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Personal Data Protection Bill, 2019
  • By: admin
  • Date: 15 Jan 2020
  • Others
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Introduction

Data Protection refers to the procedures and policies inviting to minimize the intrusion of privacy of an individual by collecting and using the data. In December 2019, a bill named as Personal Data Protection Bill was introduced in Lok Sabha by the Minister of Electronics and Information Technology, Mr Ravi Shankar Prasad. A decade agoin India, the Information Technology Act, 2000 was passed by the government to protect the information of individuals. However, the new bill has enacted a separate law for the personal data, in the hopes that India will face a significant positive change.

The Personal Data Protection Bill, 2019 refers to the fundamental right of “Right to Privacy” by the honourable Supreme Court of India, in the famous case of Puttaswamy VS Union of India.

The Government of India has now realized the need for an act which will solely look into the matters related to the right of privacy and to protect the data of an individual. The Bill has been passed in the Lok Sabha and has now been passedto the Standing committee.

 

History

 

In recent years, India haspassed through several technological developments which have led to the huge amount of data generation through various activities and the need to protect this data has also increased. Many companies rely on this data to make important decisions in a firm. Even the government for its state affairs and benefits depends upon the large scale collection and usage of this data. One such example of this is the biometric identification and Aadhar verification by the government.

A petition in Supreme Court of India was filed in the year 2012 challenging the constitutional validity of Aadhar on the grounds of that it violates the individual’s right to privacy. After this in August 2017, a Supreme Court bench consisting of 9 judges declared the right to privacy as a fundamental right of Indian citizens. The court alsostated that the right to privacy is protected by the right to life and personal liberty under Article 21 of the constitution. The court also observed that privacy of personal data and information or “informational privacy” is also a characteristic of right to privacy.

Other countries formulated regulatory bodies and frameworks a while agoto protect an individual’s personal data. Taking cognizance of this, in July 2017, a committee of experts was formulated under the chairmanship of Justice B.N. Srikrishna to:

  1. Research issues related to the protection of data
  2. Find solutions through which an individual’s data could be protected
  3. Suggest a Bill for the same so that it can be enacted in legislation

Finally, on July 27, 2018, the Bill was presented to the Ministry of Electronics and Information Technology which asked for the protection of an individual’s personal data in a manner through which data would be protected and the regulatory bodies set up could oversee the data processing method.

 

Protection of Data through the Bill

 

The data protection Bill imposes few obligations on the entities which have the right to control the data, and these entities are known as “Data Fiduciaries”. These fiduciaries can determine the purpose and means of its processing, and it includes both government as well as private entities. The person whose data is referred or processed is known as “Data principal”. If these compliance obligations are not been followed, then the burden is shifted to the data fiduciary.

The obligation mainly includes:

  1. It has now become essential to let the data principal know before collecting their data.
  2. To make sure that the data which is stored is accurate and correct.
  3. The data shouldbe stored and processed only for specific reasons.
  4. A valid consent has to be taken from the data principal before processing the data. If the purpose is to transfer the data to any third party, then the consent required under such circumstance is relatively of a higher degree.
  5. Under this Bill, one of the major obligations is to provide the data principal with certain rights. He/she should have the right to erase, protect, access, correct, and prevent disclosure of the data.

The obligations are structured in such a way that it secures the position of the data principal and also gives them ownership.

The Regulatory body/Adjudicatory body is called the “Data Protection Authority” which will check and imposepenalties for non-compliance of the above-mentioned obligations. It is considered as an overlooking authority which will look into all the matters related to the Bill.

 

Exemptions under the Bill

 

Though the Bill is enacted for the majority of the firms of India, it still has certain exemptions:

  • Manual processing done by the small entities is not mandatory as they don’t have the sources to implement such commitments.
  • The entities which process data for BPO industry, research industries, and for statistical purposes are also excluded whether it is a public or private company.
  • The entities which work in relation to legal proceedings, journalist purposes, national security, prevention, detection, investigation and prosecution of contraventions to law, or for personal and domestic purposes are also exempted from the obligations of data fiduciaries.

Apart from the above exemptions, there is a specific exemption which only applies to the Government. The Central Government can exempt any of its agency from all the provisions of the Bill and such agency which can also be referred as data fiduciary will be able to process all the data of the data principals ( without informing them ). The list of such exempted agencies can also be formatted from time to time, which means such agencies can be added or subtracted on a timely basis.

 

The vested interest of the Government

 

Data protection authority has been formed to look after all the matters related to the data processing methods of the data fiduciaries. These data fiduciaries are obligated to work under the procedure laid down by the Bill and therefore, a regulatory body has been formed to keep a regular check. If the regulatory body is not formulated, then the obligations imposed on the data fiduciaries is meaningless as there would be no procedure through which this data fiduciaries could be held responsible.

Data Protection Authority will look after matters such as:-

  • how the consent is taken from the data principal,
  • the method through which data is processed,
  • deletion of the data, the safeguards used to protect the right of the data,
  • form of manner and maintaining records, etc.

But a “Memorandum” attached to the Bill, clearly states that making of any regulations by the Data Protection Authority may make such regulations only with the due consideration of the Central Government. The regulatory body has to be formed by the Central Government.

This control of the Data Protection Authority by the government is a clear picture of the vested interest of the government in the powers to make rules and regulations for the data fiduciaries. The government will act as a data fiduciary and on the other hand, it will also be involved in controlling the obligations of data fiduciaries. Therefore, this role of government where it plays both the victim and the attacker is highly questionable and will require certain amendments or removal of such memorandum.

 

New terms enacted in the Bill

 

With the formulation of a new Bill, the Government of India has also enacted certain new terms in the Bill. Those terms are:

  1. Sandbox

However, the creation of a sandbox is slightly questionable as these fiduciaries would be allowed to access the personal information of an individual without any obligation, thus violating the fundamental right of Indian citizens that is “right to privacy”.

 

  1. Non-Personal Data

It was highly recommended that the Bill should be only limited to the personal data of an individual which reveals personal information. In fact, the Bill which was drafted in 2018 by the Srikrishna committeeclearly stated that the Bill is applicable only to the Personal and not the anonymized data.Quashing this, the new Bill proposed in Lok Sabha takes in consideration the non-personal or anonymised data too leading to better formulating of evidence-based policy by the Central Government.

This consideration is questionable as non-personal data of an individual has no direct connection with the right to privacy. Further, most of the companies which are data fiduciaries legally have the right to process the non-personal data which they have generated through the databases.

 

  1. Social Media Role

The Bill introduced a new concept known as Social Media Intermediary and empowers the government to make some social media intermediaries as the “significant data fiduciaries”. These fiduciaries will have to follow all the norms and regulations laid down by the Data Protection Authority once the Bill is enacted.

These social media intermediaries will then be verified by the Data Protection Authorityand will show a verification mark. The documents required to get the verification mark will further depend on the type of social media intermediary, thus leading to biases and partiality.

 

Loophole of the Bill

 

In the proposed Bill, there has not been any timeframe given within which the Data Protection Authority will be formed which will regulate the working of the data fiduciaries. On the other hand, as soon as the Bill becomes an act, the government will be allowed to access the data without any obligations due tothe exemption policy mentioned in the Bill.

 

Conclusion

 

The Personal Data Protection Bill, 2019 has been proposed in Lok Sabha and is yet to be passed by the Rajya Sabha. The Bill will work in favour to protect the individual's data, thus protecting the right to privacy and other fundamental rights of the Indian citizens. Once the Bill is passed in the Rajya Sabha itwill formulate to become an act. The Bill will be helpful to access the data legally with obligations.

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Citizenship Amendment Act, 2019

By: admin Others 12 Dec 2019

Citizenship Amendment Bill, 2019 (CAB)

 

The citizenship amendment bill, 2019, also referred to as CAB was introduced to make changes in the Indian Citizenship Act, 1955. It provides to make migrants who are Hindus, Jains, Parsis, Buddhists, Sikhs and Christians from Bangladesh, Pakistan and Afghanistan who have entered India before or on 4th December 2014, will be eligible for Indian Citizenship.

 

Introduction

 

During the time of 2014 LokSabhaelections, the Bharatiya Janata Party promised the refugees to give them shelter in India. Narendra Modi promised to welcome the refugees from Bangladesh and Pakistan. Due to this promise, a bill named as Citizenship Amendment Bill, 2016 was introduced. However, this bill faced a lot of protest from Assam during that time. Assam’s chief concern was the unstable democracy of that time.

In the year 2019, the Bharatiya Janata Party, during elections again tried to bring this bill in the picture. In January 2019, the citizenship amendment bill, 2019 was introduced by the central government. It was important to introduce this bill as the National Register of Citizens (NRC) states that around 1.9 billion people in Assam were without citizenship.

 

Amendment

  • The bill further states that the time period, which was a necessary requirement for naturalization (a method of granting citizenship)was capped at 11 years which will be now reduced to 5 years for these migrants.
  • Even the OCI i.e. Overseas Citizen of India (under the citizenship act, 1955) registration is amended. The registration of OCI (generally asked by those whose spouse is Indian) grants people the right to travel to India and work and study in the country. The amendment relates to the possible cancellation of registration   that may get cancelled by the central government if any of the relating laws are violated or not followed.

 

What does the bill say?

On gaining Indian citizenship:-

  • The refugees would be considered as citizens of India from the date of their entry.
  • All the legal proceedings against them would be closed.

 

Why?

The bill mainly covers six communities which are Hindus, Jains, Parsis, Buddhists, Sikhs and Christians. The Citizenship act of 1955 states that an illegal migrant cannot stay in India. Illegal migrants are those people who enter India without valid papers/documents or the ones who stay on the land beyond the permitted time. Illegal migrants are also known as Refugees. This step specifically aimsto give a safe place to the refugees in India

 

Who is going to be affected the most?

According to the Intelligence Bureau, approximately 30,000people will benefit from this amendment bill. The bill is most likely to affect the  seven northeastern states as the most number of refugees are nestled there, thus affecting the demography of those states. However, the central government has stated that this bill will not affect the tribal areas of Mizoram (Chakma district), Tripura, Meghalaya (Garo Hills), and Assam (KarbiAnglong). Moreover, this bill will not be applicable to the states that fall under “Inner Line Permit”. Currently, Arunachal Pradesh, Nagaland, and Mizoram fall under such a category. On Monday, Home Minister of India Amit Shah mentioned that Manipur  would be considered under “Inner Line Permit.”

Criticism

 

This bill has been facing a lot of opposition from various organizations and parties as it is applicable to only certain religions. It has also been said that the Citizenship Amendment Bill questions Article 14 of the Indian constitution which states that Equality before the law and everyone should be treated equally before the law and not discriminated the basis of  caste, religion, sex, or creed. India being a secular state, it questions the preamble of the constitution.

Research and analysis wing (RAW) has also said that CAB can be misused in India. It could bring legal instability in the country.

People are also raising objections like why other neighbour countries like Sri Lanka, Tibet, and Myanmar have not been included.

 

Support

 

One of the biggest name in national and International law, Harish Salve came in support of The citizenship amendment bill, 2019. He said this bill doesn’t violate article 14, 15, or 21 of the Indian constitution. He further said this bill is not anti-Muslim.

Majority of the northeastern states in Loksabha supported this bill as they said, the bill has no provisions which might harm the democracy of states.

Prime Minister Modi said, he was very happy and delighted to see that the bill passed with a great majority in Lok Sabha.

During a debate, Amit shah said, such bill won’t have any impact on the Muslim Community.

 

From A Bill To An Act

 

The bill was cleared by the union cabinet on 4th December 2019. LokSabha, after a rich and extensive debate, passed the bill on 9th December 2019 with 311 votes in favour and 80 votes against it. On 11th December 2019, the bill was passed in the RajyaSabha. The bill was passed with 125 votes in favour and 105 against it.

A bill becomes an Act only after the approval of the President of India. According to an official notification, the Amendment Act was published in the official gazette. On 12th December, President Ram NathKovind on Thursday gave his assent to the Citizenship (Amendment) Bill, 2019, turning it into an Act.

 

Conclusion

 

  • Every coin has two sides; likewise, the citizenship Amendment Act has its own positive and negative aspects.
  • In the coming years, the economy will be profoundly affected by this step. The LokSabha elections which will take place in the year 2024 will have a significant impact due to this bill.
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Rights of Children in India

By: admin Others 13 Nov 2019

The future of the nation depends upon the growth and development of Children in the country. It is the state’s duty to look after the development of children as they are the future of India. The Indian constitution defines certain rights for the citizens of the country, which also includes the rights of children directly or indirectly. In India, child rights must go beyond human rights which exits to ensure fair and proper treatment of the people across the country.

The Convention on the rights of child defines the term ‘child’ as a person below the age of eighteen years unless the majority is defined differently under the applicable law governing children.

In India, the Constitution defines a person below the age of fourteen years as children. Also, the Children Act, 1960,  defines a child as a person who has not attained the age of 16 years in the case of the boy and 18 years in the case of a girl.

 

Constitutional Provisions

The constitution, in its fundamental rights and directive principles, guarantees the rights granted to children in India.  The constitution accords the right to children as citizens of the country and also, due to their special status,  certain special laws are enacted for this purpose.

In 1950, the constitution included the Rights of Children in the provision of fundamental rights and directive principles. Many individuals and activists have approached the apex court for the amendments relating to the rights of children.  There are certain constitutional provisions for children.

 

Right To Education

Article 21 A has listed down the rights of the child to get free education for all children in the age group of 6-14 years in a manner as determined by the state.  The apex court in its liberal interpretation of life and liberty under article 21 held that liberty includes the right of a human being to live with dignity along with the right to education.

Article 45 of the Constitution lays down that the state shall endeavour to provide early childhood care and education for children until they attain the age of six years. Article 45 is the provision for free and compulsory education for all children. Right to free primary education is significant for helping children to develop discipline, life skills and to find a safe and healthy environment to nurture the physiological development of the child.

Article 51 A specifically states that it shall be the fundamental duty of the parent and guardian to provide opportunities for education to his child between the age of six and fourteen.

In the case of P Unnikrishnan vs State of Andhra Pradesh, the apex court included the right of education under the ambit of right to life. The Court observed that education is a preparation for living and therefore concluded that every citizen has a right to education.

 

Right To Be Protected Against Exploitation

Article 23 explains the prohibition of human trafficking and forced labour. The Indian Penal Code and Criminal Procedure Code have separate provisions to prohibit human trafficking in order to track and govern these heinous crimes.

Article 24 lays down the prohibition of employment of children. It states that no child below fourteen years of age shall be employed to work in any factory or be engaged in any hazardous employment that may directly or indirectly affect the healthy growth of the child

The apex court in case of MC Mehta vs State of Tamil Nadu noted that the menace of child labour was widespread in India and that is the reason; the court issued wide directions against prohibiting the employment of children below the age of 14 years and making arrangements of the funds for their education.

The exploitation extends to abuse, negligence and violence against children. The child cannot be made to work in difficult or dangerous conditions.

Article 39(e) states the right of the child to be protected from being abused and forced by economic necessity to enter any occupation unsuited to the age and strength of the child.

It is the right of a child to get equal opportunities and facilities for his personal growth and development. Along with this the children also have  equal rights as the citizens of India, which includes the Right to equality (Article 14), Right against Discrimination (Article 15), Right to personal liberty (Article 21), Right to be protected from being trafficked and forced into the labour ( Article 23), Right to the standard living and improved public health (Article 47).

 

Constitutional Remedies For Infringement Of Rights Of The Child

If the fundamental rights of the children are infringed, the Indian constitution laid down several provisions for constitutional remedies through Article 32 and 226. Article 32 states that a person has the right to move the Supreme Court for protecting his fundamental rights. According to article 226, a person may approach the High Court for the same reasons as mentioned above, however, it is not necessary that the right should be a fundamental right in order to take legal action under these provisions.

Public Interest Litigation may be filed in the apex court or the high court against the government by virtue of article 32 and 226 for the protection of rights of the child.

Some of the other important acts, legislations and policies framed by the government for the protection of child right are

  • Indian Penal Code, 1860
  • Guardian and Wards Act, 1890
  • Child Marriage Restraint Act, 1929
  • Immoral Traffic Prevention Act, 1956
  • The Women’s and Children’s Licensing Act, 1956
  • Probation of Offenders Act, 1958
  • Child Labour (Prohibition and Regulation) Act, 1986
  • Juvenile Justice (Care and Protection of Children) Act, 2000
  • Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Amendment Act, 2000
  • Protection of Children from Sexual Offences Act, 2012
  • Orphanages and other Charitable Homes (Supervision and Control) Act, 1960
  • National policy for Children, 1974
  • Bonded Labour System (Abolition) Act, 1976
  • Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substance Act, 1987
  • Prohibition of Child Marriage Act, 2006
  • The Child Labour (Prohibition and Regulation0 Amendment Act, 2017

 

Conclusion

The rights of the child need to be protected in order to promote the well-being of the child since they require more protection than other people who have attained majority due to the set of unique needs stemming from their vulnerabilities.  Every single child of the country deserves equality, no matter what colour, race, religion, language, gender define them.

Children with their development process can flourish and in turn, benefit the nation as they are the future of the Country. India, with the help of various international and national mechanisms, is constantly trying to secure the rights of the children.

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Regulations for firecrackers during Diwali

By: admin Others 25 Oct 2019

Diwali is termed as one of the most popular festivals in Hinduism. This festival depicts the victory of light over darkness, good over the evil. Every household, shops and other establishments are illuminated for the period of five days during the festival. But, these days the celebration of Diwali is harming nature in a disastrous way.

Diwali includes a ritual of burning crackers throughout the country, which results in air and noise pollution. People in India, under the influence of such a ritual, burn millions of crackers resulting in disastrous damage to the atmosphere. Considering the fact of the increasing population and the use of vehicles have already degraded the climate to an alarming stage, various measures have been implemented or are in the process to reduce pollution, whereas crackers in Diwali has proven to be an added disadvantage to the ecosystem.

Crackers and its harmful pollutant chemicals have been a principal cause of asthma, bronchitis and other lung diseases. Noise is an additional terrible element in the cracker, causing pollution. Elders and kids especially suffer from a problem relating to noise such as hearing deficiency, mental stress, headache and many other diseases. Crackers not just add air and noise pollution, but also lead to land pollution as the leftover of cracker results in degrading the quality of the land.

STATISTICS

Statistically, the environmentalist says that one day of burning cracker in Diwali has proven to increase global warming amicably as compared to vehicles used by people in their day to day life.

There is an increase in the number of patients who got injured due to firecrackers in Delhi, the national capital region from the year 2002 to 2010. During the study period, the hospital received approximately one patient with firecracker-related injury per 100,000 population of the city. 73.02% of the victims were between 5–30 years old. The majority (90.87%) of them sustained with more than 5% burn on the body surface.

RULES AND REGULATIONS FOR CRACKERS IN DIWALI

At the time of Festival, the Apex court has refused the ban on burning the crackers but has curbed the use of crackers, that are harmful in nature.

Following are the reason for giving up a cracker in Diwali:

1. Smog: Firecrackers these days is a leading reason for smog in the country. The capital city of India has a principal victim for harm caused to Smog in the atmosphere.

2.  Fire Accidents: Accidents due to firecrackers these days are increasing in numbers, that is the reason why many sign/instructions are provided behind the crackers box. The inflammatory nature of crackers has led to many accidents such as Kozhikode accidents causing fire burns to manufacturers due to spark in the factory.

3. Child labour: Manufacturers of crackers employ children in factories resulting in the child labour which is a violation of the fundamental right in Constitution.

4. Ill-effects on Kids and Pregnant Women: Dr Ashwini Nabar has claimed that burning of firecrackers in Diwali or general has led cause harm to pregnant women. Such cracker many results in bad health of the child in the mother’s womb. The loud noise of cracker causes Tinnitus that led to sound like the ring in ears longing for more than 24 hours.

JUDGEMENT

It was said in Arjun Gopal v/s Union of India that firecrackers are proven to have a direct causal connection to air pollution; it was evident that the pollution was increased to PM2.5 level, which a very serious matter to be considered. Gauri Maulekhi, an applicant has placed various evidence stating the ill effects on animal. Studies and reports presented by her depict the profound effect of noise/sound on the health of animals, extending to their neuroendocrine system, reproduction and development, metabolism, cardiovascular health, cognition and sleep, audition, immune system, DNA integrity and gene expression. It has also been proven that noise pollution has led to temporary or permanent hearing impairment in animals. In long judgment provided by the Supreme Court, it has made a law regulating firecracker and its administration in a more stringent way than before. Also, with the consideration given to the festival and people’s demand for burning cracker, the court has curbed the use of it. Tamil Nadu pollution control board has implemented a new rule; the board has provided the time slots for a burning cracker. Understanding the measures that may help to have a harmonious construction of decision; the Supreme Court decided to refuse the blanket ban and introduce the green crackers.

CONCLUSION

Although a regulation as mentioned above in the Tamil Nadu judgement is not levied in all the states, if not legally, Indians should morally follow the judgement for the betterment of the society and the generations to follow.

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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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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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