Wednesday, November 24, 2010

Taxation in India

We all live in a human society where we are inter-dependent on each other. For our social security and peaceful co-existence we all surrender ourselves to the state and the state looks after our rights. All infrastructural facilities and developmental works are done by the state directly or indirectly without which it is impossible to dwell. But, from where does the state get funds to do all that?
The answer is simple, i.e. from us, the people subject to it and using those facilities.
The money thus collected from common people for running the state is termed as Tax. In other words, Tax means a financial charge or other levy upon a taxpayer (an individual or legal entity) by the state, or any other body authorized by the state.
In India the tax system is three tier system, i.e. the centre, the state and the local level. This means that the taxes are levied by three different authorities.
Taxes can be divided into two major heads viz.
1.    Direct Tax: - A tax paid directly by the person or organization on whom it is levied; and
2.    Indirect tax: - A tax levied on goods or services rather than on persons or organizations.
In India, the Constitution under Article 246 divides legislative powers including taxation among the centre and the state.
The Central Government has the power to levy taxes like Income Tax (except agricultural income); custom duties; export duty; corporation tax; taxes on capital value of assets; estate duty; duties in respect of succession of property; stamp duties; taxes on sale/purchase of newspapers and advertisements therein; taxes on inter-state trade or commerce etc.
The State Government can levy taxes like Land revenue, including the assessment and collection of revenue, the maintenance of land records, survey for revenue purposes and records of rights, and alienation of revenues; Taxes on agricultural income; Duties in respect of succession to agricultural income; Estate Duty in respect of agricultural income; Taxes on lands and buildings; Taxes on mineral rights; Taxes on entry of goods into a local area for consumption, use or sale therein; Taxes on the consumption or sale of electricity; Taxes on the sale or purchase of goods other than newspapers; Taxes on vehicles suitable for use on roads; Tolls; Taxes on profession, trades, callings and employments; Taxes on luxuries, including taxes on entertainments, amusements, betting and gambling; stamp duties etc.
There is a board constituted in Centre called the Central Board of Direct Taxes (CBDT) which is a part of the Ministry of Finance which plans the scheme of the Direct Tax.
Some important legislations guiding Taxation in India include the Income Tax Act, 1961, Central Excise Act, Customs Act, Central Sales Tax Act etc.
Total tax receipts of Centre & State amount to approximately 18% of national GDP.
Most important amongst these is the Income Tax Act. Although this Act is soon going to be repealed by the Direct tax Code Act, 2010 we must have its knowledge so as to understand the concept of Income Tax.  This act imposes tax on the income of individuals, companies and corporations. It imposes tax under the following five heads: -
•    Income from house and property,
•    Income from business and profession,
•    Income from salaries,
•    Income in the form of Capital gains, and
•    Income from other sources.
As per the existing tax rates, an income exceeding Rs. 1.6 Lakh p.a. is taxable but soon after the enforcement of the Direct Tax Code Act, incomes exceeding Rs.2 Lakh p.a. and Rs. 2.5 Lakh p.a. for Senior Citizens, would be taxed.  This Act will come in force from 2012.
Nonpayment of income tax is a crime and is punishable under law for which a person may be imprisoned and/or fine may be levied upon him.
Indirect taxes are collected tax. Sales Tax, Value Added tax (VAT) etc. are some examples of Indirect taxes. These taxes are not directly paid by the taxpayer to the Government but are collected by intermediaries like retail stores and are deposited together. This is levied per unit of product sold or as per service provided.  In other words this tax is a shift able kind of tax. This is shifted as the product goes from one hand to another.
The key features of the Union Budget 2010-11 on Direct tax are as follows:-
1.    Income tax slabs for individual taxpayers to be as follows: -

            Income upto Rs 1.6 lakh-Nil.
            Income above Rs 1.6 lakh and upto Rs. 5 lakh-10 per cent.
            Income above Rs.5 lakh and upto Rs. 8 lakh-20 per cent.
            Income above Rs. 8 lakh-30 per cent.
2.    Deduction of an additional amount of Rs. 20,000 allowed, over and above the existing limit of Rs.1 lakh on tax savings, for investment in long-term infrastructure bonds as notified by the Central Government.
3.    Besides contributions to health insurance schemes which is currently allowed as a deduction under the Income-tax Act, contributions to the Central Government Health Scheme also allowed as a deduction under the same provision.
4.    Current surcharge of 10 per cent on domestic companies reduced to 7.5 per cent.
5.    Rate of Minimum Alternate Tax (MAT) increased from the current rate of 15 per cent to 18 per cent of book profits.
6.    To further encourage R&D across all sectors of the economy, weighted deduction on expenditure incurred on in-house R&D enhanced from 150 per cent to 200 per cent. Weighted deduction on payments made to National Laboratories, research associations, colleges, universities and other institutions, for scientific research enhanced from 125 per cent to 175 per cent.
7.    Payment made to an approved association engaged in research in social sciences or statistical research to be allowed as a weighted deduction of 125 per cent. The income of such approved research association shall be exempt from tax.
8.    Benefit of investment linked deduction under the Act extended to new hotels of two-star category and above anywhere in India to boost investment in the tourism sector.
9.    Allow pending projects to be completed within a period of five years instead of four years for claiming a deduction of their profits, as a onetime interim relief to the housing and real estate sector. Norms for built-up area of shops and other commercial establishments in housing projects to be relaxed to enable basic facilities for their residents.
10.    Limits for turnover over which accounts need to be audited enhanced to Rs. 60 lakh for businesses and to Rs. 15 lakh for professions.
11.    Limit of turnover for the purpose of presumptive taxation of small businesses enhanced to Rs. 60 lakh.
12.    If tax has been deducted on payment by way of any expense and is paid before the due date of filing the return, such expenditure to be allowed for deduction. Interest charged on tax deducted but not deposited by the specified date to be increased from 12 per cent to 18 per cent per annum.
13.    To facilitate the conversion of small companies into Limited Liability Partnerships, transfer of assets as a result of such conversion not to be subject to capital gains tax.
14.    “The advancement of any other object of general public utility” to be considered as charitable purpose” even if it involves carrying on of any activity in the nature of trade, commerce or business provided that the receipts from such activities do not exceed Rs.10 lakh in the year .
15.    Proposals on direct taxes estimated to result in a revenue loss of Rs. 26,000 crore for the year.

So, it can be felt that the Government runs on the basis of an efficient Tax machinery which is very necessary for the working of the government. we the taxpayers must ensure that we pay all taxes which has been levied on us so that the same can be used to serve us in a better manner.

Tuesday, November 23, 2010

Alternative Dispute Resolution

It is believed that wherever there is existence of more than one human being, so called ‘a human society’, there ought to be disputes between individuals. In today’s state of that human society, disputes are inevitable as there are differences between individuals in every sphere and respect. In olden days such disputes were redressed by the head of the state or the ‘King’. But today law is the king of all kings and thus disputes are resolved by the machinery framed by law.
Disputes can either arise out of infringement of personal rights or that of social rights like right to life, freedom etc. The former is termed as civil dispute and the latter as criminal dispute. The court system in India is no new and its origination can be traced back to the ancient times. Kautilya in his ‘Arthasastra’ has mentioned that there was a two tier system for administration of justice, i.e.  separate courts for administering civil and criminal justice. The civil courts were called the ‘Dharmasthiyas’ and the criminal courts, ‘Kantakasodhanam’.
As the nation progressed many rulers came and ruled India as per their own laws and legal systems. But if we trace back the history to the times of British Raj, it is evident that the most remarkable and efficient contributions to the genre of law, justice and judiciary was made by the English men. The same system is still being followed. Post independence India has been constantly developing and thus many new woes have got introduced. Problems like population explosion, unemployment and coloured growth in society where rich are growing richer and poor even poorer, the number of disputes have increased overwhelmingly. Courts have been flooded with suits and complaints. It is said that justice delayed is justice denied and that is what is happening in many instances. We hear of certain cases where the victim gets justice after he dies.
This is the reason for developing new machinery which could alternatively resolve certain disputes and the place where the concept of Alternative Dispute Resolution comes in. Alternative Dispute Resolution or ADR can be defined as an alternate method for settlement of disputes outside Courts either on being directed by the Court or suo moto by the mutual consent of the parties to a dispute. The major act dealing with ADR in India is the Arbitration and Conciliation Act. The central government, in order to reduce delays in various levels has enacted the Civil Procedure Code (Amendment) Act, 1999 under which it is made obligatory to the courts to refer a dispute after issues are framed for settlement by alternative dispute resolution methods.
The major methods forming the part of the Alternative Dispute Resolution System are:

1.    Arbitration:- It is the most widespread and efficient means of ADR. It can be defined as “the hearing and determination of a dispute by an impartial referee agreed to by both parties.” The ‘impartial referee’ referred to hereinabove is called the Arbitrator. There are several ways of appointing an Arbitrator prescribed under the Arbitration and Conciliation Act. The first and the most common method is mentioning it in the Arbitration Agreement between the parties which is inevitable and has to be signed so as to surrender any dispute to arbitration. Secondly, in absence of any such fixed arbitrator, both the parties select one arbitrator each and they further select one presiding arbitrator. The total number of Arbitrator if opted for more than one should be odd. An order passed by an Arbitrator is referred to as an “Award” and in most of the cases is non revocable, binding, non-appealable and can only be challenged on very limited grounds. There is a great advantage attached to this process, i.e. an expert of that field can be appointed as an Arbitrator to which the dispute pertains. This is the reason why this is widely accepted in the fields of IPR where special knowledge and know how is required.
2.    Conciliation: - In this method the parties choose an independent third party who hears both sides, either privately or together, and then prepares a compromise which the conciliator believes is a fair disposition of the matter. The conciliator's report or conclusions are then put to both sides, who may agree or disagree with it. It is not binding nor is it enforceable unless the parties adopt it.
3.    Mediation: - It is a form of alternative dispute resolution (ADR), which aims to assist two (or more) disputants in reaching an agreement. The decision as to whether accept or revoke the agreement is taken by the parties themselves rather than accepting something imposed by a third party.
4.    Negotiation :- It is a process by which the involved parties or group resolve matters of dispute by holding discussions and coming to an agreement which can be mutually agreed by them. It also includes negotiation of claims between the parties.

In India, the ADRS also includes tribunals which have quasi judicial authorities to decide cases of certain nature and subject matter like tax, debt recovery, labour and industrial dispute, cyber crime etc. Another latest and most successful type of ADR in India is Lok Adalat System. It is a kind of mock Court organized by the Government authorities usually presided over by retired judges, social activists, or other members of the legal profession. The Legal Services Authorities Act, 1987 gave the Lok Adalats a statutory platform by vesting following power in them:-
a.    Every Award passed by a Lok Adalat is to be final, binding and non-appealable.
b.    The members of the Lok Adalats are to be deemed as Publc Servants as under the I.P.C.
c.    Every Lok Adalat is to be deemed to be a civil cour for the purposes of Section 195 and Chapter XXVI of the C.P.C.
d.    All proceedings in front of the Lok Adalat shall be deemed to be judicial proceeding within the meaning of Sections 193, 219, and 228 of the I.P.C.
For referring a dispute to Lok Adalat, there are three methods. Firstly, by consent of both the parties; Secondly, by application of either of them, and Thirdly, by the order of Court. All compromises and settlements are guided by the principles of justice, equity and fair play. Some of the disputes that can be brought to the Lok Adalat include municipal tax cases, insurance claims, motor accident compensation, land acquisition cases, matrimonial disputes and family dispute matters, bank loan cases, dispute related to private parties etc.
Some other methods of ADRS include ombudsmen (in India Lokpal & Lokayukta), med-arb, mini trials, early neutral evaluation, fact finding, case evaluation, private judging etc.
Thus the merits of ADRS over conventional Court system can be traced from the above paragraphs as follows:-
i.    Open and effective communication.
ii.    Flexibility.
iii.    Adaptability.
iv.    Confidentiality.
v.    Constant review and chances for improvement.

But the issue is that the process can only be applied to those disputes which are compoundable in nature or which essentially do not need the accent of a Court. Any issue which is non compoundable or relates to serious matters of rights cannot be referred to ADRS and in such case the Courts of law have to be given recourse and it shall decide accordingly.

Sunday, October 17, 2010

Succession Laws in India.

India being a secular country has a population comprising of people from almost all major religions. Whether it is Hindus, Muslims, Christians, Parsis or any sub religions of Hinduism like Jains, Buddhists, Sikhs, Arya Samajis or Brahmo Samajis, all religions are given equal status in India by preamble of the Constitution itself. Although, “rule of law” prevails in India, but there are certain circumstances where the principle of ‘equality before law’ has to be compromised with. Especially in cases where religious sentiments are in question, every religion has to be allowed to follow its own tradition. These include matters like Marriage, Divorce, Succession, and Adoption. In India there are separate enactments governing personal laws of different religions. Let us take a classic example of marriage laws. Hindus in India are guided by Hindu Marriage Act, 1955; Muslims have no codified laws of marriage; Christian marriages are governed by the Christian Marriage Act, 1872; Parsi Marriages by Parsi Marriage and Divorce Act, 1936; Sikhs called Anand by The Anand Marriage Act, 1909 and The Special Marriage Act deals with inter religion marriages.
Likewise, there are different laws of succession among different religions. The Hindu Succession Act, The Indian Succession Act, and the Muslim personal law of succession are some laws governing succession in India. The Muslim Law on Succession has not been codified and is followed as per the sayings of the holy ‘Kuran’ 
The whole Hindu society is divided into followers of two schools being Mitakshara School and Dayabhaga School. The Dayabhaga School is followed in West Bengal and states of north east and the rest of India follows the Mitakshara School. There is a concept of HUF or Hindu Undivided Family in Mitakshara School as per which, (in the old Hindu Succession Act before 2005) the eldest male member of the family used to be the Karta and all other male members the coparceners and every coparcener was to have a share in the property of the HUF  by birth. However the amending act of 2005 has given daughters of the family also equal shares. For cases other than HUF, under the Hindu Succession Act, the males and females have been separately classified and the rules of succession are different among them. Section 8 of the Act talks about Hindu male dying intestate (without making a Will). It gives a hierarchy as per which the property shall devolve. It states that the property shall first devolve among the heirs of class 1 in Schedule 1 (i.e. Son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased son; son of a pre-deceased daughter; daughter of a pre-deceased daughter; widow of a pre-deceased son; son of a pre-deceased son of a pre-deceased son; daughter of a pre-deceased son of a pre-deceased son; widow of a pre-deceased son of a pre-deceased son). In case there is no relative from class 1, then to those of class 2 (i.e.  Father; Son’s daughter’s son;  son’s daughter’s daughter;  brother;  sister;  Daughter’s son’s son; daughter’s son’s daughter;  daughter’s daughter’s son;  daughter’s daughter’s daughter;  Brother’s son;  sister’s son;  brother’s daughter; sister’s daughter; Father’s father; father’s mother; Father’s widow; brother’s widow; Father’s brother; father’s sister;  Mother’s father; mother’s mother;  Mother’s brother; mother’s sister) and in absence of any relative of Class 1 or 2 first to Agnates and then to Cognates. The term Agnate has been defined Under Section 2(1)(a) as “one person is said to be an agnate of another if the two are related by blood or adoption wholly through males” and the term Cognate U/s 2(1)(c) as “one person is said to be cognate of another if the two are related by blood or adoption but not wholly through males”. Further Section 12 specifies the order of succession among the agnates and cognates.
Section 15 of the Act talks of devolution of property of Hindu Female dying intestate. The property of a Hindu female dying intestate shall firstly, devolve upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband; secondly, upon the heirs of the husband; thirdly, upon the mother and father; fourthly, upon the heirs of the father and lastly, upon the heirs of the mother.
Section 20 makes a very important mention of a child who was in the womb at the time of death of an intestate and who is subsequently born alive has the same right to inherit to the intestate as if he or she had been born before the death of the intestate, and the inheritance shall be deemed to vest in such a case with effect from the date of the death of the intestate. But the Cat clearly mentions that the situations whereby a person is disqualified from inheriting. A murderer and a convert’s descendants are among those and in certain cases widows remarrying can also get disqualified. However, there is even a clear mention of the fact that no disease or defect can disqualify a person from inheriting.
Another legislation regulating succession in India is The Indian Succession Act, 1925.
This Act is older than the Hindu Succession Act and was the only succession act of that time. In its object clause this act states that its purpose is to consolidate all the Indian Laws relating to Succession.
Chapter 2 of the Act deals with intestate succession and states that it shall not apply to Parsis. Under Section 32 it states that the property of an intestate shall devolve upon the wife or husband, or upon those who are of the kindred of the deceased, in the order and according to the rules hereinafter contained in this Chapter. The chapter further speaks of different situations and how the property shall devolve in those circumstances. The situations thus contemplated include situations like when the intestate has left child or children only; has left no child but grand-child or grand-children; or where intestate has left widow and lineal descendants, or widow and kindred only, or widow and no kindred and such other circumstances. Chapter 3 frames separate rules for Parsis.
This act also standardizes the concept of testamentary succession i.e succession through Wills or Codicils. U/s 2(h) it defines "will" as the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death and U/s 2(b) "codicil" as an instrument made in relation to a will, and explaining, altering or adding to its dispositions, and shall be deemed to form part of the will. Section 59 states that every person of sound mind, not being a minor may dispose of his property by will. To explain this statement four explanations have been given U/s 59 viz.
Explanation 1. A married woman may dispose by will of any property which she could alienate by her own act during her life.
Explanation 2.  Persons who are deaf or dumb or blind are not thereby incapacitated for making a will if they are able to know what they do by it.
Explanation 3.  A person who is ordinarily insane may make a will during interval in which he is of sound mind.
Explanation 4.  No person can make a will while he is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing.
Chapter 6 of the statute deals with construction of a Will. Section 79 states that it is not necessary that any technical words or terms of art be used in a will, but only that the wording be such that the intentions of the testator can be known therefrom. All the Wills are subject to grant of Probate. Probate is a proceeding undertaken in a Court of Law, to prove the genuineness of a Will.
Now let me share something about Muslim Succession.
Muslims are basically categorized into Shias and Sunnis. In India there are more Sunni Muslims. There is no codified law to deal with succession amongst Muslims. They follow the Holy Kuran to devolve the property of a person dying intestate. The devolution is on three grades viz. the Sharers, the Residuaries and the Distant Kindereds. As per the table of shares the share in the property is first given to the sharers. If anything remains then that is devolved upon the Residuaries and if there are no sharers or Residuaries then the distant Kindereds come into picture and get their share. As per the Muslim Law, the property should be fully devolved and nothing should remain left over. Only when the total property is devolved, the succession completes.
Thus conclusively, it can be stated that the laws of succession in India are different for different religions and this is perhaps the apt way. Due to the operation of the policy of secularity it is not possible to have an uniform law on succession and thus it shouldn’t even be tried as it may hurt the religious sentiments of people and may lead them to adopt unfair means instead of going on the path framed by the law.

-Krishanu Ray

Tuesday, September 7, 2010

Hindu Marriages- The Legal Perspective

The term ‘Hindu’ can be associated with the indigenous dwellers of the Indian sub-continent. Hindu scriptures can be vastly divided into ‘Srutis’ (revealed) and ‘Smritis’ (remembered), which lay down the foundation of ‘Hinduism’, the religion of the Hindus. Hinduism is world’s third largest religion, majority of which lives in India. Hinduism, in the course of time, has sub divided into Jainism, Buddhism and Sikhism.
According to the norms Hinduism, wedding is a process of bringing together two people who are said to be compatible. Unlike Muslim marriage, Hindu marriages are not contracts but holy sacraments. The Hindu ceremony of marriage is prescribed in 'Puranas' and is usually done by worshiping of Hindu deities in different manners. Although, almost all Hindus follow the same marriage procedure across the country, but the methods of performing certain rituals may vary. Customs play a very important role in determining the modus operandi of rituals in different societies. All Hindu marriages are solemnized in front of holy fire which witnesses the marriage.
The Hindu Marriage Act has given the Hindu Marriages in India a legal status. This legislation was passed in the year 1955, and it extends to the whole of India except the state of Jammu and Kashmir. It applies to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat, or a follower of Brahmo, Prarthana or Arya Samaj. The Hindu Marriage Act, 1955 under Section 5, lays down conditions for Hindu Marriage, viz.
1.    No party should have a spouse living at the time of marriage;
2.    None of the parties should be, incapable of giving free consent for the marriage due to insanity or childhood;
3.    The bridegroom must have completed the age of twenty-one years and the bride, an age of eighteen years, at the time of marriage.
4.    None of the parties should be related to each other within the degrees of prohibited degrees of relationship, unless customs permit. Degrees of prohibited relationship is defined under section 3(g)of the act as:-
“Two persons are said to be within the "degrees of prohibited relationship"-
        (i) if one is a lineal ascendant of the other; or
        (ii) if one was the wife or husband of a lineal ascendant or descendant of the other; or
        (iii) if one was the wife of the brother or of the father’s or mother’s brother or of the grandfather’s or grandmother’s brother of the other; or
        (iv) if the two are brother and sister, uncle and niece, aunt and nephew or children of brother and sister or of two brothers or of two sisters;
5.    None of the parties should be sapindas of each other, unless permitted by customs. The term sapindas has been defined u/s 3(f) as two persons are said to be "sapindas" of each other if one is a lineal ascendant of the other within the limits of sapinda relationship, or if they have a common lineal ascendant who is within the limits of sapinda relationship with reference to each of them, where, "sapinda relationship" with reference to any person extends as far as the third generation (inclusive) in the line of ascent through the mother, and the fifth (inclusive) in the line of ascent through the father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation.
Section 7 of the Act, states about the ceremonies of the Hindu marriages. According to it, a Hindu Marriage may be solemnized, according to the customary rites of either party. As the marriage mostly takes place in the house of the bride, so the customs generally followed are those prevalent in brides’ family. The section further contemplates that Where such rites and ceremonies include the saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken. Saptapadi as a ritual differs from place to place or even family to family. It somewhere includes taking of seven steps and somewhere revolving around the holy fire for seven times by the bride and the bridegroom jointly by tying together the sashes worn by them. The holy fire, agni, is considered to be the witness to the vows taken during each step or revolution. The vows taken, include:-
a.    The bride and the groom take the first step of the seven vows to pledge that they would provide a prospered living for the household or the family that they would look after and avoid those that might hinder their healthy living.
b.    During the second step, the bride and the groom promise that they would develop their physical, mental and spiritual powers in order to lead a lifestyle that would be healthy.
c.    During the third vow, the couple promises to earn a living and increase by righteous and proper means, so that their materialistic wealth increases manifold.
d.    While taking the fourth vow, the married couple pledges to acquire knowledge, happiness and harmony by mutual love, respect, understanding and faith.
e.    The fifth vow is taken to have expansion of their heredity by having children, for whom, they will be responsible. They also pray to be blessed with healthy, honest and brave children.
f.    While taking the sixth step around the sacred fire, the bride and the groom pray for self-control of the mind, body and soul and longevity of their marital relationship.
g.    In the seventh and the last vow, they promise that they would be true and loyal to each other and would remain companions and best of friends for the lifetime.
Once a marriage is solemnized, the bride and the bridegroom are under social, moral and legal binding to live as couples. When either the husband or the wife, without any reasonable excuse, withdraws from the society of the other, the aggrieved party, by law, can apply for restitution of conjugal rights.
The act further also defines the void and voidable marriages. The marriages which are performed in contravention of section 5 are Void Marriages, burring Sub-clause (ii) to section 5. There are certain grounds on which either party to marriage can declare the marriage voidable. Section 5(ii) may be considered as such a ground. A case where the marriage fails to consummate due to the impotence of the opposite party, can also be example of a voidable marriage. Other such instances are mentioned under Section 12 of the Act.
Section 8 of the Act, actually gives any marriage under the Hindu Marriage Act a legal status by registering the same. The Section states that “For the purpose of facilitating the proof of Hindu marriages, the State Government may make rules providing that the parties to any such marriage may have the particulars relating to their marriage entered in such manner and subject to such conditions as may be prescribed in a Hindu Marriage Register kept for the purpose.”
Let me now elaborate something on the concept of Divorce under the Hindu religion. Although the concept of Divorce is a foreign concept for Hinduism, it had to be imbibed into the culture especially for determining freedom of Hindu women. In the medieval period, status of women worsened to such an extent that the concept of Divorce had to be given a kick start. However, even today, in Hindu society, the concept of divorce is not well accepted and is not as frequent as in Christian countries. The bond created by a Hindu Marriage is considered to be a bond for 7 births and is regarded as a pious relationship. But still, Section 13 of the Act provides for grounds of divorce. Adultery, Desertion, Conversion to other religions and cruelty are some important grounds under the Section. Section 14, says that “No petition for divorce to be presented within one year of marriage” i.e. it creates a legal bar on the parties to a marriage to stay within the relationship created by marriage for at least one year. Further Section 15 states about when divorced individuals can re-marry. It reads that “When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again.”
It was a common system among Hindus some decades ago to have more than one wives, but such system has been declared illegal now a days. Hindu Marriage Act, itself punishes, ‘Bigamy’ through application of the Indian Penal Code. Section 17 of the Act states that if after commencement of this Act, any Hindu marries within the lifetime of his/her spouse, he/she shall be guilty of Bigamy and Sections 494 and 495 of the IPC shall apply in such case accordingly.
Conclusively, it can be stated that although the Hindu Marriage system is a system of marriage highly based by religious foundations like ‘Puranas’, the Hindu Marriage Act, gives it a legal status.
-Krishanu Ray

Wednesday, September 1, 2010

Right to Information.


It is well known to all of us that our country's goverment runs on the taxes paid by us. We citizens contribute for functioning of the government every now and then. Whether it is income tax, sales tax, value added tax , electricity tax, water tax or any other such tax levied on the citizens the need behind all is functioning of the government and its organs. Without funds the government cannot function. 
Now just think,  if we pay for the functioning of the government, shouldn’t we have a right to question the government as to how and what the government is doing for us?
Yes, we have. Although this right has been recognized very late but the fact is that it has now been recognized legally. 
The Right to Information Act was passed in 2005, facilitating access to information about functioning of any public body.
The act in its object clause states that:
“Whereas the Constitution of India has established democratic Republic; 
And whereas democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed; 
And whereas revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information; 
And whereas it is necessary to harmonise these conflicting interests while preserving the paramountcy of the democratic ideal; 
Now, therefore, it is expedient to provide for furnishing certain information to citizens who desire to have it.”

Moreover, it is a well accepted fact that information is power and thus to empower the citizens they must be given this essential right to Information. Robin Morgan, an American activist once said  "Knowledge is power. Information is power. The secreting or hoarding of knowledge or information may be an act of tyranny camouflaged as humility."

Section 2(f) of the Act defines the term ‘Information’ as, “Information means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, 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 the time being in force.” And under section 2(h), it defines the term ‘Public Authority’ as “Public authority means any authority or body or institution of self- government established or constituted—     
(a) By or under the Constitution;
(b) By any other law made by Parliament;    
(c) By any other law made by State Legislature;   
(d) By notification issued or order made by the    appropriate Government, and includes any:—
      (i) Body owned, controlled or substantially financed;       
     (ii) Non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government. ”
The right to information act only applies to the Public offices and public authorities. Any private individual cannot be compelled to give any information under this act. As per the scheme of the Act, it specifies that citizens have a right to:
request any information (as defined above).
take copies of documents.
inspect documents, works and records.
take certified samples of materials of work.
obtain information in form of printouts, diskettes, floppies, tapes, video cassettes 'or in any other electronic mode' or through printouts.
Now comes the question of the procedure by which such information can be obtained. Under the Act, all authorities covered must appoint their Public Information Officer (PIO). Any person may submit a request to the PIO for information in writing. It is the PIO's obligation to provide information to citizens of India who request information under the Act. However there is no express bar as per the act on citizens of any other country or NRIs to get the information. If the request pertains to another public authority (in whole or part) it is the PIO's responsibility to transfer/forward the concerned portions of the request to a PIO of the other within 5 days. In addition, every public authority is required to designate Assistant Public Information Officers (APIOs) to receive RTI requests and appeals for forwarding to the PIOs of their public authority. The citizen making the request is not obliged to disclose any information except his name and contact particulars.
The Act specifies time limits for replying to the request.
If the request has been made to the PIO, the reply is to be given within 30 days of receipt.
If the request has been made to an APIO, the reply is to be given within 35 days of receipt.
If the PIO transfers the request to another public authority (better concerned with the information requested), the time allowed to reply is 30 days but computed from the day after it is received by the PIO of the transferee authority.
Information concerning corruption and Human Rights violations by scheduled Security agencies (those listed in the Second Schedule to the Act) is to be provided within 45 days but with the prior approval of the Central Information Commission.
However, if life or liberty of any person is involved, the PIO is expected to reply within 48 hours.
Since the information is to be paid for, the reply of the PIO is necessarily limited to either denying the request (in whole or part) and/or providing a computation of "further fees". The time between the reply of the PIO and the time taken to deposit the further fees for information is excluded from the time allowed.
If information is not provided within this period, it is treated as deemed refusal. Refusal with or without reasons may be ground for appeal or complaint. Further, information not provided in the times prescribed is to be provided free of charge.
For Central Departments as of 2006, there is a fee of Rs. 10 for filing the request, Rs. 2 per page of information and Rs. 5 for each hour of inspection after the first hour. If the applicant is a Below Poverty Card holder, then no fee shall apply. Such BPL Card holders have to provide a copy of their BPL card along with their application to the Public Authority. States Government and High Courts fix their own rules.
Chief Information Commissioner (CIC) is the head of all the information officers. The State Information Commission will be selected by the State Government through a Gazette notification. It will have one State Chief Information Commissioner (SCIC) and not more than 10 State Information Commissioners (SIC) to be appointed by the Governor.
At the end of year CIC is required to present a report which contains: 
(a) the number of requests made to each public authority;
(b) the number of decisions where applicants were not given permission to access to the documents which they request, the provisions of the Act under which these decisions were made and the number of times such provisions were filed; 
(c) details of disciplinary action taken against any officer in respect of the administration of the Act; 
(d) the amount of charges collected by each public authority under the Act.
But right to information does not give absolute freedom to the citizens to obtain any and all information. Section 8 expressly bars certain information which cannot be sought for even under the act. Section 8 reads as:
“Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,—
    (a) information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence;     
      (b) information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court;
    (c) information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature;
     (d) information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information;       
     (e) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information; 
   (f)  information received in confidence from foreign Government;
    (g) information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes;  
   (h) information which would impede the process of investigation or apprehension or prosecution of offenders;     
    (i) cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers:       
Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over: 
Provided further that those matters which come under the exemptions specified in this section shall not be disclosed; 
   (j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information:       Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.   
(2)   Notwithstanding anything in the Official Secrets Act, 1923 nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests.
(3)   Subject to the provisions of clauses (a), (c) and (i) of sub-section (1), any information relating to any occurrence, event or matter which has taken place, occurred or happened twenty years before the date on which any request is made under section 6 shall be provided to any person making a request under that section:       
Provided that where any question arises as to the date from which the said period of twenty years has to be computed, the decision of the Central Government shall be final, subject to the usual appeals provided for in this Act. ”
Section 11 of the Act deals with third party information which reads as follows:
"Where a Central Public Information Officer or a State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information" but a proviso fore runs the provision stating that except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party.
On enactment of the legislation, it was observed that more than 40,000 applications under the act were filed in the first year of its implementation alone. This shows that citizens were concerned about the working of the public machinery, but because of absence appropriate right could not raise their voice. For a democratic country like India, a legislation of this kind is very important.
Thus, it is necessary that we spread education regarding right to information so that every person can now exercise it. This would help us to withdraw ourselves from witnessing any wrong and injustice against us. But at the same time we should not try to make any misuse of the act for harassing the government authorities by asking them for irrelevant information every now and then.
-Krishanu Ray

Tuesday, August 31, 2010


We all love our lives more than any other thing and the ultimate fear inside any human being is the fear of death. But it sometimes happens so that one develops a fear of remaining alive. It may happen due to any reason like ultimate pain and suffering, loss of essence of life, and many such to state. It only happens so that a person desires death over life, when his psychological condition worsens due to any reason or another. Cases of suicides are results of such psychologically unsound backdrops. Sometimes, situations arise when it happens so that staying alive becomes more painful than death and there comes into picture the concept of ‘Euthanasia’.
The Black’s Law Dictionary defines Euthanasia as “The act or practice of killing or bringing about the death of a person who suffers from an incurable disease or condition, esp. a painful one, for reasons of mercy.”
It has been a topic of continuous debates that whether or not the practice of euthanasia humane?
The people in for of practice of Euthanasia argue that mercy killing is because of pain and psychological & physical suffering and should be practiced and the utilitarian argument is that euthanasia is desirable because it relieves the misery of the terminally ill, however people in against argue that killing is morally wrong and is forbidden by religion and unexpected cures or procedures may be discovered to reverse the 'terminal' condition. Now that I have stated something about religion, let me further state that Buddhist, Shintoist, and Confucianist religions support Euthanasia. The concept of Euthanasia circles the patients in a persistent vegetative state who are awake but are not aware of self or the environment. Such patients have no higher brain functions and are kept 'alive' on artificial life support like respirators, heart-lung machine, and intra-venous nutrition and patients in terminal illness with a lot of pain, psychological suffering and loss of dignity. The patients may or may not be on life-support.
There are two types of Euthanasia, viz.
1.    Active Euthanasia: Active euthanasia is taking some action that leads to death like administration of a fatal injection.
2.    Passive Euthanasia: Passive euthanasia is an act of omission, i.e. letting a person die by taking no action to maintain life. It can include withholding or withdrawing water, food, drugs, medical or surgical procedures and resuscitation like CPR, and life support such as the respirator. The patient is then left to die from the underlying disease. Euthanasia can be by the patient or by the health care giver. Euthanasia can be voluntary when the patient takes the decision, non-voluntary when the decision is made by another person for an unconscious patient and involuntary when the decision is made contrary to the patient's wish.

Today Several states have begun to consider legislation that would legalize active voluntary euthanasia.
Medical science and technology have made great advancements in recent years. The medical profession has today more power over life and death than they had some decades ago. They have power to prolong life where life seems to have lost its meaning and have power to terminate life without suffering. There are many points of view on euthanasia, legal, social and compassionate.
The debate on Euthanasia has again become a live issue in India as the Supreme Court of India in 1994 passed a verdict that attempted suicide is not a crime. According to the Indian Penal code, which was mainly adopted from British Penal Code, attempted suicide was a crime, punishable with years of imprisonment. With the recent medical knowledge gained by researchers and the opinions expressed by eminent psychiatrists all over the world, the judges in their verdict were sympathetic to those who attempted suicide. The Supreme Court of India is the highest court, authorised to interpret the constitution of India for legal matters. They gave the verdict that attempting suicide is a mental derangement and hence not to be considered as a crime. Thus it can be interpreted that euthanasia is social approval for committing suicide or assisted suicide.
In the case of Aruna Shanbag, the question arose before the Supreme Court, whether permission to Euthanasia should be granted or not. Aruna Shanbag was a nurse from Haldipur, Shimoga, Karnataka. In 1973, while she was working at King Edward Memorial Hospital, Parel, Mumbai she was assaulted and sodomized by a Sohanlal Bhartha Walmiki, a ward boy at the hospital which cause serious injuries to her brain and cervical cord due to which she became cortically blind and since that day she has been in a vegetative state for 36 years now. The doctors who have been treating her since the last 36 years said that Aruna Shanbag is brain dead and there is no chance of her getting recovered. She has been lying unconscious in a Mumbai Hospital for the last 36 years. The Supreme Court said that under the country’s law, they cannot allow a person to die and rejected the plea for euthanasia raised by one of Aruna’s friend Pinki Virani.
Not only in the case of Aruna Shanbag but also in a couple of other cases, The Supreme Court of India rejected the Euthanasia pleas on the ground that the law of the land doesn’t permit the court even to allow someone end his life.
If we think logically, we can infer that especially in a country like India, where there is already paucity of resources, patients who cannot be revived should be allowed euthanasia, because firstly this will end their personal pain and suffering and secondly it will end the suffering of his near and dear ones who feel it most challenging to see him in that stage, lying like a dead body with nothing more than the heart beating.
To conclude, the legislation should make laws governing the concept of Euthanasia, but such law should be so strict and strong that no one can misuse it in any way.
-Krishanu Ray

Sunday, August 29, 2010


The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) was adopted by the United Nations General Assembly in 1979 and enforced on 3rd September, 1981. It is an international law which has recognized rights of women. Many countries have signed and ratified this convention subject to certain declarations, objections and reservations till date.
This convention was based on the idea to ‘bridge the gap’ between people on the basis of sex which is prevalent in most of the countries.
The convention in its first chapter, reads as “The Convention was the culmination of more than thirty years of work by the United Nations Commission on the Status of Women, a body established in 1946 to monitor the situation of women and to promote women's rights. The Commission's work has been instrumental in bringing to light all the areas in which women are denied equality with men. These efforts for the advancement of women have resulted in several declarations and conventions, of which the Convention on the Elimination of All Forms of Discrimination against Women is the central and most comprehensive document.”
The convention is beautifully divided into 6 parts containing 30 articles in toto. All the members of the UN General Assembly have ratified the convention except seven states including the states of Iran, Nauru, Palau, Somalia, Sudan, Tonga, and the United States
By ratifying the convention the states undertake the following:
•    to incorporate the principle of equality of men and women in their legal system, abolish all discriminatory laws and adopt appropriate ones prohibiting discrimination against women;
•    to establish tribunals and other public institutions to ensure the effective protection of women against discrimination; and
•    to ensure elimination of all acts of discrimination against women by persons, organizations or enterprises.
Article 1 of the convention defines what discrimination means. It states that “For the purposes of the present Convention, the term ‘discrimination against women’ shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.”
Article 3 states that the state parties shall take all necessary steps to ensure full development and advancement of women. And further article 6 states that States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.
Part II of the convention deals with political empowerment of women in the party states. Part III confers Educational, Employment, Health, Economic and Social rights on women. Article 15 envisages equality before law regarding women and article 16 deals with elimination of discrimination against women relating to matters regarding marriage and family relations.
Under article 17, the CEDAW establishes a committee called the Committee on the Elimination of Discrimination against Women under which 23 experts are appointed to deal with women’s issues. The committee consists of one chairperson, 3 vice chairpersons and other members with tenure of 4 years. As on January, 2007, Croatia was the chairperson of the Committee.
Upon ratification of CEDAW the Indian Government has made many legislations for upliftment of women. Although clear application of CEDAW by Indian Judiciary is not visible, the policies under the CEDAW are given due respect by the judiciary. The Supreme Court of India has issued certain directives to the state governments to ensure that all necessary action, including legislation, be taken to make registration of marriages compulsory.
In India the following cases have reference to CEDAW:
1.    Sakshi –Vrs.- Union of India & ors.:- The case involved public interest litigation by a welfare organization concerning the India Penal Code's classification of various sexual offenses (namely those other than penile/vaginal penetration) as lesser offenses. The Court ultimately refused to strike down the provision but suggested that the legislature ought to respond to the problem. The appellants referred to several conventions, including CEDAW, which were ratified by the state. Such ratification had "created a legitimate expectation" that the State would adhere to its international commitments. The existing interpretation of rape, sought to be imposed by the respondent authorities, was in complete violation of such International commitments as have been upheld by the court.
2.     Municipal Corporation of Delhi –Vrs.- Female Workers (Muster Roll):- Female workers of the Corporation sought maternity leave under the Maternity Benefit Act 1961 which was denied because they were not "regular" employees. As India is a signatory of CEDAW, Article 11 of the Convention which governs marriage and maternity was read into the contract of service between the Corporation and the women employees and the employees immediately became entitled to all the benefits conceived under the Maternity Benefit Act 1961.
3.    Githa Hariharan & Another –Vrs.- Rserve Bank of India: Challenge to Hindu law which held that a mother could be the guardian of a child "after" the father. The court resolved the situation by holding that "after" did not exclusively mean death but could include a variety of situations. The court stated that the domestic courts are under an obligation to give due regard to international conventions and norms for construing domestic laws when there is no inconsistency between them.
4.    Vishaka & Ors. –Vrs.- State of Rajasthan & Ors.:- Following a brutal gang rape of a publicly-employed social worker in a village in Rajasthan, a group of activists and NGO's filed a class action under Art 32 of the Constitution seeking the court's enforcement of the fundamental rights provisions relating to working women, and India's international obligations under Arts 11 and 24 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The SC held that any international convention not inconsistent with the fundamental rights guaranteed in the Constitution and in harmony with its spirit must be used to construe the meaning and content of the constitutional guarantee and to promote its object; this is now an accepted rule of judicial construction. It follows that Arts 11 and 24 of CEDAW, General Recommendations Nos. 22, 23 and 24 of the CEDAW Committee, relating to sexual harassment in the workplace, may be relied upon to construe the nature and ambit of the gender equality guarantee and, since the guarantee includes protection from sexual harassment and the right to work with dignity, to formulate preventive guidelines. The court issued a series of guidelines to be observed at all workplaces or other institutions for the preservation and enforcement of the right to gender equality of working women.
5.    Apparel Export Promotion Council –Vrs.- A.K. Chopra:- Appellant alleged attempted sexual molestation, but because no actual molestation had occurred, appellant was dismissed. The court held that this was error and any distinction between attempted and actual molestation "rebeled against realism." The court stated that the message of CEDAW and other international agreements was to direct state parties "to take appropriate measures to prevent discrimination of all forms against women besides taking steps to protect the honour and dignity of women." Such international agreements must be applied when there is no inconsistency between the conventions and the "norms and the domestic law occupying the field.

CEDAW was also brought into application in the cases of Masilamani Mudaliar & Ors –Vrs.-  Idol of Sri Swaminathaswami Thirukoil; Valsamma Paul –Vrs.-  Cochin University & Ors and Kerala Public Service Commission –Vrs.-  Dr. Kanjamma Alex.

Thus it can be said in conclusion that the application of the CEDAW in India is although not very frequent but it is taken into account when any central or state legislation falls short in imparting justice.
-Krishanu Ray

Understanding the concept of IP rights.

The most remarkable difference between the law of society and the law of jungle can be traced out through analysis of the principle of ‘Rights’.
The Black’s Law Dictionary defines Rights as “Something that is due to a person by just claim, legal guarantee, or moral principle” or “A power, privilege, or immunity secured to a person by law”. So, it means that ‘right’ is what you have by the virtue of being a member of the human society.
In the modern society in addition to different other basic rights like rights to life, liberty, freedom, education, some more rights have started getting recognition. These rights are although not necessary for survival but may be necessary for finding a means of survival. The Intellectual Property Right is one such right.
Let us now delve into the concept of Intellectual Property Rights, commonly known as IPR. To begin with, I would first like to quote the definition of Intellectual Property as given in the Black’s Law Dictionary. It reads as “A commercially valuable product of the human intellect, in a concrete or abstract form, such as a copyrightable work, a protectable trademark, a patentable, Invention, or a trade secret.” In simple words, intellectual property is anything which is the creation of a human mind, either tangible or intangible. E.g. any literary, dramatic, artistic, cinematographic work; a trade secret or a mark used to make one’s product identifiable; or any new invention; design of a particular article, building, dam, bridge etc.
Moving on to the legal aspects of intellectual property, it can be mentioned that in present era the protection of these intellectual property rights have become as important as protection of fundamental rights.
In this article I will limit myself only to the Indian scenario of IPR.
Protection of Intellectual property rights means to ensure that no one else other than the creator can reproduce the creation to which the right pertains, without sanction of the creator. It is as simple as, I have right to restrain any one from staying on my property without my permission, either express or implied.
In India, different statutes deal with protection of different kinds of Intellectual Property Rights.
Let me first categorize the intellectual property rights under 5 major heads, viz..
1.    Copyright.
2.    Trademarks.
3.    Patents.
4.    Designs.
5.    Other IP Rights.
It is a right in context of works like literature, art, drama, cinema, sound recordings, video footage etc.
The copyright is dealt with by the Copyright Act, 1957.
Most importantly, it first defines the term ‘author’, i.e. the person who holds the copyright.
Under section 2(d), Author means-
1.    in relation to a literary or dramatic work, the author of the work;
2.    in relation to a musical work, the composer;
3.    in relation to an artistic work other than a photograph, the artist;
4.    in relation to a photograph, the person taking the photograph;
5.    in relation to a cinematograph or sound recording the producer; and
6.    in relation to any literary, dramatic, musical or artistic work which is computer-generated, the person who causes the work to be created;
Anyone in the territory of India can apply for getting his or her work registered with the registrar of copyrights and can get copyright on that work.
Copyright also subsists in the works like broadcasts, performances, government works etc.
Chapter 5 of the act deals with terms of copyright in different works. The general rule is that copyright lasts for 60 years. In the case of original literary, dramatic, musical and artistic works the 60-year period is counted from the year following the death of the author. In the case of cinematograph films, sound recordings, photographs, posthumous publications, anonymous and pseudonymous publications, works of government and works of international organizations, the 60-year period is counted from the date of publication.
The act provides for provisions regarding assignment and licensing of the copyright by agreement.

Trademark related rights are governed by the Trademarks Act, 1999.
A trademark is a mark used to distinguish one’s goods and services from that of others. Some examples of well known trademarks are SONY, TATA, Reliance, Parle, Bajaj, Mahindra & Mahindra, Rin, Tide, Britannia etc.
Let me now analyze why protection of trademarks is necessary.
Brands and trade names are associated with the quality of product and services offered by them. If we ever think of buying a T.V, best electronic brands like Sony, Samsung, LG etc. come into our minds. So, we choose any one based on the reputation and quality and buy it. Supposing that one Mr.X, from New Delhi sets up a small workshop and starts manufacturing T.V’s using substandard components and affixes a sticker of ‘Sony’ on them before selling them in the market. We as buyers come under the misconception that the T.V we are buying is manufactured by the famous brand Sony and we buy it. After a few days the T.V starts giving trouble, and we start thinking that ‘Sony T.V’ are not good. Wouldn’t it harm the reputation of Sony?
Yes it would. In this case despite of rendering the best quality products to the consumers, Sony would suffer.
This is the very basic reason for protection of Trademarks.
Trademarks can be registered under the Trademarks Act, with the registrar of Trademarks.

Patents are granted to the inventors of a thing who prove that their invention is novel, non-obvious, and capable of industrial application. But then, all inventions, even if complying by the above requirements, cannot be patented. Such exceptions include:
1.    Invention relating to Atomic Energy.
2.    A mere admixture of two known substances.
3.    A mathematical formula.
4.    A method of playing game.
5.    Discovery of any living or non-living substance in nature.
6.    A mere arrangement or rearrangement of instruments.
7.    A diagnostic, medical, surgical process or a process of physiotherapy.
8.    Plants and animals in whole. Etc.
Patent can be obtained from the registrar of patents after going through a long procedure which takes years.

Think if someone copies the words another has written in his answer sheet, what will happen?
The answer is simple that he also will get same marks as the one who has originally written it.
The same concept applies here. If I make a design and another person copies it, the value of my design is bound to go down. More over if the copied design is sold at a lower price than the original design, which one is going to get sold first? Again the answer is obvious that the one which is a copy of the original.
Thus designs also need to be protected.

Other Intellectual Property Rights:
Some other such rights are geographical indications, farmers’ rights, integrated circuit layouts etc.

For protecting the rights, the statutes have been enacted, but how do these protect the rights?
These statutes protect the rights in a two-fold way.
a.    By registering.
b.    By punishing for infringement.
Infringement means- “An act that interferes with one of the exclusive rights of a patent, copyright, or trademark owner”
Thus when any person without the permission of the owner of an IP right, uses, copies, publishes, duplicates, or sales the subject matter of such right, he is held guilty of infringement.
For punishing the infringer and remedy the aggrieved party, there are three modes in general:
1.      Civil remedy:- it includes payment of compensation by the infringer to the person whose right has been infringed. The aggrieved party can either ask for the loss or damage he has suffered or for the account of profit the infringer has made.
2.    Criminal Remedy:- it includes imprisonment of the infringer. Sometimes the loss due to infringement is irreversible and in such cases, this is the best possible remedy.
3.    Administrative Remedy:- it includes seizure of the infringing copies, delivery up of such copies, Anton Piller orders etc.

To conclude, IP rights have become as important as other fundamental rights and protection of these rights must be a great concern for developing countries like India. It was said by Albert Einstein that: 
   "Imagination is more important than knowledge."

And thus one’s imagination and product of such imagination must be duly respected.
-Krishanu Ray

Friday, August 27, 2010

The Concept of PIL- A cruise through

Public Interest Litigation i.e. PIL, as it is commonly known, is a principle envisaged under Article 32 of the Indian Constitution. As the name suggests, the concept of PIL is developed to support litigation concerning public interest. To make it simpler, it can be said that this refers to certain litigations which are fought for common interest of public and includes such issue or issues which are of great concern for people at large. PIL’s are filed in the form of Writs under article 32 of the Constitution of India in Supreme Court, although it can also be filed in High Courts, again as writs but under article 226. Issues relating to environment degradation, pollution, public transport, education system etc can be some good examples of issues under the purview of PIL.
While tracing the origin of PIL in India, a great emphasis can be laid down on the works of Justice P.N Bhagwati and Justice V.R Krishna Iyer, who were among the first judges to admit PIL. It is believed that the process of filing of PIL may be just equated with that of writing a letter. Instances are evident that PIL’s have been filed through telegrams and letters addressed to courts. But this wasn’t the situation before 1980’s when only the private aggrieved parties could knock the door of the courts. The system was far rigid than the system prevailing in present days. The entire scenario changed in the post emergency era when Supreme Court started thinking on the matter as to how can general public approach the court without crossing the hassles of needless barriers.
However an analysis of the history of PIL’s reveal that it is the very recent time in which the machinery of PIL has actually unfolded itself and has brought in revolution in the strata of public welfare. It has only been some years that certain vigilant members of the public have dragged into sight of the courts some very serious matters pertaining to public good. The court machinery is presumed to be the most effective machinery for enforcement of rights. So it is very necessary that courts look into PIL’s very cautiously so that any kind of injustice can be avoided. A wrong decided PIL would not only effect the life of one person or some persons, but may bring disasters into the lives of many people altogether.
Howsoever, the term PIL has not been defined under any statute. Generally PIL can be filed in the following cases:
-Violation of fundamental rights enshrined under the Constitution  of India;
-Against Government policies;
-For compelling public offices to abide by duties;
-Environmental issues including Pollution;
-Any other matter which involves interest of common people at  large.

Now taking a brief look at the major PIL’s filed in India we may enlist the following cases:
Now moving on to some important case filed and decided in the form of PIL, the case of M.C.Mehta –Vrs.- Union Of India, (Oleum Gas leak case), deserves the first mention.
In this case one Mr. M.C.Mehta, an Advocate filed a PIL on observing that due to leaking Oleum gas from the plant of Sriram Foods and Fertilizers Industry many persons in Delhi have to be hospitalized. The case stood on the principles of absolute liability and it was pleaded that the due to the gas leak the people’s fundamental right to life enshrined under article 21 of the Constitution is at stake. A reference was also made to the most celebrated case of Rylands –Vrs.- Fletcher, relating to strict Liability.
The supreme Court passed an appropriate order in the case and stated that:
“Since we are not deciding the question as to whether Shriram is an authority within the meaning of Article 12 so as to be subjected to the discipline of the fundamental right under Article 21, we do not think it would be justified in setting up a special machinery for investigation of the claims for compensation made by those who allege that they have been the victims of oleum gas escape. But we would direct that Delhi Legal Aid and Advice Board to take up the cases of all those who claim to have suffered on account of oleum gas and to file actions on their behalf in the appropriate court for claiming compensation against Shriram. Such actions claiming compensation may be filed by the Delhi Legal Aid and Advice Board within two months from today and the Delhi Administration is directed to provide the necessary funds to the Delhi Legal Aid and Advice Board for the purpose of filing and prosecuting such actions.”
In another Case of M.C. Mehta –Vrs.- Union of India, the issue of Pollution near Taj Mahal was raised.
It was observed that due to increasing pollution levels in air, the colour of Taj Mahal is getting yellow. The Supreme Court, in this court has issued directives to ascertain that pollution in the places surrounding the Taj Mahal be reduced to minimum possible level so that the heritage structure can be saved from further destruction.
Similarly many other such cases have proved themselves boon for the many people residing in different parts of the nation.
To conclude, it can be emphasized that the concept of PIL is a very successful one and has a lot of relevance in today’s era.
-Krishanu Ray

Monday, August 23, 2010

The Constitution of India: Highlights.

Thousands of people have been sacrificing their lives since centuries to make us see a dawn when we may respire in emancipation. Whether it was the pre British era or during the English Rule, India was always ruled by foreign invaders and the locals could control only small parts of the nation. Moreover, there existed dominance in contrast due to which the country remained divided into princely states. Frankly speaking, it happened first time during the British rule that the whole country united and the world saw the power of ‘India’ and Indians. India is now known worldwide for its policies of secularism, socialism and unity in diversity. On 15th August, 1947 finally the day came when India became India in true sense and was able to push out invaders altogether. The first and foremost need that was felt by the leaders then was framing of laws. Many laws which were already in force were kept in force. Such laws are still in use and include major statutes like the Indian Penal Code, the Codes of civil and criminal procedure etc. Finally the newly formed legislature under the name of the Constituent Assembly under the leadership of Late Dr. B. R. Ambedkar, started framing the most important law for the country which was to be regarded as the law of the land, The ‘Constitution of India’.
The Constitution of India was adopted and enacted on 26th November, 1949, however it was enforced from 26th January, 1950 and thus we celebrate 26th January as the Republic Day.
The Indian Constitution is the world’s lengthiest written constitution.
The Constitution starts with a preamble which is in the form of a pledge taken by all Indian citizens collectively.
The preamble to our constitution reads as follows:-

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
And to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation

The preamble is followed by 22 parts containing around 444 articles and 12 schedules.
The constitution deals with concepts of citizenship; fundamental rights; Directive principles of State Policy; fundamental duties, functioning of the parliament, the legislature, the executive and the judiciary; the formation and working of Panchayats, Municipalities; provisions for Scheduled castes and tribes; emergency provisions and such other miscellaneous provisions.
For common people, the concepts of fundamental rights and duties are the most important one.
Lets us now go into depth of these concepts.
Fundamental Rights as they sound are the very basic rights that all the citizens must have these. Rather it is ensured by the government itself that no citizen is deprived of these rights.
There are 6 major fundamental rights ensured under the Constitution viz.
1.  Right to equality: under the head of Right to equality, the following rights are granted:
    I.    Equality before Law- Article 14, talks about equality before law. This means that law is equal for all citizens of the nation and no one shall be discriminated in the courts of law. Article 14 reads as “The state shall not deny to any person equality before the law or the equal protection of laws within the territory of India”.
    II.    Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
   III.    Equal opportunity for all in matters of public employment.
    IV.    Abolition of the Evil of Untouchability; and
     V.    Abolition of Titles given by British Rule on the basis of works of different types
2.  Right to freedom: Under the head of Right to freedom, the rights like freedom of speech, protection of life and personal liberty, right to education etc. are bundled. These rights are although not absolute. E.g. Right to speech is not unbound, and has to be enjoyed within boundaries. Any person cannot speak anything he wishes without verification. Whatever one speaks must not be harming any other persons reputation. Right to life is a very dense right and under its ambit covers right to livelihood, right to clean environment and facilities like clean water and food.
3.  Right against exploitation: This right prevents trafficking of human beings and forced labour. It states that immoral trafficking in Human beings and beggar and similar other forms, is an offence and is punishable under law.
4.  Right to freedom of religion: India being a secular country respects all religions and ensures that anybody can embrace any religion as per wish and there shall be no discrimination on grounds of religion.
5.  Cultural and educational rights: Right to follow one’s own culture and right to Education are essential features of a developing country. The constitution envisages such rights to be most important rights for development of the nation. It is ensured by law that no one shall be denied admission in any educational institution on the basis of discrimination of caste, creed, sex, religion or language. It further states that every person has a right to preserve his/her distinct language, script etc. this is the reason why despite of Hindi being the national Official Language there are 20 other constitutionally recognized languages in India, viz.
I.    Assamese.
II.   Bengali.
III.  Dogri.
IV.   Gujarati.
V.    Hindi.
VI.   Kannada.
VII.  Kashmiri.
VIII. Konkani.
IX.   Maithili.
X.    Malayalam.
XI.   Manipuri.
XII.  Marathi.
XIII. Nepali.
XIV.  Oriya.
XV.   Punjabi.
XVI.  Sanskrit.
XVII. Santhali.
XIX.  Tamil.
XX.   Telugu.
XXI.  Urdu

6.  Rights to Constitutional remedies: Article 32 states that the Supreme court shall have the power to undertake proceedings for enforcement of rights. It has the power to issue directions or orders or writs for enforcement of fundamental rights.
A new concept of Public Interest Litigation also has been incorporated in the constitution which means that any person for the common interest of public can file a suit in the Supreme Court for seeking universal relief from any infringement of right. In present days many environmental hazards have been cropped by using this mechanism.

Now that we have talked of rights let us know our duties.
The Constitution of India says that It shall be the duty of every citizens of India-
a.    to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;
b.    to cherish and follow the noble ideals which inspired our national struggle for freedom;
c.    to uphold and protect the sovereignty, unity and integrity of India;
d.    to defend the country and render national service when called upon to do so;
e.    to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;
f. to value and preserve the rich heritage of our composite culture;
g. to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;
h. to develop the scientific temper, humanism and the spirit of inquiry and reform;
i. to safeguard public property and to abjure violence;
j. to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement.
Other than these fundamental rights and duties the constitution also deals with the provisions for formation of the government and its working mechanism.

To conclude, I would say that our constitution is well build but due to ever changing needs of the country the statute is getting amended very often and thus we need to keep ourselves updated regarding changing facets of law.
-Krishanu Ray