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59 Chinese Apps banned in India
  • By: admin
  • Date: 30 Jun 2020
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Seeing the current circumstances, India was already apprehensive and skeptical for the number of Chinese products used by the Indian citizens. People were already angry, and a lot of them were demanding only Indian made products rather than ‘made in china’ products. Another thing which made the situation worst was the recent Indo-China war which took place at the Galwan Valley situated in Ladakh on 15th June 2020. The Indian Army reported that around 20 soldiers died due to the wounds caused by the Chinese army. Such a cold war is brewing between India and China, which has been witnessed almost after 45 years. On the other hand, China did not confirm any casualties but accused India of crossing the border onto the Chinese side. This Indo-China war attracted a lot of outrage from India towards China.

 

Banning of Chinese apps

Though India imports many products from China, the growing tension between these two countries has no end, and things are certainly taking the wrong turn. Talking about the recent news, India finally decided to ban the use of 59 Chinese online applications which are very prominent in India and influence half of the population. The news of banning these apps came on 29th June and witnessed mixed reactions. One of the more popular app which is banned by the Indian Government is Tik Tok as it has huge stars following it. While some of the citizens are celebrating this decision, it is also important to note that Indians working with these brands will face unemployment issues soon. Such a decision is likely to increase the unemployment rates in the country as creators of many such apps are Indians, and many offices of these apps are located in India. Applications like Tik Tok and helo, which has over 100 million active followers and helps its stars to earn money, will now not be possible and might create certain problems.

Following are some of the most prominent applications that have been banned by the Indian Government:

The list is including, but not limited to:

  1. Tik Tok
  2. Helo
  3. Shein
  4. Club Factory
  5. Cam Scanner
  6. UC Browser
  7. Shareit
  8. Romwe
  9. Xender
  10. WeChat
  11. Likee
  12. Viva Video

 

Legalities involving the Ban

The ban has been enforced under Section 69A of the Information Technology Act, 2000 (“Power to issue directions for blocking for public access of any information through any computer resource”): “Where the Central Government or any of its officers specially authorised by it is satisfied that it is necessary or expedient so to do, in the interest of sovereignty and integrity of India, defence of India, the security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of any cognizable offence relating to above, it may by order, direct any agency of the Government or intermediary to block for access by the public or cause to be blocked for access by the public any information generated, transmitted, received, stored or hosted in any computer resource.

Talking to The Ministry of Information and Technology it has revealed that they “have received many complaints from various sources including several reports about the misuse of some mobile applications for stealing and surreptitiously transmitting users’ data in an unauthorised manner to servers which have locations outside India”. Since this “ultimately impinges upon the sovereignty and integrity of India, is a matter of very deep and immediate concern which requires emergency measures” the ministry has conveyed.

The ministry has accused these apps of stealing and secretly transmitting user’s data in an unauthorized manner to servers which have a location outside of India. If reports are to believed then-new IOS (Apple) found out that, these apps were receiving and recording information of the user even when it was not required. The ban will be implemented through, internet users, who are asked to block the respective applications on Google Play and Apple App Store. People who already have these apps installed in their phones might receive a message, stating that the government has banned the use of this application. However, such apps, which works even offline, may be available to the users after the ban too.

This isn't the first time Chinese apps have been banned in India. In 2017, Alibaba's UC Browser had come under the scanner for allegedly leaking mobile data of Indian users. And that year, India's defence ministry asked all armed personnel and officers to uninstall 42 Chinese apps it classified as "spyware", according to media reports. Even the Tik Tok was banned on the order of Madras HC for a few days in the year 2019. However, once the ban was lifted, Tik Tok was again widely used.

All these situations have led to a rift between India and China. Such a decision taken by the Indian Government may further deteriorate the relationship between the two countries. However, the safety of the country is a priority. It is also important to note that it will not only affect the Chinese producers, but it will also have a huge impact on the Indian Economy.

 

Punishment

At present, it is not illegal to use the banned Chinese apps, so there is no fine levied at the moment for the usage of the apps. The Government has not issued any guidelines relating to the ban and hence there is ambiguity as to the usage of these apps post the ban.

However, as this ban is invoked under section 69A of the Information Technology Act, as per the act, an individual who fails to comply with the direction issued can be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine.

While the apps that are pre-installed on the phones, will continue working for some time, they will no longer receive any updates in India as they will be removed from the Play Store.
 

Conclusion

Due to the rising situation between India and China, this decision seemed necessary. To protect the sovereignty and integrity of India, which are the essentials of the Preamble of India, it was important to limit or ban the use of such applications that not only stole the information but also could potentially circulate it.

Tik Tok is one of the most widely used application all over the country, it has been in talks with the government and is likely to conduct a meeting with the concerned authorities to prove that Tik Tok complies with all the rules and regulations of the Indian Law, including the Preamble of India. As the ban is just a day old, its enforcement and its impact is yet to be witnessed and reported.

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Post Covid-19 digital shift of legal practise

By: Adv. Kishan Dutt Kalaskar Others 28 Apr 2020

After the breakdown of Covid-19 in the country, it has almost been two months, that people are locked in their houses and are either working from home or working through using digital modes like video conferencing, zoom calls and WhatsApp calls to connect with their bosses, employers and other co-workers. In such a scenario, when people can’t go out to work, digitalization is playing a major and effective role. It is the requirement and as well as the only way through which India’s economy can grow in this stagnant situation.

Legal fraternity

Every profession is doing its best to control the crisis, but only a few of them are able to control it. Once this pandemic is over, everything from our lifestyle to eating habits will change. Life, as we know it, will change. Under such circumstances, one can only use this pandemic to challenge themselves and use this opportunity to bring a positive change in society. Since laws are what governs this society, this pandemic has given a chance to the legal fraternity to bring change in the way of litigation and in practising. By making use of technology, things can be innovated in a way to enhance the legal decisions as well as the legal knowledge around the country. Right now, the way the situation is prevailing and the way the lockdowns have been extending, the only method left with the courts, lawyers, and the legal profession is to shift digitally to maintain and govern law and order in our states.

Use of AI in Courts pre Covid

In the recent celebration of Constitution Day, the Chief Justice of India, SA Bobde, has proposed to introduce the system of Artificial intelligence (AI) to improve the judicial system of the country. Such a system will help in better administration and delivery of judgements. However, the CJI also mentioned that people should not form an opinion that digitalization will ever replace the judges of the country. The event was organized by Supreme Court bar association (SCBA) in which the CJI said “We propose to introduce, if possible, a system of artificial intelligence. There are many things which we need to look at before we introduce ourselves. We do not want to give the impression that this is ever going to substitute the judges.” 

The president of India, Ram Nath Kovind, was also present in the event where the Supreme Court App was introduced. Justice Bodbe, while talking about the application, asserted that artificial intelligence fueled law translation system will facilitate the quality translation and will further help in improving the efficiency of the Indian Judicial System. The app that was released will translate the judgements into nine religion languages.

A meeting was conducted of e-committee of the High court in which the head of e-committee Justice DY Chandrachud head of the Supreme Court e-committee, had stressed on the need to start virtual courts in all states not only to deal with traffic challans but also in all other summary violations.

Shift to Digitalization

The Supreme Court of India is leaving no stone unturned in hearing and adjourning of the cases through the courts are shut and there is a nationwide lockdown in the country till 3rd of May. On 23rd march to practise social distancing and to prevent the spread of the virus, the court decided to ban the entry of lawyers and litigants in the court, and it was also decided to hear only those cases which were of utmost importance and urgency. According to the recent reports, the Supreme Court has heard 593 cases in the last 34 days through video conferencing and other digital facilities. 203 out of the 593 cases were connected cases, that is, cases involving the same issue which were heard along with the main case. Furthermore, the top court also delivered judgments in 41 cases during this period. Through these 41 judgments, the court disposed of an additional 174 cases which were connected matters. The apex court decided to start the method of video conferencing on 23rd march, a day before prime minister announced the nationwide lockdown in the view of Covid-19 pandemic. Since then, the court sat for hearing on 17 working days with a total of 34 benches hearing cases through video conferencing. Not only this, but 53 benches also sat to decide review petitions. However, those were decided in chambers without an oral hearing and with these 84 review petitions were disposed of by the court during this period.

The hearings in the Supreme Court are conducted through the Vidyo app, which can be downloaded on mobile phones and desktop. The platform is hosted on the servers of the National Data Centre of National Informatics Centre.

While the judges on the bench join the video conference from the residence of one of the judges, the lawyers join from their respective houses.

The court also came out with standard operating procedure (SOP) for filing, mentioning and hearing of cases through video conferencing on three occasions - March 23, March 26 and April 15.

Apart from the court cases, online consultations have been started by the lawyers for their clients. Lawyers are now giving online advice through video calls or telephonic calls to make their clients know about what is legally right and legally wrong. The lawyers are able to take up cases and study them so that no time in the future to fight such cases is lost. It is the correct time for the litigants to make a place for them and earn the trust of their clients. Such situations will later lead potential clients to the litigants.

Big law firms are able to connect to their clients through social media and work from home techniques for the employees is working well for such firms. As most of the work these firms tackle is about research and writings, the work from home structures is proving to be supportive of them.

Therefore, the legal fraternity has witnessed a significant shift in the way they are working and practising post-covid-19 which is productive as well as beneficial to them.

What future holds for Legal Fraternity?

Imagine a scenario, where there is no lockdown and the people can finally go on dinners and meet their friends. Such three friends’ meet for dinner from whom one is a lawyer, the other is a designer and the third one is an entrepreneur. These three friends meet and they start discussing the effects of covid-19. The conclusion of the discussion comes out that, the lawyer has been hired by the entrepreneur to fire one of his employees who didn’t work from home and is now asking for a full paycheque. With this, the lawyer is also hired by the designer to sue his boss for not giving him the paycheque for the lockdown period. These are what the future of lawyers is once the lockdown is over. Coming out of the imagination, as the nation is going through a lockdown because of the outbreak of covid-19, the businesses are in a dilemma as they have no idea how will they continue their operations and pay their employees. In a pandemic where the government is asking the businesses to provide full salaries to their employees and not to fire them due to the lockdown, consider the number of legalities and issues this company had to go through to fire its 200-300 employees across the country. The company must have consulted legal firms and considered the advice of the lawyers. Besides all this, a lot of paperwork and documentation must have been required by the company to fire its employees without involving any mistakes and errors legally.

On the other hand, the fired and frustrated employees during this time must be eagerly waiting for the lockdown to end and consult their legal friends to sue the company for such an ignorant act. Consulting their lawyers and filing cases against them again means, work for the legal fraternity. Hence, the future is full of opportunities for lawyers and legal firms. The only thing they have to do is to target the right group of people and build trust among the clients. For lawyers, COVID-19 crisis is a boon in the guise of a bane. When clients have lots of problems, lawyers thrive. The crisis has created lots of problems for clients. And therefore a lot of work - now, and for months to come, for lawyers.

As for the courts, the overnight shift in the paradigm is proof that courts can are efficiently equipped with the expertise to act without limitation at any hour of need. As stated by a senior advocate CS Vaidyanatha “This is an inflexion point for the legal profession in India. Till now, the mindset was one of resistance to change, or at best, incremental change. The disruption occasioned by Covid-19 has put forward challenges that can be best countered with wholesome and wholesale changes – by the adoption of online courts with limited or no oral hearing but based on brief written submissions.”

On the plus side, the pandemic has paved its way in forcing our age-old legal practice to go digital quicker, which shall hopefully continue even post the lockdown and the pandemic. There may be some guidelines pursued on this matter later on, once the lockdown relaxes.

Introduction to E-Contracts

Post Covid-19, digitalization is taking over and therefore e-contracts are also increasing and making their place in the economy. Electronic contracts or e-contracts are agreements entered through an electronic form mostly through a software system as opposed to the traditional contracts documented on paper and signed using the wet ink. The Indian laws are recognizing various types of e-contracts such as contracts which are entered through emails, clickwrap and shrink wrap contracts and other similar platforms. However, to recognize it as a valid and legally enforceable contract, the pre-requisite of the Indian Contract Act,1872 needs to be followed. E-contracts execution is done by various modes among which one of the easiest and safest way is through digital signatures. The Information Technology Act enables obtaining of digital signatures in a scenario where social distancing is must, and people are not allowed to meet each other. Digital signatures are introduced so that contracts can be signed digitally and norms of social distancing are not hampered. It is important to note that there are certain contracts which are not eligible for execution through online modes. Furthermore, the contracts which are executed should be only made, after taking the help of legal people. The government is also taking initiatives to open online portals for the payment of stamp duties for such contracts. 

Conclusion

On the brighter side, the biggest winner in this technological shift may be the solving of the pendency problem in the Indian courts. As per the McKinsey Reports, 22% of a lawyer’s job can be automated.

Covid-19 is a troublesome situation for everyone, but these are the testing times. The legal mind has to now be creative and find opportunities and solutions in this chaos. As soon as the lockdown is uplifted, things will change and the adoption of such changes will be the only option left. The big law firms, as well as the individual lawyers and small law firms, are doing stellar work concerning the COVID crisis, innovating new services, helping clients with their current legal  problems, and some have even set up dedicated desks for Covid related work. Therefore, the one who will be well prepared will be able to find the right opportunities amid Covid-19.

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Top 2019 judgements by Supreme Court

By: admin Others 24 Feb 2020

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

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

1. Ayodhya Case

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

Civil Appeal No 10866-10867 of 2010

Facts of the Case

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

Issues

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

Held

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

2. Constitutional Validity of IBC

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

Writ Petition (Civil) No. 99 of 2018

Facts of the Case

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

Issue

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

Held

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

3. Treating Homebuyers as Financial Creditors

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

Writ Petition (Civil) No. 43/2019

Facts of the Case

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

Issues

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

Held

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

4. Appointment of Amicus Curiae

Anokhilal V/s State of Madhya Pradesh

Criminal Appeal Nos. 62-63/2014

Facts of the Case

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

Issues of the case

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

Held

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

5. Liquor Consumption Case

Satvinder Singh and Ors. V/s State of Bihar

Criminal Appeal No. 951/2019

Facts of the Case

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

Issues

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

Held

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

6. INX  Media case

P. Chidambaram V/s Directorate Of Enforcement

Criminal Appellate Jurisdiction

Criminal Appeal No.1831/2019

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

Facts of the Case

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

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

Issue

Whether the finance minister misused his position?

Held

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

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

7. Nirbhaya Case

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

Criminal Appeal No. 607-608 of 2017

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

Facts of the Case

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

Issues

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

Held

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

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

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

8. Sabarimala Case

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

Writ Petition (Civil) No. 373 of 2006

KantaruRajeevaru V/s Indian Young Lawyers Association and Ors.

Review Petition (Civil) No. 3358/2018

Facts of the Case

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

Issues

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

Held

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

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

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

Writ Petition (Civil) No. 1074/2019

Facts of the Case

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

Issue

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

Held

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

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

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

Criminal Appeal No. 1481/2019

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

Facts of the Case

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

Issue

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

Held

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

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Personal Data Protection Bill, 2019

By: admin Others 15 Jan 2020

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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