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National Company Law Tribunal
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  • Date: 19 Sep 2019
  • Commmercial Contracts
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On 01 June 2016, the Ministry of Corporate Affairs has issued three notifications for setting and developing the National Company Law Tribunal (NCLT) and National Company Law Appellate Tribunal (NCLAT). Now, MCA after the constitution of NCLT and NCLAT has come up with the notification of rules, the procedure for filing the application, petition or appeal on 21 July 2016.

The Government establishes the Tribunals under section 8 of the Companies Act, 2013 with effect from 01 June 2016. They have also established the Debt Recovery Tribunal to deal with all insolvency cases speedily.

In the first phase, eleven benches have been set up. The Principal Bench is located at New Delhi and regional benches at New Delhi, Ahmedabad, Allahabad, Bengaluru, Chandigarh, Chennai, Guwahati, Jaipur, Hyderabad, Kolkata and Mumbai. Any company that wants to continue against its debtors can approach NCLT for Winding Up, Liquidation to recover their dues or Strike Off.

'The Corporate Insolvency Resolution Process (CIRP)’ can be initiated by making an application to the NCLT by the Financial Creditors under Section 7 of Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as "IBC") or by Operational Creditors under Section 9 and by the Corporate Debtor himself under Section 10.

Significance of NCLT and NCLAT

It is a semi-legal specialist institution formed by the suggestion provided by the Eradi Committee to promote the amicable settlement amongst corporate matters. It is formed by the notification provided in the official gazette and with an intent to reduce the burden on the traditional court of law. NCLT helps to set off corporate claims, declare the corporate rights, undo the wrong done further deciding the punishment and penalties for the person held liable for the violation of the provision of Companies Act, 2013 and matters incidental to. NCLT is an institutional version of courtroom specifically dealing in matters relating to companies/ corporate entity for filtering the futile claims in providing a conclusion to request coming up to the authority smoothly without unnecessary delays. NCLT is the product of the Eradi Committee which filtered or eliminated all the lacunas of the previous institutions established previously. NCLAT, on the other hand, is a type of audit institution on the decisions provided by NCLT. It is an appellate tribunal handling appeals of in cases filed with the NCLT, by the aggrieved by the decision was given, then to file an appeal against the same. Further, if any person is aggrieved by the decision given by the NCLAT, then he/she may refer the matter to the High Court or Supreme Court.

National Company Law Tribunal powers

NCLT, as a new institution, has been given a few additional powers that were attributed to the previous authorities, all the powers had to be read as additional to previous powers and not in isolation. 

Following are the powers of NCLT:

Class Action SuitA class action suit is to be filed in National Company Law Tribunal when suit consisting of claims are standard for more than one person or people at large. This new pattern of filing a complaint against the company was new method making it is more accessible to people located in different areas, for claims like this an agent is appointed to deal with the matter that had been filed in NCLT.

Registration of Companies: A new stringent scrutinizing committee has been formed to scrutinize the document and other incidental requirements for registering a company under the guidelines issued by the NCLT. It also has been allotted with the powers of wiping out the registration of the company/ companies. A new method of de-registration has supplemented the powers given by the law to authorities.

Order for the Investigation: NCLT now can order a special investigation under the certain order established by the law in this behalf, an order for investigation of the companies result in in-depth checking of the transaction, company affairs and any other matter incidental to company or stated in the investigation order.

Conversion of Company from Public Ltd. to Private Ltd.: A prior approval from NCLT is to be taken for the process of changing status from public to private ltd company, Nclt may after receiving the application for such change of status provide direction to reduce the deviation or providing the precautionary measure for avoiding the violation of provisions of Companies Act, 2013.

The stages of Resolution Process are as below;

  1. Notice Publication - The RP publishes a notice in newspapers to call for filing claims against the Corporate Debtor by a stipulated time.
  2. Processing of Claim - After RP receives the claims, it will check the same from the records of the Corporate Debtor.
  3. Memorandum - After the claims have been verified, the RP prepares the Memorandum which contains all information of Assets and Liabilities of the Corporate Debtor. Moreover, that Memorandum will be sent to all Financial Creditors of the Corporate Debtor, whose claims have been accepted.
  4. Meetings of Committee of Creditors - After sending the Memorandum, a meeting of Committee of Creditors will decide whether the information mentioned in the Memorandum has been correctly prepared or not. The Committee of Creditors will include the financial creditors of the Corporate Debtor.
  5. Resolution Plan - The RP after the formation of the Memorandum will invite the resolution plans for the debtor by an advertisement in the newspaper.
  6. Rejection or Acceptance of Resolution Plan - After receiving the plan of the resolution, the RP will conduct a meeting of Committee of Creditors to check the plan which will result in acceptation or rejection, and after that, the plan is submitted before NCLT for final approval.
  7. Extension - The duration for the completion of the CIRP is 180 days, and if the Committee Of Creditors (COC) does not accept the Resolution Plan within 180 days then they can extend the duration for not less than 90 days.

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National Company Law Tribunal

By: Commmercial Contracts 19 Sep 2019

On 01 June 2016, the Ministry of Corporate Affairs has issued three notifications for setting and developing the National Company Law Tribunal (NCLT) and National Company Law Appellate Tribunal (NCLAT). Now, MCA after the constitution of NCLT and NCLAT has come up with the notification of rules, the procedure for filing the application, petition or appeal on 21 July 2016.

The Government establishes the Tribunals under section 8 of the Companies Act, 2013 with effect from 01 June 2016. They have also established the Debt Recovery Tribunal to deal with all insolvency cases speedily.

In the first phase, eleven benches have been set up. The Principal Bench is located at New Delhi and regional benches at New Delhi, Ahmedabad, Allahabad, Bengaluru, Chandigarh, Chennai, Guwahati, Jaipur, Hyderabad, Kolkata and Mumbai. Any company that wants to continue against its debtors can approach NCLT for Winding Up, Liquidation to recover their dues or Strike Off.

'The Corporate Insolvency Resolution Process (CIRP)’ can be initiated by making an application to the NCLT by the Financial Creditors under Section 7 of Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as "IBC") or by Operational Creditors under Section 9 and by the Corporate Debtor himself under Section 10.

Significance of NCLT and NCLAT

It is a semi-legal specialist institution formed by the suggestion provided by the Eradi Committee to promote the amicable settlement amongst corporate matters. It is formed by the notification provided in the official gazette and with an intent to reduce the burden on the traditional court of law. NCLT helps to set off corporate claims, declare the corporate rights, undo the wrong done further deciding the punishment and penalties for the person held liable for the violation of the provision of Companies Act, 2013 and matters incidental to. NCLT is an institutional version of courtroom specifically dealing in matters relating to companies/ corporate entity for filtering the futile claims in providing a conclusion to request coming up to the authority smoothly without unnecessary delays. NCLT is the product of the Eradi Committee which filtered or eliminated all the lacunas of the previous institutions established previously. NCLAT, on the other hand, is a type of audit institution on the decisions provided by NCLT. It is an appellate tribunal handling appeals of in cases filed with the NCLT, by the aggrieved by the decision was given, then to file an appeal against the same. Further, if any person is aggrieved by the decision given by the NCLAT, then he/she may refer the matter to the High Court or Supreme Court.

National Company Law Tribunal powers

NCLT, as a new institution, has been given a few additional powers that were attributed to the previous authorities, all the powers had to be read as additional to previous powers and not in isolation. 

Following are the powers of NCLT:

Class Action SuitA class action suit is to be filed in National Company Law Tribunal when suit consisting of claims are standard for more than one person or people at large. This new pattern of filing a complaint against the company was new method making it is more accessible to people located in different areas, for claims like this an agent is appointed to deal with the matter that had been filed in NCLT.

Registration of Companies: A new stringent scrutinizing committee has been formed to scrutinize the document and other incidental requirements for registering a company under the guidelines issued by the NCLT. It also has been allotted with the powers of wiping out the registration of the company/ companies. A new method of de-registration has supplemented the powers given by the law to authorities.

Order for the Investigation: NCLT now can order a special investigation under the certain order established by the law in this behalf, an order for investigation of the companies result in in-depth checking of the transaction, company affairs and any other matter incidental to company or stated in the investigation order.

Conversion of Company from Public Ltd. to Private Ltd.: A prior approval from NCLT is to be taken for the process of changing status from public to private ltd company, Nclt may after receiving the application for such change of status provide direction to reduce the deviation or providing the precautionary measure for avoiding the violation of provisions of Companies Act, 2013.

The stages of Resolution Process are as below;

  1. Notice Publication - The RP publishes a notice in newspapers to call for filing claims against the Corporate Debtor by a stipulated time.
  2. Processing of Claim - After RP receives the claims, it will check the same from the records of the Corporate Debtor.
  3. Memorandum - After the claims have been verified, the RP prepares the Memorandum which contains all information of Assets and Liabilities of the Corporate Debtor. Moreover, that Memorandum will be sent to all Financial Creditors of the Corporate Debtor, whose claims have been accepted.
  4. Meetings of Committee of Creditors - After sending the Memorandum, a meeting of Committee of Creditors will decide whether the information mentioned in the Memorandum has been correctly prepared or not. The Committee of Creditors will include the financial creditors of the Corporate Debtor.
  5. Resolution Plan - The RP after the formation of the Memorandum will invite the resolution plans for the debtor by an advertisement in the newspaper.
  6. Rejection or Acceptance of Resolution Plan - After receiving the plan of the resolution, the RP will conduct a meeting of Committee of Creditors to check the plan which will result in acceptation or rejection, and after that, the plan is submitted before NCLT for final approval.
  7. Extension - The duration for the completion of the CIRP is 180 days, and if the Committee Of Creditors (COC) does not accept the Resolution Plan within 180 days then they can extend the duration for not less than 90 days.

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Rules to be followed by the Ganpati Mandals

By: admin Others 11 Sep 2019

The Mandal should take permission from the maintenance department of Brihanmumbai Municipal Corporation (BMC), which sanctions the setting up of the mandap. The willing Mandals need to submit an online application for receiving the consent for setting up the Mandap.

The BMC issues two months prior notice to the Ganesh festival for the Ganesha Mandals across the city to seek permission by applying online. The BMC online application system is linked with the police and traffic department, respectively.

Before submitting the application to BMC, the applicant needs to sign an undertaking cum Indemnity Bond for fire safety requirements of the fire brigade. The Chairman, Secretary and applicant all three have to sign the undertaking or the bond.

After submitting the applications, the applications are forwarded to ward offices along with the police and traffic department within three days for approval.

Apart from the online permission, the Mandals have to obtain permission from the local police station for Agaman, Visarjan and playing sound system.

The notice issued states that the Mandals will have to follow the rules and regulations stated by BMC in Mumbai.
As per the High Court, the core committee of the Mandal has to take the permission of the City Police Commissioner so that police can ensure the right of the citizens, smooth movement of traffic and free pedestrian movement on footpaths.

Mandals should comply with the rules related to the location, immersion, sound limits etc. Some of the rules that should be followed by the Mandals are as follows:

  1. The Mandal cannot set up a Mandap which encroaches a footpath or obstructs traffic. 
  2. The Mandal Committee members shall take measures to prevent sound pollution and should not use loudspeakers after 10 p.m.
  3. The Mandap should be located minimum 10 feet away from a building; also the road leading towards the Mandals should not have any obstructions for e.g. the parked vehicles, hoardings, etc. 
  4. The Mandap should be at least 15 meters away from railway and from combustible places such as an electric sub-station, chimney or furnace.
  5. The necessary fire safety measures should be taken, including electrical wiring, fire extinguishers (both water and dry powdered ones), etc. 
  6. Permission from police and traffic department is essential.
  7. The rules stated by BMC has clearly mentioned that the holes should not be made on the road. If any Mandals is found making holes on the road will be penalized with a hefty fine.
  8. It is necessary to mention the dimension of the Mandap with respect to its height, width, size, etc. while filling up the application form in order to get consent.
  9. No hoardings of advertisement related to tobacco and the related products anywhere within or around the mandap shall be found. The hoardings should not create an obstruction for the movement of people and emergency vehicles like an ambulance.
  10. The Mandal should be responsible for maintaining hygiene and cleanliness all around the Mandap for all days of the festival. After the celebration is done, the very next day, the whole place where the Mandap was built should be cleaned up. There should be no presence of litter/ garbage left around the Mandals. 
  11. No stalls are allowed to set up inside the Mandals. The stalls set outside the Mandals are not permitted as they can possibly create an obstruction to the road.  It is necessary to take permission for setting temporary arches, gates which the Mandals may build temporarily at the entry or exit point of the Mandap.  
  12. Every Mandal should display the telephone or mobile number of the competent authority for various civic services, complaints, health-related complaints,  for security purpose and different type of nuisance.
  13. The toll- free number should be displayed on the Mandap for the public to lodge a complaint if any.
  14. The organisers should not deliver the speeches or try to create violence in any way by insulting or abusing the people coming for darshan.

As per the guidelines issued by Bombay High Court, the Mandals have to give an undertaking that they will not cause inconvenience to the traffic and pedestrian movement, violate fire safety rules, play loudspeaker after the appointed time, create potholes on the road where Mandals are set. The Mumbai Police issues traffic advisory this year to deploy the 40,000 personnel for security of people. The municipal authorities have allowed not more than 200 people to cross the bridges in the allotted time this year and also some roads have been closed ahead for the Ganpati festival.

Over 50 Mandals were found violating the high court norms last year, after which the BMC served a notice stating that they would not get permission to erect Mandaps if they have flouted the rules given by the BMC.

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Need to amend CrPC and IPC to increase the conviction rate.

By: admin Criminal 29 Aug 2019

Indian Criminal system has a serious backlog on pending investigations and trials. This shows that the crises are becoming more severe with each passing year. The conviction rate in criminal cases is pitiful as stated by the Union Home Minister Amit Shah while addressing the 49th Raising Day Event of the Bureau of Police Research and Development (BPRD). The level of success depends upon the level of evidence required for conviction. He addressed the age-old police techniques like ministering third degree, and the typical process of phone tapping will not help yield the desired results to curb the crime rate.
 
Suggestion for the Bureau of Police Research and Development

The Union Home Minister has suggested the following steps to improve the rate of conviction substantially:

  1. He indicated that the rate of conviction could be corrected when supported by forensic evidence.
  2. Shah suggested BPRD prepare a blueprint for the creation of modus operandi bureaus at the state and national level.
  3. Bureau will study the technique of crime and the mentality of criminal, and this will help to reduce criminal activities.
  4. They will prepare and suggest better working policies and technology solutions for the police forces
 
Forensic Science Laboratories (FSL):

FSLs are government laboratories equipped and charged to deal in the scientific examination of circumstantial evidence such as examination of poisons, blood, and physical.FSL reports are the reports suggested by the government laboratories in almost all criminal cases. The FSL report given to the court is the final phase in Conviction.

Usage of improvised FSL for increasing the conviction rate:

The use of forensic evidence is the need of the hour for police investigators to clinch convictions against criminals.
The government is revolving to make forensic evidence compulsory in all criminal cases where the quantum of punishment is seven years or more. The usage of FSL should be encouraged and made compulsory under law.
 
Consequences of improvising tools for Forensic evidence:

The Union Home Minister suggests that if charge sheet is supported by forensic evidence, then there will be no more options before the judge and the defence lawyers.  He added that automatically the conviction rate would be improvised. 
Police and national forensic science university will be created at the national level along with college affiliates for students who are willing to pursue a career in police or CAPFs. The ambit of forensic based investigations will be widened. 
 
Upcoming reformations:

As there are no changes in CrPC and IPC for a long time, the suggestions and recommendations of the BPRD will initiate a process for effective changes in CrPC and IPC the primary laws governing the criminal offences in India.

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Motor Vehicle Amendment Act, 2019

By: admin Accidents 28 Aug 2019

On 23rd July 2019, the LokSabha has passed the Motor Vehicle Amendment Act, 2019 but they have only recently come into effect. Union Minister of Road Transport and Highways introduced the act to amend the Motor Vehicle Act, 1988. It has introduced the norms for acquiring the driving license and strict penalties for the violation of traffic to reduce the road mishaps in the country. The transport ministry issued a notification on August 28, 2019, listing out all the laws that have come into effect from September 1, 2019.

The notable amendments are as follows:

Driving License: The amendment proposes to remove the minimum qualification required to own a driving license, as long as the applicant holds a certificate from a driving school. As per 1988 law, of the Central Motor Vehicle Rules, 1989 only a person who has completed class VII can hold a license. In the case of expiry of the license, it can get renewed in the period of one year. Drivers may be asked to undergo a driving refresher training course for reviewing the licenses once they are suspended or revoked.

The new law also provides regulation for taxi aggregators such as Ola and Uber. They will now have to get a license from the state government where they operate along with the confirmation of the Information Technology Act 2000.

Accountability: The amendment seeks to fix the liability of contractors for the designs of faulty roads. If the contractor failed to follow the prescribed designs, and if the failure results in injury or death of that person, they will be held responsible for the same. This provision was not included in the earlier Act. Juveniles are not allowed to drive a vehicle, and if found the driving or causing an accident, the guardian or the owner will be held liable for the offence. The penalty for this crime is Rs25000 or 3 years imprisonment for guardian/owner or both

Earlier, there was no law directing manufacturer to withdraw defected models or component of a vehicle from the market. The new amendment empowers the centre to do so if defects are reported by considerable users.

Protect the Good Samaritans: The amendment has empowered the Central Government to make rules protecting the good Samaritans from civil or criminal proceedings. The Good Samaritans are the people rendering emergency care to the road accident victim.

Liability: The maximum compensation a claimant can get from the government is Rs.5 lakh in case of death and Rs.2.5 lakh in case of grievous hurt on a no-fault basis. The no-fault victim is those who are killed in a hit and run accidents in which the vehicle undertaking accident was not identified.

Insurance: The amendment introduced a Motor vehicle Accident Fund that will provide compulsory insurance on all road vehicles and compensation for the victim of a hit and run and other cases of accident. It is necessary to claim petition within six months from the date of the accident. In case of death of the injured person, his legal representatives will have the right to claim the compensation. The amendment has added the concept of the golden hour, i.e. the central government have scheme giving cashless treatment to the victims in the first hour of a traumatic injury.

Penalties:

Offences

Penalty as per old  Act in Rupees

Penalty as per the new amendment in Rupees

Violation of traffic rule and regulation

100

500

Driving a vehicle without holding a license

500

5000

Not wearing a seat belt

100

1000

Drink and Drive case

2000

Imprisonment up to 6 months or fine of Rs. 10000 or both.

Not allowing emergency vehicle to pass

No provision

10000

If driver over speeds the vehicle

400

1000 – light vehicle

2000- heavy vehicle

Driving without qualification

500

10000

Vehicle without permit

5000

10000

Driving without insurance

1000

2000

Travelling without Ticket

200

500

Dangerous Driving

-

Imprisonment of 6 months to 1 year and/or fine of Rs. 1000- Rs. 5000 for first offence and imprisonment up to 2 years and/or fine up to Rs. 10000 for the second offence.

 

Causing obstruction to free flow of traffic

50

500



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The Growth of technology Patents in India

By: Adv. Ayantika Mondal Others 22 Aug 2019

The word ‘Patent’ is equivalent to monopoly rights over an invention. Not all inventions are patentable and nor is it essential to protect one’s invention solely through a patent. Once a patent is granted, the patent inventions confer certain rights on the rightful owner, it is a right capable of protection under the Patent Act. 

A patent is essential to a company because it can help to safeguard one’s invention, innovation or an idea. It can protect any product, design or process that meets certain specifications based on its originality, practicality, suitability, and utility.

As a report generated by the World Intellectual Property Organization (WIPO) listed below is a list of reasons as to why one should patent their idea and innovation.

The owner has the following rights:

  1. Patents provide exclusive rights which usually allows your Company to use and exploit the invention for the term of the Patent
  2. Deter competition based on this monopoly/exclusive rights
  3. Controlled deployment and development process of your technology
  4. Through these exclusive rights, your Company can prevent others from commercially using your patented invention. This helps you to establish your Company in the market
  5. You can commercialize on these exclusive rights to obtain higher returns on your investment
  6. You have an opportunity to license or sell your invention in order to optimize on your commercialization and earn a chance to charge a hefty royalty fee 
  7. An IP right such as a Patent will increase your negotiating power in case of a joint venture/ new business
  8. Shareholders will perceive your IP portfolio as a high level of the technological capacity of your Company.

The History of patent law in India can be traced back to 1911 when the Patent and Design Act was enacted, however, it was repealed and the present Patents Act, 1970 came into place to amend and consolidate the earlier patent laws.

The rightful owner enjoys monopoly rights over his patent for a period of 20 years after which it shall be open to exploitation by others. This time period starts soon as you file your patent.

India is on course to become one of the leading hubs for innovation, research and development, because of which even the intellectual property (IP) industry is showing huge potential for growth.

Emerging techs such as the Internet of Things (IoT), Artificial Intelligence (AI), and Cyber Security accounted for 50 % of the tech patents filed in the year 2017 to 2018.

Wipro has filed a patent application to generate a safe navigation path for driverless vehicles, and TCS has filed a patent application for pest management, where the system provided pest forecasting using historical pesticide usage information.

Innovation is the key to drive the transformation, and such IP is a testimony to this transformational growth in India.

As stated in the report updated by NASSCOM ‘Emerging Technologies: Leading the next wave of IP Creation for India', Indian firms filed over 4,600 patents between 2015 and 2018. A majority of these patents were in the technology domain.

The report has showcased how Indian firms are creating IP assets in the United States, which is one of the most favoured countries to file a patent.

Additionally, the report also has found that the share of tech patents are on the rise. During the year 2017-18, the tech patents were 65 per cent of the total patents filed.

Having patents in an emerging tech is definitely a source of competitive advantage, especially as companies are transitioning to build and use products and platforms on which companies compose, design and implement their work and research.

The Nasscom President stated that Innovation is the key to drive transformation and such patents are a testimony to this transformational growth. She further added that as a country,  India could further strengthen its potential as an innovation hub through more frequent investments in research and strategic collaborations. We are confident that we will usher in a new wave of innovation and intelligence in the country.

Nikhil Malhotra, from Tech Mahindra, said that in addition to being a competitive advantage, creating IP can also help to drive long term revenues as well as boost employee morale.

Indian technology companies have stepped up filing patents as they build solutions and products in emerging technologies and look to monetise their IP and grow their business faster. The proliferation of digital technologies across industries is perhaps the biggest reason why these firms are rushing to create IP.


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Citizenship under the Indian Constitution

By: admin Others 16 Aug 2019

What does the term Citizenship mean?

For many, the word ‘Citizenship’ conjures images of a strong national identity determined by birth, ethnicity, history, culture and. In a legal sense, ‘Citizenship’ indicates the political status and relationship shared by an individual and the nation. Generally, the individual is conferred protection by the nation in return for fulfilling certain obligations owed by the individual to the state.

Citizenship is a status granted by becoming a member of the nation through appropriate law. Any person can become a member of the country by satisfying the legal requirements of the respective country. In simple terms, the virtue of being a citizen of the country is called citizenship.

Every state grants some rights and privileges to its citizens, and they are also bound to follow the regulations framed by the government of the respective country.

Nationality Vs Citizenship

‘Nationality’ and ‘Citizenship’ are one of the most misconstrued and misunderstood terms. For a layman, ‘nationality’ works as a substitute for ‘Citizenship’ and vice versa. However, one of the major difference between the two concepts is that nationality can't be changed while citizenship can. To further explain this statement, we should take the following into consideration: The nationality of a person, reveals his/her place of birth, i.e. from where he/she belongs. It defines the belongingness of a person to a particular nation. And on the contrary, Citizenship is granted to an individual by the government of the country, upon completing legal formalities.

The Citizenship law in India

The Citizenship law in India is governed by the Citizenship Act, 1955 and The Constitution of India. India is one of the very few countries whose Citizenship law is incorporated in the Constitution. Due to unavoidable circumstances that arose because of the partition of India and Pakistan and the freedom of Indian state to either join the Union or leave it, the citizenship law had to be incorporated in the Constitution.

How can one acquire Indian citizenship?

To be entitled to acquire Citizenship by Domicile there are 3 conditions which need to be fulfilled:-

  1. He must have been born in the territory of India,
  2. Either of his parents must have been born in the territory of India,
  3. He must have been ordinarily residing in India for not less than five years immediately preceding the commencement of the constitution.

Ways through which a person can acquire Citizenship and become a recognized citizen are:-

  1. Birth (A Person Born in India shall be Citizen),
  2. Descent (A person born outside India shall be a citizen of India by descent),
  3. Naturalization (Citizenship of India by naturalisation can be acquired by a foreigner who is ordinarily resident in India for twelve years),
  4. Registration (Citizenship of India by registration),
  5. Marriage,
  6. Incorporation of the territory.

Status of Dual Citizenship in India

The Indian constitution does not allow its citizens the right to dual citizenship. But there are some powers that are in relation to dual citizenship, similar if not the same. When you become an Indian citizen, you will be obliged to give up your previous passport.

The provision of Overseas Citizenship of India and Person of Indian Origin is often confused with dual citizenship. There is a misconception that our Indian Constitution grants the provision for dual citizenship. However, the terms are explained below:

Non-Resident Indians: Those who still hold Indian passports but work or live in other countries;

Person of Indian Origin (PIO) cardholder: Someone who is a foreign citizen but who at some point of time held an Indian passport or whose parents/grandparents/great-grandparents were born and permanently resided in India or is a spouse of a citizen of India or a PIO and;

Overseas Citizenship of India (OCI) cardholders: Those who have given up their Indian passports but hold certain rights in India except voting rights.

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Basic Structure of the Indian Constitution

By: admin Others 14 Aug 2019

- According to the Indian Constitution, the Parliament and the state legislatures have the supreme power to make laws within their respective jurisdictions.

- The Constitution vests the power to adjudicate the constitutional validity of all laws enacted in the judiciary.

- Bills passed to amend the Constitution can only be introduced in the Parliament, but this power is not absolute in nature.

- If the Supreme Court finds that any law passed by the Parliament or the state legislature’s, is inconsistent with the Constitution or violates any provision of the Constitution, the court has the power to hold that law to be invalid, void or ultra vires.

- The founding fathers of the Constitution wanted it to be an adaptable document rather than a rigid and unchangeable framework dedicated to governance.

- Hence, the Parliament was invested with the power to amend the Constitution through Article 368 of the Constitution. It gives the impression that the Parliament's amending powers are absolute in nature.

- But the Supreme Court has acted as a conscious and continuous break to the legislative enthusiasm of the Parliament ever since independence was attained.

- With the intention of preserving the philosophy and the original ideals of the Constitution as envisioned by the constituent assembly, the Apex Court held that Parliament could not distort, damage or alter the basic features under the pretext of amending the Constitution.

- The Supreme Court has laid down the basic structure doctrine. According to the doctrine, the Parliament cannot destroy or alter the basic structure of the doctrine.

- The phrase basic structure itself is not described anywhere in the Constitution.

- The Supreme Court recognised the concept of the basic structure for the very first time in the landmark judgement of the Kesavananda Bharati case in 1973.

- The concept of the doctrine developed gradually with the interference of the judiciary from time to time to protect the basic rights of the people and the ideals and the philosophy of the Constitution.

- Ever since the Supreme Court has been the interpreter of all amendments made by Parliament to the Constitution

The inception of the Doctrine of Basic structure

  • The unspoken tiff between the Judiciary and the Legislature took a different shape after the decision in the IC Golakh Nath case.
  • The Constitution (24th Amendment) was passed to nullify the IC Golakh Nath Case.
  • 4 clauses were added in the Article to blanket the fact that the Parliament holds an omnibus constituent power.
  • The Constitution (25th Amendment) introduced a new provision, Article 31C, in the Constitution under which law giving effect to the Directive Principles of the State Policy enumerated under Part IV of the Constitution were deemed automatically valid despite any inconsistency with the fundamental rights granted under the Constitution.
  • Fundamental Rights are more ascertained rights given to all individuals and the Directive Principles are mere measures to be followed by the states. Hence, the Directive Principles cannot be inconsistent or in violation of the basic fundamental rights of an individual.
 

Keshavananda Bharati case

The Keshavananda Bharati case challenged certain amendments of the Constitution. Some of the points put forward were: -

  • No distinction between Constituent power and Legislative Power
  • IC Golaknath was correctly decided, and wrongly nullified.
  • ‘We the people’ have given only limited rights to the Parliament
  • Article 368 - not a charter to sign death wish
  • Parliament not an official liquidator of the Constitution
  • Parliament only a creature of the Constitution not it's master
 

What can be defined as the basic structure?

From time to time the basic structure is enhanced with some new content and clarification, and hence the Supreme Court is yet to define the exact basic structure of the Constitution. It has laid down a vague list of topics through various judgements. Below is a list of some topics that can be covered under the basic structure doctrine, this list is only illustrative and not nearly exhaustive:

  • The supremacy of the Indian Constitution
  • Democratic View
  • The rule of law
  • Sovereignty, liberty and republic nature of Indian polity
  • Judicial review
  • Harmony and Balance between fundamental rights and directive principles
  • Separation of power
  • Federal character
  • Dignity of Individual
  • Parliamentary system
  • Rule of equality
  • Unity and integrity of the nation
  • Free and fair elections
  • Powers of SC under Article 32,136,142,147
  • Power of HC under Article 226 and 227
  • Limited power of parliament to amend the Constitution
  • Welfare state
  • Freedom of an individual
  • Free and fair elections
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A comparative study of the Indian, UK and the US Constitution

By: admin Others 14 Aug 2019

A constitution is a set of rules that govern a country. Some countries have a formal written constitution in which the structure of government is well defined, and the respective powers of the country and the states are written in one single document, and some have unwritten constitutions which mean there is no formal written constitution. Their constitutional rules are originated and based on a number of sources.
 
For example; Britain sources its constitution from several important statutes, or laws, as well as principles decided in legal cases and conventions. New Zealand and Israel are two other countries that do not have formal written constitutions.
 
Listed below are some comparisons in the study of Indian, UK and the US constitution.
 
India UK US

Written Constitution

(Lengthiest in the world)

Unwritten Constitution

(based on conventions and political traditions)

 

Written Constitution

(shortest constitutions amongst major world powers)

 

The process of amendment:

Amending the Constitution is a combination of rigid and flexible process. It Can be amended by a Simple Majority, Special Majority or ratification by more than half of the states.

(Basic structure cannot be amended)

 

The process of amendment:

Constitution amending procedure is flexible can be amended or repealed by a Simple Majority.

(Since no distinction is made between constitutional law and ordinary law. Both are treated alike)

The process of amendment:

The process is very rigid

(2/3rd of the States should pass a resolution to this effect. Congress will call the convention. In the convention, it has to be ratified by 3/4th of the States)

Center  + State:

The interdependence of Centre and state govt. Neither of them is independent of the other. The Central government interferes with the functions of state governments. The head of state is the president while the actual head of the government is the prime minister. 

Unitary:

The British constitution has a unitary character as opposed to a federal one. All powers of the government are vested in the British Parliament, which is a sovereign body.

 

Federal:

Dual Federation (USA) – both the Centre and state are completely independent. They are complete governments.

the Federal Government and States have their Constitutions and do not interfere in each other’s functions

 

Government:

India has adopted a Parliamentary form of government.

Both President and Governor exercise the power of ordinance making under the constitution, thus performing legislative functions.

 

Government:

Britain has a parliamentary form of government. The real functionaries are Ministers, who belong to the majority party in the Parliament and remain in office as long as they retain its confidence. (The UK is the self-governing country, but the head of the state is monarch)

 

Government:

America has adopted a Presidential form of government. The President is both the head of the state as well as its chief executive.

 

Term:

the Indian President and Prime Minister holds the office for 5 years

(can be extended)

 

Term:

The British prime minister holds the office for 4 years(can be extended)

Term:

The term of the American President is 4 years (fixed-term)

Separation of Powers:

Parliament is entrusted to make the law; Executive is entrusted with the duty of implementation of the law, Judiciary to implement the law.

 

Separation of Powers:

The Lord Chancellor is the head of the judiciary, Chairman of the House of Commons (Legislature), a member of the executive and often a member of the cabinet. The House of Commons ultimately controls the Legislative. The judiciary is independent, but the judges of the superior courts can be removed on an address from both Houses of Parliament.

 

Separation of Powers:

Art. I vest legislative power in the Congress; Art. II vests executive power in the President and Art. III vests judicial power in the Supreme Court.

Citizenship:

India has one constitution and concept of single citizenship for every citizen of the country.

Citizenship:

The UK constitution has not been codified in one document. General constitutional principles run through the law. Central statutes have been recognised as holding "constitutional" value.

Citizenship:

America has adopted the doctrine of the dual ship in respect of its Constitution and citizenship. It has two Constitutions, one, for America as a whole and another for each State.

The sovereignty of power:

The Parliament can modify the major portion of the Constitution through its constituent power.

The Supreme Court can declare the parliamentary laws as unconstitutional through its power of judicial review.

The sovereignty of power:

The British Parliament is the only the legislative body in the country with unfettered power of legislation. It can make, amend or repeal any law. The courts have no power to question the validity of the laws passed by the British Parliament. The British Parliament may amend the constitution on its authority, like an ordinary law of the land.

 

The sovereignty of power:

The principle of judicial supremacy lies with the American Supreme Court.

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Can the Indian Constitution be Amended?

By: admin Others 13 Aug 2019

Under the Constitution, India declares itself as a ‘Sovereign, Socialist, Secular, Democratic, Republic’ country. The Constitution of India was passed by the constituent assembly on 26 November 1949, and it came into effect on 26th January 1950.

No Written Constitution is complete without providing amending provisions; in some respects, the amending provision is the most important part of the Constitution. The term ‘amendment’ derives from the Latin word ‘amendere.’ The term ‘amend’ generally means to make right, to make a correction or to rectify. In common parlance ‘amendment’ conveys the sense of a slight change.

The object of the amending clause in a Constitution is to ensure that the Constitution is preserved. A State cannot be static. A Constitution should be dynamic and adaptable in nature to keep up with the changing needs of society. A change in society will require a change in the Constitution. Article 368 of the Indian Constitution lists down the procedure of Amendment.

The amending provision in the written Constitution assumes great importance because it gives a chance to the successive generation to grow it as per their needs. The amending process is an opportunity to express state-related concerns without derogating from the basic fundamental constitutional principles. The constitution was framed nearly 70 years ago, the framers then, could not possibly anticipate the current Indian political and socio-economic condition. An amendment is made with a view to overcoming the difficulties which may arise in future in the working of the Constitution.

There are two types of amending procedures; Rigid: difficult to amend the constitution (e.g. US, Canada) and Flexible: easy to amend with passing normal legislation.

The Indian Constitution is both rigid as well as flexible, i.e. it is difficult to amend but under necessary conditions practically flexible. The formal method of an amendment is described in Part- XX of the Constitution, which consists of Article 368 only.

An amendment may be introduced by way of a Bill in either House of Parliament, and when the Bill is passed in each House by a simple majority or a special majority or by a majority of not less than two thirds of the total members of that house present and voting, it shall be then presented to the President who shall give his assent to the Bill. The Constitution shall then stand amended in accordance with the terms of the Bill.

The amendment shall also be ratified by the Legislature of not less than one half of the States by resolutions before the Bill is presented to the President for assent.

However, it is crucial to take into consideration that the Parliament is a part of the Constitution, no doubt Parliament can amend the Constitution, but that does not mean that Parliament could so amend provisions of the constitution so as to change its own constituent power beyond any recognition.

From Keshavananda Bharathi case to I.R.Coelho case, the Supreme Court repeatedly stressed on the point that the Parliament has no power to bring an amendment to the basic structure of the Constitution. The basic structure includes but is not limited to the concept of supremacy of the Constitution, republican and democratic form of government, secular character of the Constitution, separation of powers between the legislature, executive and the judiciary etc. Thereby it imposes implied limitations upon the power of Parliament.

List of some amendments:
  1. Empowered the state to make the advancement of socially and economically backward classes. – In 1951
  2. Included a new subject in the Union list, i.e. taxes on the sale and purchase of goods in the course of inter-state trade and commerce and restricted the state’s power in this regard. – In 1956
  3. Incorporation of Dadra, Nagar and Haveli as a Union Territory, consequent to acquisition from Portugal – 1961 
  4. Enabled the High court’s to issue writs to any person or authority even outside its territory’s jurisdiction if the cause of action arises within its territorial limits – 1963 
  5. The Act extends reservation of seats for the Scheduled Castes and the Scheduled Tribes in Parliament and the State Assemblies and the representation of Anglo-Indians by a nomination for a further period of 10 years – 1980
  6. It confers Statehood on Goa and forms a new Union Territory of Daman and Diu. Goa thus became the 25th State of the Indian Republic – 1987
  7. To ensure direct election to all seats in Panchayats; to reserve seats for SCs and STs in proportion to their population, and for reservation of not less than one-third of the seats in Panchayats for women – 1992 
  8. It deals with an alternative scheme for sharing taxes between the Union and the States – 2001 
  9. Provides Right to Education until the age of fourteen and early childhood care until the age of six – 2002 
  10. Provided for 27 per cent reservation for other backward classes in government as well as private higher educational institutions – 2006
  11. The amendment provides for the formation of a National Judicial Appointments Commission – 2014 
  12. Reorganization of Jammu Kashmir; The Union Territory of Jammu and Kashmir with a legislature, and the Union Territory of Ladakh without a legislature.  The Union Territory of Ladakh will comprise Kargil and Leh districts, and the Union Territory of Jammu and Kashmir will comprise the remaining territories of the existing state of Jammu and Kashmir –2019 

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Overview of the Indian Constitution

By: admin Others 12 Aug 2019

The Constitution is the supreme law of the land. It protects individual freedom and its fundamental principles govern India.

The Constitution is not created by the Parliament but by a constituent assembly and adopted by its people. Therefore, it is based on constitutional supremacy rather than parliamentary supremacy, and the Parliament cannot override it, although they have the power to amend it.

It all began when the constituent assembly set up a Drafting Committee on 29th August 1947 to frame the Indian Constitution. The Chairman of the Committee was Dr B.R. Ambedkar along with six other members. They were majorly inspired by the British Constitution.

However, there was a lot of frameworks that are taken from other countries too, like the idea of the preamble taken from the United States.

The constitution of India was adopted on the 26th of November, in the year 1949. However, it came to effect on the 26th of January, 1950. Hence, 26th January is celebrated as the Republic day of India. After the adoption of the constitution, the Union of India became the contemporary and modern Republic of India.

The Indian Constitution is the world's lengthiest written constitution. It had 395 articles, 22 parts and 8 schedules at the time of commencement. Now, after the amendments, it has 448 articles in 25 parts and 12 schedules. As of March 2019, there are a total of 103 amendments that have been made in the Indian constitution so far.

 

Part I

Article 1 – 4

Laws under which the States can be divided or merged with a simple Parliamentary Majority.

Part II

Article 5 – 11

Provision and laws for determining who shall be a citizen of India.

Part III

Article 12 – 35

Fundamental rights are captured in this part. The  Golden Triangle of rights: - Equality before the law, Right to freedom of speech and protection of life and liberty is the most import section of this part.

Part IV

Article 36 – 51

Directive Principles of State Policy, i.e. they largely promote the general welfare of the people, but they cannot be enforced.

Part IV-A

Article 51 A

Lists down the duties to be followed by the people of India even though they are not enforceable in nature.

Part V

Article 52 – 151

-    Article 52 to 62: Powers of the resident and the Executive;

-    Article 63 to 71: Powers of the Vice President;

-    Articles 79 to 122: Details of the Parliament;

-    Articles 124 to 147: Details of the Union Judiciary;

-    Articles 148 to 151: The role and duties of the Comptroller and Auditor General of India.

Part VI

Article 152 – 237

It lays down the duties, functions of a CM, his Ministers, the Governor, State The legislature, High courts and the Advocate General of the State.

Part VII

Article 238

This part deals with States but was repealed by the Constitution (Seventh Amendment) Act, 1956.

Part VIII

Article 239 to 241

Procedures of administration and provisions in Union Territories and special character of Delhi. Article 242 was repealed.

Part IX

Article 243 - 243 O

The Constitution of  Panchayats and Gram Sabha, their working duration, qualifications, responsibilities and powers.

Part IX-A

Article 243P - 243 ZG

The Constitution of Municipalities their working duration, qualifications, responsibilities and powers.

Part X

Article 244 - 244A

The procedures of administration for Scheduled and Tribal areas.

Part XI

Article 245 – 263

The distribution of  legislative powers between the Centre and the States. 

Part XII

Article 264 - 300A

The distribution of revenue between Union and States, the appointment of the Finance Commission, public accounts and etc.

Part XIII

Article 301 – 307

Deals with freedom of Trade, Commerce and Intercourse throughout India. It also mentions the power of the Parliament and state to impose restrictions on the same.

Part XIV

Article 308 - 323

Provisions of the Union Public Service Commission and the State Public Service Commission.

Part XIV-A

Article 323A - 323B

Deals with administrative tribunals. It was introduced to hear disputes and complaints regarding the Union, States or Local Government employees.

Part XV

Article 324 - 329A

Deals with the conduct of Elections and the Election Commission. 

Part XVI

Article 330 – 342

Certain provisions for Scheduled Castes, Scheduled Tribes and Anglo-Indian representation.

Part XVII

Article 343 – 351

The Official Language of the Union shall be Hindi in Devnagri script. 

Part XVIII

Article 352 – 360

The procedure and effects of procurement of Emergency.

Part XIX

Article 361 – 367

Miscellaneous provisions such as the protection of the President and other Legislators. 

Part XX

Article 368

Provides the power to the Parliament to amend the Constitution and procedure thereof.

Part XXI            

Article 369 – 392

Temporary power to the Parliament to make laws with respect to certain matters in the state list and concurrent list. Article 370 is repealed.

Part XXII

Article 393 – 395

Short title and the commencement of the Constitution.

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All you need to know: Drafting a Legal Notice

By: admin Documentation 07 Aug 2019

Nowadays, we enter into various litigation for some or the other issue. Some prefer to file litigation while others opt to serve a notice to the opponent by showing their intention to file a suit in the appropriate jurisdiction. A legal notice is a written document sent to a person or entity to inform about the grievances and ask them for a remedy, rejection of which will result in legal action against them. The legal notice is the initial step to a legal proceeding. It can be sent against the person or a company by any person whose legal rights have been infringed or have suffered some legal damage. 
 
Validity: A legal notice is always specific to civil suits. A notice cannot be issued for a criminal suit, as criminal activity is always taken against the offender. It is necessary to serve notice before filing the lawsuit. The primary intention is to give a chance to the party for settlement of dispute without approaching the court. It is easier to compensate for the losses incurred by the aggrieved person.
 
Importance of legal notice: The situation arises when one gets confused to initiate a legal proceeding to resolve the matter. Following are the various pointers proving the importance of legal notice:

  1. It contains the clear intention of the sender to file a lawsuit to resolve the issue with other parties.
  2. A sender can describe his grievance with the help of an Advocate.
  3. Serving legal notice allows the receiver to resolve issues out of the court.
  4. It acts as a reminder for receiver about the acts that have intentionally or unintentionally done creating a problem for a sender.
 
Contents: Legal Notice must include the following things:

  1. Name, description and residential address of the sender
  2. Name and address of the person against whom the sender has grievances
  3. Material fact, Summary of the fact/ Cause of Action
  4. Summary of relief claimed
  5. Reasonable time to reply the notice by a receiver 
  6. Signature of Lawyer and Client is a must.
 
Procedure to file Legal Notice: It is essential to draft notice meticulously. We are not aware of the legal importance and meaning of the common words which we use casually.
 
  1. Draft the notice (It is always advisable to avail the services of a lawyer to avoid the mistakes.)
  2. The notice should be drafted under a letterhead of an Advocate
  3. Prefer colour print of the notice consisting logo of the Advocate
  4. Keep two copies of the notice, one with sender and one to the receiver
  5. Notice to be sent through Registered AD post
  6. Copy of receipt of post office and notice should be kept with the sender.
  7. It should be noted that while writing a legal notice, one should be extremely careful about every word used in the notice since it cannot be denied in the court of law. Once the legal notice is dispatched, no changes can be made, or one cannot make a contradictory statement from the content stated in the legal notice.
 
Reply to the Notice: It is not mandatory to reply to the notice, but it is advisable to do so as no reply can add advantage to the opposite side of the further court proceeding starts. The consequences of not replying notice is not an offence under the law, but if replied, there are chances to put an end to the litigation at the start. The reply must be given in the stipulated time mentioned in the notice by the sender. There is no relevance of a legal notice as soon as the court proceeding starts. In case if the receiver does not appear despite serving summons, then the court shall pass an ex-parte order (order in the absence of the other party not appearing).
 
Checklist to reply to the notice:

  1. Read the contents of legal notice, or the content mentioned in the agreement between the parties.
  2. It is necessary to check the limitation period to reply to the notice
  3. Check the contractual obligation of the claimant
  4. If the content mentioned in the notice is not relevant, then one can counter-threat through a claim or damages against the sender.

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Surrogacy (Regulation) Bill, 2019

By: admin Family 06 Aug 2019

The Surrogacy bill was approved by Lok Sabha and introduced in Rajya Sabha on Monday, 5th August 2019. The Bill regulates the surrogacy services to prevent exploitation of surrogate mothers and to protect the rights of children born through surrogacy.

The Surrogacy (Regulation) Bill, 2019 regulates surrogacy by establishing National and State Surrogacy Board in India. The State and Union Territories shall constitute a State Surrogacy Board. The 228th report of Indian Commission recommended the prohibition of commercial surrogacy and has allowed the altruistic surrogacy by enacting legislation.

Altruistic surrogacy refers to those surrogacy agreements where the surrogate does not receive any monetary compensation. In most altruistic surrogacy agreements, the surrogate is a close relation to the intended parents (family member/close friend). 

  1. The main purpose of the bill is to prohibit illegal commercial surrogacy. It states that the intending couples should not abandon a child under any situation. Our country has emerged as a surrogacy hub for couples from other countries. 
  2. The unethical practice, exploitation of surrogate mother, abandonment of children born out of surrogacy and rackets involved in intermediaries importing human embryos and gametes are reported in our country on a large scale. Ethical Surrogacy for couples will be allowed on the fulfilment of specific conditions. 
  3. No permanent structure is created in the proposed bill. The government assures that there will be no financial implication except the National Surrogacy Boards and appropriate authorities to get the administrative budget of respective departments.
  4. Another clause added is that the couple should be legally married for at least five years before attempting to deliver a baby through surrogate mother.
  5. This clause attracted the issue of why should a couple have to wait for five years after marriage and what is the definition of a legally married couple.
  6. Critics say that bill had left single parent and aspiring parents from alternative sexualities out of the ambit of the law and hence making it very narrow. 
  7. The bill allows only altruistic surrogacy by infertile Indian couples from a close relative, and prohibit the foreigners from commissioning surrogacy. Single parents, homosexuals and live-in couples, cannot apply for surrogacy.
  8. Some amendments moved by the opposition are rejected. Health Minister, Dr Harsh Vardhan said that India has emerged as a hub for surrogacy in recent years due to the absence of any specific law regulating the sector. 
  9. The offences under the Bill include undertaking or advertising commercial surrogacy, exploiting the surrogate mother and abandoning, exploiting or disowning a surrogate child.
  10. The bill aims to keep a check on such clinics by protecting many poor women from exploitation. 
  11. According to Bill, women within the age group of twenty-three years to fifty years and men with the age group of twenty-six years to fifty-five years will be eligible for surrogacy.

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Overview of The Indian Penal Code

By: admin Others 06 Aug 2019

The Indian Penal Code (IPC) is the criminal code drafted in 1860. The code was written on the recommendation of First law commission under the Chairmanship of Lord Thomas Babington Macaulay in 1834. The First final draft was submitted before the Governor-General of India in Council in 1837, but it was revised subsequently. After completing the drafting in the year 1850, it was presented to the Legislative Council. In 1860 finally, the draft of IPC became law and came into operation. The aim of IPC is to provide a general penal code for India. It includes 511 sections across 23 chapters, providing the list of crimes with their definitions and punishments. It has been amended several times. The jurisdiction of IPC extends to the whole of India. The objective of IPC is to lay what is right and wrong and to punish criminals for their wrongdoings.

In criminal law, the intention of committing crime plays a huge role to decide the liability of offence.

There are five stages of committing the crime;

  1. Motive
  2. Intention
  3. Preparation
  4. Attempt
  5. Commission

When an individual goes beyond the stage of preparation and attempts to do illegal acts, the liability in crime arises.

IPC starts with an introduction and gives explanations and exceptions.

Classification of crimes under the (IPC):

  1. Crime against the body – Culpable Homicide not amounting to murder, Murder, kidnapping, Rape etc.
  2. Crimes against property – Dacoity, Theft, etc.
  3. Crimes against public order – Riots
  4. Counterfeiting and Cheating 
  5. Crimes against women – Dowry Death, Rape, cruelty by husband and relatives, molestation, sexual harassment 
  6. Crimes against children – Kidnapping, and abduction of children, abetment to suicide, infanticide, selling and buying of girls for prostitution.

Controversial Sections: Various section of IPC are controversial till date; they are challenged in the court claiming that the sections are against the Indian Constitution. There is a demand to delete the sections completely or to amend and rectify them. Some of the Controversial sections are as follows:

  1. Unnatural Offences (Section 377 - now repealed)
  2. Attempt to Commit Suicide (Section 309)
  3. Death penalty (Capital Punishment)

The different types of crime cover the punishments according to the severity of the committed offence. 

The Indian Penal Code is structured as follows:

  1. Definitions of various offences
  2. Punishment for the offences
  3. General Exceptions
  4. Sections relating to Criminal Conspiracy
  5. Sections explaining offences against the State, Army, Navy and Air Force, related to Public Servant, relating to religion, property, etc.
  6. It ends with the attempts of committing offences.

In addition to this, there are other special legislatures such as the Prevention of Corruption Act, the Information Technology Act,  Indecent Representation of Women Act, the Narcotics and Psychotropic Substances Act, etc. which also enable classification and punishment of criminal acts.

The Indian Penal Code is only concerned with substantive criminal law and not with procedural criminal law like the Criminal Procedure Code, 1973.


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Offences and Prosecution under the Income Tax Act, 1961

By: admin Income Tax return 05 Aug 2019

There are various provisions for compliance relating to taxing provisions and collection of taxes, under the Income-tax Act, 1961.

The Income-Tax Act enforces the tax compliance in a threefold manner; namely:-
  1. The imposition of interests.
  2. The imposition of penalties and,
  3. Prosecutions

Offences & Prosecution
 
The offences and prosecution proceedings are included in Chapter XXII under section 275A to section 280D of the Act. However, the provisions mentioned in the above chapter do not directly deal with the procedures for the prosecution, governed by the Criminal Procedure Code, 1973. Unless the contrary is provided, the provisions of the said Code are to be followed relating to all offences under the Income-tax Act. An example would be that the section 292A of the Income Tax Act 1961 prescribes the section 360 of the Criminal Procedure Code, which defines the order to release on probation of ethical conduct or after admonition and the Probation of Offenders Act, 1958, it would not apply to a person convicted unless the accused is under eighteen of age. The Finance Act, 2012, has inserted section 280A to 280D, where the Central Government gives the power to constitute Special Courts with the consultation of the Chief Justices of the jurisdictional High Courts, respectively. The offence is tackled in that Magistrate Court in whose territorial jurisdiction an offence is committed.
 
Procedure before Court

When the complaint gets filed before the court, the summons, along with the complaint, is sent to the accused to attend the proceeding of the court on a particular day. As the complaint filed is a criminal complaint, the accused must be present before the court unless the court gives the specific exemption.

The court issues a warrant against the accused if he is not present in the court on that particular date. If the court issues the warrant, the accused may be arrested and produced before the court, unless the accused secures bail. The hearings get started in a matter, the court initiate to frame charge against the accused. Framing of the charge means the court charges the accused of the offences purported to be committed by him based on the complaint and on seeing the primary evidence after hearing him. After hearing the accused, if the court feels that there is no clear case against the said accused, then the court can dismiss the particular complaint.

If the court feels that there is a fact of the matter in the complaint, then the proceedings shall be continued as per the Criminal Procedure Code, i.e. the charges will be framed. The Assessing officers who have filed the complaint should be aware that they have to be examined before taking the final decision in the case even if they get retired from their services. They may still have to attend the proceedings in court. Therefore, it is essential that the concerned officer may have to examine the consequences.

The appeal will lie under section 374 (3) of the Code of Criminal Procedure to the court of the session if the trial results in a conviction. The appeal will be heard under section 381 of the Criminal Procedure Code, either by the Additional Sessions Judge or Sessions Judge. The appeal is to be presented in the prescribed form accompanied by a copy of the Judgment appealed within 30 days from the date of order, as per the Limitation Act.

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The abolishment of Article 370 of the Constitution: One Nation One Flag

By: admin Others 05 Aug 2019

The government announced the abolishment of Article 370 and 35A of the Indian Constitution along with bifurcation of the state of J&K into two separate union territories: J&K and Ladakh.

This wave of shock came after a meeting was held by Prime Minister- Narendra Modi along with Home Minister- Amit Shah and National Security Advisor- Ajit Doyal. This meeting was held after mobile internet services were suspended in J&K in view of the prevailing security situation in the region. The government had imposed the provision of section 144, which prevents the gathering of more than four people in the area.  Mehbooba Mufti, Omar Abdullah and Sajad Lone - the three most prominent and influential politicians from Jammu and Kashmir - were placed under house arrest last night.

Article 370 and Article 35A of the Indian Constitution
  1. Article 370 empowers a special status to Jammu and Kashmir, while Article 35A empowers the state legislature to define the state’s “permanent residents” and their special rights and privileges.
  2. Article 370 empowers J&K with its own constitution and decision making power for all matters except defence, communications and foreign affairs.
  3. There are certain provisions in the Indian Constitution: - temporary, transitional and special. Temporary is the weakest.  
  4. Article 370 of the Indian Constitution claims to be a 'temporary provision'.
  5. Under Part 21 of the Constitution of India, which deals with "Temporary, Transitional and Special provisions", the state of Jammu & Kashmir has been accorded special autonomous status under Article 370.
  6. Therefore, all the provisions of the Constitution, which are applicable to other states are not applicable to J&K. 
  7. This issue of ‘temporary provision’ was covered by the judgment of the Supreme Court in the 2017 SARFAESI matter, where it was held that despite the head-note of Article 370, it is not a temporary provision, rather, it holds the power of a ‘special provision’.
  8. Article 370 made it necessary for the centre to get the state legislature's approval for introducing any policy or constitutional powers to the state
  9. However, this Article is not barred from a debate on the floor of the Parliament. Also, the validity of Article 370 has been questioned time and again.
  10. Hence, the removal of Article 370 will end the special status given to J&K in order to prevail the security situation fueled by cross-border terrorism.
  11. Further, the Home Minister introduced the Jammu and Kashmir (reorganisation) Bill in the Rajya Sabha.

And as to the decision of the government relating to the bifurcation of the state of J&K into two union territories (semi-states), J&K would be one union territory, and Ladakh would be the other. However, J&K would have its own legislature and assembly like in the case of Delhi and Puducherry, and Ladakh; without its own legislature.

In order to counter this, Pakistani President Arif Alvi stated that “India's attempt to further change the status of Indian Occupied Jammu & Kashmir is against the resolutions of United Nations Security Council (UNSC) & against wishes of the Kashmiri people. Pakistan supports & insists on a peaceful resolution based on wishes of Kashmiri people & stands with them in their hour of need."

Further Pakistani foreign ministry states that no unilateral step by the Government of India can change this disputed status, as enshrined in the UNSC resolutions. Nor will this ever be acceptable to the people of Jammu & Kashmir and Pakistan. As the party to this international dispute, Pakistan will exercise all possible options to counter the illegal steps in order to support the people of Occupied Jammu and Kashmir for realization of their inalienable right to self- determination.

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Intervention of SC in the Unnao Rape Case

By: admin Criminal 02 Aug 2019

This case is about the Unnao rape case survivor, who has been fighting her battle since 17th June 2017.  The horrific rape of a 17-year-old was allegedly orchestrated by a Bhartiya Janta Party (BJP) MLA - Kuldeep Singh Sengar. 

The facts of the case are as follows:

  1. The victim was gang-raped by the BJP leader and his acquaintances on 17th June 2017, when she went to his house on the promise that they will help her to get a job.
  2. When the girl did not return home, the family of the girl filed a missing complaint.
  3. She was found on 20th June 2017 where a case was registered for ‘kidnapping’ and ’kidnapping a woman to compel her for marriage’ under the appropriate provisions of the IPC. However, the registered case did not mention the name of the accused MLA. Allegedly, the accused and her family were thrown out of the police station when they named the accused.
  4. The local police were highly influenced by the Sengar family and hence despite several attempts made by the victim to get her case registered against the accused. For this purpose, she repeatedly wrote letters to the chief minister and the senior police officers of the state.
  5. The victim’s mother finally approached the Chief Judicial Magistrate to lodge an FIR against the MLA. In showcasing proof of the poor judicial system of our country, the victim and her family started receiving death threats instead of availing protection.
  6. Meanwhile, the victim’s father was seriously beaten up by the MLA’s brother. However, on 4th April 2018, he was the one who was arrested and not the brother of the MLA.
  7. Amidst all of this, the victim threatened to kill herself in front of Yogi Adityanath’s residence in Lucknow as she was trying to file a complaint since a year but had no assistance from the local police and leaders.
  8. On 9th April 2018, the victim’s father dies in police custody due to multiple injuries. 
  9. Finally, the MLA’s brother is arrested for thrashing the victim’s father.
  10. After several attempts, Adityanath’s government woke up from their slumber and ordered an investigation into the rape case and her father’s custodial death. Consequently, a case is registered against the MLA.
  11. The Uttar Pradesh government transfers the investigation to the CBI, on questioning the local police as to why the MLA was not arrested; the State’s police chief questioned back that why should the MLA be arrested if his name is now mentioned in the FIR.
  12. After a year-long battle, the CBI arrests the MLA along with Shashi Singh, the woman who allegedly took the victim to the MLA and stood guard outside the door as he raped her.
  13. In a bizarre turn of events, the residents of Unnao carried out a rally in support of the MLA, stating that this was all a part of a political conspiracy.
  14. CBI filed a charge sheet against the MLA and 9 other accused, and an investigation was held in the murder of the key witness in the victim’s father’s murder. 
  15. The family of the victim is continuously harassed by the accused. On 4th July 2019, the survivor’s uncle is sentenced to ten years in jail for a two-decade-old attempt to murder case filed by the MLA’s brother.
  16. On 28th July 2019, The survivor’s car is hit by a truck whose registration plate is scrubbed out. The woman’s two aunts succumb to their injuries. She and her lawyer, Mahendra Singh, are in a critical condition.
  17. Finally, the plea of the victim is heard by the CJI, and the Supreme Court transferred the trial of this case along with the above accident case to Delhi, from the CBI court in Lucknow. 
  18. The Supreme Court ordered the lower court to complete the hearing in 45 days from the date of submission and to hold a day-to-day hearing considering the urgency of the matter.
  19. Court ordered an interim compensation of Rs 25 lakh to the rape victim, who is battling for her life.

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Case of abandoned NRI brides, Supreme Court issues notice to the State

By: Immigration 02 Aug 2019

Eight women file pleading on behalf of 40,000 abandoned brides, want an immediate arrest, confiscating of passports and quick legal steps.

In New Delhi, eight women alleged that they were abandoned as brides by their husbands living abroad, thus have approached the Supreme Court seeking justice and measures to address their issue. The plea was filed on behalf of other 40,000 abandoned brides; they primarily want the restoration of the strict provisions in the anti-dowry law which provides for the prompt arrest of the Non-Resident Indian (NRI) husbands.

The Supreme Court on 13th November 2018 issued a notice to the Government, directing to file an affidavit within six weeks on the formulation of a policy on this matter. They have claimed that around 40,000 women are speculated to have fell prey to Indian men, leaving them in a “very dubious situation emotionally, financially, and in terms of the health”. Whereas, the men have fled to different countries such as Australia, USA, Canada, New Zealand, and the other countries, usually with the cash and jewellery of the brides and they further go-ahead believing that nothing can be done against them.

They further state that the purpose of approaching the court is because they can't file the FIR in such case. The petitioners say that they had no option but to approach the Supreme court as, without any specific law, they were struggling to initiate any legal action against their absconding husbands. This petition also underlines the difficulties that the women face for initiating legal steps.

Most important is the hesitation of the police machinery to take the crime seriously. The police try to force the woman not to file a First information report (FIR). Even the lodging of an FIR needs effort, as their husbands being abroad, it becomes easy for them to ignore summons even in the cases that have made it to the trial stage. Quick delivery of the summons to NRI husbands is needed. The Ministry of External Affairs (MEA) recently cancelled the passport of around 25 men living abroad who had abandoned their wives, but the petitioners argue that even this process takes a long time.

In case of notices issued by the court and non-bailable warrants against husbands living abroad, the warrant is assigned to the Ministry of Home Affairs, which then forwards it to the body of Indian Mission Overseas. Often the summons/warrants are returned by the Ministry of Home Affairs to the local police station of the petitioner. This delays the process for months or year. The petition filed calls for the confiscating of passport. “If the passport is impounded, then men cannot avail of any benefits in the host countries. 

"The host authorities to flag their names and without a valid passport, getting an emergency passport and returning home is the only option left for the men,” the plea reads.

The petition makes shocking allegations about the lack of concern of the Centre, the National Commission for Women and its officials towards them. Here is an example:

  1. Abandoned brides repeatedly write to the consulates requesting them to find out where their husbands are, and responses are hardly given.
  2. When women contact the police of the foreign country directly, they are informed that their privacy laws don't permit the police to provide the location.
  3. Absence of statutory rules, leads the authorities adopting arbitrary measures.  In one incidence at Chennai, the authorities demanded the copy of the charge sheet and refused to impound the passports even after there is a court summons or a non-bailable warrant.
  4. Some members of the National Commission for Women are engaged in victim shaming. Some abandoned women met the Chairperson of the National Commission for Women in March 2018, and  her remark was “Who asked you to marry an NRI?”  This is the typical attitude of the Indian government, which is shameful for a body established by law for the defence of women’s rights to take the negative approach. 
  5. During discussions with officials of the MEA (Ministry of External Affairs) women asked them as to how could they recover their money and assets from their abandoned husbands given as dowry, they were told that the women should consider that their husbands as dead and move on. “Callousness and insensitivity on the issue prevail in the administration”, said the petition.
  6. No assistance or legal aid is provided to the NRI abandoned brides by National Legal Services Authority (NALSA) or the State authorities.

Petitioners claim that abandoned brides have been ignored by passport authorities in Delhi, Chennai, Hyderabad, Ghaziabad, and Mumbai when they sought legal action against their husbands.

The petition has made the Ministry of External Affairs (MEA), the Ministries of Home Affairs (MHA), National Commission for Women (NCW), the Delhi Commission for Women and the Maharashtra Women’s Commission, as respondents.

The petition seeks suitable directions from the Supreme Court to the Indian embassies and High Commissions to play an active role in providing aid to abandoned NRI women.
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Financial Risk Management

By: Finance 02 Aug 2019

Financial Risk is one of the significant concerns of every business. To understand the techniques of risk management, it is essential to realise the concept and types of risk. Risk is referred to like the chances of having an unexpected outcome. Any action that leads to loss of any type is termed as Risk. There are different types of risks that business firms can come across and needs to overcome. 

The risks can be mainly classified into the following models:

Business Risk: These types of risks are usually faced by business enterprises to maximise the profit and value of shareholder. As the companies undertake high-cost risks to launch the new product for enhancing the higher sales in the market.

Non- Business Risk: The risks that arise out of economic and political imbalances is defined as Non- Business Risk. Business firms cannot control these types of firms.

Financial Risk: Financial Risk is the risk that involves financial loss to the business firms. It generally arises due to the losses and instability in the financial market caused by changes in stock prices, interest rates, currencies and more.

Types of Financial Risks:

It is one of the high-priority kinds of risk in every business. Financial Risk is induced due to the movement in the market as it includes the gathering of various factors. Due to this, financial Risk can be classified into multiple types such as Credit Risk, Market Risk, Legal Risk, Liquidity Risk, and Operational Risk.

Credit Risk: When any firm fails to fulfil the obligations towards their counterparties, then it is called as Credit Risk. It can be classified into Sovereign Risk and Settlement Risk. Sovereign Risk arises due to difficulties in the policies of foreign exchange. Whereas, on the other hand, settlement risk occurs when one party makes the payment, and the other party fails to fulfil the obligations.

Market Risk: It arises due to the change in prices of financial instrument. It can be further classified as Directional (caused due to movement in stock price, interest rates, etc.) and Non-Directional Risk (volatility risks).

Legal Risk: This risk arises from legal constraints such as lawsuits and legal notices. Whenever a company faces the financial loses out of legal proceedings, it is a legal Risk.

Liquidity Risk: This risk arises out of an inability to execute the transactions in the market. It can be classified into Funding Liquidity Risk and Asset Liquidity Risk. Asset liquidity risk arises due to insufficient buyers or insufficient sellers against the buying and selling the orders.

Operational Risk: This risk arises due to operational failures such as technical failure and mismanagement. It can be further classified into Model risk and Fraud risk. It arises due to the lack of controls and model risk to the incorrect model application.

Stages in Financial Risk Management:

Identification of the risk: The risk can be managed by identifying the financial risk and the cause of the same. It is good to start with the balance sheet of the company as it specifies the liabilities, debt, risk of the rate of interest, exposure of foreign-exchange, etc. The cash flow statement and the income statement shall be observed to see how it fluctuates, and the impact of the same on the organisation.

Quantifying the exposure: It is necessary to analyse the risk or to put the numerical value of risk identified by the firm. The analysis can take place with the help of statistics such as the method of regression and standard deviation to measure the exposure of the company to various factors of risk.

Decision making: After analysing the source of risk, the firm should decide the way to deal with the risk. The decision should be made by taking into consideration the multiple factors such as the aim of the company,   business environment, its appetite and the cost of mitigation to reduce the risk.

To reduce the financial risk, the organization should reduce the volatility of the cash flow, fix the rate of interest on loans, manage the cost of operation, improvise the payment terms, exposure of the price of the commodity, variations in the price of raw materials.
  
The financial risk is usually managed by the owner or managers of the organisation. The organisation also take the consultation from the Financial Risk Manager to manage risk faced by them and to recommend the actions for the welfare of the company.
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Know more about Equal Remuneration Act, 1976

By: admin Employment 02 Aug 2019

In today’s era, women are part of the working class in society. For years together, women were neglected and paid less as compared to men. Thus there was a need to create awareness among them about their legal rights and duties.

The Constitution (Article 39)  provides that, the State shall direct its policy, among other things, towards securing equal pay of equal work for both men and women. To give effect to this Constitutional provision and to ensure the enforcement of the International Labour Organisation Convention, the Equal Remuneration Act, 1976 was passed by the Parliament. The Government has taken various measures for creating an equal work environment for women workers.

Equal Remuneration Act, 1976 makes provisions for the payment of equal remuneration to both men and women workers and also for the prevention of discrimination, on the ground of sex, against women in the matter of employment and incidental thereto.

The Equal Remuneration Act, 1976 defines Remuneration and Same work or Work of a similar nature:

Remuneration – It means basic salary or wage and any additional payments whatsoever payable, in cash or kind, to a person who is employed in case of employment, if the terms of the contract of employment were fulfilled.

Same work, Work of a similar nature – The skill, efforts and responsibilities required to do the work are the same when performed under similar working condition.

The section mentioned above shall not affect any priority or reservation for the scheduled caste or scheduled tribes, ex-servicemen, the retrenched workers or any other class or category of persons in the matter of recruitment to the posts in any employment.

It is the duty of the employer to documents in relation to the workers employed by him in the prescribed manner.

In the case of employer:-

  1. Makes any recruitment contravening the provisions of the Act;
  2. Makes any payment at unequal rates to men and women workers for the same work or work of a similar nature for recruitment;
  3. Makes discrimination between men or women workers in contravening the provisions of this Act;
  4. Fails to follow directions prescribed by the appropriate authority.

On proven guilty, the employer shall be punishable with a fine or with imprisonment or both.

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Procedure to File Complain against Domestic Violence

By: Domestic Violence 02 Aug 2019

Women have always struggled against atrocities committed on them. Domestic violence is one of such brutality which is prevalent in every class of the society to the extent that either you are a victim or you may have witnessed this violence. It has become common for women to end up with bruises and broken bones after such incidents in their domestic life. All women need to know that a complaint about Domestic Violence can be filed by any aggrieved woman who has faced such. The wife can file a case against her husband and in-laws, a mother can complain against her son, a girl can complain against an abusive father or brother, a woman can complain against her partner in case of live-in relationship.

Violence is not necessarily just physical; it can be, Emotional, Economical, and Sexual. Ex: Ill-treatment of your children by the father can also constitute domestic violence. 

In the time of crisis, remember the following places where you can file the complaint against domestic violence and seek help.

Nearest Police Station: Approach to the nearest police station to file an FIR (First Information Report). Request to register an FIR. The policemen are duty-bound to do so and cannot refuse.

NOTE: If the police tell you that occurred incident doesn't fall in their jurisdiction then in such case ask them to register a 'ZERO FIR' (an FIR which can be  transferred to the relevant Police Station later.)

Police will note down the description of the incident and ask you to sign it. Check the FIR twice before signing it. Never sign the FIR blindly. It is much better if you take some time before approaching the police and write down all the details by yourself describing the incident on a piece of paper and then hand it over to the police. Thereby avoiding any inconsistency.

If you are not comfortable talking about the abusive incident to a male police officer, you can request to be directed to a women's cell where female police officers assist the victims.

Filing of the Online FIR: Certain states in India provides the facility for filing the online FIR. In case you are a resident of any of such states, then filing an FIR online can be an alternative to visiting an actual police station.

National Commission for Women (NCW): NCW can address complaints relating to issues faced by women. The Complaints may be received orally, written or suo-moto under Section 10 of the NCW Act. The complaints are related to domestic violence, harassment, dowry, torture, desertion, bigamy, rape, cruelty by husband, refusal to register FIR, gender discrimination, and sexual harassment at the workplace.

Fill the required details in the form, after submission of the form, you will be issued a receipt number. After which you will obtain your file number, user id, and password within ten days of the filing of the complaint.

Research shows that 85 per cent of domestic violence victims are female, and only 15 per cent of victims are men. It can happen to anyone if this issue not dealt with. We must stand together and make more stringent laws, which will protect the victims in the correct sense.

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Doctors protest continues, NMC Bill to be tabled in Rajya Sabha.

By: admin Others 01 Aug 2019

The patients are bearing the brunt as doctors protest against the NMC Bill. The health care services of government hospitals are likely to be hit as resident doctors are deciding to withdraw the services, including that of the emergency department. The protest of withdrawing the services is against the NMC bill, and it shall be tabled in Rajya Sabha.  Amid widespread protest, Health Minister Harsh Vardhan tweeted late night that he would table the NMC bill for the passage in the Rajya Sabha. He also assured that if the bill is passed, it will bring significant changes in the medical sector.
 
The president of Federation of Resident Doctors Association (RDA), Dr Sumedh Sandanshiv stated that the resident doctors would refrain from providing their services in OPD, emergency department and ICU’s as a mark of protest and will continue the strike for an indefinite period if the bill is tabled and passed in Rajya Sabha.
 
Also, the RDA of the AIIMS and some other hospitals have given separate notices to the administration regarding the protest. They have informed that they will march towards parliament in the afternoon.
 
The doctors of various hospitals wore black badges to work as a mark on protest against the bill. The Indian medical association (IMA) has expressed reservation over certain sections of the bill and will give a call to withdraw the non-essential services. The IMA has called for a hunger strike at local branches and has urged students to boycott the classes.
 
Several hospital authorities have issued a contingency plan for the smooth functioning of health care services that will function by the sponsored faculty members and pool officers. The faculty members of other medical/surgical department will also be deployed in case of emergency.
 
The Doctors are demanding certain amendments in the bill since if the bill is passed, it will lead to deteriorating the medical education and degradation of the health care services. They are objecting section 45 of the bill claiming that the Union Government is empowered to override the suggestion of the National Medical Commission.
 
The bill was passed at Lok Sabha to create NMC in place of MCI. It was passed by a majority of 260 members voting in favour and 46 members against it. The bill proposes that a common final year MBBS exam National Exit Test (NEXT) is necessary for post-graduation medical courses and to obtain a license to practice medicine.
 
Status:  The NMC Bill will be tabled in Rajya Sabha today for consideration and passage on Thursday.
 
Note: To learn more about the laws and procedures, you can contact us at Legato app where we help you in connecting with experienced lawyers who can assist you with the documentation and procedural aspects.
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The IndiGo Promotors Feud

By: admin Commmercial Contracts 31 Jul 2019

Facts relating to the feud

  1. Rakesh Gangwal owns 37% shares of IndiGo as compared to co-promotor Rahul Bhatia, who along with his affiliates, owns 38%.
  2. The ongoing feud between the promoters of Indigo has taken a serious turn as one of the promoters seeks SEBI’s intervention in this matter. 
  3. Mr Gangwal has flagged serious corporate governance lapses at IndiGo, in his letter addressed to the SEBI.
  4. The Shareholder Agreement is the root cause of conflict between the promoters. 
  5. This Agreement between the promoters grants Mr Bhatia certain unusual controlling rights that are allocated and exercised through the IGE Group(an affiliate owned by Mr Bhatia). 
  6. Mr Gangwal alleges that this is the main cause as to why governance matters have taken such a back seat at IndiGo. 
  7. Mr Gangwal has requested SEBI to probe into and ask the Company to make necessary changes to the unusual controlling rights available to the IGE Group.

Issues raised:

  1. Those mentioned above unusual controlling rights permit the IGE Group, a minority shareholder, significant influence over the decisions of IndiGo.
  2. Mr Bhatia organised for different companies to enter into various Related Party Transactions (RPT) with IndiGo.  An RPT is a business arrangement between two entities who share a pre-existing relationship. It is not uncommon for companies to seek the services of parties they are acquainted with. Such transactions are completely legal but hold the potential to create a conflict of interest. Hence, these RPT’s should only exist if they are in the best interest of the Company.
  3. Under these questionable RPT’s various fundamental governance norms and laws are not being adhered to as they are not approved by the Audit Committee
  4. Board decisions and resolutions on critical matters were being implemented at IndiGo without basic governance protocols and laws being followed. 
  5. Mr Gangwal has accused IGE group of taking away the authority vested by SEBI to the Nomination and Remuneration Committee NRC} for identifying persons who may be appointed in senior management. This was done through a Board resolution that gave the IGE Group the right to select these candidates.
  6. IndiGo has since its inception had an ‘independent director’ as its Chairman. However, the provision in the Articles of Association stating "The Chairman of the Board shall be appointed on the nomination of the IGE Group" can take away the independence of the Chairman completely.
  7. The Company has not appointed an independent woman director, a requisite that SEBI gave time to the Company since May 2018 to comply with.

SEBI’s Intervention

  1. The government wants SEBI to intervene and inspect the role of all the board members and every entity associated with the two main promoters: Rakesh Gangwal and Rahul Bhatia, and to take strict actions for all the wrongdoings.
  2. SEBI has been probing into this matter since the feud between the two promoters have surfaced as there was an indication of violations relating to corporate governance, disclosure regulations, fair market trade and insider trading rules.
  3. In relation with the above scrutiny, the SEBI has summoned IndiGo’s company secretary Sanjay Gupta.
  4. SEBI is also investigating into whether the InterGlobe Aviation Chief Executive Officer- Ronojoy Dutta, downplayed the tussle between the promoters.
  5. SEBI has sought details from IndiGo’s parent company, InterGlobe Aviation in relation with alleged lapses. The Company had to reply to the letter composed by Mr Gangwal, comprising of the above-mentioned issues, by 19th July 2019.
  6. The Company has submitted its response to the letter by Mr Gangwal and the responses provided by the company are merely defending the decisions taken by Mr Bhatia and the IGE Group. Mr Bhatia has claimed that his rivals are hiding behind ‘sources’ and spreading a ‘false narrative’ about this dispute.
  7. Both SEBI and the Ministry of Corporate Affairs (MCA) have directed IndiGo to submit crucial documents, including the EY report on questionable RPT that had been commissioned by IndiGo Chairman in January. 
  8. In addition to the above documents, SEBI has also sought the shareholders' agreement. The regulator is examining whether the company had received shareholder approval for the unusual controlling rights that Mr Bhatia enjoys over the airline, including the right to name its managing director, CEO and president.  

Settlement in the process?

The promoters have reached a truce of some sorts. The Board of directors have decided to amend the Articles of Association to expand the size of the company’s board to 10 from the current 6 and will include an independent woman director, as a measure to address some of the concerns raised by Gangwal. However, despite this amendment, there is still a long way to go for a settlement.
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Rajya Sabha passes the Triple Talaq Bill

By: admin Family 31 Jul 2019

Rajya Sabha passes the Triple Talaq Bill

  1. Triple Talaq is an age-old practice followed by Muslim men wherein it gives them a right to instantly divorce their wife on the utterance of a single word ‘Talaq’. 
  2. Talaq means divorce in the Arabic language. 
  3. Some Indian Muslim groups believe that the Triple Talaq is grossly against women; however, they are of the opinion that this practise should be reviewed by the Muslim community leaders rather than the government. 
  4. A lot of Muslim leaders had earlier opposed the Triple Talaq bill stating that the BJP was entering their houses using the legislation. 
  5. But there were actual instances of Triple Talaq ending marriages over WhatsApp chat that started taking place. 
  6. Hence there was a dire need of legislation despite the Supreme Court ruling that the Triple Talaq is arbitrary and unconstitutional because the accused man will now face punitive action.
  7. The BJP hailed the passage of the Triple Talaq bill by Parliament as a step that will help correct a historical wrong done to Muslim women, even as the Congress questioned the relevance of criminalising the practice.
  8. The National Democratic Alliance (NDA) succeeded in getting the Muslim Women (Protection of Rights on Marriage) Bill, 2019 voted through despite the fact that it is in the minority in the Upper House, pointing to the government’s effective floor management.
  9. Despite stiff opposition from the Congress and other Opposing parties that demanded the bill be sent to a parliamentary committee for scrutiny, the government won the day by 99:84 votes. 
  10. The missing 30 parliamentarians helped the NDA government pass the bill. 
  11. The passing of the Muslim Women (Protection of Rights on Marriage) Bill was a major legislative success for the BJP.

PM Narendra Modi wrote on Twitter:

“An archaic and medieval practice has finally been confined to the dustbin of history! Parliament abolishes Triple Talaq and corrects a historical wrong done to Muslim women. This is a victory of gender justice and will further equality in society. India rejoices today!"

President Ram Nath Kovind wrote on Twitter:

“Passage in the Rajya Sabha of Muslim Women (Protection of Rights on Marriage) Bill completes Parliament’s approval of a ban on the inequitable practice of Triple Talaq. A milestone in the quest for gender justice; a moment of satisfaction for the entire country,"

Effects of the passage of the Bill:

  1. The pronouncement of instant Triple Talaq is void and illegal. 
  2. As opposed to the earlier law, Triple Talaq is now a punishable offence which can be punishable with imprisonment up to three years or fine or both. 
  3. The offence is cognizable (within the jurisdiction of the court) if the Muslim women, upon whom the Triple Talaq is pronounced files a complaint to an officer in charge of the police station.
  4. The offence shall be compoundable (those offences where the complainant enters into a compromise and agrees to have the charges dropped against the accused) at the instance of the married Muslim women upon whom Triple Talaq is pronounced. 
  5. An offender can be arrested without a Warrant 
  6. On an application by the accused, no person alleged of a punishable offence shall get bail unless the magistrate is satisfied that there are reasonable grounds to grant bail, after hearing the Muslim women.
  7. Married Muslim women upon whom Triple Talaq is pronounced entitled to receive from her husband, such amount of subsistence allowance as determined by Magistrate.
  8. Married Muslim women shall be entitled to custody of her minor kids in the event of pronouncement of Triple Talaq by her husband, as determined by the Magistrate.

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Gift Deed

By: admin Documentation 30 Jul 2019

What is a Gift Deed?
It is a legal document that transfers the gift from a donor, i.e. the owner of the property, to the donee, i.e., the receiver of the gift without the exchange of money. The donor giving gift must be solvent and should not use this medium for illegal gains and tax evasion.
 
What can be Gifted?
Anything which qualifies as a gift must contain the following properties:
  1. It should be well defined by existing immovable or movable property.
  2. It should be easy to transfer. 
  3. It should be the existing property and not a prospective property. 
  4. It should be tangible in nature. 
 
Process of gifting can be subdivided into three parts:
 
Drafting of the Gift Deed – The lawyer usually drafts it, it must contain what is to be transferred and to whom. Gift Deed is a contract between the donor and the donee which defines the reciprocal act of giving and taking. 
 
Acceptance – Acceptance of the gift is a legal requirement after its execution and donee must accept the gift. If the donee fails to accept the gift, it is rendered as invalid. The acceptance can be validated by taking the property possession  
 
Registration – The title of a gift cannot be passed unless and until the Deed is registered as mentioned under Section 123 of the Transfer of Property Act.  At the time of registration and post-registration, the attestation by two witnesses is required.
 
In the case of Minor: The person who owns the property can make a gift to any other person. When the donor or donee is minor, then it is an exception to the rule, as minors are not eligible to contract, they cannot transfer property as a gift. A gift deed in case of the minor donor is not valid.
 
A natural guardian on behalf of Minor can accept a gift. In the case of the gifted property, the guardian acts as a manager. Once the donee becomes an adult, it is his responsibility to either accept the burden or return the gift.
 
The registration procedure can be done as follows-
 
  1. It is necessary to sign the Deed by both the donor and the Donee in the presence of 2 witnesses
  2. Valuation of the gifted property 
  3. Submit the signed document to the nearest Sub-registrar Office.
  4. When mentioning 'nearest', it refers to the Sub-Registrar Office nearest to the immovable property, i.e. within its jurisdiction.
  5. Submit the document, pat the stamp duty and registration charges and get attestation on Deed.
 
Is Registration Compulsory?
 
Any Gift Deed, which can be movable or immovable, if challenged in court will stand as supporting evidence only if it is registered. However, for the gift deed of movable property registration is not mandatory.  However, it should be remembered that the unregistered Gift Deed is not secured legally.
 
When the gift deed is addressed to the several donees, and even one of the beneficiaries refuses to accept the gift, then the Deed is considered as a void to the limits of the part of a property that was conferred to the party who refused the gift. 
 
The key elements of Gift Deed:
 
  1. The Deed must specify the fact that the donee need not work to gain ownership of the gift.
  2. The gift deed is done with the idea that the gift is given out of the affection to the recipient. 
  3. The donor must own 100% interest in the property that he wishes to transfer in the name of the donee.
  4. It is necessary to witness the Deed along with the signature on the Deed to certify it as a valid document. 
  5. The witnesses in the gift deed act as a disintegrated party, which means that they are not receiving the benefit from the transferor are not liable to guarantee.
 
Revocable Gift Deed: When the donor drafts the gift deed and keeps the same in his possession until he decides the right time to give the gift to the recipient. The donor has the right to revoke the Deed even if the document is fully complete along with the signature of witnesses.
 
Irrevocable Gift Deed: When a gift deed is prepared and signed by the witnesses with all the legal formalities and necessities, and it is given to the donee, i,e the recipient, the donee becomes the owner immediately. As the name suggests, the Deed cannot be revoked by the donor. Therefore the deed is known as an irrevocable gift deed. The money, movable or immovable property cannot be reclaimed. Therefore, when a person thinks of making a gift deed, he should decide whether the deed should be revocable or irrevocable.
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More about Contested Divorce

By: Divorce 30 Jul 2019

Divorce is a process to end a marriage legally when either or both the spouses are unable to live together as a couple. Divorce in India can be of two types- contested divorce and divorce by mutual consent.
 
A contested divorce, also known as one-sided divorce, is filed when one of the spouses wish to get a divorce, without the consent of the other spouse. There are several grounds on which a contested divorce can be filed.
 
The reason should be one which can be attributed to the spouse whose conduct, actions, and behaviour has irritated the other spouse to the extent that he/she decides that living together is no longer possible.
 
There are various grounds to seek a divorce from your spouse, some commonly used grounds are:-
 
  1. Divorce on the ground of cruelty.
  2. Divorce on the ground of adultery
  3. Divorce on the ground of the desertion.
 
The above list is not comprehensive; other grounds such as unsoundness of mind, civil death, etc. can be sought to seek and start a contested divorce in India
 
Process for filing Contested Divorce in India:
Find a lawyer with expertise in this subject matter and has integrity and strong court presence. Discuss the facts of the case.
 
 - A place of marriage
 - Place where spouse last resided together
 - Place where the other spouse resides.
 
  1. Take a call on whether to proceed or not with the divorce.
  2. Drafting of the Contested Divorce petition should be done in precise form.
  3. Process of filing must take place in an appropriate court.
  4. Contested divorce must be filed at either of the following places:
  5. After filing the case, one should check that the matter is listed in the court for the first hearing/ admission hearing.
  6. Court issues the notice/ summons to the other party.
  7. The opposite party will be filing the reply. If the opposite party fails to come, despite service of notice, then the court may proceed the matter in the absence of the other party which is called ex- parte proceeding.
  8. The family court frames issues. The issue refers to the point of adjudication by the court and on which parties have to give their respective evidence.
  9. Evidence of spouse filing petition for contested is done first, then the cross-examination of the witness is done by opposite party lawyer.
  10. Later the matter is out for final arguments.
  11. After arguments, the matter is listed for passing the judgement.
  12. On successfully proving the case, a divorce decree is granted.
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Things to be kept in mind - Dishonor of Cheque

By: admin Dishonour of Cheques 30 Jul 2019

What is Cheque?
It is a negotiable instrument, which is defined by section 6 of the Negotiable instruments Act as, "a bill of exchange that is drawn on a banker and not expressed to be payable otherwise than on-demand, and the electronic image of a truncated cheque and a cheque in the electronic form.”

Specific terms one must know:

Drawer: Author of the cheque is called ‘drawer’, 
Payee: Person in whose favour the cheque is drawn is called ‘payee’,  
Drawee: Bank who is directed to pay the amount is known as ‘drawee.'

Dishonour of Cheque: Dishonour of cheque is a situation in which the bank refuses to pay the amount of cheque to the payee. When the cheque is dishonoured, the drawee bank immediately issues a ‘Cheque Return Memo’ to the payee banker naming the reasons for dishonour. The payee banker then provides the dishonoured cheque and the memo and to the payee. After that, the payee has the option to resubmit the cheque within three months of the date mentioned on the cheque after fulfilling the reason for the dishonour of cheque.

Moreover, the payee has to give notice to the drawer within thirty days from the date of receiving the Cheque Return Memo. This notice should say that the amount of the cheque will be paid to the payee within fifteen days from the day the drawer receives the notice.

Though, if the drawer fails to make a fresh payment within thirty days of receiving the notice, the payee has the right to initiate a legal proceeding against the defaulter as per Section 138 of the Negotiable Instruments Act.

If you don't want to dishonour your cheques and to maintain credit scores, you must follow specific criteria:

  1. Write your cheque with a single pen and write without making any mistakes in filling the amount or payee name. In case you have committed any error then alter it and don't forget to put your specimen signature near the alteration and at the bottom of the cheque too.
  2. Write the amount in words and figure cleanly, and they should be the same. If that is not the case, the amount written in the figure will prevail.
  3. The date should be put carefully as cheques will stay active for three months from the date you have put on the cheque.
  4. Don’t overwrite the Cheque.
  5. Maintain a proper note of cheques issued and their respective date of presentation at the bank.
  6. Ensure sufficient amount a day before the submission.
  7. While receiving new cheques from the bank, make sure they have registered your cheque in the system.

Proceedings for the dishonour of cheque u/s 138 of NI act can be initiated in the following cases:

  1. The cheque is issued towards the discharge of liability
  2. The cheque must be presented within six months of the liability period.
  3. The cheque must return due to insufficient funds or exceeds arrangement.
  4. The dishonour of cheque is informed to the drawer within 30 days by notice.
  5. The drawer of the cheque must fail to pay within 15 days from receipt of the notice.

Punishment and Penalty

On receipt of the complaint, along with an affidavit and relevant documents, the court will summons the defaulter to hear the matter. If the defaulter is found guilty,  he/ she can be punished with a penalty which can be double the amount of the cheque or imprisonment extending up to two years, or with both.

In case the drawer makes payment of the cheque amount within fifteen days from the receipt of the notice, then drawer doesn't commit any offence.  Or else, the payee may proceed to initiate a complaint in the Magistrate Court having proper jurisdiction within a month from the date prescribed in the notice.

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Prison Reforms in India

By: admin Criminal 30 Jul 2019

The institution where a person convicted of criminal offence is detained by punishment is known as prison.  Prison and Asylums Reform are the institutions who attempt to develop the prison conditions, establish a more effective penal system, or implement alternatives to restraint.  Prisoners' daily movements and their compliance with routines are strictly enforced. The purpose of restrictions on inmate freedom within the institution is said to be the maintenance of security. Prisons are used as the primary punishment for criminal acts in the last few centuries. The State Government usually takes part in the modernization of the prison. The Ministry of Home Affairs also enlarges their hand to support the States in implementing the project of E- prisons project that intends to introduce efficiency in prison management through digitization.

The E-prisons project helps the Prisoner Information Management system (PIMS), which is developed by National Informatics Centre, to give a centralized approach for managing the prisoner information and generating records by maintaining the reports. The PIMS keep the record of necessary details of prisoner, his family details, biometrics, photographs, case history, medical information, etc.  The availability of these details on an electronic platform is useful to track the status of prisoners and for the smooth functioning of the prison system. In order to examine the conditions of prisons and prisoners in the country, the government constitutes several panels and the committees.

Reasons for promoting Prison reforms:

  1. The punishment of life imprisonment deprives the right of liberty of that person. 
  2. Imprisonment or detention affects the prisoner and his family. 
  3. When the prisoner is the sole breadwinner, the whole family bears the financial loss.
  4. Some prisoners have serious health implications as they suffer from various diseases after entering prison.
  5. All the prisons are overcrowded.

Major issues of Prisons:

The share of the prisoners who are awaiting trails is constantly increasing due to the pendency of cases, which leads to overcrowding, whereas it is seen that crowding leads to unsatisfactory living conditions. Prisoners are subjected to inhuman physical and psychological torture, sexual abuse, extortion by prison staff, custodial deaths due to extreme pain.

Measures initiated by Government

1. Modernization of prisons Scheme: The scheme for modernization of prisons was launched to improve the conditions of the detention. It includes the construction of new jails, repair, and renovation of jails, improvement in sanitation and water supply, etc.

2. National Legal Services Authority: They have launched a web application recently to facilitate the under trial prisoners with free legal services. The objective of the above application is to make the legal services system more transparent and useful.   

3. Draft National Policy for Prison Reforms: It includes an amendment in the constitution to incorporate principles of prison management along with the enactment of uniform and comprehensive law on matters relating to prisons.
 
Measures to be initiated by the Government:

  1.  The government should enact the comprehensive and uniform law on prison reforms. 
  2.  A Department of Correctional Services and prisons.
  3. The state shall provide community service, forfeiture of property, payment of compensation to victims, as an alternative to prisons.
  4. The living condition shall be improved in every prison and allied institution. 
  5. The issue of overcrowded jails requires immediate attention. Every possible effort shall be made to improve the conditions of prison that includes better sanitation and hygiene, adequate food and clothing.
  6. Appropriate rehabilitation and Correctional treatment shall be made to reform offenders. 
  7. Initiatives shall be taken to grant vocational training to prisoners and ensure rehabilitation and social formation after release.
  8. The government must take the initiative to improve the conditions of under-trial prisoners, which can be achieved by speeding of the trial procedure, simplification of the bail procedure, and providing effective legal aid.
  9. It is also essential to address the issue of inadequate prison management by recruiting more prison staff, imparting proper training and undertaking modernization of prisons.
  10. Issues related to custodial violence and sexual abuse should be dealt with effective monitoring and severe punishments of those involved in such violence.
  11. The concept of a correctional facility such as an open prison should be encouraged

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Consumer Protection ACT, 1986

By: admin Consumer Grivances 30 Jul 2019

The enforcement of the Consumer Protection Act, 1986 is one of the most critical breakthroughs in the sphere of the consumer protection movement in India. It was a continuous and comprehensive piece of legislation of its time, covering all goods and services. The Act ensures the rights of the consumer and provides for a simple, speedy and inexpensive redressal to the consumers and also award compensation, wherever appropriate, to the consumer. An exclusive three-tier redressal system as an alternative to the civil court has been inculcated under the Act, wherein an aggrieved consumer can seek redressal against any defects in the goods purchased or deficiencies in services availed. It also includes restricting unfair trade practices if adopted by the trader of goods or the service provider. In the last thirty years, more than 4.3 million consumer cases were adjudicated and decided by the consumer forum.

Laws Protecting Consumers Under Different Regulations:

1. The Bureau of Indian Standards Act (2016) establishes the Bureau as the National Standards Body of India. Besides containing provisions for establishing voluntary standards, the Act also contains provisions to make compulsory certification regime of any article, process or service which it considers necessary from health, safety, environment, prevention of false practices, security etc. Several enabling provisions have also been made for hallmarking of the precious metal articles as mandatory. This Act allows multiple types of conformity assessment schemes, including Self Declaration of Conformity against any standard which provides simplified options to manufacturers to adhere to the standards and get a certificate of conformity. It authorises the Central Government to appoint any authority, in addition to the BIS, to verify the compliance of products and services to a standard and issue certificate of conformity.

2. The Legal Metrology Act 2009: The Act has come into force on 01.04.2011 and has repealed the Standards of Weights & Measures Act, 1976 & Standards of Weights & Measures (Enforcement) Act, 1985. The Act ensures that all weight and measure used for trade or commerce or protection of human health and safety are accurate and secure so that users are guaranteed for correct Weighing and Measurement. The Act also empowers regulatory and enforcement actions for ensuring that the consumer gets the right quantity for which he has paid for.

3. The Essential Commodities Act 1955: The Act empowers the Government to regulate prices, production, supply, distribution etc. of essential commodities for maintaining or increasing their supplies and for securing their equitable distribution and availability at fair prices. Most of the powers under the Act have been delegated by the Central Government to the State Governments in the direction that they shall exercise these powers. Exercising powers under the Act, various Ministries/Departments of the Central Government and State Governments/UT Administrations have issued Control Orders for regulating the production, distribution, pricing etc. and trading of the commodities declared as essential to the public. At present, seven commodities have been retained under the Essential Commodities Act, 1955 to protect the interests of the consumers, which include farmers, general population and the families below the poverty line.

4. Food Safety and Standards Act, 2006 (FSS): It envisages regulation relating to the manufacture, distribution, storage, sale and the import of food articles to ensure availability of safe and wholesome food for human consumption and consumers connected in addition to that. Authority by name Food Safety and Standards Authority of India (FSSAI) has been established under this Act for laying down scientific standards for foods articles. This Act was operational read with the notification of Food Safety and Standards Rules, 2011 and six Regulations w.e.f the 5 August 2011. The setting of food standards is undertaken through several Scientific Panels and the Scientific Committee of the FSSAI and final approval by the Authority.

5. The Contract Act, 1872 binds people on their promises, which are reduced to writing in a contract. In case of breach of contract, the Act also provides remedies available to parties.

6. The Sale of Goods Act, 1930: It provides for the safeguard and relief to customers in case goods not complying with the expressed conditions and warranty.

7. The Competition Act, 2002, governs Indian competition law. It succeeded in the Monopolies and Restrictive Trade Practices Act, 1969. This Act established the Competition Commission of India to prevent the activities that have an adverse effect on competition in India. It acts as a tool to implement and enforce competition policy and to prevent and punish anti-competitive business methods by firms and unnecessary Government interference in the market. Competition law is equally applicable to writing as well as oral agreement, arrangements between the enterprises or persons.

8. The Drugs and Magic Remedies (Objectionable Advertisements) Act introduced in 1954: This Act controls the drugs-related advertisement in India by prohibiting the advertisements of drugs and remedies that claim to have magical traits and declares it as a cognizable offence. The Act further defines "magic remedy" as any talisman, amulet, mantra, or any other object, which is alleged to have miraculous powers to cure, diagnose, prevent or mitigate disease/illness. It also includes such devices that have the power to influence the structure or the function of an organ in humans or animals. It prohibits advertisements of drugs and remedies have magical properties and makes doing so a cognizable offence.

9. The Drugs and Cosmetics Act of 1940 governs the import, manufacture, and distribution of drugs in India. The primary aim of this act is to ensure that the drugs and cosmetics are safe for sale in India, and are effective as well as confirm the state quality standards. The Drugs and Cosmetics Rules, 1945 framed under the Act contain provisions for the different classes of drugs under given schedules, and also lays the guidelines for the storage, sale, display, and prescription of each schedule. It also defines the standards of quality for drugs and defines the term "misbranding". The drug is considered misbranded if it claims to be of more curative/therapeutic value than it is actually. Several times the manufacturer of such a drug may be asked to suspend manufacturing of the drug. The Act also deals with fake and adulterated drugs.

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More about Joint Venture

By: admin Commmercial Contracts 30 Jul 2019

A Joint Venture is an alliance where two or more business parties form a partnership to share their intellectual property, markets, knowledge, assets and profit. It is different from amalgamation and merger because there is no transfer of ownership in a Joint Venture. Some large companies decide to form a joint venture with a smaller business.

A Joint Venture (JV) is defined as a business entity created by two or more parties, characterized by shared ownership, shared governance and shared returns and risks. Companies typically follow the system of the joint venture for several reasons to access a new market, to gain scale efficiencies by combining assets and operations; emerging markets; to share the risk for significant investments or projects; or to access skills and capabilities of the companies.

When two or more persons, along with individuals come together to form a partnership temporarily for carrying out a particular project, such collaboration is known as a joint venture. The parties of the JV are known as "Co-venturers". A significant advantage of a JV is that it helps to grow the business faster, increase its productivity and generate an ample amount of profit.

Advantages of a Joint Venture:

  1. introduction  to new markets and distribution networks 
  2. increased capacity
  3. sharing of risks and costs (i.e. liability) with a partner who has access to more significant resources, including specialized staff, technology, and finance
  4. flexibility in the business.

For example, a Joint Venture has a limited lifespan and can only cover a part of the whole business of the parties. Thus it limits the commitment and the business exposure for both parties. The advantages of the joint venture may exceed the disadvantages; however; one should keep in mind that faith and risk play a vital role in the success of the business.

Disadvantages of a Joint Venture:

Restricted Flexibility: Flexibility is essential in some projects whereas sometimes it requires full concentration, and thus the concurrent work may become difficult. Such participant focuses more on the JV product, and the individual businesses suffer a lot.

Claims and Assets: It is essential to mention the assets and involvement of the participants in the joint venture agreement to prevent allegations of the other parties so that no issue and legal trouble arises in future.

Equal involvement of all parties is severe: The share of the profit is ideal, but it is impossible to maintain a contribution. For instance, if Company A is planning the process of production, Company B is given the duty of production and Company C is responsible for planning and implementing market strategies. Company A will not be active in the process of production and promotion, resulting in pressure on Company B and C; this can affect the individual business of the parties.

Dissolution of the Joint venture:

  1. The JV is not a permanent structure. It can get dissolved when:
  2. Aims of JV are met
  3. Objectives of the JV not achieved 
  4. If both or either of the parties develop new goals
  5. If both or either of the parties no longer agree with JV goals.
  6. If the time agreed for JV business has expired
  7. If legal or financial issues arise.
  8. If the market conditions evolved and changed then the JV is no longer appropriate or relevant
  9. If one party acquires the business of other

Types of the Joint Venture

To set up a JV depends on what the business is trying to achieve. Most common types of JV are:

Limited Co-operation: If one company agrees to collaborate with the other business in a limited way, it can be said as the limited co-operation in the business.  For example, a small business entrepreneur wants to sell his new exciting product through the network of distribution of the larger company. The two partners agree a contract setting out the terms and conditions of how this would work under the limited co-operation.

The Separate Business: If an individual set up a joint venture business separately, to handle a specific contract. To start a joint venture company is very flexible. The partners own shares individually in the company and agree on how they should manage them.

Business Partnerships: Sometimes, a limited company may not be the right choice. Instead, one can form a business partnership or a limited liability partnership. One can even merge the two businesses to form a joint venture.

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Delay of Condonation

By: admin Civil 29 Jul 2019

Condonation of Delay is defined under section 5 of the Limitation Act, 1963. It is the extension of the prescribed period in some instances to make an application or go for an appeal. Section 5 of Limitation Act is not applicable for filing suit as it is an exception to the Act. For taking the benefit of the Doctrine, the applicant must have sufficient cause to condone the delay. It is the discretion of the Court to do so after the applicant states sufficient reason. The Doctrine applies only to the Criminal Proceedings because it does not prohibit any other Sections.
 
To file an appeal, the Code of Civil Procedure has not prescribed a period of limitation. Whereas the Limitation Act, 1963 has provided the period to file an appeal in the court. It is stated that the appeals can be filed in a High Court against a decree or order within ninety days.  And in any other court, the appeal can be filed within thirty days from the date of the decree or order. The period to file the limitation is for the general welfare. As the law is enacted to protect only diligent and vigilant people, courts shall be convinced with a sufficient cause to get the delay to be condoned. 
 
Following are some reasons for filing an application of Delay Condonation:
 
  1. Mislead by rulings
  2. Mistake of counsel
  3. Mistake of law
  4. Mistake of Court
  5. Delay in getting certified copies
  6. Imprisonment
  7. Illness
  8. Inability to act, etc. 
 
Condonation of delay, Rule 3-A: For the proceedings of delay condonation, rule 3-A has been inserted by the Amendment Act of 1976. Rule 3-A states that when an appeal is presented before the court after the expiry of the specified period, it shall be accompanied by an application consisting the sufficient cause for not going for an appeal within the time.
 
Before inserting rule 3 - A, in the amendment Act, the general practice was to admit an appeal subject to an opinion regarding limitation.
 
In the case of  State of M.P vs Pradeep Kumar, the SC stated that the provision described is two-fold in the rule;
 
  1. to inform the appellant that the delayed appeal will not be entertained unless an application accompanying the delay accompanies it.
  2. to communicate with the respondent that he is willing to do so on the merits mentioned. The provision is directory and not mandatory. 
 
The practice of the Supreme Court in filing the Delay condonation for the special leave petition:
 
The Special Leave Petition must be filed within ninety days from the date of the order of the High Court. If the petition is filed after the expiry of that period, then an application of delay condonation must be filed, stating the reasons for not filing the petition within the specified time. The SC has the power to condone the delay in filing a special leave petition under exceptional circumstances. The petitioner has to explain the delay of each and every day. The court has the power of not condoning the delay if the reasons given to the petitioner does not convince it. Moreover, if the court satisfies with the sufficient cause that prevents the petitioner from filing the petition, it would issue a notice to the respondent to mention the reason for why the delay of the petitioner shall not be condoned.
 
Limitation ACT
 
Subject to the provisions of Sections mentioned in the limitation act, 1963, every petition instituted, appeal preferred, and the application filed after the prescribed period is dismissed. As per Section 3(1)  'Period of limitation’ means the period prescribed for any suit, appeal or application by the Act and meaning of ‘prescribed period’ means the period of limitation computed as per provisions of the Act.
 
The Act has prescribed the period in the Schedule of Act. The prescribed period is as follows:
 
  1. For a suit relating to contracts, accounts, declarations, recovery of lawsuits. Suits relating to movable property, etc. the prescribed period is three years.
  2. For suits relating to possession of the immovable property, the period is 12 years and for suits related to the mortgaged property, the period is 30 years.
  3. For suits relating to torts, one year is the prescribed period. Moreover, in the case of compensation for three years. 
  4. In case of an appeal under the Civil Procedure Code and Criminal Procedure Code - 30 to 90 days.
 
Section 4 states the provision that, if the court is closed on the last day of limitation, the suit, application or an appeal can be filed on very next day when the court reopens. It is based on the principle "actus curiae neminem gravabit", which means that an act of court shall not prejudice anyone. The court can condone the delay if satisfied that it causes were beyond the control of the plaintiff.
 
Section 9 of the limitation act states that when the limitation period starts running, it continues when there is any disability or inability to make an application. However, if the person is disabled at the time of filing a suit or an application, the limitation period will start after the disability of the person is removed.
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Points to be Noted for Child Custody to Father

By: admin Child Custody 29 Jul 2019

Essential points for Child Custody by Father

Generally, chances of full custody for fathers are good, only when mother has left a child alone in father's care for an extended period, and basically if she was absent from child's life for that time. Custody can be difficult to win by a father, although the courts don't discriminate against fathers. Whether a father going for full custody or joint custody must be prepared for a difficult child custody battle, specifically if the child's mother is also filing for custody.

The custody for a child for Hindus is determined by the Guardians and Wards Act, 1890 (GWA 1890), Hindu Minority and Guardianship Act, 1956. (HMGA 1956) which has an overriding effect on GWA 1890. It means that child custody can be easily granted to women in the interest of the child's welfare.

Consider the following tips to help the father get custody;

Support Payments: Any father who wants custody of a child should regularly make payments for the child’s support. In case a father has an informal arrangement with the child's mother, he should maintain records for payments. He should build a strong relationship with the child.

When the child is not in the father's custody, he should call the child frequently and check on his day. A father can stop by the child's school and get familiar with the administration. He should check on the progress of the child often and ensure the child knows that he's there to offer any assistance necessary.

Maintain Records: A father should maintain an accurate visiting schedule record to help win child custody. He should attend all school and social Gatherings. It is essential for a father who wants custody to attend the child's social, educational, and other important events as the evidence of a progressive relationship with the child.
 
Space for your Child in your place of Residence: However, small space the father lives in, he must make a special place for the child in his house. The Court will inquire about accommodations during all hearings for child custody. Fathers who want the custody should be prepared to respond to the judge's inquiry regarding housing plans.

Design Plan: A Judge will assume a father to be prepared for child custody, in case child custody is awarded. Fathers should gather thoughtful responses to potential questions by a Judge. For example, a Judge can ask questions about living accommodations, the child's education, including after-school activities and financial readiness.

Be Respectful: A father who wants custody of the child should always remember to respect the mother of the child. How a father treats the mother of the child can be a factor in determining the custody. Those fathers who are rude or disrespectful to the child's mother will also affect the child, along with the chances of obtaining child custody.

Be Honest with Yourself: A father who wants the custody of a child should ask himself whether he can handle it. It is observed that many fathers may have other responsibilities such as other children or multiple jobs, which can affect a father's ability to assume custody of a child, especially in full custody.

Ask someone Wiser than You: A father who wants the custody of a child should speak to others who have been through the process of child custody, as such person may offer insight and let a father who is going through the process know what to anticipate.

Mediation or Arbitration: A father who wants the custody of a child should consider mediation or arbitration before undergoing an adversarial court hearing. In mediation or arbitration, cases are decided by a neutral third party. For a father, custody proceedings in a courtroom may be challenging to handle so he may prefer the smaller, friendlier setting associated with mediation or arbitration.

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Basic Information Of Companies

By: admin Business 29 Jul 2019

A Company is a type of business that is the most well-known corporate structure in India. It is a business structure with a separate legal entity and enrolled either under the old Companies Act, 1956 or the new Companies Act, 2013. After registration, it utilises "Private Limited" or Pvt. Ltd. or, on the other hand, Ltd. toward the end of its name to show the kind of company that is enrolled with service of corporate undertakings. In the event that you are intrigued to understand more about a company in India, then this article is for you. 

Enrollment technique for a company in India can be done inside a time of 15 days with the new simplified rules. Anyone getting ready for company registration in India must take after the characterised well-ordered system required by the Ministry of Corporate Affairs. Before beginning the well-ordered procedure of private restricted company enrollment, let us initially investigate to sorts of the company that can be framed in India. 

For us to understand how a company works and how to register it, one first needs to understand the kinds of Company in existence. The most vital piece of company establishment and registration is to choose the sort of company that you need to consolidate. According to the present Companies Act 2013, just four sorts of companies can be enlisted with Ministry of Corporate Affairs (MCA) which are Private Limited or Pvt. Ltd., Open Limited, One Person Company or OPC in India, Enrollment Under Section 8 of the Companies Act, 2013 (Non-Profit company). 

Company Registration system in India is the same for all sort of companies with a little distinction due to a portion of the unique prerequisites of the Act. 

Director Identification Number(DIN): In company enlistment process getting Director Identification Number or DIN for every director is the initial step. DIN is a special number issued by the MCA to all new or existing executives. For each Director to be accepted in a position of director, they need to have this unique number. 

Selecting a Name: The first thing in the company enrollment process is to check for name accessibility. The company is named before its introduction to the world. Prior to its enrollment, the promoters need to give no less than one name up to a most extreme of 6 elective names in the order of the priority. The proposed name ought to be characteristic of the primary objects of the association and ought not to look like any current enlisted company. 

Memorandum of Association and Articles of Association: The next stage in company enrollment technique after name endorsement is to draft Memorandum of Association (MOA) and Article of Association (AOA). You can take the help of proficient CAs or CSs for drafting MOA and AOA. Investors need to determine their name, address and occupation in writing and mark on the last page or membership page of the MOA and AOA before applying for company enlistment. 

Registration: In the last stage of the company enlistment process, we have to transfer the MOA, AOA, Location of the Registered Office, the Director’s personal information to the MCA site one by one and these particular structures ought to be signed digitally by a director. 

The establishment of a company is not only about the technicalities but also about the efforts that go into it. It is also about figuring out what type of business you want to do. One needs to select the field they are establishing their company into. There is also the matter of figuring out where to arrange the capital from. There are rules regarding how much money regarding how much needs to be borrowed and used, books of accounts need to be maintained. It is best to get a Promoter, CS and CA to help you float and run a company. 

The responsibility that comes with establishing a company is proportional to the success that can be achieved with it. The progress and profit factor is high, so is the scope of cheating; thus, it is necessary to have proper rules established to govern the establishment and running of a company. Following these rules is a sure shot way to utilise the maximum of your capacity and earn the most. 
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Plastic Money and their Advantage & Disadvantages

By: Banking 29 Jul 2019

Plastic Money

Plastic money is a term used to represent the hard plastic cards used in day to day life in place of actual banknotes. They come in several forms such as debit cards, credit cards, store cards and pre-paid cash cards. The plastic cards began to be used widely after 1970 when the specific standards were set for a magnetic strip. In 1981, the concept of Credit cards was introduced in India and was on the verge of an exceptional boom.

Today the domestic card industry is applied with different types of cards from gold, silver, global, smart to secure, co-branded credit cards, etc. the list is endless. There is enormous growth potential in the domestic card industry. 

Types Of Plastic Money

Charge Card: A charge card has similar features of credit cards. However, after using a charge card,  it is necessary to pay the whole amount of bill till the due date. If the person defaults to pay the amount of the charge card, then he has to pay the late payment charges. 
 
Visa & MasterCard: Visa & MasterCard are international non-profit organizations. They are dedicated to promoting the growth of the business of cards across the globe. They have designed a wide network of merchant institutions by keeping in mind that the customers might use their credit cards to make several transactions worldwide.

Debit Cards: The debit card is an encoded plastic card which is issued by banks and has replaced with the cheques. It allows the customers to pay in exchange for goods and services without carrying cash. It is a multipurpose card, as it can be used as an ATM to withdraw the money and check the balance of the bank account. It is issued by bank free of cost with the savings or current account. It is one of the best online-payment tools where the amount of purchase is immediately subtracted from the account of the customer and credited to the merchant’s account. It has overcome the delay in the payment process. 

There are presently two ways in which debit cards transactions are processed:
  1. Online debit (also known as a PIN)
  2. Offline debit (also known as signature debit)

ATM Cards: These cards are typically used at ATMs to withdraw money, transfer funds and make deposits. ATM cards are used by inserting the card into a machine and enter a PIN or personal number for security purpose. The system checks the account for sufficient funds before allowing any transaction.

Advantages Of Plastic Money

Convenience: Plastic money provides an easy way to make financial transactions without carrying cash. It also provides the benefits of anywhere and anytime banking.

Check Counterfeiting: The proposed plastic currency notes will reduce the chances of counterfeiting.

Long life of Plastic Currency Notes: The proposed plastic currency notes will have the life of five years as against one-year life of paper currency notes.  

Check on Black Money: It is possible to trace the financial transactions done through cards. Developing a culture of plastic money will make it easy for the government to trace black suspected black money sources. 

Supports Growth of E-commerce: The use of cards has supported the growth of e-commerce. Growth of e-commerce enhances cost-effectiveness and alternative channels to improve economic growth. 

Power of Purchasing: Debit or Credit cards made it easier to buy things. Now we do not have any need to carry money in a large amount. Plastic money is accepted at any time and everywhere.

Time-Saving: one can purchase anything from any place through a credit card or debit card without spending money on fare or cash transaction. You have to provide your card details to seller store or corporations and settle your order. It saves time in the transaction by debit and credit card. 

Safety: In case, if an individual loses the cards, then he/she may contact the bank or financial institution, which provide the cards. The financial institution or bank will block the account and no-one can draw a single penny without your permission.

Disadvantages Of Plastic Money

Shops using other Vendors: Numerous shops accept credit cards of a specific company only. In this situation, money is the only mode of payment for those who use a credit card of another company.

Less Availability: There are several cases where the firms do not let their cards to be utilized in specific areas wherever they have a regional dispute.

An issue with Magnetic Strip: The Credit card consists of the magnetic strip that can get worn out due to extensive use of it. If it happens while travelling, and credit card is the only form of money with the person, then he/she must wait till the time they receive a new card. The new card may take a minimum of forty-eight hours to get active.

Increased Debt and rates of high-interest: Credit Card from Corporations and financial institutions charge high-interest rate on more money if the person fails to pay off till the fixed date of the particular month. These interests are the earnings, for which they provide the additional shopping for limits then the money. It is not a good idea to owe loan on high-interest rates and spend it in necessary things or purchasing. 

Fraud: In the case of stolen credit cards, the thief may use it directly to get the information. In today’s world, it is possible to get a clone of any debit or credit card, which works like original and can be a substantial loss. Thus be aware of the frauds of credit cards.

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Motor Accident Claim Tribunal

By: admin Accidents 29 Jul 2019

What Is the Motor Vehicle Act?

The Motor Vehicles Act, 1988 regulates all the aspects of road transport vehicles and is enacted by the parliament of India. The Motor Vehicles Act came into force from 1 July 1989. It created a new forum named motor accidents claims tribunals which substituted civil courts to provide a cheaper and speedier remedy to the victims of an accident by motor vehicles. The suit for damages was filed with the civil court, after the payment of ad valorem court fee. However, after the provision of a new motor vehicle act, an application claiming compensation can be made to the claims tribunal without payment of ad valorem court fee.

Procedure to Follow

Section 169 empowers the claims tribunals to formulate its procedure. As the claims tribunals have all the powers equal to the HC, the tribunal may follow the procedure laid down by the Civil Procedure Code. In holding an inquiry under section 168 of the act, the claims tribunal is empowered to follow the summary procedure as it thinks fit. The intention is that the investigation should not take the shape of elaborate and long-drawn proceedings as a regular civil suit but should be concluded as much speedily as possible. The nature of inquiry should be more or less like a judicial inquiry. There can be no gain by saying that vast power exists in the claims tribunal to conclude its procedure in dealing with the claim applications. The claims tribunal has all the trappings of a court and the proceedings before it closely resembles the proceedings in a civil court.

The whole intention of the legislature is to ensure speedy disposal of the claim applications filed by the injured persons or the legal representatives of the deceased. Moreover, in case of absence of any restraining provisions, the claims tribunal has the liberty to follow any procedure that it may choose to evolve for itself as long as it is consistent with the rules of natural justice and does not contravene the provisions of law.

Tribunal Civil Court And All Trapping of Civil Court

It's a settled law that the motor Accidents claim tribunals are civil courts and also having all trappings of the civil court. The tribunal is also vested with the powers to deal with the motor accidents arising out of the use of the motor vehicles. For recovery of the number of interim award tribunals under inherent powers can pass an appropriate order to deposit the same or to protect the interest of the claimants by giving an order.

Procedure to make an Application for Compensation in the tribunal

An application for compensation is made under section 166 of the Motor Vehicles Act and shall be accompanied by a court fee of Rs. 10 in the form of court-fee stamps. Following particulars are required to be provided when a Claimant files an application seeking compensation:

  1. Name and father's name of the person injured/dead (husband's name in the case of a married woman and widow).
  2. Address of the person injured/dead.
  3. Age of the person injured/dead.
  4. Occupation of the person injured/dead.
  5. Name and address of the employer of the insured/dead, if any.
  6. Monthly income of the person injured/dead.
  7. Whether the person in respect of whom compensation is claimed pay income tax (to be supported by documentary evidence)
  8. Place, date and time of the accident.
  9. Name and address of Police station in which jurisdiction the accident occurs or is registered.

Limitation Period: No application for compensation shall be entertained unless it is made within six months of the occurrence of the accident.

Appeal

An appeal against the order of the Claims Tribunal lies to the High Court and may be filed within ninety days from the date of the award. No appeal shall lie against an award if the amount in dispute in the appeal is less than 10,000 rupees.

Who can file an Application for Compensation?

An application for compensation involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, can be made–
  1. by the person who has sustained the injury; o
  2. by the owner of the property; or
  3. where death has resulted from the accident, by all or any of the legal representatives of the deceased; or
  4. by any agent duly authorized by the person injured or all or any of the legal representatives of the deceased, as the case may be.

Where to File an Application for Compensation?

Every application shall be made, at the option of the claimant,
  1. To the Claims Tribunal having jurisdiction over the area in which the accident occurred or
  2. To the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or
  3. Within the local limits of whose jurisdiction the defendant resides.

In order to penalize under the provision of Motor Vehicles Act, the sentence or fine or both is imposed on the violators. Criminal Law also deals with a situation when the driver of an offending vehicle commits an accident due to the negligence on their part leading to the victim's death.

The Motor Vehicles Act provides various Rules & Regulations for the public, and it has vast importance in our society due to advancement in the industry of automobiles. If any of the rules are violated, severe punishments are imposed upon the offender. We must understand the object behind the Act and should play an important role in its implementation since we are the sole beneficiaries and violators under the Act.

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Guidelines to protect doctors from frivolous and unjust prosecution

By: admin Medical Negligence 26 Jul 2019

The number of cases filed for medical negligence is increasing day by day. However, a lot of these cases are coming to light as frivolous and baseless. 
 
Frivolous cases have severe repercussions on doctors, affecting their business image as well as career.
 
Patients should realize that not every doctor, who they disagree with, is a criminal. The Medi-care system is so open to fraud because there is so little oversight of the actual facts and cases.
 
The Judges have understood this pattern and are continuously pushing back on such unjust prosecution. 
 
The Supreme court has held that:-
  1. A medical negligence complaint should not be entertained without prima facie evidence submitted to the court.
  2. Along with an expert opinion to support a claim of negligence.
  3. A doctor may not be arrested unless his arrest is necessary to further the investigation or if the investigating officer is of the opinion that the doctor would not make himself available unless he is operated.
 
Doctors should fight these frivolous claims. To aid this, the Indian Medical Council has approved a list of guidelines to protect doctors from unjust and frivolous claims. The Central Government has to approve and pass the notification. 
 
The guidelines are to be observed by the prosecuting agencies and they are implemented to protect doctors from frivolous and unjust prosecution:
 
  1. Before making the arrest, the prosecuting agency shall refer the complaint to the Chief Medical Officer. He shall place it before the District Medical Board for its recommendations based on the merits of the case.
  2. The District Medical Board shall examine the allegations of the medical negligence (within two weeks) and send the findings back to the prosecuting agency 
  3. The Board conducting the examination shall ensure that a doctor qualified in that branch of science, on which the allegation is based, was a part of that Board.
  4. In case the prosecuting agency is not satisfied by the findings of the District Medical Board, after stating the reasons for the same, the agency shall refer the matter to the Divisional Medical Board within three weeks of the recommendations issued by the District Medical Board.
  5. The Divisional Medical Board shall give reasons for either accepting or rejecting the recommendations of the District Medical Board. The decision of the Board shall be conveyed to the prosecuting agency withing four weeks.
  6. In case the prosecuting agency is dissatisfied with the recommendations of the Divisional Medical Board, after stating the reason for the same, the agency shall refer the matter to the State Medical  Board within four weeks of the recommendations issued by the Divisional Medical Board.
  7. The State Medical Board shall give reasons for either accepting or rejecting the recommendations of the Divisional Medical Board. The decision of the Board shall be conveyed to the prosecuting agency withing five weeks.
  8. The prosecuting agency, on the basis of the recommendations of the District/Divisional/State Medical Board, should further proceed in accordance with the law. 
  9. In case of an arrest of a medical practitioner employed by the state or central government, the controlling officer of the medical practitioner shall be informed by the prosecuting agency.
  10. In case of an arrest of a medical practitioner, engaged in private practice, the concerned State Medical Council is to be informed by the prosecuting agency.
 
It is a dire need of the hour to implement these guidelines promptly.
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Unjust Compensation - A Doctors Perspective

By: admin Medical Negligence 26 Jul 2019

Nowadays, the basic knowledge of how the judicial forums deal with medical negligence cases is necessary for doctors due to the increase in frivolous and unjust matters. The knowledge of how the compensation is calculated and adjudicated in the judicial courts of India will assist doctors to get indemnity insurance associated with it, without any worry about the high-cost litigation involved with medical negligence cases.

The Indian Judiciary put some light on the premium of the value of human life and their suffering.  They aim to maintain a careful balance between the autonomy of the doctor and the rights of the patient to be dealt with fairly. The balance is maintained to give proper treatment to patients and to identify the delinquency in cases if any. 

The compensation shall be awarded after taking into consideration the following pointers which may affect the doctors and their profession:

  1. The paying capability or the earning capacity of a medical practitioner.
  2. Immeasurable delays in court may affect the reputation of the medical practitioner. 

The hospital as an organization is not run by the doctors but by the administrators. Hospital administrators are primarily concerned about the revenue that generates by imposing targets on the doctors. In such cases, if medical negligence arises, then who will be liable for the compensation. Many times, it is seen that both the hospital and doctors are held responsible for paying compensation. Whereas in some cases, the court reduced the amount of compensation payable by the individual doctors as compared to the hospitals.

The purview of the Indian legal system is that the treatment provided by a doctor can be inexact and vary with the rapid advancement and substantial responsibility as the service provider.  Therefore, the calculation of compensation is not precise or accurate. There is an immediate need to introduce broad guidelines and assessment parameters to support the health system. The compensation awarded requirements to be just, prudent and reasonable. The deficiencies, such as substantial cost of litigation, delayed litigation, as well as dependence on judicial restraint, will not provide effective justice to victims and also harm the doctors and hospitals.

In the case of a frivolous matter, the doctor should be compensated for the loss of his time, money and reputation. The Indian government needs to act and invest the guidelines in health care before it is too late.
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Misdiagnosis: A Medical Negligence?

By: admin Medical Negligence 26 Jul 2019

Diagnosis is an essential task performed by physicians. To treat a patient of an illness, the first step of treatment is his diagnosis.  
 
A diagnosis is the identification of a condition in the form of a disease or disorder. It is an examination conducted on the body of the patient to determine probable causes of his condition. 
 
Misdiagnosis is the primary reason for filing a medical negligence claim. The World Health Organization (WHO) recently prioritized patient safety areas and included diagnostic errors as a high-priority problem.
 
A misdiagnosis may relate to a wrong diagnosis, delayed diagnosis or failure of diagnosis. 
 
When a doctor's diagnosis leads to an error in treating the illness of the patient, which results in worsening the situation of the patient, shall amount to medical negligence. However, not all wrong/delayed diagnosis shall have a basis for a medical negligence claim.
 
A patient filing a case for medical negligence based on the misdiagnosis of the doctor has to establish the following:
 
  1. Doctor-patient relationship
  2. Failure of providing standard care in conducting a diagnosis on the patient. (Review to be based on expert opinion)
  3. Misdiagnosis causing an injury
  4. The patient must submit proof that the doctor did not correctly diagnose him and that a competent doctor a doctor of the similar speciality would have diagnosed correctly.
 
Generally, in case of a death, it is challenging to prove misdiagnosis in India since there is no proper mechanism to report it except under medical negligence. 
 
Also, to prove misdiagnosis, one would have to request for an autopsy, which is an expensive affair, and not everyone can afford it. Even if the family of the patient inclines towards requesting an autopsy, it is difficult for a layman who does not understand medical terms, to take a wise call. 
 
There are several reasons due to which misdiagnosis takes place. It is for the court to decide on the merits of each case individually whether it would be regarded as a defence available to the doctor, or would the doctor be held liable for medical negligence for misdiagnosis.
 
Different reasons/causes of misdiagnosis:
 
  1. The diagnosis was based on erroneous lab results conducted by a non-interested third party
  2. A piece of flawed equipment is used for conducting diagnosis
  3. A technician who wrongly administers the test 
  4. A secondary who misreads the scan
  5. Results of tests swapped between patients
  6. The limited-time associated with each patient 
 
For the above instances, if the concerned or diagnosing doctor is not liable, some other party will be liable. For example- the doctor is not responsible in case of 'results of tests being swapped' since it is the hospital staff who is involved in giving the doctors the test results.
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Exemption of doctors operating in Emergency Rooms

By: admin Medical Negligence 26 Jul 2019

Emergency rooms are very chaotic by nature. Generally, the Doctors present in the emergency rooms diagnose the patients who are needful to seek medical care due to accidents, sudden violent act, illness or any other medical condition. Medical records may not be thoroughly reviewed due to the lack of time that a doctor of the emergency room has to assess the situation before giving treatment. Thus, in the cases of medical negligence doctors present in the emergency room may be given more breathing space than other doctors treating the patient. Treatment in an emergency room means trusting the strangers to save the life of the patient. Emergency room injuries are the sudden physical, emotional, and financial hardships for the patients and their families.

A doctor who examines the patient is the first attending physician performing medical work upon arrival of the patient at the emergency room. In an emergency room, the situation is so terrible that the tests consume a longer period of time; tests such as a CT scan or an MRI cannot be done on the basis of emergency. But emergency in the environment does not eliminate the duty of doctor’s to perform specific tests to isolate the problem. 

Errors faced at Emergency Room:

  1. Failure to get the medical history of the treating patient
  2. Due to the lack of time, it is difficult to perform an accurate physical examination
  3. To recognize the life-threatening causes of patient health
  4. To come on a conclusion about the health of a patient in a hasty manner, without considering alternative treatment or analysing the present medical condition of the patient
  5. Misdiagnosis, delay in diagnosing or treating the patient
  6. Delay in performing test which is necessary in case of emergency
  7. Laboratory errors or the dumping of patient or transfusion of the contaminated blood
  8. Failure to monitor a patient properly 
  9. Inappropriate medications or improper doses 

Injuries Caused by malpractice at Emergency Room:

It would be impossible to list the injuries resulting from malpractice in the emergency room. However, some are more commonly included:
  1. Severe cardiac attack or death from an undiagnosed heart attack
  2. Death from undiagnosed stroke or paralysis
  3. Severe damage to organs or limbs due to misdiagnosis by a doctor
  4. Infection or ill-treatment

To avoid errors, some measures can be taken into consideration:

  1. To engage the adequate number of doctors and the supporting staff in the emergency rooms.
  2. To provide with the adequate facilities 
  3. To maintain the sanitary condition 
  4. To maintain the records of the patient and to look for the tracking procedure of the patient. 
  5. Proper medication administration procedure
  6. Ethical treatment to the patient

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General Types of Medico-Legal Cases (MLC)

By: admin Medical Negligence 26 Jul 2019

Most doctors come across medico-legal cases (MLC) in their medical career. An MLC is a case of injury wherein an investigation by the law enforcing agency is necessary to get to the bottom of the cause of the injury. In other words, it is a medical case with legal implications for the doctor, where he, after the examination of the patient, thinks that some investigation by law enforcement agencies is essential. It also includes a legal case requiring medical expertise when brought by the police for examination since a doctor's knowledge may be necessary for the administration of law.
 
Instances of MLC are:
 
  1. Cases of injuries and burns that suggest the commission of an offence.
  2. Unnatural accident cases of grievous hurt or death
  3. Sexual assault
  4. Criminal abortion
  5. Unnatural unconsciousness
  6. Poisoning or intoxication
  7. Cases referred by the courts
 
The Government has issued a list of guidelines and the manner in which care has to be given to the MLC survivors:
 
  1. Initial resuscitation or first aid
  2. Required consent for examination
  3. Detailed history
  4. Medical examination
  5. Age estimation, if requested
  6. Providing the collected evidence to police
  7. Documentation
  8. Treatment of injuries
  9. Psychological counselling
 
  • The doctor should carefully examine and treat the patient, record the date, time, place, brought by whom and examination finding. The doctor should also record the dying declaration of the patient if he is on the verge of death.
  • As per section 39 of the Criminal Procedure Code, the doctor must report the MLC to police after the completion of primary lifesaving medical care. The aim is to initiate the legal proceeding at the earliest to gather maximum evidence by the police. Quick and effective action by the police also helps to avoid the destruction of evidence.
  • The law states that issues such as legal formalities, monetary constraints or infrastructural restraints of the institution should not prohibit the hospital from providing basic and emergency medical treatment.
  • Generally, all the big hospitals and teaching institutions have a detailed manual on how to deal with MLC's. However, even if these manuals are not available, MLC's pose no problem if the doctor uses proper care and caution in dealing with them.
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Duty of patient to avoid aiding Medical Negligence

By: Medical Negligence 24 Jul 2019

Although medical practitioner causes the negligence, there is a certain sense of care to be observed by the patients to avoid any actions that may aid medical negligence. These are the duties of the patients towards medical professionals: 

Information: The most important responsibility of the patient is to provide information about the medical history of themselves to the best of knowledge to the consulting medical practitioner. The patient and his family are responsible for providing accurate information relating to his current illness, past episodes, any medications, surgeries, allergies, or previous adverse reaction. No information regarding the patient's medical background is trivial, and the consulting medical professional should be made aware of that.

To Clear Misunderstandings: The patient and his family members should consult the doctor in case of any misunderstanding relating to the treatment given to the patient. It is common knowledge that the medical terms used by the doctors are difficult for a layman to understand. The doctor is generally not aware of how much the patient understands; hence, the patient should ask the doctor for clarity.

Instructions: Any instruction given by the doctors should be followed thoroughly. The patient is responsible for following the action plan both the times, pre and post of the treatment. The patient shall be responsible for any consequences and will have to accept the results and the outcomes if these instructions are not followed diligently.

Other Treatments: The patient must inform the medical consultant of any other ongoing treatment with other doctors. Sometimes double treatments can be the cause of worsening the condition of the patient.

Rules & Regulations of the hospital: The patient and his family owe a duty of care towards the other patients and medical staff. He must follow the rules and regulations of the hospital and not disrupt the services to hamper his treatment or that of the other patients.

Financial Commitments: Although the medical fraternity is responsible for taking up any case brought to them, the patient has to fulfil any financial commitments given to the hospital. When a patient is brought to a hospital (except under emergency cases), it is implied that the service given by the hospital shall be payable by the consumer, i.e. the patient.

Report any fraudulent activity: This point is regarding medical payment fraud through medicare laws. For instance: Being charged for services that are not rendered. The patient must bring to light and report any known fraudulent medical bill payment activities. 

Generally speaking, the above actions in a standalone manner will not amount to medical negligence, however, in a court of law, they may be considered as actions by patients that aid medical negligence and hence lower the claim of negligence to be demanded from the doctor.

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Rights of the Patient

By: admin Medical Negligence 24 Jul 2019

The Ministry of Health and Family Welfare has delivered a ‘Charter of Patients Rights’ prepared by the National Human Rights Commission (NHRC).

It includes all the lawful rights of the patients according to the Indian Constitution:

Right to know - The patients must be provided with information about their sickness, proposed investigation, complications and its analysis by the Physicians or their qualified assistants. The information should be given to the patient in simple language. The sufferers have the right to grasp the identity of every medical professional. The bill of the medication should be given in the written form.

Right to check reports and records - Patients or their caretakers can check the records and reports of their concerned patient. In the case of death of a patient, the hospital is accountable for providing a discharge abstract or a death abstract to their family members with the copies of investigations.

Right to receive medical care at the emergency - In the case of an emergency, the patient can avail treatment in any executive or confidential health facility. As per article 21, it is ensured that every person has the right to life and liberty; the patient has the right to get emergency care.

Right to give consent - The general practitioner has to give an explanation of the process and risks associated with the investigation or surgery in an easy language before getting the consent of the patient or the caretaker.

Right to have confidentiality and privacy - The code of ethics dictates medical professionals hold knowledge about the medication plan for the patient in a confidential manner. In the case of a female patient, if the clinical practitioner checking her is male, then she can demand the presence of the female nurse.
 
Right not to be discriminated based on medical care - The medical professionals shall not discriminate between patients based on their situation, HIV reputation or on their gender, religion, ethnicity, sexual orientation, linguistic or social origins.

Right to safety and quality - There is a list of provisions that are mentioned as per the standards of quality care.  It includes the cleanliness, safety and security, infection control measures, and sanitation facilities that abide by the latest guidelines under the National Accreditation Board for Hospitals, to be treated professionally with the principles of medical ethics and the right to seek redressal by the patient or their family members.

Right to choose an alternative treatment to cure their ailment - After a primary gain of knowledge, the patient can prefer to select a cure that is probably not the surgeon’s recommendation. It signifies that the patient prefers this substitute healing as they are going to shoulder the accountability of the consequences.

Right to have transparency in the treatment cost - The patient has the right to have transparency in the cost of treatment. It is necessary that hospitals are required to have printed brochures and distinguished rates. Charges need to be displayed in conspicuous places and must be in presented in the English and vernacular language.

Right to select the source for buying medicines or conducting tests - The patient has the right to decide from which registered pharmacy he wants to purchase the medicines or medical infants. The Patient also has a right to visit a laboratory of his choice to conduct various prescribed tests.

Right to protect the participants involved in health and biomedical research - In case if a patient is involved in a health or biomedical research system, the consent of the patient should be taken in a written format.

Right to discharge and the right to receive the dead body of a deceased patient from the hospital - A patient has the right to get discharged, and the caretakers have the right to receive the dead body of a patient. The hospital cannot detain the patient or in case of his death, his body, on procedural grounds of dispute in paying the charges of the hospital.

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Steps to be taken to avoid Medical Negligence

By: admin Medical Negligence 24 Jul 2019

Although medical treatment is improving throughout India, instances of medical negligence caused by medical professionals are still alarmingly high. Treatments/surgeries are not always in the control of the doctor. However, there are a few steps that can be taken into consideration to avoid medical negligence. 
 
1. To establish a good relation: This step is essential to be able to communicate with the patient honestly and helps his family gain a good understanding of the procedure to be followed in treating the patient.
 
2. Documentation: It is essential to conduct the proper documentation for all the treatments administered to the patient, along with the appropriate information, medical professionals should try and record all the findings, advice, decisions, etc.
 
3. To be up-to-date with the current standard of care: Ignorance of the law is not a defence acceptable in the court of law. Hence it is crucial for the doctors to up to date with the current scenario as medical regulations may be amended from time to time.
 
4. Consent: It is essential to take consent from the patient before conducting any surgery. The medical professional should inform the patient about all the risks involved, the cost of the surgery, the course of the treatment, possible circumstances and other such details. This gives a chance to the patient to review different alternative options. This simple step can avoid a medical negligence claim.
 
5. To be clear and consistent: In addition to the first point above,  it is necessary to be clear and consistent in explaining the patient his condition. Since the patients will not understand most medical terms used by the medical professional, it is important to break it down to them in a simple language.
 
6. Follow-Ups: The medical professionals, during different stages of the patient's treatment, should conduct follow-ups (mainly post the surgery in relation to any unknown reaction) to avoid any claim of medical negligence. A hospital should have set protocols for such follow-ups to have a standard procedure to be followed by all the medical professionals dealing with patients.
 
7. Manage expectations: Since one of the key measures to avoid medical negligence is communication, it is on the doctors to manage any false hopes that may arise. The doctor has to even communicate with the family members since false expectations in case of death of the patient shall cause an unnecessary claim of medical negligence.
 
8. Audit: To review the practices by the staff and other professionals of the hospital. This can be done with the help of a disinterested third party which performs periodic surveys and can help maintain consistent records. 
 
Adding these steps in the routine practice can prevent the claims of medical negligence and would also benefit in strengthening the case of medical professionals if a lawsuit arises. Such a risk management scheme will help to maintain a high standard of care of the patient and also provide good publicity to the hospital.
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Liability of Medical Negligence under Consumer Protection Act

By: admin Medical Negligence 23 Jul 2019

In India, all medical services fall under the purview of the Consumer Protection Act 1986. The interests of the consumers are protected against the deficiency of services. As per section 2 (1) of the Consumer Protection Act, 1986 the deficiency of service means any default, imperfection or inadequacy in the nature, quality, or manner of performance that should be maintained by any law for the time being in force.  It shall be undertaken to be performed by a person in pursuance of a contract or the service provided. It is comprehensive legislation implemented to promote and safeguard the concerns of the consumers. To establish a relation between the CPA and the medical profession, it is essential to understand whether the patient can be considered a 'consumer' as per the definitions of CPA.
 
In order to deal with this uncertainty, the courts clarified that the medical treatment rendered to a patient for a certain amount of consideration is a service as described in the CPA. Hence it can be stated that medical professionals who render services are liable to the patient for injury caused due to negligence on his part.
 
For instance, in Indrani Bhattacharjee v. Chief Medical Officer and Ors, the doctor failed to advise the patient to consult cardiologist as the ECG of the patient was not normal. Instead of that doctor gave him medicines for the gastric problem which amounted to deficiency in service as per the Consumer Protection Act.
 
In the case of Kusum Sharma v. Batra Hospital and Medical Research Center and Ors, the court states that if the medical practitioner fails to maintain the standards of reasonable care, then they will be held liable for medical negligence, which gives appearance of deficiency in medical service as per Section 2 (1) (g) of Consumer Protection Act.
 
The District Consumer Forum has laid the order to refund the amount with interest in case of Kidney Stone Center v. Khem Singh, where the patient was suffering from the problem of stone in the urethra. The defendant promised to remove the stone without surgery by paying ten thousand rupees but failed to do so. 
 
When doctors do the treatment or give their services without charging the patients, they are not held liable either individually or vicariously. Therefore, the free treatment at government or non-government hospital, dispensary or a nursing home, health care centre cannot be considered as service defined under Section 2 (1) (o) of the Consumer Protection Act, 1986. Therefore, the contract of providing the service is beyond the ambit of the Consumer Protection Act. The Act cannot rescue the patients, where they take free services or are paying only a nominal fee for the registration purpose. However, if the medical practitioner or doctors waive the charges due to the incapability of patients to pay the costs, then they are considered as consumers and can sue under the Act.
 
In Indian Medical Association v. P Santha, it is observed that the doctors or medical practitioners will be held liable for their services unless the exceptions mentioned in this case are not followed. The court states that the patients cannot be treated as a contract of personal services. 
 
The complaints under the Consumer Protection Act can be filed at the District Forum, State Commission and National Commission.
 
  1. If the value of compensation and services claimed is less than 20 lakh rupees, then the matter will be filed before the District Forum.
  2. If the value of the goods or services and the compensation claimed is below one crore rupees, then the matter will be referred to the State Commission.
  3. And if the value of the goods or services and the compensation exceeds more than one crore rupees, the matter is referred to the National Commission. There is a minimal fee for filing a complaint before the District Consumer Redressal Forums, State Commission and National Commission.
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Laws That Affect The Medical Professionals

By: admin Medical Negligence 23 Jul 2019

The Indian Laws have laid down specific laws and provisions that affect the medical profession, and it's working effectively. Below mentioned are the laws which prevent medical negligence and protects the interests of the patients. They are as follows:
 
INDIAN CONSTITUTION
 
Article 21 of the Indian Constitution states that no person shall be deprived of his life or personal liberty except for the procedure that is established by the law.
 
Article 32 of the Indian Constitution speaks about the Right to Constitutional Remedies. The Supreme Court is given authority to issue orders, directions, or writs and is considered as the guarantor and protector of the fundamental rights.
 
Article 41 of the Directive Principles of State Policy, the State can make effective provision in order to secure the right to work, education and public assistance in cases of unemployment, sickness and disablement, old age, etc. within its jurisdiction.
 
Article 42 of the Directive Principles of State Policy states that the State can make provisions for securing just conditions of work for the maternity relief.
 
Article 47 of the Directive Principles of State Policy says that in order to raise the standard of living of the people and the level of nutrition to improve the public health, in particular, the State can endeavour to prohibit the consumption of intoxicating drinks and drugs that are injurious to health except for the medicinal purposes.
 
INDIAN PENAL CODE
 
Section 52 - Anything done without due care and attention cannot be considered as an act done in good faith.
 
Section 80 - Anything did accidentally or by misfortune and without any criminal intention or lawfully doing an act by lawful means and with proper care and caution is not an offence.
 
Section 81 - Act done likely to cause harm, without criminal intent, or because of it is being done with the knowledge that can cause them harm, but is done in good faith, for preventing or avoiding other harm to the person or property then it is not an offence.
 
Section 88 - If a person performs the act in good faith for the benefit of another person, and he does not intend to cause harm even if there is a risk and the patient has implicitly or explicitly given the consent for the same. 
 
Section 90 - If an individual gives the consent underneath the worry of damage, or under a false impression of fact, and if the individual doing the act knows or  think, that the consent was given consequently of fear or misconception; or if the consent is given from unsoundness of the individual, and is unable to appreciate the character or outcome of which he gives his consent; or if the consent  is given by child with who is under twelve years of age.
 
Section 92 - The act is done in good faith for the benefit of an individual without his consent is not an offence. The harm which is caused by the intention of improvement in just the right faith, without the consent of the character. If such cases arise that the character is incapable of giving consent, and has no lawful guardian from whom it is possible to get the consent.  
 
Section 304-A - If a person commits a rash or negligent act which leads to the culpable homicide then he shall be punished with imprisonment for a term which may extend to two years, or fine, or both.
 
Section 337 - If a person commits a negligent act which threatens human life or safety of others will be punished with imprisonment for a term that extends for six months, along with fine extending to five hundred rupees, or both.
 
Section 338 - The person who causes grievous hurt to any individual rashly or negligently, to endanger the human life or the safety of that person will be punished with imprisonment for a term of two years which may extend or a fine of one thousand rupees or with both.
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Defense against Medical Negligence Cases

By: admin Medical Negligence 23 Jul 2019

When a medical professional receives a legal notice alleging deficiency in service, it creates a great deal of stress and disturbance as their reputation is at stake. One who receives the notice or his lawyer should reply to the legal notice. A well-prepared reply will serve as a written statement to be filed in case a Consumer Complaint instituted against the hospital and doctor.
 
We cannot deny the fact that prolonged litigation adversely affects the reputation of a doctor, even if he wins the case. Hence there are several defences against the claim of medical negligence. Their applicability will differ from case to case; in other words, each case shall be treated on the merits of that particular case itself.
 
Common defences against medical negligence are as follows:
 
Contributory Negligence: If a patient is a contributor in committing a negligent act, the doctor shall not be liable for the acts committed by the patient. For example, not intimating the doctor of any ongoing medication.
 
Respected Minority Principle: A doctor pursuing a new treatment with the consent of the patient can have a valid defence to a medical negligence claim if a respected minority of professionals support this form of treatment.
 
Good Samaritan Laws: Although a doctor is expected to give the same amount of care even if he voluntarily aids someone, he shall be excused in case if he treats a patient under emergency conditions.
 
Statute of Limitations: This is not a defence but a limitation issued by the court of law as to the period during which a case can be filed for medical negligence.
 
The Wrong Party Is Being Sued: Liability has to be traced to the party of the property, or else there will be no case of negligence if the wrong party is being sued.
 
Pre-existing Injury: If the doctor claims and proves that the injury is the subject matter of the medical negligence claim; it is an injury caused by a previous illness.
 
Informed Risk: If the doctor has informed the risks involved in the surgery and the patient gives consent to perform the same, a doctor cannot be held liable for medical negligence if the injury is relating to that risk.
 
Uncertain Damages: The claim has to be calculated in order to award damages, in case of uncertain damages the court may not award any damages.
 
False Consumer Case: The medical professionals will have to rely on the case history, clinical records, indoor case papers, report for investigation, X-rays, etc. to prove their innocence. But the wrongdoer will have to pay for the damages caused to the doctor.
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Duties of Doctors

By: admin Medical Negligence 23 Jul 2019

The profession of a medical practitioner is the most respected in society.  It is t responsibility of the doctor to follow standard procedures and precautions while treating his patient. Negligence on the part of a doctor can cause severe hardship for the patient and can lead to the death of a patient.
 
To avoid it, certain duties and obligations are assigned to the operating doctor under various laws, which are as follows:
(i) Code of Medical Ethics of MCI;
(ii) Hippocratic Oath; 
(iii) International Code of Medical Ethics; 
(iv) Government of India Guidelines for Sterilization.
 
The duties of the doctors are summarized as follows:
 
Primary Duty: The primary duty of Doctor is to maintain good and proper medical practice. The principal objective of the medical practitioner is to render service to humanity with full respect for the dignity of the profession. Physicians should continuously improve their skills and medical knowledge and should make available the benefits of their professional attainments to the patients. The physician should practise methods of healing founded on a scientific basis and should not associate professionally with anyone who violates this principle. A physician should affiliate with associations of allopathic medical professions or any other association and involve actively in the functioning of such bodies.
 
Duties towards Patient: Every physician should provide information to the Patient, should take the consent for treatment, and provide with Emergency Care. It is the duty of a doctor to provide the patient with due skill, care, and attention.
 
Duties towards Public: Every physician should guide the patient regarding the basics of health education. They should be able to give treatment to people suffering from natural calamities like floods, earthquake, drought, etc. regardless of their stature.
 
Maintenance of Medical Records: Every physician shall maintain the medical records about his / her patients for three years from the date of commencement of the treatment as per the standard proforma laid down by the Medical Council of India. If anyone (including the court) requests to produce information on medical records, then the same may be issued within 72 hours.
 
To maintain the Registers: A medical practitioner shall maintain a Register, including the details of certificates issued. While issuing a medical certificate, he shall always enter the identification marks of the patient and keep a copy of the document and certificate.
 
Display of Registration Numbers: Every physician shall display the registration number awarded by the State Medical Council / Medical Council of India in his clinic and also in the prescriptions, certificates, money receipts are given to his patients.
 
Exposure of Unethical Conduct: A Physician should expose, without fear, incompetent or corrupt, dishonest or unethical conduct on the part of members of the profession.
 
Professional Services: The doctor should announce his fees before rendering service and not after the treatment. Remuneration received should be in the amount specifically announced to the patient at the time of rendering the services.
 
Evasion of Legal Restrictions: The physician shall observe all laws regulating the practice of medicine and shall not assist others in evading the laws. He should always be cooperative in the enforcement of sanitary laws and regulations in the interest of public health.
 
Duties towards Law Enforcement: They should inform police of all cases of poisoning, burns, injury, illegal abortion, suicide, homicide, manslaughter, grievous hurt, etc.
 
Duty of physician to avoid any Illegal Activity: The physicians should not perform illegal abortions, issue death certificates where the cause of death is not known, sex determination, etc.
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Common types of Medical Negligence

By: admin Medical Negligence 23 Jul 2019

Despite the life-changing outcomes, some medical negligence victims don’t seek compensation. It is mainly due to a lack of knowledge of the procedure to be followed. Also, many patients simply are not sure if medical negligence had occurred. People believe that errors just happen in a hospital in their normal course of treatment, so no one is really responsible for that. Other victims wait too long, and eventually, the time to file a case expires.
Some common types of Medical Negligence are as follows:
 
1. Misdiagnosis: The first step after admitting the patient is the diagnosis.  The wrong diagnosis can prove to be fatal since it may delay the correct medical treatment, and that might directly affect the health of the patient. Or in other cases, a healthy patient shall receive a treatment that he doesn’t need. In order to defend the doctors from frivolous lawsuits, the Supreme Court held that not all wrong diagnosis shall amount to medical negligence. To prove negligence, it is imperative to show that the doctor failed to do something that other doctors with similar skills could have done.
 
2. Delayed Diagnosis/Failure to Treat: If a diagnosis is not made on time, it may, under extreme circumstances, lead to the death of the patient. In India, the primary reason for the delay in diagnosis or the failure to treat is the increasing distance in the ratio of doctor-patient. The doctor is always running to the next patient and sometimes is unable to tend all of them. Sometimes doctors put money above the patients. Since the delay in diagnosis reduces the likelihood of the patient’s recovery, the doctors and the hospital can be liable for medical negligence unless it is proved that due care was given an early diagnosis would not have affected the health of the patient.
 
3. Surgical Negligence: This negligence relates to negligence during the surgical treatment of the patient. Often, these surgeries would result in another surgery, infection, organ damage, or even death of the patient.
 
  • Types of surgical negligence are listed below
  • The wrong operation
  • The wrong body part being operated
  • Foreign objects left in a patient
  • Unintentional perforation 
  • Disfigurement 
  • Infection caught during the surgery
 
4. Childbirth Trauma: Childbirth, if not handled properly by the doctors can put the child through a life-threatening situation. Instances of issues that can be faced by the child at birth are as follows:
 
  • Inability to perform a C-section correctly and on time.
  • Gross mistreatment of the baby during a difficult birth. (e.g., extraction of the baby by using forceps and suction).
  • Complications caused due to induced labour.
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Medical Consent for treatment in India

By: Medical Negligence 23 Jul 2019

In medical practice, consent is a legal requirement, not a procedural formality. Getting a mere signature by the patient on a form is not consent. If a patient signs the consent form without getting sufficient information, then the consent is treated as invalid. The element of consent is very crucial in medical treatment. The patient has the legal right under article 21 of the constitution of India for the self-determination.  The consent should be obtained only after providing the necessary and sufficient information about the treatment and medication. The patient has a right to decline or refuse the treatment given by the doctor, but in case of emergency, the doctor need not take the consent for treatment, raising the debate on medical malpractices. A doctor who treats without valid consent will be liable under tort and criminal laws. Most often, medical practitioners ignore the requirement of valid consent and its legal implication resulting in the scrutiny in various medical malpractice cases.
 
Law Of Consent In INDIA
 
Article 21 of the Indian constitution deals with the right to life and liberty. Article 21 has the widest amplitude as it covers a wide variety of rights, including the right to live with dignity and includes any act which injures, damages or interferes with the use of any limb or faculty either permanently or temporarily.
 
The concept and scope of informed consent are one of the most critical and highly debated issues in medical treatment in India. As per the verdict laid by the Supreme Court in Samira Kohli vs Dr Prabha Manchanda and Another (2008) 2 SCC 1, concerning the context of the relationship between doctor and patient, the consent is defined as the permission by a patient for an act to be carried out by a doctor for treatment. The Medical Council of India (MCI) states that ‘a physician, before performing an operation, should obtain the consent in written form from the parents, husband or wife, or guardian in the case of a minor, or the patient himself as the case may be. Otherwise, it shall constitute professional misconduct on the part of the physician rendering him/her liable for disciplinary action by MCI.
 
The doctor must give proper and adequate information to the patient to understand the aspects of the treatment given to him. The necessary information may include the following things:
 
  1. Nature of the treatment
  2. The procedure of the treatment
  3. Purpose and benefits 
  4. Complications that may arise
  5. Alternatives for the effects 
  6. Outline of substantial risk in treatment
  7. Adverse consequences of refusing treatment.
 
The adequate information given by the doctor need not include remote risks, rare complications and possible results of a hypothetical negligent surgery. Before commencing treatment or surgery, the consent obtained by the doctor should be real and valid, which states that:-
 
  1. The patient should have the competence and capacity to consent; 
  2. The consent given by the patient should be voluntary; 
  3. Also, the consent given should be based on adequate information concerning the nature of the treatment and procedure.
 
Patient information sheets (PIS) should maintain the information related to the procedure, including pre-operative and post-operative pre-cautions in the simple language with graphic representation may aid the versed consent process. While handing the PIS to the patient, the contents should be explained to him.
 
The consent form may include the following:
 
  1. Date and time
  2. Details of the patient, including the name, age and signature of the patient.
  3. Details of doctors mentioning the name, registration number and signature of the doctor
  4. Name and signature of a witness
  5. Type of Disease
  6. Surgical procedure 
  7. Type and nature of the surgery 
  8. Type of Anaesthesia 
  9. Blood transfusion
  10. Document the fact that patient and relatives were allowed to ask questions, and their queries were answered to their satisfaction.
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Regulation for E - Pharmacy in India

By: admin Medical Negligence 23 Jul 2019

In India, online purchasing of medicines is the latest trend in the market. Due to the increase in buying medicines online, several services of online pharmacies have also increased on a large scale. But, it is observed that there is a lack of proper regulatory provisions to control E-pharmacies. With the help of the advancement of technology, access to medicines through the internet is very easy.

In India, the laws governing pharmacies are derived from the following acts such as Drugs and Cosmetics Act, 1940; Drugs and Cosmetics Rules, 1945; Pharmacy Act, 1948; Indian Medical Act, 1956 and Code of Ethics Regulations, 2002 etc. Basically, the concept of E-pharmacies comes under the purview of the Drugs and Cosmetics Act, 1940 and the Information Technology Act, 2000.

It is to be noted that the Drugs and Cosmetics Act, 1940 doesn’t distinguish between online and offline pharmacies. Hence, there is a lack of proper and precise laws for e-pharmacies. Regulatory authorities find it challenging to monitor, control, and trace the sale of drugs via the internet as there is a lack of clear guidelines regarding the same. E-pharmacy may be proved as a dangerous trend in future if not regulated appropriately.

E-Pharmacies

The application of the internet to access drugs and diagnostics, which has matured into virtual drugs stores is popularly known as “internet pharmacy”. The arrival of internet pharmacy and access to drugs and diagnostics is gaining popularity due to cost-effectiveness, high-speed delivery to the doorstep of patients. It is also known as Online Pharmacy, Internet Pharmacy, Web Pharmacy or Cyber Pharmacy.

E-Prescribing

It is a technology framework that enables the medical practitioners and physicians to send prescriptions to a pharmacy in an electronic way instead of using handwritten notes or calling in prescriptions.

E-Commerce

  • The process of buying and selling goods and services, or the transfer of funds or data, on an electronic network, primarily the internet. The Information Technology Act, 2000, governs all activities and issues connected to the internet. When e-pharmacies regulation is concerned, there is a lack of accurate and unambiguous stated laws and definite guidelines to regulate, monitor and control e-pharmacies. For ensuring the efficient and legitimate running of e-pharmacies, it is a need of the hour to make hassle-free rules for E-pharmacies.

Government’s progress towards the issue of regulation on E- Pharmacies

Drugs Controller General of India has banned the sale of medicines through e-pharmacies on 30th December 2015. All the drug control administrations of union territories and state government selling medicines as pending submission of the report prepared by the expert committee to the Centre. The Drugs Controller General of India (DCGI) emphasized to keep an eye on the online sale of medicines to stop breaching rules and regulations. Hence all E - pharmacies operating in India are under the regulatory scanner.

Drugs Consultative Committee had constituted a seven-member subcommittee to study the issue of sale of drugs on the internet and associated risks and concerns. Sub-committee review recommended to formulate guidelines on the use of information technology in e-pharmacy and authorize its legal validity.

Federation of Indian Chambers of Commerce and Industry has been appointed as a nodal agency by the Drugs Controller General of India to consolidate and frame guidelines for online sales of medicines through e-commerce channels on June 2015.

Indian Medical Association (IMA) wrote a white paper which shows that IMA strongly opposes e-pharmacies. But objection of white paper could be improved if concerned authorities study it in detail, and proper steps will be taken. Traditional pharmacies owners opposed the online model. So, relevant authorities should think about existing models interest and benefit while drafting new rules for the online model. It should not hurt the business of the existing model players. The new model will be such that it integrates and augments the business of current model rather than harming it. It would open the horizon of new opportunities for the existing model. Both models should be operated, worked and regulated in a harmonized and synchronized manner. It would be served as a platform to bridge the gaps of existing offline pharmacies and connect the patients with existing offline pharmacies.

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Types of Consent for Medical Treatment

By: Medical Negligence 23 Jul 2019

Consent to treatment means permission given to the person before they receive any medical treatment or examination. Consent is needed for the physical examination, donation of an organ, or for any other purpose from the patient. The principle of ‘consent’ is an essential part of medical ethics and international human rights law. Legally, the persons are said to give consent when they discuss and agree upon the same thing in the corresponding sense. It is necessary to obtain consent before conducting any medical procedure on a patient. The consent may be expressed or implied in nature. The consent can be in the form of voluntary consent, informed consent and capacity of the approval.
 
Voluntary Consent - To give consent for the treatment, the decision should be taken by the person who is not influenced or pressurized by any medical staff, friends or family.
 
Informed Consent - The patient must be informed about the treatment proposed to be given by explaining him the risks and benefits or the alternative treatment and consequences.
 
Express Consent - Express consent is stated in the verbal or written form. It must be obtained for all major diagnostic, anaesthesia and surgical procedures as it is the most specific form of consent.
 
Capacity - The patient must be proficient of giving consent for the treatment. If an adult can make a voluntary and informed decision to consent to or refuse a particular treatment, their decision must be respected.
 
The consent can be verbal or in written form. If the person says that he is happy to remove the X-ray to check the difficulty and the pain he is suffering, it is a verbal consent. Whereas if the patient gives a signature on the consent form of surgery, then it is the written form of consent.
 
What if the patient is not capable of giving consent?
 
  1. If the patient is not in a condition to express his consent, even if he is capable of giving permission, the following exceptions can be laid. 
  2. If the patient needs emergency treatment to save his life, but he is unconscious at the point, later, the reasons why treatment was necessary should be fully explained to him when he recovers.
  3. If the patient needs an additional emergency procedure or treatment during an operation, the medical practitioner treating the patient has to give the unambiguous medical reason stating why it was unsafe to wait for the consent for the particular treatment.
  4. If the person is suffering from a severe mental health condition and cannot give consent for the treatment for their mental health (under the Mental Health Act 1983), in this case, the consent for the treatment of unrelated physical conditions is required, which the patient can give despite his mental illness.
  5. If the person has attempted suicide or self-harmed and needs the treatment for a severe mental health condition and is refusing treatment (under the Mental Health Act 1983), then the nearest relative or an approved social worker may make an application for the person to be forcibly kept in hospital for assessing the condition of the patient.
  6. If the patient is ill and lives in unhygienic condition (under the National Assistance Act 1948), they can be taken to a hygienic place without their consent.
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Guidelines for Autopsy/ Postmortem in India

By: admin Medical Negligence 23 Jul 2019

With an increase in the litigation of medical negligence and malpractices, a forensic expert has an opportunity to execute an important role in the medical field. In case of death due to negligence, they can state the exact reason for death and its relation to the act of commission. No action against medical negligence can be taken in the absence of proper investigation. It is difficult for the forensic expert to keep abreast of all the developments in various speciality techniques; thus, the ad-hoc committee is appointed with the composition of specialist medical practitioners in different medical faculties to evaluate a case of medical negligence.
 
In case of death due to medical negligence, the examination of postmortem is must for taking any action against the negligent doctor. The aim is to rule out any foul in case of the unnatural or suspicious death of the person. The forensic expert should be cautious as it constitutes a difficult examination, even if there is a reporting problem.
 
Generally, medico-legal postmortem autopsy is requested by the Police under Section 174 of Cr.Pc, Magistrate under Section 176 of Cr.Pc to obtain the following objectives:
 
1. To find the cause of death 
2. To find the facts, purpose and medical information for law enforcing agencies and court.
3. To allow the recovery and preservation evidence
4. To determine the manner of death
5. To know the time of death 
6. To reconstruct Crime Scene
7. To see for the circumstances related to the death
8. To identify the victim, etc
 
The post mortem reports are needed by the police, public, court, lawyer. It should contain the concise and relevant points raised during an interrogation of the particular case. Postmortem is a severe exercise and has serious medical, social and legal repercussions.
 
Rules For Medico-Legal Autopsy.
 
In India, the rules for medico-legal autopsy stated are as follows;
 
1. A written order from the Police Officer is necessary for the autopsy.
2. The autopsy should be done in the day time.
3. The autopsy should be carried out in the hospital where the dead body lies.
4. Identity of the deceased to be secured.
5. The post mortem report should be written on the spot.
 
Contents Of Postmortem Report;
 
1. Name and identification of the deceased 
2. Place, time and date of post mortem
3. Internal Examination 
4. External Examination
5. Viscera and samples collected for analysis
6. Opinion as to cause the manner of death
 
Precaution;
 
1. To handle the human remains safe during the autopsy procedure to prevent transmission of viruses.
2. For eye protection, goggles and face shield should be used.
3. Surgical gloves with a layer of cut-proof synthetic gloves should be used.
4. Before leaving the autopsy suite, dispose of by the facility policies and procedure.
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Guidelines for the prescription of medicines

By: admin Medical Negligence 23 Jul 2019

A prescription is an instruction from a prescriber to a patient for his health care. Writing a prescription is one of the crucial tasks performed by health professionals. The format for writing prescription ensures the appropriate use of drug and minimizing errors. Health professionals must take account of effectiveness, appropriateness, side effects, contradictions and cost at the time of prescribing the medicine.
 
In India, to purchase the drugs online as well as in retail outlets, a prescription is mandatory. To buy and sell medicine or drugs without a prescription is illegal. The buyers should be aware that the prescription he holds is legal and valid. Many of us are not aware of the fact that the prescription also has an expiry date. Prescription writing is a fundamental task performed by health professionals; an incorrect prescription may lead to fatal death. An individual should be mindful of the components of a prescription. Below are certain guidelines to find the legitimacy of the prescription:
 
  • The name of Doctor, qualification and registration number with the clinic or hospital.
  • Signature and Stamp of Doctor.
  • Date of consultation, that is the date when you go and meet the doctor.
  • Details of the patient such as name, gender, age and date of birth.
  • Name and Dosage of Medicines.
  • Directions to use the medicine.
  • Strength and potency of the Medicine.
  • Duration and Frequency of the prescribed medicine.
  • The letterheads of the doctors shall be secured to avoid the misuse of the same.
  • Overwriting/Alteration on the prescription should be avoided.
  • If the prescription is typed or computer-generated, the doctor should sign the prescription in blue ink.
  • A doctor should not use the prescription pad of another doctor.
  • Specify the times rather than the simple frequency
  • Encourage the patient to bring their medication n clinic to avoid an error.
  • The prescription should mention clearly if the Physician himself dispensed any medicine.
  • As per the regulations approved in the Indian Medical Council Regulations, 2002, every physician should prescribe  the medicine with generic names in capital letters and a distinct sense.
 
The Validity Of The Prescription: Many of us are not aware of the validity of the prescription; it is valid for six months from the date of consultation. If the prescription contains the drugs which are often restricted from illegal use such as Morphine, Pethidine and Methadone, then that prescription would be valid for 28 days.
 
Who Can Write A Prescription?
 
Only the appropriate practitioners can write a prescription. The appropriate practitioners are as follows:-
Independent Prescribers: The professionals such as doctors, dentists, independent pharmacist prescribers and independent optometrist prescriber. The prescription should be written by a qualified person who analyses the health condition of the patient.
Supplementary Prescribers: The supplementary prescribers includes the pharmacists, nurses, diagnostics and physiotherapists. Their role is to continue the health care of the patient after an independent prescriber has assessed the health of a patient. 
Prescription for Family or Friend: When an individual collects the prescription on behalf of the patient, he should be asked to confirm the details of the patient. As the consumption of wrong medicines can lead to severe consequences.
 
Factors Affecting The Irrational Use Of Drugs:-
 
  • Misinformation of drugs.
  • Demands from patients.
  • Lack of training to the prescribers.
  • Supply of expired drugs.
  • Self - medication by the patient.
  • Lack of enforcement of regulations
  • Risk of unwanted effects or adverse effects of medicines.
  • Reduction in quality of drugs.
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Procedure to start a Pharmacy Store in India

By: admin Medical Negligence 23 Jul 2019

In India, the business of pharmacy store is an excellent business to start as the profit margin is quite high. The positive thing about the medical business is that it does not get easily affected by the economic crisis. If a proper analysis is not conducted before starting your business, it may not do as well as expected.
 
Here are some of the essential requirements that you would need to fulfil:
 
  1. Qualify B Pharm / M Pharm examination and must register your pharmacy by obtaining a ‘Pharmacy license’.
  2. Decide on your investments.
  3. Develop a network with Doctor, Hospital so that you can "informally tie-up" with them; this is the easiest way to access the customer base.
  4. Premises Area required is a minimum of 10 square meters with concrete roof and cemented walls.
  5. Registration.
 
The Indian Pharmacy Act of 1948 governs the registration of a pharmacy. It states that a pharmacist must register all his particulars to the state government through an official gazette. After the submission, a registration tribunal decides on the registration. Usually, hospital, chain and township pharmacies are setups under private limited companies whereas standalone pharmacies are set up under proprietorship or partnership constitution. Presently, Limited Liability Partnership (LLP) constitution has gained immense popularity among standalone pharmacists as it promotes the rights of partners, unlike a partnership constitution.
 
There are different types in the medical shop, at the very initial stage you need to select a variety of medical shop which you are looking for, the types are mentioned below:
 
  1. Hospital Pharmacy or a Medicine Shop - Hospital pharmacies are usually within the premises of a hospital. They provide medications for hospitalised patients only and are not retail establishments.
  2. Standalone Pharmacy/Community Pharmacy - The most common set-up which includes all the pharmacies that are present in a residential area.
  3. Township Pharmacy - Pharmacy set-up in a township is acknowledged as the township pharmacy.
  4. Chain Pharmacy - Chain pharmacies are usually present in malls
 
Documents required to start a Pharmacy Store:
 
  • Application form
  • A cover letter signed with the name and designation of the applicant.
  • Proof of fee deposited for registration.
  • Blueprint of premises.
  • Declaration form
  • Proof of ownership of premise.
  • Proof of business constitution and registration.
  • Affidavit of non-conviction of proprietor/partners/directors
  • Affidavit of a registered pharmacist (or any person who is equally competent) who will be working for full time.
  • Appointment letter from a registered pharmacist (or any person who is equally competent) if employed.
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India Vs Pakistan: Kulbhushan Jadhav’s Case

By: admin Others 18 Jul 2019

History of Kulbhushan Jadhav’s arrest

Kulbhushan Jhadav is a retired Indian Navy Officer who was arrested by military forces in Pakistan on 3rd March 2016.

India was informed of this only after 22 days of the arrest.

Pakistan claims that Jadhav was arrested at the Pak-Afghan border in Balochistan for illegally entering into Pakistan.

India refuted Pakistan’s claim stating that Jadhav was abducted by Pakistan forces from Iran.

Pakistan’s course of action

Jadhav’s case was conducted by a military court in Pakistan. The court awarded a Death Sentence in April 2017.

India pushed for consular access several times after the sentence was passed, but he was denied access all the times on the grounds of espionage and spying

Consular Access can be defined as the right of the foreign nationals that are arrested or detained should be given notice without delay of their right to have their embassy or consulate notified of that arrest. In layman’s language, it is the ability of the citizens of a country to have communication with the diplomats and officers of their country while held in a foreign location.

Consular access would have hampered the death sentencing of Jadhav after a secret trial conducted by Pakistan.

ICJ’s intervention

India approached the International Court of Justice in May 2017 after repeatedly being denied consular access.

India accused Pakistan of violation of the Vienna Convention for denying consular access.

India also argues that the process of the case was also questionable since it was handled by the military court. On the basis that the Judges of this court are not required to possess any law degrees.

Pakistan refuted the argument by India that the Pakistan military courts do not have/require a legal understanding.

Pakistan contested that Jadhav was an Indian spy sent to Balochistan to destabilise the country and therefore was not entitled to consular access.

Pakistan was directed to take no actions against Jadhav until the final hearing of the case.

ICJ’s Verdict

The ICJ bench comprising of 16 members passed the verdict on 17th July 2019, nearly two years after the case was first submitted.

Only one Judge had a dissenting voice, and it belonged to the former Chief Justice of Pakistan - Tassaduq Hussain Jillani.

The court clarified that Pakistan failed to inform Jadhav of his rights, and failed to inform India about the arrest his without any delay.

It was held that Pakistan had violated the Vienna Convention and consular access should be granted.

By staying the execution of Kulbhushan Jadhav, Pakistan is directed to review his death sentence.

Note: To learn more about the laws and procedures, you can contact us at Legato app where we help you in connecting with experienced lawyers who can assist you with the documentation and procedural aspects.

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Contempt of Court

By: admin Civil 10 Jul 2019

Contempt of Court is any conduct that disrespect or disregard for interfering with or prejudice parties or with their witnesses during the litigation before the respective authority and administration of law. The Contempt of Courts Act, 1971 governs the contempt law in India.

The act empowers the Supreme Court and High Court to punish acts of contempt. The Supreme Court and High Courts being courts of record have the constitutional validity to punish for contempt of Court and the Contempt of Courts Act, 1971, according to the jurisdiction. Contempt of Court can be understood as an offence of defying the court authority by disobeying the instructions laid by the court. The Act defines civil contempt under section 2(a) as contempt of court means civil contempt or criminal contempt. The two types of contempt are different in character and very difficult to differentiate.

Section 2(b) of the 1971 Act not only encompasses willful disobedience to any judgment, decree, direction, order etc. of a court, it also takes in its fold a willful breach of an undertaking given to a court of law. The civil contempt is wrong of private nature. It injures the interests of the party, entitled to get benefit from the disobeyed order, whereas criminal contempt is an offence against the society where the contemner undermines the authority of the Court by his words or actions.

Section 2 (c) defines the ‘criminal contempt' as the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act, whatsoever which;
(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or
(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.

Also, Article 129 and 215 of the Constitution of India empowers the court to take action against the contempt. Article 129 empowers the Supreme Court whereas Article 215 empowers High Courts. Whereas, Section 10 of The Contempt of Courts Act, 1971 has given them special powers to the respective High Courts to punish contempt of subordinate courts.

Article 129, of the Constitution of India, states that the Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.

Article 215, of the Constitution of India, states that every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.

Procedure

The procedures laid as per the Contempt of Court Act, 1971 has to be followed, as mentioned in Article 129 and 215 of the Constitution of India. An individual can recourse to the following options against the contempt.

1. He may place the information before the Court and request the Court to take action.
2. He may put the information before the Attorney General and request him to take appropriate action.

The contemnor alleged is entitled to get a notice about the same an opportunity of being heard, before considering him guilty of contempt and passing an order. 

Punishment

  1. Supreme Court and High Court are bestowed with the power to punish the contemnor for the contempt of the Court.
  2. As per Section 12 of Contempt of Court Act, 1971, the punishment for the contempt of court can be the simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both.
  3. However, in civil cases, if the Court considers that a penalty is not meeting the ends of justice and that a sentence of imprisonment is necessary then the court shall instead of sentencing him to simple imprisonment, direct that he be detained in civil prison for such period not exceeding six months as it may think fit.

The punishment awarded to an accused may be discharged on apology being made by the accused to the Court's satisfaction. An excuse cannot be rejected on the grounds if accused makes it bonafide.

Limitation

Section 20 of the Contempt of Courts Act, 1971 defines the limitation period within which the actions have to be taken against the contempt. It specifies that the limitation period is of one year from the date on which the contempt is alleged to have been committed.

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Juvenile Justice Act, 2000

By: admin Child Custody 10 Jul 2019

The parliament of India has passed the Juvenile Justice (Care and Protection of Children) Act, 2015 with various debate, protest and intense controversy of its provisions by the fraternity of Child Rights. It came into force from 15 January 2016. The Juvenile Act, 2015 replaced the Indian juvenile delinquency law, Juvenile Justice (Care and Protection of Children) Act, 2000, and allowed the juveniles in conflict with Law of the age group of 16–18, involved in Heinous and dangerous Offences, to be considered as adults.

The Act introduces the concept of three categories of offences, i.e. Petty Offences, Heinous Offences and Serious Offenses. Petty offences mean the offences for which the maximum punishment is the imprisonment up to three years, under the Indian Penal Code or any other law being in force.

Serious offences mean the offences for which the punishment is imprisonment between three to seven year under the IPC or any other law for the time being in force. Heinous offences mean the offences for which the minimum punishment is imprisonment for seven years or more under the Indian Penal Code or any other law being in force. 
The upcoming generations are the asset of our country, and it is our responsibility to ensure a safe environment for them to live. However, it has observed that the rate of juvenile crime in our country is increasing day by day. We can say that Juvenile delinquency is a disease in our society.

The criminal justice system of India has a different approach for every crime, and it also includes exceptions that lead to the clemency of some criminal minds. The exceptions are mentioned in the Indian Penal code, where the courts are more lenient in giving punishment to the juveniles. Our justice system has developed the way that treats the minors in a different way than adults just because our society considers juveniles differently from adults, both in terms of the potential for rehabilitation and level of responsibility. Juveniles are sent to the rehabilitation centre to make their future better to give special care and protection to them, and it is expected that they will turn back as a reformed person. 

Juvenile crimes cannot be stopped only by implementing and amending the juvenile laws. It is more critical to aware of our society about the same.  It is seen that juveniles involved in crime are not criminals they are victims of society. Juvenile delinquency can be stopped, provided special care is taken at home. 
Also, it is observed that severe crimes like rape and murder are gone unpunished when the offender wears the mask of juvenility.

When the juvenile is alleged to conflict with the law and is apprehended by the police, the child will be placed under the charge of juvenile police or the child welfare police officer, who will produce them before the Juvenile Justice Board. The Juvenile Justice Board plays an important role here.

One of the reform includes the Observation Home for Juvenile Offenders. It is an institution, where the delinquent and neglected juveniles are kept until the pending decisions of the case. The observation home admits the children that are brought by the police or probation officers or their parents voluntarily.

The Observation Home has to be placed for changing attitudes and behaviour of the inmates. Juvenile offenders have the same inclination of constitutional rights as an adult, such as a trial conducted be fair and speedy.

The Juvenile is not punished usually, but it can in no circumstances take away the constitutional guarantees of liberty from him/her. The state must protect and rehabilitate the juvenile offenders, but the protection of the juvenile should not be the custody of the child.

Concerning the rehabilitation and reformation of Juvenile, we must build the efficient linkages between the states and districts and also among various government agencies in association with the groups protecting child rights and legal services for the welfare of children and their families. Alternatively, else, the juvenile justice system will become like the criminal justice system resulting in the hardening of children caught instead of reformation.
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Company And Types of Companies

By: admin Business 09 Jul 2019

Introduction

A Company is defined as an association which is formed by natural persons, legal entities or a mixture between the two and the main purpose of the company is to develop commercial activities under the Indian Companies Act, 2013.  Various legal experts define the company. Section 2(20) of the Companies Act, 2013, represents the ‘Company' as follows: "Company means a company incorporated under this Act or any previous company law."

There are mainly six types of Company registration in India;

1. Private Limited Company: In the Private Limited Company, personal assets are different from business assets. Every shareholder is responsible for his share of the total capital. Private Ltd Companies need to maintain the records of financial transactions, board meetings, and annual reports, and so on.

A Private Ltd company consists of a shareholder, whereas the total capital of an entity is made of shares. The shares can be sold or transferred to other individuals who then becomes one of the owners of the company. Further, a Private Limited Company consists of three types:

i) A company limited by shares means the company where the members are having its limited liability by the memorandum, if any, unpaid by the members.

ii) A company limited by guarantee is a company consisting the limited liability of its members by the memorandum to such amount as the members may respectively undertake to contribute the assets of the company in the event of its winding-up.

iii) Unlimited company – A company that has no limit on the liability of its members is called an unlimited company.

Here are a few examples of the private limited Companies: Flipkart, Parle, Snapdeal, Pepsi, Book mu Show, etc.

2. Partnership: Partnership business entities are similar to a sole proprietorship. The main difference between a partnership and sole proprietorship is that two or more members are necessary to form a partnership. The responsibilities, roles and the share of the partners are defined in an executed partnership deed.

The partners in a partnership deed define the ratio of profit sharing. In the case of the losses, each of the partners is responsible personally. Personal assets of partners can be used to compensate the losses incurred if any as decided by the partners. Examples of a partnership firm are as follows:

i. Twitter: It is founded by Evan Williams, Biz Stone, and Jack Dorsey and is an outstanding example of prosperous business partnership. 
ii. Google: The founders of the Google namely Sergey Brin and Larry Page, ran a small search engine decade ago and turned it into the leading search engine in the entire world.

3Limited Liability Partnership: Limited Liability Partnership firm is different from the partnership firm as the personal assets are different from the business assets. In case the business incurs damages, the personal assets of partners are not at risk as to the share capital in entity defines the maximum liability of every partner. As compared to Sole Proprietorship and Partnership, Limited Liability Companies always has good credibility among the investors. The basic reason includes the maintenance of incorporation, tax and financial records. 

4. Sole Proprietorship: A company registered in the name of a single person is called Sole Proprietorship. That sole person is wholly responsible for the welfare of the entire business. The owner funds the business takes the profits and bear the losses. Do you know that companies like Coca-Cola, Apple, Hewlett-Packards, Amazon, etc. all started their company as Sole Proprietorship companies in India. 

5. One Person Company: One Person Company (OPC) is a newly proposed type of company and is introduced in the Companies Act, 2013 to support entrepreneurs who are capable of starting a venture by allowing them to create an entity by an individual. The main advantage of an OPC is that there can be only one individual in an OPC, while a minimum of two members is necessary for incorporation and maintenance of the company or Limited Liability Partnership.

An OPC is a separate legal entity as per company which offers limited liability protection to its shareholders and has continuity of business and is accessible to incorporate.

6. Section 8, a Company: According to Section 8, a company is an organisation which is registered as a Non-Profit Organization (NPO). NPO/company has its objective of promotion of arts, commerce, charity, education, protection of the environment, science, social welfare, sports, research, religion and intends to apply its profits, if any, or other income in promoting its objects.

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Bankruptcy & Insolvency in India

By: Ayantika Mondal Banking 19 Sep 2019

Previously, the situation of insolvency and bankruptcy law seemed to be weak as compared to the expected state as it was bifurcated in different acts to deal with it in India. It was very important to enact a single act in order to deal with all insolvency and bankruptcy cases. Earlier,  various acts were applied for conducting or proceeding the application for Insolvency and Bankruptcy, also many cases were found in Sick Industrial Companies (Special Companies) Act, 1985, The Recovery of Debts by Banks and Financial Institutions Act, 1993, Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, Companies Act, 2013 due to this there were multiple cases filed for the same purpose under different heads. This futility of filing cases led to uncertainty in deciding the solution for cases. The statutes under which the cases were filed, resulting in forming a various board to deal with this matters, i.e. Board for Industrial and Financial Reconstruction, Debt Recovery Tribunal, Debt Recovery Appellate Tribunal, National Company Law Tribunal and National Company Law Appellate Tribunal.

All the mentioned petitions eventually were handled by the High Courts. The individual filings for insolvency were filed under Presidency Town Insolvency Act, 1909 and Provincial Insolvency Act, 1920.

Considering all the authorities and their functioning led to undue delays ambiguity and further discrepancies making the process futile and unending, cause trouble in further development in the economy of the country.  It was essential to come with laws that deal with all the matters where the conclusion expected from the facts is to be the same.

What is Bankruptcy?

When an organisation is unable to manage its financial obligations or make payment to its creditors, an organisation files for bankruptcy in the court of law, a petition is filed in the court for the same where all the outstanding debts of the company are measured and paid out from the company’s assets.

Insolvency and Bankruptcy Code:

Section 79 (4) "bankruptcy" means the state of being bankrupt; (the state of being completely lacking in particularly good quality.)

Two primary objectives of bankruptcy are;

  1. To conduct a fair settlement of the legal claims of the creditors with an equitable distribution of debtor's assets, and 
  2. To provide the debtor with an opportunity for a fresh start.

Bankruptcy can amount to a business-failure, but not voluntary winding up. The Government of India has implemented the Insolvency and Bankruptcy Code (IBC) to strengthen all laws related to insolvency and bankruptcy and to tackle the problem of Non-Performing Assets (NPA) that has been dragging the Indian economy down for many years. As stated in Swiss Ribbons Pvt. Ltd. v/s Union Of India, that Insolvency and Bankruptcy Code is a consolidated code for all the matter related to insolvency and reorganization of Corporate entity dealt by an authority appointed under the code.

Companies not only generate employment but also create economic growth on a large scale. It is essential to bring in a mechanism to settle entities driving into bankruptcy, without causing damage to the economy. That's where IBC came in.

Before the initiation of IBC, the companies took about five to six years with respect for the dissolution of its operations; the number has dropped to a year nowadays. It helps to increase the ease of doing business and also to develop a stronger sense of trust in investors and lenders.

There have been significant debates, whether the implementation of IBC is a boon or a bane. The whole process of insolvency and liquidation is always in the hands of the debt holders and shareholders. Generally, by the time the entire process is completed, the assets are eroded with very few left for distribution.

The IBC has flagged the way for a significant power shift from the hands of debt and shareholders to creditors and now a creditor with a default of Rs 1 lakh, can roll the company into liquidation. However, there are some grey areas as regards to foreign creditors.

The benefit of this enactment has been the time-restricted resolution process. Besides, the IBC regulations recently amended that promoters are now prohibited from bidding or getting engaged in the process of selling the assets and making the whole process transparent and reliable. It has fostered an immense hope of faster recovery, lesser defaults, and a stronger lending and investment sector in India.

Most of the businesses have outstanding debts in crores based on their business practices. They partially fail in reasoning how a creditor can file for bankruptcy if the company defaults payment to other creditors and not the creditor who is the applicant.

The law has now made it very clear that promoters and business holders can no longer work as per their rules. The authorities are trying to make a genuine attempt to reduce the time by curbing delays and preventing NPAs.

The development in creating the IBC has been a massive boon for the mergers and acquisitions of the companies while every debt-stricken company tries the restructuring of the debt or selling its distressed assets to the potential buyers.

The banks have been piling up on stressed assets of the companies, and the cases of IBC being filed with the National Company Law Tribunal (NCLT) are increasing day by day.

All in all, the IBC seems to be in its initial stage, backed by a persuasive composition and structure. The government is constantly restructuring the provisions of the code; furthermore, the Supreme Court (SC) has also amended it many times.

Recently, the Insolvency and Bankruptcy (ordinance) 2017 received the assent of the president on 1st October, 2018 but came with a retrospective effect from the date 23rd November, 2017 followed by the Insolvency and Bankruptcy (Second Amendment) Act, 2018 which state under section 29 A of the Code which enunciated that person who is an “Undischarge Insolvent” is ineligible to submit the resolution plan under the Code.

(Undischarged Insolvent means a person who cannot pay his due as when it arise even though he has committed any act of Insolvency or not.)

The purpose of the IBC is to develop a proper process for the resolution of insolvency. It is observed that this work is under progress, as the code is trying to overcome obstacles and is trying to tackle important issues.

Procedure to file a case for insolvency

A case for insolvency is filed before the adjudicating authority, i.e. in NCLT by financial or operation creditors or the corporate debtor themselves, who are claiming a stake in the company. The plea can be allowed or rejected in a maximum 14 days. In case, the petition is accepted, the tribunal appoints an Insolvency Resolution Professional (IRP) to draft a plan for resolution within 180 days (extendable by a maximum amount of 90 days). After that, the court initiates the Corporate Insolvency Resolution Process (CRIP). For that time, the Company Board of Directors are suspended, and promoters do not have a say in the management of the company.

If required by IRP, they can seek the support of the company’s management for day-to-day operations. Moreover, if the Insolvency Resolution Professional fails to revive the company, the process of liquidation is initiated.

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Accident Laws Under Aviation

By: admin Accidents 09 Jul 2019

Aviation Accident Laws pertain to the formulation of policies, implementation and regulation for the growth and expansion of air transport, aeroplane crashes, air traffic, etc. Travelling by aeroplane is still one of the safest forms of transportation, and aeroplane crashes are infrequent, they do still happen occasionally. When they do, the specific area of law governs whereabouts of the accident both literal and figurative.

Nowadays, the use of air transport is a part of life, whereas the primary concern for the aviation industry is the safety of people. Various systems are established under the different acts for the safety of people. 
Families those killed in the accident as well as the survivors are brought to a broad range of legal suits against the responsible airline, aircraft manufacturer, pilot or others. The Aviation laws are similar to personal injury, and obviously, the claims mainly rely upon determining the cause of the accident. The Accident may cause due to pilot error, mechanical failures or any of the defective parts.

The Ministry of Civil Aviation is the ministry responsible for the formulation of policy and regulation of civil aviation in India. The MCA oversees the planning and implementation of the schemes for the growth and extension of civil air transport, airport facilities, air traffic services and carriage of passengers and goods by air.

The principal regulatory authorities functioning under the authority of MCA are Directorate General of Civil Aviation, Airports Authority of India, Airport Economic Regulatory Authority, the Bureau of Civil Aviation Security.    
The events of investigation of incident and accident are governed by the Aircraft (Investigation of Accidents and Incidents) Rules 2012. The Rules are provided to the Aircraft Accident Investigation Bureau of India in order to inquire into the occurrence of accidents or incidents.

When after completion of the investigation, any new and material evidence becomes available, the central government may direct the reopening of the case or inquiry. The Aircraft Accident Investigation Bureau maintains the database of a severe incident and accident to provides the same for inclusion in safety data being maintained by the Directorate General of Civil Aviation, which is required to share their database with the Aircraft Accident Investigation Bureau regularly.

The AERA Appellate tribunal governs dispute between the service provider and consumer goods. Consumer disputes are taken up by the Consumer  Redressal Forums under Consumer Protection Act, 1986. The type of court assigned is determined by the value of the dispute. Also, the type of dispute determines whether the matter is civil or criminal.
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Procedure for Registration of Marriage

By: admin Marriage Registration 27 Apr 2019

Marriages can either be registered under the Hindu Marriage Act, 1955 or under the Special Marriage Act, 1954 in India. For both, a marriage certificate is a legitimate proof that a couple has married. A marriage certificate is an official declaration which states that two people are married. 

The Supreme Court mandates registration of the marriage for safeguarding women’s rights since 2016. It's essential that the women get their marriage registered immediately after marriage as it establishes their legal claim as a wife. Thus, obtaining a marriage certificate can have various benefits. It is not just 'another license' that one must acquire. To get the marriage certificate, the bridegroom should be over 21 years of age, and the bride should be more than 18 years.

The reason to obtain marriage certificate is that it is a vital document while applying for the passport or opening a bank account with a new surname post-wedding. Also, in the case of visa processing, many embassies request a copy of the marriage certificate. Therefore, it is obligatory for many couples who want to move abroad after the wedding.

Documents required while applying for marriage certificate;

1) Personal Identity proof
- Aadhar Card
- PAN Card
- Ration Card
- Driving license
- Passport
- Passport size photo

2) Age proof
- School certificate
- Birth certificate
- Visa
- Passport

2) Marriage proof
- Wedding invitation
- Temple marriage receipt (If Any)
- Any other proof of marriage solemnization

4) Address proof
- Electricity bill
- Rent agreement
- Ownership deed

Procedure for Registration of MarriageSteps to register the marriage under the Hindu Marriage Act, 1955 are as follows;

- The application form from the link provided by the state can be downloaded and printed.
- After getting the printout of the application form and filling all details to be asked in the way; and
- After filling all details in the form and declaration form, give your signature on the bottom of the form.
- Submit the application form to your nearest local authority 

Steps to register the marriage under Special Marriage Act:
- Fill the online application form from the link provided by the state and fill all the details to be asked in the form.
- Give notice of intended marriage to the registrar in 30 days advance with the prescribed fee.  
In case of no objection found within 30 days from the date of notice of intended marriage. The bride and bridegroom must appear in the registration office within the next 60 days with three witnesses.
- After all the prescribed procedure, registrar registers the marriage.
Bride and bridegroom and three witnesses should give their signature on the declaration and marriage certificate. 

For marriage registration under the Hindu Act, the marriage must have been solemnised as per the Hindu customs or non-customary, and the bride & bridegroom must belong to Hindus, Jain, Buddhist and Sikhs. Further, any of the following premises should come within the jurisdiction of the Registering Officer:

- Residence of the bride.
- Residence of the bridegroom.
- Solemnization place.
- For Online Registration

Marriage Registration is required in India for the reasons:

It is a legal proof you are married and the most vital document of a marriage, for purposes like obtaining a passport, changing your maiden name, etc. ascertain dishonest husbands altogether deny marriage leaving their spouses in the pitch, be it for seeking maintenance, custody of children or inheritance of property, etc. Thus, moved by the plight of deserted women fighting for their rights like maintenance and custody of children, etc. it is imperative for such women to have their registration of marriage so that they can claim their right legally.

To ensure your marriage, you should have your marriage testament recorded. In case of applying for a travel permit, opening a financial balance in the wake of wedding and other legal exercises expect you to have your marriage authentication. A marriage declaration is additionally required on the off chance that you need to apply for life coverage arrangements. There are even odds of marriage question in specific cases, and marriage endorsement can be a substantial confirmation of the way that you are lawfully hitched.

Marriage registration is required as proof of marriage. It will help to manage a lot of legal complexities that may occur in future.

Suppose one of them died natural death the surviving partner has all rights on the property of the deceased. There are chances of others questioning the sanctity of the marriage. Mostly claims may come from the relatives of the dead.

Having some record of your marriage is only reasonable, and it will help you manage many situations in future. The Government insists on marriage registration after noticing misuse of marriage certificates from other (religious) institutions too. 


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The Maternity Benefit Act, 1961

By: admin Employment 27 Apr 2019

Maternity Act 1961 makes provisions to protect the dignity of Motherhood by giving complete and healthy care to women and her child when she is unable to perform her duty due to a health condition, Maternity Leave and benefit. 

Maternity Act 1961: Provides women, assurance that her rights will be looked after while she is at home to take care of her child.

Applicability: The Act extends to the whole of India. Every store or establishment wherein 10 or more persons are employed on any day preceding 12 months and to every factory, mine or plantation (including those belonging to Government).

Eligible for Maternity Benefit: A woman must be working in the establishment for a minimum period of 80 days in 12 months before the date of delivery — any women who earn less than Rs. 15,000/-, her employer may offer ESI (Employees State Insurance) scheme and she will not be eligible for benefit under the Maternity Benefit Act but will receive the maternity benefit under the ESI scheme.

Duties of Employee for Maternity Benefit: Any women expecting a child may ask the employer to give her light work ten weeks before the expected delivery date. The employer must be informed seven weeks before her delivery date about the leave period; also she must name the person to whom the payment will be made in case she cannot take herself.

Municipal Corporation Of Delhi vs Female Workers (2000) SCC 224: A Union of Female Workers who were not on regular rolls, but was treated as temporary workers and was employed on Muster roll, claimed that they should also get maternity benefit like other regular workers. Court held that the provisions of the Act entitle maternity leave not only to those in regular employment but also to women on a casual basis or muster roll basis on daily wages and, is wholly in on the lines of the Directive Principles of State Policy vide Articles 19, 42 and 43 of the Constitution of India.

Cash Benefits: 84 Days Leave with pay before/after delivery. A medical bonus of Rs. 3,500/- Take the payment for six weeks after/before childbirth. Additional leaves with pay, up to one month subject in case of illness subject to proof for the same. Six weeks leave with the average salary in case of miscarriage. Paid leave with wages of maternity benefit for a period of 2 weeks in case of tubectomy operation 

Non Cash Benefits:
- Light work for about ten weeks (6 weeks plus one month) before delivery. 
- Two Nursing breaks of 15 Minutes till the child becomes of 15 months.
- No women can be discharged or dismissed during maternity leave.
- Pregnant women who were discharged or dismissed may still claim maternity benefit from an employer.

Paid Maternity Leave Increased: The Amended Act has increased the duration of paid maternity leave available for women employees from the earlier existing 12 weeks to 26 weeks. This benefit could be availed by expecting women for a period extending up to a maximum eight weeks before the expected date of delivery, and the remaining can availed after the birth of the child. And for women who are having two children and expecting after them, then the duration of paid maternity leave will be 12 weeks (i.e., six weeks before and six weeks after the delivery).

Maternity leave for commissioning and adoptive women: Leave of 12 weeks will be available to mothers adopting a child below the age of 3 months from the date of adoption; in case of “commissioning mothers.” the same provisions have been made.

Option to Work from Home: The amended Act has also introduced a provision relating to "work from home" for women; this can be utilised after the 26 weeks' leave. Women employees may be able to take this benefit on the terms that are mutually agreed with the employer depending upon the nature of work.

Creche facility: The Act makes creche facility mandatory for every establishment which is employing 50 or more. Women employees shall be permitted to visit the creche four times during the day which includes rest intervals.
It is mandatory for employers to educate women about the maternity benefits available to them at the time of their appointment.

Legal Obligation under Maternity Act: No employer can unknowingly employ a woman in the establishment for six weeks following the date of delivery or date of miscarriage. No woman must work in any establishment during the six weeks immediately the day following her delivery. It is unlawful for her employer to discharge or dismiss her on account of such absence. In case of any Gross misconduct, the employer in writing can communicate about depriving such benefit. Within 60 days from the date of deprivation of maternity benefit, any Women can appeal to the authority prescribed by law.

Duties and Penalty for Employer: Record Management: Every employer needs to prepare records or registers. The penalty for Contravention of Act is Imprisonment with a minimum period of 3 months to maximum 01 years and Fine from Rs.2000 to Rs. 5000.

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Reasons for Dishonour of Cheques

By: admin Dishonour of Cheques 27 Apr 2019

A banker can stop the payment of a customer and can dishonour the cheque. The following are the main reasons and circumstances in which the bank can dishonour the Cheque of the customers.

We often issue Cheque to make payment as it is a convenient and less risky to make payment through Cheque. You write the date, the amount in figures and words, name of the party to whom payment needs to transfer along with signatures. It appears to be easy, but we often make some common mistakes due to which Cheque is dishonoured by the bank or return unpaid.

Let's find some common reasons or mistakes to be avoided while writing or issuing Cheque. When Cheque is given for payment, the bank should make the payment to the payee as specified in the Cheque if everything is in order. In case the bank refuses to make payment of amount then Cheque is said to be dishonoured. Bank returns the Cheque to Payee with a memo specifying the reason for dishonour.

Before we go through the reasons for the Dishonour of Cheque, let's see what needs to write Cheque;
• Name of the person to whom payment is to be done, i.e. Payee Name
• The amount in Figures and Words 
• Date of depositing the cheque
• Drawee Signature

If one has written everything as mentioned above in order, then your cheque is dishonoured due to any one of the following reason.

Funds Insufficient/Exceeds Arrangement – Prevalent reason due to which bank return the cheque unpaid. Sometimes, you write the cheque against salary which is to be credited on a particular date. In case salary is not credited or get late then the Cheque is presented for payment, Bank will return it unpaid. So, confirm or maintain bank balance in your account before issuing. In the case of the overdraft account, the cheque is dishonoured with the reason "Exceeds Arrangement".

The amount in words and figures – Bank dishonour the Cheque if amount written in words and numbers are different. In such a case, the bank can terminate the payment of the cheque and dishonour it.

• Payee Name – In case the payee name is absent then the bank can dishonour the Cheque with the reason "Payee Name Required".

• Signature Differ – Sometimes you forget your signature, which you did while opening the account. The Bank will dishonour the Cheque if the (drawer) signature doesn't match with specimen available in a bank record.

• Alterations/Overwriting – The Bank will not honour the Cheque if you overwrote/altered something on it. It is advisable to avoid overwriting and alternation.

Post Dated Cheque – When date written on Cheque is yet to come is called post dated Cheque. Suppose, Date written on Cheque is 04th May 2019, But you present it for payment on 1st May 2019. Bank will dishonour the Cheque and return it unpaid as the bank cannot honour it before the date mentioned on Cheque.

• Instrument Out-Dated/Stale Cheque – A Cheque is valid for three months from the date written on Cheque. If a Cheque is presented after three months of the date mentioned, then it is called Stale Cheque. Bank cannot make the payment of Stale Cheque and return it unpaid with the reason "Stale Cheque or Instrument".

Payment Stopped by Drawer – Mostly drawer stop the payment in case if the cheque is lost or stolen. In this case, Bank dishonours the Cheque and return it unpaid with the reason that payment is stopped by the drawer.

• Dormant / Inoperative Account – If the account is dormant or inoperative, then the bank can dishonour the Cheque.

• Account Number – If the account number is not mentioned in Cheque clearly or it is absent. Then bank dishonours the Cheque.

• For No Funds – In case there is no credit balance in customer's account, but he has drawn a cheque to the bank, the bank must dishonour the cheque. 

• Typed Cheque – As a general rule if the customer draws a typed Cheque because it is easily altered, then the bank can refuse to make payment.

Same Branch – The same bank branch can make payment of a cheque where the customer has his account. If a customer presents a Cheque for payment at a branch where he has no account, the bank will not make payment of the Cheque.

• Alteration Or Change – when it is seen that the customer has altered the figures, date, name, etc. after drawing the Cheque, but has not legally attested it, the banker will dishonour the cheque.

• Joint Account – Some customers have a joint account, and the signature of all the persons is needed on the Cheque, and if the Cheque has not been signed by all jointly, the bank will not make the payment.

• When the Payment Is Stopped – In case the drawer asks the bank to stop payment and not to pay for a cheque issued, in that case, the Cheque will not be honoured by the bank.

For Frozen Account – In case the government or court order that the account of a particular person has to be frozen, in such case, the bank will dishonour all the cheques bearing that account number.

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Guardian and Ward Act In India

By: Jayatinn B. Lalwani Family 16 Sep 2019

The Guardians and Wards Act is Central legislation enacted by the Parliament in the year 1890 with a view to protect the interests of the minor and to grant security to the minor himself and the property of the minor. The Act is of universal application irrespective of the religion dealing with guardianship of children.

A guardian is someone who gets appointed to take care of the minor himself or property of that person or both. The protected individual, known as the ward, is considered legally incompetent of acting for himself or herself; examples are a child or individuals suffering from a severe illness.

The question of guardianship most commonly arises in the households where there is an issue of parental abuse, negligence, drug dependency, divorce or death (in which case, custody is generally vested in one parent).

The Act aims to define a Guardian and a minor legally, it lays down a procedure for filing a case, manner in which the guardian can be appointed,  the manner to list down the property of the minor in relation to this act. These terms are more specifically described below:

Who is a Minor, Guardian, and a Ward:- 
  1. "Minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is to be deemed not to have attained his majority. 
  2. "Guardian" means minor for whose person or property or both there is a guardian. 
  3. "Ward" means a minor for whose person or property or both there is a guardian.

Where can you file the case? 
For the Guardianship of a minor, the case should be filed before the District Court within the jurisdiction where the minor resides, or the place where the child has its property.

If the case of guardianship of the property of a minor is filed before the district court, not within the jurisdiction where the minor resides, the court has a right to return the application or to dispose of the same.

The Guardians and Wards Act, 1890 is a law to replace other rules relating to the guardianship of a minor. It is the only non-religious universal law for the guardianship of a child; It applies to all children despite any difference in caste, creed or race. 

As per the act, a minor is any person who has not completed 18 years of his age. The court and the appointed authority can decide the guardian of a child by selecting the one. No order can be passed without making an application. The application contains all information about the child/minor and reasons for guardianship. Once the court admits the form, then the hearing date is set by the court. The court will hear evidence before making a decision. A minor and his property may have more than one guardian. The court must work in the interest of the minor, taking into consideration the age, sex, religion, character of the guardian, the death of the parent(s) and also the relation of the guardian with a child. The court always considers the preference of the minor. 

The collector of the district within the jurisdiction of minor resides can appoint the guardian of the child. Guardians are not allowed to make a profit, but they can receive remuneration as the court seems fit. One minor cannot be deemed as a guardian of another. A guardian is responsible for the education, health and support of the ward.

Guardians who intend to move the child out of the court's jurisdiction may only do so with the permission of the court. Failure to get approval before moving the child is a punishable offence under this Act. A guardian of a minor’s property is not allowed to mortgage or sell the property of a ward without the permission of minor or the court who must act in the interest of the child.

The guardian must submit the list of ward's immovable and movable property to the court.  The court can allow the guardian of minor to use funds from the property or use the whole property for the maintenance of the minor. A court can remove a guardian for abusing the trust of the court and not performing his role as a proper guardian. A person who intends not to act as a guardian of a minor can apply to the court for the discharge of his duty. 

It is a punishable offence if the guardian fails to produce the property, or if he fails to produce the child before the court when ordered or if he fails to produce an account of the property of the minor. 
Reports submitted by the subordinates of court or collector can be considered as evidence. Such orders can be appealed in a High Court.

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Citizenship & Immigration Law in India

By: admin Immigration 26 Apr 2019

Now a day’s India has been receiving large numbers of immigrants, mostly from the neighbouring countries and some from different parts of the world, and hence it needs to be seen as a major immigration hub. The purpose of immigration is obtaining citizenship or nationality in another country. The law relating to citizenship or nationality in India is mainly governed by the provisions of the Constitution of India. 

The Constitution provides for Single Citizenship:

The provisions regarding citizenship are contained in Articles 5 to 11 in part II

Articles 5 to 9 of the Constitution provides for the status of persons as Indian citizens since the Commencement of the Constitution of India. 

Article 10 lays provisions for their continuance as such citizens, subject to the stipulations of any law which may be passed by the parliament. 

Article 11 of the Constitution provides power to the parliament to make any provisions regarding the acquisition, termination and other matters pertaining to citizenship. 

Article 5 states that at the commencement of this constitution, every person who has his domicile in the territory of India, along with the following:
- Who was born in the territory of India; or
- Either of whose parents were born in the territory of India; or
- Who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement, shall be a citizen of India.

Article 6 of the Constitution provides for the rights of citizenship of certain persons who have migrated to India from Pakistan. 

Article 7 of the Constitution has made provisions for citizenship of certain migrants to Pakistan, and Article 8 provides for the rights of citizenship of certain persons of Indian origin residing outside India.

When any person enters a new country to establish permanent residence and ultimately getting citizenship, it is called Immigration. Immigration Law constitutes a very complicated set of rules, regulations, and exceptions, the residence of immigrants is subject to the conditions set by the Immigration Law. Every nation has specific laws to govern Immigration within it.

There are total 86 Immigration Check Posts all over India, catering to international traffic. Out of these, 37 ICPs are functioning under the Bureau of Immigration, while the concerned State Governments are managing the remaining.

The law which exclusively governs Immigration in a nation is called the Immigration Law. For instance, a Government may in its discretion determine who it may allow in, and for how long, and who it may deport, the subject of course to internationally accepted basic human rights and principles.

As far as foreign citizens are concerned, Immigration Law is related to the Nationality Law of a national governing the matters relating to citizenship. International Law regulates Immigration Law concerning the citizens of a country. Hence, Immigration law refers to national government policies which control the phenomenon of immigration to their country.

What is the embarkation form? 

A departure card or embarkation form, also known as an outgoing passenger card, is a Legal Document used by immigration officials to provide passenger identification and record of a person’s departure from certain countries. It also serves as a piece of information about health and character requirements for non-citizens entering a particular country.

The departure card includes details like full name, nationality, passport number, flight number or name of aircraft, ship or vehicle, the purpose of the trip, duration of stay, destination (next stop of disembarkation), and the address in the country.

Various Acts Governing Immigration Into India:
- The Citizenship Act, 1955 
- The Registration of Foreigners Act, 1939 
- The Immigration (Carriers Liability) Act, 2000
- The Passport (Entry into India) Act, 1920
- The Passports Act, 1967
- The Emigration Act, 1983
- Foreign Contribution Regulation Act, 1976
- The Foreigners Act, 1946
- Foreigners Law (Application and Amendment) Act, 1962.

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All About Equated Monthly Installment (EMI)

By: admin Finance 25 Apr 2019

An EMI or Equated Monthly Installment is a fixed amount payment made by a borrower to a lender at a specified date of every month. The monthly instalments are used to pay off both the interest and the principal each month so that after the specified number of years, the loan is paid off in full."

The benefit of an EMI is that they know exactly how much money they will need to pay for their loan each month, making the personal budget process easier.

An EMI is a financial term used for loan repayments. It is a quick and easy method to pay off the loan. When a borrower takes a loan from the bank or Non-Banking Financial Company (NBFC), the repayment of the loan is done mainly in instalments. The fixed financial instalments are known as EMIs. The amount of EMI depends on the principal loan amount, tenure and the interest rate. This monthly instalment is supposed to be paid on a fixed date to the bank by cheque or by electronically. 

How EMIs work?

EMI is a fixed payment of amount every month as part repayment of a loan or a purchase. It constitutes the principal amount to be paid along with a certain rate of interest. The interest depends on the amount borrowed and the duration for which it is borrowed. The principal element is lesser than the interest element in the initial period of repayment and the rate of interest will decrease progressively and the principal amount will increase over the period of repayment.

How to calculate EMI?

EMI calculators require a few factors/parameters to produce the desired results.
- Loan amount
- Tenure period
- Interest Rate
- Processing Fee (If any)


Following are the few advantages and disadvantages of the EMI scheme 

Advantages:

Freedom of Buying Expensive Utilities: EMI gives a chance to buy expensive utilities which one won’t be able to buy. EMI helps you to buy anything and everything, be it expensive household items, a vehicle, gifts, jewellery or a house. The consumers get a chance to divide the amount in monthly instalments and pay it off easily.

Easy to Repay: The borrower can pay the loan in instalments by opting for EMI. The amount is decided on the basis of the principal loan amount, time, interest rate and the borrower’s capacity of repayment. EMI makes it easier for the borrowers to pay the said amount in small portions every month. Hence they don’t have to pinch their monthly expenses to afford various utilities.

Flexible EMI Options by Banks: Many banks nowadays offer various flexible EMI options to the borrowers. The EMIs are decided as per the borrower’s needs. The instalment and tenure are decided by the borrower as per his or her convenience.

Affordability: EMIs gives the consumers the freedom to afford things that they won’t be able to make complete payments for. It lets the consumer make payments in instalments allowing them the freedom to purchase which they can’t make lump-sum payments.

The absence of a Middleman: The EMI is directly paid to the lender and there are no hassles of a middleman.

Disadvantages:

Longer Duration of Debts: The borrowers have to pay the monthly instalments until they pay the principal amount and the amount of interest rate. In terms of a car loan or home loans, the tenure goes as long as 20 to 30 years. Which means a borrower spends almost half of his or her life repaying the loan. Which restricts the borrowers from buying any other utilities in.

No Early Repayment: If a borrower wants to pay back the loan earlier than actual duration by using extra savings or a bonus, banks do not offer an easy option to do so. Many banks and NBFCs charge an early repayment fee. Which makes it difficult further for borrowers to pay off the loan earlier even if they could.

Charges on missing EMIs: If a borrower misses or forgets to pay the EMI by the given date, the banks and NBFCs charge the borrower with late fees. Missing multiple EMIs may lead the borrower to face legal action and their collateral can be taken.

Extra Amount: The borrower has to pay an extra amount than the actual borrowed amount in the form of the interest rate. As the principal amount and interest rate are combined to form an EMI, the borrower can’t avoid paying this extra amount.

Additional Amount: Additional amount in terms of interest. One need not pay interest if the payment is made at once.

Penalty for Prepayment: Many institutions do not allow prepayment and in case they do there will be a serious penalty that one will have to bear for the prepayment.

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Procedure to be followed in Civil Recovery Proceedings

By: Advocate Ayantika Mondal Civil 03 Sep 2019

The step-wise procedure to be followed in Civil Recovery Proceedings;

Step 1: Preparation of Plaint - Initially, for the preparation of a plaint, the basic principle of law must be kept in mind while drafting a plaint. The draft must include the material fact, contentions, prayer clause, date and cause of action, jurisdiction, etc. It should be ensured that the Plaint is made in a specific manner and as per legal requirements. Once the Bank files a plaint, it will be addressed as a plaintiff in the whole petition.

Step 2: Remittance of Court Fees & filing the Plaint - Court fee is calculated as per the provisions of Court Fees Act of particular State. Court Fees Act prescribes the ‘Court Fee’ as per the subject matter of specific litigation.

Step 3: Process of service - In order to complete process of service upon the defendant/Defendants, the Court allots a serial number to the case once it is filed, with a prefix indicating the type of the case. (Like "O.S" for "Original Suit"). The judge directs to issue a notice to the Defendant and also gives the date for proceeding with the matter. Accordingly, the notice is issued informing the defendants about the case been filed by the plaintiff against him, and he should appear before the court personally or through a lawyer on the date of matter.

Step 4: Preliminary hearing - On the preliminary hearing, after appearing before the court the defendant can file the written statement on his behalf, and the next date of hearing will be fixed by the court. Usually, a court allows the defendant to file his written statement within a period of 30 days. However, it may exceed a maximum of 90 days.
 
Step 5: Filing a written statement by the Defendant - When a defendant files his written statement in the Court, he would deny all the assertions in the Plaint and compel the plaintiff to prove every claim. This is also another way to prolong the outcome of the case, which may not be in favour of the Defendant if the plaintiff happens to have a bonafide case.

Step 6: Framing of Issues - A list of disputed questions of fact and law are called issues framed by the court which the plaintiff has to prove on the basis of evidence. The points mentioned by the plaintiff in his plaint, which is not expressly disputed by the Defendant, need not be proved.

Step 7: Defendant (both borrower as well as guarantors) take steps to dispose of most of their assets (including hypothecated assets) –  The following steps should be taken immediately after the suit is filed:
  1. Appointment of interim receiver and application for a temporary injunction.
  2. Interim attachment or injunction and interim sale.

Step 8: Evidence - After the issues are framed, the case is posted for evidence.

(a) Filing documents & leading evidence – After taking the evidence of the plaintiff into consideration, the witnesses if any, on behalf of the Plaintiff step into the witness box to narrate the facts of the case. All witnesses of the Plaintiff will be cross-examined by the lawyer of the Defendant. This process is called"leading evidence.”

(b) Evidence by the Defendant - The defendants is allowed to file any documents which he wants to produce before the court. The witnesses on behalf of the Defendant are cross-examined by the Plaintiff (i.e., by the Plaintiff's lawyer). After the evidence of both sides is filed, the case is adjourned for final arguments.

(c) Closing Arguments - The lawyers representing both the parties are asked to present their closing arguments before the court. It is possible that the judge may not be able to read and assimilate lengthy documents covering evidence on both sides, but he is accustomed for the quick perception of what is stated in the arguments. Documents are not read during the proceedings, and they have to be studied leisurely by the Judge, after court hours.
 
Step 9: Pronouncement of Judgment & passing of Decree - After concluding the arguments of both parties, the judge may reserve his order to be pronounced on a later date or may deliver the same immediately. Both parties may apply to the Court for a copy of the Judgment.

Step 10: Execution of the Decree - The party in whose favour the Decree is passed is called the decree-holder. The other party is called the Judgment Debtor. The Judgment debtor has to implement the Court's decree. If he fails to implement, the decree-holder can file an execution petition before the Court.

Step 11: Appeal - When a decree has been obtained by the Bank in its favour in the suit filed against the borrower and the guarantor, prompt steps should be taken for execution of such decree for recovery of the Bank’s dues.

Step 12: Filing of Appeal - Where the suit is decreed in favour of either of the party, the aggrieved party may prefer an appeal, if there are valid grounds of law and/or facts to prefer an appeal. The Court, immediately higher in the hierarchy is the Court to which an appeal can be filed. The appeal has to be filed within 30 days from the date of the decree.

Step 13: Execution of Money Decree - Even if the Judgment debtor files an appeal against the Bank before the Appellate Court challenging the money decree passed by the lower Court in Bank’s favour, the Bank should nevertheless proceed to apply for the execution of the decree passed by the lower Court notwithstanding the pendency of such an appeal unless a stay order or injunction order is granted by the Appellate Court restraining the Bank from executing the decree.

The process as above appears very simple, but in real life, the litigation is dragged for several months and even years. This is not only due to the delaying tactics adopted by the Defendant but also due to an enormous backlog of litigations piled up and pending in civil courts.


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Difference Between Mutual Divorce & Contested Divorce

By: admin Divorce 24 Apr 2019

Divorce helps a person to break free from a marital relationship. Marriage is not a contract; it's an important societal institution. The law is interested in the protection of marriage; it does not allow it to be severed only by ordinary wear and tear and choice. To get a divorce one needs to prove specific grounds, for e.g., cruelty/adultery/desertion etc. which are also known as matrimonial offences. People get confused between mutual divorce and contested divorce ending up with gratuitous legal bills. 

Mutual Consent Divorce:

A mutual consent divorce is a divorce whereby both the husband and wife mutually agrees to end the relationship and amicably decides the terms and conditions of the divorce. The reason why mutual consent divorce is also called an uncontested divorce is that the husband and wife files a joint divorce petition without the need to contest it before the court.

Parties desirous of Mutual Consent Divorce are always perplexed as to how to initiate the process, the role of court, terms, and conditions of mutual consent divorce, issues of maintenance and child custody, duration of mutual consent divorce, a place where Petition for mutual consent divorce can be filed and other allied questions.

Contested Divorce:

The court grants a divorce only on proof of fault conducted by one party and the innocence of another party. The most common grounds for divorce are cruelty, adultery, desertion ( it means wilful abandonment done by one spouse to the other without the reasonable cause), etc. Sometimes the conversion of religion and renunciation of the world is also one of the divorce grounds.
As per the law, our legal system does not grant a divorce on the irretrievable breakdown of a marriage or irreconcilable differences. To get divorce one has to prove wrongdoing on the part of the other spouse. The legislature has taken note of this practical reality, and a bill of the same is pending in the Parliament, which would allow a spouse to seek divorce on the ground of inherent incompatibility leading to the breakdown of a relationship.

Ground For Divorce: 

Under the Indian law, establishing a divorce ground is not necessary for filing a petition of Mutual Divorce, but for a petition of contested divorce valid ground. There are various reasons for divorce in India which includes adultery, mental or physical cruelty, desertion, conversion of religion, a venereal disease of communicable form, renunciation of the world, mental illness, leprosy and if the spouse is not heard being alive for seven years, etc. The valid reason for divorce in India is mentioned in section 13 of the Hindu Marriage Act, 1955.

Maintenance/Alimony, Division Of Property And  Child Custody: 

In a Mutual Consent Divorce, the formalities relating to maintenance/alimony, division of property and child custody, are decided by the husband and wife. However, the issues about alimony/maintenance, division of property and child custody are contested like the divorce petition. In India, for the case of Contested divorce, the lawyers file a separate request to deal with the issues.

Reconciliation of the parties: 

There is no concept of a reconciliation between the divorcing couple in a contested divorce. However, there is a period of 6 months in a divorce of mutual consent; it helps to give a chance to the couple some time to rethink on their decision. Under the new divorce law in India, the cooling period may be waived off by the court if it thinks that reconciliation is impossible and a cooling period will only increase their suffering.

It is observed that the Mutual Consent divorce is the easiest way to get separated, in this type of divorce both parties work out their terms and conditions on which both the parties agree to part ways- file petition in the court, which is finalised in 6 months.

Note: Legato connects you with top divorce advocates in India who can assist you in filing a mutual consent divorce or a contested divorce online in India, whichever applies to your matter. To get connected with divorce top verified attorneys near you send us an email at Support@legatoapp.com.


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About Amalgamation In India

By: admin Commmercial Contracts 24 Apr 2019

Amalgamation is the blending of one or more companies into a new entity. When two or more companies come together to form a new company or when they decide to absorb or blend any one company by the other then the amalgamation takes place. An amalgamation of the company is different from the process of a merger. It is because neither of connecting companies survives as a legal entity at the end; a new entity is formed to house and consolidate the assets and liabilities of both companies.  

Amalgamation is the process carried out between two or more companies who are engaged in the same line of activity and the operations. The companies can also combine for diversification of the activities or expansion of services.

The main reason for amalgamating of companies is to acquire cash resources, to eliminate competition, do tax savings, to operate economies of large scale, to increase the value of shareholders, to reduce the degree of risk by diversification and to achieve growth and gain financially.

Amalgamation is like the merger that tries to minimize the risk of the assets and liabilities and maximize advantages as well as the shareholders' interests, and the business of the companies. No adjustments are made to book value. All assets of the transferor company become of the transferee company.

After the amalgamation, the business of the transferor company is carried on. Shareholders of the transferor company who holds a minimum of 90% face value of equity shares become shareholders of the transferee company.

When another acquires one company and shareholders of the transferor company discontinue to have a share as per decided proportion in the equity of the amalgamated company, an amalgamation like purchase occurs when conditions for amalgamation like merger are not met.

The procedure of an Amalgamation is as follows:

  • - The terms and condition of amalgamation are always finalized by the board of directors of the Companies.
  • - Approval is given by the respective High Court when the amalgamation scheme is prepared and submitted.
  • - Approval of the shareholders of the companies is obtained.
  • - Approval of SEBI is obtained.
  • - A new company is formed and issues shares to the shareholders of the transferor company.
  • - The transferor company is liquidated and all the assets, liabilities are taken over by the transferee company.

The main purpose of amalgamation is to achieve benefit which arises, with the combination of the two entities jointly. 

Various other objectives of Amalgamation are as follows:

- To obtain the economies of scale
- To reduce competition
- To gain Goodwill and reputation 
- To reduce the risk through diversification
- To improve managerial effectiveness.


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Adultery Law In India

By: admin Criminal 24 Apr 2019

In India, adultery is not a crime anymore, though it can be a ground for divorce. The Supreme Court said that a 158-year law that punishes a man for an affair but not the woman, treating her as her husband's property. "It's time to say the husband is not the master of the woman," said a five-judge constitution bench, unanimously sticking up for gender justice and calling out the Victorian adultery law as arbitrary.


Section 497 of the IPC was a section dealing with adultery. The law observed that a woman could is not punishable for the offence of adultery. Only a man who commits consensual sexual intercourse with the wife of the other man without the consent of her husband is punishable under this offence in India. If an individual "lives in adultery", the partner can file for divorce. The Supreme Court of India defended the law on 27 September 2018. The SC acknowledged the law as unconstitutional because it "treats a husband as the master of his wife". 


Section 497 says that:-

Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the crime of adultery.


Moreover, he shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such a case, the wife shall [not] be punishable as an abettor.


On 27th September, a five-judge bench of the Supreme Court struck down Section 497 of the Indian Penal Code (IPC) and decriminalized adultery in India (it remains a "civil offence", as it can be a ground for divorce. The judgment is significant not because it got rid of a patriarchal law, but also because of its consequences that may arise in future.


All five Supreme Court judges hearing the case said the law was archaic, arbitrary and unconstitutional.


Chief Justice Misra said that "Husband is not the master of a wife. Women should be treated with equality along with men,".


Judge Rohinton Nariman said that "ancient notions of a man being perpetrator and woman being a victim no longer hold good".


Justice DY Chandrachud said the law "perpetuates the subordinate status of women, denies dignity, sexual autonomy, is based on gender stereotypes". He further said the law sought to "control sexuality of woman (and) hits the autonomy and dignity of a woman".


The judgment of the Supreme Court is essential, however, for the further indications it may have. All the judges were very clear that a woman has the right to bodily integrity, choice and personal liberty not just against the State, but also within the context of home and the family. It gives a call to a question that a number of our laws has actively denied these rights. The decriminalization of adultery may have a current effect that goes beyond its immediate context and serves as a springboard for greater freedom, equality, and independence within what is commonly understood to be the private sphere.



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Recovery Of Security Deposit

By: admin Landlord/ Tenant 24 Apr 2019

The most common quarrel between tenants and landlords is over the security deposit. For that purpose, states have laws with rules for suggesting the percentage of rent and security deposits to be kept with a landlord. As with any legal issue, if the tenant believes that the landlord is improperly keeping or mistreating the security deposit, it is essential to check the laws of the specific jurisdiction before taking action.

The first step in arranging the security deposit back is making sure the tenant satisfies the conditions of your lease. Any property that came with the apartment from the landlord must remain. The items which are not returned can be charged by the tenants. It is necessary that he leaves the apartment in good condition. The landlord can charge for damage above and beyond normal wear and tear.  The simplest way to get the security deposit back is to encourage a good relationship with your landlord while living in residence. If a tenant gets along well with the landlord, misunderstandings don't have to escalate into major disagreements.

The lease agreement executed between landlord and tenant should specify a period for occupancy. When landlord and tenant sign the lease, they agreed to occupy the space and pay rent for that amount of time. The landlord might be able to keep charging the tenant the rent until a new tenant comes to stay, he can deduct from your security deposit or keep the full amount.

It is advisable to give written notice when a tenant decides to move. The usual timeframe for notification is 30 days. If the tenant doesn't provide the required notice, then he can certainly be charged for the term of the notice. The courts don't always uphold a landlord's right to deduct from a security deposit for short notice. However, if your landlord does charge you, you'll have to go through the hassle of small claims court. Avoid disaster and financial burden by careful planning.

If any problem arises, as the landlord refuses to give your security deposit back, within the time period set by the law, or if you have any dispute charges that the landlord has deducted from the deposit, the first essential step for settling the issue is to contact the landlord (or his/her agent). One should mention the difficulty and request a refund. It is advisable to follow the conversation with a letter sent by certified mail and ensure to keep a copy. He/she can even give a hand-delivered letter having the sign of landlord and date of the print received by the landlord.

If everything fails, you may have to file a lawsuit and get the security deposit back. A lawsuit over a security deposit will go before a small-claims court, which means that it is not necessary to hire an attorney. If security deposit amount exceeds the claim amount for small-claims courts in the jurisdiction and an individual end up hiring an attorney to represent him in civil court, he can recover the attorney's fees after he wins the suit.

Filing a lawsuit can help to recover the higher amount than the original security deposit if the court finds that the landlord has acted in bad faith. In some cases, the award could be more the amount of the security deposit. The disadvantage of filing a suit is that the landlord can file counterclaims for damage to the property, violations of the lease deed, or other claims that may cause you difficulties in defending the landlord.  

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Rights of Consumers

By: Adv. Jayatinn B. Lalwani Consumer Grivances 12 Sep 2019

A consumer is considered the real king of the market. The consumer is the one who buys the products for consumption and not for resale or any other commercial purpose. He pays some amount of money to avail these goods and services offered to him. 

A Consumer plays a crucial role in changing the market. If there is no consumer, the manufacturer will have no one to provide its services. More often, the consumer is offered contaminated food or uncertified products. 

Being an important participant in the market, the rights of the consumer must be protected. Until the commencement of the Consumer Protection Act, 1986, India was severely affected by black marketing, food adulteration, inadequate weighing, etc., which affected the well-being of the consumers in the Indian market. Due to these malpractices, the government decided to enact the Consumer Protection Act on 24th December 1986. The main objective of the act was to protect the rights of the consumer.

There are six primary consumer rights defined as per the Consumer Protection Act, 1986:

Right to Safety: The Consumer Protection Act defines this right as protection against goods and services that are ‘dangerous to life and property’. It applies to medicines, pharmaceuticals, foodstuffs, and automobiles. The Right to safety says that all such products of critical nature to life and property should be carefully tested and validated before being marketed to the consumer. The goods and services purchased by the consumer should not only meet the immediate needs but also fulfil the interests for the long term goal. It is suggested to choose the product holding quality mark.

Right to Information: Right to information says that the consumers have the right to be informed about the quality and quantity of goods sold. They must have the information about the price of product and access to other information about the product that consumer intends to buy. A consumer should get all the information about the goods and services before making a choice. The consumer may now seek the information of the product by filing the complaint under Right to Information Act, 2005 before the appropriate authority.

Right to Choose: The consumer must have the right of choosing the products at competitive prices. Thus, the concept of a competitive market explains that there are many sellers to sell similar products, but it’s the consumer right to choose what they intend to consume and in what quantity. This is done to avoid a monopoly in the market. It also includes the right to choose the basic goods and services. 

Right to Seek Redressal: When a consumer is exploited, he/she have the right to file a complaint against the faulty product and approach a consumer court. A consumer court is a forum that hears the criticism and provides justice to the exploited parties. The consumer has the right to be represented in various forums formed for the welfare of the consumer. The Consumer Protection Act defines the three-tier redressal system to execute the right of redressal.

Right to be Heard: The right to heard ensures that if the consumers are dissatisfied with the product purchased, then they can be heard in consumer redressal forums. When a consumer feels exploited, he has the right to approach a consumer court to file his complaint. This right respect the claim made by the consumer and will be duly heard. The said complaint cannot go unheard as it must be addressed within the appropriate time frame. The right to be heard empower consumers to voice their concerns fearlessly and seek justice if exploited.

Right to Consumer Education: Consumers have the right to know all information and should be aware of their rights and responsibilities. Lack of awareness is the major problem in our country, which results in the exploitation of Consumer rights. This information can help them to choose what to purchase, how much to buy and at what price. Consumers are not even aware of the acts protecting them. Unless they are aware of the right, they cannot seek justice when exploited. 

Also, in addition to the above mentioned six consumer rights, there are also a few other consumer rights.

Right to file a complaint: The consumers can file a complaint with the District Consumer Commission or State Consumer Commission directly as the Consumer affairs are now framing rules for electronic filing of complaints and payment of fees digitally.

Right to seek compensation: The complainant can now file a case against the manufacturer or seller of a particular product for any loss occurred. This new provision brings e-commerce under the ambit of consumer laws.

Right to seek hearing via video conference: As per the new act of consumer protection, if any of the consumer forwards the application for being present for hearing through video conference, the commission can allow the same.

Right to know the reason for rejection of complaint: No complaint can be rejected by the commission, in fact, as per the act, the commission must decide to admit or reject a complaint within 21 days of the filing of the complaint.

Right to protect the consumer as a class: The complaint which relates to the violation of consumer rights, unfair trade practices or misleading advertisement which are prejudicial to the interest of the consumer as a class, the complaint can be filed before the district collector, commissioner of regional office or the authority of Central Consumer for a class action.

Conclusion: The Consumer Protection Act, 1986 was enacted in order to protect the rights of the consumer on 24th December 1986. Now, in 2019, this three-decade-old Consumer Protection Act is repealed by new Consumer Protection Act, 2019 in order to enhance consumer rights in the digital economy and expand the scope of consumer grievances with easy process of filing complaints.

The existing legal framework of Consumer protection Act failed to address the emerging issues and new modes of business like telemarketing, multi-level marketing, e- commerce, etc. there was a dire need of a  legal framework that gives the regulatorsuo-moto powers.

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Mandatory Registration of Documents and its Procedure

By: admin Documentation 19 Apr 2019

Registration Act, 1908 vide Section 17 lays that, all transactions that involve the sale of immovable property value exceeding Rs 100, must be registered. This means that all the sale of immovable properties needs to be registered because no immovable property can be purchased for mere consideration of Rs 100. Additionally, all transactions of the gift of immovable property, as well as a lease for a period exceeding 12 months, are also mandatory for registration.

In some exceptional cases, where a party to the transaction isn't able to go to the sub-registrar's office, then the sub-registrar may ask any of its officers to accept the documents for registration, at the residence of such person. 

Documents required and procedure:

The property documents that need to be registered should be submitted to the Sub-Registrar's office within whose jurisdiction the property, which is the subject matter of transfer, is situated. The authorised signatories for the seller and the purchaser, have to be present along with two witnesses, for registration of the documents.

They must carry their proof of identity. The documents like Aadhaar Card, PAN Card, or any other proof of identification issued by a government authority are accepted for this purpose. They have to furnish the power of authority, in case they are representative of someone.  If a company is one of the parties to the agreement, then the person representing the company to carry out the registration must carry documents, letter of authority or power of attorney, with the copy of the board of resolution of the company, which authorises him.

One must present the property card (other related documents) to the sub-registrar office, along with the relevant original documents and stamp duty payment proof. The sub-registrar will cross-check whether appropriate stamp duty has been paid for the property, as per the stamp duty ready reckoner before registering the documents. In case of any deficit in the stamp duty, the registrar will not register the documents.

Points to be noted before the registration:

Preparations: A day before registration, gather and keep all the documents that are required for registration. In case you are not careful you run the risk of losing the papers. Before you leave the for the Sub- registrars office, make sure you collected all your documents.

Timings: Be on time at Registration Office along with necessary documents. Don't plan anything else other than the registration on the day of property registration. Be rest assured that the entire day will be spent at the registration office. 

Payment: These days all things are done digitally, stamp duty and registration charges are paid much before appearing in the sub-registrar's office to register your property. If required take a lawyer’s assistance to deal with this part of the transaction. Only after payment of the stamp duty and registration charges an appointment is made at for property registration.

Additional Documents: With the relevant property documents, keep your PAN Card and Aadhaar card. You could also produce your or passport, voter ID card or driving license in place of Aadhaar card. These documents are the first things you will have to show when the Teller, the Reader and the Sub-Magistrate call your name, also take along two passport size photographs of both the parties.

If the property is under a lease from any development authority or government department, you will need transfer permission from the lessor for registration of the document. In the case of agricultural property/ farmland, a No Objection Certificate is also required from the appropriate authority to prove that the property is not subject to any acquisition proceedings. Both the parties and the two witnesses along with their identification proofs need to be present at the time of registration. You may also be required to produce a past chain of title documents at the time of registration of the title deed.

These documents are then verified by a clerk who takes the thumb and finger impression of both parties on the documents. The sub-registrar verifies the original title documents, and ID cards of all parties take digital photographs of both the parties along with witnesses and issues a receipt to collect the original title deed.  

TDS: In case the deal was of over Rs 50 lakh, the buyer has to submit a proof showing that he has deducted one per cent as TDS from the value of the property. Don't forget to carry such paper with you which acts a proof.

Witness: Witnesses are quite crucial for the process of registration to take place. They must be present with you during the entire process and must have a valid proof of ID along with them. The witnesses should be such people who you know.

Equal Treatment: There are no separate queues for women or senior citizens. All people are treated equally in the Sub-Registrar’s Office.

Time frame: Typically, it takes 5 to 6 days for the documents to get registered. Only after production of the receipt issued to you at the time of registration, your documents will be handed back to you. The bank may send its representative to collect the document, in case of home loan. You can by yourself receive the papers and give them to the bank as well.

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Case Law on Domestic Violence

By: admin Domestic Violence 19 Apr 2019

Case Law: Husband of Delhi air hostess who killed self used to beat me: Former Miss India, The woman has allegedly told the police that Mayank once even chased her with a knife.


Highlights:

I'm ending my life, Anissia texted husband Mayank at 4:12 pm.

Anissia jumped off a building terrace at around 4:30 pm on July 13, 2018.

Mayank and his family have been asked to join the probe.


Mayank Singhvi, the software engineer husband of Anissia Batra, who was employed as an air hostess with the German airline, Lufthansa, committed suicide, she might have had a series of domestic assault, as per the report submitted by the Delhi Police in a court.


The Delhi Police have seized a BMW and a diamond ring on July 16, 2018, from the house of the air hostess Anissia Batra, who allegedly committed suicide on July 13, 2018.  Both the car and the ring were given by Anissa's family to her husband. The police have also confiscated mobile phones of the couple amid the family's allegation that she was a victim of domestic violence.


The report says that a woman, who once a winner of the Miss India beauty pageant, had come forward and claimed that she was once engaged with Mayank Singhvi and that he regularly assaulted her during the time they were together. Anissia Batra had allegedly told the police that Mayank once had chased her with a knife, after which she broke off her engagement.


Domestic Assault


After Anissia killed herself, soon her family accused Mayank Singhvi and his parents of being responsible for the air hostess's death. Anissa's mother said that Mayank was a divorcee but had covered it. “The abuse had begun during the couple’s honeymoon. Mayank beat her up in the room and lobby of the hotel they were staying at. She had to move to safety at a friend’s place and returned to India alone,” alleged Neelam in her complaint to the police. Also, her mother alleged that “Mayank would drink and beat my daughter.” Anissa's family also revealed that around the night before she killed herself, her father had written to the Delhi Police machinery saying, "...if any physical harm is caused to my daughter, Mayank, as well as the in-laws, will be considered responsible." The police didn't react to the letter.


After Mayank Singhvi was arrested on July 24, 2018, Anissa's family released a set of photos which they said were proof that their daughter was a victim of domestic assault. Photos released by Anissia Batra's family. The photos showed bruised limbs.


What Happened on July 13, 2018?


According to the police, Anissia and Mayank got into an argument on July 13, 2018. The couple's neighbour heard a "heated argument" take place. Phone records obtained by the police show that Anissia messaged a friend on Whatsapp at around 2:56 pm that day, which read as: "He [Mayank] has locked me inside the room. Please call the police. Please come if you can. I am locked up..." followed by a message a minute later read as "Finally I got my phone, I am at N 116... I need help.. he [Mayank] is sitting outside guarding my room...," The friend informed her that she could not come right away but told that another friend could reach Anissa's place sooner. But, by 4 pm Anissia had made her mind and at around 4:12 pm, the air hostess sent another WhatsApp message which read as: "I am going to kill myself today because Mayank has driven me to it. He finally let me out but I can't repair what he has done to me."


It is believed that she had messaged Mayank that she was going to end her life. Following her last WhatsApp message to her friend she went to her home's terrace and jumped off.


The police have arrested Mayank Singhvi and the Delhi Police's crime branch is probing the case.


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Overview of Assault and Battery

By: admin Personal Injury 19 Apr 2019

We have heard the phrase ‘Assault' and ‘Battery' several times in our day to day life. The terms are two different legal concepts with discrete elements. Some states split them up while others and combine the offences. 

In some states, an assault/battery is said to be committed when one person:
  1. tries to or does physically strike another, or
  2. acts in a threatening manner to put another in fear of immediate harm. 

Assaults and Batteries can also be pursued with the civil lawsuits (with opposition to criminal prosecution). In short, an assault is a threat or attempt to injure the other individual, while the battery is the act which makes contact with another person in a harmful or offensive manner. Generally, assault and battery is the combination of two violent crimes, assault – the threat of violence and battery – physical abuse.

The distinction between Assault and Battery: 

The main contrast between the two offences is the existence or nonexistence of touching to the other person. Whereas contact is a primary element of battery, there must be a lack of contact for assault. Sometimes assault is defined to include a battery.

Assault and Battery are offences in both criminal and tort law. Therefore they give rise to both civil and criminal liability. The contact is not specified for an offence of assault; a conviction for an assault requires a criminal act. The types of law that fall into the category of assault can vary extensively, but typically an assault requires a direct action that would put the reasonable person in fear for their safety. Spoken words alone will not be enough for an act to create an assault unless the offender lines them up with an act or actions that put the victim in fear of imminent harm.

In order to commit an assault, an individual need only have "general intent. It means that even if an individual can't accidentally assault another person, it is enough to show that an offender intended the movements which resulted in an assault. That means if an individual acts in a way that deems dangerous to another person, then it is an assault. Even if the person didn't intend particular harm to an individual, moreover, not designed to scare or frighten another person can be enough to establish assault charges, as well.

Jurisdiction of Assault and Battery:

In certain jurisdictions, assault and battery both are paired together as one offence. The reason for pairing assault and battery is when an individual commits battery he/she usually has the intent to harm, or threaten the person before doing the act. There will also be various degrees of assault which includes first degree, second degree, and third degree. Each degree describes how serious the crime is or maybe. 

In other state jurisdictions, assault is defined in extended terms as any intentional physical contact takes place with an individual without his/her consent. While in other states, the definition of assault includes the description of a battery of other State.  The degree of assault defines the range of punishment to be administered for the crime. 

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Procedure In Debt Recovery Tribunal Proceedings

By: admin Recovery 19 Apr 2019

The step-wise procedure to be followed in DRT Proceedings in all available NPA accounts are as follows: 

Demand notice by RPAD (Registered Post with Acknowledgement Due) should immediately be served to call upon the borrower or guarantor to repay the dues within a reasonable time from the date of receipt of the Notice before issuance of the same under Section 13(2) of the SARFAESI Act, 2002.

On receipt of such demand notice when the borrower and guarantor fail to make repayment of his/their dues within the time as specified in the notice, Bank should take steps for filing Original Application (OA) in DRT for recovery of dues. 

It is necessary that the Bank should file an application along with the relevant documents in book form and required fees with the Registry of DRT within whose jurisdiction:
a) the applicant Bank functions, 
b) the defendants or any of the defendants where there are more than one, actually or voluntarily reside, or carries on business, or personally works for gain, or 
c) the cause of action, partly or wholly, arises, and if any discrepancy is found, he shall grant a specific time to the applicant Bank to rectify the same.

- On such rectification, the Registrar shall register the OA and give a serial number.

- On registration of the OA, the summons shall be served on the defendants by the Registrar. 

- The defendant s is/are required to file the Written Statements within a maximum period of 30 days from the receipt date of summons unless an extension is allowed. Else, the OA shall be heard ex-parte.

- Evidence-on-Affidavit, along with the original documents, is to be filed by the Applicant Bank.

- Defendants has/have to file Evidence on Counter-Affidavits along with the papers relied upon by him/them. 

- Arguments on behalf of the applicant bank shall be filed.

- An Argument on behalf of the defendant shall be filed.

- Detailed information as to the balance outstanding, cost and expenses, etc., incurred by the Bank in the account are to be submitted by the applicant Bank.

- The Judgement is passed, and the DRT issues the Recovery Certificate.
 
- Particulars of the Certificate Debtor (CD), i.e., Present Addresses, etc., to be submitted by the bank for the issuance of Demand Notices by the Recovery Officer.

- Demand Notices to be issued by the Recovery Officer directing the CDs to make payment in terms of Recovery Certificate. 

- On failure of the CDs to make payment in terms of the demand notice, the property details (both secured and unsecured) of the CDs to be submitted by the bank for attachment.

- Order of attachment of the properties of the CDs is to be passed by the Recovery Officer. 

- Order for sale of the properties of the CDs is to be passed by the Recovery Officer. Recovery Officer may appoint a Receiver for conducting the sale, taking into consideration the nature of the assets.

- Where any property is managed to be sold, the Recovery Officer shall cause a proclamation of the intended sale for public auction as per 2nd & 3rd Schedules to the I.T. Act, 1961 and the Rules made thereunder.

- After adjusting the sale proceeds if there is any shortfall, the application may be filed by the bank praying for arrest and civil imprisonment of the CDs.
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All About 7/12 Extract

By: admin Property 18 Apr 2019

It is seen that massive list of documents with complicated terms is required for the purchase of properties. 7/12 Extract is one of these documents. This document is precisely needed when a buyer is looking to purchase plots. It is, traditionally called as “Saath Baara Utara” in Maharashtra, which is an extract from the land register of the district, maintained by the revenue department of the government in the state of Maharashtra. It is a document which gives complete information about a particular piece of land. It includes details such as the survey number, area, date from which the current owner's name has registered etc.

Generally, the Tehsildar or any other concerned land authority issues the 7/12 extract. One can pay the official fee to get a copy of the 7/12 extract.

The 7/12 document or ‘Record of Land Rights’ is used for looking up the ownership of ancestral land in a village, this helps in checking past conflicts, or any litigation orders passed affecting the land or any existing litigation. 7/12 extract has a record of all the activities that have been conducted on the land. The record also establishes the identity of the land legally, covering the natural aspects of the surroundings. Whether it is agricultural land, the document also has a history of the crops that were last cultivated in the land.

How to get 7/12 extract?

7/ 12 extract can be obtained by visiting the nearest Tehsildar’s office and applying for the 7/12 document for the particular tenure. It can be obtained from the concerned government’s website. Visit the website and find your desired locality in the district map to view the 7/12 extract. 

You may get the result by following these steps:

  1. By selecting the Taluk and Village details from the corresponding lists.
  2. By selecting any of the following options and entering the essential information and search for the required 7/12 extract details.
  3. Query by Survey No.— If you know the survey number of the property, you can use this option to search for the 7/12 extract.
  4. Query by Name — This option allows you to search for the 7/12 extracts by name
  5. Click on Show 7/12.

The government has introduced two software system E-chavdi and E-mutation to bring clarity to the process of obtaining 7/12 extracts. This software will enable the Talathis to obtain soft copies of the 7/12 extracts.

Maharashtra Land Revenue Code,1966 by Section 148-159 provides for maintaining the Record of Rights in every village. It so governed by the rules made under (Maharashtra Land Revenue Record of Rights and Registers (Preparation and maintenance) Rules 1971, rules – 3, 5,6,7,9 and 29.

The 7/12 extract contains the following information about the land;

- Survey number of land
Area of the land – Fit for cultivation
- Changes in ownership
- Mutation numbers
- Type of land (agricultural or non-agricultural)
- Type of irrigation (irrigated type or rainfed type)
- Details pending loans for buying seeds, pesticides or fertilisers
- Information about the kind of crops planted in the last cultivating season
- Details of pending litigations, if any
- Details of tax paid and unpaid

Uses of 7/12 extract or Saat Baara Utara

The primary uses of 7/12 extract are as follows:
- Proof of Ownership
- Land type & Activities
- Agricultural Information
Property Sale Transaction
- Bank Loan
- Civil Litigation

Note: To learn more about the laws and procedures, you can contact us at Legato app where we help you in connecting with experienced lawyers who can assist you with the documentation and procedural aspects.
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Measures To Prevent Most Common Workplace Accidents

By: admin Labour Issues 18 Apr 2019

1). Trips, slips, and falls


Trips Slips and Falls amount for 1/3rd of all personal injuries are a top cause of workers’ compensation claims. The types of damages include head and back injuries, broken bones, cuts and lacerations, sprains and pulled muscles due to trips, slips, and falls.  


The common reasons for falls in the workplace are:


Slips - Wet or oily surfaces, occasional spills, weather hazards, loose rugs or mats and flooring that lacks the appropriate degree of grip.


Trips - Obstructed view, poor lighting, clutter, wrinkled carpeting, uncovered cables, uneven walking surfaces and bottom drawers not closed.


There are three keys to prevent these accidents due to trips, slips, and falls such as good housekeeping, good quality walking surfaces, and proper footwear. Also, employees should be reminded to pay attention to where they are going and observe there surrounding. They should also report areas where clutter, obstruction, spillage or damage have taken place.


2). Struck by any moving machinery


Machinery which is not adequately guarded is a potential safety risk. When a person or his body parts get stuck in or struck by moving parts or floating objects from machines without protective guards, the results are often devastating. The list of machinery-related injuries includes long and horrifying incidents of crushed hands and arms, severed fingers, blindness and much worse.


3). Transportation and vehicle-related accidents


Vehicle-related accidents are the most regular cause of fatal injuries in the agriculture industry, but they can be equally disastrous in industrial or manufacturing environments as well. Where there are equipment, vehicles and large trucks, vehicle-related accidents may take place. These include being hit or run over by a moving vehicle, falling from a vehicle, being hit by objects falling from a vehicle and getting crushed by or stuck under an overturned vehicle.


There are two types of vehicle-related accidents;


On the road - workers can be injured or may die after being hit or run over by a vehicle while repairing roads or other work in traffic region.


At the workplace - operators of vehicles and equipment can get injured or cause injury to pedestrians. 


4). Fire and explosions


Fires and explosions and account for 3% of workplace injuries and have the highest casualty rate of all probable workplace accidents. The cause for accidental fire and explosions in the workplace are, generally due to factors such as broken gas lines, poor pipefitting, improperly stored flammable substances or flames. The resulting injuries include varying degrees of burns and potential disfigurement and damage to the respiratory system.


The recommendation to help workers avoid fire and explosion injuries, every workplace must have an active alert system and evacuation plan in place to quickly inform everyone of hazards and emergencies, it is also necessary that material safety data sheets (MSDS) for chemical compounds should be kept handy and employees should always wear personal protective equipment.


This impacts on the employer financially, but the long-term effects on workers are often severe and potentially devastating.


Furthermore, RSIS (Repetitive Stress Injuries) are one of the fast-growing category injuries at the workplace and include more than 100 types of job-caused damages caused by wear and tear of the body. Both over-exertion and RSIS are severe to inhibit activities with devastating pain, not to mention severe impairment of movement. They may also eventually permanently impair a worker’s ability to perform his or her job.


The best way to protect the employees and help prevent accidents and injuries in your workplace is to take a comprehensive approach to workplace safety. It ensures employees have the proper and protective equipment and sufficient training to work, also ensure your facility is acquiescent with governmental and environmental regulations.

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All About Notary Officer

By: admin Stamp Papers and Notary 18 Apr 2019

A Public officer constituted by law is a person who does notary of any document to serve the public in non-contentious matters usually concerned with estates, deeds, powers-of-attorney and business at an international level. The primary purposes are to administer oaths and affirmations, take affidavits and statutory declarations, witness and confirm the execution of certain documents.

A Notary's duty is to cover the signers of relevant documents for their true identity, their willingness to sign without pressure or threatening, and their experience relating to the contents of the document and transaction. Some examples of documents are property deeds, wills, and powers of attorney that usually require a Notary.

Integrity is the basis of the Notary public trust. The Notary persons are duty-bound not to act in situations where they have a personal interest. Till now the public trust that the notaries have not been corrupted by self-interest. And also notary should never refuse to serve a person due to race, nationality, religion, politics, sexual orientation or status as a non-customer.

How can notary identify the signer?

Generally, a Notary will ask to see a current ID that has a photo, physical description, and signature. Acceptable IDs usually include a driver's license or passport.

How to be a Notary Public?

One can be a notary in the state if he/she meets the eligibility requirements and follow all of the steps that the state bears in their commission process. The process of notary alters from state to state, but usually, the person can fill an application and pay the application fee, after that it is necessary to pass an exam, one can prefer doing the training course, file your bond and oath of office, and buy your Notary supplies.

Regulations and Authority

With relating to notary publics, each state has its own rules about the authorities extended to notaries. In order to notarize a document, the person whose signature is being notarized must sign the document in the presence of Notary. The person is not allowed to sign the document ahead of time and then present the same before the notary.

In some states it is necessary, the notary should specify how the person identify the signer of that document (e.g., the signer presented an ID or that the notary already associated with the signer.

Each state determines that a notary must administer an oath to document signer. While there is no directed language, the oath regularly introduces language requiring the signer to swear or affirm that the statements mentioned in the agreement are true.

There is a fee to get a document notarized. The maximum amount that a notary public may charge for services is usually regulated by state law.

How to verify Notary Public?

Although the job of Notary public is to check and verify the person who is getting the document notarized, as many instances have been observed where fake Notary Public are found using fake notary seal. It is important to verify the Notary Public. You should ensure that seal with the registration number of Notary Person is present on all documents. Center and state government maintain a list of their registered Notary Public online.

Every notary must use a plain circular seal of a diameter of 5 c.m. bearing the following things:
the name, 
the area within which he has been appointed to exercise his functions,
the registration number, 
the circumscription "NOTARY", 
the name of the State government from which he/ she is appointed. 

Adding off a red seal or sticker is not mandatory and does not have any effect on the authenticity of the notary action.   

Note: To learn more about the laws and procedures, you can contact us at Legato app where we help you in connecting with experienced lawyers who can assist you with the documentation and procedural aspects.

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Child Sexual Abuse

By: admin Sexual Abuse 18 Apr 2019

Child Sexual abuse is an abuse in which an adult or older uses a child for sexual activities. Whether by asking, pressurising or by any other means such as indecent exposure, child grooming, or by using them to produce child pornography.

Child sexual abuse can take place at home, school, classes or workplace, where child labours work, etc. In India, the main reason for sexual abuse is child marriage. That is the reason why the Indian Government has decided and declared the age limit for marriage, but in some states, child marriage never ends up. Sexual abuse of child includes depression, post-traumatic stress disorder, mentally unstable, anxiety, physical injury etc.

United Nations Children's Fund (UNICEF): 

It's a United Nations (UN) program. It's headquartered in New York City that provides humanitarian and developmental assistance to children and mothers in developing countries. The organisation began its work in India in 1949 with three staff members and established an office in Delhi three years later.

Causes for Child Abuse:
Child abuse is a complex phenomenon with multiple causes. No single factor can be recognized as to why some adults behave so violent towards the children. World Health Organization (WHO) and the International Society for Prevention of Child abuse (ISPCAN) identify the multiple factors at the level of the individual, their relationships, and their local community.

At the individual level, the same factors include sex, age and personal history, while at the level of society; determinant that contributes to child maltreatment includes cultural norms encouraging harsh and physical punishment of children, the lack of social safety nets and economic inequality.

Three Types Of Child Sexual Abuse:

Sexual Assault – It is an act in which a person intentionally sexually touches another person without that person's consent or coerces or physically forces a person to engage in a sexual act against their will.  It is also an offence in which an adult uses a minor for sexual fulfilment; for example, rape and sexual penetration with an object.

Sexual Exploitation – It is a term defining offences in which an adult deceives a minor for advancement, sexual satisfaction, or profit; for example, prostituting a child, and creating or trafficking in child pornography.

Sexual Grooming – It is establishing an emotional connection with a child, and sometimes the family, to lower the child's inhibitions with the objective of sexual abuse. It is social conduct of a potential child sex offender who tries to make a minor more accepting of their advances, for example in an online chat room.

The Protection of Children from Sexual Offences (POCSO) Act, 2012:-

The Protection of Children from Sexual Offences (POCSO) Act, 2012 was passed to provide a robust legal framework for the protection of children from offences of sexual assault, pornography and sexual harassment, while safeguarding the interest of the child at every stage of the judicial process. The Act was passed to strengthen legal provisions for the protection of children below 18 years of age from sexual abuse and exploitation.

Under this Act, if any girl under 18 is seeking an abortion, the service provider is compelled to register a complaint of sexual assault with the police. However, under the Medical Termination of Pregnancy Act, 1971, it is not compulsory to report the identity of the person is seeking an abortion. Consequently, service providers are hesitant to provide abortion services to girls under 18.

Punishment under the POSCO Act: The central government recently amended the POSCO Act, regarding rape against the girl child and the punishment is as follows:

  1. In the case of gang-rape of a girl below the age of 12, the punishment is the Life imprisonment or death penalty.  
  2. In the case of rape of a girl below the age of 12, the punishment will be- death penalty, life imprisonment or minimum imprisonment of 20 years.
  3. In the case of gang-rape of a girl below the age of 16, the punishment will be- imprisonment for the rest of life.
  4. In case of rape of a girl below the age of 16, the punishment will be- imprisonment for 20 years (earlier 10 years) which is extendable for rest of life.
  5. In the case of rape of a woman, the minimum punishment has been provided to be 10 years (earlier 7 years) which is extendable to life imprisonment.

Note: To learn more about the laws and procedures, you can contact us at Legato app where we help you in connecting with experienced lawyers who can assist you with the documentation and procedural aspects.


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Anti-Ragging Laws In India

By: admin Ragging 18 Apr 2019

Ragging is originally a concept from the west and was generally a kind of interaction between seniors and juniors in schools and colleges. But, such communications, have taken a fierce, inhuman and anti-social, form at times. Many of the highly reputed colleges and institutions have a disturbing tale related to it. It has social, physical, political-economic academic and physiological dimensions.

Ragging under laws in India defined as:

(i) Any disorderly conduct either by acts or words spoken, gestures, which results in teasing, handling with rudeness to any pupil.

(ii) Any undisciplined or rowdy activity, which causes harm.

(iii) Raises fear in the minds of junior students.

(iv) Asking the students to perform something, which such student will not do in the ordinary course, which can cause shame or embarrassment and adversely affect the physique or psyche of a junior student.

The Indian laws which keep checking on the practice of ragging in India, are:

  1. Indian Penal Code, 1860
  2. UGC regulations by name, UGC Regulations on Curbing the Menace of Ragging in Higher Educational Institutions, 2009
  3. Other institute specific regulations.

Punishments under Indian Penal Code, 1860 for ragging

The institution must register FIR for every incident of ragging or abetment of ragging. IPC provisions which can be used by a student to register an FIR are:-

Section 294 – Obscene acts and songs
Section 299 – Punishment for culpable homicide not amounting to murder
Section 323 – punishment for voluntarily causing hurt
Section 324 – intentionally causing destroyed by dangerous weapon or means
Section 325 – provides for punishment for voluntarily causing grievous hurt
Section 326 – provides for voluntarily causing grievous hurt by dangerous weapon
Section 339 – Wrongful Restraint
Section 340 – Wrongful Confinement
Section 341 – Punishment for Wrongful Restraint
Section 342 – Punishment for Wrongful Confinement

Anti-Ragging Committee: Every institution must establish a committee by name the Anti-Ragging Committee. Head of the institution to be nominated as the head, and consisting of representatives of police administration, local media, NGOs involved in youth activities, representatives of faculty members, representatives of parents, representatives of students belonging to the fresher’s as well as senior students, non-teaching staff; and shall have a mix membership of levels as well as gender. The Anti-Ragging Committee has to ensure compliance with the provisions of the law and regulations concerning ragging to stop the menace of ragging. The College has to submit to weekly reports on anti-ragging status to the Vice-Chancellor of the University.

FIR: The guidelines lay down that when any information regarding any reported incident of ragging, the Head of the institution shall immediately determine, if a case falls under the penal laws and if so, by himself or through a member of the Committee, proceed to file a First Information Report (FIR), within twenty-four hours of receipt of such information.

Consequences of Ragging-

(i) Cancellation of admission
(ii) Suspension from attending classes
(iii) Withholding/withdrawing scholarship and other benefits
(iv) Debarring from appearing in exam/another evaluation manner
(v) Withholding the results/mark sheets.
(vi) Debarring the student from representing the institution in any festival.
(vii) Suspension from hostel
(viii) Restriction for 1 to 4 years from the institution.
(ix) Expulsion from the institution and debarring from admission in any other institution.
(x) Fine as per the laws.

Conclusion: The primary responsibility to curb ragging vests with the educational institutions. There is a requirement for the participation of media and society as well. Hon’ble Supreme Court has rightly observed that by, declaring ragging as a cognizable offence will not restrain ragging, as the students going to educational institutions should not be subjected to live under the apprehension of police. However, given the recent impact on the students, these guidelines to curb the menace of ragging were put in place. The Court also has been given responsibility to ensure that there is speedy disposal of these matters. The strict implementation of these laws can only wipe the memories of the adverse impact of ragging.

Note: To learn more about the laws and procedures, you can contact us at Legato app where we help you in connecting with experienced lawyers who can assist you with the documentation and procedural aspects.


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Income Tax Return

By: admin Income Tax return 17 Apr 2019

Every individual whose income is more than the basic exemption limit of taxable income has to file an Income Tax Return (ITR) for every financial year. The due date depends upon the legal status of the assessee for filing an ITR. 30th September is the Due date for companies and assesses liable for a tax audit. 31st July is the due date of filing a tax return for others. 

For not filing an income tax return, a taxpayer can have serious repercussions, as follows:

Benefits/Advantages:

1. An income tax return is proof of the income you earn. It also helps in faster processing of loans, visas and credit cards. It is a necessary document for the processing of loans, visas/master and credit cards. Hence, if you are applying for a home loan, it is essential to have all your income proofs ready. Also, paying your tax on time adds to your credentials as a trustworthy and law-abiding citizen. Filing the ITR will help individuals, when they have to apply for a vehicle loan (2-wheeler or 4-wheeler), House Loan, etc., a copy of tax returns can be asked for by major banks.

2. Claim Tax Refund: If you have a refund due from the Income Tax Department, you will have to file an Income Tax Return to claim the refund. 

3. Income & Address Proof: Income Tax Return can be used as proof of your Income and Address.

4. Quick Visa Processing: Most embassies & consulates require you to furnish copies of your tax returns for the past couple of years at the time of the visa application.

5. Carry Forward Your Losses: If you file the return within due date, you will be able to carry forward losses to subsequent years, which can be used to set off against income of following years.

6. Avoid Penalty: If you are required to file your Tax returns but didn’t, then the tax officer deserves the right to impose a penalty of up to Rs.5,000.Income Tax Act, u/s 234F, makes provisions for penalties, there will be two sets of penalties for tax returns filed after the due date. 

7. Processing Of Returns: While e-filing your returns, the servers may slow down due to multiple requests closer to the tax return deadline. So filing your returns closer to the due date may lead to a delay in processing, thus to avoid the delay file your tax returns early.

8. Prompt Refunds: If you file your claim early, it then helps for faster tax refund process. This processing usually takes more time than the tax which is due. In case you file it later, it may get delayed due to the multiple and numerous applications. In case your tax refund is a sizable amount, you can use it productively by using it early and receive earnings. The more the delay, the higher the chances of missing out on higher interest that you can earn on the amount. 

Moreover, you lose the benefit of getting paid at an interest of @6% p.a. if the refund amount is greater than 10% of the taxable income from the date of filing the income tax return if you submit the returns after the due date.
 
9. Enough time frame to get all your documents: Although the tax filing process has become easy, once you start the process, you may realise that specific additional documentation is needed. Documents like interest certificates, loan repayment statements, TDS certificates, Form 26AS etc., If you start income tax prep early, you will have enough time to request for these documents from the appropriate sources.

10. Elimination of errors: If you file your returns early, you will get enough time to remove errors. In a hurry to meet the deadline, you may forget to include specific sources of income or miss claiming a deduction.

11. The assistance of Tax Return Preparer: If preparing your taxes confusing and time-consuming, you can seek the help of a certified tax return preparer (TRP). Without any delay, avail of the services of a TRP. CAs and TRPs will be flooded with work once the due date approaches; therefore, they may not be able to give sufficient time to resolve any query. By submitting your documents earlier, you will provide them with adequate time to examine your documents and eradicate errors and be able to save tax. You may also save on fees and can negotiate a better rate if you avail of their services early on. The moment they get flooded with clients, they may not even entertain you.

12. Tax planning for the current year: We learn from our blunders. You may have missed availing several deductions last year. If you file returns early, you may get facts on how to save tax in the current financial year. With every passing year, the tax rules are reformed to some extent. Hence, early returns filing may give ideas on how to save on tax for the current financial year. You will be able to optimise better the tax deductions you are eligible. You can also inform your employer if you wish to alter and optimise your salary structure to save more tax.

13. Eliminate stress: Filing your taxes can be stressful. You can avoid the financial stress of being charged a late fee and penal interest. Stress has been known to affect our health adversely. By submitting your tax returns before the deadline, you will be happier with a  host of benefits.

Disadvantages:

1. Carry forward of losses: Assesses are entitled to claim set off for any losses incurred against income earned during the relevant financial year (subject to income tax provisions and rules). Further, an assesses also entitled to carry forward such losses which could not be set off in a particular financial year. However, if an assessee does not file his return of income before the due date, then such losses cannot be carried forward.

2. Deductions under Chapter – VI-A: An assessee is entitled to claim deductions for investments in Provident fund, NSC, Life insurance premium paid, the medical premium paid, etc. However, the same can be claimed if the assesses files his return of income within the specified due date.
Interest under Section 234 ITR includes the sources of income earned during the previous year and the tax liability arising from the same. Income tax liability is required to be paid as per income tax provisions. In case of delay in payment of tax liability, Interest is levied at 1% per month or part of the month.

3. Penalty: In case there is a delay in filing an income tax return without any reasonable cause, the penalty for Rs. 5,000 may be levied. The Assessing Officer does have the power to waive of such penalty. Also, a reasonable opportunity of being heard is given to the taxpayer before the imposition of the penalty. But, it is always better to adhere to the rules instead of getting into the hassles of hearings.

4. Loss in interest on refund: Assesses are eligible to claim a refund in case tax paid is more than the amount of tax liability. Refund is required to be processed and paid within time limits specified in the income tax act. In case of delay in payment of refund, the department is liable to pay interest on the same. If the return is filed late, i.e. after the due date, then interest on refund is reduced for each day of delay.

5. Other implications: Tax returns prove to be of importance while considering tax payer’s creditworthiness. Tax returns are mandatory requirements for any loan application, visa application, etc. Hence, non-filing or late filing of income tax return proves to a hindrance for the assesses in one or more ways. Also, it is essential to note that delay in filing of income tax returns can be condoned by the assessing officer provided there is reasonable cause for delaying.

6. Security: Filing records electronically may not be secured similar to sending them through post or e-mail. Specifically for those who employ an outside or third party service to do the electronic filing for them, you are providing identifying information that the service may keep on file for an extended period. It means that more individuals can have access to your information. In particular, a case where you are supposed to get tax refunds, and you want it done immediately; you will have to provide your bank account number and routing number for the deposit to take place. Thus, your data is less secure.

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Start-ups in India

By: admin Startup 17 Apr 2019

One doesn't need a college degree, bank balance or even business experience to become a great business entrepreneur or to start something that could become the next big thing. Though, what you do need is a definite plan and the drive to see it through.


Things to remember and need to start a business/company


Select a Name and Legal Structure:


There are four types of legal structure/organization, are there you can select any one of them.


· Sole Proprietorship

· Partnership

· Limited Liability Company (LLC)

· Corporation or S-Corporation.


Thorough research of the market:


Is someone already doing what you are planning to start? If not, Why?


Start researching the thing what you have decided to start and collect the information, also, contact people who experienced or have some knowledge about your idea and can help you in this matter.


Writing the Plan:


A written summary of how your business will evolve and from when it will start - to the finished product.


  1. Title page: Start with the name of your business, which is harder than it sounds.
  2. Executive summary: The high-level overview of what the plan includes, the description of the company, the problem the business is facing, the solution, and why now. 
  3. Business description: What business do you intend to start? What does your industry you are entering into look like? What will the industry look like in the future?
  4. Market strategies: What is your target market? How can you sell your best to that market?
  5. Analysis of competition: What are the strengths and weakness of your competitors, How can you beat them?
  6. Development and design plan:  What is your product or service and how you will develop it? Next, create a budget for that product or service.
  7. Management and Operations plan: How does the business function daily?
  8. Financial Factors: Where is the money going to be coming from? When? How? 


Learn as much as you can about the production, development of Business/company, so that you can improve the process and hiring decisions in the long term.


Obtain PAN Number from the Income Tax Department: If you are set up as an LLC, Corporation, or Partnership, apply for a PAN Number from the Income Tax Department.


Opening Company Bank Account: Select a bank of your choice and open the company bank account.


Lease Office, Warehouse or Retail Space: Depending on the type of your business, arrange for office space to be purchased, leased or rented. Contacting a commercial realtor in of your area can be helpful here. And arrange for utilities and office furniture.


Obtain other Licenses and Permits:


· Obtain Director Identification Number (DIN)

· Obtain Digital Signature Certificate

· Reserve the company name online

· Stamp the company documents

· Get the Certificate of Incorporation

· Make a seal

· Obtain a Permanent Account Number (PAN)

· Obtain a Tax Account Number (TAN)

· Register with the Shops and Establishment Act (State/Municipal)

· Register for GST

· Register for Profession Tax at the Profession Tax Office (State)

· Register with Employees' Provident Fund Organization (National)

· Register for Medical Insurance


Hire Employees: Recruit smart and talented individuals and professionals. Keep a balanced team with entrants and experts and delegate tasks based on their experience.


Set up an Accounting System: Set up an accounting system for keeping accounts of the business and timely payments of tax, salaries to employees and other financial transactions


Develop your Business Identity: Make your own logo, letterhead, business cards, and other promotional materials of your business. 


Marketing: Now that you've set up the company, you have to get the word out to reach your customers. Develop a marketing plan for your products and services that target your ideal customer.


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Amnesty Scheme

By: admin Tax 17 Apr 2019

Tax amnesty is an opportunity to pay a fixed amount, in exchange for the remission of liability of tax (including interest and penalties) relating to a previous tax period and without fear of criminal prosecution for limited. 

Amnesty Scheme is introduced in the fiscal year to help treasury of State raising revenue from the tax to add beneficiaries in tax base who have failed to declare their assets previously. Under this scheme, the recipient has to pay some tax on the total assets which are proclaimed in Amnesty scheme. This scheme was introduced when the state believes that citizens are concealing their wealth from their respective authority.

Tax revenue raised through these amnesty schemes is used for the betterment of State. Every individual and company has to report annually about their business activities in a tax return and should file the same to Revenue and Tax authorities of State. Those who remain glassy in declaring their assets and liabilities to the bodies of tax do not get inquiries or investigations.

Tax Amnesty scheme is beneficial to those who are hiding or not declaring their assets transparently for years; they can make their assets legitimate by informing them whether they exist within or outside Country. When such schemes were introduced State Revenue, and the Tax department gave time to declare their wealth without any penalty. Once the time elapses there will be penalty addition to original Amnesty tax rate.

As we know in the city like Mumbai and its Suburbs, the prices of the residential and commercial premises are too high. Also, the government generates revenue from the properties sold in the form of Stamp Duty and Registration charges. Hundred of the transaction of residential premises to purchase/sold is done every year, in that case, most of the purchasers and sellers obediently pay the registration and stamp duty. But it has observed that few hundreds of them have successfully avoided the stamp duty and other charges to save few rupees.

In 2008, the Maharashtra Government had implemented a successful Registration charges and stamp duty Amnesty  Scheme known as "ABHAY YOJANA 2008" where thousands of flat-owners benefited by regularising their flat-ownership agreements and the Government earned revenue from it. The Government closed the said scheme, but there exist more thousand of old and new evaders to save the said duty and charges.

In the year 2019, the Maharashtra Government announced the stamp duty amnesty scheme, where the property purchasers have not paid stamp duty on purchase agreements could regularise the sale by paying tax with a nominal penalty.

The flat owners who did not pay stamp duty on their home – purchase agreements will get a chance to regularise their purchase by paying stamp duty within the specified time under this scheme. Property conveyance cannot be executed unless stamp duty is paid on flat-purchase agreements, which leads to problems later, especially when owners wish to redevelop their buildings. Besides that, getting bank loans against such properties also becomes difficult.

The Amnesty Scheme would help in increasing the goodwill and popularity of the respective government and would also increase the revenue by thousands of crores rupees in return.

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WILL

By: admin Wills 16 Apr 2019

A will or testament is a legal document by which a person, the testator, expresses their wishes as to how their property is to be distributed at death, and names one or more persons, the executor, to manage the estate until its final distribution. For the devolution of property not disposed of by will, we can see inheritance and intestacy.

All wills are required to meet certain standards in order to be considered valid in a court of law. Writing your own will is a relatively straightforward process if your assets and bequests are also straightforward. In these circumstances, as long as you comply with the laws of your state, your will is likely to stand up in a court of law and be executed according to your wishes. Write the introduction to the will. Start by clearly labelling the document “Last Will and Testament.” Next, state your full name and address, and testify that you are over the age of 18, are of sound mind and are not making the will under pressure. Assess and divide your property. List your assets, including real estate, bank accounts, retirement accounts, stocks, bonds, and tangible assets, then assign your heirs a percentage of your total assets. Sign the will. If you have created a will through an online program, you have the document sent to you before signing it then you should sign it. Some states require that your signature be notarized, meaning signed in the presence of a public notary and stamped with the notary’s seal. Ask witnesses to sign the will

We will be discussing some will ahead:-

Simple Wills: Simple will are most often used and all that is needed is direction on how to distribute simple assets from the estate to the beneficiaries. A simple will must be in writing and should be typed instead of handwritten. The general elements of a will are the testator’s name, address and marital status; and instructions as to which property goes to which beneficiaries. The executor for the estate should also be named. The executor should also mention the guardian for any minor children. The testator and the witnesses need to sign and date the will.

Testamentary Trust WillsA testamentary trust will is different because it includes provisions that place a portion of your estate into a trust. Based on the terms of the testamentary trust, your assets are distributed to your beneficiaries, through the trustee who controls those assets. The format of a testamentary trust will is often quite similar to that of a simple will.

Joint WillsJoint wills are often used by spouses who intend to leave their property to one another. The surviving testator will inherit everything on the deceased spouse’s estate. Then, when the surviving testator passes away, the remaining estate will be distributed to the couple’s chosen beneficiaries, pursuant to the terms of the will. One thing to remember is that a joint will cannot be revoked once the first testator dies.  The format of a joint will is also similar to a simple will.

Living WillsThe purpose of a living will is entirely different from that of the three other types discussed here. The purpose of a living will is to provide detailed instructions about the type of medical treatment or life-saving measures you want to be used if you become unable to communicate those wishes for yourself. For instance, your living will specify that in the event you become terminally ill and unconscious, you do not wish to be put on a feeding tube or a ventilator, even if you would die without those measures.

Deciding which property to include in your willThe first step in deciding which specific property should be left to whom, you need to make a list of everything on your own. The next step is to eliminate all property or assets that are not required to go through probate in order to be passed on to your heirs.

Types Of Property And Assets To Include In A Will:

Real property, such as real estate, land, and buildings
Cash, including money in checking accounts, savings accounts, and money market accounts, etc.
Intangible personal property, such as stocks, bonds, and other forms of business ownership, as well as intellectual property, royalties, patents, and copyrights, etc.
• The unproductive property, such as valuable objects like cars, artwork, jewellery, and furniture, etc.

An Executor or Personal Representative needs to be identifiedA necessary component of every will is the identification of a trusted individual to make sure the terms of your will are followed. The executor is responsible for guiding your estate through the probate process and ensuring that your property is distributed to your beneficiaries, according to the will. An executor can either be a professional or a family member or a friend.

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Trademark And Copyright

By: admin Trademark and Copyright 16 Apr 2019

Protection of Intellectual property repeatedly remains un-noticed by the businessmen. Very few businessmen or start-up owners understand the importance of safeguarding their Intellectual Property in the long run. It is therefore highly essential for a business owner, a startup owner, a creative person to have clarity about the Trademark, Copyright.

Trademark: A trademark is a symbol, logo, design, word, phrase, colour, sound or a combination of these which is used for the purpose of trading goods or providing services. It indicates the source of goods and services and distinguishes them from the goods and services of others. It provides individuality of rights to the use of a trademark about the product or service.

Procedure for Registration of Trademark:-
Documents can be filed by a person or through his duly authorised agent to the appropriate office of the trademark registry. The Registry must be in the territorial jurisdiction where the business is located. Documents must be a filed at the office personally through registered post Ad or by submitting Documents on their official website.

Documents must be a filed in Hindi or English; it must be handwritten or typed. It should contain the explicit information/contents of the business, i.e. Name, the address for service of person, details, and grounds, etc.

Types of Trademark;
Product Trademark
Service Trademark
Collection Trademark
Certification Trademark

Section 134 of the Trademark Act, 1999:
Suit for infringement/breach/violation, etc., to be instituted before District Court.—

(1) No suit—
(a) for the infringement of a registered trademark; or
(b) relating to any right in a registered trademark; or
(c) for passing off arising out of the use by the defendant of any trademark which is identical with or deceptively similar to the plaintiff's trademark, whether registered or unregistered, shall be instituted in any court inferior to a District Court having jurisdiction to try the suit.

(2) For the purpose of clauses (a) and (b) of sub-section (1), a "District Court having jurisdiction" shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or any other law for the time being in force, include a District Court within the local limits of whose jurisdiction, at the time of the institution of the suit or another proceeding, the person instituting the suit or proceeding, or, where there are more than one such persons any of them, actually and voluntarily resides or carries on business or personally works for gain. Explanation —For the purposes of sub-section (2), "person" includes the registered proprietor and the registered user.

Copyright: Copyright is a right given to the creators of literary,  dramatic, musical and several other works of the intellect. It usually means that only the creator has the right to make copies of his or her actions or prevents others from making copies. The central idea behind such protection is the premise that innovations require incentives. Copyright recognises this need and gives it a legal sanction. Copyright protects all of them.

Section 62 of the Copyright Act, 1957:
Jurisdiction of court for matters arising: 

(1) Every suit or other civil proceeding arising under this Chapter in respect of the infringement of copyright in any work or the infringement of any other right conferred by this Act shall be instituted in the district court having jurisdiction.

(2) For the purpose of sub-section (1), a “district court having jurisdiction” shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, include a district court within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting the suit or other proceeding or, where there are more than one such persons, any of them actually and voluntarily resides or carries on business or personally works for gain.

The Copyright Act, 1957 gives the rights, procedure, authorities established and relief modes under copyrights. It lays down a definition of copyright and states the types of works preserved under this law, i.e. literary works, dramatic works, artistic works, musical works, cinematograph films, and sound recordings. 


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Introduction To, The Transgender Persons (Protection Of Rights) Bill, 2016

By: admin Others 16 Apr 2019

The Transgender Persons Bill,2016, defines transgenders and prohibit discrimination against them, this bill was introduced in the Lok Sabha a couple of years ago and after a lot of discussions and deliberations, the Bill was passed with 27 amendments.

The Transgender Persons Bill was an outcome of the NALSA Vs India judgment by Supreme Court in the year 2014, which ruled that transgender people should be legally recognized according to their gender identity, enjoy all fundamental rights, and receive special benefits in education and employment.

The objective of the bill is to protect interests of the transgenders and defining the term ‘transgender’, to give them recognition and also setting up of a national transgender council. 

The amendments passed includes a change in the previous definition of transgender persons as “neither wholly female or wholly male”, to the new definition - “the person whose gender does not match the gender assigned to that person naturally at birth and includes trans-men or trans-women, persons with intersex variations, gender -queers, and persons having socio-cultural identities such as kinnar, hijras, aravani and jogta.

Highlights

• It defines a transgender person as someone who is persons with intersex variations,  trans-men or trans-women, gender-queers, and persons having socio-cultural identities such as kinnar, hijras, aravani and jogta. 

• A district screening committee will determine if a person is a transgender and issues a certificate. 

• If the person undergoes sex-change surgery, the doctor will issue the certificate. 

• They can't be discriminated in education, employment, and housing. 

• The right against discrimination at work, the right to not be extended from the property.

• Setting up of Vocational Training Institutes and providing relevant medical facilities.

While it is a positive sign that the government is taking some interest in the rights of transgender persons but this Bill has been criticised on various aspects by experts and the transgender community itself as it lacks details and seems to be passed hurriedly without taking the actual demands of the transgender community. 

Drawbacks

• Bill negates self-identification as prescribed by the SC in NALSA judgment as the bill provides for sex identification by District Magistrate issuing certificates after screening.

• Definition of transgender includes intersex persons, it is not the case that all intersex persons are transgender.

• It criminalises begging, their main occupation as they are left with no option as being discriminated of education, job and healthy wellbeing.

• Bill proposes national transgender commission but nothing about its composition, structure, grievance redressal.

• Supreme Court in NALSA judgment directed to provide for reservation, bill totally ignores the part of the reservation.

• Punishment of imprisonment for a period of six months to two years for sex crimes against transgender people which is much lighter punishment as compared to similar crimes against women.

This bill is a welcome step for rights of transgenders but several amendments are needed in order to do justice with transgenders, empower them as they have been deprived, and denied access to the economic, social, and cultural opportunities that are necessary for leading a dignified life in society.


Note: To learn more about the laws and procedures, you can contact us at Legato app where we help you in connecting with experienced lawyers who can assist you with the documentation and procedural aspects.

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Rafale Deal And All About The Controversy

By: admin Others 16 Apr 2019

What is Rafale?
Dassault Aviation built a series of a twin-engine fighter jet by name Rafale. They are one of the best combat jets. 

Controversy, How It Started?

UPA Deal: India under the UPA government began the process to buy a fleet of 126 Medium Multi-Role Combat Aircraft (MMRCA) in 2007 under the then Defence Minister, A.K. Antony.

Lockheed Martin's F-16s, Boeing's F/A-18s, Eurofighter Typhoon, Russia's MiG-35, Sweden's Gripen, and Dassault Aviation's Rafale were the contenders for the deal.

After a long process, Dassault Aviation emerged as the lowest bidder in December 2012, the original proposal was manufacturing 18 planes in France and other 108 in collaboration with the Hindustan Aeronautics Ltd. at India. Lengthy negotiations took place between the then UPA government and Dassault on prices and transfer of technology. The negotiations continued till 2014 but the deal could not go through.

NDA Deal: Prime Minister Narendra Modi during his visit to France, announced India will purchase 36 Rafale jets in a government-to-government agreement. On April 10, 2015, a joint statement was issued after talks between Modi and the then French President Franois Hollande, which said they agreed to conclude an Inter-Governmental Agreement for the supply of 36 Rafale.

The statement said the Inter-Governmental Agreement for  supply of the aircraft in terms of agreement and  the delivery would be in such time-frame that it would be compatible with the operational terms of IAF; and that the aircraft and  related systems and weapons would be delivered as the same configuration which was tested and approved by Indian Air Force, and longer maintenance responsibility by France.

Chronological order of whole Rafale deal:

- 30th December 2002: Defence Procurement Procedures (DPP) adopted to streamline procurement procedures.

- 28th August 2007: Ministry of Defence issues Request for Proposal for procurement of 126 MMRCA (medium multi-role combat aircraft) fighters.

- 4th September 2008: Reliance Aerospace Technologies Ltd (RATL) incorporated by Reliance group.

- May 2011: Rafale and Eurofighter jets shortlisted by Air Force.

- 30th January 2012: Dassault Aviation’s Rafale aircraft comes up with the lowest bid.

- 13th March 2014: HAL and Dassault Aviation signed a Work Share agreement which made them accountable for the 70 per cent and 30 per cent of the work, respectively, for 108 aircraft.

- 8th August 2014: Arun Jaitley, the then defence minister tells Parliament that 18 direct ‘fly-away’ aircraft expected to be delivered in 3-4 years and remaining 108 aircraft to be delivered in the next seven years from signing of the contract.

- 8th April 2015: The then foreign secretary says detailed discussions underway between Dassault, MoD and HAL.

- 10th April 2015: New deal for the acquisition of 36 direct ‘fly-away’ aircraft from France announced 2016.

- 26th January 2015: India and France sign MoU for 36 Rafale aircraft.

- 23rd September 2015: Inter-governmental agreement signed.

- 18th November 2015: Government states in Parliament that all aircraft will be delivered by April 2022 and the cost of each aircraft to be approximately Rs 670 crore.

- 31st December 2015: Dassault Aviation’s Annual Report shows the actual price paid for the 36 aircraft at about Rs 60,000 crore, more than double the government’s stated price in Parliament.

- 13th March 2018: PIL in SC seeks independent inquiry into Centre’s decision to procure 36 Rafale fighter jets from France and revealing of the cost involved in the deal before Parliament.

- 5th September 2018: SC agrees to hear PIL seeking a stay on Rafale fighter jet deal.

- 18th September 2018: SC adjourns hearing on PIL seeking a stay on Rafale fighter jet deal to October 10.

- 8th October 2018: SC agrees to hear on October 10 fresh PIL seeking direction to Centre to file in “sealed cover” the details of the agreement for buying 36 Rafale fighter Jets.

- 10th October 2018: SC asks Centre to provide details of the decision-making process in the Rafale fighter jet deal in a sealed cover.

- 24th October 2018: Former Union ministers Yashwant Sinha and Arun Shourie and activist-lawyer Prashant Bhushan moves SC and seeks for filing of FIR into Rafale fighter jet deal.

- 31st October 2018: SC asks Centre to give pricing details of 36 Rafale fighter jets within 10 days in a sealed cover.

- 12th November 2018: Centre provides the price details of 36 Rafale fighter jets in a sealed cover to SC. Along with details of steps that led to the finalisation of the Rafale deal.

- 14th November 2018: SC reserves order on pleas seeking court-monitored probe in Rafale deal.

- 14th December 2018: SC says there is no occasion to doubt the decision-making process of the Modi government and dismisses all the petitions seeking direction to the CBI to register an FIR for alleged irregularities in the jet deal.

- 15th December 2018: Government moves SC and seeks correction in para which makes reference to CAG report and PAC.

- 2nd January 2019: Former Union ministers Yashwant Sinha and Arun Shourie and activist-lawyer Prashant Bhushan moves SC and seeks for review of Rafale verdict.

- 14th January 2019: Sanjay Singh, AAP MP, moves SC seeking review of Rafale verdict.

- 21st February 2019: Activist-lawyer Prashant Bhushan seeks to hear on a plea seeking perjury prosecution of some officials for misleading court.

- 26th February 2019: SC decides to hear pleas seeking review of Rafale verdict in open court.

- 6th March 2019: Documents related to Rafale deal stolen from Defence Ministry, Centre tells SC, threatens The Hindu newspaper for publishing articles against them.

-8th March 2019: K.K. Venugopal, Attorney General explains that Rafale documents not stolen, petitioners used photocopies.

- 13th March 2019: Centre tells SC, review plea based on leaked secret documents endangers national security.

- 14th March 2019: SC says, Will first decide preliminary objection raised by Centre and reserves verdict.

- 10th April 2019: SC dismisses Centre’s objections claiming privilege and allows the use of leaked documents.

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Child Custody Under Muslim Law

By: admin Child Custody 12 Apr 2019

The right to a child’s custody is given solely to a mother till she is as fit guardian under Muslim personal law, this is called the power of Hizanat also it can be enforced against any person including the father.

One thing that must be taken under consideration is that the mother’s right to child custody is not absolute and exists only if such power is in the interest and benefit of her children. Thus, the welfare of the children is at the forefront of Muslim law. The first and foremost right to have the custody of children belongs to the mother, and she cannot be deprived of her liberty so long as she is not found guilty of misconduct. Mother has the right to custody so long as she is qualified. This right is known as the right of Hizanat, and it can carry out against the father or any other person. The mother's power of Hizanat was recognised in the interest of the children and no sense; it is an absolute right.''

Son: Among the Hanafis, it is an established rule that the mother's right of Hizanat over her son ends following her son completes the age of 7 years. The Shias hold the view that the mother is entitled to the custody of her son until he is accustom. Among the Malikis, the mother's right of Hizanat over her son continues until the child has attained the age of puberty. The rule among the Shafiis and the Hanabalis remains the same.''

Daughter:  Among the Hanafis, the mother is entitled to take custody of her daughters till the age of puberty, and among the Malikis, Shafiis and the Hanabalis the mother's right of custody over her daughters continues till they are married. Under the Ithna Ashari Law, the mother is entitled to the custody of her daughters until they attain the age of 7. The mother has the right of custody of her children up to the periods specified in each school, irrespective of the fact whether the child is legitimate or illegitimate. Mother cannot surrender her right to any person, including her husband, the father of the child. Under the Shia school after the mother, Hizanat belongs to the father. In the absence of both the parents or on their not being qualified, the grandfather is qualified to custody.

Among the Malikis following females are allowed to take charge in the absence of mother: 
  1. Maternal grandmother
  2. Maternal great grandmother
  3. Maternal aunt and great aunt
  4. Full sister
  5. Uterine sister
  6. Consanguine sister
  7. Paternal aunt

Father's right of Hizanat: All the schools of Muslim law recognise the father's power of Hizanat under two conditions that are:
  1. On the completion of the age by the child up to which mother or other females are qualified to custody.
  2. In the absence of a mother or other females who have the right to Hizanat of minor children. Father undoubtedly has the powers of selecting a testamentary guardian and entrusting him with the custody of his children.

Other male relations entitled to Hizanat are:
  1. Nearest Paternal Grandfather
  2. Full Brother
  3. Consanguine Brother
  4. Full Brother's Son
  5. Consanguine Brother's Father
  6. Full Brother of the Father
  7. Consanguine Brother of the Father
  8. Father's Full Brother's Son
  9. Father's Consanguine Brother's Son
Among the Shias, Hizanat belongs to the grandfather in the absence of the father.

The Shia law is very definite and lays down that a person who has ceased to be Muslim is not entitled to the custody of the child. Also, having who marries a person not related to the child within the degrees of prohibited relationship forfeits her right of Hizanat. The cardinal principle of Hizanat in Muslim law is the “welfare of the child”. The rights of Hizanat cannot be taken away on account of her insufficiency or want of money to maintain the child. Also, neither the father nor the mother has the right to remove the child from the marital home.

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Business Marketing in India

By: admin Business 12 Apr 2019

India is said to be one of the largest consumer markets in the world, with its range of the vast population of middle-class consumers. India is a complex and diverse consumer market, and it is essential to develop marketing strategies and products as per the preferences of Consumer. As there is a massive competition from both small and large local retailers and international companies, it is necessary to consider the diversity of cultural backgrounds, differing levels of wealth and the sheer size of both the land mass and the population.

The best way to tackle the complexities of the Indian market for advertising purposes and marketing is to fund in and hire local knowledge. A complete marketing plan that considers core elements such as brand, stakeholder management, public relations, media, and the product or brand value proposition is essential. However, you will need to re-evaluate your marketing strategy and plan accordingly continually. The Indian socio-economic environment is continuously changing and evolving, which in turn impacts on consumer choices.

Awareness of Brand 

Indian economic-class consumers place strong importance on brands, particularly on luxury brands. Status is a crucial factor – particular people will purchase luxury goods only to show their achievement. You should have a specific strategy focusing on brand localisation, brand building, and awareness creation. 

Price Consciousness

For everyday commodities, the price is an important consideration for consumers, particularly at the lower-economical category and lower-income levels. As opposed to status items on which economically strong Indian buyers are willing to shell out more, non-status products are likely to be chosen based on price. 

Demographic Dynamics

India’s middle and upper-middle income households in major cities are needing quality across a wide range of services and products, especially those that focus on health and wellness, as well as education. The rural consumer market in India, is mainly underserviced at the moment for health and welfare of goods and services, education and other consumer goods and services, leaving ample opportunity for growth. 

Logistics

India is still a developing country which has a few highly developed logistics supply chain than in Australia and many of Australia’s traditional, more developed export markets. Less-developed infrastructure in some poorer regions, this may cause delays in getting goods to consumers and markets. 

Product and Service Adaptations

You might need to change your product to meet Indian requirements or preferences. Changing to regional regulations, tastes and cultural preferences mainly increases your chances of success.

Brand Marketing and Advertising

Language, symbolism and culture need to be studied when marketing and advertising in India. Advertising is subject to some regulation in India. Implementation of these regulations is not as strict as in some other countries unless an advertisement incites public outrage.

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Banking in India

By: admin Banking 11 Apr 2019

Introduction
 
Reserve Bank of India (RBI) states that India’s banking sector have been well-regulated and adequately capitalised.  Market, credit and liquidity risk studies propose that Indian banks are generally flexible and have withstood the global downturn well.
 
Recently the Indian banking industry has witnessed the roll-out new banking modules like small finance and payments banks. RBI’s current measures may go a long way in helping the restructuring of the domestic banking industry.
 
The Indian banking system consists of public sector banks, private sector banks, foreign banks, regional rural banks, urban cooperative banks, and rural cooperative banks, in addition to cooperative credit institutions.
 
Government Initiatives
 
Indian banks are continuously focusing on adopting an integrated approach to risk management. Banks have already embraced international banking supervision. 
 
Reserve Bank of India (RBI) has decided to set up the Public Credit Registry (PCR) an extensive database of credit information which is accessible to all stakeholders. 
 
Recently, the Indian banking industry has witnessed a historical decision of demonetization which has to lead to an excellent liquidity crunch. The impact of this liquidity shock on India’s GDP is still questionable and is under the evaluation of experts, but it is certain that all monetary transactions will come under the banking system which will lead to the next big step in the expansion of Indian Banking system.
 
The objectives of this research articles are to show the growth in the banking sector, technological development and computerisation in the Indian Banking sector. Technology enhances choices, create new markets and improves productivity and efficiency. Rising incomes are expected to increase the need for banking services in rural areas and therefore drive the growth of the sector. As of September 2018, Department of Financial Services (DFS), Ministry of Finance and National Informatics Centre (NIC) launched Jan Dhan Darshak as a part of financial inclusion initiative. It is a mobile app to help people locate financial services in India.
 
Demonetization
 
Demonetization has raised the deposit funds in the Indian Banks. It led the banks to keep a significant part of deposits in the form of cash deposits.  Sizes of deposits have gone up as the unaccounted money in the way of Rs.500, and Rs.1000 were flowing to the Banks. Post demonetization, several banks lowered their domestic term deposit rates and lending rates. Surplus liquidity conditions have helped facilitate the transmission of monetary policy to market interest rates.
 
Demonetization has pushed the public to digital banking. A cashless economy is one in the flow of cash within an economy is insubstantial, and all transactions have to be via electronic channels such as, credit, direct debit and debit cards, electronic clearing, payment systems such as Immediate Payment Service (IMPS), National Electronic Funds Transfer and Real Time Gross Settlement in India. Demonetization has led to an increase in the use of plastic cards, line Banking, an opening of new accounts, the number of customers in the branches and the use of ATM.
 
Note: To learn more about the laws and procedures involved, you can contact us at 'Legatoapp' where we help you in connecting with experienced lawyers who can assist you with the documentation and procedural aspects.
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Causes For Railway Accident

By: admin Accidents 10 Apr 2019

When a train accident occurs, there are multiple parties who may be held liable for any pain and suffering, loss of income, medical costs and other costs associated with a train accident. Responsible parties may include the company that owns and operates the train, the employees of the train, manufacturers or suppliers of any defective parts of the train, or any other party that contributed to the train accident.
 
Common Causes Of Train Accidents;
 
1) Human Error:- Human error also continues to be the leading cause of many train accidents throughout the country.  However, train accidents caused by human error must continue to be addressed through heightened requirements and increased penalties/fines. The umbrella term “human error” includes the following:
Engineer distraction
- Excessive speed
Failure to timely brake
 
2) Track and Roadbed Malfunctions:- Broken rails and track issues still remain a common cause of train derailments. However, this is a decreasing factor, nowadays. This substantial decrease has been due to the concerted efforts of many different organizations to tackle this ongoing problem and prevent the loss of life caused by train accidents.
 
3) Mechanical Failure:- Mechanical failure does play a larger role in train accidents and derailments.  Trains must be regularly serviced to stay in working condition, and the failure to notice an obvious issue with the train performance could lead to a devastating accident in the future.
 
Railway Claims Tribunal: The administration of the Railways is not limited only to the running of the Railway, it is something beyond that. The functioning of the Railways also includes issues like the loss or damage to the goods of passengers travelling in the trains, non-delivery of the goods, thefts, accidents causing injuries and death of the passengers as well as of the common people and many more issues. Substantive liability of the Railway Administration for these issues is laid down in the Railway Act, 1989. 
This act provides the speedy justice to the rail users and passengers by way of expeditious payment of compensation to the victims of rail accidents, to give compensation to the people whose goods are lost or damaged while with railways. To provide better access to the people across the country, various benches of the tribunal are established in the country.
 
Jurisdiction of the Tribunal: The Railway Claims Tribunal exercises all such jurisdiction, powers, and authority as were exercisable immediately by any Civil Court or a Claims Commissioner appointed under the provisions of the Railways Act which are related to the responsibility of the railway administrations as carriers under Chapter VII of the Railways Act in respect of claims related to:
Compensation for loss, destruction, damages, deterioration or non-delivery of animals or goods entrusted to a railway administration for carriage by railway,
- Compensation is payable under Sec. 124 & 124A of the Railways Act of the rules made thereunder; and
- Claims for refund of fares or part thereof or for the refund of any freight paid in respect of animals or goods entrusted to a railway administration to be carried by railway.
- The RCT (Railway Claims Tribunal) to provide better access to justice for the people has its benches throughout the nation. There are basically 21 benches of the RCT (including the principal bench at Delhi) at 18 major cities. 
 
Procedure Followed by the Railway Claims Tribunal
- Section 18 of the Railway Claims Tribunal Act, 1987 talks about the procedure and powers of Claims Tribunal.
- The Claims Tribunal shall not be bound by the procedure which is laid down by the Code of Civil Procedure, 1908 (5 of 1908).
- But, it shall be guided by the principles of natural justice and subject to other provisions of the Act and of any rules.
- The Claim Tribunal is having the power to regulate its own procedure including the fixing of places and times of its inquiry.
 
Power of the Railway Claims TribunalThe Section 18 of the Railway Claims Tribunal Act, 1987 mentions that for the purpose of discharging its functions under this Act, it shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908, while trying a suit.
 
Compensation: The Railway Claims Tribunal provides quick reliefs and early payments of compensation in the following cases.
- For loss, destruction, damage, deterioration, non-delivery of animal/goods booked by railway or for the refund of fare or freight in case the claimant is not satisfied with the relief that was provided by the railway administration.
- Death and injury in case of railway accident & untoward, in this case, the claimant has to file the claim directly before the Railway Claims Tribunal.
 
Acts and Rules governing the Railway Claims Tribunal
 
1) The Railway Claims Tribunal Act, 1987:- 
- the jurisdiction, powers, and authority which may be exercised by the Claims Tribunal;
- the procedure (including provisions as to limitation) to be followed by the Claims Tribunal;
- the exclusion of jurisdiction of all Courts exercising ordinary civil jurisdiction relating to specified claims for compensation and refund against the railway administration;
- the transfer to the Claims Tribunal of any suit or other proceeding, other than an appeal pending before any Court or other authority immediately before the establishment of such Claims Tribunal as would have been within the jurisdiction of such Claims Tribunal if the cause of action on which such suits or proceedings are based has arisen after such establishment.
 
2)The Railway Claims Tribunal (Procedure) Rules, 1989:
- These are the rules made by the Central Government dealing with the procedure for filing applications, application fees, the document to accompany the application, and other rules.
 
3)The Railway Accidents And Untoward Incidents (Compensation) Rules, 1990: 
- These are the rules made by the Central Government dealing with the claim of compensation, limit of compensation given in the case of the Railway Accidents and Untoward Incidents.
 
Note: To know more about the laws and procedures involved, you can contact us at 'Legatoapp' where we help you in connecting with experienced lawyers who can assist you with the documentation and procedural aspects.
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