KNOWLEDGE CENTER

DISQUISITION ON WRIT

Disquisition on Writ

* Definition
* Essentials of Writ
* Procedure of filing Writ Petition
* Types of Writs
* Important Points to Remember

Definition

A writ is a formal written order issued by a Court. Any warrant, orders, directions, and so on, issued by the Supreme Court or the High court are called Writs.

Essentials of Writ

A writ petition can be filed in the High Court of that particular state (Article 226) or the Supreme Court (Article 32) of India when any of person’s fundamental rights are violated. The jurisdiction with the High Courts (Article 226) with regards to a writ petition is wider and extends to constitutional rights too.In case of Habeas Corpus, the writ cannot be is

Procedure of filing Writ Petition:

The following steps should be followed to file a writ petition:

* The very first step is ascertaining whether the cause of action is remedial by the issue of a writ.
* The aggrieved person needs to file a petition with the help of a lawyer or by himself annexing all the documents necessary, affidavit and the prayer.
This petition will be filed in the filing counter of the respective High Court and a future date for consideration of the matter will be given.
* On this date the lawyer or the person himself can plead the matter, the High Court has the power to accept or dismiss the petition.
* If the court admits the petition, then a notice is sent to the opposite party and another date of hearing is given by the Court.
* On the date of hearing the contents are settled and the Court grants relief as it finds appropriate.

Types of Writs

There are five types of writs: namely, Habeas Corpus, Mandamus, Prohibition and Certiorari,Quo Warranto.They are as follows-

Habeas Corpus

A writ of Habeas Corpus is used by the courts to find out if a person has been illegally detained. If the answer is yes, the court can order for his release. If a person has been illegally detained, he himself, a friend or even a relative can file a writ of Habeas Corpus. Habeas Corpus is Latin for ‘Let us have the body’ (or, let us see the person who has been illegally detained). Through Habeas Corpus, the court can thus also summon the person detained or imprisoned to the court.

To file a Habeas Corpus petition

Although generally a petition is to be filed by the person being detained or arrested, as per Habeas Corpus, any other person can do it on behalf of the detained individual. This writ (written petition) can be issued against a public authority or any particular individual.

Mandamus

A writ of Mandamus is issued by a higher court to a lower court, tribunal or a public authority to perform an act which such a lower court is bound to perform. If a public official is not performing his duty, the court can order it or him/her to do that. Mandamus means we command.

To file a Mandamus petition

Mandamus or the ‘we command’ writ can be issued against anyone, including the president or governor of the state, a private person or chief justice. Any individual or a private body can file a writ petition of mandamus, subject to the person/persons having legal rights to do so, in the matter concerned.

Prohibition

A writ of prohibition, also known as a ‘stay order’, is issued to a lower court or a body to stop acting beyond its powers.
While a writ of mandamus is issued for any activity that is not legal, the writ of petition is issued against the lower courts, such as magistrates and commissions, for inactivity in the matter of concern. The High Court and Supreme Court can issue the Writ of Prohibition.

Writ of Certiorari

The writ of Certiorari is issued by the Supreme Court to a Lower Court or any other body to transfer a particular matter to the higher courts than itself. The Writ of Certiorari is issued by the high court to the lower courts or tribunal, when an error of jurisdiction or law is believed to be committed.
Writ of Certiorari is a curative writ.

Quo Warranto

The writ of Quo Warranto (by what warrant) is issued to inquire about the legality of a claim by a person or authority to act in a public office, which he or she is not entitled to. The writ is only for the public offices and does not include private institutions/offices.
A writ can be filed only if your fundamental rights are being violated. Generally, you can file a writ petition against state and government agencies. However, a writ Petition can also be issued against private authorities when they are discharging public functions.

Important Points to Remember

1. If the petition is dismissed, no fresh petition can be filed on the same cause of action.
2. It is advisable that the aggrieved party consult a lawyer and let the lawyer file the petition with his expertise.
3. In case of a Habeas Corpus petition, the petition can be filed by a simple application of the aggrieved.
4. Do not file vexatious or frivolous petitions.

DOWRY PROHIBITION ACT

Contents

1. Prologue
2. Meaning and Definition
3. Legal Steps
4. Judicial Decision
5. Forwarded Step

Prologue

An eminent jurist of International repute Mr.N.A.Palkhiwala has observed in his book “We the People” that one of the costly failures of the Government in the post-Constitution era in India has been its failure to maintain Law and Order. It is mostly prevalent in the case of women, who were treating as subordinate to men and socially oppressing from the time immemorial. Still now the practice of discriminating women is continuing in the society. The most important aspect to show that the Indian women were still being in oppressed state is dowry in marriages.

Meaning and Definition

Dowry is an age old practice in Indian society referring to property or valuable security given by one party to another as a consideration for marriage. Mostly the consideration is given by the family members of the bride. It may also be regarded as a vehicle for setting up a relation of accord between the bride’s family and the husband’s family. This relationship of accord is accompanied by giving gifts which persists long after the marriage rites.

Legal Steps

At first in the year 1961, the Dowry Prohibition Act is enacted to eradicate the practice of dowry. It consists of 10 sections.
Under this Act, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly.
(a) By one party to a marriage to the other party to the marriage, or (b) By the parent of either party to a marriage or by any other person, , to either party to the marriage or to any other person, at or before 1[or any time after the marriage] 2[in connection with the marriage of the said parties, but does not include] dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

The penalty for giving and taking dowry is incorporated in Section 3 of the Act. But the Act contains so many loopholes, also the punishment prescribed for demanding, taking and giving dowry were very low. So the Act has been amended from time to time to be effective.After the amendment of Dowry Prohibition Act,1984 prescribe a minimum punishment of two years imprisonment and fine to anyone demanding dowry.Because of this Dowry Prohibition Act, a person who gives or takes, or helps in the giving or taking of dowry can be sentenced to jail for 5 years and fined Rs.15,000/- or the amount of the value of dowry, whichever is more. This Act is prohibited to give or to agree to give, directly or indirectly, any property or valuable security, in connection with a marriage. The giving of or agreeing to the giving of any amount either in cash of kind, jewelry, articles, properties, etc. in respect of a marriage is absolutely prohibited by the Dowry prohibition Act. Even the making of a demand for dowry is also now prohibited and it is punishable with imprisonment of 5 years and a fine of Rs.10,000.

In Order to provide more teeth to dowry prevention laws, the Government has decided to make it mandatory for couples to make list of gifts exchanged during the ceremonies of marriage. The Dowry Prohibition (Maintenance of List of present to the Bride and Bridegroom) Rules were introduced in 1985 in pursuance of the same purpose. It clearly stated that the list of gifts, in form of a sworn affidavit, has to be notarised, signed by a protection officer or a dowry prohibition officer and kept by both the parties. Failing this can invite heavy penalty including a three-year term in jail for not only bride and groom but also their parents.

Provision to this effect has been added in the Indian Evidence Act, by adding Section 113-A since the year 1983.

Sec.304-B is incorporated in the Indian Penal Code in 1983. It deals with Dowry Death. It states that where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death” and such husband or relative shall be deemed to have caused her death.

Clause(2) of Sec.304-B stated that whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

Recently for the Protection of women from Domestic Violence an Act is enacted in the year 2005 which is called as the Domestic Violence Act. The main objective of the Act is to eradicate the domestic violence against women and to provide protection to women from the domestic violence. Some measures took by the international community for eradication of domestic violence against women and declared 25th November as the International day to prevent violence against women.

Judicial Decision

In a case, State of Uttar Pradesh vs. Chhoteylal, On 23rd January, 2011 A bench comprising of Justice Aftab Alam and RM Lodha in their judgment held that “It is imperative that the criminal case relating to offences against the State, Corruption, domestic violence, dowry-death, sexual assault, financial fraud and cyber crimes are fast tracked and decided in a fixed time frame, preferably of three years including appeal provisions”.

Forwarded Step

Even though a series of laws have been enacted from time to time to raise the status of women those laws remains on papers due to lack of effective publicity and proper utilization.
The definition of dowry is also being widened by changing the word “in connection with marriage” to “given before the marriage, at the time and at any time after the marriage”.
The Juristic and legal persons must conduct awareness camps in rural and slum areas to make the people efficient to tackle any kind of problems by using the enacted laws.
The educated people must learn the acts and provisions which were laid down by the Government to utilize them properly and to explain them to the masses and illiterates for utilization of laws in a proper way.
The Electronic and Print Media must concentrate on the provisions and they have to publish comparative Articles regarding the previous and present position of Acts. Also they must give wide publicity to the enacted provisions and how to make use of the provisions.
Every citizen must try to be updated with the Acts laid down by the Government and must properly utilize them when there is a dire need to exercise their rights.

To stop the offences of cruelty by husband or his relatives on wife, Section 498-A has been added in the Indian Penal Code, and Section 198-A has been added in the Criminal Procedure Code since the year 1983. In the case of suicide by a married woman, within 7 years from the date of her marriage, the Court may presume that such suicide has been abetted, encouraged by her husband or his relatives.

 ARBITRATION AND CONCILIATION ACT, 1996

Contents
* Prologue
* Definition and Meaning
* Receipt of Communication
* Waiver of right to object
* Administrative Assistance
* Arbitration Agreement
* Number of Arbitrators
* Grounds of Challenge
* Challenge Procedure
* Equal treatment of Parties
* Place of Arbitration
Language
Failure or Impossibility to act
Termination of mandate and substitution of arbitrator

Arbitration and Conciliation Act

1.Prologue

This Acts extends to the whole of India.

Provided that Parts I, III and IV shall extend to the State of Jammu and Kashmir only in so far as they relate to international commercial arbitration or, as the case may be, international commercial conciliation.

It shall come into force on such date1 as the Central Government may, by notification in the official Gazette, appoint.

2.Definition and Meaning

In this Part, unless the context otherwise requires,

“arbitration” means any arbitration whether or not administered by permanent arbitral institution
“arbitration agreement” means an agreement referred to in section 7
“arbitral award” includes an interim award
“arbitral tribunal” means a sole arbitrator or a panel of arbitrators
“Court” means the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, but does not include any civil court of a grade inferior to such principal Civil Court, or any Court of Small Causes
“international commercial arbitration” means an arbitration relating to disputes arising out of legal relationships, whether contractual or not, considered as commercial under the law in force in India and where at least one of the parties is
(i) an individual who is a national of, or habitually resident in, any country other than India; or
(ii) a body corporate which is incorporated in any country other than India; or
(iii) a company or an association or a body of individuals whose central management and control is exercised in any country other than India; or
(iv) the Government of a foreign country;
“legal representative” means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased, and, where a party acts in a representative character, the person on whom the estate devolves on the death of the party so acting;
“party” means a party to an arbitration agreement.
This Part shall apply where the place of arbitration is in India.

This Part shall not affect any other law for the time being in force by virtue of which certain disputes may not be submitted to arbitration.

This Part except sub-section (1) of section 40, sections 41 and 43 shall apply to every arbitration under any other enactment for the time being in force, as if the arbitration were pursuant to an arbitration agreement and as if that other enactment were an arbitration agreement, except in so far as the provisions of this Part are inconsistent with that other enactment or with any rules made thereunder.

Subject to the provisions of sub-section (4), and save in so far as is otherwise provided by any law for the time being in force or in any agreement in force between India and any other country or countries, this Part shall apply to all arbitrations and to all proceedings relating thereto.

Where this Part, except section 28, leaves the parties free to determine a certain issue, that freedom shall include the right of the parties to authorise any person including an institution, to determine that issue.

An arbitral award made under this Part shall be considered as a domestic award.

Where this Part

refers to the fact that the parties have agreed or that they may agree, or
In any other way refers to an agreement of the parties, that agreement shall include any arbitration rules referred to in that agreement.
Where this Part, other than clause (a) of section 25 or clause (a) of sub-section (2) of section 32, refers to a claim, it shall also apply to a counter-claim, and where it refers to a defence, it shall also apply to a defence to that counter-claim.

3.Receipt of written communications

Unless otherwise agreed by the parties,
Any written communication is deemed to have been received if it is delivered to the addressee personally or at his place of business, habitual residence or mailing address, and
If none of the places referred to in clause (a) can be found after making a reasonable inquiry, a written communication is deemed to have been received if it is sent to the addressee’s last known place of business, habitual residence or mailing address by registered letter or by any other means which provides a record of the attempt to deliver it.
The communication is deemed to have been received on the day it is so delivered.
This section does not apply to written communications in respect of proceedings of any judicial authority.

4.Waiver of right to object

A party who knows that

Any provision of this Part from which the parties may derogate, or
Any requirement under the arbitration agreement,has not been omplied with and yet proceeds with the arbitration without stating his objection to such non-compliance without undue delay or, if a time limit is provided for stating that objection, within that period of time, shall be deemed to have waived his right to so object.
Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part.

Comments
Interim relief—Grant of

In the present case, it was held that courts in India have no power to issue interim order under section 9 of the Act in the matter when arbitration is held at a place outside India. If court is not having jurisdiction to pass any interim order, in such cases, inherent powers not to be exercised, to confer jurisdiction upon itself. To exercise any inherent power court must have jurisdiction over the proceedings before it; Marriat International Inc. v. Ansal Hotels Ltd., 2000 (3) Arb LR 369.

5. Administrative assistance

In order to facilitate the conduct of the arbitral proceedings, the parties, or the arbitral tribunal with the consent of the parties, may arrange for administrative assistance by a suitable institution or person.

6. Arbitration agreement

In this Part, “arbitration agreement” means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.
An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.
An arbitration agreement shall be in writing.
An arbitration agreement is in writing if it is contained in
a document signed by the parties;
an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement; or
an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other.
(5) The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract. Power to refer parties to arbitration where there is an arbitration agreement.
A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration.
The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.
Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.

7. Number of arbitrators

The parties are free to determine the number of arbitrators, provided that such number shall not be an even number.
Failing the determination referred to in sub-section (1), the arbitral tribunal shall consist of a sole arbitrator. A person of any nationality may be an arbitrator, unless otherwise agreed by the parties.

Subject to sub-section (6), the parties are free to agree on a procedure for appointing the arbitrator or arbitrators.
Failing any agreement referred to in sub-section (2), in an arbitration with three arbitrators, each party shall appoint one arbitrator, and the two appointed arbitrators shall appoint the third arbitrator who shall act as the presiding arbitrator.
If the appointment procedure in sub-section (3) applies and
a party fails to appoint an arbitrator within thirty days from the receipt of a request to do so from the other party; or
the two appointed arbitrators fail to agree on the third arbitrator within thirty days from the date of their appointment, the appointment shall be made, upon request of a party, by the Chief Justice or any person or institution designated by him.
Failing any agreement referred to in sub-section (2), in an arbitration with a sole arbitrator, if the parties fail to agree on the arbitrator within thirty days from receipt of a request by one party from the other party to so agree the appointment shall be made, upon request of a party, by the Chief Justice or any person or institution designated by him.
Where, under an appointment procedure agreed upon by the parties,
a party fails to act as required under that procedure; or
the parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure; or
a person, including an institution, fails to perform any function entrusted to him or it under that procedure,a party may request the Chief Justice or any person or institution designated by him to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment.
A decision on a matter entrusted by sub-section (4) or sub-section (5) or sub-section (6) to the Chief Justice or the person or institution designated by him is final.

The Chief Justice or the person or institution designated by him, in appointing an arbitrator, shall have due regard to
any qualifications required of the arbitrator by the agreement of the parties; and
other considerations as are likely to secure the appointment of an independent and impartial arbitrator.
In the case of appointment of sole or third arbitrator in an international commercial arbitration, the Chief Justice of India or the person or institution designated by him may appoint an arbitrator of a nationality other than the nationalities of the parties where the parties belong to different nationalities.
The Chief Justice may make such scheme1 as he may deem appropriate for dealing with matters entrusted by sub-section (4) or sub-section (5) or sub-section (6) to him.
Where more than one request has been made under sub-section (4) or sub-section (5) or sub-section (6) to the Chief Justices of different High Courts or their designates, the Chief Justice or his designate to whom the request has been first made under the relevant sub-section shall alone be competent to decide on the request.
(a) Where the matters referred to in sub-sections (4), (5), (6), (7), (8) and (10) arise in an international commercial arbitration, the reference to ‘‘Chief Justice’’ in those sub-sections shall be construed as a reference to the ‘‘Chief Justice of India’’.
(b) Where the matters referred to in sub-sections (4), (5), (6), (7), (8) and (10) arise in any other arbitration, the reference to “Chief Justice” in those sub-sections shall be construed as a reference to the Chief Justice of the High Court within whose local limits the principal Civil Court referred to in clause (e) of sub-section (1) of section 2 is situate and, where the High Court itself is the Court referred to in that clause, to the Chief Justice of that High Court.

8. Grounds for challenge

When a person is approached in connection with his possible appointment as an arbitrator, he shall disclose in writing any circumstances likely to give rise to justifiable doubts as to his independence or impartiality.
An arbitrator, from the time of his appointment and throughout the arbitral proceedings, shall, without delay, disclose to the parties in writing any circumstances referred to in sub-section (1) unless they have already been informed of them by him.
An arbitrator may be challenged only if
circumstances exist that give rise to justifiable doubts as to his independence or impartiality, or
he does not possess the qualifications agreed to by the parties.
(4) A party may challenge an arbitrator appointed by him, or in whose appointment he has participated, only for reasons of which he becomes aware after the appointment has been made.

9.Challenge procedure

Subject to sub-section (4), the parties are free to agree on a procedure for challenging an arbitrator.
Failing any agreement referred to in sub-section (1), a party who intends to challenge an arbitrator shall, within fifteen days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstances referred to in sub-section (3) of section 12, send a written statement of the reasons for the challenge to the arbitral tribunal.
Unless the arbitrator challenged under sub-section (2) withdraws from his office or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge.
If a challenge under any procedure agreed upon by the parties or under the procedure under sub-section (2) is not successful, the arbitral tribunal shall continue the arbitral proceedings and make an arbitral award.
Where an arbitral award is made under sub-section (4), the party challenging the arbitrator may make an application for setting aside such an arbitral award in accordance with section 34.
Where an arbitral award is set aside on an application made under sub-section (5), the Court may decide as to whether the arbitrator who is challenged is entitled to any fees.

10.Equal treatment of parties

The parties shall be treated with equality and each party shall be given a full opportunity to present his case.

11.Place of arbitration

(1) The parties are free to agree on the place of arbitration.
(2) Failing any agreement referred to in sub-section (1), the place of arbitration shall be determined by the arbitral tribunal having regard to the circumstances of the case, including the convenience of the parties.
(3) Notwithstanding sub-section (1) or sub-section (2), the arbitral tribunal may, unless otherwise agreed by the parties, meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for inspection of documents, goods or other property.

12.Language

(1) The parties are free to agree upon the language or languages to be used in the arbitral proceedings.

(2) Failing any agreement referred to in sub-section (1), the arbitral tribunal shall determine the language or languages to be used in the arbitral proceedings.

(3) The agreement or determination, unless otherwise specified, shall apply to any written statement by a party, any hearing and any arbitral award, decision or other communication by the arbitral tribunal.

(4) The arbitral tribunal may order that any documentary evidence shall be accompanied by a translation into the language or languages agreed upon by the parties or determined by the arbitral tribunal.

13. Failure or impossibility to act

The mandate of an arbitrator shall terminate if
he becomes de jure or de facto unable to perform his functions or for other reasons fails to act without undue delay; and
he withdraws from his office or the parties agree to the termination of his mandate.
If a controversy remains concerning any of the grounds referred to inclause (a) of sub-section (1), a party may, unless otherwise agreed by the parties, apply to the Court to decide on the termination of the mandate.
If, under this section or sub-section (3) of section 13, an arbitrator withdraws from his office or a party agrees to the termination of the mandate of an arbitrator, it shall not imply acceptance of the validity of any ground referred to in this section or sub-section (3) of section 12.

14.Termination of mandate and substitution of arbitrator

(1) In addition to the circumstances referred to in section 13 or section 14, the mandate of an arbitrator shall terminate—

(a) where he withdraws from office for any reason; or
(b) by or pursuant to agreement of the parties.

(2) Where the mandate of an arbitrator terminates, a substitute arbitrator shall be appointed according to the rules that were applicable to the appointment of the arbitrator being replaced.

(3) Unless otherwise agreed by the parties, where an arbitrator is replaced under sub-section (2), any hearings previously held may be repeated at the discretion of the arbitral tribunal.

(4) Unless otherwise agreed by the parties, an order or ruling of the arbitral tribunal made prior to the replacement of an arbitrator under this section shall not be invalid solely because there has been a change in the composition of the arbitral tribunal.

Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.

7. Number of arbitrators

The parties are free to determine the number of arbitrators, provided that such number shall not be an even number.
Failing the determination referred to in sub-section (1), the arbitral tribunal shall consist of a sole arbitrator. A person of any nationality may be an arbitrator, unless otherwise agreed by the parties.

ONE PERSON COMPANY AND IT’S COMPANIES ACT

The Companies Act, 2013 introduces a new concept of “One Person Company”. This is the first time such a concept is being introduced in India. Basically,it is giving legal corporate status of Proprietorship form of doing business.

DEFINITION

Section 2(62) defines a “One Person Company” means a Company which has only one person as a member.

FEATURES

A “One Person Company” as the name suggests needs only one member, unlike a Private Limited Company or a Limited Liability Partnership where a minimum of two members are required.
An “OPC”enjoys benefits of a limited liability, separate legal entity, perpetual succession etc, like Private Limited Company or Limited Liability Partnership.

Similar to a Private Limited Company, a one person company is required to nominate a successor in the event of the demise of the sole member. Such companies are also required to comply with many statutory requirements in the same manner as a Private Limited Company. However it is exempted from conducting Annual General Meetings or Extraordinary General Meetings.

BENEFITS

Limited liability: In event of failure, your liability extends only to business assets unlike private limited companies whose liabilities extend to your personal and private property and bank accounts.
Exemption from compliance: Certain sections of laws are not applicable for OPC such as section 96, 98 and sections 100 to 111.
No Agm: being a single ownership company, there is no need for holding an AGM or any extraordinary general meetings.

NOMINATION

The memorandum of OPC shall indicate the name of the other person who has given his consent in the prescribed form to be so named and who shall, in the event of the member becoming incapacitated due to death or incapacity to contract, become the member of the company. The written consent of such other person shall also be filed along with the incorporation documents while forming OPC;

The memorandum of the Company shall state the name of the person who in the event of the death of the subscriber shall become the member of the company.
The member has powers at any time to change the name of the nominee by giving notice in the prescribed form. The new nominee should also give his consent to his name so appearing and any change in the nominee shall require amendment in the memorandum of association.

DIRECTORS

Section 149(1)(a) provides that minimum one director should be appointed in an OPC. There is no restriction to appointing more than one director in an OPC, but maximum no. of directors that can be appointed is 15 as per section 149(1)(b).

Section 152(1) provides that the subscriber to the memorandum shall be deemed to be the first director of the company until director(s) are duly appointed by the member in accordance with the provisions of the section.

REGISTRATION PROCESS OF OPC IN INDIA

One Person Company (OPC) can be incorporated by a natural person resident in India only. In order to register a one person company both the owner and nominee have to be resident of India. Nominee person is the person who will take charge of One Person Company (OPC) in case of death of sole member or in case the sole member becomes unable to become member of One Person Company. Registration of One Person Company is very much similar to that of Private Limited Company. You will need to obtain a DSC or digital signature certificate and DIN which should be applied on your application for the name of the Company. Reservations of name need to be filed separately.

Once this is done a complete set of documents will need to be submitted to the Registrar of Companies. Incorporation documents includes Memorandum and Articles of Association, Proof of Appointment of Nominee Member, Affidavit etc. Once the documents are verified and approved, the registrar of companies will grant you a certificate of incorporation of your company. This process generally takes around 15 days time.

CONCLUSION

The concept of an OPC is still very new in Indian entrepreneurship and thus very revolutionary, it will take time for such a new concept to be incorporated with complete efficiency, but as and when the time will pass, an OPC will have a sparkling future and it will be embraced as a most successful business concept. The reason behind it is the incorporation of same is less paper work, one person can form a company without any additional shareholder, and if the member is willing to add shareholders, all he needs to do is to modify the Memorandum of Association and file it before ROC. Small entrepreneurs will grow in Indian entrepreneurship, be it weaver, traders, artisans, small to mid level entrepreneurs, OPC is a bright future for them to grow and to get a recognition globally. Foreign Investors will be dealing with one member to establish a corporate relationship and not with a score of shareholders/directors where there are more chances for disparity in ideas, concepts etc for a business to grow. Any foreign company who wishes to establish in India through an Investment, through a merger or through a Joint venture will have to just lock the deal with the member of an OPC, and the venture will be expected to start sooner with more effective results.

 GOODS AND SERVICE TAXS

Contents

1. Prologue
2. Definition
3. Components of GST
4. Various GST Tax rates applicable
5. Tax Laws before GST
6. Items exempted from GST
7. GST impact on Indian Economy
8. Impact of GST on various sectors in India
9. Advantages
10. Disadvantages

Prologue

Goods and Services Tax or Indian version of GST is a destination based tax proposed by the government with the aim to eliminate several indirect taxes like VAT, Central Excise Duty, Sales Tax, Service Tax, etc. It is fondly described as one tax for one nation. However, unlike GST of other countries, Indian GST is anything but one tax. It is actually a culmination of three taxes – Central Goods and Service Tax (CGST), Integrated / Interstate Goods and Service Tax (IGST) and State Goods and Service Tax (SGST).

CGST and SGST both will be levied on intra-state supply of goods and services while IGST will be applicable on inter-state supply of goods and services in India. Since it is a destination based tax, it will be levied at all stages right from manufacturer up to the final consumer with credit of taxes paid at previous stages available as set off. In short, tax will be levied only on value addition and the final burden of tax will be borne by the ultimate consumer.

Goods and Service Tax in India came into force on 1st July,2017.

Definition

GST (Goods and Services Tax) is the biggest indirect tax reform of India. GST is a single tax on the supply of goods and services. It is a destination based tax. GST has subsumed taxes like Central Excise Law, Service Tax Law, VAT, Entry Tax, Octroi, etc.

GST is expected to bring together state economies and improve overall economic growth of the nation.

GST is a comprehensive indirect tax levy on manufacture, sale and consumption of goods as well as services at the national level. It will replace all indirect taxes levied on goods and services by states and Central. Businesses are required to obtain a GST Identification Number in every state they are registered.

There are around 160 countries in the world that have GST in place. GST is a destination based taxed where the tax is collected by the State where goods are consumed. GST has been implemented in India from July 1, 2017 and it has adopted the Dual GST model in which both States and Central levies tax on Goods or Services or both.

SGST – State GST, collected by the State Govt.
CGST – Central GST, collected by the Central Govt.
IGST – Integrated GST, collected by the Central Govt.
UTGST – Union territory GST, collected by union territory government

Components Of GST

There are 3 taxes applicable under this system: CGST, SGST & IGST.

CGST: Collected by the Central Government on an intra-state sale (Eg: Within Maharashtra)
SGST: Collected by the State Government on an intra-state sale (Eg: Within Maharashtra)
IGST: Collected by the Central Government for inter-state sale (Eg: Maharashtra to Tamil Nadu)

In most cases, the tax structure under the new regime will be as follows:
Transaction New Regime Old Regime Details
Sale within the State CGST + SGST VAT + Central Excise/Service tax Revenue will be shared equally between the Centre and the State
Sale to another State IGST Central Sales Tax + Excise/Service Tax There will only be one type of tax (central) in case of inter-state sales. The Center will then share the IGST revenue based on the destination of goods.

Illustration

Let us assume that a dealer in Gujarat had sold the goods to a dealer in Punjab worth Rs. 50,000. The tax rate is 18% comprising of only IGST.

In such case, the dealer has to charge Rs. 9,000 as IGST. This revenue will go to the Central GovernmentThe same dealer sells goods to a consumer in Gujarat worth Rs. 50,000. The GST rate on the good is 12%. This rate comprises of CGST at 6% and SGST at 6%.

The dealer has to collect Rs. 6,000 as Goods and Service Tax. Rs. 3,000 will go to the Central Government and Rs. 3,000 will go to the Gujarat government as the sale is within the state.

Various GST tax rates applicable

The Government announced that GST would be applicable in four taxes rates – 5%, 12%, 18%, and 28%. Few items have been kept out of GST. The states are interested in keeping few things out of the field of GST which are sensitive to their states like UP wants puja material out of tax net while few want cotton and silk yarn out. All the Goods and Services would be charged with any of the mentioned rates as decided by the GST council. Nearly 81% of items have been kept under 18% tax slab and only 19% of the goods will be taxed above 18%.

 

What are the GST rates for the house hold expenses?

Now, let us categorize all house hold expenses into 5 buckets i.e. Food, Entertainment, Personal Care, Transportation and communication services.

Food items – Earlier tax 12.5% – New Tax under GST – 5% – Positive news
Entertainment – Earlier tax 30% – New Tax under GST – 28% – Positive news
Transportation – Earlier tax 15% – New Tax under GST – 18% – Negative news
Personal Care – Earlier tax 28% – New Tax under GST – 18% – Positive news
Communication (mobile and Internet services) – Earlier taxes 15% – New Tax under GST – 18% – Negative news

How does GST Rates look for high consuming products for a common man?

The following are the rates of few items that are of use for a common man:

Sugar, tea, coffee (not instant) and edible oil to fall under 5% slab.
Cereals and milk have been exempted from GST.
Capital and intermediate goods would be taxed at 18%, which is expected to be a good boon for the industrial growth.

Components Of GST

There are 3 taxes applicable under this system: CGST, SGST & IGST.

  • CGST: Collected by the Central Government on an intra-state sale (Eg: Within Maharashtra)
  • SGST: Collected by the State Government on an intra-state sale (Eg: Within Maharashtra)
  • IGST: Collected by the Central Government for inter-state sale (Eg: Maharashtra to Tamil Nadu)

In most cases, the tax structure under the new regime will be as follows:

TransactionNew RegimeOld RegimeDetails
Sale within the StateCGST + SGSTVAT + Central Excise/Service taxRevenue will be shared equally between the Centre and the State
Sale to another StateIGSTCentral Sales Tax + Excise/Service TaxThere will only be one type of tax (central) in case of inter-state sales. The Center will then share the IGST revenue based on the destination of goods.

Illustration

Let us assume that a dealer in Gujarat had sold the goods to a dealer in Punjab worth Rs. 50,000. The tax rate is 18% comprising of only IGST.

In such case, the dealer has to charge Rs. 9,000 as IGST. This revenue will go to the Central GovernmentThe same dealer sells goods to a consumer in Gujarat worth Rs. 50,000. The GST rate on the good is 12%. This rate comprises of CGST at 6% and SGST at 6%.

The dealer has to collect Rs. 6,000 as Goods and Service Tax. Rs. 3,000 will go to the Central Government and Rs. 3,000 will go to the Gujarat government as the sale is within the state.

  • Various GST tax rates applicable

The Government announced that GST would be applicable in four taxes rates – 5%, 12%, 18%, and 28%. Few items have been kept out of GST. The states are interested in keeping few things out of the field of GST which are sensitive to their states like UP wants puja material out of tax net while few want cotton and silk yarn out. All the Goods and Services would be charged with any of the mentioned rates as decided by the GST council. Nearly 81% of items have been kept under 18% tax slab and only 19% of the goods will be taxed above 18%.

Divorce Laws in India

A divorce is the most disturbing event for any couple. The entire procedure of separation which begins from dealing with emotional trauma to fighting in the dreadful Courts for getting a divorce decree is obviously a difficult episode to overcome.

However, with the advancement of laws and social awareness,the divorce procedure has been simplified in India to help couples come out of unwanted relationships.

In India, marriage and divorce are governed by Personal Laws. Personal laws are connected to religion of the people. For Hindus, Buddhists, Sikhs and Jains divorce is governed by the Hindu Marriage Act, 1955. The Muslim, Christian and Parsi communities, on the other hand, have different laws governing marriage and divorce. For couples belonging to different communities and castes, marriage and divorce are governed by Special Marriage Act, 1956. There is also the Foreign Marriage Act, 1969, governing divorce laws in marriages where either spouse is from a different nationality.

In India, divorce can obtain in two ways

Divorce by mutual consent
Divorce without mutual consent, i.e. contested divorce

Divorce by Mutual Consent

In situations where both husband and wife are willing to end the marriage, they can opt for mutual consent divorce. Both the husband and wife agree to a peaceful separation. Mutual Consent Divorce is the simplest way of dissolving the marriage legally. The only ingredient is the mutual consent of each of the spouse. The only two aspects on which the couple has to reach consensus is alimony or maintenance and the child custody. As per the law, there is no minimum or maximum limit set for maintenance. This amount can be worked out effectively between the parties. Child custody in Mutual Consent Divorce can be exclusive or joint depending on the understanding of the couple.Section- 13 (B) of the Hindu Marriage Act states that the parties can seek divorce by mutual consent by filing a petition before the Family Court.

As per Section 19 of the Hindu Marriage Act, 1955 you file the divorce petition before a Civil Court of a District in the following jurisdictions

Where the couple seeking divorce last resided together
Where the marriage took place
Where the wife is residing at present
Where the respondent(opposite party) is residing at the time of presentation of the petition.
The District Court here implies the Family Courts that are established under the Family Courts Act, 1984.

Divorce without mutual consent
In case of a contested divorce, certain specific grounds are required to be fulfilled before filing of a petition. The reasons for divorce are as follows although not all are applicable to all religions.

Cruelty

Cruelty can be physical or mental. According to the Hindu Divorce Laws in India, if one spouse has a reasonable fear in the mind that the partner’s conduct in all likelihood be injurious or harmful, then there is sufficient ground for obtaining divorce due to cruelty by the spouse.

Adultery

Under Indian laws, if a man who commits adultery (consensual sexual intercourse outside of marriage) can be punished with a criminal offence. The wife may, also, file for divorce as another remedy. However, if a wife commits adultery, she cannot be charged with a criminal offence, though the husband can seek prosecution of the adulterer male for adultery.

Mental Disorder

If either spouse is incapable of performing the normal duties expected in a marriage because of any mental illness then it becomes a valid ground for divorce.

Desertion

A spouse leaving/ abandoning the other without reasonable cause is a valid ground for divorce. However, the spouse who abandons the other should do so to desert and there should be evidence of it. For instance, as per Hindu laws, the desertion must last for at least two(2) continuous years.

Communicable Disease

Under the Hindu Divorce Laws, if a spouse suffers from a communicable disease, such as HIV/AIDS, syphilis, gonorrhea or a virulent and incurable form of leprosy then it is a valid ground for divorce.

Presumption of Death

If either of the spouses has not been heard of by the other spouse as being alive for a period of at least seven years, then the spouse who is alive can obtain a divorce.

Conversion

If a spouse converts to another religion then the partner can seek divorce. This reason does not require any time limit to have passed before divorce can be filed.

Renunciation of the World

If either of the spouses surrenders his or her married life and chooses to be a Sanyas or Sanyasi, the aggrieved spouse may obtain a divorce on this ground.

Unsoundness of mind

Prior to the Marriage Laws (Amendment) Act 1976, a petition for divorce might be presented by a spouse on the ground (a) that the respondent had been incurably of unsound mind, and (b) that the respondent had been so for a continuous period of not less than three years immediately before the filing of the petition

Documents Required To File A Petition For a Divorce

Marriage certificate
Address proof of wife
Address proof of husband
Address of matrimonial home
4 passport size photographs of marriage
Evidence proving couple has been living separately for more than 1 year
Evidence relating to the failed attempts of reconciliation
Income tax statements for the last 2-3 years
Details of profession and present salaries
Information about family of both the spouses

VOID MARRIAGES

The following grounds shall render a marriage void/ illegal:

Bigamy

The offence of marrying someone while already married to another person is bigamy. The subsequent marriage is an illegal marriage. It is void-ab-initio and non-existent.

Lineal ascendants are to be seen from both sides, i.e. from the father’s side as well as from the mother’s side. So,both the father and mother are lineal ascendants fall in degrees of disallowed relationships.

Sapinda Relations

Presuming A to be a boy. Since he is regarded as one generation, relatives falling in four more generations upwards from him from the side of his father shall be his Sapinda relations. Therefore, A’s father, A’s grand-father, A’s great grand-father and the father of A’s great grand-father shall all be A’s Sapinda relations. But on the mother’s side, this chain is to be extended to only three generations that include A.Therefore, A’s mother and A’s maternal grand-mother only, shall be A’s Sapinda relations from the mother’ side, ‘A’ himself being one generation. Marriages of such relationships are void.

The Provisions Relating To Child Custody

Courts generally agree to the decision of the parents in a mutual consent divorce, however, the Courts are supposed to see to the best interest of the child. In a contested divorce, the courts examine the ability of the parents of the child. For instance, money is not the most important factor that is considered, non-working mothers are often given custody of the child with the father expected to provide financial assistance.

Jurisdiction of Court

Section 19 of the Hindu Marriage Act deals with the jurisdiction of the Court in which a petition under this Act shall be presented. But a question arises as to whether an aggrieved party to a Christian marriage who is a Hindu can initiate proceedings under the Act for dissolution of marriage by a decree of divorce under Section 13 of the Act. It is held that a petition for such relief is not maintainable under this Act even if one of the parties to the marriage is a Hindu. The test to attract the jurisdiction of the Court under this Act is whether the marriage is a Hindu marriage under Section 5 of the Act and both the parties to the marriage are Hindus and the solemnization of the marriage is done in accordance with the provisions of Section 7 of the Act
Ex parte divorce decree passed in a foreign court, effect thereof.

The husband in a case filed a petition for divorce in a foreign court. The wife had no means to contest the proceedings there. It was held that non-contesting of proceedings by the wife would not mean that she conceded the jurisdiction of the court. Thus an ex parte decree passed against her is violative of the principles of natural justice and as such a nullity. Subsequent petition for divorce by the wife in India on the ground of adultery cruelty and desertion is not barred by the principles of estoppel or from res judicata because she had accepted maintenance under the foreign judgment.

Modes of Divorce in Muslim

A husband may divorce his wife by repudiating the marriage without giving any reason. Pronouncement of such words which signify his intention to disown the wife is sufficient. Generally this done by talaaq. But he may also divorce by Ila, and Zihar which differ from talaaq only in form, not in substance. A wife cannot divorce her husband of her own accord. She can divorce the husband only when the husband has delegated such a right to her or under an agreement. Under an agreement the wife may divorce her husband either by Khula or Mubarat. Before 1939, a Muslim wife had no right to seek divorce except on the ground of false charges of adultery, insanity or impotency of the husband. But the Dissolution of Muslim Marriages Act 1939 lays down several other grounds on the basis of which a Muslim wife may get her divorce decree passed by the order of the Court.

There are two categories of divorce under the Muslim law:

1.Extra judicial divorce
2.Judicial divorce

The category of extra judicial divorce can be further subdivided into three types, namely,

By husband- talaaq, ila, and zihar.
By wife- talaaq-i-tafweez, lian.
By mutual agreement- khula and mubarat.

The second category is the right of the wife to give divorce under the Dissolution of Muslim Marriages Act 1939.

Talaaq: Talaaq in its primitive sense means dismission. In its literal meaning, it means “setting free”, “letting loose”, or taking off any “ties or restraint”. In Muslim Law it means freedom from the bondage of marriage and not from any other bondage. In legal sense it means dissolution of marriage by husband using appropriate words. In other words, talaaq is repudiation of marriage by the husband in accordance with the procedure laid down by the law.

The following verse is in support of the husband’s authority to pronounce unilateral divorce is often cited:

Men are maintainers of women, because Allah has made some of them to excel others and because they spend out of their property (on their maintenance and dower) . When the husband exercises his right to pronounce divorce, technically this is known as talaaq. The most remarkable feature of Muslim law of Talaaq is that all the schools of the Sunnis and the Shias recognize it differing only in some details. In Muslim world, so widespread has been the talaaq that even the Imams practised it. The absolute power of a Muslim husband of divorcing his wife unilaterally, without assigning any reason, literally at his whim, even in a jest or in a state of intoxication, and without recourse to the court, and even in the absence of the wife, is recognized in modern India. All that is necessary is that the husband should pronounce talaaq; how he does it, when he does it, or in what he does it is not very essential.

Conditions for a valid talaaq

Capacity

Every Muslim husband of sound mind, who has attained the age of puberty, is competent to pronounce talaaq.It is not necessary for him to give any reason for his pronouncement. A husband who is minor or of unsound mind cannot pronounce it. Talaaq by a minor or of a person of unsound mind is void and ineffective. However, if a husband is lunatic then talaaq pronounced by him during “lucid interval” is valid. The guardian cannot pronounce talaaq on behalf of a minor husband. When insane husband has no guardian, the Qazi or a Judge has the right to dissolve the marriage in the interest of such a husband.

Free Consent

Except under Hanafi law, the consent of the husband in pronouncing talaaq must be of a free consent. Under Hanafi law, a talaaq, pronounced under compulsion, coercion, undue influence, fraud and voluntary intoxication etc., is valid and dissolves the marriage.

Involuntary intoxication

Talaaq pronounced under forced or involuntary intoxication is void even under the Hanafi law.

Shia law

Under the Shia law (and also under other schools of Sunnis) a talaaq pronounced under compulsion, coercion, undue influence, fraud, or voluntary intoxication is void and ineffective.

Formalities: According to Sunni law, a talaaq, may be oral or in writing. It may be simply uttered by the husband or he may write a Talaaqnama. No specific formula or use of any particular word is required to constitute a valid talaaq. Any expression which clearly indicates the husband’s desire to break the marriage is sufficient. It need not be made in the presence of the witnesses.

According to Shias, talaaq, must be pronounced orally, except where the husband is unable to speak. If the husband can speak but gives it in writing, the talaaq, is void under Shia law. Here talaaq must be pronounced in the presence of two witnesses.

Express words

The words of talaaq must clearly indicate the husband’s intention to dissolve the marriage. If the pronouncement is not express and is ambiguous then it is absolutely necessary to prove that the husband clearly intends to dissolve the marriage.

Express Talaaq (by husband)
When clear and unequivocal words, such as “I have divorced thee” are uttered, the divorce is express. The express talaaq, falls into two categories:
Talaaq-i-sunnat
Talaaq-i-biddat
Talaaq-i-sunnat has two forms
Talaaq-i-ahasan (Most approved)
Talaaq-i-hasan (Less approved)

Talaaq-i-sunnat is considered to be in accordance with the dictates of Prophet Mohammad.

The ahasan talaaq: consists of a single pronouncement of divorce made in the period of tuhr (purity, between two menstruations), or at any time, if the wife is free from menstruation, followed by abstinence from sexual intercourse during the period if iddat. The requirement that the pronouncement be made during a period of tuhr applies only to oral divorce and does not apply to talaaq in writing. Similarly, this requirement is not applicable when the wife has passed the age of menstruation or the parties have been away from each other for a long time, or when the marriage has not been consummated. The advantage of this form is that divorce can revoked at any time before the completion of the period of iddat, thus hasty, thoughtless divorce can be prevented. The revocation may effected expressly or impliedly.

Thus, if before the completion of iddat, the husband resumes cohabitation with his wife or says I have retained thee” the divorce is revoked. Resumption of sexual intercourse before the completion of period of iddat also results in the revocation of divorce.

The Raad-ul-Muhtar puts it thus: “It is proper and right to observe this form, for human nature is apt to be mislead and to lead astray the mind far to perceive faults which may not exist and to commit mistakes of which one is certain to feel ashamed afterwards.”

The hasan talaaq

In this the husband is required to pronounce the formula of talaaq three time during three successive tuhrs. If the wife has crossed the age of menstruation, the pronouncement of it may be made after the interval of a month or thirty days between the successive pronouncements. When the last pronouncement is made, the talaaq, becomes final and irrevocable.It is necessary that each of the three pronouncements should be made at a time when no intercourse has taken place during the period of tuhr. Example: W, a wife, is having her period of purity and no sexual intercourse has taken place. At this time, her husband, H, pronounces talaaq, on her. This is the first pronouncement by express words. Then again, when she enters the next period of purity, and before he indulges in sexual intercourse, he makes the second pronouncement. He again revokes it. Again when the wife enters her third period of purity and before any intercourse takes place H pronounces the third pronouncement. The moment H makes this third pronouncement, the marriage stands dissolved irrevocably, irrespective of iddat.

According to Shias, talaaq, must be pronounced orally, except where the husband is unable to speak. If the husband can speak but gives it in writing, the talaaq, is void under Shia law. Here talaaq must be pronounced in the presence of two witnesses.

Express words

The words of talaaq must clearly indicate the husband’s intention to dissolve the marriage. If the pronouncement is not express and is ambiguous then it is absolutely necessary to prove that the husband clearly intends to dissolve the marriage.

Express Talaaq (by husband)
When clear and unequivocal words, such as “I have divorced thee” are uttered, the divorce is express. The express talaaq, falls into two categories:
Talaaq-i-sunnat
Talaaq-i-biddat
Talaaq-i-sunnat has two forms
Talaaq-i-ahasan (Most approved)
Talaaq-i-hasan (Less approved)

Talaaq-i-sunnat is considered to be in accordance with the dictates of Prophet Mohammad.

The ahasan talaaq: consists of a single pronouncement of divorce made in the period of tuhr (purity, between two menstruations), or at any time, if the wife is free from menstruation, followed by abstinence from sexual intercourse during the period if iddat. The requirement that the pronouncement be made during a period of tuhr applies only to oral divorce and does not apply to talaaq in writing. Similarly, this requirement is not applicable when the wife has passed the age of menstruation or the parties have been away from each other for a long time, or when the marriage has not been consummated. The advantage of this form is that divorce can revoked at any time before the completion of the period of iddat, thus hasty, thoughtless divorce can be prevented. The revocation may effected expressly or impliedly.

Thus, if before the completion of iddat, the husband resumes cohabitation with his wife or says I have retained thee” the divorce is revoked. Resumption of sexual intercourse before the completion of period of iddat also results in the revocation of divorce.

The Raad-ul-Muhtar puts it thus: “It is proper and right to observe this form, for human nature is apt to be mislead and to lead astray the mind far to perceive faults which may not exist and to commit mistakes of which one is certain to feel ashamed afterwards.”

The hasan talaaq

In this the husband is required to pronounce the formula of talaaq three time during three successive tuhrs. If the wife has crossed the age of menstruation, the pronouncement of it may be made after the interval of a month or thirty days between the successive pronouncements. When the last pronouncement is made, the talaaq, becomes final and irrevocable.It is necessary that each of the three pronouncements should be made at a time when no intercourse has taken place during the period of tuhr. Example: W, a wife, is having her period of purity and no sexual intercourse has taken place. At this time, her husband, H, pronounces talaaq, on her. This is the first pronouncement by express words. Then again, when she enters the next period of purity, and before he indulges in sexual intercourse, he makes the second pronouncement. He again revokes it. Again when the wife enters her third period of purity and before any intercourse takes place H pronounces the third pronouncement. The moment H makes this third pronouncement, the marriage stands dissolved irrevocably, irrespective of iddat.

Talaaq-i-Biddat

It came into vogue during the second century of Islam. It has two forms: (i) the triple declaration of talaaq made in a period of purity, either in one sentence or in three, (ii) the other form constitutes a single irrevocable pronouncement of divorce made in a period of tuhr or even otherwise. This type of talaaq is not recognized by the Shias. This form of divorce is condemned. It is considered heretical, because of its irrevocability.

Ila

Besides talaaq, a Muslim husband can repudiate his marriage by two other modes, that are, Ila and Zihar. They are called constructive divorce. In Ila, the husband takes an oath not to have sexual intercourse with his wife. Followed by this oath, there is no consummation for a period of four months. After the expiry of the fourth month, the marriage dissolves irrevocably. But if the husband resumes cohabitation within four months, Ila is cancelled and the marriage does not dissolve. Under Ithna Asharia (Shia) School, Ila, does not operate as divorce without order of the court of law. After the expiry of the fourth month, the wife is simply entitled for a judicial divorce. If there is no cohabitation, even after expiry of four months, the wife may file a suit for restitution of conjugal rights against the husband.

Zihar

In this mode the husband compares his wife with a woman within his prohibited relationship e.g., mother or sister etc.The husband would say that from today the wife is like his mother or sister. After such a comparison the husband does not cohabit with his wife for a period of four months. Upon the expiry of the said period Zihar is complete.

After the expiry of fourth months the wife has following rights

She may go to the court to get a decree of judicial divorce
She may ask the court to grant the decree of restitution of conjugal rights.

Where the husband wants to revoke Zihar by resuming cohabitation within the said period, the wife cannot seek judicial divorce. It can be revoked if:

The husband observes fast for a period of two months, or,
He provides food at least sixty people, or,
He frees a slave.

According to Shia law Zihar must be performed in the presence of two witnesses.

Divorce by Mutual Agreement

Khula and Mubarat

They are two forms of divorce by mutual consent but in either of them, the wife has to part with her dower or a part of some other property. A verse in the Holy Quran runs as: “And it not lawful for you that ye take from women out of that which ye have given them: except (in the case) when both fear that they may not be able to keep within the limits (imposed by Allah), in that case it is no sin for either of them if the woman ransom herself.” The word khula, in its original sense means “to draw” or “dig up” or “to take off” such as taking off one’s clothes or garments. It is said that the spouses are like clothes to each other and when they take khula each takes off his or her clothes, i.e., they get rid of each other.

In law it is said to signify an agreement between the spouses for dissolving a connubial union in lieu of compensation paid by the wife to her husband out of her property. Although consideration for Khula is essential, the actual release of the dower or delivery of property constituting the consideration is not a condition precedent for the validity of the khula. Once the husband gives his consent, it results in an irrevocable divorce. The husband has no power of cancelling the ‘khul’ on the ground that the consideration has not been paid. The consideration can be anything, usually it is mahr, the whole or part of it. But it may be any property though not illusory. In mubarat, the outstanding feature is that both the parties desire divorce. Thus, the proposal may emanate from either side. In mubarat both, the husband and the wife, are happy to get rid of each other . Among the Sunnis when the parties to marriage enter into a mubarat all mutual rights and obligations comes to an end.

The Shia law is stringent though. It requires that both the parties must bona fide find the marital relationship to be irksome and cumbersome. Among the Sunnis no specific form is laid down, but the Shias insist on a proper form. The Shias insist that the word mubarat should be followed by the word talaaq, otherwise no divorce would result. They also insist that the pronouncement must be in Arabic unless the parties are incapable of pronouncing the Arabic words.Intention to dissolve the marriage should be clearly expressed. Among both, Shias and Sunnis, mubarat is irrevocable. Other requirements are the same as in khula and the wife must undergo the period of iddat and in both the divorce is essentially an act of the parties, and no intervention by the court is required.

Divorce by wife

The divorce by wife can be categorized under three categories

Talaaq-i-tafweez
Lian
By Dissolution of Muslim Marriages Act,1939

Talaaq-i-tafweez or delegated divorce is recognized among both, the Shias and the Sunnis. The Muslim husband is free to delegate his power of pronouncing divorce to his wife or any other person. He may delegate the power absolutely or conditionally, temporarily or permanently.A permanent delegation of power is revocable but a temporary delegation of power is not. This delegation must be made distinctly in favour of the person to whom the power is delegated, and the purpose of delegation must be clearly stated. The power of talaaq may be delegated to his wife and as Faizee observes, “this form of delegated divorce is perhaps the most potent weapon in the hands of a Muslim wife to obtain freedom without the intervention of any court and is now beginning to be fairly common in India”.

This form of delegated divorce is usually stipulated in prenuptial agreements. In Md. Khan v. Shahmai, under a prenuptial agreement, a husband, who was a Khana Damad, undertook to pay certain amount of marriage expenses incurred by the father-in-law in the event of his leaving the house and conferred a power to pronounce divorce on his wife. The husband left his father-in-law’s house without paying the amount. The wife exercised the right and divorced herself. It was held that it was a valid divorce in the exercise of the power delegated to her. Delegation of power may be made even in the post marriage agreements. Thus where under an agreement it is stipulated that in the event of the husband failing to pay her maintenance or taking a second wife, the will have a right of pronouncing divorce on herself, such an agreement is valid, and such conditions are reasonable and not against public policy . It should be noted that even in the event of contingency, whether or not the power is to be exercised, depend upon the wife she may choose to exercise it or she may not. The happening of the event of contingency does not result in automatic divorce.

Lian

If the husband levels false charges of unchastity or adultery against his wife then this amounts to character assassination and the wife has got the right to ask for divorce on these grounds. Such a mode of divorce is called Lian. However, it is only a voluntary and aggressive charge of adultery made by the husband which, if false, would entitle the wife to get the wife to get the decree of divorce on the ground of Lian. Where a wife hurts the feelings of her husband with her behaviour and the husband hits back an allegation of infidelity against her, then what the husband says in response to the bad behaviour of the wife, cannot be used by the wife as a false charge of adultery and no divorce is to be granted under Lian. This was held in the case of Nurjahan v. Kazim Ali by the Calcutta High Court.

In the absence of both the parents or on their being disqualified the grandfather is entitled to custody. Among the Malikis following females are entitled to custody in the absence of mother:

Maternal Grandmother
Maternal Great Grandmother
Maternal Aunt and Great Aunt
Full sister
Uterine sister
Consanguine sister
Paternal aunt

Divorce under Christian Law

Indian Divorce Act 1869,deals with the laws governing divorce among Christian there has been criticism about the title of the Act.Since it only governs divorce among Christian community in India .In 2001, by the Amendment the word the Indian was dropped but still it seems incompleteas in other other Personal Law Statues religion has been specified. eg:Hindu Marriages Act 1955.the Muslim Personal Law (Shariat) application 1937,Indian Christian Marriage Act 1872

According to Section 2 of the Act for filing a suit for divorce one of the parties to be Christian and both the parties must bea domicile in India at the time of filing of the petition.In case of any of the parties is not domiciled in India the cease to have jurisdiction to look in to the matter
In case of Dalal v Dalal (AIR 1930) Bombay,385, it was held that when wife is a Russian Christian and husband is a Parsi by religion the Court has jurisdiction to try wife’s petition for restitution.

Scenario before and after Indian Divorce Amendment Act, 2001

Prior to the 2001, Indian Amendment Act the grounds for divorce for Indian Christian men and women are Different husbands had only one ground i.e adultery where wife were given several grounds adultery bigamy sodomy,rape etc.These provisions were criticized and termed and outdated rudimentary and sluggish and also considered as violative of fundamental rights as provided under Ar 14,15 and art 21 of the constitution.Even these provisions are not at par with the concerned provisions under Special Marriage Act 1954 and other statues are different from personal laws.

That the whereabouts of the husband have not been known for a period of four years: if the husband is missing for a period of four years the wife may file a petition for the dissolution of her marriage. The husband is deemed to be missing if the wife or any such person, who is expected to have knowledge of the husband, is unable to locate the husband. Section 3 provides that where a wife files petition for divorce under this ground, she is required to give the names and addresses of all such persons who would have been the legal heirs of the husband upon his death. The court issues notices to all such persons appear before it and to state if they have any knowledge about the missing husband.

Talaaq-i-Biddat

It came into vogue during the second century of Islam. It has two forms: (i) the triple declaration of talaaq made in a period of purity, either in one sentence or in three, (ii) the other form constitutes a single irrevocable pronouncement of divorce made in a period of tuhr or even otherwise. This type of talaaq is not recognized by the Shias. This form of divorce is condemned. It is considered heretical, because of its irrevocability.

Ila

Besides talaaq, a Muslim husband can repudiate his marriage by two other modes, that are, Ila and Zihar. They are called constructive divorce. In Ila, the husband takes an oath not to have sexual intercourse with his wife. Followed by this oath, there is no consummation for a period of four months. After the expiry of the fourth month, the marriage dissolves irrevocably. But if the husband resumes cohabitation within four months, Ila is cancelled and the marriage does not dissolve. Under Ithna Asharia (Shia) School, Ila, does not operate as divorce without order of the court of law. After the expiry of the fourth month, the wife is simply entitled for a judicial divorce. If there is no cohabitation, even after expiry of four months, the wife may file a suit for restitution of conjugal rights against the husband.

Zihar

In this mode the husband compares his wife with a woman within his prohibited relationship e.g., mother or sister etc.The husband would say that from today the wife is like his mother or sister. After such a comparison the husband does not cohabit with his wife for a period of four months. Upon the expiry of the said period Zihar is complete.

After the expiry of fourth months the wife has following rights

She may go to the court to get a decree of judicial divorce
She may ask the court to grant the decree of restitution of conjugal rights.

Where the husband wants to revoke Zihar by resuming cohabitation within the said period, the wife cannot seek judicial divorce. It can be revoked if:

The husband observes fast for a period of two months, or,
He provides food at least sixty people, or,
He frees a slave.

According to Shia law Zihar must be performed in the presence of two witnesses.

Divorce by Mutual Agreement

Khula and Mubarat

They are two forms of divorce by mutual consent but in either of them, the wife has to part with her dower or a part of some other property. A verse in the Holy Quran runs as: “And it not lawful for you that ye take from women out of that which ye have given them: except (in the case) when both fear that they may not be able to keep within the limits (imposed by Allah), in that case it is no sin for either of them if the woman ransom herself.” The word khula, in its original sense means “to draw” or “dig up” or “to take off” such as taking off one’s clothes or garments. It is said that the spouses are like clothes to each other and when they take khula each takes off his or her clothes, i.e., they get rid of each other.

In law it is said to signify an agreement between the spouses for dissolving a connubial union in lieu of compensation paid by the wife to her husband out of her property. Although consideration for Khula is essential, the actual release of the dower or delivery of property constituting the consideration is not a condition precedent for the validity of the khula. Once the husband gives his consent, it results in an irrevocable divorce. The husband has no power of cancelling the ‘khul’ on the ground that the consideration has not been paid. The consideration can be anything, usually it is mahr, the whole or part of it. But it may be any property though not illusory. In mubarat, the outstanding feature is that both the parties desire divorce. Thus, the proposal may emanate from either side. In mubarat both, the husband and the wife, are happy to get rid of each other . Among the Sunnis when the parties to marriage enter into a mubarat all mutual rights and obligations comes to an end.

The Shia law is stringent though. It requires that both the parties must bona fide find the marital relationship to be irksome and cumbersome. Among the Sunnis no specific form is laid down, but the Shias insist on a proper form. The Shias insist that the word mubarat should be followed by the word talaaq, otherwise no divorce would result. They also insist that the pronouncement must be in Arabic unless the parties are incapable of pronouncing the Arabic words.Intention to dissolve the marriage should be clearly expressed. Among both, Shias and Sunnis, mubarat is irrevocable. Other requirements are the same as in khula and the wife must undergo the period of iddat and in both the divorce is essentially an act of the parties, and no intervention by the court is required.

Divorce by wife

The divorce by wife can be categorized under three categories

Talaaq-i-tafweez
Lian
By Dissolution of Muslim Marriages Act,1939

Talaaq-i-tafweez or delegated divorce is recognized among both, the Shias and the Sunnis. The Muslim husband is free to delegate his power of pronouncing divorce to his wife or any other person. He may delegate the power absolutely or conditionally, temporarily or permanently.A permanent delegation of power is revocable but a temporary delegation of power is not. This delegation must be made distinctly in favour of the person to whom the power is delegated, and the purpose of delegation must be clearly stated. The power of talaaq may be delegated to his wife and as Faizee observes, “this form of delegated divorce is perhaps the most potent weapon in the hands of a Muslim wife to obtain freedom without the intervention of any court and is now beginning to be fairly common in India”.

This form of delegated divorce is usually stipulated in prenuptial agreements. In Md. Khan v. Shahmai, under a prenuptial agreement, a husband, who was a Khana Damad, undertook to pay certain amount of marriage expenses incurred by the father-in-law in the event of his leaving the house and conferred a power to pronounce divorce on his wife. The husband left his father-in-law’s house without paying the amount. The wife exercised the right and divorced herself. It was held that it was a valid divorce in the exercise of the power delegated to her. Delegation of power may be made even in the post marriage agreements. Thus where under an agreement it is stipulated that in the event of the husband failing to pay her maintenance or taking a second wife, the will have a right of pronouncing divorce on herself, such an agreement is valid, and such conditions are reasonable and not against public policy . It should be noted that even in the event of contingency, whether or not the power is to be exercised, depend upon the wife she may choose to exercise it or she may not. The happening of the event of contingency does not result in automatic divorce.

Lian

If the husband levels false charges of unchastity or adultery against his wife then this amounts to character assassination and the wife has got the right to ask for divorce on these grounds. Such a mode of divorce is called Lian. However, it is only a voluntary and aggressive charge of adultery made by the husband which, if false, would entitle the wife to get the wife to get the decree of divorce on the ground of Lian. Where a wife hurts the feelings of her husband with her behaviour and the husband hits back an allegation of infidelity against her, then what the husband says in response to the bad behaviour of the wife, cannot be used by the wife as a false charge of adultery and no divorce is to be granted under Lian. This was held in the case of Nurjahan v. Kazim Ali by the Calcutta High Court.

In the absence of both the parents or on their being disqualified the grandfather is entitled to custody. Among the Malikis following females are entitled to custody in the absence of mother:

Maternal Grandmother
Maternal Great Grandmother
Maternal Aunt and Great Aunt
Full sister
Uterine sister
Consanguine sister
Paternal aunt

Divorce under Christian Law

Indian Divorce Act 1869,deals with the laws governing divorce among Christian there has been criticism about the title of the Act.Since it only governs divorce among Christian community in India .In 2001, by the Amendment the word the Indian was dropped but still it seems incompleteas in other other Personal Law Statues religion has been specified. eg:Hindu Marriages Act 1955.the Muslim Personal Law (Shariat) application 1937,Indian Christian Marriage Act 1872

According to Section 2 of the Act for filing a suit for divorce one of the parties to be Christian and both the parties must bea domicile in India at the time of filing of the petition.In case of any of the parties is not domiciled in India the cease to have jurisdiction to look in to the matter
In case of Dalal v Dalal (AIR 1930) Bombay,385, it was held that when wife is a Russian Christian and husband is a Parsi by religion the Court has jurisdiction to try wife’s petition for restitution.

Scenario before and after Indian Divorce Amendment Act, 2001

Prior to the 2001, Indian Amendment Act the grounds for divorce for Indian Christian men and women are Different husbands had only one ground i.e adultery where wife were given several grounds adultery bigamy sodomy,rape etc.These provisions were criticized and termed and outdated rudimentary and sluggish and also considered as violative of fundamental rights as provided under Ar 14,15 and art 21 of the constitution.Even these provisions are not at par with the concerned provisions under Special Marriage Act 1954 and other statues are different from personal laws.

That the whereabouts of the husband have not been known for a period of four years: if the husband is missing for a period of four years the wife may file a petition for the dissolution of her marriage. The husband is deemed to be missing if the wife or any such person, who is expected to have knowledge of the husband, is unable to locate the husband. Section 3 provides that where a wife files petition for divorce under this ground, she is required to give the names and addresses of all such persons who would have been the legal heirs of the husband upon his death. The court issues notices to all such persons appear before it and to state if they have any knowledge about the missing husband.

If nobody knows then the court passes a decree to this effect which become

s effective only after the expiry of six months. If before the expiry, the husband reappears, the court shall set aside the decree and the marriage is not dissolved.

That the husband has neglected or has failed to provide for her maintenance for a period of two years: it is a legal obligation of every husband to maintain his wife, and if he fails to do so, the wife may seek divorce on this ground. A husband may not maintain his wife either because he neglects her or because he has no means to provide her maintenance. In both the cases the result would be the same. The husband’s obligation to maintain his wife is subject to wife’s own performance of matrimonial obligations. Therefore, if the wife lives separately without any reasonable excuse, she is not entitled to get a judicial divorce on the ground of husband’s failure to maintain her because her own conduct disentitles her from maintenance under Muslim law.

That the husband has been sentenced to imprisonment for a period of seven years or upwards: the wife’s right of judicial divorce on this ground begins from the date on which the sentence becomes final. Therefore, the decree can be passed in her favour only after the expiry of the date for appeal by the husband or after the appeal by the husband has been dismissed by the final court.
That the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years: the Act does define ‘marital obligations of the husband’. There are several marital obligations of the husband under Muslim law. But for the purpose of this clause husband’s failure to perform only those conjugal obligations may be taken into account which are not included in any of the clauses of Section 2 of this Act.
That the husband was impotent at the time of the marriage and continues to be so: for getting a decree of divorce on this ground, the wife has to prove that the husband was impotent at the time of the marriage and continues to be impotent till the filing of the suit. Before passing a decree of divorce of divorce on this ground, the court is bound to give to the husband one year to improve his potency provided he makes an application for it. If the husband does not give such application, the court shall pass the decree without delay. In Gul Mohd. Khan v. Hasina the wife filed a suit for dissolution of marriage on the ground of impotency. The husband made an application before the court seeking an order for proving his potency. The court allowed him to prove his potency.
If the husband has been insane for a period of two years or is suffering from leprosy or a virulent veneral disease: the husband’s insanity must be for two or more years immediately preceding the presentation of the suit. But this act does not specify that the unsoundness of mind must be curable or incurable. Leprosy may be white or black or cause the skin to wither away. It may be curable or incurable. Veneral disease is a disease of the sex organs. The Act provides that this disease must be of incurable nature. It may be of any duration. Moreover even if this disease has been infected to the husband by the wife herself, she is entitled to get divorce on this ground.
That she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years, provided that the marriage has not been consummated
That the husband treats her with cruelty, that is to say
Habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical illtreatment, or
Associates with women of ill-repute or leads an infamous life, or
Attempts to force her to lead an immoral life, or
) Disposes of her property or prevents her exercising her legal rights over it, or
Obstructs her in the observance of her religious profession or practice, or
If he has more than one wives, does not treat her equitably in accordance with the injunctions of the Holy Quran.

In Syed Ziauddin v. Parvez Sultana, Parvez Sultana was a science graduate and she wanted to take admission in a college for medical studies. She needed money for her studies. Syed Ziaudddin promised to give her money provided she married him. She did. Later she filed for divorce for non-fulfillment of promise on the part of the husband. The court granted her divorce on the ground of cruelty. Thus we see the court’s attitude of attributing a wider meaning to the expression cruelty. In Zubaida Begum v. Sardar Shah, a case from Lahore High Court, the husband sold the ornaments of the wife with her consent. It was submitted that the husband’s conduct does not amount to cruelty.

Irretrievable Breakdown

Divorce on the basis of irretrievable breakdown of marriage has come into existence in Muslim Law through the judicial interpretation of certain provisions of Muslim law. In 1945 in Umar Bibi v. Md. Din , it was argued that the wife hated her husband so much that she could not possibly live with him and there was total incompatibility of temperaments. On these grounds the court refused to grant a decree of divorce. But twenty five years later in Neorbibi v. Pir Bux, again an attempt was made to grant divorce on the ground of irretrievable breakdown of marriage. This time the court granted the divorce. Thus in Muslim law of modern India, there are two breakdown grounds for divorce: (a) non-payment of maintenance by the husband even if the failure has resulted due to the conduct of the wife, (b) where there is total irreconcilability between the spouses.

Custody of Child Under Muslim Law

The first and foremost right to have the custody of children belongs to the mother and she cannot be deprived of her right so long as she is not found guilty of misconduct. Mother has the right of custody so long as she is not disqualified. This right is known as right of hizanat and it can be enforced against the father or any other person. The mother’s right of hizanat was solely recognized in the interest of the children and in no sense it is an absolute right”
‘Son—”Among the Hanafis, it is an established rule that mother’s right of hizanat over her son terminates on the latter’s completing the age of 7 years. The Shias hold the view that the mother is entitled to the custody of her son till he is weaned. Among the Malikis the mother’s right of hizanat over her son continues till the child has attained the age of puberty. The rule among the Shafiis and the Hanabalis remains the same.”

Daughter- Among the hanafis the mother is entitled to the custody of her daughters till the age of puberty and among the Malilikis, Shafiis and the Hanabalis the mother’s right of custody over her daughters continues till they are married. Under the Ithna Ashari law the mother is entitled to the custody of her daughters till they attain the age of 7. The mother has the right of custody of her children up to the ages specified in each school, irrespective of the fact whether the child is legitimate or illegitimate.Mother cannot surrender her right to any person including her husband, the father of the child. Under the Shia school after the mother hizanat belongs to the father.

Dissolution of Muslim Marriages Act,1939

Qazi Mohammad Ahmad Kazmi had introduced a bill in the Legislature regarding the issue on 17th April 1936. It however became law on 17th March 1939 and thus stood the Dissolution of Muslim Marriages Act,1939.

Section 2 of the Act runs thereunder

A woman married under Muslim law shall be entitled to obtain a decree for divorce for the dissolution of her marriage on any one or more of the following grounds, namely:

In case of Mary Sonia Zachariah v Union of India in 1990 (DMC Kerala ) held that Section 10 of the Act is opposed to Article 14 ,15 and 21 of the Constitution of India as it denies the equality among men and women and it is also a discrimination and it also denies a right of Christian wife which denies the basic right of dignity and fair treatment.Based on such adequancies in the provisions of Section 10 of the Act were several objections were raised by such community which held to Amendment Act of 2001.Within this amendment the ground of divorce are made with consonance with the Special Marriage Act, 1954 and other personal laws relating to marriage and divorce.Common grounds for divorce were formulated for both husband and wife.The amendment has both retrospective and prospective effect and restricts the jurisdictions of the Courts since only the District Courts have only original jurisdiction for adjudicating a divorce petition.

Under Section 10 of the Indian Divorce Act, a husband can seek divorce on the ground that after solemnization of marriage the wife has been guilty of adultery.
A wife, however, may file petition for divorce on any of the following grounds

Husband has changed his religion and started professing some other religion than Christianity.
Husband has married another woman.
Husband has been guilty of incestuous adultery, meaning unlawful intercourse between relatives or between persons who are closely related.
Husband has committed bigamy with adultery, meaning adultery with the same woman bigamy was committed.
Husband has married another woman with adultery.
Husband has committed rape, sodomy or bestiality.
Adultery coupled with cruelty.
Adultery coupled with desertion, without reasonable excuse for more than two years

Under Divorce Law in India, Sec. 19 of the Indian Divorce Act lays down specific grounds on which a decree can be obtained to the effect of declaring the marriage as null and void;

Husband or Wife impotent at the time of marriage and at the time of institution of suit.
Parties are within prohibited degrees of consanguinity or affinity.
Either party is a lunatic or idiot at the time of marriage.
Subsisting marriage with one’s former husband or wife.
Consent of either party obtained by force or fraud.
A suit for judicial separation can be sought under Sec. 22 of the Act on the grounds of adultery, desertion and cruelty.
As per the Indian Divorce Act, a person can re-marry 6 months after the order of the High Court date confirming of the decree for the dissolution of marriage made by a District Judge.
After 6 months from the date on which a decree of dissolving of marriage is passed by a High Court and no appeal has been made when appeal has been dismissed.

Rights of Disabled Person in India

INTRODUCTION

Disabilities can be physical in nature, cognitive, behavioural, or even emotional. All human beings are born free and equal in dignity and rights. People with disabilities all over the world experience human rights violations, stigma and discrimination. To have a disability means that one has fundamental difficulty accomplishing things that others take for granted. There are many social factors that can affect whether or not individuals with disabilities are included or excluded from participation on various activities, which in turn can affect development or esteem. Disability is thus just not a health problem. It is a complex phenomenon, reflecting the interaction between features of a person’s body and features of the society in which he or she lives.

MEANING OF DISABILITTY

Disability is an impairment that may be cognitive, developmental, intellectual, mental, physical sensory, or some combination of these. It substantially affects a person’s life activities and may be present from birth or occur during a person’s lifetime.

Constitutional Rights of Disabled Persons Prohibition of Discrimination

Article 15 is a manifestation of “Right to Equality” under article 14, as it enshrines a specific dimension of the principles of equality relating to discrimination by state or various grounds . Under article 15 the protection extends only to citizens , unlike article 14 which protects ‘ any person’ . Thus in application article 15 protects from discriminatory state activities but the ambit of article 15 is narrower than that of article 14.
Article 15 of the Indian constitution deals with “prohibition of discrimination” on the grounds of religion, race, caste, sex or place of birth.
Article 15(2) says, no citizen shall on the grounds only of religion, race, caste, sex, place of birth or any of them, be subjected to any disabilities liability restriction or condition with regard to:

(a) Access to shops, public restaurants, hotels and places of public entertainment; or
(b) The use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of the state funds dedicated to the use of the general public.
Equity In Social, Economic And Cultural Rights

Article 25 says recognizes the “right of a person with disabilities to education. With a view to realizing this right without discrimination and on the basis of equal opportunity , state parties shall ensure an inclusive education system at all levels and lifelong learning.” They considered constitution to grant education to children with disabilities if they explicitly guarantee the right to education , the right to free education, or the right to compulsory education to children with disabilities or prohibit discrimination in education on the basis if disability. Globally only 28% of the countries provide some type of constitutional guarantee of educational rights or the children with disabilities.

Right To Liberty

Article 14 instructs state parties to guarantee people with disabilities the right to liberty and security of person. We considered the right to liberty to be guaranteed to persons with disabilities if they were explicitly granted the right to freedom or liberty. Globally, only 9% of the constitution explicitly guarantee the right to liberty to persons with disabilities. However 19% of the constitution specifies that the right to liberty can be denied to persons with the mental health condition.

Right to Freedom of Expression

Article 21, states that to “take all appropriate measures to ensure that persons with disabilities can exercise the right to freedom of expression and opinion include the freedom to seek, receive and impart information and ideas on an equal basis with others and through all forms of communications of their choice.”

INTERNATIONAL HUMANRIGHTS (UN CHARTER)

The United Nations Convention on the rights of persons with disabilities is an international human rights instrument, which intends to protect the dignity and rights of individuals with disabilities. Article 55 says that With a view to the creation of conditions of stability and well being which are necessary for the peaceful and friendly relations among nations based on respect for the principle of equal rights and self determination of people’s, the United Nations s shall promote:

Higher standard of living , full employment and conditions of economic and social progress and development.solutions of international economic, social, health, and related problems and international cultural and educational cooperation.Universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.

Right To Work

Article 27 instructs states to “recognizes the right of persons with disabilities to work, on an equal basis with others; this includes the rights to opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with disabilities.

Declaration on the Rights of Disabled Persons

The Declaration of the Rights of Disabled persons was a declaration of the General Assembly of the United Nations made on 9 Dec 1975. It is the 3447th resolution made by the Assembly.

No discrimination, equality of opportunity, equality between women and men, effective participation in society, accessibility, respect for children with disabilities to preserve their identities and acceptance and respect for individuals with disabilities Disabled persons have the right to live with their families or with foster parents and to participate in all social, creative or recreational activities. Disabled persons shall be protected against all exploitation and treatment of a discriminatory, abusive or degrading nature.

Provisions of the Declaration

1. The definition of “disabled person” as anyone who cannot ensure the necessities of a normal individual and or social life as a result of deficiency in physical or mental capabilities.
2. A non discrimination clause applying the Rights to all disabled persons regardless of ” race , colour, sex, language, religion, political or other opinions , national or social origin , state of wealth, birth ” or other situation
3. Statement regarding disabled persons right to respect for their human dignity.

Rights of Disabled Persons in India

Persons with disabilities are one of the most neglected sections of our nation. This is due to the sheer indifference of the society which subjects such people to disapproval and antipathy. Such people have several rights under various Indian laws as well as UN conventions that are followed in India. Under section 2(i) of Persons with Disabilities Act, 1995,”disability” includes blindness, low vision, leprosy cured, hearing impairment, locomotors disability, mental retardation and mental illness.

Disability Certificate

It is the most basic document that a disabled person should possess in order to avail certain benefits and concessions. The State Medical Boards established under the State governments can issue a disability certificate to any person with more than 40% disability.

Disability Pension

People who are above 18 years of age, suffering with more than 80% disability and are living below the poverty line are entitled to the disability pension under the Indira Gandhi National Disability Pension Scheme. Various NGOs are dedicated to this because i.e. they help such persons with disabilities to get their disability pension.

Employment
In government jobs, 3% of the seats are reserved for persons with disabilities.

Income Tax Concession

Under sections 80D and 80U of Income Tax Act, 1961, persons with disabilities are also entitled to certain income tax concessions.

Person with Disabilities Act 1995

The Persons with Disabilities Act, 1995 had come into enforcement on Feb 7, 1996. It is a significant step which ensures equal opportunities for the people with disabilities and their full participation in the nation building. The Act provides for both the preventive and promotional aspects of rehabilitation like education , employment and vocational training, reservation , research and manpower development and rehabilitation of persons with disability , unemployment allowance for the disabled persons.

Main Provisions of the Act
1. Prevention and Early Detection of Disabilities
2. Education
3. Employment
4. Non discrimination
5. Social Security
6. Research and manpower development
7. Grievance Redress

In Jared Abiding v. Union of India the supreme Court bearing in mind the discomfort and harassment suffering by a person of loco motor so disability would face while travelling by train particularly too far off places issued directions to the Indian Airlines to grant persons suffering from locomotors so disability to the extent of 80%.

In National Federation of blind v . UPSC The Supreme Court held that, UPSC may be directed to allow blind persons for appearing the examinations for Indian administrative and allied Services.

Policies In India

National policy for persons with disabilities, 2006. The Government of India formulated the national Policy for persons with disabilities in Feb 2006 which deals with the physical , educational and economic rehabilitation of persons with disabilities.

The National Policy recognise the Persons with Disabilities are valuable human resources for the country and seeks to create an environment that provides them equal opportunities, protection of their rights and full participation in society . Some of the aspects which the policy focuses on Prevention of Disabilities, Rehabilitation Measures, Women with disabilities , Children with disabilities, The Government needs to launch more social security schemes for disabled sections and generate more employment opportunities for them . Several schemes and benefits conference on the disabled persons has come up as relief and has successfully served to provide equal opportunities to the disabled section.

 Right to Information Act, 2005

INTRODUCTION

IT is an Act of the Parliament of India to provide right to information for citizens and replaces the Freedom of Information Act 2002.This law was passed by Parliament of India on 15 June 2005. The Act came into effect on 12 October 2005 and has been implemented all over India except to the state of Jammu and Kashmir which act is own similar to Central Government. All the constitutional authorities come under this Act, making it one of the most powerful laws of the country.

HOW TO GET THE INFORMATION FROM RTI

Every Indian should know about RTI filing. The Act is so people-friendly that if an illiterate person approaches a PIO and wants some information under the RTI, he/she can tell his requirement to the PIO and the officer is obliged to write it down for them and read it to them before processing it. The postal department has appointed many APIOS across its many offices. Their job is to receive RTI applications and forward them to the PIO or appellate authority concerned. Currently, Central and a few State government departments have facility for filing Online RTI. This is as good as sending an RTI application without having to worry about the particulars.

FEES OR CHARGES TO BE PAID AND TIME PEROID TO GET THE INFORMATION

For central government departments one needs to pay Rs. 10 with every RTI application. Mode of payment may vary from government to government. While submitting application in person, some organisations accept cash while some do not. Some ask for Court Fee Stamp, some ask for Indian postal order (IPO). When sending an RTI application by post, we can use IPO/ court fee stamp of Rs. 10. Those below poverty line (BPL) do not have to pay Rs. 10 as fee for filing an RTI.

INFORMATION WHICH IS TO BE DISCLOSED

According to section 2(j) of RTI “Information” means any material in any, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for a time being in form, including records, documents, memos, e-mails, opinions, advices, press releases force. Section 8(2) specifies that “if there is great public interest in disclosure, all information must be given, even if it exempt.” There are some specific instances whereby RTI information cannot be furnished. These instances relate to matters which:

Would affect national security, sovereignty, strategic, economic and/or scientific interest.
Have been disallowed by the court to be released.

Relates to trade secrets or intellectual property, information which might affect/harm the competitive position of a third party.

Relates to information under fiduciary relationship.
Relates to foreign government information.
Would affect the life/physical safety of any person.
Would affect the process of an investigation.
Relates to cabinet papers
Relates to personal information without any public interest.

INFORMATION NOT DISCLOSED THERE IS RIGHT TO APPEAL

If information is not provided or wrongly refused, the citizen can go in appeal to an Appellate Authority who would be an official in the same department, senior to the PIO. The Appellate Authority has to give a decision in 30 days. If this too does not give a satisfactory result, one can appeal, to the State or Central Information Commissioner, which is an Independent Constitutional Authority established under the act. The Act provides for a penalty to POI for delay, or for malafide denial of information, or giving false information.

GOVERNMENT AGENCIES WHICH ARE EXEMPTED FROM RTI

Intelligence Bureau, Ministry of Home Affair, Directorate of Revenue Intelligence, Ministry of Finance, Central Economic Intelligence Bureau, , Directorate of Enforcement, Ministry of Finance Narcotics Control Bureau, Aviation Research Center, Special Frontier Force. Border Security Force, Ministry of Home Affairs, Central Reserve Police Force, Ministry of Home Affairs Indo – Tibetan Border Police, Central Industrial Security Force, National Security Guard, Ministry of Home Affairs Special Service Bureau, Ministry of Home Affairs Assam Rifles, Ministry of Home Affairs Sashastra Seema Bal, Ministry of Home Affairs Special Protection Group, Defence Research and Development Organisation, Ministry of Defence Border Road Development Organisation Financial Intelligence Unit, India Directorate General Income Tax (Investigation), National Technical Research Organisation National Security Council Secretariat.

CONCLUSION

The RTI Act is one of the legislation that is indeed the pride of Indian democracy. The RTI Act, as it stands today, is a strong tool to uphold the spirit of democracy. Any attempt to dilute the provisions of the RTI Act will quell its success.

Phone Tapping

PHONE TAPPING RIGHT TO PRIVACY UNDER ARTICLE 21

In the recent times technology has become the part and parcel of our lives. The world has transformed into a global village where our lives have become more connected than ever. It is quite obvious that with the development of social media and sophisticated technology our lives have become less private. Hence it became more important than ever to secure the privacy of individuals.

HISTORY OF PHONE TAPPING

The term ‘phone tapping’ also means wiretapping or interception of phone. It was first started in U.S.A in 1890s after the invention of telephone recorder. Although, the Supreme Court of U.S.A. didn’t become a valid law until 1928, at the height of Prohibition. Roy Olmstead, a Seattle bootlegger, was convicted on the basis of evidence congregated by tapping a phone in his home. He then stated that, the authorities had violated his fundamental rights but the court upheld his conviction, stating that tapping somebody’s phone is not a physical incursion of privacy. Prior to the attack on Pearl Harbor and the ensuing ingress of the United States into World War II, the U.S. House of Representatives held hearings on the legitimacy of interception of telephone for national defense. Important legislation and judicial decisions on the validity and constitutionality of wiretapping had taken place years before World War II. Conversely, it took on new urgency at that time of national crisis. In the case “Katz v. United States”, Supreme Court of U.S. stated that wiretapping requires a warrant. In 1978, the Foreign Intelligence Surveillance Act (FISA) was created for issuing wiretap warrants in national security cases.

PROCEDURE FOR PHONE-TAPPING IN INDIA

Telephones along with other communication devices are mentioned under Entry 31 of the Union List of the Indian Constitution and it is based on Entry 7 in the Federal List of the Government of India Act 1935.As explained by Seervai, the Government of India Act itself had taken the necessary measures for the advancement of Science in Entry 7, List I, which resulted as “Posts and telegraphs; telephones, wireless, broadcasting and other like forms of communication” and Entry 31, List I of the Indian Constitution preserved the entry, hence the requirement to construe the word ‘telegraphs’ lithely to consist of telephones,broadcastingetc did not arise. Art.21 of the Indian Constitution says that “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

The expression ‘personal liberty’ includes ‘right to privacy’. A citizen has a right to safeguard his personal privacy, plus, that of his family, education, marriage, motherhood, child bearing, and procreation, among other matters.

Both, the Central and the State Governments have a right to tap phones under Section 5(2) of Indian Telegraphic Act, 1885. There are times when an investigating authority/agency needs to record the phone conversations of the person who is under suspicion. Such authorities are supposed to seek permission from the Home Ministry before going ahead with such an act. In the application specific reasons have to be mentioned. In addition, the need for phone tapping must be proved. Then the ministry considers the request and grants permission upon evaluating the merits of the request.

Every agency fills out an authorization slip before placing a phone under surveillance. For the States, it is the State Home Secretary who signs this. Telephones of politicians cannot be tapped officially a qualifier on the slip says the surveyed person is not an elected representative. Today, every cellular service provider has an aggregation station which is a clutch of servers called mediation servers (because they mediate between the cellular operators and the law enforcement agencies) to intercept phones. There are two kinds of interception facilities available today-Integrated Services Digital Network (ISDN) and the leased line. In ISDN facility, a mediation server intercepts a call and then transmits it through a Primary Rate Interface (PRI) line to the office of a government agency. Also, the police can listen to the phone on their PRI line and store the recording to attached computers. A sound file of the intercepted call is also recorded and stored in the mediation server, simultaneously.

EVIDENTIARY VALUE OF RECORDED CONVERSATION

The next question regarding evidence of the tape-recorded information is about utility and evidentiary value. Questions like whether such evidence is primary or secondary; whether it is direct or hearsay and whether it is corroborative or substantive are important in this regard.

The point whether such evidence is primary and direct was dealt in the Presidential Election case. In this case, the petitioner alleged that Jagat Narain had tried to dissuade him from contesting the election. Their tape-recorded telephone conversation was then produced in Court. The Court utilized the conversation to show that a “witness might be contradicted when he denies any question tending to impeach his impartiality” as per Section 153 of the Evidence Act, and thus observed that the tape itself would become the primary and direct evidence of what has been said and recorded.

This view was reiterated by the Apex Court in the Malkani case where it was held that when a court permits a tape recording to be played over, it is acting on real evidence if it treats the intonation of the words to be relevant and genuine. The same case expressed that such recorded conversations are also vital for the purposes of corroboration and cross-examination in order to test the veracity of the witness.

Referring to the proposition of law as laid down in the Presidential Election case, a three judges bench of the Apex Court in the case of Ziyauddin Burhanuddin propounded that the use of tape recorded conversation was not confined to purpose of corroboration and contradiction only, but when duly proved by satisfactory evidence of what was found recorded and of absence of tampering, it could be used as substantive evidence. Giving an example, the Court pointed out that when it was disputed or in issue whether a person’s speech on a particular occasion, contained a particular statement there could be no more direct or better evidence of it than its tape recorded, assuming its authenticity to be duly established. The Court also considered the value and use of transcripts and expressed the view that transcript could be used to show what the transcriber has found recorded there at the time of transcription and the evidence of the makers of the transcripts is certainly corroborative because it goes to confirm what the tape record contained.

SAFEGUARDS AGAINST PHONE-TAPPING

PROCEDURAL SAFEGUARDS

In the last few years, various scandals came in notice with respect to the subject of phone tapping. This issue became so concentrated that it was twisted into a political agenda. The opposition parties and the party in power started blaming each other. It was suspected that phones were intercepted by the government on command of the ruling party. It was the time when the Peoples Union of Civil Liberties [PUCL] filed a PIL to the Supreme Court of India requesting them to clarify the law on the point of electronic tapping and interception.The petitioners contended that the arbitrary power provided under Section 5 (2) of the Indian Telegraphic Act, 1885 should be regulated. They also argued that the amendment which was made to Section 5 (2) in 1971 was tremendously treacherous as it allowed interception not only in the times of emergencies and for public order and safety, but also for agitation of offenses.

In the last few years, various scandals came in notice with respect to the subject of phone tapping. This issue became so concentrated that it was twisted into a political agenda. The opposition parties and the party in power started blaming each other. It was suspected that phones were intercepted by the government on command of the ruling party. It was the time when the Peoples Union of Civil Liberties [PUCL] filed a PILto the Supreme Court of India requesting them to clarify the law on the point of electronic tapping and interception.The petitioners contended that the arbitrary power provided under Section 5 (2) of the Indian Telegraphic Act, 1885 should be regulated. They also argued that the amendment which was made to Section 5 (2) in 1971 was tremendously treacherous as it allowed interception not only in the times of emergencies and for public order and safety, but also for agitation of offenses.

After the PUCL case, the Union Government bought some amendment in the Indian Telegraphic Rules, 1951 and inserted Rule 491-A to regulate the tapping of phones.But this amendment also did not bring any major change in the circumstances.

SUBSTANTIVE SAFEGUARDS

In 1997, the Apex Court, in reply to a petition filed by Justice Sachar in the PUCL case, stated that Right to Privacy guaranteed under Article 21 is subject to some reasonable restrictions which might be made obligatory by the State. Reasonable restrictions can be imposed by the state in theinterests of national sovereignty and integrity, state security, friendly relations with foreign states, public order or for preventing incitement to the commission of an offence.

Supreme Court while perpetuating the constitutionality of Section 5(2) in P.U.C.L. case, acknowledged the nonexistence of procedural preventions for the substantive provisions of the above mentioned Section and referred Maneka Gandhi case and took the significance of procedural patronage to any substantive provision which deals with the fundamental right of individual, into consideration, where it was opined:” Procedure which deals with the modalities of regulating, restricting or even rejecting a fundamental right falling within Article 21 has to be fair, not foolish, carefully designed to effectuate, not to subvert, the substantive right itself. ”Thus, the requirement of procedural safeguards for the provisions of Section 5(2) becomes significant in the light of ‘right to privacy’ guaranteed by Article 21, Constitution of India, 1950.

Interception of private conversation, void of just and fair procedure, would infringe an individual’s right to privacy assured under Article 21, which might render the substantive provision, allowing interception, as unconstitutional.

Justice Kuldip Singh concisely stated

“The first step under Section 5(2) of the Act, therefore, is the occurrence of any public emergency or the existence of a public safety interest. Thereafter the competent authority under Section 5(2) of the Act is empowered to pass an order of interception after recording its satisfaction that it is necessary or expedient so to do in the interest of (i) sovereignty and integrity of India, (ii) the security of the State, (iii) friendly relations with foreign States, (iv) public order or (v) for preventing incitement to the commission of an offence.”

In the case of K.L.D Nagasree v. Government of India, while referring the observation of the Court in P.U.C.L. case, it was held that:
“A bare reading of the above provision shows that for the purpose of making an order for interception of messages in exercise of powers under Sub-Section (1) or Sub-Section (2) of Section 5 of the Telegraph Act, 1885, the occurrence of any pubic emergency or the existence of a public safety interest is the sine qua non.”

The Act also provides safeguards against illegal and gratuitous interference in the telegraph and telephone mechanisms. According to Section 25,“any person intending to intercept or to acquaint himself with the contents of any message damages, remove, tampers, with or touches any battery, machinery, telegraph line, post or other thing whatever, being part of or used in the working thereof shall be punished with imprisonment for a term which may extend to three years or with a fine, or both.”

REMEDIES

Unlawful interception infringes the right to privacy and the aggrieved person can file a complaint in the Human Rights Commission.
An FIR can be lodged in the nearest Police Station when illicit phone interception comes into the knowledge of the person.
Moreover, the aggrieved person can approach the Court against the person/company doing the Act in an unauthorized comportment under Section 26 (b) of the Indian Telegraphic Act which provides for the imprisonment of 3 years for persons held for unlawful interception. An individual can also be prosecuted for authorized interception of telephone but sharing of the data of the same in an explicit manner.

RIGHT TO PRIVACY WITH RESPECT TO INTERCEPTION OF TELEPHONE

As amended in the recent Supreme Court judgment, right to privacy is an integral part of right to life, which is enshrined under Article 21 of the Indian Constitution. Intercepting a telephone of an individual without any intimation infringes right to privacy of an individual. But the same can be done by the government if any special situation arises. The power is conferred to the government under section 5(2) of Telegraph Act. The provision laid down under section 5(2) gives power to government to intercept a telephone in interest of public or in a case of emergency. The power conferred under section 5(2) to the government is not absolute as it is a matter of privacy of an individual. Nobody can intercept a telephone of a person without taking permission from the government. Government can exercise its rights to intercept an individual’s telephone only to a certain extent, by showing reasonable grounds to do so. Government can exercise its right but outside a particular ambit because an individual has a right to privacy and he also has a right to safeguard his right to privacy.

DIVORCE PETITION:

Husband Tapping Conversation of his Wife With Others Seeking to Produce In Court, Violates Her Right To Privacy Under Article 21Violates Her Right To Privacy Under Article 21
In Rayala M. Bhuvneswari v. Nagaphomender Rayala the petitioner filed a divorce petition in the Court against his wife and to substantiate his case sought to produce a hard disc relating to the conversation of his wife recorded in U.S. with others. She denied some portions of the conversation. The Court held that the act of tapping by the husband of conversation of his wife with others without her knowledge was illegal and amounted to infringement of her right to privacy under article 21 of the Constitution. These talks even if true cannot be admissible in evidence. The wife cannot be forced to undergo voice test and then asked the expert to compare portion denied by her with her admitted voice. The Court observed that the purity of the relation between husband and wife is the basis of marriage. The husband was recording her conversation on telephone with her friends and parents in India without her knowledge. This is clear infringement of right to privacy of the wife. If husband is of such a nature and has no faith in his wife even about her conversations to her parents, then the institution of marriage itself becomes redundant

LATER DEVELOPMENTS IN RIGHT TO PRIVACY

Right to privacy, once incorporated as a fundamental right, is wide enough to encroach into any sphere of activity. The conferment of such a right has become extremely difficult with the advancement of technology and the social networking sites. But the other side of the picture is that right to privacy of a person includes the right to seclude personal information. The extent to which the realm of privacy of each person should remain is subjective, which might differ from person to person. The recognition of right to privacy can also be seen in the S. 43 of Information Technology Act which makes unauthorised access into a computer resource invoke liability.

Today, each person is a press, taking in view the emergence of blog spots and social networking sites. Many a times, the right to privacy may come in conflict with the right to press the right to press is a right derived from Article 19 (1) (a) in particular. The right to expression of a person may come in conflict with the right to privacy of another person. The question, where there is a conflict, which should prevail over the other, is well explained by bringing in the concept of ‘public interest’ and ‘public morality’. The publication of personal information of an individual without his consent or approval is justified if such information forms part of public records including Court records. Each case is distinct and each right is special.
Any right derived from Article 19 can be derived from Article 21 too, under the wide interpretation of ‘personal liberty’. Though the Court generally applies the test of ‘public interest’ or ‘public morality’ in case of conflict between two derived rights, another interpretation is also possible. A right derived under Article 21 is superior to a right derived under Article 19, since the state enacting law in contravention of such right can be saved under the reasonable restrictions under 19(2) to (5). The position was different in the Pre-Maneka era, when Article 21 was not a source of substantive right.

INTERNATIONAL CONCEPTS OF PRIVACY

Article 12 of Universal Declaration of Human Rights (1948) states that “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence nor to attack upon his honour and reputation. Everyone has the right to protection of the law against such interference or attacks.”
Article 17 of International Covenant of Civil and Political Rights (to which India is a party) states “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home and correspondence, nor to unlawful attacks on his honour and reputation”
Article 8 of European Convention on Human Rights states “Everyone has the right to respect for his private and family life, his home and his correspondence; there shall be no interference by a public authority except such as is in accordance with law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the protection of health or morals or for the protection of the rights and freedoms of others.”

Right to privacy is a part of personal liberty which is provided under Article 21 of the Indian Constitution. A person has also the right to safeguard his privacy. There are some cases when the government has to act contrary to the fundamental rights of a person. One of them is interception of telephone. This is a very major step taken by government and to intercept a telephone of an individual, reasonable grounds to take such a step should be mentioned as it is a matter of someone’s privacy. Interception of telephone is not in violation of right to privacy only if it done for the interest of public or in a case of emergency, as stated under section 5(2) of the Telegraph Act. Interception of telephone cannot be done in any case except the two which are mentioned above. Any evidence acquired through interception of telephone is also not in violation of right to privacy and it is also considered as admissible evidence. Interception of telephone without the permission of government is in violation of right to privacy of a person as a person may talk about his problems, child education, health etc. which he would not like to share it with anyone else. The powers conferred upon the authorities to intercept telephone are not absolute. There are some reasonable restrictions attached to it. Telephone of an individual cannot taped unless and until reasonable grounds are shown to do such act as no person shall be deprived of its personal liberty. Hence, phone taping is not in violation of right to privacy unless and until it is done for the interest of public or in a case of emergency.
Such incidents of telephone tapping should be viewed seriously as such violations reduce the individual’s constitutional and human right to mockery and subject him to indignity and ridicule. Such invasions are undemocratic and uncivilized.

 Narcotics and Drugs Act

Background

India had no legislation regarding narcotics until 1985. Cannabis smoking in India has been known since at least 2000 BC and is first mentioned in the Atharvaveda, which dates back a few hundred years BC.The Indian Hemp Drugs Commission, an Indo-British study of cannabis usage in India appointed in 1893, found that the “moderate” use of hemp drugs was “practically attended by no evil results at all”, “produces no injurious effects on the mind” and “no moral injury whatever”. Regarding “excessive” use of the drug, the Commission concluded that it “may certainly be accepted as very injurious, though it must be admitted that in many excessive consumers the injury is not clearly marked”. The report the Commission produced was at least 3,281 pages long, with testimony from almost 1,200 “doctors, coolies, yogis, fakirs, heads of lunatic asylums, bhang peasants, tax gatherers, smugglers, army officers, hemp dealers, ganja palace operators and the clergy.”

Cannabis and its derivatives (marijuana, hashish/charas and bhang) were legally sold in India until 1985, and their recreational use was commonplace. Consumption of cannabis was not seen as socially deviant behaviour, and was viewed as being similar to the consumption of alcohol. Ganja and charas were considered by upper class Indians as the poor man’s intoxicant, although the rich consumed bhang during Holi. The United States began to campaign for a worldwide law against all drugs, following the adoption of the Single Convention on Narcotic Drugs in 1961. However, India opposed the move, and withstood American pressure to make cannabis illegal for nearly 25 years. American pressure increased in the 1980s, and in 1985, the Rajiv Gandhi government succumbed and enacted the NDPS Act, banning all narcotic drugs in India.

Theory and Concept

The Narcotic Drugs and Psychotropic Substances Act, 1985, commonly referred to as the NDPS Act, is an Act of the Parliament of India that prohibits a person to produce/manufacture/cultivate, possess, sell, purchase, transport, store, and/or consume any narcotic drug or psychotropic substance. The Narcotic Drugs and Psychotropic Substances Bill, 1985 was introduced in the Lok Sabha on 23 August 1985. It was passed by both the Houses of Parliament, received assent from then President Giani Zail Singh on 16 September 1985, and came into force on 14 November 1985. The NDPS Act has since been amended thrice – in 1988, 2001 and 2014. The Act extends to the whole of India and it applies also to all Indian citizens outside India and to all persons on ships and aircraft registered in India.

Under one of the provisions of the act, the Narcotics Control Bureau was set up with effect from March 1986. The Act is designed to fulfill India’s treaty obligations under the Single Convention on Narcotic Drugs, Convention on Psychotropic Substances, and United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.

Short Title, Extent and Commencement

The short title for the Act is the Narcotic Drugs and Psychotropic Substances Act, 1985. It extends to the whole of India. It came into force after the Central Government notified it in the Gazette of India on 14 November 1985.

Definition
Some of the definition under this Act are as follows-

1.Narcotics

They are addictive drugs that reduce the user’s perception of pain and induce euphoria (a feeling of exaggerated and unrealistic well-being). The English word narcotic is derived from the Greek ”narkotikos” , which means “numbing” or “deadening.” Although the term can refer to any drug that deadens sensation or produces stupor, it is commonly applied to the opioids—that is, to all natural or synthetic drugs that act like morphine.

2.Cannabis

(a) charas, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish; (b) ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated; and (c) any mixture, with or without any neutral material, of any of the above forms of cannabis or a drink prepared there from

3.Cannabis Plant
It means any plant of the genus “cannabis”.

4.Coca Derivative

It means (a) crude cocaine, that is, any extract of coca leaf which can be used, directly or indirectly, for the manufacture of cocaine; (b) ecgonine and all the derivatives of ecgonine from which it can be recovered; (c) cocaine, that is, methyl ester of benzoyl-ecgonine and its salts; and (d) all preparations containing more than 0.1 per cent. of cocaine.

5.Coca Leaf

It states(a) the leaf of the coca plant except a leaf from which all ecgonine cocaine and any other ecgonine alkaloids have been removed; (b) any mixture thereof with or without any neutral material, but does not include any preparation containing not more than 0.1 per cent. of cocaine; (vii) “coca plant ” means the plant of any species of the genus Errythroxylon.

6.Controlled Substance

It means any substance which the Central Government may, having regard to the available information as to its possible use in the production or manufacture of narcotic drugs or psychotropic substances or to the provisions of any International Convention, by notification in the Official Gazette, declare to be a controlled substances.

7.Illicit traffic

It means relation to narcotic drugs and psychotropic substances, means: (i) cultivating any coca plant or gathering any portion of coca plant; (ii) cultivating the opium poppy or any cannabis plant; (iii) engaging in the production, manufacture, possession, sale, purchase, transportation, warehousing, concealment, use or consumption, import inter-State, export inter-State, import into India, export from India or transshipment, of narcotic drugs or psychotropic substances; (iv) dealing in any activities in narcotic drugs or psychotropic substances other than those referred to in sub-clauses (i) to (iii); or (v) handling or letting out any premises for the carrying on of any of the activities referred to in sub-clauses (i) to (iv), other than those permitted under this Act, or any rule or order made or any condition of any license, term or authorization issued, thereunder, and includes: (1) financing, directly or indirectly, any of the aforementioned activities; (2) abetting or conspiring in the furtherance of or in support of doing any of the aforementioned activities; and (3) harboring persons engaged in any of the aforementioned activities.

8.Manufacture

It is in relation to narcotic drugs or psychotropic substances, includes: (1) all processes other than production by which such drugs or substances may be obtained; (2) refining of such drugs or substances; (3) transformation of such drugs or substances; and (4) making of preparation (otherwise than in a pharmacy on prescription) with or containing such drugs or substances.

9.Psychotropic substance

It means any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule.

10.Production

It means the separation of opium, poppy straw, coca leaves or cannabis from the plants from which they are obtained.

Functioning

The law regulates drug use and possession, prohibits trafficking in drugs, and allows the government to control the cultivation, production and use of some drugs, for medicinal purposes.

Crimes under the law:

Cultivating different kinds of narcotic drugs such as cannabis, coca plants and opium poppy.
Possession of illegal drugs and substances – depending on the quantity of drugs you are caught with and the type of drug, you can be sent to jail for up to 20 years.
Repeat offenders (usually those involved in trafficking) can be given up to 30 years or the death penalty in extreme cases.
Any other handling of or dealing with illegal drugs and substances.

It’s not just the police officers who can conduct arrests and searches under this law – certain types of authorized government officers also have the powers to conduct and arrest or search. The court can in certain circumstances send a drug addict to a government recognized detox or de-addiction centre instead of sending him/her to jail. People who voluntarily seek medical treatment and have not been involved in trafficking, you will not be sent to treatment rather than jail. Use of marijuana can be punished with up to 6 months of jail time and/or a fine of up to Rs. 10,000.

Power to add to or omit from the list of psychotropic substances

The Central Government may, if satisfied that it is necessary or expedient so to do on the basis of the information and evidence which has become available to it with respect to the nature and effects of, and the abuse or the scope for abuse of, any substance (natural or synthetic) or natural material or any salt or preparation of such substance or material; and the modifications or provisions (if any) which have been made to, or in, any International Convention with respect to such substance, natural material or salt or preparation of such substance or material, by notification in the Official Gazette, add to, or, as the case may be, omit from, the list of psychotropic substances specified in the Schedule such substance or natural material or salt or preparation of such substance or material.

Officers of the Central Government

The Central Government appointed a Narcotics Commissioner under subsection(3) of Section 4 of the Act without prejudice to the provision, and may also appoint such other officers with such designations as it thinks fit for the purposes of this Act. The Narcotics Commissioner shall, either by himself or through officers subordinate to him, exercise all powers and perform all functions relating to the superintendence of the cultivation of the opium poppy and production of opium and shall also exercise and perform such other powers and functions as may be entrusted to him by the Central Government. The appointed officers are subject to the general control and direction of the Central Government, or, if so directed by that Government, also of the Central Board of Excise and Customs or any other authority or officer.

The Narcotic Drugs and Psychotropic Substances Consultative Committee

The Central Government may constitute, by notification in the Official Gazette, an advisory committee to be called “The Narcotic Drugs and Psychotropic Substances Consultative Committee” (hereafter in this section referred to as the Committee) to advise the Central Government on such matters relating to the administration of this Act as are referred to it by that Government from time to time. The Committee shall consist of a Chairman and such other members, not exceeding twenty, as may be appointed by the Central Government. The Committee shall meet when required to do so by the Central Government and shall have power to regulate its own procedure. The Committee may, if it deems it necessary so to do for the efficient discharge of any of its functions, constitute one or more sub-committees and may appoint to any such sub-committee, whether generally or for the consideration of any particular matter, any person (including a non-official) who is not a member of the Committee. The term of office of, the manner of filling casual vacancies in the offices of and the allowances, if any, payable to, the Chairman and other members of the Committee, and the conditions and restrictions subject to which the Committee may appoint a person who is not a member of the Committee as a member of any of its sub-committees, shall be such as may be prescribed by rules made by the Central Government.

Officers of State Government

The State Government may appoint such officers with such designations as it thinks fit for the purposes of this Act. The appointed officers are subject to the general control and direction of the State Government, or, if so directed by that Government, also of any other authority or officer.

Prohibition of Certain Operations

Section 8 of the Act prohibits any person from cultivating any coca plant or gathering any portion of coca plant; or cultivating the opium poppy or any cannabis plant; or producing, manufacturing, possessing, selling, purchasing, transporting, ware-housing, using, consuming, import inter-State export inter-State import into India, exporting from India or transshipment of any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of license, permit or authorization also in accordance with the terms and conditions of such license, permit or authorization.
Nothing in this section applies to the export of poppy straw for decorative purposes.

Offences And Penalties

Chapter IV describes offences under the Act, and the punishments to be applied for contravening provisions of the Act. The various sections under this chapter prescribe a minimum term of rigorous imprisonment of 10 years, which may extend to 20 years for offenders, and also a fine which shall not be less than one lakh rupees but which may extend to two lakh rupees. In all cases, the court may impose a higher fine, for reasons to be recorded in the judgment.Some of such punishment are as follows

1.Punishment for contravention in relation to poppy straw

Any person who contravenes any provision of this Act, or any rule or order made or condition of a license granted thereunder, produces, possesses, transports, imports inter-State, exports inter-State, sells, purchases, uses or omits to warehouse poppy straw or removes or does any act in respect of warehoused poppy straw, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees. The court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.

2.Punishment for contravention in relation to coca plant and coca leaves

Any person who contravenes any provision of this Act, or any rule or order made or condition of license granted thereunder, cultivates any coca plant or gathers any portion of a coca plant or produces, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses coca leaves, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees.

3.Punishment for contravention in relation to prepared opium

Any person who contravenes any provision of this Act, or any rule or order made or condition of license granted thereunder manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses prepared opium shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees.

4.Punishment for contravention in relation to opium poppy and opium

Any person who contravenes any provision of this Act, or any rule or order made or condition of license granted thereunder cultivates the opium poppy or produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports Inter-State or uses opium shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees.

5.Punishment for contravention in relation to cannabis plant and cannabis

Any person who contravenes any provision of this Act or any rule or order made or condition of license granted thereunder, cultivates any cannabis plant; or produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable:

where such contravention relates to ganja or the cultivation of cannabis plant, with rigorous imprisonment for a term which may extend to five years and shall also be liable to fine which may extend to fifty thousand rupees;
where such contravention relates to cannabis other than ganja, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees and which may extend to two lakh rupees.

6.Punishment for contravention in relation to manufactured drugs and preparations.

Any person who contravenes any provision of this Act, or any rule or order made or condition of license granted thereunder manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees.

7.Punishment for contravention in relation to psychotropic substances.

Any person who contravenes any provision of this Act or any rule or order made or condition of license granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, export inter-State, or uses any psychotropic substance shall be punishable with rigorous imprisonment for a term which shall not be less than ten year but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees.

8.Punishment for allowing premises, etc., to be used for commission of an offence

Whoever, being the owner or occupier or having the control or use of any house, room, enclosure, space, place, animal or conveyance knowingly permits it to be used for the commission by any other person of an offence punishable under any provision of this Act, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees.

United Nations Convention Against Illicit Traffic In Narcotic And Psychotropic Substances

The United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances adopted in Vienna on 19 December 1988 is part of the worldwide effort to combat illegal drugs.. Article 12 of the Convention requires a system to be introduced to monitor international trade in drug precursors, taking account of the fact that, in principle, trade in these substances is lawful. Consequently, the Community adopted measures to strike an appropriate balance between the desire to exploit all possible means to prevent drug precursors reaching illicit drug manufacturers and the commercial needs of the chemical industry and other operators .The three major international drug control treaties are mutually supportive and complementary. An important purpose of the first two treaties is to codify internationally applicable control measures in order to ensure the availability of narcotic drugs and psychotropic substances for medical and scientific purposes, and to prevent their diversion into illicit channels. They also include general provisions on illicit trafficking and drug abuse. Single Convention on Narcotic Drugs, 1961: This Convention aims to combat drug abuse by coordinated international action. There are two forms of intervention and control that work together. First, it seeks to limit the possession, use, trade in, distribution, import, export, manufacture and production of drugs exclusively to medical and scientific purposes. Second, it combats drug trafficking through international cooperation to deter and discourage drug traffickers. Convention on Psychotropic Substances 1971: The Convention establishes an international control system for psychotropic substances. It responded to the diversification and expansion of the spectrum of drugs of abuse and introduced controls over a number of synthetic drugs according to their abuse potential on the one hand and their therapeutic value on the other. Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988: This Convention provides comprehensive measures against drug trafficking, including provisions against money laundering and the diversion of precursor chemicals. It provides for international cooperation through, for example, extradition of drug traffickers, controlled deliveries and transfer of proceedings.

Criticism

During the discussion of the Bill in Parliament, several members opposed it for treating hard and soft drugs as the same. However, the Rajiv Gandhi administration claimed that soft drugs were gateway drugs.

The NDPS Act was criticized in The Times of India. The paper described the law as “ill-conceived” and “poorly thought-out” due to the law providing the same punishment for all drugs, which meant that dealers shifted their focus to harder drugs, where profits are far higher. The paper also argued that the Act had “actually created a drugs problem where there was none.” The Times of India recommended that some of the softer drugs should be legalized, as this might reduce the level of heroin addiction.

In 2015, Lok Sabha MP Tathagata Satpathy criticized the ban on cannabis as “elitist”, and labeling cannabis the “intoxicant” of the poor. He also felt that the ban was “an overreaction to a scare created by the United States”. Sathpathy has also advocated the legalisation of cannabis.On 2 November 2015, Lok Sabha MP Dharamvir Gandhi announced that had received clearance from Parliament to table a Private Member’s Bill seeking to amend the NDPS Act to allow for the legalised, regulated, and medically supervised supply of “non-synthetic” intoxicants including cannabis and opium.

In November 2016, former commissioner of the
Central Bureau of Narcotics, Romesh Bhattacharji said of the law, “This needs to be debated in the face of such stiff ignorance which often takes root in the moral high grounds people take after being influenced by the UN conventions. This law [NDPS Act] has been victimising people since 1985”.

Proposal and Enactment

The Narcotic Drugs and Psychotropic Substances (Amendment) Bill, 2011 (Bill No. 78 of 2011) was introduced in the Lok Sabha on 8 September 2011 by then Minister of Finance Pranab Mukherjee. The Bill was referred to the Standing Committee on Finance, chaired by Yashwant Sinha, on 13 September. The Committee was scheduled to submit its report within three months, but actually submitted it on 21 March 2012. The Bill was passed by the Lok Sabha on 20 February 2014, and by the Rajya Sabha the next day.It received the assent of then President Pranab Mukherjee on 7 March 2014, and was published in The Gazette of India on 10 March.

Notable Case Laws on this issue

1. In State Vs. Fatima,High Court of Delhi at New Delhi, the impugned judgment convicting the appellant under Section 21(a) of the NDPC Act holding her to be in possession of contraband falling in ‘small quantity’ which has been arrived at keeping in view the actual content translated into weight of the aforenoted heroin, suffers from no infirmity.The state appeal was dismissed.

2. In Gorakh Nath Prasad Vs. State of Bihar,the Supreme Court Of India observed that the prosecution witnesses being Police Officers only, it will not be safe to rely upon their testimony alone, which in any event cannot be sufficient evidence by itself, either with regard to recovery or the seized material being ganja.The appeal was allowed.

 Domestic Violence

Domestic violence (also named domestic abuse or family violence) is violence or other abuse by one person against another in a domestic setting, such as in marriage or cohabitation. It may be termed intimate partner violence when committed by a spouse or partner in an intimate relationship against the other spouse or partner, and can take place in heterosexual or same-sex relationships, or between former spouses or partners. Domestic violence can also involve violence against children, parents, or the elderly, and may be done for self-defense. It takes a number of forums including physical, verbal, emotional, economic, religious,reproductive, and sexual abuse, which can range from subtle, coercive forms to marital rape and to violent physical abuse such as choking, beating, female genital mutilation, and acid throwing that results in disfigurement or death. Domestic murders include stoning,bride burning, honor killings, and dowry deaths.

Globally, the victims of domestic violence are overwhelmingly women, and women tend to experience more severe forms of violence.In some countries, domestic violence is often seen as justified, particularly in cases of actual or suspected infidelity on the part of the woman, and is legally permitted. Research has established that there exists a direct and significant correlation between a country’s level of gender equality and rates of domestic violence.Domestic violence is among the most under reported crimes worldwide for both men and women.Due to social stigmas regarding male victimization,men face an increased likelihood of being overlooked by healthcare providers.

The Second World Conference on Human Rights and the Fourth World Conference on Women recognized that gender-based violence jeopardizes women’s lives, bodies, psychological integrity and freedom. Using the term ‘gender-based’ highlights the fact that violence against women is an expression of power and control inequalities between women and men.

Abusive Behaviour is the Abuser’s Choice

Despite what many people believe, domestic violence and abuse is not due to the abuser’s loss of control over their behavior. In fact, abusive behavior and violence is a deliberate choice made by the abuser in order to control you. Abusers use a variety of tactics to manipulate you and exert their power, including:

1.Dominance

– Abusive individuals need to feel in charge of the relationship. They will make decisions for you and the family, tell you what to do, and expect you to obey without question. Your abuser may treat you like a servant, child, or even as their possession.

2.Humiliation

– An abuser will do everything they can to make you feel bad about yourself or defective in some way. After all, if you believe you’re worthless and that no one else will want you, you’re less likely to leave. Insults, name-calling, shaming, and public put-downs are all weapons of abuse designed to erode your self-esteem and make you feel powerless.

3.Isolation

– In order to increase your dependence on them, an abusive partner will cut you off from the outside world. They may keep you from seeing family or friends, or even prevent you from going to work or school. You may have to ask permission to do anything, go anywhere, or see anyone.

4.Threats

– Abusers commonly use threats to keep their partners from leaving or to scare them into dropping charges. Your abuser may threaten to hurt or kill you, your children, other family members, or even pets. They may also threaten to commit suicide, file false charges against you, or report you to child services.

5.Intimidation

– Your abuser may use a variety of intimidation tactics designed to scare you into submission. Such tactics include making threatening looks or gestures, smashing things in front of you, destroying property, hurting your pets, or putting weapons on display. The clear message is that if you don’t obey, there will be violent consequences.

6.Denial and blame

– Abusers are very good at making excuses for the inexcusable. They will blame their abusive and violent behavior on a bad childhood, a bad day, or even on you and the kids, the victims of their abuse. Your abusive partner may minimize the abuse or deny that it occurred. They will commonly shift the responsibility on to you: Somehow, their violent and abusive behavior is your fault.

Domestic abuse falls into a common pattern or cycle of violence.They are as follows

1.Abuse

– Your abusive partner lashes out with aggressive, belittling, or violent behavior. The abuse is a power play designed to show you “who is boss.”

Your abuser’s apologies and loving gestures in between the episodes of abuse can make it difficult to leave. They may make you believe that you are the only person who can help them, that things will be different this time, and that they truly love you. However, the dangers of staying are very real.

2.Guilt

– After abusing you, your partner feels guilt, but not over what they’ve done. They’re more worried about the possibility of being caught and facing consequences for their abusive behavior.

3.Excuses

– Your abuser rationalizes what they have done. The person may come up with a string of excuses or blame you for the abusive behavior—anything to avoid taking responsibility.

4.Normal behavior

– The abuser does everything they can to regain control and keep the victim in the relationship. They may act as if nothing has happened, or they may turn on the charm. This peaceful honeymoon phase may give the victim hope that the abuser has really changed this time.

5.Fantasy and planning

– Your abuser begins to fantasize about abusing you again. They spend a lot of time thinking about what you’ve done wrong and how they’ll make you pay. Then they make a plan for turning the fantasy of abuse into reality.

6.Set-up

– Your abuser sets you up and puts their plan in motion, creating a situation where they can justify abusing you.
Your abuser’s apologies and loving gestures in between the episodes of abuse can make it difficult to leave. They may make you believe that you are the only person who can help them, that things will be different this time, and that they truly love you. However, the dangers of staying are very real.

7.Guilt

– After abusing you, your partner feels guilt, but not over what they’ve done. They’re more worried about the possibility of being caught and facing consequences for their abusive behavior.

8.Excuses

– Your abuser rationalizes what they have done. The person may come up with a string of excuses or blame you for the abusive behavior—anything to avoid taking responsibility.

9.Normal” behavior

– The abuser does everything they can to regain control and keep the victim in the relationship. They may act as if nothing has happened, or they may turn on the charm. This peaceful honeymoon phase may give the victim hope that the abuser has really changed this time.

10.Fantasy and planning

– Your abuser begins to fantasize about abusing you again. They spend a lot of time thinking about what you’ve done wrong and how they’ll make you pay. Then they make a plan for turning the fantasy of abuse into reality.

11.Set-up

– Your abuser sets you up and puts their plan in motion, creating a situation where they can justify abusing you.

Another significant point is Economic Violence

Under the Act, Economic Violence is providing money, food, clothes, medicines, causing hindrance to employment opportunities, forcing a woman to vacate her house, Not paying rent. The Act thus deals with forms of abuse that were either not addressed earlier, or that were addressed in ways not as broad as done here. For instance, it includes in its ambit sexual abuse like marital rape which, though excluded under the IPC, can now be legally recognized as a form of abuse under the definition of sexual abuse in this Act. The definition also encompasses claims for compensation arising out of domestic violence and includes maintenance similar to that provided for under S.125 of the Code of Criminal Procedure (CrPC). Nevertheless, the claim for compensation is not limited to maintenance as allowed by that provision. It is noteworthy that the maintenance available under this section must be in correspondence with the lifestyle of the aggrieved party. Lastly, the Act identifies emotional abuse as a form of domestic violence, including insults on account of the victim’s not having any children or male children.

Constitutional Perspective

The enactment in question was passed by the Parliament with recourse to Article 253 of the Constitution. This provision confers on the Parliament the power to make laws in pursuance of international treaties, conventions, etc. The Domestic Violence Act was passed in furtherance of the recommendations of the United Nations Committee on the CEDAW. The Act encompasses all the provisions of the Specific Recommendations which form a part of General Recommendation no.19, 1992.

Protection of Women and Fundamental Rights

The Statement of Objects and Reasons declares that the Act was being passed keeping in view the fundamental rights guaranteed under Articles 14, 15 and 21. Article 21 confers the right to life and liberty in negative terms, stating that it may not be taken away except by procedure established by law, which is required, as a result of judicial decisions, to be fair, just and reasonable. The right to life has been held to include the following rights (which are reflected in the Act), among others-

Article 14 contains the equal protection clause. It affirms equality before the law and the equal protection of the laws. Article 14 prohibits class legislation , but permits classification for legislative purposes. A law does not become unconstitutional simply because it applies to one set of persons and not another. Where a law effects a classification and is challenged as being violative of this Article, the law may be declared valid if it satisfies the following two conditions:

1.The classification must be based on some intelligible differentia,

2. There must be a rational nexus between this differentia and the object sought to be achieved by the law. As a result of the ruling in cases such as Royappa v. State of Tamil Nadu, any law that is arbitrary is considered violative of Article 14 as well. This provision is significant in putting a stop to arbitrariness in the exercise of State power and also in ensuring that no citizen is subjected to any discrimination. At the same time, it preserves the State’s power to legislate for a specific category of people.
Article 15 disallows discrimination on the grounds of religion, caste, sex, race, etc., but permits the State to make special provisions for certain classes of persons, including women and children.
The Domestic Violence Act promotes the rights of women guaranteed under Articles 14 and 15.

Domestic violence is one among several factors that hinder women in their progress, and this Act seeks to protect them from this evil. It indeed effects a classification between women and men, protecting only women from domestic violence, but this classification is founded on an intelligible differential, namely, gender, and also has a rational nexus with the object of the Act. Further, the Act is far from arbitrary, in that it is a well-thought and necessary attempt to curtail domestic violence and eventually vanquish it. It is to be remembered that it is generally women who are the victims of domestic violence, and not men. At this stage, it is also essential to keep in mind Article 15(3) which empowers the State to make legislations like this for the benefit of women, thus creating an exception in their favour against the operation of Article 15(1).

While saying that the Act is protected by Article 15(3) from being considered discriminatory, it would help to recollect that this provision creates an exception in favour of women and children, and thus could be made use of to justify the extension of the Act to male children as well. Indeed, it would seem logical to do so. It is, however, opined that it is too early to predict the usefulness of this legislations to its target beneficiaries and the society as a whole. It needs to be seen whether the practicality of the Act has been ensured by the legislature and also the responsibility of implementation lies in the hands of the executive which will be the actual scale for measuring the effectiveness of this Act. Whether or not the act will be mis-used or not only time will tell for there cannot be any perceptible change in women’s status overnight. It will take at least a decade before things change.

This bill will provide them a safeguard and a sort of sword in their hand so that they will not be seen as an animal, or a shoe that you can wear anytime and throw anytime but at least some women would benefit which would set a precedent for others.

It would be violative of the equality clause as also it would be discrimination on the basis of caste. Frowning upon this observation the Supreme Court stated, “In our opinion, the learned judge failed to appreciate that part III of the Constitution does not touch upon the personal laws of the parties. In applying the personal laws of the parties, he (the High Court judge) could not introduce his own concepts of modern times but should have enforced the law as derived from recognized and authoritative sources of Hindu laws, i.e. Smritis and commentaries referred to, as interpreted in the judgments of various High Courts, except where such law is altered by any usage or custom or abrogated by statute.” Reynold Rajamani v. Union of India (1982 2 SCC 474).The excerpts of this judgment on which reliance was placed upon by the Supreme Court in the AWAG case pertain to prayers by the parties to increase the grounds available for divorce under the Indian Divorce Act. It was also argued in that Petition that divorce by mutual consent should be available even under the Indian Divorce Act. It was in this context that the Supreme Court observed that adding provisions to a Statute was a legislative act. The case did not deal with challenge to personal laws as being discriminatory to women.

1.In Pannalal Pitti v. State of A.P. (1996 2 SCC 498). This case dealt with validity of provisions of A.P. Charitable Hindu Religious and Endowments Act, 1987 and the argument was that laws should be made which are uniformly applicable to all religious or charitable endowments run by persons professing all religions. It was in this context that the Supreme Court observed that in a pluralistic society like ours making uniform laws cutting across religions could only be achieved in a phased manner and it was inappropriate to think “all laws have to be made uniformly applicable to all people in one go.”

2.In Anil Kumar Mhasi v. Union of India (1994 5 SCC 704). In this case, additional grounds given to a woman for claiming divorce under the Indian Divorce Act were challenged as being discriminatory towards men. The challenge was rebuffed by holding that women did require special protection. What is significant about this judgment is that the Supreme Court did test the validity of some sections of the Indian Divorce Act (a personal law for Christians) on the touch stone of fundamental rights but on merits found the challenge to be unsustainable. The approach of the Supreme Court is clearly wrong and flies in the face of the Constitution. The Contrary View, on the other hand, in the following decisions the Supreme Court has tested aspects of personal laws on the touchstone of fundamental rights.

Failure of the Act

The Act could play a stellar role in protection of women’s rights in the household and in guarding them from domestic violence. In the very first instance, a recognition of domestic violence as something unacceptable, where it has become yet another social practice, is necessary and indeed, commendable in a patriarchal society. Having recognized the rights of women and the violation of these rights, the next step taken is providing innovative and efficacious remedies to enforce the same. The conceptualization of the Act thus far is admirable.

However, one thing that the writers feel is a miss in the Act is the fact that it brushes aside male children. Though there are interpretations to the contrary, it is the opinion of the writers that the Act does not extend its protection to male children. Firstly, an aggrieved person as defined by the Act is a woman who is, or has been in a domestic relationship with the respondent. While the Act does define a child as any person below the age of eighteen years, the definition of domestic violence itself refers at all stages only to an aggrieved person and not to a child; the only relevant place in which a child is mentioned is S.18(c), where it is stated that a Magistrate may pass a protection order restraining the respondent from entering the school of the child where the aggrieved person is a child. It is the opinion of the writers that this in itself is not sufficient to construe the Act as applicable to male children as well.

Arguably, it could be said that the Act was passed to cater to the needs of women and not boys. After all, the very title of the Act indicates that it has been enacted to protect the rights of women. Yet, it must be kept in mind that domestic violence, though predominantly faced by women, be they wives, mothers, sisters or daughters, is also aimed against male children at times. It seems a poor excuse to say that male children should not be provided easily accessible relief from domestic violence simply because of their gender. Even if other forms of violence could be adequately addressed by the IPC (though this hardly seems the case), it is a fact that the sexual abuse of male children cannot be redressed in any apposite manner by it. Reference may be had to the Sakshi case , and the subsequent 172nd Law Commission report, where it was argued, among other things, that the offence of rape as addressed in the IPC be defined in gender-neutral terms, so that the protection could be extended to male children as well. This was necessary keeping in mind the increased and increasing instances of sexual abuse of children, male and female. Once it is acceded that male children are affected as much by sexual abuse by female children, it must be accepted that they need to be protected from such abuse within the “private” sphere too. On the face of it, there seems to be no concrete reason for denying male children protection from domestic violence.
“Honor-killings”, which are widespread in some of the economically advanced States, is an example. Perpetrated under the garb of saving the “honor” of the community, caste or family, such incidents occur often as the State governments are not keen to take action. The acts of violence include public lynching of couples, murder of either the man or the woman concerned, murder made to appear as suicide, public beatings, humiliation, blackening of the face, forcing couples or their families to eat excreta or drink urine, forced incarceration, social boycotts and the levying of fines.

The largest number of cases was found to have occurred in Punjab, Haryana and Uttar Pradesh – most of the incidents reported at the convention took place in these three States. One reason for the increased visibility of such crimes is the trend of more and more girls joining educational institutions, meeting others from different backgrounds and castes and establishing relationships beyond the confines of caste and community. Such individuals, both boys and girls, are being targeted so that none dares to breach the barriers of castes and communities. Significantly, in the majority of cases it is the economically and socially dominant castes that organize, instigate and abet such acts of retribution.

In Muzaffarnagar district in western Uttar Pradesh, at least 13 honor killings occurred within nine months in 2003. In 2002, while 10 such killings were reported, 35 couples were declared missing. It was estimates that Haryana and Punjab alone account for 10 per cent of all honor killings in the country. It is not surprising that no such category of crime exists in government records. In fact, there is refusal even to recognize this phenomenon. Data for such incidents are seldom available and they would mostly be classified under the category of general crimes. Moreover, most of such cases go unreported and, even when reported, often first information reports are not filed and postmortems are not conducted.

Caste panchayats have come to play an increasingly important role in Haryana and elsewhere, especially in situations where political patronage also exists. Central to the theme of honor and violence is the subordinate position of girls and women in all castes and communities. A woman’s chastity is the “honor” of the community and she has no sovereign right over her body at any point of her life. The retribution is particularly swift and brutal if she crosses caste and class barriers to choose a lower-caste man as her partner.

The right to shelter

In Chameli Singh v. State of U.P. , it was held that the right to life would include the right to shelter, distinguishing the matter at hand from Gauri Shankar v. Union of India where the question had related to eviction of a tenant under a statute. Ss. 6 and 17 of the Domestic Violence Act reinforce this right. Under S.6, it is a duty of the Protection Officer to provide the aggrieved party accommodation where the party has no place of accommodation, on request by such party or otherwise. Under S.17, the party’s right to continue staying in the shared household is protected. These provisions thereby enable women to use the various protections given to them without any fear of being left homeless.

Cheating

Let us try to understand cheating with the help of an example. A sells B a bat. A, intentionally deceives B into believing that the bat belonged to Sachin Tendulkar and thereby induces him to buy it. A committed the crime of cheating.

The term “cheating” has been defined under Section 415 of the Indian Penal Code. The element of cheating must be present in every offence under Section 420 of I.P.C.

Section 415 of IPC states that Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.

For example – There are two persons A and Z. A exhibits the false sample of an article to Z and intentionally make Z believes that the article corresponds with the sample. A here induces Z to buy and pay for the false sample of article. A cheats Z.
Section 420 of The Indian Penal Court talks about the offence which is committed by the person who cheats another person and thereby induces the deceived to deliver any property. This provision provides punishment for the same.

According to the IPC, Section 420 states that whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Essential elements of Section 420

Cheating
Dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or is capable of being converted into a valuable security
Mens rea of the accused at the time of making the inducement.Making of a false representation is one of the essential ingredients to institute the offence of cheating under Section 420 IPC. In order to bring a case for the offence of cheating, it is not merely satisfactory to prove that a false representation had been made, but it is further necessary to prove that the representation was false to the knowledge of the accused and was made in order to deceive the complainant.

Ingredients of the offence of Cheating

The accused must deceive another person
The person so deceived should be induced to deliver any property to any person, or
The person so deceived should be intentionally induced to do or at times, not to do an activity.
The essence of cheating is having fraudulent or dishonest intention.

What is meant by deceiving?

Deceiving is the backbone of the offence. Deceiving means causing to believe what is false or misleading as to a matter of fact. But all deceptions does not amount to cheating.
Deceptions only with fraudulent and dishonest intentions amounts to cheating.

Illustration:

If A sold the bat to B with the honest belief that the bat was of Sachin Tendulkar’s,this will not amount to cheating.

Cognizance of an offence under Section 420

The offence is cognizable and falls under the category of Non Bailable. It is triable by Magistrate of the First Class and therefore FIR or Application u/s 156(3) or Private Complaint u/s 200 may be preferred.

Punishment of an offence under Section

420

The punishment which is given under section 420 of IPC for the offence is imprisonment for a term which may extend to seven years, and also be liable to fine.

Distinction between mere ‘breach of contract’ and the ‘offence of cheating’

Distinction depends upon the intention of the accused at the time of inducement which must be judged by his subsequent act but of which the subsequent act is not the sole standard. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction that is the time when the offence is said to have been committed. Therefore, it is the intention which is the substance of the offence. It is necessary to show that he had fraudulent or dishonest intention at the time of making the promise to hold a person guilty for the offence of cheating. From his mere failure to keep up promise consequently such a culpable intention cannot be presume right at the beginning, that is when he made the promise.

Cheating in a Contract

A mere breach of contract will not be a cheating.Understanding this through an illustration.A singer promised to perform in a certain concert and asked their

orchestra.The organizer made all the required arrangement as the singer arrived at the concert place and everything was set to go. At the meantime, singer backed out from singing owing to his personal reasons. The organizer filed a case for cheating against the singer.

The law on this is a mere breach of contract will not be cheating for the offence,prior dishonest intention is required.

There is a very thin line of difference between cheating and breach of contract. For any sort of cheating, there has to exist a deceiving content right from the beginning of the contract.
Explaining through another illustration, if in a contract, the party failed to pay for an EMI, this will not amount to cheating or fraud at the first instance. For this to be an offence a prior intention to deceive the seller must be present in the mind of the buyer.

Where a person, fraudulently or dishonestly induces a person to deliver any property

As it is clear by now, mere dishonest intention or deceit will not be sufficient for cheating. Meeting of these two in order to induce the other person to deliver their property and making them do something which they would not have done otherwise, is cheating.
Therefore, to constitute fraud at the time of delivery of the property by assuring the seller of the property that he will pay afterward but deceived him by leaving the town amounts to cheating.

Breach of Promise and Cheating

How many times, must a boy have heard this from his girlfriend, You’re a cheater! But does breaking up social promises amounts to cheating? By social promises, we mean social engagement. Like going for a movie or a dinner date. The answer is no.As said earlier,there must be a dishonest intention to deceive the other for some gain. A mere breaking of social promises won’t amount to cheating.

The person being cheated must suffer damage or harm in body, mind, reputation or property

The damage must be a consequential result of cheating and must not be too remote. The loss suffered because of cheating must not be vague.
Where a person is selling steel coated in gold and it can be reasonably figured out that, the article sold is not gold, will this amount to cheating? Does reasonableness from the side of the buyer is not required? The answer is, this too will amount to cheating. It could be, say, the person might be buying gold for the first time. There was a deceiving act done from the seller’s end to gain wrongfully and he succeeded too. This will amount to cheating.

The answer is, this too will amount to cheating. It could be, say, the person might be buying gold for the first time. There was a deceiving act done from the seller’s end to gain wrongfully and he succeeded too. This will amount to cheating.

Cheating is a criminal act or mere civil wrong

The question is worth mooting. A civil wrong is a matter pertaining only between two parties. g breach of contract, non-repayment of a loan, etc. Civil wrongs are matters which do not harm the society in any way.
Act which has the tendencies to harm the society at large is called a criminal wrong. Cheating is both a civil as well as criminal wrong in the same way as defamation is.
When a criminal proceeding is set into motion several disabilities arises, for example, institutions might not accept your admission or difficulty in applying for a passport. Therefore, the court sees to it that cheating is not used as a tool to harass the offender.

Court applies its brain and in every case of cheating. If the court thinks that the effect of cheating is more civil in nature it sets civil procedure is set into motion. Although, in few cases such as chit fund cases where large stake of people is involved, a cheating is often dealt criminally.

Puffing:exaggeration by Salesmen

How many time it is seen that salesmen to increase their sale try to outshine their product. Will it be considered as cheating if the product does not possess these qualities which the salesmen claim off.
Presentation of the glossy respect of the accused cannot in itself be said to be fraudulent or false representation provided it does not appear that there was no semblance of truthfulness in such representation.
Take an example of a typical Delhi chor bazaar say Sarojini Market. You go to buy a shoe. Firstly, the salesperson fixes the price at INR You start moving to next shop. The Shopkeeper calls you and fixes the price at INR 1200 with no further discount. You insist to buy the product at INR 700. Shopkeeper says the final price is INR 900. Then he remind you of the quality of the product and its reasonable price. Although,the shopkeeper is inducing or deceiving you to buy the product which might be of worth INR 500 but still court will not consider this trivial matter judicially.

Misrepresentation as to caste

Where a person belonging to different caste falsely represent himself to be of some other caste to gain something from the deceived person comes under the ambit of cheating.

Where a prostitute convinced a person to establish a sexual relation with her by deceiving a man that she was free from any sort of sexual disease which in reality she was not.This was held to be cheating.

Cheating by personation

Where a person deceives his identity for deceiving someone and gaining something out of that deception, this is called cheating by personation.
A, introduces himself to be a well-known big banker and thus took a loan from B to invest into his property amounts to cheating by personation.
Personating an imaginary person is also cheating. Where a person personates himself to be a physics graduate from Harvard and got him selected into Public service commission board. This was said to be cheating by personation.

False representation at examination

In a case where A sat in the examination in the name of B.Gave the examination also, it was held that this was a case of cheating by personation. In such cases it is the person who is giving the examination who gets into more trouble.

Punishment for cheating

Simple cases: Simple cases are to be punished for a jail term which may extend upto one year which may end with a fine too. Where a person deceived his girlfriend that he will marry her and entered into sexual relationship with her and after she became pregnant left her.This was considered to be covered under this punishment.

Mild cases:

The section mostly applies to cases of cheating by guardian, trustee, solicitor, agents, manager of Hindu family etc. The punishment under this section is jail term which may extend for up to three year along with fine.

Punishment for cheating by impersonating:

There must be an essence of cheating along with personating. The cheating is essential ingredient for the offence. Where a person cheats another by deceiving himself to be someone else, he is guilty under section 416 IPC and punished under section 419 IPC. Punishment under this section is a jail term which may extend to three year jail term along with fine.

Proper section for cheating

Where there is any destruction or alteration in the property because of cheating, the Section 415 comes into action. Punishment under this is imprisonment for upto seven years along with fine.Punishment under Section 420 is attracted in case where there is a gross injustice to parties.

Fraud

Fraud as a crime is nowhere defined in the Indian Penal Code but we all use this term in general in our day to day life. What is fraud? Is it synonymous to cheating? What are the differences between the two?
A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another’s loss.

Whenever the term fraud or defraud appears in the context of criminal law,two things are automatically to be assumed. First is deceit or deceiving someone and second is,injury to someone because of such deceit.

Implications of fraud is found in these following sections of IPC namely:- 421,422,423 and 424

Fraudulent removal or concealment of property to prevent distribution among creditors.
Fraudulently preventing debt being available for creditors.
Fraudulent execution of deed of transfer containing false statement of consideration.
Fraudulent removal or concealment of property.

Let us understand fraud in this way.

Fraudulent removal or concealment of property to prevent distribution among creditors. (Section 421 IPC)

This section refers to fraud considered with insolvency. The offence under it consists in a dishonest disposition of property with the intent to cause wrongful loss to the creditor. It will cover benami transactions. Where a shopkeeper keeps goods in his shop bought from a credit taken from another and he does not repay the person from whom he took the loan. This offence will be covered under this section. Punishment under this section is imprisonment up to 2 years with fine. This is a bailable offence.

Fraudulent execution of deed of transfer containing false statement of consideration. (Section 423)

This is a variety of fraudulent execution which deals with-

False recital as to consideration and
False recital as to the name of beneficiary

In legal terminology, “Whoever dishonestly or fraudulently signs,executes or becomes a party to any deed or instrument which purports to transfer or subject to any charge, any property, or any interest therein, and which contains any false statement relating to the consideration for such transfer or charge, or relating to the person or persons for whose use or benefit it is really intended to operate, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both”. Punishment is imprisonment upto 2 years with or without fine and it is a bailable offence.

Fraudulent removal or concealment of property(Section 424)

For this section,there must be a concealment or removal and that too dishonestly or fraudulently. This section provides for cases which do not comes under the ambit of the precious three fraudulent claims. The crucial question for determination under this section is, whether the alleged removal of property is dishonest or fraudulent and therefore, if persons claiming title to property under attachment in executions of a decree on another remove the same, the matter where such property belonged to the accused or not has to be determined by Criminal Court before deciding upon conviction. Punishment for this section is imprisonment with or without fine and a bailable offence.

How Cheating is to be proved?

You have to prove that there was an intention to cheat at the time of making the misrepresentation; and this fact is to be proved on the basis of all the subsequent conduct as acts and omissions of the accused. Therefore, all the acts and omissions of the accused must be clearly and legibly set out right from the date of making of false representation, till the filing of the complaint.

It must be shown that there is a failure of the promise which was made. It must be shown that there was no effort on the part of accused to perform his promise. The test of prudent man must be applied to appreciate the evidence on record.

 Software Patentability in India

TWARE PATENTABILITY IN INDIA

India is a hub of Information Technology, with an unprecedented boost in the development of innovative technologies. With breakthrough technological inventions and development of software in past years, it became paramount to protect the innovation and safeguard the interest of inventors. Fortunately, patent laws in India help in protecting one’s invention and software are no different. The Indian Patent Office has laid out Computer Related Invention Guidelines to streamline the process of obtaining a software patent in India.

SOFTWARE DEFINITION UNDER PATENTS ACT 1970

A Patent an exclusive right granted to a person who has invented some new and useful article. an improvement of existing article or a new process of making some article. Patent laws in India ensure that no other person can make, use, distribute or sell any commodity which uses this product or process by granting patent rights to the inventor.

The Indian Patents Acts 1970 governs all aspects of the patent in India, including what can and cannot be patented, guidelines for obtaining a patent, procedure for obtaining a patent, tenure of a registered patent, etc. Section 3(k) of the Indian Patents Act, 1970 reads that ‘mathematical or business method or a computer programme per se or algorithms’ do not fall under the category of items that can be patented in India. Therefore, the Patent Office has been rejecting the majority of patent applications for software patent in India, even though they are high on innovation.

CONCEPTUAL DIFFERENCE BETWEEN COPYRIGHT AND PATENT IN SOFTWARE

Software has traditionally been protected under copyright law since code fits quite easily into the description of a literary work. Thus, Software is protected as works of literature under the Berne Convention, and any software written is automatically covered by copyright. This allows the creator to prevent another entity from copying the program and there is generally no need to register code in order for it to be copyrighted. While Software Patenting has recently emerged (if only in the US, Japan and Europe) where, Patents give their owners the right to prevent others from using a claimed invention, even if it was independently developed and there was no copying involved.

Further, it should be noted that patents cover the underlying methodologies embodied in a given piece of software. On the other copyright prevents the direct copying of software, but do not prevent other authors from writing their own embodiments of the underlying methodologies.

SOFTWARE PATENTS UNDER MULTILATERAL TREATIES

Software patents under TRIPs Agreement
Software patents under the European Patent Convention
Computer programs and the Patent Cooperation Treaty

SOFTWARE PATENTING UNDER TRIPS AGREEMENT

The WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), particularly Article 27, are subject to debate on the international legal framework for the patentability of software, and on whether software and computer-implemented inventions should be considered as a field of technology.

According to Art. 27 of TRIPS Agreement, patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application. Patents shall be available and patent rights enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced.”

However, there have been no dispute settlement procedures regarding software patents. Its relevance for patentability in the computer-implemented business methods, and software information technology remains uncertain, since the TRIPs agreement is subject to interpretation.

SOFTWARE PATENTS UNDER THE EUROPEAN PATENT CONVENTION

Within European Union member states, the EPO and other national patent offices have issued many patents for inventions involving software since the European Patent Convention (EPC) came into force in the late 1970s. Article 52 EPC excludes “programs for computers” from patentability (Art. 52(2)) to the extent that a patent application relates to a computer program “as such” (Art. 52(3)).

This has been interpreted to mean that any invention which makes a non-obvious “technical contribution” or solves a “technical problem” in a non-obvious way is patentable even if a computer program is used in the invention. Computer-implemented inventions which only solve a business problem using a computer, rather than a technical problem, are considered unpatentable as lacking an inventive step. Nevertheless, the fact that an invention is useful in business does not mean it is not patentable if it also solves a technical problem.

COMPUTER PROGRAMS AND THE PATENT COOPERATION TREATY

The Patent Cooperation Treaty (PCT) is an international patent law treaty, which provides a unified procedure for filing patent applications to protect inventions. A patent application filed under the PCT is called an international application or PCT application. Under the PCT, the international search and the preliminary examination are conducted by International Searching Authorities (ISA) and International Preliminary Examining Authority (IPEA).

The issues involved in conferring patent rights to software are, however, a lot more complex than taking out copyrights on them. Specifically, there are two challenges that one encounters when dealing with software patents. The first is about the instrument of patent itself and whether the manner of protection it confers is suited to the software industry. The second is the nature of software, and whether it should be subject to patenting.

However, issues involved in conferring patent rights to software are a lot more complex than taking out copyrights on them. Specifically, there are two challenges that one encounters when dealing with software patents. The first is about the instrument of patent itself and whether the manner of protection it confers is suited to the software industry. The second is the nature of software and whether it should be subject to patenting.

INDIA PATENT OFFICE AND SOFTWARE IN INDIA
The Indian Patent Office (IPO) recently modified the Computer-Related Inventions Guide lines in June 2017 by removing the requirement of ‘novel hardware’ to get a software patented in India. The amended guidelines have deleted one of the three steps from the test for patentability which stipulated that patents for software could only be claimed in conjunction with novel hardware. However, the requirement of some hardware remains the same to obtain a software patent in India.

The test provided the following to determine patentability of CRIs-

The actual contribution can be identified and the claim can be properly construed
The claim is denied if the contribution lies only in mathematical method, business method or algorithm.
Check if the patent is claimed in conjunction with a novel hardware if the contribution lies in the field of the computer programme.
Under the new CRI guidelines, the IPO has taken a more favourable approach towards patentability of CRIs as compared to the past. The revised guidelines are useful to patent applicants and practitioners alike. When it comes to getting a patent in India, computer-related inventions can be really tricky. It is important to clearly describe the invention in such a manner that it is easily comprehensible to laypersons.
Computer software which is new, useful and non-obvious process or product combined with a physical device or physical element used to process, operate, or implement a function can be patented in India. With regards to a software patent, following types of Computer-Related Inventions can be patented in India:

1. Method to compress or process data, video, image or audio.
2. An equipment-controlling system.
3. A method of improving a machine or memory operation.
4. A Method of improving physical, chemical, biological or electric properties of an object.
5. A Graphical User Interface controlling system.
6. A Mobile Unit positioning method.
However, an invention which is obvious and comes under the ambit of any of the following cannot be patented in India:

1. An abstract idea, computer programme or code.
2. An arbitrary arrangement.
3. A Mathematical formula.
4. A simple algorithm.
With the latest amendment, the IPO shall gear up to receive numerous applications from many companies and start ups that have their base in software. Experts also speculate an acute decrease in the number of patent litigation that has been stalling the progress of Indian software fraternity.

SOFTWARE PROTECTION UNDER PATENT LAW
Technology related patents (which are not in relation to hardware) are usually categorized as software patents or business method patents. For example, a system or process developed by a taxi company which allows any customer to choose a taxi which is closest to his location could qualify as a business method.

A Patent an exclusive right granted to a person who has invented some new and useful article. An improvement of existing article or a new process of making some article. Patent laws in India ensure that no other person can make, use, distribute or sell any commodity which uses this product or process by granting patent rights to the inventor.

The Indian Patent Act,1970 governs all aspects of the patent in India, including what can and cannot be patented, guidelines for obtaining a patent, procedure for obtaining a patent, tenure of a registered patent, etc. Section 3(k) of the Indian Patents Act, 1970 reads that mathematical or business method or a computer programme per se or algorithms’ do not fall under the category of items that can be patented in India. Therefore, the Patent Office has been rejecting the majority of patent applications for software patent in India, even though they are high on innovation.

REQUIREMENT OF GETTING SOFTWARE PATENT
In order to obtain a patent in India, an invention must fulfill four criteria:
1. Industrial Applicability: – “capable of industrial application”, in relation to an invention, means that the invention is capable of being made or used in an industry.

2. Inventive Step:-“inventive step” means a feature of an invention that involves technical advancement as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art.
3. Novelty:-“new invention” means any invention or technology which has not been anticipated by publication in any document or used in the country or elsewhere in the world before the date of filing of patent application with complete specification, i.e., the subject matter has not fallen in public domain or that it does not form part of the state of the art.

4. Patentability exclusion for software or computer program:-Mathematical business method computer programme per se or algorithms.

Patentability exclusion for software or computer program specifically elucidates subject matter which is novel or new product or process, having an inventive step and capable of industrial application qualify for patent if it falls under Section 3(k) of the Indian Patents Act, 1970. Nevertheless, not all computers related invention falls under Section 3(k) or that computer-related inventions which are outside the scope of Section 3(k) are patentable in India. For instance, if the main essence or contribution or function of the proposed invention lies solely in the computer program, the invention is not patentable as per Section 3(k) of the Patents Act, 1970. Conversely, if the main essence or contribution or function of the proposed invention lies the computer program as well as hardware, the invention will not fall under Section 3(k) and shall be judged on other criteria of patentability.

LATEST SOFTWARE PATENT GRANTED IN INDIA

In Accenture Global Service GMBH v. Assistant Controller of Patents & Design where applicant sought for a patent on a method to generate a data mapping document. The objection against the method’s technical effect being unidentifiable, the applicant submitted that the present claims recite “technical solution to a technical problem of the need for a data document design system and design tools that addresses one of the most important technical challenges faced by database systems is data migration.” After analyzing the inventions on merits, the Patent Office observed that the invention is not software per se, it is rather a system having web-services and software and thus, is not falling in the category of section 3(k) and patent was granted in May 2013.

In 2009, Facebook sought a patent on a method “for generating dynamic relationship-based content, personalized for members of the web-based social network”. The objections against the grant were ‘the method being nothing but an algorithm implemented through software thus falling under Section 3(k) and being non- patentable.’ The applicant contended that section 3(k) was not applicable in this case because the invention “implements a technical process and has a technical effect” and further went on to explain the intricacy of the method. These amendments to the claims satisfied the Patent Office’s objections and thus it granted the patent in February 2017.

Another patent was granted to Facebook on 25thApril 2017 “for a method of providing access to user profile data maintained by Facebook to third-party application”. Facebook submitted that “the present invention included hardware limitation and provided technical improvements and benefits like checking privacy setting associated with the user profile and based on the privacy setting the access is provided to the third-party application and the third-party application personalizes the user content data.” The Patent Office concluded that this doesn’t fall under the purview of Section 3(k), and duly granted it a patent.

In Feb 2005, Google sought for a patent on an invention titled, ‘phrase identification in an information retrieval system’. One of the claims disclosed it to be a basic mathematical algorithm with the logical steps thus falling under section 3(k) of the Patents Act, 1970 and therefore not being patentable. However, Google reasoned that its invention is not an algorithm or a computer program per se, “but provides a technical solution to a technical problem of how to automatically identify phrases in a document collection”. It claimed that the technical solution i.e. the end product which is an index, stored in a memory consisting of related valid phrases, is inventive. On hearing the above submissions, the Patent Office concluded that it is “a technical advancement over the prior art” and thus granted it the patent in May 2017.

In 2009, Apple applied for a patent on a ‘method for browsing data items with respect to a display screen associated with a computing device and an electronic device’. The objections against the invention were that it was merely a software program and thus falling within the scope of computer programs per se i.e., under the provision of section 3(k) of the Act. Apple submitted that the method “although the steps of the method can be performed by means of software, the method constitutes a practical application of this computer software to produce a useful result bringing an improved technical effect while presenting advantages and overcoming drawbacks of hitherto known techniques.” Accepting this submission, the Kolkata Patent Office granted the patent.

RULES FOR SOFTWARE PATENT REGISTRATION IN INDIA

Patent Registration in India is governed by The Patents (Amendment) Act 2002 which came into effect on 20th May 2003. In the Patents Amendment Act 2002, the following types of inventions were explicitly excluded from Patent registration:

Mathematical or business method or a computer programme per se or algorithms.
Literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions.
Mere scheme or rule or method of performing mental act or method of playing game.
Presentation of information.opography of integrated circuits.
Topography of integrated circuits.

NATIONAL APPROACHES TO SOFTWARE PATENTABILITY

In Europe, the European Patent Convention (EPC) (Art. 52(c) and state that a computer program claimed such us excluded from patentability. But an appeal by before the board of appeals for the european patent office provided useful guidance. The Board stated that a narrow reading of the relevant articles meant that not all computer programs should be excluded from patentability to comply with Art. 27 of the TRIPS Agreement which deals with the patentable subject matter. The Board concluded that a computer programs as such referred only to those that were non-technical in character. It also acknowledged that “it does not make a difference whether a computer program is claimed by itself or as a record on a carrier. In other words, as long as a computer program is technical, the medium in which it is recorded is irrelevant and is, in fact, patentable. Given the current widespread online commercial distribution of software, this is an especially important finding.

SOFTWARE PATENT IN UNITED STATES

In the United States, patent protection for software-related inventions is limited to those on recordable media, not to computer programs themselves. This protection falls short when it comes to the online distribution of software. Unfortunately, the Supreme Court’s decision in Alice Corp v. CLS Bank and some subsequent cases have failed to provide clear boundaries for the patent eligibility of software-related inventions.

INDIAN POSITION IN SOFTWARE

With respect to computer software, in Patents (Amendment) Act, 2002, the scope of non-patentable subject matter in the Act was amended to include the following: “a mathematical method or a business method or a computer programme per se or algorithms”.

However, the recent amendment changes (Ordinance, 2004), which amends the Patents Act, 1970, has been promulgated after receiving assent from the President of India and has came into effect from 1st Jan., 2005. Apart from change in pharmaceuticals and agro chemicals, one of the seminal amendments this Ordinance seeks to bring is to permit the patenting of embedded software.

Hence, the amendment means that while a mathematical or a business method or an algorithm cannot be patented, a computer programme which has a technical application in any industry or which can be incorporated in hardware can be patented. Since any commercial software has some industry application and all applications can be construed as technical applications, obviously it opens all software patenting.

In any case, any company seeking to file a patent application for software under the Ordinance should ensure that its invention firstly, follows the three basic tests:

Inventive Steps
Novelty
Usefulness

Therefore, it is important that the software sought to be protected is not merely a new version or an improvement over an existing code.
Further, in accordance with the specific requirements of the Ordinance with regard to patentability of software, the software should necessarily have a technical application to the industry or be intrinsic to or “embedded” in hardware. This is to prevent against any future litigation or claims of infringements being raised, which is a distinct probability even after a patent has been granted.

India for its part seems to have adopted the more conservative approach of the European patenting norms for software. But the Ordinance definitely has its use and relevance in today’s India, particularly for our growing domestic semi- conductor industry. This, along with judicial tempering might definitely ensure a judicious use of patent protection while allowing the industry to grow through innovations and inventions, thereby, mitigating the risks of trivial patents chocking the life out of real innovations and inventions. This is the reason a patent should always be treated as a “double edged sword”, to be wielded with caution and sensitivity. Now whether, in reality this will be implemented on a rigid basis or will become broad in scope through application (as in the U.S.), and, more importantly, whether the Ordinance would, in fact, result in increased innovation and inventions in the software industry, remains to be seen.

CLOUD COMPUTING PATENTS

Cloud Computing Patents within this background of development and innovation, Companies and individuals are seeking patent protection for cloud computing inventions. These inventions can present unique challenges to patent drafters who seek to obtain adequate coverage and protection for these inventions. Some of these challenges will be discussed herein, but first a fundamental understanding of these kinds of patents is required.

Cloud computing is the delivery of computing services, servers, storage, databases, networking, software, analytics and more over the Internet (“the cloud”). Companies offering these computing services are called “Cloud Providers” and typically charge for cloud computing services based on usage, similar to how you are billed for water or electricity at home.

USES OF CLOUD COMPUTING

If you use an online service to send email, edit documents, watch movies or TV, listen to music, play games or store pictures and other files, it is likely that cloud computing is making it all possible behind the scenes. The first cloud computing services are barely a decade old, but already a variety of organizations from tiny start-ups to global corporations, government agencies to non-profits are embracing the technology for all sorts of reasons.List of few things that we can do with the cloud:

Create new apps and services
Store, back up and recover data
Host websites and blogs
Stream audio and video
Deliver software on demand
Analyse data for patterns and make predictions

GLOBAL NATURE OF THE CLOUD AND ENFORCEMENT

Cloud service providers usually build several data centres around the world, and then use these facilities to provide services to customers from different countries. The globalization benefits of cloud computing, together with other benefits such as virtualization and scalability, enabled fast growth and adaption of the cloud computing technology by various organizations.Since, there are no all encompassing international or global patents (a US filed patent application is only valid in the USA and an EU patent in Europe), PAE and NPE cannot just file their claims in one country, but need to file in several countries where the servers are located or at least enforce their obtained judgments in those countries. Also,the forum shopping is a frequently used term in this context: i.e. litigants file their law suits in the Court thought most likely to provide a favourable judgment.

Switzerland is a key jurisdiction for enforcement, since it is a party to many international IP treaties (e.g. Patent Cooperation Treaty, European Patent Convention, Patent Law Treaty, etc.).Recognition of foreign arbitral awards does usually not trigger any particular issues in Switzerland, which is widely recognized as an arbitration friendly forum. The Swiss Federal Supreme Court adopts a very narrow interpretation of public policy and refrains from re-examining the merits of foreign arbitral awards. But also the Swiss Federal Patent Court which has exclusive jurisdiction over patent infringement and invalidity actions is known for its expedite procedures. Another benefit is that the parties can agree on conducting the proceedings in English.

Eventually, the soon to be implemented unitary patent concept with a single Court (the Unified Patent Court) and uniform protection which means that revocation as well as infringement proceedings are to be decided for the unitary patent as a whole rather than for each country individually, will also likely to lead to increased patent litigation in Europe.

CLOUD SOFTWARE PATENT

Cloud computing is a grey area when it comes to what can and can’t be patented. The primary challenge, and one for the whole of the software industry, is that software per se can’t actually be patented in Europe. To overcome this exclusion, we need to prove that a cloud invention has a technical effect beyond the simple use of software and make a case for its technical features; purely business or administrative methods are not seen as technical

cloud computing IP risks have had little public airing so far is probably that, while implicitly acknowledged, they have yet to be thoroughly expressed and articulated. For example, in UK financial services, now one of the most heavily regulated sectors, cloud computing is treated as outsourcing and in its cloud guidance, the FCA (Financial Conduct Authority, the UK regulator states that regulated firms should“identify and manage any risks introduced by their [cloud] arrangements. Accordingly firms should carry out a risk assessment to identify relevant risks and identify steps to mitigate them, document this assessment, identify current industry good practice … assess the overall operational risks, monitor concentration risk and consider what action it would take if the provider failed.

IP risks are not called out expressly but this is clear guidance that firms must identify, assess and plan for all relevant risks including service availability failure, which could of course crystallise due to IP risks.

NPEs are arming for offensive patent action in the cloud, stocking up their armouries and probing for weakness and opportunity. Cloud software patent risks have emerged on to the business agenda and are likely to become increasingly prominent for CSPs , cloud users and regulators alike.
As the public cloud services market continues to mature and grow the concentration of computing resources into cloud data centres is increasingly attracting the attention of NPEs as a target for patent litigation. At a time when data security and privacy risks are front of mind for cloud service providers (CSPs) and their users, the intellectual property (IP) risks to cloud service availability posed by NPE patent claims are rising up the business agenda.

PEs (Non-Practising Entities) are businesses that assert patents through litigation to achieve revenues from alleged infringers without practising or commercialising the technology covered by the patents they hold. NPEs are uniquely well placed to monetise their patents at each stage of the litigation cycle. They have access to capital and all necessary forensic and legal resources; and an NPE doesn’t practise its patents, so is immune to a counterclaim that a defendant might otherwise be able to bring against a competitor, or a cross-licence that the defendant could otherwise offer.

NPEs’ activities may attract attention as arbitraging the patent system, but that is to miss the point: the defendant in a patent claim brought by an NPE generally has an unattractive real-world choice between the cost and distraction of litigation and the cost of settlement which, whilst low in relation to likely litigation costs, is high relative to the perceived merits of the claim. Whilst recent US cases have made it more difficult to patent and enforce computer-implemented inventions, cloud-based software patent litigation is increasing: NPEs appear to have doubled down over the last five years, acquiring more cloud patents for their armoury as well as filing more patent cases.

From the NPE’s standpoint this makes sense. Claiming that software in the CSP’s PaaS (Platform as a Service) or IaaS (Infrastructure as a Service) infringes the NPE’s patents can be an efficient way to threaten alternative objectives: the CSP risks an injunction stopping it from using the software that embodies the patented technology; and the CSP’s customers using that software also face disruption as they may be liable both for their own workloads and for their CSP’s infringing code that they use.

SOFTWARE CONTRACTS

Software contracts, like many other transactions, are governed by the common law principles as embodied in the Indian Contract Act. Contracts can be in the nature of sale or assignment/licence. If the computer software is considered as a ‘good’, the Sale of Goods Act, 1930 will have relevance in the formation and execution of the sale contract. Section 2 (7) of the Sale of Goods Act defines ‘good’ as ‘every kind of movable property other than actionable claims and money, and includes stock and shares, growing crops, grass….’ This definition of ‘goods’ includes all types of movable properties, whether tangible or intangible.

However, the informwhether tangible or intangible, is of indeterminate nature, which has made the issue very debatable. In Tata Consultancy Services v State of Andhra Pradesh, the Supreme Court considereation content of the software, d computer software as ‘goods’ and stated that notwithstanding the fact that computer software is intellectual property, whether it is conveyed in diskettes, floppy, magnetic tapes or CD ROMs, whether canned (shrink-wrapped) or uncanned (customized), whether it comes as part of the computer or independently, whether it is branded or unbranded, tangible or intangible; is a commodity capable of being transmitted, transferred, delivered, stored, processed, etc., and therefore, as a ‘good’ liable to sales tax. The Court stated that, ‘it would become goods provided it has the attributes thereof having regard to (a) its utility; (b) capable of being bought and sold; and (c) capable of being transmitted, transferred, delivered, stored and possessed. If a software whether customized or non-customized satisfies these attributes, the same would be goods.’ Citing the decision of the US court in Advent Systems Ltd v Unisys Corporation, the Court held that ‘a computer program may be copyrightable as intellectual property does not alter the fact that once in the form of a floppy disc or other medium, the program is tangible, movable and available in the market place. The fact that some programs may be tailored for specific purposes need not alter their status as ‘goods’….In all such cases, the intellectual property has been incorporated on a media for purposes of transfer…The software and the media cannot be split up.’

Labelling computer software as ‘goods’ would make them liable under different tax laws, viz. central excise duty, customs duty on imports, and royalty paid by the assessee for using the trademark of another person. Once the software transactions are labelled as sale of goods or services, other laws related to goods will also be operative, viz., the Consumer Protection Act, 1986, the conditions and warranties, as contained in the Sale of Goods Act (Sections 11-17).

ENFORCEABILITY OF SOFTWARE CONTRACT/LICENCE

The legality and enforceability of these agreements have not been tested by the Indian courts so far. No software licence has been invalidated so far on the grounds of not being in writing or signed.Where the transaction is in the nature of sale, the parties may determine the terms and conditions of the contract, which will be enforceable, provided it is not against public policy. If the contract is merely for use or a service contract, the Consumer Protection Act will be applicable and the software vendor/developer may be held liable if the product or service is found to be defective/deficient, as the case may be. But it is also notable that click-wrap agreements may involve more than one jurisdiction, which may give rise to conflict of laws issues. Question may also arise regarding the extra-territorial application of the Indian law. Similarly, anti-trust issues may arise, which may be subject to competition law. The legality of shrink- wrap or click-wrap agreements, having restrictions on the development, use, services, may be called in question under the Competition Act, 2002. Whether Internet contracts would be covered by the Information Technology Act, which has very limited application in IP issues, has yet to be seen. So far as the contract law is concerned, the validity of the shrink-wrap/click-wrap agreements cannot be questioned as long as there is a sufficient offer, an acceptance of the offer, as well as a bargained-for exchange or consideration But a licence agreement, in spite of the fact it fulfills all the requirements of a valid contract, may not be enforceable if its stipulations conflict with the law governing it or it is an unconscionable or unreasonable bargain. In computer software, generally it is the tendency of software producers to do away.

ARBITRATION AS AN ALTERNATIVE WAY OF SOLVING SOFTWARE ISSUES IN INDIA

Arbitration law provides for parties of IP dispute opportunity to conclude arbitration agreement for transferring dispute to arbitration after filing case to the court on the different stage of procedure. This issue was reflected in the judgement of the Supreme Court of India A. Ayyasamy vs A. Paramasivam & Ors on October, 2016. “The Courts have held that certain kinds of disputes may not be capable of adjudication through the means of arbitration. The Courts have held that such categories of disputes like patent, trademarks and copyright cannot be referred to arbitration’’
Another difference regarding the procedure of challenging award. According to the provisions of Indian arbitration law the right to challenge an award is a statutory right and thus cannot be waived or taken away by an agreement between the parties. So, parties cannot exclude by agreement any right of appeal or other recourse that the law may provide.

For analysing, issues regarding arbitrability of IP disputes in India there were considered several judgments. In Booz Allen & Hamilton Inc. v. SBI Home Finance Ltd. (“Booz Allen”), the Supreme Court of India determined arbitrability under Indian law. It observed that disputes involving rights in rem (i.e. disputes concerning rights exercisable against the world at large) are not arbitrable, while disputes concerning rights in personam (i.e. rights exercisable against specific persons) are arbitrable. In Eros International Media Limited v. Telemax Links India Pvt. Ltd., the Bombay High Court considered the arbitrability of disputes involving Intellectual Property rights. The decision of Court was as Eros’ action concerned “a specific particularized relief against a particular defined party”, which would not give it any rights against the world at large, the Court found that Eros’ action was not in rem but in personam. On this basis, the Court concluded that the dispute between the Parties was arbitrable.

India only in cases where issues related to IPR is incidental, however, the actual dispute is over the subject which is contractual in nature involving right in personam, may be a subject of arbitration. Notwithstanding, the law of arbitration of India is based UNCITRAL Model Law there were noticed difference in the procedure of challenging arbitration award.

Sources Of Law And Regulation Relating To Patents And Patent Litigation

Statutory law

The recognition and enforcement of patent rights in India is principally governed by the Patents Act, 1970 and the rules issued under the Act. The Act has been amended several times and was substantially amended by the Patents (Amendment) Act, 2005 in order to bring the Indian patent regime into line with the Agreement on Trade-Related Aspects of Intellectual Property Rights ,1994 (TRIPs).

Customs enforcement of intellectual property rights (including patents) is governed by the Intellectual Property Rights (Imported Goods) Enforcement Rules,2007. Right holders can notify the customs authorities of the goods allegedly infringing their patent rights. On the basis of such information, customs authorities can detain and seize the goods in accordance with the applicable procedure.

Court decisions

Court decisions are a relevant source of patent law in India. Indian courts also rely on decisions of both European and US courts as sources of patent law. In the last couple of years, Indian courts have adjudicated on a number of substantive patent law issues including:

NATIONAL STATUTORY LAW.

The law made by the Indian Parliament or the state legislatures is considered binding law, and is the primary source in the case of conflict between sources.
INTERNATIONAL TREATIES. Provisions of international treaties or conventions cannot be applied directly by Courts. Domestic legislation giving effect to these conventions must be passed by the Indian Parliament or the state legislatures. However, in certain exceptional circumstances, where there is no statutory guidance, courts lean towards the direct application of international conventions.

COURT PROCEDURE

Under the Patents Act 1970, the District Court is the court of first instance for patent infringement actions. If the defendant seeks to challenge the validity of the patent during an infringement action, the action must be transferred to the High Court. However, the High Courts of Delhi, Bombay, Calcutta and Madras exercise original jurisdiction for patent infringement actions that are within their pecuniary jurisdiction, as prescribed under the relevant rules. This means that an infringement action can be brought directly before these High Courts provided that the applicable pecuniary thresholds are satisfied.
There are currently no specialised Courts to hear and decide patent infringement actions, although this has been widely debated.

The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Bill, 2015 is currently being considered by the Indian Parliament and is expected to be passed in the near future. If this Bill is enacted into a law, a separate division will be established in High Courts to deal with commercial matters (including intellectual property disputes), and special procedures will be followed for these matters.

More generally, patent enforcement actions are subject to the regular rules on litigation before Civil Courts. Civil Courts have exclusive jurisdiction to hear and decide issues concerning patent infringement. However, the Patent Office and the Intellectual Property Appellate Board (a specialised statutory body established to deal with intellectual property issues) have jurisdiction to decide on issues of patent invalidity.

CIVIL PROCEEDINGS

A software patent holder can start civil proceedings when seeking to enforce its rights. An injunction against the continuance of the threats.Damages for losses suffered, if any.

CRIMINAL PROCEEDINGS

Criminal proceedings for patent infringement cannot be instituted under the Patents Act,1970.

BORDER MEASURES FOR SOFTWARE PATENT

Effective border enforcement mechanisms are available in India. The government issued the Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007 under the Indian Customs Act,1962 with a view to strengthen the statutory and executive guidelines, thereby assisting patent holders in enforcing their rights at the borders of the Indian territory.

India has a unique system for the enforcement of patent rights at the borders. When the Intellectual Property (Imported Goods) Enforcement Rules,2007 were initially implemented, the customs authorities were quite active in detaining goods on the basis of registered patent rights. However, one of the cases of detention resulted in prolonged litigation in numerous forums where the detention was challenged and, ultimately, the goods were released. Based on this experience, the Delhi High Court, in Ericsson v Union of India (2012(52) PTC494(Del)), directed the customs authorities to exercise caution and restraint while enforcing patent rights at the borders. While customs authorities have the power to detain goods at the border in straightforward or simple patent infringement cases, they have been directed to act merely as “implementation authorities” in complex patent infringement cases (that is, they must only implement orders passed by the Court).

In February, 2011, the Government issued Circular relating to the implementation of the 2007 Rules. Under this Circular, an online, centralised bond management system has been created as part of the existing Automated Recordation and Targeting System. Through this system, a right holder can provide a one-time bond along with security at the time of registration, to which all ports will have access. In the case of interdiction of allegedly infringing goods, if the amount of the centralised bond and the security are not sufficient to cover the value of the goods seized, the right holder will be required to execute a supplementary bond and provide security for the corresponding amount within three days of the interdiction.

 Rights of Illegitimate Children

Illegitimacy under Hindu Law

Under the Hindu Law, if a marriage satisfy all the conditions laid down in Section 5 and Section 7 of the Hindu Marriage Act, 1955 it is considered to be a valid marriage.Children born of such a valid marriage are alone considered legitimate. If the conditions lay down under Section 5 of the Act, are not satisfied, the resultant marriage may be void or voidable marriage as per Sections 11 and 12 of the Act.
Section 11 of the Hindu Marriage Act, 1955 defines a void marriage. It says, if the marriage is in contravention of any of the conditions specified in clauses (i), (iv) and (v) of Section 52 it shall be null and void. The children born of such a marriage are considered to be illegitimate children.
Section 12 of the Hindu Marriage Act, 1955 lays down the grounds of voidable marriages. If the marriage is annulled under any one of the ground under Section 12, then the children born of such a marriage will be considered as illegitimate children.
Apart from the above, if proper ceremonies are not performed at the time of marriage as per Section 7 of the Hindu Marriage Act, the resultant marriage is not a valid marriage.Children born of such marriage will also fall under the category of illegitimate children.The children who will fall under the category of the illegitimate children under Hindu Law may be summed up as follows:

Children born out of void marriages
Children born of annulled/voidable marriage
Children born of illicit relationship
Children born through concubinage
Children born of a marriage which is not valid for want of proper ceremonies.

In essence,under Hindu law, the rule of legitimacy is dependent upon the marriage. The social status of children is determined by the act of their parents. If they have entered into a valid marriage, the children are legitimate; but if the parents committed a folly and entered recklessly into an invalid marriage or a child is conceived even without entering into a relationship of marriage the resultant innocent child are labelled as illegitimate.The innocent child without having any hold or control over the act of its parents has to suffer the consequence of it.

Rights of an Illegitimate Child in the Past

The Hindu law relating to illegitimate children can be discussed under the following four heads:

Maintenance
Inheritance
Joint Family Property and Partition
Guardianship

Maintenance

Prior to the coming into force of the Hindu Adoptions and Maintenance Act, 1956, an illegitimate son of a Hindu was entitled to maintenance out of his father’s coparcenary property and his self¬ acquired property. The father was bound to maintain his illegitimate son during the period of his minority, irrespective of the fact whether he had any property or not.
Among the Sudras, illegitimate sons were entitled to maintenance if they could not inherit or get a share on partition. If, however, the mother was not a Hindu, this right could not be enforced under the Hindu law. The illegitimate son could, in that case, proceed against the putative father under the Code of Criminal Procedure.
Illegitimate daughters had formerly no remedy under Hindu law. They were, however, entitled to maintenance under the Code of Criminal Procedure, which right was enforceable only during the life¬time of the putative father and terminated on his death.

Inheritance

An illegitimate child is not entitled to succeed to his father. But under the Hindu Succession Act, illegitimate children are deemed to be related by illegitimate kinship to their mother and to one another, and their legitimate descendants are deemed to be related by legitimate kinship to them and one another, and can therefore inherit from each other under the said Act. An illegitimate child can inherit the property of his or her mother or of his or her illegitimate brother or sister. A mother can also inherit the property of her illegitimate child. The father has no right to inherit the property of his illegitimate child.

Joint Family Properties and Partition

Unlike a legitimate son, an illegitimate son does not acquire any interest in the ancestral property in the hands of his father; nor does he form a coparcenary with him, so that during the life-time of his father, the right of the illegitimate son is only limited to maintenance.But the father may, in his lifetime, give him a share of his property, which may be a share equal to that of the legitimate sons.

Guardianship

A mother had a preferential right of guardianship. The mother is considered the natural guardian of an illegitimate child. The father had no right to the custody of the illegitimate son during the letter’s minority, and ordinarily, the mother of an illegitimate child had the right to the custody of the child during the years of nurture.

Rights of an Illegitimate Child in the Present Scenario

The Hindu law relating to illegitimate children and the changes that are done in the following years are also discussed under the four heads

Maintenance
Inheritance
Joint Family Property and Partition
Guardianship

Maintenance

Under the Hindu Adoptions and Maintenance Act, 1956, a Hindu is bound, during his or her life-time, to maintain his or her illegitimate children. The obligation to maintain illegitimate children is now upon both, the father as well as the mother. Not only the illegitimate son, but also an illegitimate daughter, is entitled to be maintained by her father and mother.
The right to be maintained, however,extends only upto the period of minority. An illegitimate child is not entitled to be maintained by his or her parents after attaining majority.

Such a child will also not be entitled to be maintained if he or she has ceased to be a Hindu by conversion to another religion.
Moreover, under the Hindu Adoptions and Maintenance Act, an illegitimate son of a deceased Hindu, so long as he is a minor, and an illegitimate daughter of a deceased Hindu, so long as she remains unmarried, are entitled to be maintained by the heirs of the deceased out of the estate inherited by them or by the persons who take the estate of the deceased.
Such a son or daughter, however, will not be entitled to maintenance under the said Act if he or she has ceased to be a Hindu by conversion to another religion.
An illegitimate child who has ceased to be a Hindu can, however, apply for maintenance from his or her father under the Code of Criminal Procedure.

Inheritance

After the passing of the Hindu Succession Act, 1956, an illegitimate child of a Sudra cannot inherit the property of his or her father. Formerly, an illegitimate son of a Sudra if he was a dasiputra,was entitled to succeed to his father. Now, under the Act, he cannot.

Joint Family Property and Partition

Prior to the passing of the Hindu Succession Act, on the death of his father, an illegitimate son succeeded to his estate as a coparcener with the legitimate son of his father, and was entitled to enforce a partition against the legitimate son. Now, under the said Act, however, he cannot succeed his father, as he is not related to him by legitimate kinship.

Guardianship

The mother is considered the natural guardian. Now, if both the parents of an illegitimate child are Hindus, Buddhists, Jains or Sikhs by religion, or if one of the parents of such child is a Hindu, Buddhist, Jain or Sikh by religion, and such child is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged, then the Hindu Minority and Guardianship Act, 1956, applies to such a child, and under section 6 of the Act, in the case of an illegitimate boy or illegitimate unmarried girl, the mother is the natural guardian, and after her, the father is the natural guardian, and in the case of a married girl, the husband is the natural guardian.
But under that Act, such a guardian is not entitled to act as such, if he or she had ceased to be Hindu or has completely and finally renounced the world by becoming a hermit or an ascetic.

Judiciary on Illegitimacy

The Court has given some landmark judgments in the field of illegitimacy.
Some of such decisions are:
The Supreme Court of India in Revanasiddappa v. Mallikarjun opined that the constitutional values enshrined in the Preamble of our Constitution which focuses on the concept of equality of status and opportunity and also on individual dignity. The Court has to remember that relationship between the parents may not be sanctioned by law but the birth of a child in such relationship has to be viewed independently of the relationship of the parents.
A child born from such relationship is innocent and is entitled to all the rights which are given to other children born in valid marriage.
In Jinia Keotin v. Kumar Sitaram Manjhi,the Supreme Court has said:
Under the ordinary law, a child for being treated as legitimate must be born in lawful wedlock. If the marriage itself is void on account of contravention of the statutory prescriptions, any child born of such marriage would have the effect, per se, or on being so declared or annulled, as the case may be, of bastardising the children born of the parties to such marriage.
In Kamulammal (deceased) represented by Kattari Nagaya Kamarajendra Ramasami Pandiya Naicker v. T.B.K. Visvanathaswami Naicker (deceased) & Ors the Privy Council held when a Sudra had died leaving behind an illegitimate son, a daughter, his wife and certain collateral agnates, both the illegitimate son and his wife would be entitled to an equal share in his property. The illegitimate son would be entitled to one-half of what he would be entitled had he been a legitimate issue. An illegitimate child of a Sudra born from a slave or a permanently kept concubine is entitled to share in his father’s property, along with the legitimate children.

Illegitimate Children Under Muslim Law

In Hindu law, the illegitimate child belongs to the mother. But under Muslim law, the child does not even belong to the mother and is considered as the child of nobody.

Muslim Law

Parentage is exclusively established with the real father and mother of a child, and only if they beget the child in a lawful matrimony. Muslim Law is devoted to the notion that an illegitimate child is a child of nobody. In Hanafi Law, parentage is established in the every case by the mother but in Shiite Law, parentage is established only if the child is begotten in lawful wedlock, which means that an illegitimate child will not belong to either of the parents. They (Sunnis or the Hanafis) adopt a view that an illegitimate child, for some purposes, such as for feeding and nourishment, belongs to the mother. For these purposes, the Hanafi Law confers some rights on the mother.

In Muslim law, a son is legitimate only if the offspring is begot by a man and his wife or a man and his respective slave; any other offspring is known as ‘Zina,’ which means a clandestine connection, and hence is not legitimate. The term ‘wife’ essentially means marriage but marriage may be entered into without any ceremony; the presence of marriage therefore in any particular case may be an open question.

Direct proof is needed to prove a marriage valid, but if there be no such proof, indirect proof shall suffice. Now, one of the ways for indirect proof is by the acknowledgment of legitimacy in favor of a son. This acknowledgment must not be merely of sonship, but must be made in such a manner that it shows that the acknowledger’s intention is to accept the child as his legitimate son.

Privy Council in Sadiq Hussain v. Hashim Ali said that ‘No statement made by one man that another (proved to be illegitimate) as his son can make the other legitimate, but where no proof of that kind has been given, such a statement or acknowledgement is substantive evidence that the person so acknowledged is the legitimate son of the person who makes the statement, provided his legitimacy is possible.’

Again in Habibur Rehman Chowdhury v. Altaf Ali Chowdhury, ‘the Court has said that there is no process recognized under Muslim law by which a status of legitimacy may be conferred on an illegitimate child. But, it seems that one of the reasons for permitting polygamy and temporary forms of marriages under Muslim law is that under no circumstances the child born to them shall be illegitimate.

Right to property of illegitimate child

In Muslim law, the illegitimate child has no right to inherit property from the father in the classical law, as well as in some of the modern Islamic jurisdictions.The mother of an illegitimate child may find herself subject to harsh punishments for having Zina. Thus, the crucial status of legitimacy in Islamic law has a huge impact on the lives of children and their parents, especially mothers. Thus, it is difficult for an illegitimate child to claim property from his or her parent/s.
In no school of Muslim law, an illegitimate child has any right of inheritance in the ownership of his putative father. Under the Hanafi law, the mother and her illegitimate children have mutual rights to inherit property. The illegitimate child inherits not only the property of his/her mother but also the property of all other relations with whom he/she is related through their mother.

Thus, when a Hanafi female dies to leave behind her husband and an illegitimate son of her sister, the husband will take one-half of the total property and the remaining will go to the sister’s son. Since the illegitimate child cannot inherit from the father, he/she cannot inherit from any other relations through the putative father.

A reciprocal right of inheritance exists between an illegitimate child and the maternal relations. They are also his residuary heirs. Of course, his other inheritors are his/her spouses and his descendants, with an exception of his father and his relations. Thus if an illegitimate person leaves a mother, a daughter, and father, the daughter would get ½ and the mother 1/6th; the remainder would revert to them. The father would be excluded. Similarly, an illegitimate brother and illegitimate uncle are not entitled to inherit. But a twin brother will inherit as his uterine brother (the twin brother is regarded as the son of only the mother and not that of the father, hence the term- uterine brother.

Under the Shia law, the illegitimate child does not inherit even from the mother. In Shia law, illegitimacy acts as the factor for complete exclusion, and the illegitimate child is not allowed to inherit from either of the parents.

Right to Maintenance of an Illegitimate Child

Tyabgi says ‘Mohammadan law appears to impose no burden upon the natural father of the child’. Muslim laws, it seems, does not confer any kind obligation of maintenance of illegitimate children on either parent, though the Hanafis recognize the obligation of nurture a child till the age of seven; the Shias do not even recognize this obligation.
Under Muslim law, the father is not bound to maintain his illegitimate child, but Section 125 of the Criminal Procedure Code, 1973, (which ensures that all such unfortunate children are maintained by their fathers except a married daughter) however binds the father to pay for the maintenance of the child. The father would be held liable to pay a certain amount even if the mother refuses to give up the illegitimate child to him.

Guardianship Under Muslim Law

In the schools of both the Sunnis and the Shias, the father is recognized as guardian and the mother in all Muslim schools of law is not recognized as a guardian, natural or otherwise, even after the demise of the father. The father’s right of guardianship exists even when the mother, or any other female, is entitled to the custody of the minor. The father has the absolute right to control the education and religion of minor children. So long as the father is alive, he is the exclusive and supreme guardian of his minor children.

In Muslim Law, an illegitimate child is considered as ‘a child of nobody. ‘The Father’s right of guardianship extends only to his minor legitimate children. He is not entitled to the guardianship or the custody of his illegitimate minor children. The mother is also not a natural guardian, even of her illegitimate minor children but she is entitled to their custody

The Christian law of inheritance in India is regulated by the Indian Succession Act, 1925. The Indian Succession Act (ISA) only recognizes kinship, therefore adopted and illegitimate children are excluded from the ambit of the act. Christian law provides for equal inheritance rights to sons and daughters only if they are born from a valid marriage. ’Child’ under ISA does not include illegitimate child.

Indian Christian marriage act defines void marriages as following

1. Section 4 says if either the bride or bridegroom is Christian and the marriage is not solemnized and registered according the provisions of this Act, the marriage is void.
2. As per Section 26 and 52 if the marriage is not solemnized within two months after the notice is given, the marriage is void.

Section 60 says that if the persons intending to be married has a wife or husband still living than marriage is void
Since Indian Divorce Act is applicable to divorce under Christian law, Section 18 and 19 provides in what situations marriage solemnized under Christian religion may be declared null and void

the respondent was impotent at the time of marriage and at the time of institution of the suit

The parties are within prohibited degree of consanguinity or affinity
Either party was lunatic or idiot at the time of marriage
The former husband or wife of either party was living at the time of marriage and the earlier marriage was subsisting

Under section 21 of the Indian Divorce Act, 1869 only annulment of the marriage in two situations can confer the status of legitimacy to children born of the marriage, viz.,
a second marriage during the subsistence of the first marriage in good faith that the former spouse was notalive, and insanity.

Thus illegitimate children born out of all kinds of void marriage are not debarred from inheriting the estate of their parents and child is disqualified only if born out of prohibited degree or when the other party is importent.

In Christian law, we see discrimination exists between children born out of different grounds of void marriages.

Maintenance

The personal law of Christian does not also confer any obligation on the parents to maintain their illegitimate child though such child can claim maintenance under the secular law provisions of Code of Criminal Procedure, 1973. A minor child whether legitimate or illegitimate has no right to claim separate maintenance as per the decision of the court in Chacko v.Daniel.On issues relating to succession only the lawfully wedded wife and legitimate children have the claim.

Guardianship

In accordance to the changing needs and nature of the society, the Supreme Court ruled that an unwed mother can be appointed as the sole legal guardian of her child without the consent of the father. India is changing, and many single parent families are emerging. The Court refused to involve father in the petition who was even unaware of the existence of the child.

The legal recognition by father is irrelevant in situation when the mother is the sole care giver of the child. Welfare of child has paramount importance and taking into account the law in countries like UK, USA, New Zealand, Philippines and South Africa, ruled that unwed mother has primary custodial and guardianship rights over the child.

The main issue that arose in this case was with respect to procedural requirement as per the Guardians and Wards Act, according to which the notice is required to be sent to father to obtain his consent, as petitioner has applied for guardianship. The bench gave a liberal interpretation to Section 11 of the Guardians and Wards Act, ruling that in the case of illegitimate children whose sole caregiver is one of his or her parents, the term “parent” would mean principally mean that parent alone.

The bench also decided not to be swayed by the tenets of Christian law, and said: “India is a secular nation and it is a cardinal necessity that religion be distanced from law. Therefore, the task before us is to interpret the law of the land, not in light of the tenets of the parties’ religion but in keeping with legislative intent and prevailing case law.”

It further noted that unwed Christian mothers in India are disadvantaged when compared to their Hindu counterparts who are the natural guardians of their illegitimate children by virtue of their maternity alone. “It would be apposite for us to underscore that our Directive Principles envision the existence of a uniform civil code, but this remains an unaddressed constitutional expectation,” the bench stated.

Indian Succession Act, 1925

The ISA is based on Statue of Distribution which used to govern the succession of the personal property in England. The Act provided no discrimination in inheritance on the basis of sex. Rights of both half blood and full blood were recognized.

In Smith v. Massey, it was held that where there were two sisters born of unmarried parents the son of one of them was not the nephew of the other. It was also said for the applicability of Indian Succession Act:

No doubt the Act is applicable to others than persons, of exclusively English descent, but these sections are not extended to Hindus, and for my own part I cannot conceive that such an Act as this, which defines certain relations simpliciter, intended any other relations than those flowing from lawful wedlock. If the argument were conceded, a bastard would share equally with a son-i.e. a legitimate son, he being the only son known to our law-and this result appears to me wholly repugnant and impossible.

There is no difference between agnates and cognates.

Testamentary succession

The Act expressly discriminates illegitimate children in matters of testamentary succession when it says that if the intention of the testator to give the property to the illegitimate children is not clearly mentioned in the will, then the term child will refer only to legitimate child.

 Civil Case Procedure in India

For filing a civil case or civil law suit, there is a detailed process laid down, if the process is not followed, then the registry has a right to dismiss the suit. The Procedure is as follows:
Filing of Suit/Plaint: Order 4 Rules 1 & 2 CPC)– Plaint is the written complaint or allegation. One who files it is known as “Plaintiff” and against whom it is filed is known as “Defendant”. It contains Name of the Court, Nature of Complaint, Names and Address of parties to be suit, it also contain verification from plaintiff, stating that, contents of the plaint are true and correct.

Filing -Filing of plaint before Chief Ministerial Officer [Sherestedar)–paying appropriate court fee & process fees, different amount of court fees is paid for different type of documents.

Vakalatnama– Vakalatnama is a written document, by which the person/party filing the case authorizes the Advocate/Lawyer to represent on their behalf. However a person/party filing a case, May also represent their own case personally in any court and in this case he do not need Vakalatnama”

Issue and service of summons O. 5

Once the suit is registered, summons is send to the defendant to appear in court on a specified date. The summons shall be signed by the judge and sealed with the seal of court. The summons is accompanied by plaint as well.

The court, if sees fit, may also require the plaintiff to be present as well during the appearance of defendant.

The court may require the party to appear in person only if they

They reside within the local limits or the court’s ordinary jurisdiction

They reside at place less than fifty or (where there is railway or steamer communication or other established public conveyance for five-sixths of the distance between the place where he resides and the place where the Court is situate) less than two hundred miles distance from the Court-house

If the defendant is not required to appear in person then the defendant may send a pleader to represent his case.

Summons for final disposition

If the court deems fit, the summons can be sent for final disposition (instead of settling the issues). If the summons is sent for the final disposition, then the summons would mention this and would also direct the defendant to produce all the documents, evidence, and witnesses to support his case.

Appearance of Defendant

The defendant needs to appear in the court either personally, or by a representative on the date mentioned in the summons. If the summons was for final disposal, then the defendant needs to present evidence, documents, and any witnesses to support his case.
Hearing on IA No (If any IA is filed for immediate relief. eg :interim Application likre injunction order.

Interim Order

If IA is allowed, comply with the order (compliance means sending ia copy to the otherside by Registered Post with Acknowledgement due and filing affidavit to that effect in the court.On the every interim application there will be stages to be followeds by either of the party or the Court will issues Notice/Summon to the other side o

Return of Notice

If otherside appears,they will file vakalat or they will be placed exparte. If the notice is not served to the otherside (due to wrong address )steps to reissue the summon to be taken by filing process or take steps to give public notific ationin newspaper,advertisement .If adder ss of defendant is not known

Submission of Written Statement. (O.8)

The written statement may be filed on the first day of hearing but the court the may permit additional time provided that the period allowed for filing the written statement shall not ordinarily exceed thirty days

Replication by Plaintiff

Replication is a reply, filed by the plaintiff, against the “written statement” of Defendant and it should also specifically deny the allegations raised by the Defendant in written statement. Anything which is not denied is deemed to be accepted.Once Replication is filed, pleadings are stated to be complete.

Legal Advice

Forumulation of Issues: (O.14):

– Issues are framed by the Court and on the basis of “Issues” arguments and examinations of witness takes place.

Filing of Other Documents

– Once, the pleadings are complete, and then both the parties are given opportunity to produce and file documents, on which they rely, and to substantiate their claims. Filing of Documents should be admitted and taken on record

Evidence of Plaintiff

Evidence of plaintiff by way of filing affidavit and exhibiting the documents. The plaintiff has to state his case in front of the judge.

Cross-Examination of Plaintiff: (O. 18)

The plaintiff will be cross-examined by the defendant’s lawyer. The witnesses from plaintiff’s side also have to appear in the court, who are also cross-examined by the defendant’s counsel

Evidence of Defendant:

The defendant also presents his side of the story supported by the witnesses and evidence from his side. The evidence needs to be be marked earlier by the court, otherwise it will not be considered by the court

Cross-Examination of Defendant

. The plaintiff’s lawyer will then cross-examine the defendant. The witnesses from defendant’s side also have to appear in the court, who are also cross-examined by the plaintiff’s counsel

Argument: (O. 20 R. 1):

Once the evidence has been submitted and cross-examination is conducted by the plaintiff and defendant, both sides are allowed to present a summary of their case and evidence to the judge in the Final argument session.

Judgment: O. 20

After the final arguments, the court may give the judgement on the same day or may adjourn the court for a further date. If the court does not give the judgment immediately, then it tries to give the judgement within 15 days. However, if the judgement is not pronounced within 30 days of final hearing then the court needs to record he reason for doing so.

The party in whose favor the judgement is passed is known as decree holder, and the party against whom the judgement is passed is called the judgement debtor.

Review of Judgement

If a party is not satisfied with the judgement, then it can file an application for review of the judgement. If the court feels there are not sufficient grounds for the review, then it may reject the application. The court may also reject the application if it was based on some new evidence unless strict proof is provided that the party was earlier unaware of it

Appeal

A party may appeal in appellate court against the original decree. A memorandum needs to be filed in the appellate court specifying the grounds of objection. The appellant may be required to provide the security for cost. The court may accept, reject, or send back the appeal to the appellant for modifications.

Execution of Decree: (O.21)

The holder of decree applies to the court to execute it. (O.21. R. 10). All applications for execution need to be in writing except where the decree is for the payment of money. O. 21. R.11

 Criminal Procedure in India

The Process of criminal legal advice is explained in a very simple way.Without multiplying the details as this may complicate non professional understanding of the concept.

REPORTING AN COMMI SSIONING OF AN OFFENCE:

The persons informing the police is called either informant or complainant and the persons against whom complaint is made are called suspect or accused based on the facts of the case.

Pre-arrest Investigation:

Law enforcement investigates whether a crime has occurred and whether an arrest should be made.

Filing an FIR

The police, on receiving information, prepares a written document, known as a First Information Report (FIR). An FIR can be filed by you if you are the person against whom the crime has been committed or know about an offence that has been committed.

WHAT TO DO IF THE FIR IS NOT REGISTERED

When the police refuse to register the FIR despite a specific complaint of cognizable offense, the complainant has the remedy to file an application under Section 156(3) of CrPC before the court of the magistrate on which the magistrate can issue directions to the police to register a FIR and investigate the matter.

PROTECTION OF ACCUSED

The a cussed should be produced before Magistrate within 24 hours

BAIL HEARING:

If the offence reported is bailable , the police may admit the accused on bail subject to the terms and conditions imposed on him. If the offence reported is non-bail able then the police may either arrest the accused or may not arrest him if his custodial interrogation is not required.

COMPLETION OF INVESTIGATION

If the investigating agency sense a prima facie ca se is made at Charge sheet is filed in Court through the Public Prosecutor. If the investigating agency applies that no prima facie case is made at a final report filed in Court.

HEARING REGARDING CHARGE:

The Court upon considering the police report and the documents and after giving the prosecution and the accused an opportunity of being heard.

DISCHARGE:

If the Court feels the Charge are groundless,will record the reason for decision.

Framing of Charges

If after considering the case and other important documents the accused is not discharged the next step taken by the court is framing of the charges.

CONVICTION ON PLEA OF GUILTY

If the accused pleads guilty,the Court shall record the plea and may at discretion convict the accused,the accused pleas not guilty,the case is posted for trial.

RECORDING OF EVIDENCE OF PROSECUTION

Examination of prosecution witness by the Public Prosecutor marking of exhibit and cross examination by the defence Counsel.

STATEMENT OF ACCUSED

As provided in section 313 of Cr.P.C to enable the accused to personally explain any circumstances appearing evidence against him.

DEFENCE EVIDENCE:

If the defence wants to it examines defendant side witnesses,who are cross examined by the Public Prosecutor and exhibits defendant evidence.

ARGUMENTS:

Public Prosecutor and defence counsel for present their arguments

JUDGEMENT AND SENTENCE BY THE COURT

Acquittal of accused or conviction Arguments of Public Prosecutor and Defence Counsel on sentence. Judgement of Court passing sentence. Application can be filed by the defence counsel for the suspension of sentence.

 Consumer Protection in India

We are all consumers of goods and services in one way or the other. The moment we take birth on this earth we became consumers and are entitled to seek relief under the Consumer Protection Act. These days we see that consumers are cheated and harassed in many ways. At times,they are provided with inferior quality of goods, at times with less quantity than actually demanded whereas at other times the consumer is charged with excess prices than otherwise fixed for the commodity. The traders considers consumers as persons who are morons having paying capacity and can try to deceive them in every possible way. Therefore, there was a strong need felt to protect the consumers.

India

In India, consumer protection is specified in The Consumer Protection Act, 1986. Under this law, Separate Consumer Dispute Redressal Forums have been set up throughout India in each and every district in which a consumer can file his complaint on a simple paper with a nominal Court Fees and his complaint will be decided by the Presiding Officer of the District Level. The complaint can be filed by both the consumer of a goods as well as of the services. An appeal can be filed to the State Consumer Disputes Redress Commissions and after that to the National Consumer Disputes Redressal Commission (NCDRC). The procedures in these tribunals are relatively less formal and more people friendly and they also take less time to decide upon a consumer dispute when compared to the years long time taken by the traditional Indian judiciary.

Unfair Trade Practice :

The Act says that, unfair trade practice means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely:-
(1) The practice of making any statement, whether orally or in writing or by visible representation which-
(i) falsely represents that the goods are of particular standard, quality, quantity, grade, composition, style or model;
(ii) falsely represents that the services are of a particular standard, quality or grade;
(iii) falsely represents any re-built, second-hand, renovated, reconditioned or old goods as new goods;
(iv) represents that the goods or services have sponsor­ship, approval performance, characteristics, accessories, uses or benefits which such goods or services do not have;
(v) represents that the seller or the supplier has a sponsorship or approval or affiliation which such seller or supplier does not have;
(vi) makes false or misleading statement concerning the need for, or the usefulness of, any goods or services;
(vii) gives to the public any warranty or guarantee of the performance, efficacy or length of life of a product or of any goods that is not based on an adequate or proper test thereof;
(viii) makes to the public a representation in a form that purports to be a warranty or guarantee of a product or of any goods or services; or a promise to replace, maintain or repair an article or any part thereof or to repeat or continue a service until it has achieved a specified result, if such purported warranty or guarantee or promise is materially misleading

Or,
if there is no reasonable prospect that such warranty, guarantee or promise will be carried out;
(ix) materially misleads the public concerning the price at which a product or like products or goods or services, have been or are, ordinarily sold or provided, and, for this purpose, a representation as to price shall be deemed to refer to the price at which the product or goods or services has or have been sold by sellers or provided by suppliers generally in the relevant market unless it is clearly specified to be the price at which the product has been sold or services have been provided by the person by whom or on whose behalf other representation is made;
(x) gives false or misleading facts disparaging the goods, services or trade of another person.

JURISDICTION OF CONSUMER FORUM
At first,identify the Jurisdiction of the Forum where the complaint is to be filed. This issue needs to be identified from two angles of jurisdiction i.e. Territorial and Pecuniary.The Consumer has to take into consideration both the territorial and pecuniary jurisdiction of the tribunal in mind before filing his or her complaint and has to choose the correct forum.

Pecuniary Jurisdiction of the Consumer Forum

1 District Forum upto Rs. 20 Lakhs
2 State Commission upto Rs. 20 Lakhs to Rs. 1 Crores
3 National Commission Exceeding Rs. 1 Crores

State Commission

It is set up by the State Government and its jurisdiction is restricted to the boundaries of the state concerned. The Consumer Protection Act lays down the working of a State Commission as under: The State Commission shall consist of a President who either has been a Judge of a High Court and two other members. All the three shall be appointed by the State Government. Only those complaints can be filed where the value of goods or services and compensation claim comes in between Rs. 5 lakh and Rs. 20 lakh. The appeal against the order of any District Forum can also be filed before the State Commission.
A jeep was purchased to run it as a taxi. The question was whether the buyer of the jeep was a consumer under the Act. The Rajasthan State Commission held that to use the jeep as a taxi with the object to earn profits was a commercial purpose, and therefore, the buyer/user was not a consumer within the meaning of the Act. [Smt. Pushpa Meena v. Shah Enterprises (Rajasthan) Ltd. (1991) 1 CPR 229].
The State Commission is required to refer the complaint to the opposite party concerned and send the sample of goods for retesting in a laboratory, if necessary.The State Commission after being satisfied that the goods were defective can issue the same order as can be issued by the District Forum. Any person who is aggrieved by the order of the State Commission can appeal against such order to the National Commission within 30 days.

National Commission

It is set up by the Central Government. The salient features and provisions of the Act pertaining to the National Commission are as under.It shall include a President who is or has been a Judge of the Supreme Court and four other members appointed by the Central Government. The identical complaints as can be filed in the District Forum and State Commission can be filed in the National Commission too. Appeal against the order of State Commission can also be filed before the National Commission. The National Commission shall have the same power as that of a Civil Court in dealing with cases and follow the procedure prescribed by the Central Government. It has the authority to issue orders for safety provisions and pay compensation for loss or injury cause. An appeal against the order of the National Commission can be filled to the Supreme Court within 30 days.

Role of Consumer Protection Council:

After the amendment of Consumer Protection Act 1986 in the year 2002 Consumer Protection Council became also converted into a three tier system mechanism which provides the establishment of a Central Consumer Protection Council, by the Central Government, State Consumer Protection Councils by the state Governments and the District Consumer Protection Councils by the state Governments. The councils are established to fulfill the original intention of the legislature behind the enactment of the Act; it is to safeguard the interest of the consumers at large within their respective jurisdiction. The main enshrined objectives of the councils are as follows:-

1. To protect the rights of the consumer;
2. To protect the interest of the consumer

Relief available against complaint [Sections 14 and 22] – A complainant can seek any one or more of the following relief under the Act:

(a) to remove the defect pointed out by the appropriate laboratory from the goods in question;
(b) to replace the goods with new goods of similar description which shall be free from any defect;
(c) to return to the complainant the price, or, as the case may be, the charges paid by the complainant;
(d) to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party;
(e) to remove the defects or deficiencies in the services in question;
(f) to discontinue the unfair trade practice or the restrictive trade practice or not to repeat it;
(g) not to offer the hazardous goods for sale;
(h) to withdraw the hazardous goods from being offered for sale;
(i) to provide from adequate costs to complainant.

MEDICAL NEGLIGENCE AND CONSUMER PROTECTION ACT, 1986

Negligence is simply the failure to exercise due care. The three ingredients of negligence are as follows:

1. The defendant owes a duty of care to the plaintiff.
2. The defendant has breached this duty of care.
3. The plaintiff has suffered an injury due to this breach.

Medical negligence is no different. It is only that in a medical negligence case, most often, the doctor is the defendant.

Reasonable Degree of Care

Reasonable degree of care and skill means that the degree of care and competence that an “ordinary competent member of the profession who professes to have those skills would exercise in the circumstance in question.” At this stage, it may be necessary to note the distinction between the standard of care and the degree of care. The standard of care is a constant and remains the same in all cases. It is the requirement that the conduct of the doctor be reasonable and need not necessarily conform to the highest degree of care or the lowest degree of care possible. The degree of care is a variable and depends on the circumstance. It is used to refer to what actually amounts to reasonableness in a given situation.
Thus, though the same standard of care is expected from a generalist and a specialist, the degree of care would be different. In other words, both are expected to take reasonable care but what amounts to reasonable care with regard to the specialist differs from what amount of reasonable care is standard for the generalist. In fact, the law expects the specialist to exercise the ordinary skill of this speciality and not of any ordinary doctor. Though the courts have accepted the need to impose a higher degree of duty on a specialist, they have refused to lower it in the case of a novice.
Another question that arises is with regard to the knowledge that is expected from a doctor. Should it include the latest developments in the field, hence require constant updating or is it enough to follow what has been traditionally followed? It has been recognized by the courts that what amounts to reasonableness changes with time. The standard, as stated clearly herein before requires that the doctor possess reasonable knowledge. Hence, we can conclude that a doctor has to constantly update his knowledge to meet the standard expected of him. Furthermore, since only reasonable knowledge is required, it may not be necessary for him to be aware of all the developments that have taken place.
We have, until now, examined the duty of a doctor in so far as treating a patient is concerned or in diagnosing the ailment. Doctors are, however, imposed with a duty to take the consent of a person/patient before performing acts like surgical operations and in some cases treatment as well. To summarize, any act that requires contact with the patient has to be consented by the patient. A duty of care is imposed on the doctors in taking the patient’s consent. Naturally, a question arises as to what is this duty of care. As per the judicial pronouncements, this duty is to disclose all such information as would be relevant or necessary for the patient to make a decision. Therefore, the duty does not extend to disclosing all possible information in this regard. Furthermore, this duty does not extend to warning a patient of all the normal attendant risks of an operation. The standard of care required of a doctor while obtaining consent is again that of a reasonable doctor, as in other cases.

When there is No Liability

A doctor is not necessarily liable in all cases where a patient has suffered an injury. This may either be due to the fact that he has a valid defense or that he has not breached the duty of care. Error of judgment can either be a mere error of judgment or error of judgment due to negligence. Only in the case of the former, it has been recognized by the courts as not being a breach of the duty of care. It can be described as the recognition in law of the human fallibility in all spheres of life. A mere error of judgment occurs when a doctor makes a decision that turns out to be wrong. It is situation in which only in retrospect can we say there was an error. At the time when the decision was made, it did not seem wrong. If, however, due consideration of all the factors was not taken, then it would amount to an error of judgment due to negligence.

JUDICIAL INTERPRETATION OF MEDICAL NEGLIGENCE LIABILITY

By and large the following legal issues have been addressed and responded to by different forums and Courts in India.

Charge of Medical Negligence against Professional Doctors

From the time of Lord Denning until now it has been held in several judgments that a charge of professional negligence against the medical professional stood on a different footing from a charge of negligence against the driver of a motor car. The burden of proof is correspondingly greater on the person who alleges negligence against a doctor. It is a known fact that with the best skill in the world, things sometimes went wrong in medical treatment or surgical operation. A doctor was not to be held negligent simply because something went wrong. The National Commission as well as the Apex Court in catena of decisions has held that the doctor is not liable for negligence because of someone else of better skill or knowledge would have prescribed a different treatment or operated in a different way. He is not guilty of negligence if he has acted in accordance with the practice accepted as proper by a reasonable body of medical professionals. The Hon’ble Supreme Court in the case of Dr. Laxman Balkrishna vs. Dr. Trimbak, AIR 1969 SC 128, has held the above view that is still considered to be a landmark judgment for deciding a case of negligence. In the case of Indian Medical Association vs. Santha, the Apex Court has decided that the skill of a medical practitioner differs from doctor to doctor and it is incumbent upon the Complainant to prove that a doctor was negligent in the line of treatment that resulted in the life of the patient. Therefore, a Judge can find a doctor guilty only when it is proved that he has fallen short of the standard of reasonable medical care. The principle of Res-Ipsa-Loquitur has not been generally followed by the Consumer Courts in India including the National Commission or even by the Apex Court in deciding the case under this Act. In catena of decisions, it has been held that it is for the Complainant to prove the negligence or deficiency in service by adducing expert evidence or opinion and this fact is to be proved beyond all reasonable doubts. Mere allegation of negligence will be of no help to the Complainant.

Proof of Medical Negligence

It has been held in different judgments by the National Commission and by the Hon’ble Supreme Court that a charge of professional negligence against a doctor stood on a different footing from a charge of negligence against a driver of a vehicle. The burden of proof is correspondingly greater on the person who alleges negligence against a doctor. It is a known fact that even with a doctor with the best skills, things sometimes go wrong during medical treatment or in a surgery. A doctor is not to be held negligent simply because something went wrong. It is an admitted fact that the Complainant’s eyesight was not restored after the operation was conducted by the Appellant but on this ground alone a doctor can not be held negligent because even after adopting all necessary precautions and care the result of the operation may not be satisfactory since it depends on various other factors. The contention of the Appellant was that the patient was suffering from diabetes and blood pressure and in many such cases eyesight is not restored after the operation however carefully it is done. In this case, there is nothing on record to show that something went wrong due to an act of the Appellant-doctor. There is no evidence to come to the conclusion that the Appellant fell below the standard of a reasonably competent practitioner in their field, so much so that their conduct might be deserving of censure. The Appellant cannot be liable for negligence because someone else of better skill or knowledge would have prescribed a different method of operation in different way. The evidence suggests that the Appellant has performed the operation and acted in accordance with the practice regularly accepted and adopted by him in this hospital and several patients are regularly treated for their eye problems. The Hon’ble Supreme Court in the case of Dr. Laxman Balkrishna vs. Dr. Triambak, AIR 1969 Supreme Court page 128 has held the above view and this view has been further confirmed in the case of the Indian Medical Association vs. Santha. The Apex Court and the National Commission has held that the skill of a medical practitioner differs from doctor to doctor and it is an incumbent upon the Complainant to prove that the Appellant was negligent in the line of treatment that resulted in the loss of eyesight. A Judge can find a doctor guilty only when it is proved that he has fallen short of a standard of reasonable medical care. The fact and circumstances of the case before us show that the Appellant has attended to the patient with due care, skill, and diligence. Simply because the patient’s eyesight was not restored satisfactorily, this account alone is not grounds for holding the doctor guilty of negligence and deficient in his duty. It is settled law that it is for the Complainant to prove the negligence or deficiency in service by adducing expert evidence or opinion and this fact is to be proved beyond all reasonable doubt. Mere allegation of negligence will be of no help to the Complainant.
The following cases of alleged medical negligence provide an insight into how the final decision is reached by the judicial bodies. “All medical negligence cases concern various questions of fact, when we say burden of proving negligence lies on the Complainant, it means he has the task of convincing the court that his version of the facts is the correct one”. No expert opinion has been produced by the Complainant to contradict the report of the Board of Doctors. The appeal of the Complainant was dismissed with costs as “No expert opinion has been produced by him. In a case of an improper union of the patella, no expert has been produced by the Complainant to prove negligence of the opposite party. Thus, it cannot be said with exactness that treatment of the Complainant by the opposite party was against the norms prescribed under the medical jurisprudence or that the opposite party in any way was negligent or deficient in the performance of his duties.“Allegation of medical negligence is a serious issue and it is for the person who sets up the case to prove negligence based on material on record or by way of evidence”. The complaint of medical negligence was dismissed because the applicant failed to establish and prove any instance of medical negligence.“Merely because the operation did not succeed, the doctor cannot be said to be negligent” and the appeal of the doctor was allowed. “A mere allegation will not make a case of negligence unless it is proved by reliable evidence and is supported by expert evidence” and the appeal was dismissed. “The commission cannot constitute itself into an expert body and contradict the statement of the doctor unless there is something contrary on the record by way of an expert opinion or there is any medical treatise on which reliance could be based” and the Revision petition of the doctor was allowed. In another case, an X-ray report indicated a small opacity that similar to an opaque shadow that becomes visible for many causes other than a calculus. It could not be assumed that still stone existed in the right kidney that had not been operated upon. Under the circumstances, we do not think that any case of negligence has been made by the Complainant. This petition is, therefore, allowed.

CONSUMER LAW

Consumer protection law or consumer law is considered as an area of law that regulates with private law relationships between individual consumers and the businesses that sell those goods and services. Consumer protection covers a wide range of topics, including but not necessarily limited to product liability, privacy rights, unfair business practices, fraud, misrepresentation, and other consumer or business interactions. It’s a way of preventing frauds and scams from service and sales contracts, eligible fraud, bill collector regulation, pricing, utility turnoffs, consolidation, personal loans that may lead to bankruptcy.The following lists shows consumer legislation at the nation-state level. In the EU member states,Germany and the United Kingdom there is also the applicability of law at the EU level to be considered; this applies on the basis of subsidiarity.

Who is a Consumer?

Section 2(d) of the CPA defines “consumer” as a person who:
(a) Buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for a consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose;
Or
(b) Hires or avails of any services for consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for a consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose. It may, however, be noted that “commercial purpose” does not include use by a person of goods bought and services exclusively for the purposes of earning his livelihood by means of self-employment.”

Who file a Consumer Complaint in India ?

The Consumer Protection Act itself provides a list of persons who can file a complaint under the Act which is described herein under-
1. A Consumer himself or herself,
2. Any voluntary Association registered under the Companies Act, 1956, or under any other law for the time being in force,
3.The Central Government or the State Government,
4. One or more consumers, where there are numerous Consumers having the same interest.

Limitation Period for filing Complaint

A complaint should be filed at the earliest but not later than two years from the date on which the cause of action arose. However the Court may entertain the complaint after a period of 2 years if the complainant is able to satisfy the Court that there was a sufficient cause for the delay.

How to file a Consumer Complaint?

Before formally filing a Consumer Complaint, it is desired that the Consumer gives notice to the opposite party of the fact of any deficiency in service or of unfair trade practice etc to see if the trader is willing to make good for the loss suffered by either replacing the commodity or returning the value of the purchase. If yes, the issue resolves then and there. But, if the trader refuses or neglects here then the consumers needs to approach the Consumer Court.

Territorial Jurisdiction of the Consumer Forums :-

A complaint shall be instituted in a District Forum or State Commission or National Commission within the local limits of the respective jurisdiction,

a) the opposite party resides or carries on business or has a branch office or personally works for gain, or
b) If there are more than one opposite party, then any one of the opposite parties resides, or carries on business or has a branch office, or personally works for gain Provided that in such a case the permission of either District Forum, State Commission or National Commission as the case may be, or the opposite parties who do not reside in such place or carry on business or have a branch office or personally works for gain as the case may be, must be obtained , or ,
c) the cause of action arose.

District Forum

The State Governments are required to establish District Forum in each district. The important features of District Forum are as follows:-

1.Each District Forum consists of a chairman and two members appointed by the State Government.
2.It has the power of a Civil Court for enquiring into any complaint.A District Forum can receive consumer complaints where the value of goods or services and the compensation claimed is less than Rs. Five lakh(Rs.5,00,000).The consumer can file complaint against the manufacturer for the malpractices. On receiving the complaint, the District Forum shall refer the complaint to the opposite party concerned (i.e. seller, manufacturer or the organization who is responsible for malpractice), and send the sample of goods for testing in a laboratory. If the other party is responsible for the default or some unfair trade practices, the District Forum can issue an order to them directing them to either resolve the defect or replace the goods, or return the price, or pay compensation to the consumer for loss or injury etc. An appeal against the order of the District Forum can be filed to the State Commission within 30 days.

Appellate Jurisdiction

The National Commission has jurisdiction to entertain appeals against the order of any State Commission. The appeal may be made within 30 days from the date of the order of the State Commission. However, the National Commission may entertain an appeal filed after the expiry of 30 days if it is satisfied that there was sufficient cause for not filing the appeal within the given time.

REVISIONAL JURISDICTION

[SECTION 21(b)] – National Commission can call for the records and pass the appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission. It is of the view that the State Commission-

1. has exercised jurisdiction which it was not entitled to, or
2. has failed to exercise such jurisdiction which it was entitled to, or
3. has exercised its jurisdiction illegally or with mate­rial irregularity.

It is to be noted that the revisional jurisdiction is available to the National Commission only in the cases where there has been wrongful, illegal and improper exercise of jurisdiction or failure to exercise jurisdiction on the part of State Commission.

COMMITMENT TO THE UNITED NATIONS GUIDELINES ON CONSUMER PROTECTION (UNGCP)

THE UNITED NATIONS GUIDELINES ON CONSUMER PROTECTION

(UNGCP) launched in 1985 was revised, after due deliberations by all stakeholders, in December 2015. The UN General Assembly on 22nd December 2015 approved the revised UNGCP 2015. India had actively participated in the process of revision of the UNGCP in 2015 and emphasized for having an oversight mechanism, which has been set up in the form of the Intergovernmental Group of Experts (IGE) under Guideline 95 of the revised UNGCP 2015. All the member states are de-facto members of the IGE. The first session of the Intergovernmental Group of Experts on Consumer Protection Law and Policy was held at the Palais des Nations in Geneva, on 17 and 18 October 2016 under the aegis of UNCTAD. Representatives from 66 countries and 5 intergovernmental organizations, including the heads of competition and consumer protection authorities, attended the high-level discussions. In the meeting, the Minister of State for Consumer Affairs, Food and Public Distribution, India, stated that the Intergovernmental Group of Experts provided a forum that facilitated engagement and mutual understanding, as well as the development of appropriate strategies to improve consumer protection. The Second IGE meeting held in July 2017, recognised the important role of relevant stakeholders, particularly with regard to the inclusive consumer protection policies to achieve the Sustainable Development Goals; It underlined the importance of designing and implementing specific measures aimed at the protection of vulnerable and disadvantaged consumers, recognizing that member States may adopt differing definitions to address specific domestic needs, and suggested further research in particular for this category of consumers in developing countries; It emphasized the importance of harnessing e-commerce to increase the welfare of consumers worldwide while limiting its potential risks and stressed the need to strengthen international cooperation, including informal collaboration, among agencies, to enhance consumer trust in e-commerce, and the initiatives taken to build trust in the digital economy.
Aimed at promoting the international cooperation in the field of Consumer Protection among the Asian countries, for mutual sharing of best practices, India in partnership with UNCTAD will be hosting a regional conference for South, South East and East Asian countries on 26 & 27 October, 2017.

When does a duty arise?

It is well known that a doctor owes a duty of care to his patient. This duty can either be a contractual duty or a duty arising out of tort law. In some cases, however, though a doctor-patient relationship is not established, the courts have imposed a duty upon the doctor. In the words of the Supreme Court “every doctor, at the governmental hospital or elsewhere, has a professional obligation to extend his services with due expertise for protecting life” (Parmanand Kataria vs. Union of India[1]). These cases are however, clearly restricted to situations where there is danger to the life of the person. Impliedly, therefore, in other circumstances the doctor does not owe a duty.

What is the duty owed?

The duty owed by a doctor towards his patient, in the words of the Supreme Court is to “bring to his task a reasonable degree of skill and knowledge” and to exercise “a reasonable degree of care” (Laxman vs. Trimbak). The doctor, in other words, does not have to adhere to the highest or sink to the lowest degree of care and competence in the light of the circumstance. A doctor, therefore, does not have to ensure that every patient who comes to him is cured. He has to only ensure that he confers a reasonable degree of care and competence.

When does the liability arise?

The liability of a doctor arises not when the patient has suffered any injury, but when the injury has resulted due to the conduct of the doctor, which has fallen below that of reasonable care. In other words, the doctor is not liable for every injury suffered by a patient. He is liable for only those that are a consequence of a breach of his duty. Hence, once the existence of a duty has been established, the plaintiff must still prove the breach of duty and the causation. In case there is no breach or the breach did not cause the damage, the doctor will not be liable. In order to show the breach of duty, the burden on the plaintiff would be to first show what is considered as reasonable under those circumstances and then that the conduct of the doctor was below this degree. It must be noted that it is not sufficient to prove a breach, to merely show that there exists a body of opinion which goes against the practice/conduct of the doctor.
With regard to causation, the court has held that it must be shown that of all the possible reasons for the injury, the breach of duty of the doctor was the most probable cause. It is not sufficient to show that the breach of duty is merely one of the probable causes. Hence, if the possible causes of an injury are the negligence of a third party, an accident, or a breach of duty care of the doctor, then it must be established that the breach of duty of care of the doctor was the most probable cause of the injury to discharge the burden of proof on the plaintiff.
Normally, the liability arises only when the plaintiff is able to discharge the burden on him of proving negligence. However, in some cases like a swab left over the abdomen of a patient or the leg amputated instead of being put in a cast to treat the fracture, the principle of ‘res ipsa loquitur’ (meaning thereby ‘the thing speaks for itself’) might come into play. The following are the necessary conditions of this principle.
1.Complete control rests with the doctor.
2..It is the general experience of mankind that the accident in question does not happen without negligence. This principle is often misunderstood as a rule of evidence, which it is not. It is a principle in the law of torts. When this principle is applied, the burden is on the doctor/defendant to explain how the incident could have occurred without negligence. In the absence of any such explanation, liability of the doctor arises.
Normally, a doctor is held liable for only his acts (other than cases of vicarious liability). However, in some cases, a doctor can be held liable for the acts of another person which injures the patient. The need for such a liability may arise when the person committing the act may not owe a duty of care at all to the patient or that in committing the act he has not breached any duty. A typical example of a case where such a situation may arise is in the case of a surgery. If a junior doctor is involved as part of the team, then his duty, as far as the exercise of the specialist skill is concerned, is to seek the advice or help of a senior doctor. He will have discharged his duty once he does this and will not be liable even if he actually commits the act which causes the injury. In such a case, it is the duty of the senior doctor to have advised him properly. If he did not do so, then he would be the one responsible for the injury caused to the patient, though he did not commit the act.

What Constitutes Medical Negligence?

Failure of an operation and side effects are not negligence. The term negligence is defined as the absence or lack of care that a reasonable person should have taken in the circumstances of the case. In the allegation of negligence in a case of wrist drop, the following observations were made. Nothing has been mentioned in the complaint or in the grounds of appeal about the type of care desired from the doctor in which he failed. It is not said anywhere what type of negligence was done during the course of the operation. Nerves may be cut down at the time of operation and mere cutting of a nerve does not amount to negligence. It is not said that it has been deliberately done. To the contrary it is also not said that the nerves were cut in the operation and it was not cut at the time of the accident. No expert evidence whatsoever has been produced. Only the report of the Chief Medical Officer of Haridwar has been produced wherein it said that the patient is a case of post-traumatic wrist drop. It is not said that it is due to any operation or the negligence of the doctor. The mere allegation will not make out a case of negligence, unless it is proved by reliable evidence and is supported by expert evidence. It is true that the operation has been performed. It is also true that the Complainant has many expenses but unless the negligence of the doctor is proved, she is not entitled to any compensation.

What is the Standard of Care?

It is now a settled principle of law that a medical practitioner will bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor the very lowest degree of care and competence judged in the light of circumstances in each case is what the law requires. Judged from this yardstick, post-operative infection or shortening of the leg was not due to any negligence or deficiency in service on the part of the opposite party Appellant. Deficiency in service thus cannot be fastened on the opposite party.
In a case that led to visual impairment as a side effect, the following observations were made. The literature with regard to lariago clearly mentioned that the side effect of this medicine if taken for a longer duration can effect eyesight but this is not a fact in this case. Besides, there is no expert evidence on record to show that use of this medicine caused damage to the patient’s eyesight. Even for argument’s sake, if it is accepted that this medicine caused damage to the patient’s eyesight, if the Respondent-doctor is one who has advised his patient to use this medicine after an examination in which he found the patient to be suffering from malaria, in that case as well the doctor-Respondent cannot be held guilty of negligence or deficient in his service. However, as stated above in this case the medicine has been used by the patient in low doses for a few days and there is no expert evidence to show that the use of medicine has affected his eyesight. Therefore, the Complainant-Appellant has failed to prove that the Respondent was negligent and deficient in his duty as a doctor.

The Need for Expert Evidence in Medical Negligence Cases

The Commission cannot constitute itself into an expert body and contradict the statement of the doctor unless there is something contrary on the record by way of an expert opinion or there is any medical treatise on which reliance could be based. In this case there was a false allegation of urinary stone not being removed as shown by a shadow in the x-ray. “The burden of proving the negligent act or wrong diagnosis was on the Complainant” and the appeal was dismissed in another case of alleged medical negligence as no expert evidence was produced. The case discussed below is not a case of apparent negligence on the part of the surgeon in conducting the operation, but about the quality of the plate used for fixing the bone. In the present case, the Complainant has not produced any expert witnesses to prove that there was any fault in the performance of the operations. Fixation of the bones by using plates is one of the recognized modes of treatment in the case of fracture of the bones. If the opposite party has adopted the aforesaid method, though subsequently the plate broke, negligence cannot be attributed to the doctor. This is not a case where the wounds of the operation were infected or any other complication arose. Breaking of the plate approximately 6 months after it was placed cannot be attributed towards a negligent act of the doctor in performing the operation.The District Forum rightly held that the Complainant had failed to prove his case. There is nothing on the record to suggest that there has been any negligence and/or deficiency in service on the part of the Appellant except the oral submission of the Respondent/Complainant. In such cases, before coming to a positive finding, there must be expert evidence on record as has been held both by the National Commission as well as the Apex Court.

“As per the settled law, the onus to prove that there was negligence” deficiency in service on the part of the opposite parties, while diagnosing and treating the Complainant, lay heavily on the Complainant. In the given facts, the Complainant has failed to discharge the onus that was on him. The complaint was dismissed as the Complainant failed to discharge the onus to prove negligence or deficiency in service.

In medical negligence cases, it is for the patient to establish his case against the medical professional and not for the medical professional to prove that he acted with sufficient care and skill. Refer to the decision of the Madhya Pradesh High Court in the case of Smt. Sudha Gupta and Ors. vs. State of M.P. and Ors., 1999 (2) MPLJ 259. The National commission has also taken the same view observing that a mishap during operation cannot be said to be deficiency or negligence in medical services. Negligence has to be established and cannot be presumed. Refer to the decision of the National Commission in the case of Kanhiya Kumar Singh vs. Park Medicare and Research Centre, III (1999) CPJ 9 (NC) – (2000) NCJ (NC) 12. A similar view has been taken by the MRTP Commission in the case of P.K. Pandey vs. Sufai Nursing Home, I (1999) CPJ 65 (MRTP) – 2000 NCJ (MRTP) 268. Followed by this, refer to the Commission in Vaqar Mohammed Khan and Anr. vs. Dr. S. K. Tandon, II (2000) CPJ 169. Both the lower Fora have held that there is no evidence brought on record by the Complainant to show that there was any negligence by the Respondent while implanting the lens in the eye of the Complainant resulting in a persistent problem in the left eye.
The Complainant does not examine any expert on the subject to establish his allegation of negligence on the part of the doctor. Unfortunate though the incident is, the Complainant needs to establish negligence on the part of the doctor to succeed in a case like this. We may observe that there is hardly any cogent material to substantiate the allegation contained in the petition of Complainant. Under the circumstances, we cannot but hold that the Complainant has failed to prove the allegations against the opposite parties.As held by the National Commission in Sethuraman Subramaniam Iyer vs. Triveni Nursing Home and anr,1998 CTJ7, in the absence of such evidence regarding the cause of death and absence of any expert medical evidence, the Complainants have failed to prove negligence on the part of the opposite parties.

Supreme Court’s Appreciation with Regard to Medical Negligence Liability

According to the Supreme Court, cases both Civil and Criminal as well as in Consumer Fora, are often filed against medical practitioners and hospitals complaining of medical negligence against doctors, hospitals, or nursing homes, hence the latter would naturally like to know about their liability. The general principles on this subject have been lucidly and elaborately explained in the three Judge Bench decisions of this Court in Jacob Mathew vs. State of Punjab and Anr. (2005) 6 SCC 1. However, difficulties arise in the application of those general principles to specific cases. For instance, in paragraph 41 of the decision, it was observed that: “The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence is what the law requires.” Now what is reasonable and what is unreasonable is a matter on which even experts may disagree. Also, they may disagree on what is a high level of care and what is a low level of care. To give another example, in paragraphs 12 to 16 of Jacob Mathew’s case (Supra), it has been stated that simple negligence may result only in civil liability, but gross negligence or recklessness may result in criminal liability as well. For civil liability only, damages can be imposed by the Court but for criminal liability the Doctor can also be sent to jail (apart from damages that may be imposed on him in a civil suit or by the Consumer Fora). However, what is simple negligence and what is gross negligence may be a matter of dispute even among experts.
The law, like medicine, is an inexact science. One cannot predict with certainty an outcome in many cases. It depends on the particular facts and circumstances of the case, and also the personal notions of the Judge who is hearing the case. However, the broad and general legal principles relating to medical negligence need to be understood. Before dealing with these principles two things have to be kept in mind:
1. Judges are not experts in medical science, rather they are laymen. This itself often makes it somewhat difficult for them to decide cases relating to medical negligence. Moreover, Judges usually have to rely on the testimonies of other doctors, which may not be objective in all cases. Since like in all professions and services, doctors too sometimes have a tendency to support their own colleagues who are charged with medical negligence. The testimony may also be difficult to understand for a Judge, particularly in complicated medical matters and

2. a balance has to be struck in such cases. While doctors who cause death or agony due to medical negligence should certainly be penalized, it must also be remembered that like all professionals doctors too can make errors of judgment but if they are punished for this no doctor can practice his vocation with equanimity. Indiscriminate proceedings and decisions against doctors are counter productive and are no good for society. They inhibit the free exercise of judgment by a professional in a particular situation.
The Hon’ble Mr. Justice Markendeya Katju has done yeoman service for society by rendering this judgment. On one hand, it sets at rest the speculative nature of our judicial adjudication of medical negligence liability and on the other, it abundantly clarifies that unless there is prima facie evidence indicating medical negligence, notice either to a doctor or hospital cannot be issued. At the same time, the core essence of the judgment makes it very clear that there cannot be an assumption that doctors cannot be negligent while rendering care and treatment. I think this timely intervention should be disseminated at a popular level so that the mandated Supreme Court’s prescription will be observed more in practice than in breach.

SECTORAL LAWS PROTECTING CONSUMERS IN INDIA

Besides the Consumer Protection Act 1986, various laws and Regulations in India protect the interests of consumers, some of which are:

1.The Bureau of Indian Standard Act 2016:

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

3.The Essential Commodities Act 1955 :

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

5.The Contract Act 1872:

The Act binds people on their promises made in a contract. The Act also provides remedies available to parties in case of breach of contract.

7.The Competition Act, 2002:

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

9.The Drugs and Cosmetics Act, 1940:

The Act regulates the import, manufacture and distribution of drugs in India. The primary objective of the act is to ensure that the drugs and cosmetics sold in India are safe, effective and conform to state quality standards. The Drugs and Cosmetics Rules, 1945 framed under the Act contain provisions for classification of drugs under given schedules and there are guidelines for the storage, sale, display and prescription of each schedule. The Act defines the standards of quality for drugs and defines “misbranding”. A drug is considered misbranded if it claims to be of more therapeutic value than it actually is. The manufacturer of such a drug may be asked to suspend manufacture of the drug . the Act also deals with fake and adulterated drugs.

2.The Legal Metrology

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

4.The Food Safety and Standards Act, 2006:

The Act envisages regulation of manufacture, storage, distribution, sale and import of food to ensure availability of safe and wholesome food for human consumption and for consumers connected therewith. The Food Safety and Standards Authority of India (FSSAI) has been established under this Act for laying down scientific standards for articles of foods and to regulate their manufacture, storage, distribution, sale and import to ensure availability of safe and wholesome food for human consumption. The Food Safety and Standards (FSS) Act, 2006 was operationalized with the notification of Food Safety and Standards Rules, 2011 and six Regulations w.e.f the 5 August 2011. The setting of food standards is undertaken through a number of Scientific Panels and the Scientific Committee of the FSSAI and final approval by the Authority.

6.The Sale of Goods Act 1930:

The act provides safeguard and relief to customers in case goods are not complying with the expressed conditions and warranty

8.The Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954-

The Act controls advertising of drugs in India. It prohibits advertisements of drugs and remedies that claim to have magical properties, and makes doing so a cognizable offence. The act defines “magic remedy” as any talisman, mantra, amulet or any other object, which is claimed to have miraculous powers to cure, diagnose, prevent or mitigate a disease in humans or animal. It also includes such devices that are claimed to have power to influence structure or function of an organ in humans or animals. It prohibits advertisements of drugs and remedies that claim to have magical properties, and makes doing so a cognizable offence.

 Cyber Law

Cyberlaw- it’s Legislation and Influence on Social Media
Cyber Law is any law that applies to the internet and internet-related technologies.Cyber law is one of the newest areas of the legal system.This is because internet technology develops at such a rapid pace.Cyber law provides legal protections to people using the internet.This includes both businesses and everyday citizens.Understanding Cyber Law is one of the utmost importance to anyone who uses the internet.Cyber Law has also been referred to as the “law of the internet.”

Cybercrime and Cybersecurity

Areas that are related to cyber law include cybercrime and cybersecurity. With the right cybersecurity,businesses and people can protect themselves from cybercrime.Cybersecurity looks to address weaknesses in Computers and Networks.The International Cybersecurity Standard is known as ISO 27001. Cybersecurity Policy is focused on providing guidance to anyone that might be vulnerable to cybercrime.This includes businesses,individuals,and even the Government.Many countries are looking for ways to promote cybersecurity and prevent cybercrime.For instance,the Indian Government passed the Information Technology Act in 2000.The main goal of this law is to improve transmission of data over the internet while keeping it safe. Information is another important way to improve cybersecurity.Businesses, for example,can improve cybersecurity by implementing the following practices:

Offering training programs to employees.
Hiring employees who are certified in cybersecurity.
Being aware of new security threats.

Cybercrimes can be committed against Governments,Property and People.

Cyberlaw- it’s Legislation and Influence on Social Media
Cyber Law is any law that applies to the internet and internet-related technologies.Cyber law is one of the newest areas of the legal system.This is because internet technology develops at such a rapid pace.Cyber law provides legal protections to people using the internet.This includes both businesses and everyday citizens.Understanding Cyber Law is one of the utmost importance to anyone who uses the internet.Cyber Law has also been referred to as the “law of the internet.”

Categories of Cyber Crime
Generally,there are three major categories of cybercrimes that you need to know about.These categories include:

1.Crimes Against People
While these crimes occur online, they affect the lives of actual people. Some of these crimes include cyber harassment and stalking, distribution of child pornography, various types of spoofing, credit card fraud, human trafficking, identity theft, and online related libel or slander.

2.Crimes Against Property-
Some online crimes happen against property, such as a computer or server. These crimes include DDOS attacks, hacking, virus transmission, cyber and typo squatting, computer vandalism, copyright infringement, and IPR violations.

Crimes Against Government-

When a cybercrime is committed against the government, it is considered an attack on that nation’s sovereignty and an act of war. Cybercrimes against the government include hacking, accessing confidential information, cyber warfare, cyber terrorism, and pirated software.
Most of these types of cybercrimes have been addressed by the Information Technology Act of 2000 and the IPC.Cybercrimes under the IT ACT include:

Sec. 65, Tampering with Computer Source Documents.
Sec. 66, Hacking Computer Systems and Data Alteration.
Sec. 67, Publishing Obscene Information.
Sec. 70, Unauthorized Access of Protected Systems.
Sec. 72, Breach of Confidentiality and Privacy.
Sec. 73, Publishing False Digital Signature Certificates.

Special Laws and Cybercrimes under the IPC include:

Sending Threating Messages by Email, Indian Penal Code (IPC) Sec. 503.
Sending Defamatory Messages by Email, Indian Penal Code (IPC) Sec. 49
Forgery of Electronic Records, Indian Penal Code (IPC) Sec. 46
Bogus Websites & Cyber Fraud, Indian Penal Code (IPC) Sec. 420
Email Spoofing, Indian Penal Code (IPC) Sec. 463
Web-Jacking, Indian Penal Code (IPC) Sec. 383
Email Abuse, Indian Penal Code (IPC) Sec. 500

There are also cyber crimes under the Special Acts,which include:

Online Sale of Arms Under Arms Act, 1959
Online Sale of Drugs Under Narcotic Drugs and Psychotropic Substances Act, 1985

Cyber Law Trends

Cyber law is increasing in importance every single year.This is because cybercrime is increasing.To fight these crimes,there have been recent trends in cyber law. These trends include the following:

New and more stringent regulations.

 

Cyber Security Strategies
Besides understanding cyber law, organizations must build cybersecurity strategies. Cybersecurity strategies must cover the following areas,

Ecosystem
A strong ecosystem helps prevent cybercrime. Your ecosystem includes three areas—automation, interoperability, and authentication. A strong system can prevent cyberattacks like malware, attrition, hacking, insider attacks, and equipment theft.

Open Standards
Open standards lead to improved security against cybercrime. They allow business and individuals to easily use proper security. Open standards can also improve economic growth and new technology development.

IT Mechanisms
There are many useful IT mechanisms/measures. Promoting these mechanisms is a great way to fight cybercrime.These measures include end-to-end, association-oriented, link-oriented, and data encryption.

Infrastructure-
Protecting infrastructure is one of the most important parts of cybersecurity. This includes the electrical grid and data transmission lines. Outdated infrastructure is vulnerable to cybercrime.

Framework
An assurance framework is a strategy for complying with security standards. This allows updates to infrastructure. It also allows governments and businesses to work together in what’s known as “enabling and endorsing’.

Strengthening Regulation
This speaks directly to cyber law. Governments can work to improve this legal area. They can also found agencies to handle cyber law and cybercrime. Other parts of this strategy include promoting cybersecurity, proving education and training, working with private and public organizations, and implementing new security technology.

E-Governance-
E-governance is the ability to provide services over the internet. Unfortunately, e-governance is overlooked in many countries. Developing this technology is an important part of cyber law.

Mitigating Risk

The purpose of cyber law is to reduce risk.This can be done in several ways. Some of the most effective risk reduction strategies of cyber law include the following:

Cyber security Research and Development.
Threat Intelligence.
Improved Firewalls.
The Use of Protocols and Algorithms.
Authentication.
Focusing on Cloud and Mobile Security.
Cyber Forensics.

Another way Cyber Law can prevent cyber crime is by protecting the supply chain.Interruptions in the supply chain pose big security risks. This is especially true when equipment is allowed to be altered.Protecting the supply chain is key in preventing cybercrime.
Human Resource Departments can also reduce risk.There are three major ways to do this:

1. Realizing employees may be security risks.

2. Promoting ethical and realistic security mechanisms.

3. Recognizing employees that may be risks.

4. Promoting awareness.

Information sharing is also a key risk-reduction strategy.The best way to do this is with mandatory reporting.When a business is a victim of cyber crime, reporting it right away can reduce further threats.The U.S promoted this with the Cyber security Information Sharing Act of 2014(CISA).
Lastly,businesses can use a strong security framework.A good framework has three parts:

The Core – These are activities that allow business to identify, protect, detect, respond and recover from cyber threats.
Implementation Tiers- This describes how advanced a business’s security system is. The tiers are Partial, Risk-Informed, Repeatable, and Adaptive. Businesses should strive for the Adaptive tier.
Framework Profile-This is a database where businesses record information about their strategies. This can include concerns and plans for new cyber security.

Network Security

Every network needs advanced security.This includes home networks.The most effective way to improve network security is by using the right technology.Network security technology includes the following:

Active Devices

Active devices helps a network deal with too much traffic.They also prevent unauthorized traffic.These devices can include either software based or hardware based firewalls,antivirus devices or software and content filtering devices.

Preventative Devices

Many devices are focused on preventing network threats.These are called preventative devices.These devices can include network scanners and penetration testers.

Passive Devices

The most common preventive device is an intrusion detection device.These devices help to recognize unwanted internet traffic.

Unified Threat Management

These are complete security devices. They can include content filtration,firewall technology and web caching.

New Cyber Laws

Technology is constantly updating.This means that laws must also be constantly updated.Although U.S,law has remained the same for a long time, five(5)laws were passed in 2014:

National Cybersecurity Protection Act(NCPA).
Cybersecurity Enhancement Act of 2014(CEA).
Federal Information System Modernization Act of 2014(FISMA 2014).
Cybersecurity Workforce Assessment Act(CWWA).
Border Patrol Agent Pay Reform Act(BPAPRA).Most of these laws were meant to update existing legislation.FISMA 2014 updated the framework for security controls.NCPA was meant for information sharing between the private sector and the government.
The CEA was one of the most important bills.It may affect private organizations.This is because it promotes developing voluntary cybersecurity standards.This law strengthens the informal mission of the National Institute of Standards and Technology (NIST).The CEA also covers areas once covered by the Federal Financial Institutions Examination Council (FFIEC).
Both the NIST and FFIEC were informal standards.The CEA is a law and more binding.This is particularly useful for resolving disputes resulting from cybercrimes.Businesses need to understand the rules of the CEA.

 

Cyber Law Business Consideration

The main thing a business needs to understand is their website.A business’s website is a large asset.It is also very vulnerable to cybercrime.There are a few issues a business must consider when it comes to their website:

Who will operate the website?
Will it be operated on site or off site?
What security measures will be employed?
How will email be used,and how will privacy be protected?

It’s also important that businesses monitor their IP. A good way to do this is with customer review websites.These sites can both help you identify areas for improvement and can show you if your IP is being used without your permission.

When Customers Use Computers

An important part of complying with cyber law is protecting your customer’s personal information.This is true even if your business doesn’t have a website.
Many customers make use of online review sites to explain their satisfaction with a Company.You can use these sites two ways.First,you can gauge customer satisfaction and identify areas where you can improve.Second,you can use them to see if other businesses are using your name or trademark or if someone is making untrue statements that could harm your business. Either of these issues is eligible for a lawsuit.
Before committing to a business,many customers check the Better Business Bureau (BBB).You should consider joining the BBB.Becoming a BBB member allows customers to trust your company and makes you eligible to use the BBB seal.Potential customers can also find information about your company on the BBB website.If a customer can’t find your business on the BBB website,it may cause them to avoid working with your company.
It’s also a good idea to make your business’s privacy and security policies available to your customers.By allowing them to read these policies, you are proving your dedication to protecting their personal and financial information when they use your website.

Cyber Law Terms and Laws

There are three main terms that people need to know related to cyber law:

1. Information Technology Law-These laws refer to digital information. It describes how this information is gathered, stored, and transmitted

2. Cyber Law/Internet Law– These laws cover usage of the internet. This is a newer legal area. Many laws can be undefined and vague

3. Computer Law– This covers a large legal area. It includes both the internet and laws related to computer IP.

There have been many countries that have tried to fight cyber crime with cyber laws:

Computer Misuse Act 1990 (Great Britain)– This law is mostly focused on data and computer systems. It includes three sections. Section 1 focuses on the unauthorized use of a computer (hacking). Section 2 covers situations where a Section 1 violation has occurred and further offenses are likely. Section 3 is for when a computer is altered illegally. This is usually due to a virus or denial of service act.

IT Act of 2000 (India)– This act is focused on information technology. This law both outlines offenses like hacking and trojan attacks, as well as possible solutions. One section outlines the use of digital signatures to improve cybersecurity. Some offenses can compound. This increases their potential punishment.The Middle East and Asia-Countries across these regions use combinations of cyber laws.In certain countries,these laws are used to prevent citizens from accessing certain information.

Other laws related to cyber law that have been passed by countries around the world include electronic signature laws,information technology guidelines and information technology laws.
Cyber law has also been used to create privacy.This is particularly true in the United States.U.S laws that have been used to establish internet privacy include the following:

Warren and Brandeis.
Reasonable Expectation of Privacy Test.
Privacy Act of 1974.
Foreign Intelligence Surveillance Act of 1978.
Electronic Communication Privacy Act.
Driver’s Privacy Protection Act.
Gramm-Leach-Bliley Act.
Homeland Security Act.
Intelligence Reform and Terrorism Prevention Act.

 

Writing and Enforcing Online Laws

The increased use of the internet has changed how older laws need to be enforced.A good example of this is copyright law and the ability for individuals to illegally download music,movies, books,and other forms of intellectual property.
The obstacle in enforcing these laws is that it is hard to trace illegal online activities to their source.Online criminals are often anonymous,and even if a crime can be traced,it is usually only linked to a computer and not a real-life person.
Another difficult is knowing what real world laws apply online.An example of this is internet transactions that takes place in multiple countries.For instance,if someone in the USA sells an item to someone in the UK using a server that is located in Germany,the transaction may be regulated by the laws of all three countries.
Internet criminals have tried to take advantage of tax online law enforcement.For instance,over an eight-year period between 2000 and 2008, a Company called Haven Co. operated servers that were located on a navy platform.This platform had been declared a country and any servers running on the platform weren’t subject to copyright laws.
The Digital Economy Act was written to address these issues,but ran into problems when it forced through British Parliament.
In addition to requiring methods for enforcing old laws,the internet also means that there is a need for new laws that cover new types of crimes like viruses and hacking.
A law meant to cover these sort of issues is the United Kingdom’s Computer Misuse Act. The Computer Misuse Act criminalize any action that provides unauthorized access to a computer or damages the data that the computer contains.
However,every country has their own laws,which can complicate dealing with cybercrime.An example of this is Gary McKinnon.A British citizen, McKinnon hacked Unites States military computers.This opened the argument of whether he should face trial in his home country,the UK, or in the country where the crime was committed,the US.

Rights While Online

Another complicated issue in the internet age is how to handle personal rights.While online shopping has become common in the digital age, many shoppers aren’t aware that they have the same right to return goods as they do when buying from a brick and mortar store.Also,most people don’t understand the rules for how their personal information can and can’t be used online.
There is so much confusion,in fact,that some users can be tricked by standard “Terms of Use” agreement.GameStation,a popular online store, once added a line to their Terms and Conditions stating that users who accepted the agreement were required to give the store their ‘immortal soul’ as an April Fool’s Day joke.None of the sites regular users noticed this addition.

* Cheating
* Violation of Copyrights and Violations in case of Intellectual Property Rights
* Complaints against Government Officials
* Software Patentability in India
* Ragging and Institutional Premise Abuse* Rights of Illegitimate Children
* Civil Case Procedure in India
* Criminal Procedure in India
* Consumer Protection in India
* Cyber Law

Reinforcing current laws.
Increased awareness of privacy issues.
Cloud computing.
How virtual currency might be vulnerable to crime.
Usage of data analytics.
Creating awareness of these issues will be a primary focus of governments and cyber law agencies in the very near future. India, for instance, funded cyber trend research projects in both 2013 and 2014. In addition, India held an international conference related to cyber law in 2014.This was meant to promote awareness and international cooperation.

Cyberlaw- it’s Legislation and Influence on Social Media
Cyber Law is any law that applies to the internet and internet-related technologies.Cyber law is one of the newest areas of the legal system.This is because internet technology develops at such a rapid pace.Cyber law provides legal protections to people using the internet.This includes both businesses and everyday citizens.Understanding Cyber Law is one of the utmost importance to anyone who uses the internet.Cyber Law has also been referred to as the “law of the internet.”

Cybercrime and Cybersecurity

Areas that are related to cyber law include cybercrime and cybersecurity. With the right cybersecurity,businesses and people can protect themselves from cybercrime.Cybersecurity looks to address weaknesses in Computers and Networks.The International Cybersecurity Standard is known as ISO 27001. Cybersecurity Policy is focused on providing guidance to anyone that might be vulnerable to cybercrime.This includes businesses,individuals,and even the Government.Many countries are looking for ways to promote cybersecurity and prevent cybercrime.For instance,the Indian Government passed the Information Technology Act in 2000.The main goal of this law is to improve transmission of data over the internet while keeping it safe. Information is another important way to improve cybersecurity.Businesses, for example,can improve cybersecurity by implementing the following practices:

Offering training programs to employees.
Hiring employees who are certified in cybersecurity.
Being aware of new security threats.

Cybercrimes can be committed against Governments,Property and People.

Cyberlaw- it’s Legislation and Influence on Social Media
Cyber Law is any law that applies to the internet and internet-related technologies.Cyber law is one of the newest areas of the legal system.This is because internet technology develops at such a rapid pace.Cyber law provides legal protections to people using the internet.This includes both businesses and everyday citizens.Understanding Cyber Law is one of the utmost importance to anyone who uses the internet.Cyber Law has also been referred to as the “law of the internet.”

Categories of Cyber Crime
Generally,there are three major categories of cybercrimes that you need to know about.These categories include:

1.Crimes Against People
While these crimes occur online, they affect the lives of actual people. Some of these crimes include cyber harassment and stalking, distribution of child pornography, various types of spoofing, credit card fraud, human trafficking, identity theft, and online related libel or slander.

2.Crimes Against Property-
Some online crimes happen against property, such as a computer or server. These crimes include DDOS attacks, hacking, virus transmission, cyber and typo squatting, computer vandalism, copyright infringement, and IPR violations.

Crimes Against Government-

When a cybercrime is committed against the government, it is considered an attack on that nation’s sovereignty and an act of war. Cybercrimes against the government include hacking, accessing confidential information, cyber warfare, cyber terrorism, and pirated software.
Most of these types of cybercrimes have been addressed by the Information Technology Act of 2000 and the IPC.Cybercrimes under the IT ACT include:

Sec. 65, Tampering with Computer Source Documents.
Sec. 66, Hacking Computer Systems and Data Alteration.
Sec. 67, Publishing Obscene Information.
Sec. 70, Unauthorized Access of Protected Systems.
Sec. 72, Breach of Confidentiality and Privacy.
Sec. 73, Publishing False Digital Signature Certificates.

Special Laws and Cybercrimes under the IPC include:

Sending Threating Messages by Email, Indian Penal Code (IPC) Sec. 503.
Sending Defamatory Messages by Email, Indian Penal Code (IPC) Sec. 49
Forgery of Electronic Records, Indian Penal Code (IPC) Sec. 46
Bogus Websites & Cyber Fraud, Indian Penal Code (IPC) Sec. 420
Email Spoofing, Indian Penal Code (IPC) Sec. 463
Web-Jacking, Indian Penal Code (IPC) Sec. 383
Email Abuse, Indian Penal Code (IPC) Sec. 500

There are also cybercrimes under the Special Acts,which include:

Online Sale of Arms Under Arms Act, 1959
Online Sale of Drugs Under Narcotic Drugs and Psychotropic Substances Act, 1985

Cyber Law Trends

Cyber law is increasing in importance every single year.This is because cybercrime is increasing.To fight these crimes,there have been recent trends in cyber law. These trends include the following:

New and more stringent regulations.
Reinforcing current laws.
Increased awareness of privacy issues.
Cloud computing.
How virtual currency might be vulnerable to crime.
Usage of data analytics.
Creating awareness of these issues will be a primary focus of governments and cyber law agencies in the very near future. India, for instance, funded cyber trend research projects in both 2013 and 2014. In addition, India held an international conference related to cyber law in 2014.This was meant to promote awareness and international cooperation.

Cyber Law and Intellectual Property
An important part of cyber law is intellectual property. Intellectual property can include areas like inventions, literature, music, and businesses. It now includes digital items that are offered over the internet. IP rights related to cyber law generally fall into the following categories:

Copyright
This is the main form of IP cyber law. Copyrights provide protection to almost any piece of IP you can transmit over the internet. This can include books, music, movies, blogs, and much more.

Trademarks/Service Marks
Trademarks and service marks are used the same online as they are in the real world. Trademarks will be used for websites. Service marks are used for websites that provide services.

Domain Disputes
This is related to trademarks. Specifically, domain disputes are about who owns a web address. For instance, the person who runs a website may not be the person who owns it. Additionally, because domains are cheap, some people buy multiple domains hoping for a big payday
Privacy
Online businesses are required to protect their customer’s privacy. The specific law can depend on your industry. These laws become more important as more and more information is transmitted over the internet.

Defamation
Slander and libel law has also needed updating because of the internet. Proving defamation was not altered substantially, but it now includes the internet.

Jurisdiction
Jurisdiction is a key part of court cases. Cybercrime has complicated this issue. If a cybercriminal is located in Minnesota and their victim is located in North Carolina, which state has jurisdiction? Different states have different rules about this issue. Also, it can depend on in what court, federal or state, a case was filed. Protecting IP can be difficult over the internet. An example of this would be the popularity of pirated movies and music. Each business that relies on the internet needs to develop strategies for protecting their IP. Governments can also take part in this process. In 1999, India did just this by updating their IP laws.

Patents
Patents are generally used to protect an invention. These are used on the internet for two main reasons. The first is for new software. The second is for new online business methods.

Trade Secrets
Trade secret laws are used to protect multiple forms of IP. This includes formulas, patterns, and processes. Online businesses can use trade secret protections for many reasons. However, it does not prevent reverse engineering

Contracts
Most people don’t think contracts apply online. This is not the case. For example, when you register for a website, you usually have to agree to terms of service. This is a contract.

Employment
Some employee contract terms are linked to cyber law. This is especially true with non-disclosure and non-compete clauses. These two clauses are now often written to include the internet. It can also include how employees use their company email or other digital resources.

Data Retention
Handling data is a primary concern in the internet age. An area where this has become a big issue is in terms of litigation. In lawsuits, it is now common to request electronic records and physical records. However, there are no current laws that require keeping electronic records forever. This is not true for physical records.

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