to be available for taxpayer having aggregate turnover of more than Rs. 5 crores with an exception that interest at the rate of 9% p.a. will be charged instead of 18% p.a. and the reduced interest rates will apply for tax payments made between 20th March 2020 and 30th June 2020.
  • The Date for opting for composition scheme is extended till the last week of June 2020.
  • The due date for issue of notice, notification, approval order, sanction order, filing of the appeal, furnishing of return, statements, applications, reports, any other documents, or time limit for any compliance under the GST laws where the time limit is expiring between 20thMarch 2020 to 29thJune 2020 shall be extended to 30 June 2020.

Conclusion

The Government of India is taking all the necessary steps in order to prevent the spread of COVID-19 infection among the citizens of India. All the citizens must take precautions as per the advisories that are being issued by the Ministry of Health and Family Welfare. These are the testing times for the country, and we all can do our best by co-operating with the government.

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Impact on Business Operations

By: admin Covid-19 04 Apr 2020

Covid-19 had taken a toll on the whole world. Every country and its respective governments are doing their best to combat with the Coronavirus.  However, a developing country like India is surfing the most.  For 21 days, India has been put under a lockdown, which means people are not allowed to work, travel, go out, party, or be a part of any social gathering.  The lockdown has been especially announced so that people distance themselves and prevent the spread of the deadly virus.

Introduction

Every sector is facing its own difficulties while the world is tackling the issue. However, the most affected area because of this chaos is the Business Sector. Operations and work of business havecome to a stagnant position, and from a daily wage earner to a businessman, everyone is struggling to put in their operations back or to keep the business going so that losses can be minimised. Moreover, in India, the financial year for both private and public companiesis 31st march and therefore, it has become a major problem for the business to handle the situation.

Government of India is trying its best to lighten the burden on the owners and employers of the companies and businesses.  Some ofthe provisions are:

  1. As there are travel restrictions, domestically and internationally, both, provisions and regulations relating meeting of the board of directors under the Companies Act,2013 have been relaxed. According to the Rule 4 of the Companies (Meetings of Board and its Powers) Rules, there is a list of matters mentioned under which a director cannot hold a meeting unless and until there is no physical presence. Meetings cannot be conducted through video conferencing, skype calls, or any other electric mode if the matters are related to annual financial statements, Board’s report, prospectus; decisions regarding amalgamation, merger, demerger, acquisition and takeover; and audit committee meetings for consideration of financial statements. As right now, people cannot travel to work, it has become an issue as these decisions are important to take on a timely basis. Therefore, to overcome such a scenario, the Ministry of Corporate Affairs (MCA), by its notification dated 19 March 2020 has decided to relax the necessity of the physical presence of the director, officer, or any other employer of the company. The meetings can be duly conducted by video conferencing or any other electric mode so that there is no delay in the compilation of the procedure as mentioned under the Companies Act, 2013.
  1. The central and some state governments have issued certain notices to safeguard the interest of both the employer as well as the employee.  The Ministry of Personnel and Public Grievances of India had issued notices to let the employee work from home. The notice was issued under the confidence that this will protect one’s health, reduce social distancing, prevent the spread of the virus and will also not hamper the growth or work of the company. Work from home cannot be allotted to those working in emergency services or for those who are working for the prevention of the spread of the virus.

Following are the points which can be considered by the companies while providing work from home to the employees:

  1. The employer needs to keep in mind that salaries cannot be deducted of the employees on the basis of the outbreak of Covid-19. The employee is expected to pay the employer according to the terms and conditions of the contract of employment.
  2. The employer is not allowed to consider the days of work from home as leave. An employee working from home would be considered on duty and should be provided with the salary or remuneration.
  3. A company is allowed to lay off employees only according to the Industrial Disputes Act, 1947, which will outlook the factors like notice period, and other terms and conditions of the employment letter.
  4. On 19thFebruary 2019, the Department of Expenditure, Ministry of Finance announced that this pandemic situation would be known as a force majeure event. Therefore, the force majeure clause (FMC) can be invoked under the Manual for Procurement of Goods, 2017 (being the guidelines for procuring goods and services by a government organisation). Force Majeure is known as "superior force" is a broader concept where the accident is not necessarily connected with nature and can be connected to human agency. One such example of force majeure is war. When a clause of force majeure is included in a contract, it gives the powers to the party to suspend or terminate such contract on the basis of the clause of “force majeure.

 

However, it is of due importance that what kind of “force majeure” clauses are included in the agreement. A force majeure clause can vary on the type of contract. Sometimes, a contract may have a clause which restricts the party to suspend or terminate the contract even if something unforeseeable happens. Under such circumstances, a party is not entitled to suspend the orders. On the other hand, there are contracts under which includes a finite list of force majeure events in an attempt to narrow the clause’s applicability and thereby excuse performance less often. Some commonly listed force majeure events include natural disasters such as earthquakes, hurricanes, floods, epidemics, war, quarantines, terrorist acts, government action such as changes in the law, activities of the union such as strikes and slow-downs, and shortages of necessary materials.

The below mentioned are certain points which need to be kept in mind while terminating or suspending a contract:

  1. Evaluation of force majeure clause has to be done, that whether this clause has the right to suspend a contract temporarily or permanently.
  2. The clause force majeure will also be examined on the fact that which type of events would be covered under the clause.
  3. When there are no provisions related to force majeure to suspend or terminate the contract, the party can invoke the contract by using “doctrine of frustration” which means a contract becomes void, when the main event to be performed of the contract becomes impossible to perform. The doctrine of frustration is mentioned under section 56 of the Indian Contract Act.

 

Conclusion

Currently, the whole country is suffering the brunt of the lockdown;however, it is for the greater good of the world. There are losses that each business is going through, but this are the testing times. A business can understand the above-mentioned points and can then take the necessary steps to prevent the business from mishappenings or any other further losses.

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The Stand of Essential Commodities

By: admin Covid-19 03 Apr 2020

The Essential Commodities Act, 1955 (ECA) has been enacted by the Government to control production, supply or distribution of essential commodities or for maintaining or increasing supply of essential commodities or for securing equitable distribution and preventing hoarding of essential commodities and; for the availability of essential commodities at fair prices to the consumers and to protect them from exploitation by unscrupulous traders.

What are the Essential Commodities?

The Central Government has included the following 7 (Seven) commodities as the Essential Commodities:

  1. Drugs (as defined in Section 3(b) of the Drugs and Cosmetics Act, 1940);
  2. Fertilizer, whether organic, inorganic or mixed;
  3. Foodstuffs, including edible oilseeds and oils;
  4. Hank yarn made wholly from cotton;
  5. Petroleum and petroleum products;
  6. Raw Jute and Jute Textile;
  7. Seeds of food crops and seeds of fruits and vegetables;
  1. Seeds of cattle fodder;
  2. Jute Seeds; and
  3. Cotton Seed

The ECA gives powers to the Central Government to add or remove any commodity from the Schedule of the Essential Commodities from time to time if it is satisfied that it is necessary to do so in the public interest and for any such reasons which shall be specified in the notification to be issued in that regards by the Government.

The Central Government, on being satisfied that it is necessary to do so for controlling the rise in prices or preventing the hoarding of any foodstuff in any locality, it may by notification direct the price at which that foodstuff shall be sold in the locality. The Central Government also has the power to decide the price for any such Essential Commodities as and when it feels necessary to do so to control the supply or distribution of such Essential Commodities or to control its price or prevent hoarding. Any notification issued in this regard shall remain in force for such period not exceeding 3 (Three) months as may be specified in the notification.

Few other measures to control the Essential Commodities include:

  1. issuing licenses, permits etc. to enable/ increase the production/ manufacture of Essential Commodities;
  2. controlling the storage, transport, distribution, disposal, acquisition, use or consumption of any Essential Commodity;
  3. Fixing the stocking limit for a specificEssential Commodity

Delegation of powers

The Central Government may, by notified order, delegate the powers and impose duties on the following authorities to make orders or issue a notification to regulate/ control the production, supply, distribution, sale, pricing, etc. of Essential Commodities or discharging any such duties:

  1. such officer or authority subordinate to the Central Government; or
  2. such State Government or such officer or such authority subordinate to a State Government

Penal provisions

The Government has the following powers if any person is found contravening the provisions of the ECA or any orders/ notifications issued under the ECA:

i) Confiscation of Essential Commodity (it shall not prevent the infliction of any punishment liable under the ECA)

ii) Seizure of Essential Commodity

iii) Imprisonment of 3 (Three) months to 7 (Seven) years depending on the contravention

iv) Imposing fine

All the offences punishable under the ECA shall be cognizable.

PBMSECA

The Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980(PBMSECA)was enacted on 15th October, 1979 to provide for detention in certain cases for prevention of black marketing and maintenance of supplies of Essential Commodities essential to the community and for matters connected therewith.

Who can be detained?

If a person is found to be:

i) committing or instigating any person to commit any offence punishable under the ECA or under any other law for the time being in force relating to the control of the production, supply or distribution of, or trade and commerce in, any commodity essential to the community; or

ii) dealing in any commodity-

a) which is an Essential Commodity as defined in the ECA or

b) with respect to which provisions have been made in any such other law as is referred to in clause a) above,

with a view to making gain in any manner which may directly or indirectly defeat or tend to defeat the provisions of that Act or other law aforesaid.

Further, the detention order can be executed at any place in India in the manner provided for the execution of warrants of arrest under the Code of Criminal Procedure, 1973 and no detention order shall be invalid or inoperative merely by reason-

i) that the person to be detained thereunder is outside the limits of the territorial jurisdiction of the Government or officer making the order, or

ii) that the place of detention of such person is outside the said limits.

Period of Detention:

The maximum period for which any person may be detained shall be 6 (Six) months from the date of detention.

Current COVID-19 Situation

Considering the dangerous health situation due to COVID-19 disease, the Department of Consumer Affairs, India has recently on 13th March, 2020 added the following items as Essential Commodities in the existing list till 30th June, 2020: Masks (2ply & 3ply surgical masks, N95 masks) & hand sanitizers

Further, the Department of Consumer Affairs has on 19th March, 2020 also issued a notification for regulating the production, quality, distribution, prices and other aspects of alcohols used in manufacturing the hand sanitizers. The notification further states that the raw material used in manufacturing Essential Commodity shall also be treated as Essential Commodity. It also states that the prices of alcohols used in the manufacturing of hand sanitizers shall not exceed from those prevailing on 05th March, 2020 without the concurrence of the Central Government.

Further, the Department of Consumer Affairs has on 21st March, 2020 issued a notification (to be in force till 30th June, 2020) to regulate the prices of masks (2ply & 3ply), the Melt Blown non-woven fabric used as a raw material in production of masks and hand sanitizers as stated below:

i) Retail Prices of Melt blown non-woven fabric used in the manufacturing of masks (2ply & 3ply), shall not be more than the prices prevailing on the day one month before 13th March, 2020, i.e. the prices prevailing on 12th February, 2020

ii) Retail prices of masks (3ply surgical masks) shall not be more than the prices prevailing on the day one month prior to 13th March, 2020, i.e. as on 12th February, 2020 or not more than Rs. 10 per piece whichever is lower and that of the mask (2ply) shall not be more than Rs. 8 per piece.

iii) Retail prices of hand sanitizer shall not be more than Rs. 100/- per bottle of 200ml the prices of other quantities of hand sanitizers shall be fixed in the proportion of these prices.

Hoarding or Blackmarketing

Any hoarding of food-stuffs or masks or hand sanitizers or drugs or any such Essential Commodities essential to the community, in this challenging time, by any person shall lead to their detention under the PBMSECA and also liable to be penalized under the ECA.

However, hoarding is as such not defined in any of these Acts, but hoarding in the general sense means to accumulate food-stuffs or medicines or like Essential Commodities in a hidden or carefully guarded place for preservation for future use during the times of crisis or disasters or on an assumption of shortage in coming future. The Department of Consumer Affairs from time to time issue orders deciding the limit for stocking of each type of foodstuffs by a different type of sellers (like wholesalers and retailers) and for revoking or re-imposing such limits.

So, if any person selling any such Essential Commodities is found to be hoarding food-stuffs, masks, hand sanitizers, drugs, etc. or black marketing such commodities by hyping the demand and limiting the supply purposely to take undue advantage of the situation to earn undue profits shall be punishable under the provisions of the ECA and also liable for detention under the PBMSECA.

Conclusion

If any consumer of such Essential Commodities faces any such issue of overpricing of the Essential Commodities or hoarding or blackmarketing of Essential Commodities by any seller, then such consumer can register its complaint with the local police or to the District Officer or with the National Consumer Helpline number 1800-11-4000 or online at www.consumerhelpline.gov.in or www.consumeraffairs.nic.in.

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Penalties for breaking COVID-19 rules

By: admin Covid-19 03 Apr 2020

Lockdown is an emergency protocol that prevents people from leaving a given area or place. It means that you must stay where you are and not to exit the place. Under lockdown, the services which are essentials remains continued to serve the people, and all other non-essential services are shut down for a specific period. As there was an increase inthe number of COVID-19 positive cases, Prime Minister Narendra Modi had announced a complete lockdown for a period of 21 days till 14th April 2020. The Officials have also warned all the citizens of India to practice social distancingin order to fight against COVID-19. The Epidemic Diseases Act 1897 has been invoked by the Central and State Governments after being satisfied that the state/country is threatened with the spread of COVID-19 virus. The regulations and measures during the period of lockdown have been prescribed by a notification.

Action taken by the police officers

Following are the actions taken by the police officers to ensure that people follow the lockdown (COVID-19) rules:

  • In Nagaon District of Assam, a police officer wields his baton against a man who was found breaking the lockdown rulesafter India ordered a 21-day nationwide lockdown to limit the spreading of coronavirus disease.
  • The people who were not obeying the lockdownrules were made to do sit-ups and body rolls while police beat them with cane sticks as a punishment for violating the lockdown rules.
  • In the old quarters of Delhi, a policeman had removed the air from the tyre of a labourer carrying vegetables to dissuade people from crowding outside a market during a 21-day nationwide lockdown to limit the spreading of coronavirus disease.
  • In Kolkata,a police officer wearing plainclothes strikes a man over his legs for breaking a strict 21-day nationwide lockdown as the country is making continuous attempts to slow the spread of coronavirus disease.
  • In Karnataka, the police are paining 'Corona Danger' on the roadto dissuade people who are not obeying the lockdown rules.
  • The police are making the rule-breakers to do squats on the street.
  • Most of the police officers like Shegunasi have come up with creative efforts to tackle the coronavirus pandemic and enforce the 21-day total lockdown, which was implemented on 24thMarch to curb the spread of coronavirus in India.
  • In Madhya Pradesh, the police officer were found doing arti of the people who were not following the lockdown orders.

Penal Provisions

Following are the penalties that will be imposed for breaking the lockdown (COVID-19) rules:

  • If any person disobeys the COVID-19 rules, then he shall be deemed to have committed an offence that is punishable under section 188 of the Indian Penal Code. Section 188 of the Indian Penal Code states the provision relating to the disobedience to the order duly promulgated by a public servant. The person shall be punishable with simple imprisonment for the term which may extend for onemonth or with fine which may extend to Rs. 200 or with both. If the disobedience causes or tends to cause danger to human life, health or safety then the person shall be punishable with imprisonment for the term which may extend for sixmonths or with fine which may extend to Rs. 1,000 or with both.
  • The Authorities in several parts of the country, including Delhi, have already invoked Section 144 of the Code of Criminal Procedure that prohibits the people from social gatherings or assemblies.
  • The FIR was lodged against a famousBollywood singer, who had attended parties after returning from London and tested positive for coronavirus.The authorities can take recourse under Section 269 and Section 270 of IPC.
  • Section 269 of IPC states that a person who unlawfully or negligently does any act which is and which he has a reason to believe or he knows, is likely to spread the infection of any disease which is dangerous to life, is punishable with imprisonment of either description up to six months or fine or with both fine and imprisonment. The offence is cognizable, meaning that the police can arrest the accused without a warrant, but it is bailable.
  • Section 270 of IPC whoever malignantly does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.It deals with a “malignant act” to spread the infection of disease dangerous to life and punishes it with two-year imprisonment or fine. The offence is cognizable and bailable.
  • People can also be booked under Section 271of the IPC, 1860, which criminalises disobedience of quarantine rule. The person will be punished withimprisonment of either description for a term which may extend to six months, or with fine, or with both.

Conclusion

The Government of India is taking all the necessary steps in order to prevent the spread of COVID-19 infection among the citizens of India. All the citizens must take precautions as per the advisories that are being issued by the Ministry of Health and Family Welfare. Across India, the states are not taking violations of curfew, lockdown and home quarantine lightly. Scores of people were challaned, some people were booked under the provisions of the Epidemic Act and sent to isolation wards for not following the lockdown orders as the measures were being taken to ensure their own and public safety.

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The Epidemic Diseases Act 1897

By: admin Covid-19 02 Apr 2020

The main aim of the Epidemic Diseases Act 1897 is to provide for the better prevention of the spread of Dangerous Epidemic Diseases. Section 2 of the Epidemic Diseases Act 1897 deals with the power of the State Government to take special measures and prescribe regulations as to dangerous epidemic disease. Section 2Aof the Epidemic Diseases Act 1897 deals with the power of the Central Government to take special measures and prescribe regulations as to dangerous epidemic disease. Section 3 of the Epidemic Diseases Act 1897 deals with the Penalty, and Section 4 of the Epidemic Diseases Act 1897 deals with the protection to the person acting underact.

Maharashtra Epidemic Act of 1897

The Maharashtra State Government, after being satisfied that the state is threatened with the spread of COVID-19 virus, has invoked the Maharashtra Epidemic Act 1897. World Health Organization has already declared the COVID-19 as a pandemic. The Government in the exercise of the powers that are contained under section 2 of the Epidemic Diseases Act 1897 and all other enabling provisions of the Disaster Management Act 2005 has notified lockdown in the entire State of Maharashtra till 31st March 2020.

It prescribes the following regulations and measures during the period of lockdown:

  • All state borders shall be sealed except for the movement of essential and perishable commodities.
  • Transport of passenger for accessing emergency medical services shall be allowed. All public transport services, including inter-city MSRTC buses and Metro, will not be allowed. In Taxis, only twopersons are allowed besides driver whereas, in Auto-rickshaws, only oneperson is allowed besides the driver.
  • Plying of private vehicles shall be allowed for procuring essential commodities, health services and with only oneperson besides the driver.
  • Operation of all inter-state bus and passenger transport services shall stand suspended.
  • Every person (who is required to observe home quarantine) must strictly observe it. If any person fails to do so, then he shall be liable for penal action and will be shifted to Government quarantine.
  • Residents must stay at home and can come out only for the activities that are allowed. They must strictly observe social distancing norms.
  • Any congregation of more than fivepeople in a public place is restricted.
  • All shops including commercial establishments, offices and factories, workshops, godowns, etc. shall remain closed except the shops and establishments providing essential goods and services
  • During the period of lockdown, steps will be taken to ensure that there is no disruption in the supply of essential commodities to the people.
  • Other regulations mentioned under the notification.

Effects of Lockdown

The people from the North-East and other states who are working in Maharashtra are facing the problems due to the lockdown orders. A representative of North-East migrants in Mumbai, Raikhan stated that they are all employed in the private and unorganized sector like hotels, restaurants, spas, salons, malls, etc. that has been severely affected due to the lockdown orders. They are also many people who are depended upon the daily wages for their livelihood. Loss of earning is the main issue because of the lockdown. The people from the North-East states have appealed the Maharashtra Government to look into their matter.

Measures taken by the Maharashtra Government

The Maharashtra Government has allocated Rs. 45 crore to districts worst affected by the coronavirus outbreak. The Maharashtra Chief Minister Uddhav Thackeray had appealed to businesses to not fire their staff during the lockdown period. The Maharashtra Labour commissioner has directed labour department officials to issue advisories relating to this to the employers and owners of all establishments.

The Maharashtra Chief Minister Uddhav Thackeray has asked districts to set up relief camps for migrant labourers, and he even urged them not to leave the state.

The Maharashtra Chief Minister Uddhav Thackeray has also directed all the firms to allow work from home.

The Maharashtra Chief Minister Uddhav Thackeray urged the giant corporates to utilise their CSR funds to feed the homeless people. The chief minister asked Reliance and Tata to use their CSR funds to feed the people who do not have access to essential commodities. The state government has allowed the shops of daily needs to function 24*7.

Fight against COVID-19

Maharashtra civic bodies are using apps in the fight against the coronavirus. The official stated that the municipal corporation of Thane, Navi Mumbai and Panvel had started using the Coviguard and Covicare mobile apps developed with the support of Directorate of Industries. He stated that the apps would be soon used in the municipal corporations in Kalyan-Dombivali, Ulhasnagar and Bhiwandi. The Coviguard app has been developed to keep in touch with people who are quarantined at their homes. Another mobile application named Covicare has also been developed to the municipal corporation in areas where health surveys are to be done. The Official stated that the App links would be sent to representatives of housing societies and details of society members would have to be submitted on the app.

The Coviguard and Covicare apps are developed by a young entrepreneur Vikas Auto from Panvel under the guidance of the State Development Commissioner (Industries).Hence, the apps are proving useful in getting health statistics of residents and also provide information on the area wise spread of COVID-19.

Conclusion

As there was a rise in the number of positive cases of COVID-19, Prime Minister Narendra Modi has announced a three-week nationwide lockdown in the country till 14th April 2020.

If any person disobeys any regulation or order, then he shall be deemed to have committed an offence that is punishable under section 188 of the Indian Penal Code. However, No suit or other legal proceeding shall lie against a person who has done an act or intended to be done in good faith.

Section 188 of the Indian Penal Code states the provision relating to the disobedience to order duly promulgated by the public servant. The person shall be punishable with simple imprisonment for the term which may extend for one month or with fine which may extend to Rs. 200 or with both. If the disobedience causes or tends to cause danger to human life, health or safety then the person shall be punishable with imprisonment for the term which may extend for six months or with fine which may extend to Rs. 1,000 or with both.

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Act of God Analysis

By: admin Covid-19 02 Apr 2020

2020 will be considered as a remarkable year in the history of the world. The outbreak of COVID-19 virus from Wuhan, a city of China has put the world in a state of lockdown. The world has come to a standstill, and no one knows when it is going to end as no vaccination has been developed yet. The virus known as Coronavirus was first spread in China and then in other countries like Italy, the United States, and has reached India. The World Health Organisation had declared COVID-19 as Pandemic, which means a disease that is prevalent throughout the world and is dangerous. Talking about India, cases of coronavirus are rapidly increasing day by day. Government of India, to safeguard its general public from the issue had declared “ Janta Curfew” on 22nd March 2020 where the Prime Minister of India asked the people to self-isolate themselves in their houses for a day. After the success of Janta Curfew and keeping in view the rising cases of Virus, the government decided to lock down the whole country for 21 days until 14th April by imposing Disaster Management Act, 2005 for the betterment of society.

A lockdown is a situation wherein only essential commodities like grocery items, dairy products, medicines and emergency services are provided by the government, all other services and goods sectors are to be shut. The impact of Coronavirus on the world economy is tremendous and significant as businesses are either closed or working from home. After the announcement of lockdown, every sector of the economy is facing problems of credit availability in the market. When a country is going through a lockdown, the people suffer the most as they are bound to cancel all their plans, future ventures, and any future related activities impacting their businesses or personal lives. Everyone is trying their best to postpone their plans which may be related to some bookings, investments, or any such things.

Furthermore, coronavirus had impacted all the pre-agreed deadlines, and therefore the firms are now looking ways through which they can cancel these contracts and become free of the obligations without attracting any legal consequences. To cancel a contract, without the fear of legalities, the only way remains is that the core activity of the contract should become “ impossible to perform” without the fault of either party. This contract is also known as “ frustrated contract” under the Indian Contract Act, 1872.

Act of God or Force Majeure

However, to a contract to fall under this category, the most prevalent question which arises is that “ Does the situation of COVID-19 falls under Act of God or Force Majeure”?

Act of God, also known as Vis Major is a situation where circumstances had occurred due to natural forces, and there is no human intervention. Everything happening related to such circumstances is because of the due course of nature and not the humans of society. Secondly, the act of god also considers the foreseeability of such events like were circumstances like this predicted or were foreseeable. Moreover, to include a case under the act of god, it is also necessary that the damage is in direct relation to the unforeseeable event. Act of God is a good defense for oneself to free himself/herself from all the legal obligations. Anyhow, pandemics are not considered under the Act of God in India.

In India, pandemics are considered a part of Force Majeure. It is important to understand that force majeure and the act of god are not the same. Force Majeure is a broader concept where the accident is not necessarily connected with nature and can be connected to human agency. One such example of force majeure is war. The government of China had already declared COVID-19 as a pandemic which is a result of Force Majeure and The China Council for the Promotion of International Trade had issued over 1,600 ‘ force majeure certificates’ to Chinese companies in February. However, in India, no such decision has been taken whether the situation of COVID-19 will be considered under the Act of God or Force Majeure.

Lockdown

The 21-day lockdown, which is currently faced by the country, is categorized under Force Majeure by the Indian Railways. The Indian Railways has relaxed freight charges, considering the lockdown period as “ force majeure” and is loading an average 25,000 wagons each day with essential commodities, as the national transporter looks to maintain the stability of freight operations in the country. The finance ministry has clarified that the Coronavirus can be classified as a natural calamity and the Force Majeure clause may be invoked. The Indian Railways has decided that period from 22.03.20 to 14.04.20 shall be treated under ' force majeure', and during this period no demurrage, wharfage, stacking, stabling, detention and ground usage charge shall be leviable. While all passenger trains services of the Indian Railways remain non-operational amid the nationwide lockdown to curb the spread of COVID-19, freight trains are running to ensure supplies that supplies of essential commodities particularly, are not interrupted.

Conclusion

India is eagerly waiting for the end of this lockdown and the virus. The virus had impacted the economy of India in a significant way which will take an ample amount of time to settle or calm the things down. As of now, the government of India had not taken any stand whether this act will be considered other Act of God or Force Majeure, but looking at the terms and conditions, it is more likely that the government will consider this pandemic under Force Majeure as most of the other countries are doing. However, when the whole country is under standstill, it is our moral duty to support the government and do our best to keep our country and its people safe.

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