In this article, Prathiksha Ravi, a law graduate from Institute of Law, Nirma University discusses how to adopt a child whose parents are living but willing to give them up for adoption.

Introduction

Growing up in a family filled with love and nourishment is one of the few blessings we receive in this world. Not everyone is as lucky. For those searching to fill their world with the love and nourishment, an adoption is a viable option. The term ‘adoption’ refers to the process by which the adopted child is “permanently separated from the biological parents and becomes the lawful child of the adoptive parents“[1]. Adoption is an act to ensure ‘right to a family’ for an orphaned, abandoned and surrendered child. It is done keeping in mind the child’s best interests.

The process of adoption brings together individuals looking to bring a bundle of joy into their lives and a child seeking love and nourishment.

Adoption in India is governed by the following laws

• Hindu Adoption and Maintenance Act, 1956
• Guardians and Wards Act, 1890
• Juvenile Justice (Care and Protection of Children Act, 2015
• CARA Guidelines and Adoption Regulations, 2017

Adoption is not only a recourse for orphaned or abandoned children. India recognizes the adoption of children who are surrendered by parents who due to economic, physical or social reasons cannot maintain or keep the child.

Surrendering of a child

A Child may be surrendered for the following reasons

• The child is born as a consequence of a non-consensual relationship
• The child is born to an unwed mother or out of wedlock
• One of the biological parents is dead and the living parent is incapacitated or unfit to take care.
• Parents of the child are compelled to surrender the child due to physical, emotional and social factors beyond their control.

Process of surrendering a child

Section 35 of the Juvenile Justice (Care and Protection of Children) Act, 2015 states that:

• The parents of the child, who due to certain physical, economic and social reasons cannot maintain the child can file for surrender by bringing the child before the Child Welfare Committee.
• After the necessary process of inquiry and counselling, the Child Welfare Committee shall allow for the surrender by executing the surrender deed before the committee.
• The parent who is surrendering the child shall be given two months to reconsider their decision
• The child will be then placed with either a Specialised Adoption Agency (if below 6 years) or Children’s Home (if above six years).
• If the parents have not reconsidered their decision, After two months, the relationship between the parent and child will be terminated and the child can be, if approved by the Committee can be declared as legally free for adoption.

Procedure for Adoption

Under the Hindu Adoption and Maintenance Act, 1956

This act applies only to Hindus, i.e. only a Hindu Parent can give their child for adoption to another Hindu Parent[2]. The prerequisites under the Act are as follows:

• Person adopting and giving has the capacity to do so
• Person being adopted is capable of being taken in adoption
• Adoption is done in compliance with other conditions

Certain guidelines to be followed for adopting a child under this Act are as follows:

• A Hindu parent can adopt a male child only if he/she doesn’t have a male child / grand-child of his/her own, the same goes for the female child
• In the case the person willing to adopt is married, he/she needs to get consent from his wife/husband[3]
• The child to be adopted must not have crossed the age of 15, unless custom provides for the adoption of an older child.
• If adoption by a male of a female child, then there should be at least twenty one years of difference between them. Same goes for a female adopting a male child.

Approval from the Court for Adoption is needed only in certain cases[4]:

• Where both the biological mother and father of the adopted child are dead
• Where the biological parents have renounced the world
• Where the biological parents have abandoned the child
• Where the biological parents have been declared to have an unsound mind
• Where parentage of the child is unknown

Under the Juvenile Justice (Care and Protection of Children) Act, 2015

Under this Act, a person can adopt a child who has been relinquished or surrendered by their biological parents based on certain conditions. A surrendered child is one, who has been given up by their biological parents due to physical, emotional and social factors beyond their control and is declared as such by the Child Welfare Committee.

The Child must be declared as legally free for adoption by the Child Welfare Committee.

Section 38 talks about how a Child can be declared as legally free for adoption. It states that:

• The institution under which the child was placed after the execution of the surrender deed will bring the child before the Committee of the lapse of 2 months after the deed has been executed to be declared as legally free for adoption
• The decision to declare a child as legally free for adoption must come from at least three members of the Committee.

Eligibility Criteria

• The couple looking to adopt must have at least 2 years indicating marital stability
• To adopt a child between 0-3 years, the prospective parents must have a combined age of 90 years wherein the individual prospective parent should have the minimum age of 25 years and not more than 50 years.
• To adopt a child above 3 years, the prospective parents must have a combined age of 105 years wherein the individual prospective parent must not be less than 25 years and not more than 55 years.
• In the case of a single prospective parent, the parent must be a minimum of 30 years and not older than 50 years.

Required Documentation

The Prospective Adoptive Parents (PAPs) need to submit the following original documents with two copies on which self-attestation is done for undergoing a legal adoption procedure.

1. Identity Proof – Pan Card/Passport/Voter Card/Driving
2. Address Proof – documents like Ration Card/Aadhar Card/ Electricity Bill etc.
3. Certificate of Marriage
4. Health Certificate which clears the parents from any incurable or contagious diseases
5. A Family Photograph
6. If employed, the Prospective Adoptive Parents need to furnish an Income Tax Statement for the previous three years. They have to provide an Income Certificate in case if they are employed in any organization from that particular organization along with the date of superannuation[5].
7. The Prospective Adoptive Parents must furnish two letters of recommendation from the persons who are well acquainted with the adoptive family and who are not the immediate relatives of any of the any of the Prospective Adoptive Parents[6].
8. A Financial Statement which includes bank statements of the previous 6 months, information on loans taken and details of the movable and immovable properties owned by them.
9. In case of a previous adoption, the Prospective Adoptive Parents have to furnish Adoption Decree.
10. In the case where Prospective Adoptive Parents already have children either adopted or biological and if the child is more than 7 years, they need to take Written Consent from such child.
11. Single Prospective Adoptive parents need to provide a Letter From a Close Relative stating that the relative would take care of the child in case if any unforeseen circumstances take place.
12. In case of Divorcees, the Divorce or Legal Separation Decree needs to be submitted.

Procedure for adoption under this Act

According to the CARA Guidelines and the Adoption Regulations,2017:

• The Child must be declared to be legally free for adoption by at least three members of the Child Welfare Committee
• Indian Prospective parents must register themselves with a Specialised Adoption Agency, mainly one near their place of residence. The Agency will guide them through the registration process
• Online Registration can also be done using this website: http://carings.nic.in/
• After registering as per Schedule IV and with the necessary documents and the prescribed fee, the Specialised Adoption Agency (SAA) will give them a registration slip.
• If they want to adopt a child from another Special Adoption Agency within the same state they can approach the State Adoption Resource Authority (SARA) or the Adoption Coordination Agency with the registration slip.
• If they want to adopt a child from another state they must visit that particular state’s State Adoption Resource Authority or Adoption Coordination Agency with the registration slip.
• The Prospective Adoptive Parents will be put on a waiting list
• Pre-Adoption Counselling and Preparation will be given to the Prospective Adoptive Parents by the Specialised Adoption Agency to prepare them for their adoption
• Home Study is done by the respective Specialised Adoption Agency to check for suitability and eligibility of the prospective parents in the place of their residence by which a Home Study Report is prepared which will declare the Prospective Parents as eligible.
• Prospective Parents after being cleared as eligible for adoption, they will get profiles of legally free for adoption children.
• Prospective Parents can reserve a child within 48 hours.
• Matching of the prospective parents and the child is done by adoption agency within 20 days after which Prospective parents accept the child and take him/her into pre-adoption foster care
• A petition is filed by the Specialised Adoption Agency along with the Prospective parents as co-petitioners in a designated court within 10 days of acceptance
• The Court will hear and dispose the case within 60 days after having an in-camera hearing.
• Application of the birth certificate and its subsequent issuance will be done within 8 days
• Post Adoption follow up will be done until 2 years from the date of adoption of the child.

Conclusion

Every child needs to grow up in a family environment where they feel loved and nurtured in order to become caring individuals in the future. Many parents due to various social, physical and economic reasons are unable to maintain their children. Adoption of such children is recourse given under Indian law to make sure they are not left out of the love and nurture they deserve.

Some things to be kept in mind before adopting children with living parents:

Hindu Adoption and Maintenance Act, 1956

Juvenile Justice (Care and Protection) Act, 2015 read with CARA Guidelines and Adoption Regulations, 2017

If you want to adopt under the Hindu Adoption and Maintenance Act, 1956, you can only adopt if you and the parents surrendering the child is ‘Hindu’ Certain prerequisites are necessary to be complied with in the case of adopting the child In the case of abandoned children, it is required to get a court order for adopting the child The adoption can be completed by either performing an adoption ceremony as per customs or by a court order.

If you want to adopt under the CARA Guidelines read with the Juvenile Justice (Care and Protection of Children) Act, 2015, make sure the kid is legally free for adoption and has the relevant certificates. Registration can be done with a Specialised Adoption Agency or online through http://carings.nic.in/ The Required documents as stated above must be submitted during the Registration process and keep the Registration slip on hand, it will be needed if and when you want to start the process or transfer the process to another SAA. Allow the agency to conduct the pre-adoption counselling, Home Study in order to get the certification necessary to become Prospective Adoptive Parents in order to be put on the waiting list After receiving the child in a pre-adoption foster care, along with SAA file a petition to confirm adoption with the court within 10 days Make sure you get the birth certificate and relevant documents which will be issued within 8 days. Post-adoption follow up will be done for 2 years from the date of adoption of chile

Contact Information

For any adoption related query, Contact:

Central Adoption Resource Authority

Toll free helpline – 1800-11-1311

Email: [email protected]

References

[1] Section 2(2), Juvenile Justice (Care and Protection of Children) Act, 2015

[2] Section 2, Hindu Adoption and Maintenance Act, 1956

[3] Bholooram and Others v. Ramlal and Others 1989 JLJ 387

[4] Section 9(4), Hindu Adoption and Maintenance Act, 1956

[5] Adoption Regulations, 2017 http://cara.nic.in/PDF/Regulation_english.pdf [Date of Visit: 07/02/2018 Time of Visit: 3:30 pm]

[6] Schedule VI, Adoption Regulations, 2017

http://cara.nic.in/PDF/Regulation_english.pdf [Date of Visit: 07/02/2018 Time of Visit: 3:30 pm]

In this article, Arpit Shivhare discusses the concept of Backdoor listing.

INTRODUCTION

Backdoor listing is a process which gets commercial enterprises onto a stock exchange listing without an Initial Public Offering (IPO). Listing of a company on the stock exchange has its own benefits which may come in the various form of:

• Access to more capital

• Providing liquidity to the existing shareholders

• Spread in shareholder base, and

• Value addition to the stature of a company

A backdoor listing is a method of going public, used by those companies which fail to meet the criteria for listing on stock exchange. Listing on a stock exchange does not come for granted.

Some companies may prefer to get listed on stock exchange, while others may prefer to go from the back door and enter into listing sphere secretly withoutissuance of a prospectus and taking out of initial public offer (IPO) and following other listing requirements such as:

• Definite shareholder’s base

• Complying with disclosure requirements etc.

Backdoor listing is an alternative available to the conventional mode. It is in the form of reverse merger or reverse takeover which is sometimes referred to as backdoor listing; with which we are concerned in this paper.

Backdoor listing is a complex set of transactions in which a listed company takes over the unlisted company on papers by issuing its shares in consideration to the target company. The listed company can also give shares and cash both as consideration. Practically it is the shareholders of the target company who will have a controlling stake in the resulting company.

Once the transaction is completed, the identity of the listed company will survive but, in reality, the resulting company would carry on the business of an unlisted company with its managerial board taking control of the resulting company. The resulting company may subsequently change its name and objective clause in order to reflect the business of a pre-merger unlisted company.

This unconventional method of getting listed by using a listed company as a tool is aptly termed as ‘backdoor listing’.

Motivations for doing backdoor listing are not only in the inability of some companies to fulfil listing requirements. But, some intrinsic benefits of backdoor listing and mutual necessity of target and acquiring company may also induce decision of getting listed by using the backdoor. A listed company which has failed miserably in its operations may see the transaction as a tonic of new life, while an unlisted company may opt for backdoor listing because of it being cheaper and speedier mode in comparison to IPO. Non-requirement of raising initial capital in the backdoor listing may also be a factor for a company which does not want to liquidate equity initially.

However, the brighter side of backdoor listing may tend to hide its ugly side. Due to no mandatory requirement of a prospectus, there is always a risk of less amount of due diligence which may add to the potential risk for the investors. Also, chances of fraud, skewed share-swap ratio and class action suits can never be ruled out in the cases of backdoor listing.

The frequency of backdoor listing and regulations associated to it vary across the globe. The USA has Chinese companies using backdoor to get listed there, while Australia has number of listed mining companies providing shells to tech companies for getting listed. Some countries have explicit regulations to deal with backdoor listing while other may lack such legal framework which tackles the issue to the head. This paper intends to analyse and discuss the phenomenon of backdoor listing, its hyped advantages and risks associated to it, along with the reactions of the regulators around the world to this issue, with some special focus to the situation in India.

CHOOSING BACKDOOR LISTING AGAINST IPO

Doing the same thing in a better way?

There are several lucrative inducements for doing backdoor listing by the companies. It is always argued that backdoor listing is a speedier process than becoming listed by the conventional method of taking out an IPO, as that involves preparation, printing and distribution of prospectus, and involvement of underwriters etc.Typically, reverse mergers can be completed in three to four months, whereas IPOs can take nine to twelve months or more.[1]Time may be of special consideration for those companies which want to get listed as soon as possible because of strategic reasons.

Another factor which is of relevance for the companies is economic nature of backdoor listing. Backdoor listing is always considered as a cheaper method of getting listed than by taking out an IPO. Arguably, the backdoor listing may cost less than $1 million and sometimes even less than $200,000, whereas IPOs may cost millions.[2] Backdoor listing has even been referred to as ‘‘Poor man’s IPO’’[3].Further, a decision to take out an IPO may be influenced by market conditions. Favourable market conditions ensure the positive response to the IPO and good value for the shares, and, unsurprisingly, negative market conditions give the contrary result. Getting listed through the backdoor is independent of the market conditions as it does not involve taking out an IPO and hence, proves to be an important tool to get listed even in adverse market conditions.

Also, listing through an IPO requires the company to compulsorily raise capital by issuing shares at the time of getting listed. This requirement has a two-fold effect on the company. First, the company may not need additional capital at the time of getting listed and may want to raise capital afterwards, and secondly, it dilutes the shareholding of the existing shareholders and thus loosen their grip off the company. These things can be avoided by using the backdoor listing as a method of getting listed.

Lastly, the backdoor listing may prove to be an important tool for getting listed in a foreign jurisdiction. A company which may not be able to satisfy the listing requirement abroad may choose this more convenient method of getting listed by merging into already listed company. Listing of Chinese companies in the USA through the backdoor on a large scale[4] can be seen as an example of this assertion. Thus, we can conclude that listing through the backdoor has its own advantages.

VEILED PROBLEMS OF BACKDOOR LISTING

Seeing Beyond the Sunny Side

The apparent advantages of backdoor listing may seem to emphasize on the superiority of backdoor listing over the conventional method of getting listed through an IPO. However, this may not always be the case. Getting listed through the backdoor may not be as swift and unchecked as it may seem. There might be several evils associated with backdoor listing which may not be apparent on the face of it. To start with, the listed company which is used as a shell by the target company may have some hidden liabilities in the form of unpaid debts and ongoing contractual liabilities.[5] This makes the transaction a gamble for an unlisted company and requires an extra amount of caution. Further, there may be an apprehension of reputational loss for the resulting company due to the bad name which listed shell company may have acquired because of its failure in its business.

Further, no requirement of issuing prospectus increases the potential risk associated with backdoor listing transactions. There may be instances of fraud as can be seen in several backdoor listing cases[6]. This may be done by tilting the share-swap ratio in the favour of an unlisted company by overvaluing it for the purpose of giving its shareholders controlling stake in the resulting company. Further, due to no issue of the prospectus, there is always a risk for potential investors due to the lack of disclosure and less amount of due diligence observed.

Also, the backdoor listing is not an as simple method of getting listed as it is sometimes portrayed. It is a complex transaction which requires approval from the shareholders of both the companies. There might be minority shareholders in the listed company who may not want to be part of resulting company, and thus, may seek an exit option. The selling out of shares by these shareholders at the beginning of being listed may not only harm the reputation of the company but can also reduce the price of the shares. In addition to that, the chances of class action suit can never be ruled out.

Getting listed through the backdoor does not create wide publicity which is generally done by the issue of the prospectus. It mitigates the reputational gains to the company which might have created additional investment due to wide publicity.Lastly, the inexperience of new management and directors; which will now control the company, in the field of stock market obligations, legal and regulatory framework etc. cannot be ignored.[7]These are some of the intrinsic problems of schemes involving backdoor listing.

POSITION ACROSS THE WORLD: A Brief Overview

Backdoor listing is a phenomenon which has been experienced at different rates by all the major economies of the world. The difference in the number of cases involving backdoor listing lies in the incentives for the company to get listed in a particular country, coupled with the need to use the backdoor listing as a comparatively advantageous way of getting listed. In the USA, the backdoor listing has been used as a method of getting listed by many Chinese companies, which either could not get listed owing to their failure to meet listing requirements or which found it more cost and time effective. There has been a boom in the number of increasing backdoor listing cases in the USA.[8] As a result of which, the USA has to release investors guide for informing the various stakeholders about the potential risk of such kind of transactions. Further, in the year 1992, Securities and Exchange Commission (SEC) of USA brought an amendment in the Securities Act 1933, bringing in Rule 419.[9]This rule was aimed to put a check on ‘blank check companies’ by defining them, and also by making it mandatory to observe some specific conditions by such companies when doing a merger. These companies are more likely to be used as a shell for backdoor listing. However, despite the introduction of this Rule, the cases of backdoor listing did not get minimized in the USA.

In contrast to their developed counterpart economies across the Atlantic, the United Kingdom has until recently not expressed much concern in the form of increased or tighter listing requirements for companies pursuing backdoor listings.[10] However, it is not the case that the stakeholders are unaware of this issue in the United Kingdom. More or less, there are rules by the stock exchanges like London Stock Exchange, which are aimed to bring more transparency and disclosure in these kinds of schemes for protecting the interest of investors.

In Australia, there has been an upsurge in the number of backdoor listing cases where the Australian listed mining companies which failed in their businesses were behaving like a shell for Information Technology (IT) companies to get listed.[11]This upsurge was the effect of IT boom in the country. However, there have been a number of cases of fraudulent transactions in such kinds of schemes. Thus, recently the Australian Stock Exchange (ASX) has changed its policy towards backdoor listings. Now, trading in the securities of the listed company would be suspended from the time it announces the backdoor listing till the time when it re-complied with the ASX’s listing requirements.[12] These requirements clearly show that the intent of ASX is to put a guard on the backdoor who will not allow entry in the listing realm until certain requirements are not complied with.

In Sweden, flexibility is the main ingredient of the backdoor listing regulations.[13] The regulators warn the investors if there is a change in the identity, nature or business of the company. The suspension of securities is one of the methods used by the Swedish regulators in these kinds of cases. However, even when there has been need to take serious actions, the flexibility could be seen in the actions of the Swedish regulator. This approach of Swedish regulators is a result of seeing the backdoor listing as just another kind of business restructuring which has nothing illegal.

BACKDOOR LISTING IN INDIA: An Unrecognized Event!

When Companies Act, 2013 was drafted, a provision was made in respect of phenomenon which is opposite of the kind of backdoor listing we are concerned with, i.e. what would happen when transferor company would be a listed company and transferee company would be an unlisted company. In this case, it has been provided by the Companies Act, 2013, that the transferee company would remain an unlisted company until it becomes a listed company by observing all listing requirements.[14] However, nothing has been given in case of transferee company being listed company. There was no such legal framework provided by the new Companies Act which can tackle the issue of backdoor listing.

The Companies Act provides that in a general course of approving a scheme of arrangement by a High Court, a notice to the Indian securities market regulator ‘Securities and Exchange Board of India’ (SEBI) is likely to be issued by the Court along with the draft of the scheme of compromise or arrangement, and SEBI can forward its objection to the Court within the thirty days.[15] This was to enable the SEBI to put forth its point of view in case of schemes involving listed companies or otherwise. However, in the beginning of 2013, SEBI issued a circular[16] and tried to enlarge the scope of its interference with respect to the schemes involving listed companies. Now the listed companies have to provide detailed information to SEBI and SEBI would base its objections or comments on this information and would forward them to stock exchanges.

By using the powers assumed by the SEBI through this circular, it has objected to the scheme of arrangement involving merger of an unlisted company Emami Reality Limited with a listed company Zandu Reality Limited; which was a transaction in the nature of backdoor listing, on the ground that it was an attempt to get listing benefits without following the requirements given in the Securities Contracts (Regulations) Rules, 1957 and SEBI (Issue of Capital and Disclosure Requirements)Regulations, 2009.[17] On another occasion, SEBI objected to the same kind of scheme of arrangement involving ACE TC Rentals Private Limited and Action Construction Equipment Limited, on the same ground of getting listed through the backdoor without following the listing requirements.[18] However, such kinds of objections were advisory in nature and could not stop the companies from placing their scheme before the Court for approval. What SEBI could do at the most was to direct the companies to incorporate such objections in the draft proposal of their scheme before placing it to the Court.

However, recently in the beginning of the year 2017, SEBI has formulated some guidelines in their Press Release[19] for preventing the very large unlisted companies to get listed by merging with very small companies. This can be seen as a move to prevent unlisted companies from using shell companies to get listed. After this Press Release, now holding of pre-scheme public shareholders of the listed entity and the Qualified Institutional Buyers (QIBs) of the unlisted company, in the post scheme shareholding pattern of the “merged” company shall not be less than 25%. Further, it has made the approval of public shareholders mandatory when the schemes involves the merger with an unlisted company which results in reduction by more than 5% in the voting share percentage of pre-scheme public shareholders of total capital of merged entity, or where the whole undertaking of a listed company is transferred and the consideration is not in the form of listed equity shares.

Evidently, such kind of step has been taken by the SEBI to curb the schemes which involve skewed share swap ratios which is biased in favour of shareholders of the pre-merger unlisted company, or schemes which reduces the shareholding of public shareholders of a listed company, and would give control to the shareholders of an unlisted company. However, it is really doubtful that if such a step, which come in the form of Press Release and not in the form of guidelines or circular, is adequate to tackle the issue of backdoor listing. Now, when two giants of telecom sector in India- Idea Cellular Limited and Vodafone India have announced their merger,[20] it may be the biggest case of backdoor listing in India as Vodafone is an unlisted company which is likely to get listing benefits post its merger with listed company Idea Cellular Limited. It would be interesting to see the approach of SEBI in this proposed scheme of arrangement.

There have been instances where SEBI has objected to the schemes giving listing benefits to an unlisted company without following process of getting listed; there has been an attempt by SEBI through their recent Press Release to check such schemes by placing a condition of having fixed minimum percentage of shareholding by public shareholders in post-merger companies, which is intended to not allow public companies to be used as a shell; however, if such steps are enough by any means to tackle these kinds of schemes is really doubtful. Indian regulator has been slow in realizing the gravity of these transactions and has not taken any concrete step to check these schemes. We can just hope for some statutory guidelines or regulations in India for taking this issue head-on.

CONCLUSION

Backdoor listing is a phenomenon which is occurring in every mature economy, however, only some pay heed to this by recognizing this phenomenon and making specific rules for this. It is just another kind of commercial transaction, having its motivation in comparative advantages. However, if such kind of transactions drives their advantages on the vulnerability of others, then they need to be checked. If the backdoor listing is side-lining measures made for the investors’ protection, then it is a reason to worry about and should be a raison d’être for securities market regulators all around the world to recognize this and to make regulations for this.

It may be contended that there is nothing illegal in such schemes, however, the question is not always about legal or illegal but is about checks and balances. The chances of fraud due to comparatively less disclosure and following least amount of due diligence is a reason enough for checking these schemes by regulatory bodies like SEBI. There has to be a proper legal mechanism in place in the form of guidelines or regulations for dealing with these kinds of schemes. This is the only way to protect the interest of investors by compelling the company achieving listing benefit to follow disclosure requirements and observe due diligence, which is sine qua non for securities market where public money is involved. The freedom of commercial wisdom of companies must be balanced against the need of investors’ protection. With the recent trend in favour of making more and more regulations for the protection of public investors, we can look forward to tackling this opaque phenomenon of backdoor listing by making it more transparent and investors friendly.

References

[1]David N. Feldman, Comments on Seasoning of Reverse Merger Companies Before Uplisting to National Securities Exchanges, 2 Harv. Bus. L. Rev.140, 141 (2012); See also, David N. Feldman & Steven Dresner, Reverse Mergers: Taking a Company Public Without an IPO 24 (Bloomberg Press, 2d ed. 2009).

[2]Id. at 23.

[3]NaagueshAppadul, Anna Faelten and Mario Levis, Reverse Takeovers: The Other Side of the Poor Man’s IPO, Semantic Scholar, 1 (January 10, 2014), https://pdfs.semanticscholar.org/b337/2ee6726 07154254eb2f7c755ea821df563f3.pdf

[4]Id. at 8.

[5]Back door listings, McCullough Robertson, 2, http://www.mccullough.com.au/icms_docs/166243_Back_ door_listings.pdf (last updated April 15, 2017)

[6]Cécile Carpentier, Douglas Cumming & Jean-Marc Suret, The Value of Capital Market Regulation: IPOs versus Reverse Mergers, SSRN, 11 (November 25, 2010),http://ssrn.com/abstract=1356324. See also, NaagueshAppadul, Anna Faelten and Mario Levis, Reverse Takeovers: The Other Side of the Poor Man’s IPO, Semantic Scholar, 2, 8 (January 10, 2014), https://pdfs.semanticscholar.org/b337/2ee6726 07154254eb2f7c755ea821df563f3.pdf

[7]Colin Nicholson, Backdoor Listings, Building Wealth Through Shares, 3, http://www.bwts.com.au/download/educational-articles/Backdoor%20Listings.pdf (last updated April 16, 2017)

[8]Ioannis V. Floras, Two Essays on Alternative Mechanisms to Going Public, University of Pittsburgh: D-Scholarship, 6 (30 June 2008), http://d-scholarship.pitt.edu/7255/.

[9]William K. Sjostrom, Jr., The Truth About Reverse Mergers, 2 Entrepreneurial Bus. L. J. 757 (2008).

[10]Erik P.M. Vermeulen,Rules on Backdoor Listings: A Global Survey, Indonesia-OECD Corporate Governance PolicyDialogue, 24 (2014), http://www.oecd.org/daf/ca/OECDBackgroundReportBackdoorListingsIndonesia2014.pdf.

[11]Andrew Ferguson, Backdoor Listings in Australia, 1 JASSA: The Finsia Journal of Applied Finance 24. 26 (2015).

[12]ASX Media Release, Updating ASX’s Admission Requirements for Listed Entities: Final Listing Rule Amendments, 3 (November 2, 2016), http://www.asx.com.au/documents/asx-news/ASXs_New_Admission_Requirements_and_Response_to_Consultation.pdf.

[13]Erik P.M. Vermeulen, Rules on Backdoor Listings: A Global Survey, Indonesia-OECD Corporate Governance PolicyDialogue, 28 (2014), http://www.oecd.org/daf/ca/OECDBackgroundReportBackdoorListingsIndonesia2014.pdf.

[14]Section 232(3) (h) (A), Companies Act,2013.

[15]Section 230(5), Companies Act, 2013.

[16]SEBI Circular on Scheme of Arrangement under the Companies Act, 1956– Revised requirements for the Stock Exchanges and Listed Companies, CIR/CFD/DIL/5/2013 (February 4, 2013).

[17]Letter by SEBI to Bombay Stock Exchange, CFD/DIL/AKD/SGS/OW/12250/2014 (April 30 2014).

[18]Letter by NSE to Action Construction Equipment Limited, NSE/LIST/11814 (January 22, 2015).

[19]SEBI Press Release, SEBI PR No. 5/2017(January 14, 2017).

[20]Merger of Vodafone India and Idea: creating the largest telecoms operator in India, Idea Cellular (Mar. 20, 2017), http://www.ideacellular.com/media-centre/news/national-news/merger-of-vodafone-india-and-idea-creating-the-largest-telecoms-operator-in-india.

Siddhant Sarangi of School of Law, KIIT discusses the various intricacies in applying for a Copyright Registration of Photographs.

Introduction

For almost the last 200 years there has been a debate whether photography is an art or not, the photographic society of London established in 1853, the members called this technique “too literal to compete with other works of art” however with the sale of the Andreas Gursky’s Photograph of the Rhine for a whopping 4.3 million the debate is officially over and hence the need for clearing the air about whose work is a photograph.

Copyright regime in India

Summarising the definition of copyright as under Article 14 of the Indian Copyright Act 1957, a copyright means the exclusive right to do or to authorise the doing of any act in respect to a work or any substantial part. The authority here is given to the owner of the artistic work, therefore it is necessary to understand who the owner of an artistic work is and in this case who is the owner of the copyright of a photograph.

The first owner of the Copyright

The Indian Copyright Act 1957 under Article 2(c)(i) of Copyright Act defines “artistic work as a painting , a sculpture, a drawing,(including a map, chart or plan) an engraving or a photograph whether or not any such work possesses artistic quality” The Indian Copyright act, therefore, provides literary protection both the photographer and the person who hires.

Section 17(a) of the Indian Copyright Act talks about who are the first owners of a literary work and provides that, in case of a literary or an artistic work even with the absence of an agreement done in the course of employment the proprietor of a newspaper, magazine goes to the proprietor of the magazine, newspaper or periodical shall have ownership over the work. It further goes on to clarify that in case of a photograph taken in exchange for valuable consideration at the instance of any person, that person even without the presence of an agreement shall be the first owner of the photograph.

Interpretation of S17(a) leads us to understand that there can be a contract between the employer and the employee about the ownership of the photograph. The ownership shall go to the author if the work is not done by any employer or even not in the course of employment. In the following cases, the ownership of the photograph shall go to the author.

To know more about Copyright registration please visit 

Copyright Registration of Photographs: Procedure to follow

The Procedure for filing for copyright starts with,

• The filing of an application and the payment of fees before the copyright office (http://copyright.gov.in/frmformsDownload.aspx).
• A diary number is issued and a 30 day waiting period is given for any objection to be raised.
• If no objections raised then the work is scrutinised by the examiner and in case of no discrepancy forwards it to the Deputy Registrar for registration who approves it.
• However if objections are filed then the Registrar send letters to both parties, following a reply and after hearing both the parties by the registrar, he decides, if the application is accepted or not. If accepted it follows the same procedure as before.
• In both cases, however, if discrepancies are found in the application then the discrepancy letter is issued to the applicant and after a reply from the applicant a hearing by the Registrar.
• In case of acceptance of the copyright an acceptance letter is sent and in case of a rejection letter is sent.
• In India, as per section 25 of the Copyright Act, the Photographs are provided copyright protection for a period of 60 years from the date of publication [this just means the date of the photograph].
• (http://copyright.gov.in/frmWorkFlow.aspx)

How is originality determined in a photograph?

The concept of threshold of originality as a concept in copyright law is used to assess if a particular work can be copyrighted. It distinguishes between works which are sufficiently original to warrant copyright protection or not.

In this context, of a copyright for a photograph, everything from the angle at which the photograph is taken to every minute detail about the placement of an object if differentially placed can warrant a copyright.

Let us take the example of an object placed, which is clicked by a photographer at a perpendicular angle. It is an original work. The same object under the same light conditions but clicked at a 70-degree angle shall also be considered as original work.  

Generally, copyright is registered for work where there is a reasonable apprehension that the rights relating to which are very much likely to be infringed. This means that if one takes a photograph of a wonder of the world its very unlikely that he will get a copyright on that.

In the case of Jonathan Mannion Vs Coors Brewing Co 377 F.Supp.2d 444, the company had used a part of the photograph taken by Mannion for a billboard in Los Angeles. The court held that “(1) rendition, (2) timing, and (3) creation of the subject can influence the copyrightability of a photograph”

Challenging a copyright.

The originality of the work is the most important concept in copyright law. As discussed above the owner of the work is either the person who has hired the photographer to click and if not hired, then the real owner of the photograph is the person who has clicked. The thing about photographs lies in the concept and that differentiates one work from the other.  
The choice of subject matter, even if it has been used by another, is a statement of a vision at a moment and the results of that vision is the originality of the Photograph.

What else can be challenged?

1. Ownership of a photograph.
2. Resale of a photograph

In the Camera House, Bombay Vs State of Maharashtra, AIR 1969 Bom 437 , the Bombay High Court held that “On behalf of the assessees, reliance was also placed on the provisions of the Indian Copyright Act 957, for the purpose of showing that it is impossible in law that there could be any sale of a customer’s photograph, either to the customer himself or to anybody else. It is contended that, in view of the fact that, under section 17 of the Copyright Act, the copyright in a photograph vests in the customer whose photograph it is, there can be no sale of the photograph to the customer who is already the owner of that photograph under the relevant provisions of the Copyright Act. It is further contended that there could be no sale of the photograph of the customer to anybody else, in view of the fact that the customer, whose photograph it is, is the sole owner of the copyright therein. In view of the conclusion at which I have arrived on the question of severability, it is not necessary for me to consider the argument advanced on behalf of the assessees in the present case based on the provisions of the Copyright Act.”

The above-mentioned case clears the air about the issues about who the owner of a photograph is and can the person who has clicked can resell the photograph. In the above-mentioned case, though was about a question on taxation, on income arising out of the sale of a photograph, the Bombay High Court made it clear that the only the owner has the right to sell or resale the photograph, Therefore it can be concluded that the person who hires for the photograph to be clicked owns not only the actual copy but also the negatives and is to be treated as the owner of that intellectual property.

How protected

A Photographer might register a copyright in a photograph but the same is recommended not mandatory. The copyright protection commences as soon as the work is created. As under copyright law, the expression of an idea is copyrightable but not the idea.

Indian Copyright Act 1957 under section 51 protects the infringement of the expression of photographers. Any violation or infringement of the rights of the author is copyright infringement. Also, Indian Courts have held that the publication of a photograph without the permission of the author/owner from another published material is an infringement of the photograph. However when the same photograph is used by another person without any intention of obtaining illegal profits then it won’t amount to infringement. Also if the photograph is used for legislative, or academic purpose then it won’t amount to copyright infringement of fair use and are the permissible use of photographs without the prior consent of the photographer.

The Copyright Act, 1957 is exhaustive in nature. It provides safeguards not only to traditional paper photographs taken but, also the online photographs though not expressly mentioned. The existing copyright law can competently overcome the challenges posed by latest technology and has a strong legal base for the protection of copyright.

International regime on the protection of photographs and rights of photographers

The Indian Copyright Act is in compliance with most international treaties such as Berne Convention for protection of Literary and Artistic works 1886, the Universal Copyright Convention 1951, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement of 1995. The International Copyright Order has been passed to protect the copyright in member countries of the convention.

• Article 2 of the Berne Convention states that “the expression literary and artistic work shall include every production in the artistic domain, whatever may be its mode or form of its expression”. The Article further includes “photographic works to which are assimilated works expressed by a process analogous to photography;”
• Article 7 of the Berne Convention for the Protection of Literary and Artistic Works provides that it is up to the legislation to provide the term for copyright of the photographs. However, the minimum time that is provided by the convention is 25 years from the date of publication.
• The Universal Copyright Convention is another International document which protects literary and artistic works. This Convention with close to 50 signatories also provides for the protection of photographs. This Convention provides for 10 years of minimum protection for photographs.

Conclusion

As George Bernard Shaw puts it “Imagination is the beginning of creation” This encourages people to create. Copyright is extremely important to authors because it constitutes the ownership of one’s original work. Having ownership means you can protect your work as intellectual property and control who makes money off of it — ideally you and those to whom you assign rights.

References

1. 1.https://www.theguardian.com/artanddesign/2011/nov/11/andreas-gursky-rhine-ii-photograph
2. Article 2(c) of The Indian copy Right Act accessed at http://www.copyright.gov.in/Documents/Copyrightrules1957.pdf
3. http://copyright.gov.in/frmWorkFlow.aspx
4. https://creativegenes.wordpress.com/2011/01/19/copyright-registration-for-a-photograph-2/
5. http://portal.unesco.org/en/ev.php-URL_ID=15381&URL_DO=DO_TOPIC&URL_SECTION=201.html
6. http://photoartsmagazine.blogspot.in/2011/07/thoughts-on-influence-originality-in.html
7. https://www.pixsy.com/10-cases-that-show-how-complicated-copyright-law-really-is/ 
8. Camera House, Bombay Vs State of Maharashtra AIR 1969 Bom 437 (https://indiankanoon.org/doc/1404468/ )
9. Jonathan Mannion Vs Coors Brewing Co 377 F.Supp.2d 444,

In this article, Nawlendu Bhushan of Campus Law Centre discusses inspection of family members under money laundering Act.

Introduction

The scope of the offence of money laundering has been widened by virtue of the Prevention of Money Laundering (Amendment ) Act, 2012. Now, the rigours of this Act also extend to any person who assists money laundering by concealment, possession, acquisition or use of any proceeds of crime. [1]This amendment has enabled the authorities to investigate and prosecute those family members of an offender, who assisted money laundering through any of the mentioned acts.  

What is money laundering?

Money laundering is the process of creating an appearance that large amounts of money obtained from criminal activity, such as drug trafficking or terrorist activity, originated from a legitimate source. [2]

The offence of money laundering is defined in section 3 of the Prevention of Money Laundering Act, 2002 (PMLA). As per this section, a “person” who

• Directly or indirectly attempts to indulge, or
• Knowingly assists, or
• Knowingly is a party, or
• Is actually involved in

Any process or activity connected with the proceeds of crime including its

• Concealment,
• Possession,
• Acquisition or use and
• Projecting or claiming it as Untainted Property

shall be guilty of the offence of money laundering.

Here the term “Person” includes an individual, a Hindu Undivided Family, a firm, a company, or association of persons.[3]

The definition of money laundering in the Act is very wide and includes within its fold every kind of dealing with the proceeds of crime.

Proceeds of crime

Proceeds of crime mean any property or its value, derived or obtained by any person as a result of criminal activity relating a scheduled offence. Such property may be derived or obtained directly or indirectly.[4]

The Finance Act 2015 contains the provision that if such property is taken or held outside the country, then proceeds of crime is the property equivalent in value held within the country.

It is clear that proceeds of crime include within its definition not only property or its value obtained within the country but also property held outside the country. The person possessing such property should not necessarily be the person who has committed criminal activity related to a scheduled offence.

Scheduled Offence

Money laundering depends upon another offence, the proceeds of which are the subject matter of crime of money laundering. These offences are called “Scheduled” or “Predicate” offences.

The scheduled offences are enumerated in the schedule given in the Act. The schedule in the PMLA contains three parts namely Part A, B and C. Offences falling under Part A and C of the schedule will attract the provisions of the PMLA. Offences falling under Part C of the schedule will fall within the ambit of money laundering only if the value involved is more than one crore rupee.

Money laundering is usually not an independent offence. But after 2013 amendment, It is possible to extend the definition of ‘proceeds of crime’ to property used in the commission of an offence. It is, therefore, possible to treat money laundering as a ‘stand-alone’ offence, dehors, a scheduled offence, if circumstances warrant.[5]

Schedule of offences

Some of the offences given in the schedule which attract the provisions of PMLA are as follow:-

• Part A enlists offences under various acts such as : Indian Penal Code, 1860, Narcotics Drugs and Psychotropic Substances Act, 1985, Prevention of Corruption Act, 1988, SEBI, Customs Act, 1955, Foreigners Act, Arms Act, Antiquities and Art Treasures Act, Copyright Act, 1957, Trademark Act,1999, Wildlife Protection Act, 1872, Information Technology Act, 2000 etc.
• Part B offences (offence under the Customs Act), provided the value of property involved is more than one crore rupees or more;
• Part C deals with trans-border crimes and reflects the commitment to tackle Money Laundering across International Boundaries.

Punishment for money laundering

Money laundering is a cognizable and non-bailable offence. As per section 4 of the Act, offence of money laundering is punishable with rigorous imprisonment for a term varying from three years to seven years and with fine also. If the offence falls within Part B of the Schedule, then maximum punishment may extend to ten years.

Apart from imprisonment and fine, the property obtained by proceeds of crime will be attached provisionally during the investigation or permanently after conviction.

Investigation of offence under PMLA

The offence of money laundering is connected with scheduled offences. Under PMLA two parallel investigations are carried out, one for money laundering and the other for scheduled offences.

Investigation Agency

The Enforcement Directorate in the Department of Revenue, Ministry of Finance is empowered to investigate the offence of money laundering under the PMLA. The scheduled offences are investigated separately by the authorities mentioned under those Acts.

Investigation of money laundering case begins with registration of Enforcement Case Information Report (ECIR) by the Enforcement Directorate.

Powers of Investigation Officer

The investigation authority has the power to survey, search a place or person and seize or freeze any record or property. The Director or any other officer authorized by the Central Government may also arrest a person accused of money laundering. As the offence is cognizable, an arrest may be made without a warrant.

The Director, Additional Director, Joint Director, Deputy Director or Assistant Director of the Enforcement  Directorate has the power to summon any person whose attendance he considers necessary whether to give evidence or to produce any records during the course of any investigation or proceeding under this Act. [6]

Power to provisionally attach the property which arises out of proceeds of crime is also there.

Provisional attachment of property

The Director or any other officer not below the rank of Deputy Director authorized by the Director may, by order in writing, provisionally attach the property obtained from proceeds of crime up to a period of 180 days.

For attaching such property the officer must have reason to believe, on the basis of material under his possession, that

(a) any person is in possession of any proceeds of crime; and

(b) such proceeds of crime are likely to be concealed, transferred or dealt with in any manner which may result in frustrating any proceedings relating to confiscation of such proceeds of crime.[7]

For the purpose of attaching the property, it is not necessary that such property should be in the possession of the person accused of a scheduled offence.

Order for attachment of property can be made only after:-

A report has been forwarded to a Magistrate under section 173 of the Code of Criminal Procedure, 1973, or

A complaint has been filed by a person authorised to investigate the offence mentioned in that Schedule, before a Magistrate or court for taking cognizance of the scheduled offence, or

A similar report or complaint has been made or filed under the corresponding law of any other country. [8]

If there is no such complaint or report, even then the property may be attached. For this, the Director or any other officer not below the rank of Deputy Director authorised by him for the purposes of this section must have reason to believe (the reasons for such belief to be recorded in writing), on the basis of material in his possession, that the non-attachment of the property is likely to frustrate any proceeding under this Act. [9]

After the attachment, the Director or any other officer has to file a complaint stating the facts of such attachment before the Adjudicating Authority established under the Act.[10]

Adjudication Authority

On receipt of a complaint or applications for seizure or freezing, if the Adjudicating Authority has reason to believe that any person has committed an offence of money laundering, it may serve a notice on such person. The authority calls upon him to indicate the sources of his income, earning or assets, out of which or by means of which he has acquired the property attached, the evidence on which he relies and other relevant information and particulars. The Authority asks him to show cause why all or any of such properties should not be declared to be the properties involved in money-laundering and confiscated by the Central Government.[11]

The Adjudicating Authority shall, after—

(a) Considering the reply;

(b) Hearing the aggrieved person and the Director or any other officer authorized by him in this behalf; and

(c) Taking into account all relevant materials placed on record before it,

by an order, record a finding whether all or any of the properties referred to in the notice are involved in money-laundering. [12]

The Adjudicating Authority has powers similar to a civil court under the Code of Civil Procedure in relation to discovery, inspection, compelling the attendance of any person and production of any record.[13]But, the procedures for adjudication is guided by principles of natural justice, not by the Civil Procedure Code.

Appellate Tribunal

Orders of the Adjudicating Authority and any other authorities can be appealed to an Appellate Tribunal established under the Act. On receipt of an appeal, the Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders as it thinks fit, confirming, modifying or setting aside the order appealed against.[14]

The Adjudicating Authority and the Appellate Tribunal have power only in relation of questions of continuation of attachment and/or retention of the property involved in money laundering and not the trial of the offence of money laundering or the scheduled offence.

Provisions for bail in case of arrest under PMLA

Section 45 of the PMLA deals with provisions of bail. As per this section, a person arrested for an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule shall be released on bail or on his own bond unless:-

(i) The Public Prosecutor has been given an opportunity to oppose the application for such release; and

(ii) Where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

The Supreme Court has held these twin conditions for bail to be unconstitutional as it violates Article 14 and 21 of the constitution. [15] Now, the bail is granted as per the provisions of the CrPC.

Trial by special courts

For deciding the offence of money laundering and scheduled offences expeditiously, trials for both (money laundering and scheduled offence) are conducted by Special Courts. The Central Government, in consultation with the Chief Justice of the High Court, designates one or more Courts of Sessions as Special Courts.[16]

The trial is conducted in accordance with the provisions of the Code of Criminal Procedure, 1973. Both the cases are independently tried by the same Special Court and decided on the basis of evidence for each case.[17]

Presumptions and burden of proof

Money laundering being a complex case to investigate, the provisions of the PMLA make a departure from the well-established principle of presumption of innocence till proven guilty. 

Burden of proof on the accused

The burden of proof in any proceeding relating to proceeds of crime is upon the person charged with the offence of money laundering, and in the case of any other person i.e. a person not charged with such offence, the Court may presume that such proceeds are involved in money laundering. [18]

Presumption as to records and property

Where any records or property are found in the possession any person in the course of a survey or a search, it is presumed that—

(i) Such records or property belong or belongs to such person;

(ii) The contents of such records are true, and

(iii) The signature and every other part of such records which purport to be in the handwriting of any particular person are in that person’s handwriting.[19]

Presumption in inter-connected transactions

Where money-laundering involves two or more inter-connected transactions and one or more such transactions are proved to be involved in money-laundering, then for the purposes of adjudication or confiscation it is presumed that the remaining transactions form part of such interconnected transactions.[20]

Anti Money Laundering laws in India

The PMLA is only a curative legislation, not a preventive one. Prevention of money laundering can be done only by a full-fledged Anti Money Laundering (AML) compliance by banking companies, financial institution and intermediaries.

For having a comprehensive view of AML compliance, see this blog.

The AML compliance in India has a lacuna in the form that it ensure compliance for foreign PEPs only. PEPs are politically exposed persons who are or have been entrusted with prominent public functions in a foreign country, e.g., Heads of States or of Governments, senior politicians, senior government/judicial/military officers, senior executives of state-owned corporations, important political party officials, etc. Domestic PEPs, their family members and close associates are not in the ambit of AML compliance.

Culpability of the family members of the offender

In the Act, the word “family members” has not been used. But, under Section 3 of the Act, the kind of persons responsible for money laundering is extremely wide. Words such as “whosoever”, “directly or indirectly” and “attempts to indulge” would show that all persons who are even remotely involved in this offence are sought to be roped in.

Owing to their proximity and position, the family members and close associates of an offender are a vulnerable group. They can easily be charged, prosecuted and their property which is suspected of being obtained from proceeds of crime can be attached, seized or frozen. If the Director or other officer has reason to believe their involvement, they can be arrested.  They can be convicted of the offence of money laundering even if they have not committed any scheduled offence.

Currently, the trend followed by the Enforcement Directorate is to frame family members and close associates of the offender in the ECIR.(See [21],[22])  

Earlier for provisional attachment of the property, the concerned officer must have had reason to believe that such person has been charged with having committed a scheduled offence.But after the amendment of section 5 of the Act in 2012, it is now no longer necessary that the person who is in possession of the property alleged to be proceeds of crime must also be charged with a scheduled offence.

Conclusion

Money laundering is a serious crime. It affects not only the economy of a nation but also threatens its integrity and sovereignty. It can be termed as “economic terrorism”. Unfortunately, the PMLA contains the same flawed provisions as various anti-terror laws have. Reverse burden of proof, the presumption of guilt before the charge is proved, compulsion on witnesses to make truthful statements are the clauses which militate against the principle of natural justice, rule of law and due process. Non-inclusion domestic PEPs, their family members and close associate under the scanner of AML compliance reflects poorly on the Government’s commitment to prevent money laundering. The framing of family members with the accused creates additional hardship for the accused. Half-baked preventive measures coupled with overzealous punitive measures have been the features of India’s fight against money laundering.  The Supreme Court’s decision of striking down section 45 of the Act is a welcome move. Let’s see when the court applies the constitutional test to the other problematic provisions.

References

[1] https://indiankanoon.org/doc/193896994/

[2]https://www.investopedia.com/terms/m/moneylaundering.asp#ixzz56Ve132Bf

[3] Section 3, The Prevention of Money Laundering Act, 2002

[4] Section 2(u) The Prevention of Money Laundering Act, 2002

[5]K. Sowbaghya Vs. Union of India, Ministry of Finance, North Block Department of Revenue and Others (https://www.legalcrystal.com/case/1177308/k-sowbaghya-vs-ministry-department)

[6] Section 50(2), The Prevention of Money Laundering Act, 2002

[7] Section 5(1), The Prevention of Money Laundering Act, 2002

[8] Proviso 1 section 5(1), The Prevention of Money Laundering Act, 2002

[9] Proviso 2 section 5(1), The Prevention of Money Laundering Act, 2002

[10] Section 5(5), The Prevention of Money Laundering Act, 2002

[11] Section 8(1), The Prevention of Money Laundering Act, 2002

[12] Section 8(2), The Prevention of Money Laundering Act, 2002

[13] Section 11, The Prevention of Money Laundering Act, 2002

[14] Section 26(4), The Prevention of Money Laundering Act, 2002

[15]http://sci.gov.in/supremecourt/2017/13393/13393_2017_Judgement_23-Nov-2017.pdf

[16] section 43(1)The Prevention of Money Laundering Act, 2002

[17]http://www.mondaq.com/india/x/589978/Money+Laundering/All+You+Need+To+Know+About+The+Law+Relating+To+MoneyLaundering+In+India

[18] Section 22, The Prevention of Money Laundering Act, 2002

[19] Section 23, The Prevention of Money Laundering Act, 2002

[20] Section 24, The Prevention of Money Laundering Act, 2002

[21][http://www.thehindu.com/news/national/other-states/ed-registers-money-laundering-case-against-lalu-prasad-family/article19370449.ece

[22]http://www.thehindu.com/todays-paper/tp-national/ED-summons-Qureshi-family-in-money-laundering-case/article15802580.ece

 

In this article, Prathiksha Ravi, a law graduate from Institute of Law, Nirma University discusses the rehabilitation schemes for Naxalites

Introduction

Naxalites are members of the Communist Party of India (Marxist-Leninist) fraction. The name ‘Naxalite’ had its origins in the Naxalbari incident where the party first rose in revolt. 

The term ‘Naxalite’ in order to check for eligibility is loosely defined as any member who takes part in the violent armed struggle advocating Maoist Communism.

Rehabilitation Schemes for Naxalites

Rehabilitation of surrendered members of extremist groups is considered as an ‘acceptable and peaceful’ solution which helps promote peace and development in affected areas.[1] To bring Naxalites into mainstream society, each State has their own rehabilitation and surrender policy.[2]

Guidelines on Surrender-cum-Rehabilitation Policy

What is the scheme about?

In order to facilitate the surrender and the rehabilitation of Naxalites, the central Government has issued guidelines to be followed in the case of Surrender and Rehabilitation of Naxalites in Naxal affected areas. The Objectives of the scheme are:

1. To discourage misguided youth and the removal of hardcore Naxalites who find themselves trapped in the net of the Naxal Movement.
2. To ensure those who surrender do not join the Naxal movement again.

Eligibility under the scheme

To be eligible for the benefits of the scheme, one must fall under these conditions

1. Naxalites who have surrendered with or without arms
2. They should be cleared after the scrutiny done by the Screening/Rehabilitation Committee which is set up by the respective governments.

Benefits of the scheme

1. Training in a trade/vocation will be given as per their aptitude.
2. They will receive a payment of Rs. 2000/- for 2 years. If and when the individual gets an employment, the monthly stipend will end.
3. Immediate Grant of Rs. 1.5 lakh will be kept in the bank as a fixed deposit. The individual under the scheme will be eligible to withdraw the money on completion of three years.
4. The amount will not be given in the case where the individual secures a job with the government.
5. There are additional incentives for the surrendering of weapons which will also be in the form of a fixed deposit which will be given after the completion of three years and on good behaviour.

How to apply?

Based on the eligibility criteria, any individual who comes under the definition of a “Naxalite Cadre” can apply for Surrender-cum-Rehabilitation. The following steps must be followed:

1. Any member of the Naxal Movement can ‘surrender’ themselves in front anyone in the post of “officer” (includes DGP/IG, District Magistrate, SP, or any other notified officer). They will submit their application for surrender-cum-rehabilitation to the Screening Committee
2. The Screening Committee will comprise of a Surrender and Rehabilitation Officer (mostly an ADG/IG of Special Branch/CID) and nodal officers (appointed by Central Para Military Force, State Police or State Administration) who will be in charge of the process.
3. The officer will provide immediate security to the surrendered militant.
4. After getting the necessary form filled, the surrendered militant will be sent to a transit camp maintained by the S&R Officer.
5. The acceptance or rejection of the surrender cum rehabilitation for the militant must be done within 15 days from the time of surrender.

The screening process will also include the following –

Naxalite who surrendered must satisfy two conditions –

1. He must be a hardcore, underground Naxalite who is of the rank ‘dalam’ member and higher. (Any other rank below this shall be considered on case-to-case basis.)
2. The authority must determine if the individual is a genuine Naxalite. Naxalite must clearly confess his crimes including the naming of others part of the plan and details of the organisation which shall be verified by the Officer.

Heinous crimes such as murder committed by the surrendered Naxal shall continue in the courts. Plea bargaining can be allowed for minor offences.

Enforceability of the scheme

The Naxalite movement came into existence due to the result of prevailing social and economic issues. All the regions in which the Naxal movement took hold are the ones with alarmingly high levels of poverty. Each State has formulated Guidelines for the surrender of Naxals based on the Centre’s ground rules.

Salient features of rehabilitation schemes by Naxal affected States

There are three methods by which states have responded to the Naxalite problem.

• Security responses – which include the surrender cum rehabilitation policy among others
• Political Responses – includes the necessity to have talks between the government and the extremist groups
• Development Responses – includes the development of roads and basic infrastructure in parts affected by the Naxal Violence

Issues Related to Rehabilitation Schemes for Naxalites

“97% of the Naxal surrenders received by the Chhattisgarh Government did not adhere to the definition of Naxal cadre and were not eligible for benefits under the Central / State Government’s Rehabilitation Policy” – The Indian Express, January 2017[3]

Central and State Governments have introduced various guidelines and policies for the surrender and rehabilitation of members of extremist groups. Though the said policy has been declared as “successful” in some states, it has failed to create a lasting effect in others.

Problems that the Rehabilitation Schemes for Naxalites faces are:

States have been authorized to pay the reward amount as and when the Naxalite surrenders.

As per the guidelines of surrender-cum-rehabilitation, the States are required to pay an amount decided as a ‘reward’ for surrendering – this has not been done in many states[4]

Many surrendered individuals do not take up the land / financial assistance due to:

• Fear of retribution from current Naxal cadres
• Not enough experience/ investment opportunities
  

  Tactical Surrenders

In certain cases, individuals who make use of this scheme for furthering their own vested interests, surrender to enjoy its benefits.

Success Stories

• In Bastar, Chhattisgarh, due to the policy of ‘Our Bastar, Our Police’, many former Naxal cadres are surrendering before the Deputy Superintendent of Police. They are given Rs. 10,000/- as ‘encouragement money’ and are rehabilitated according to the policy.
• The Andhra Pradesh Model for combating Naxalism has been successful not only because of military/police upmanship but also due to development in Naxal violence-affected areas and rehabilitation schemes for Naxalites.[5]
• The number of surrenders has increased dramatically over the years throughout the country.

Year	2014	2015	2016
Number of Left-Wing Extremists cadres surrendered in the country	676	570	1442

Source: Surrender by LWE cadres in India (M. Government of India 2017)

Conclusion

The Naxalite Movement is a revolutionary movement aimed at overthrowing the capitalist bourgeois through an armed struggle to achieve equal status. These far-left radicals are outlawed and termed as the single biggest threat to internal security of India. The government in order to discourage misguided youth and bring hardcore militants to the mainstream, have introduced surrender-cum-rehabilitation schemes.

Know more about the Scheme – Contact Information

State	Contact Information
Odisha	Sri Santosh Kumar Upadhyay, ADG, CID, CB 0671-2304834 (O) 0674-2532123 (R) 0671-2304659 (FAX) Email:[email protected] For further contact information, click here
Jharkhand	Sri P.R.K Naidu, ADGP (0651)-2281530 (O) 9431172045 (M) For further contact information, click here
Bihar	Sri Vinay Kumar, ADG, CID (612)-2217938 (O) 8986912802 (Mobile) For further contact information, click here
Andhra Pradesh	DG and IG, A.P Police (0863)-2340445 (O) For further contact information, click here
Chhattisgarh	Sri A.N.Upadhyay DGP Chhattisgarh, 2211201 (O) For further contact information, click here
Madhya Pradesh	Sri. Rishi Kumar Shukla (0755)-2443500 (O) Email: [email protected] For further contact information: click here
Maharashtra	ADGP, CID Sri. Sanjay Kumar (020)-25638446 For further contact information, click here
West Bengal	Sri Sanjoy Mukherjee, ADGP CID, (033)24791330 (O) For further contact information, click here

References

[1] Guidelines for Surrender-cum-Rehabilitation of Naxalites in the Naxal affected States, Ipleaders Blog, https://blog.ipleaders.in/naxalites-surrender-mha/ [Date of Visit: 09/02/2018 Time of Visit: 3:00 pm IST]

[2] Naxals Surrender and Rehabilitation Policy, Press Information Bureau, http://pib.nic.in/newsite/PrintRelease.aspx?relid=67973 [Date of Visit: 09/02/2018 Time of Visit: 1:50 pm IST]

[3] Ministry of Home Affairs, Guidelines on Surrender-cum-Rehabilitation of Naxalites on Naxal Affected States

http://mha.gov.in/sites/upload_files/mha/files/surrrenderPolAendments070909_0.pdf [Date of Visit: 09/02/2018 and Time of visit: 4:20 pm IST]

[4] http://www.newindianexpress.com/nation/2017/sep/22/10-naxals-surrender-in-chhattisgarh-1661281.html

[5] The Hindu, ‘Naxal Rehabilitation not a Smooth Affair’

http://www.thehindu.com/todays-paper/tp-national/tp-andhrapradesh/Naxal-rehabilitation-not-a-smooth-affair/article14772910.ece [Date of Visit: 12/02/2018 Time of Visit: 4:10 pm]

In this article, Musaib Khan of KIIT School of law discusses the laws and policies formulated for the homeless in India.

Introduction

According to the census report of 2011, approximately 13.75 million households or approximately 65-70 million people reside in urban slums. The central idea revolving around the article is to provide the laws and redressal methods available for redressing the issue of homelessness in India. [i]

Duty of the Government’s to provide shelter to its citizen under the Constitution of India

Fundamental Rights under the Constitution of India which guarantees the protection of the right to adequate housing

1. Article 21: Right to protection of life and personal liberty. In the pavement dwellers case (Oliga Tellis v. Bombay Municipal Corporation), the apex court held that Article 21 of Constitution gives the right to life and gave wide meaning as, “It does not mean merely that life cannot be extinguished or taken away as, for e.g., by imposition and execution of death sentence, except according to procedure established by law.
2. Article 14 and Article 19: The apex court has included Article 14, 19 and 21 and recognized them as a deciding factor for a dignity of an individual. The states are under an obligation to protect the dignity of an individual by securing a household for the homeless.

Along with the above provisions, Constitution also provides for the following safeguards to homeless people

1. Article 39 (1): State policy to be directed in order to secure for both men and women, equal right to an adequate means of livelihood.
2. Article 42: Provisions to be made by the State for securing just and humane conditions of work and for maternity relief.
3. Article 47: Duty of the State to raise the level of nutrition and the standard of living and to improve public health.

The apex court orders in favour of the homeless – PUCL v. Union of India and Others

The much alarming issue of the homelessness was brought to the notice of the Supreme Court in the ‘right to food case’ in the year 2010 (PUCL v. Union of India and Others).[ii]. This led to the passing of an order by the apex court of the country to meet the essential need of the urban homeless to the ratio of at least 1 shelter per 100,000 population at every major urban area. The order of the court also stated that the shelter homes should remain functional for 365 days and 24*7, and shouldn’t be available only for a particular season.

Deendayal Antyodaya Yojana – National Urban Livelihoods Mission

1. The aspects of the evil existing in our society i.e., urban poverty can be broadly classified into three brackets:
2. Residential vulnerability (access to the basic amenities like land, water, food, etc.);
3. Social vulnerability (deprivations related to factors like gender, age, and social stratification, lack of social protection, inadequate voice and participation in governance structures, etc.) and
4. Occupational vulnerability (uncertain livelihoods, dependence on informal sector for employment and earnings, uncertain job security, unfit working conditions, etc.).
5. These vulnerabilities are connected to each other somehow i.e. they are interrelated. The recent observation of the apex court has brought into limelight the difficulties and the plight which is being faced by the urban homeless and has also thrown a light by declaring that providing dignified shelters and the right associated with is a very important element under ‘Right to life’ i.e., Article 21 of the Indian constitution which calls for a fastrack need to evolve policy and programmes for the urban homeless.[iii]
6. The Ministry of Housing and Urban Poverty Alleviation (MHUPA) has implemented a scheme which has been sponsored centrally i.e., Swarna Jayanti Shahari Rozgar Yojana (SJSRY) since 1997 which has been reconstituted as Deendayal Antyodaya Yojana – National Urban Livelihoods Mission since September 2013. The NULM since September 24, 2013, has been implemented in all district headquarters (irrespective of the population) and all the cities with a population of 1 lakh or more. [v]

NULM (National Urban Livelihoods Mission)

• According to the latest official data, merely 658 shelters have been created since the launch of the Shelter for Homeless programme under the National Urban Livelihood Mission (NULM) in 2013.
• These shelters across the country cater to a total homeless population of 35,000. This does not even amount to five percent of the total urban homeless population of 9.38 lakh.[vi]
• There are only 658 shelters in 18 states. Of these, states such as West Bengal, Uttarakhand, Punjab, Odisha, Gujarat, and Chhattisgarh hold a poor record of creating between one to five shelters each.
• There is also the underlying prejudice that looks at the homeless as migrants who need not be provided for. While the Pradhan Mantri Awas Yojana (PMAY) has been expanded to include even the middle classes, little is being done to resolve the issue of homelessness.

Types of shelters under the NULM Scheme

1. Men shelters: As the men in number are higher and hence shelters for single men should be built to cater to their needs.
2. Women shelters: In order to secure the homeless women and their children, such shelter homes should be built.
3. Family shelters: Separate family shelters with adequate privacy and separate rooms should be provided.
4. Special shelters: It shall cater to the special needs of the persons such as old persons without care, mentally ill, sick persons, recovering patients and their families and other special circumstances.

You may contact one of these if you want to avail the services of a shelter house under the NULM Scheme

• Homeless persons’ collectives –

An example is Aashray Adhikar Abhiyan, S-442, II Floor, School Block Shakarpur, New Delhi, 9312668807

• Youth and Women’s community-based groups-

An example is Humana People to People India, 111/9-Z, Kishangarh, Aruna Asaf Ali Marg, Vasant Kunj, New Delhi,011-4746-2222

• Universities and Institutions,

An example is Nehru Yuva Kendras. Core – IV, IInd Floor, Scope Minar, Laxmi Nagar District Centre, Delhi, 91-11-22446070

• NGOs and CSOs registered under the Societies Registration Act, 1860 and Trust Acts or other similar laws of the State Governments

Example, DAYA, HIG 3/138 Satyasai Enclave, Khandagiri, Bhubaneswar, 94383 39180

• Self Help Groups and committees recognized by the State govt/ Urban Self Governments-

Example, Rehab India Foundation, N-44, Ground Floor, Hilal Homes,2nd Stage, Abul Fazal Enclave, Jamia Nagar, Okhla, 91-11-29946637

• Resident Welfare Associations –

Example, Nihal Vihar Resident Welfare Association, RZ-C-60 ,, Nihal Vihar, Nangloi, Delhi,  091364 01932

List of few NGOs looking after homeless

S.no.	Name of NGO	Address	Contact number	E-mail address
1	Urja trust	C/o,129/A, Lattif Villa Compound, near Ranjit Film Studio, Dada Saheb Falke Road,, Dadar (E), Mumbai – 400014	981980626	[email protected]
2.	Akshay trust	9, West Main Street                                                                                        Doak Nagar Extension                                                                                Madurai — 625 016, INDIA	9843319933	http://www.akshayatrust.org/contactus.php
3.	Uday foundation	113A/1, Adchini, Sri Aurobindo Marg, New Delhi 110017	9126561444	[email protected]
4.	Fuel a Dream	No 126, 4th Floor, KHB Colony, 5th Block, Koramangala, Bangalore, 560095 Karnataka India	973900409	[email protected]
5.	Goonj	J-93, Sarita Vihar, New Delhi-76	011-26972351,41401216	[email protected]
6.	Butterflies	U-4, Green Park Extension, New Delhi	+91-11- 46471000	[email protected]
7.	Calcutta Rescue	4th Floor, 85 Collin Street, Kolkata 700 016, Nearest Metro Park Street	+91(0)33 4064827	[email protected]
8.	Hope Kolkata	39, Panditya Place, Kolkata – 700029. West Bengal, India Tel:913324742904	Tel: +91 33 24742904	[email protected]
9.	Good life centre	7-B Loganathan Street, (Near Vidya Theatre), West Tambaram, Chennai – 600045, India	94449 94151	[email protected]
10.	DAYA	HIG 3/138 Satyasai Enclave, Khandagiri Bhubaneswar	94383 39180	[email protected]

Criticism of NULM Scheme

The main criticism which NULM has is that this policy’s approach to the problem of homelessness has always been to provide the homeless individual a ‘temporary’ shelter. It has so far not addressed as to how to render the homeless people any such kind of scheme which would entitle them to possess a permanent dwelling of their own with basic living standard entities. Bilal, 80, came to India from Pakistan 25 years ago. He is now a regular in one of the rain baseras (night shelters) near Nizamuddin.[viii]

So far in India, no such law or policy or order has come out which has tried to ensure homeless people has access to medium- and long-term housing options. They are not, for example, included in the Housing for All Scheme.[ix]

Initiative by State government

The ongoing litigation regarding the PIL in the Supreme court of India (E.R. Kumar v. Union of India and Ors.) where the apex court has directed the States to file an affidavit regarding the status of the homeless person in their States. Many states have started complying and have started building shelter homes and rain baseras for the homeless but still, there are many states who haven’t yet complied with the directions of the apex court.

Criminalisation of Homelessness

Homeless people live in extreme insecurity, not knowing when they will be beaten by the police or arrested or implicated in false cases. Homelessness is liable to be punished under certain laws prevalent in India. Begging has been criminalized in 20 States and 2 Union Territories which shows the approach of the social embarrassment towards poverty and the encroachment of public spaces. The legislation allows the police officials and judges to confine them in government-run institutions which clearly violates their fundamental principles. You can read more about begging laws through this link.

State law compiled on homelessness

Leilani Farha- A special report

United Nations (UN) Special Rapporteur on the Right to Adequate Housing, Leilani Farha had visited India in April, 2016 and has recommended strongly that the Indian policymakers should gear up and frame and implement a policy completely based on human rights and that policy should be a housing policy targeting the people living on the streets and slums in order to eradicate poverty and inequality.

Case study- E. R. Kumar and Anr. v. Union of India and Ors.[x]

1. This is an ongoing case in the Supreme court of India regarding homelessness in India.
2. The court had directed the Secretary/ Administrator of the State/ Union territories to file an affidavit as to the implementation of this particular scheme which was forwarded to the Chief Secretary/ Administrator to file a collective affidavit and meanwhile it was ordered by the court to the Ministry of Housing and Urban Poverty Alleviation to find out ways to achieve the objectives of the policy.
3. The court had formed an Executive Committee to be constituted under the chairpersonship of the Secretary, Ministry of Housing and Urban Poverty Alleviation which shall work towards the smooth functioning of the different plans, schemes and different departments in order to function the policy smoothly.
4. The Hon’ble court has also ordered for a regular observation of the implementation of this policy. The court has also laid a great emphasis on not only the quantity of the shelter homes but also towards the quality of the shelter homes.
5. The court came down heavily on the States since they were not satisfied with the steps that have been taken by the States/ Union Territories to lessen down the number of homeless people.
6. The PIL was filed in the year 2003 and yet till 2014 the States and UT’s have failed to submit the status report.
7. A committee has been constituted under the guidance of Justice Kailash Gambhir in order to cause physical verification of the shelters, to check whether they are complying with the operational guidelines, allocation/ non-allocation, use and misuse of the funds and also to ensure that time ensured guidelines are being fulfilled so that at least minimum facilities are provided in the winter season.

A bench of Justices Madan B Lokur and Deepak Gupta asked Solicitor General Ranjit Kumar to ensure that the report of the Justice Kailash Gambhir commission is uploaded on the official website of the Ministry of Housing and Urban Poverty Alleviation for perusal and necessary action by the Centre and the states. This has been the latest development in the particular case.

Provisions for the homeless under the international arena

1. Under the Universal Declaration of Human Rights, Article 25 recognizes the right to housing as a necessary condition to assure right to an adequate standard of living.
2. Under the International Covenant on Economic, Social, Cultural Rights, Article 11(1) also guarantees the same standard of living for assuring adequate standard of living.

In the wake of the alarming issue of the homeless people, surviving on the streets, roads, footpaths for the entire year and where our government despite strict orders and instructions issued by the apex court since years has not taken enough measures to culminate the evil existing in our country. This has led to a serious exploitation of human rights involving child abuse, sexual exploitation, right to life with dignity, etc. Though a policy has been framed which has come under the watch of the Supreme Court which has issued orders and directions to the State governments and Union territories but yet the action by them has been very slow. The call of the hour is a national level policy should be framed that should target towards providing permanent dwelling to the homeless people unlike the current target of just providing a temporary shelter to the homeless people.

________________________________________________________________

References

[i]  http://hlrn.org.in/homelessness.

[ii] PUCL v. Union of India and Others, W. P. (C) 196/ 2001.

[iii] http://nulm.gov.in/PDF/NULM_Mission/NULM_mission_document.pdf.

[iv] Ibid.

[v]http://vikaspedia.in/social-welfare/urban-poverty-alleviation-1/schemes-urban-poverty-alleviation/nulm.

[vi] SC asks govt to upload the report on shelter for urban homeless, 2nd May 2017, The Indian Express.

[vii] http://www.iasparliament.com/current-affairs/dealing-with-homelessness.

[viii] India must ensure that homeless people have access to housing options, 20th August 2016, Hindustan Times.

[ix] Ibid.

[x] W.P. (C) 55/2003.

 

In this article, Sheetal Sharma of KIIT law school discusses how to report instances of racial discrimination at temple, markets, shops, office, university and other social places.

“Some people carry their honour in a flag,

And of their nationality they brag.

They feel superior and they differentiate,

And against those who are different they discriminate.”

– Francis Duggan

Introduction

In India, racial discrimination has a long history. People from the very ancient time was being discriminated on the basis of caste and race, who are regarded as untouchables till now, in most of the villages of our country. It is not always in regard to the colour but, based on any kind of difference which distinguishes them from the rest of the society. Although, India has been recognised as a secular state in the preamble, and follows the slogan of ‘Unity in Diversity’ the same is not followed accordingly. The people from Northeast India are discriminated because they have different looks. Many foreigners have also faced discrimination on the basis of colour especially the people from South Africa.

Whom to report the instances of racial discrimination?

Filing complaint with the police

The person facing discrimination can report the instances to the police directly by the filing of an FIR. The police will then take the necessary actions as provided under Criminal Procedure Code.

How to file a police complaint?

1. If you have been a victim of racial discrimination, you should directly approach the police for this. A criminal case can be filed as per the procedure laid down.
2. First of all, one can file an FIR at the police station about the instances of the crime. The police officer will prepare a detailed document upon the information received.
3. After hearing and noting the information, he can direct you to the District Magistrate for further action.
4. FIR can be filed by the victim himself or anyone who has knowledge of the crime.
5. Filing of FIR requires no charges to be paid. So, any information regarding the offence can be filed with the police.

One can also go to an attorney to know his rights and what are the remedies which he could avail.

Filing complaint with NGO

If police do not take any actions, it can also be filed with an NGO which works for removing such type of issues. It does not charge any fee so, anyone can freely move there for help. Online as well as offline facilities are available for filing complaint. Proper form has to be filled regarding the details of the victim, incident, relief etc. secrecy is maintained by the NGOs so anyone can file a complaint without any fear. Without involving so much legal procedure one can save his time and money.

Some NGOs which work for the discrimination

1. Navsarjan – It is an organization in Gujarat which aims ensure human rights for all. They work to eliminate discrimination on untouchability practices mostly due to cast practices. One can directly contact the phone +917926630872.
2. Dalit Foundation – It is situated in Ahmedabad works to eliminate caste-based discrimination and ensure equality for all. One can contact directly through phone +91-011-51640929 or through fax +91-011-51643982. Email address is [email protected], [email protected]. The information can also be secured through website www.dalitfoundation.org.
3. Indian Institute of Dalit Studies – It is an NGO which identifies the problems of the marginalised society. A complaint can be filed by contacting through phone 011 2625 2082 or by fax +91-1126251808. Mail regarding complaint can be sent to [email protected], [email protected].

Filing complaint with National Human Rights Commission

The complaint can also be filed with State or National Human Rights Commission. They work for violation of any kind of human rights. A detailed procedure has been laid down for filing the complaint. A victim or any person on his behalf can file a complaint.

How can a complaint be filed?

1. It can be filed by post, addressing National Human Rights Commission Manav Adhikar Bhawan Block-C, GPO Complex, INA, New Delhi-110023.
2. Through email, [email protected] (general)/ [email protected] (for complaints). through fax (011) 23386521 or any other mode.
3. One can also contact by phone on the number +91 9810298900. Facility for filing online complaint has also been provided by clicking on the link http://164.100.51.57/HRComplaint/NewHRComplaint.aspx

No fee is charged for filing any complaint. The complaint filed should clearly state the name, age, religion of the victim. It should mention the State or the place where the incident happened and contain the date of the occurrence of the event. After filing of the complaint, the Human Rights Commission inquire about the complaint. The format has been laid down on the website which can be downloaded from the link http://nhrc.nic.in/Documents/Compformat.pdf.

Anti-discriminatory laws and constitutional safeguards

The Constitution of India under Article 14 guarantees right to equality for every citizen of India. Article 15 clearly states that no discrimination should be done on the ground of religion, race, caste, sex or place of birth. Article 16 gives the power to make special reservation for the people of backward classes.

A recent bill introduced by Shashi Tharoor i.e. Anti-Discrimination and Equality Bill 2016, which aims to ensure equal protection against all such discrimination that exists in our society. It basically broadens the scope of discrimination to protect individuals and groups whose rights are being violated on the ground of discrimination. The bill if passed can affect the lives of thousands of people in a positive manner.

The Delhi High Court was asked by the Ministry of Home affairs to regulate and strengthen the laws which deal with racial discrimination. For this, it has been thought to insert new section 153(A) in the Indian Penal Code which punishes for discrimination on the ground of race, colour, caste etc. the scope of this section has been widened and punishes the promotion of disharmony, ill-will or feelings of hatred towards any religious groups and provides for punishment up to three years, or with fine, or both.

Law Commission suggestions regarding hate speech

Law Commission of India in its 267th report has submitted about “hate speech.” According to the Law Commission of India, hate speech incites the public to hatred against a group of persons on the grounds of race, ethnicity, gender, sexual orientation, religious belief. It can be through any word written, spoken or signs or representation. It has also suggested introducing new sections in regard to address such issues.

“Section 153(C) to prohibit incitement leading to hatred on the grounds of religion, caste, sex, place of birth, residence, language, disability or tribe. If any grave threatening words by any means either spoken, written or signs is used and leading to violence shall be punishable with imprisonment which may extend to two years and fine up to INR 5000, or with both.

Section 505(A) deals with intentionally using words or writings or displaying any representation which provokes the use of unlawful violence against the person or group. The punishment extends to one year and/or fine up to 5000, or both”.

International conventions on racial discrimination

The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) is an international human rights treaty which was adopted by the United Nations to eliminate racial discrimination at every level. It widely covers the rights of all the people and tends to eliminate the discrimination on the ground of colour, descent, race and origin.

The state ratifying the convention needs to follow some rules

1. The state should not engage in any act or practice which leads to racial discrimination against any individual or group of person. It should also ensure that the public authorities and the institutions also follow the same.
2. The state should ensure that it does not sponsor, defend or support any kind of racial discrimination either by itself or through any organisations.
3. It should review the policies introduced by any government or local authorities and should amend or repeal any laws which encourage racial discrimination.
4. To take every necessary step to stop racial discrimination by any group or organisation.
5. To safeguard effective and practical protection and provide remedies to the victims of racial discrimination.
6. It should take measures which are necessary so that the victims or disadvantaged groups can avail equal access to the rights, opportunities and freedom.
7. To fight against the preconception of the society regarding racial discrimination and eliminate it through imparting education and information.

Restaurants reserving rights on admission

Most of the restaurants deny entry to the people on the ground of race, caste, religion etc. Even the foreign African tourists are denied to enter inside. They put a sign-board outside their restaurants as ‘Right of Admission Reserved.’ Although under The Civil Rights Act of 1964, restaurants are prohibited from discriminating and denying entry but, there is no expressed provision regarding this. So, restaurant owners easily practice discrimination and make their own rules regarding entry because they are private restaurants and do not come under the purview of the State under Article 12 of the Constitution. So anyway it is legal. But, at the same time, any discriminatory act by the restaurant owners are subject to complaint against any unlawful discrimination practiced by them. They often argue that they serve to a particular class of people and a person with different attire or wearing a chappal can be denied entry because it discomforts other guests.

Education Institution denying you admission? What to do?

It is totally illegal to deny admission on the ground of caste, sex, religion, place of birth, race etc. because it is expressly prohibited under Indian Constitution. If you are denied admission on the ground of above-mentioned, you can file a police complaint as your fundamental rights are violated. After filing FIR, the police can direct your case to the court. You can also file an online complaint with the Education Department and report the instances thereby.

How non-racial are the Indian Workplace?

Workplace consists of people of different cultures, castes, sex etc. There are many instances reported where people admit that they have been a victim of racial discrimination at the workplace. Any employee gets treated in an unfavourable way because of his gender, disability, religion, place of origin etc.

Discrimination faced by the employees

1. When a particular employee is denied certain benefits.
2. Payment of different salaries to equally-qualified employees.
3. Discriminating when giving certain leave.
4. Discrimination while promotion.
5. Excluding potential employees from work.

These are the few examples where employees are discriminated at the workplace. It is illegal to discriminate at the workplace. It has been stated in the Constitution to provide equal opportunity to all. But, the same does not take place. Employers have a duty to promote an environment of anti-discrimination at the workplace and if they are found promoting such kind of instances, they can be held liable.

Temple Mahant and priest not denying you entry stating you belong from a lower caste – What can you do?

This scenario is not new. We have heard of such instances from the very ancient times where people have not been allowed to enter into the temple. The practice is still continuing in modern society. The Scheduled Castes and Scheduled Tribes are considered as untouchables. According to the temple priest, their touch would make the goddess impure. Despite making provisions in the Constitution for abolishing untouchability, it has not been stopped. If such type of instances happens, then the victim can directly go to the police and lodge an FIR because it is a violation of the fundamental right. There are various NGOs who work for the upliftment of the Dalit society and complaints can be filed with them. Further action will be taken against the priest for exercising such kind of practices.

Conclusion

India has been ranked among the highest racist countries of the world. The present scenario is that even our own citizens face discrimination and are frightened to move freely in their own country. There are villages where the people of backward classes are not even allowed to worship their god in the temple as they will make it impure. The question is who gave them the right to exclude other if the Indian Constitution expressly provides equality to all its citizens? This happens because there is no expressed law to deal with racial discrimination. Every year we celebrate Independence day but, are the citizens really free? Its high time to think, unite and work so that no discrimination on the basis of race, culture, place of birth etc. happens. One can immediately approach the police, NGO or Human Rights Commission if faced any kind of discrimination.

References

[1]https://www.youthkiawaaz.com/2017/11/racism-a-normalized-discrimination/

[2]https://www.thebetterindia.com/28598/ipc-amended-punish-racial-discrimination/

[3]https://www.hindustantimes.com/india-news/let-s-talk-about-racism-india-is-open-to-foreigners-if-they-are-white/story-EjiKF6iFgmMZqFYR3hrcLI.html

[4]http://www.livemint.com/Opinion/bECPiwV78UAjtXVh1PzEML/Unpacking-Indian-racism-in-6-notsoeasy-steps.html

[5]https://blogs.economictimes.indiatimes.com/Undertheinfluence/the-reluctant-racist/

[6]http://www.aljazeera.com/indepth/features/2014/02/voices-from-india-northeast-201421811314600858.html

[7]http://www.thehindu.com/opinion/op-ed/lets-stop-pretending-theres-no-racism-in-india/article3466554.ece

[8]http://civilrights.findlaw.com/discrimination/race-discrimination-basics.html

[9]https://lawlex.org/lex-bulletin/the-effects-of-racial-sexual-or-religious-discrimination/8682

[10]http://www.livelaw.in/law-commission-suggests-new-penal-sections-curb-hate-speech/

 

In this article, Vedant Shadangi of KIIT school of law discusses how to report instances of illegal construction.

Introduction

The growth of population day by day has led to an increasing number of constructions, among them few are legal and a large number can be found to be illegal. These illegal constructions are made without any proper authority, nor they have any legal documents of the area to construct. To save their pockets they do not realize to go through all the necessary registration and hence go on making an illegal construction. Other main causes of illegal construction are poverty, urbanization and excess need of housing demands.

Why such construction takes place?

People living in big cities often found housing very costly that why they shift from one area of a city to a different area where they can find cheap housing facilities and in process of finding cheap housing they end themselves settling in an illegal buildings and by doing his not only they put their life in stake rather they put their families live also on stake.

Reporting an illegal construction

1. If there is an illegal construction then, one can go to the municipal corporation of the city and can lodge a complaint with the proper procedure.
2. The municipal corporation will send a notice to the residents/owner of the property.

Process of notice

1. A notice is sent to the person residing in the illegal construction and is given a time period for reply.
2. The person is also provided sufficient time period by the municipal corporation for obtaining a stay order from the court.
3. If no action has been done by the owner then the construction is liable for demolition.
4. The government has also launched an online portal, through which one can file a complaint against illegal construction.
5. A person can also file a complaint with police and can take help for prevention of illegal construction.

Another proper authority

Municipal corporation tribunal has also been set up for resolving the disputes of illegal construction in the city. Its process is faster than courts and one can appeal to the tribunal in the format as prescribed by tribunal rules. For eg. Municipal corporation of Delhi tribunal will look on the matters of demolition/ceiling order which comes under the purview of Section 344, 347 and 349 of the MCD Act.

The authority clause ‘Section 336’

The most important section which needs to be understood is section 336, under which the Commissioner has the power to give sanction or permission to the construction under Delhi Municipal Corporation Act 1957, unless such construction contravenes any of provisions of sub-section 2 of section 336 or the provision of section 340 and if any person fails to follow the orders will result into severe consequences [1]

Sub-section 2 states that the grounds on which the sanction of a building or work may be refused shall be the following, namely:

• If the building or work or the use of the site for the building or work or any of the particulars comprised in the site plan, ground plan, elevation, section or specification if fails to abide by the provisions of any bye-law made in this behalf or of any other law or rule, bye-law or order made under such other law.

• That the notice of sanction does not contain the particulars or is not prepared in accordance with the laws made in this behalf.

• That any information or documents required by the Commissioner under this Act or any bye-laws made thereunder have or have not been duly furnished.

• That in cases falling under section 312, layout plans have not been sanctioned in accordance with section 313.

• that the building or work should have an encroachment on Government land or land vested in the Corporation.

• that the site of the building or work does not about on a street or projected street and that there is no access to such building or work from any such street by a passage or path-way appertaining to such site.

The Commissioner will then communicate the sanction to the person who has given the notice, and where he refuses sanction on any of the grounds specified in sub-section (2) or under section 340 then he will record a brief statement of his reasons for such refusal and communicate the refusal along with the reasons therefor to the person who has given the notice.

The sanction or refusal as aforesaid should be communicated in the manner as stated by the bye-laws made in this behalf.

Evidence required for a valid complaint

Mere complaining of an illegal construction will lead you nowhere unless it is backed by some proof, there are certain requirements for reporting a complaint.

1. One has to provide name, house, aadhar number and photo-id.
2. Documents need to be given to the municipal corporation as an evidence and validating the authenticity of complaint.
3. Necessary other information to be given to municipal corporation relating to the illegal construction.

These requirements are necessary and are taken as a measurement for prevention of false or bogus complaint, and filing only those complains who has a proper reason to report and has necessary evidence, the municipal corporation verifies the documents and then enters the complaint into the file.

Format of a complaint letter

To, Municipal Corporation of (eg.Delhi) (Address where unauthorized construction is going on), (eg.Delhi) – (pin code) Sub:- Complaint Regarding Unauthorized Construction. Respected Sir, I need to bring this information to your notice that unauthorised construction at ________near_________ New Delhi (pin code) is being carried out without any MCD permission because of construction we are not able to sleep at night because the work is being carried out at night also sir, please check out the solution of this problem as construction is being carried in an unauthorised way. Yours Faithfully [name of the complainer]

Checking legality of the property

Before proceeding towards any property one must ensure himself that the property he is checking is legal or not, and in order to know there are certain ways by which one can ascertain that.

1. The first and foremost point is checking the title papers of the property the title will show the legal owner of the property.
2. The second big thing to be noted is a bank approval. There is always a bank approval for legal clearance of the property documents.
3. Mortgage if any, against the property, must be checked with all legal documents.
4. Before proceeding towards any property one must always ask for the sanctioned plan from the builder and should compare it with the actual plan this is done to check if any construction has been made not in accordance with the actual plan.
5. Encumbrance certificate can be issued by sub-registrar office because it is a proof of free ownership and also certifies that the property is free from any legal dues or mortgage.

Result

Illegal construction not only blocks the land  in an illegal manner but also becomes a threat of life for the people living out there, like if an area is declared as a green zone and is not fit for any construction and if any construction is been made there then there can be collapsing of building and loosing of lives. These generally happen because the soil is not appropriate for construction and just in order to build apartments and house people anyhow starts their constructions.

India is currently facing a huge traffic problem, and among various different causes, the main cause which arises here is illegal construction, by having houses beside the road and construction of houses beyond the permissible area not only makes the roads smaller but also results in blocking roads for vehicles thus resulting in traffic.

The municipal authority although has a mechanism for preventing illegal construction, but should come up with such counter-attack plans for this people, that they find it hard to create an escape plan and neither can mislead any law by any unfair means and hence do their construction only by legal means.

In order to register a complaint of illegal construction, one can reach out to these delegated persons

In order to register a complaint one can reach out to these delegated persons.

Hyderabad

Greater Hyderabad Municipal Corporation – http://www.ghmc.gov.in/#                Address – CC Complex Tank Bund Road, Lower Tank Bund, Hyderabad: 500063 Website: www.ghmc.gov.in, Helpline:21111111, Phone No.040-23225397.

Mayor -Sri. Bonthu Rammohan Contact – 040-23262266, 040-23227958 Email-id.- [email protected]

Commissioner – Sri. Dr.B.Janardhan Reddy, IAS. Contact – 040-23224564 Email-id, – commissioner-ghmc@gov

Delhi

Municipal Corporation of Delhi – http://www.mcdonline.gov.in Address –  G-1, Shiv Mandir Marg, Block G, Lajpat Nagar I, Jal Vihar, New Delhi, Delhi 110024 Contact – 084487 22051

Mayor – Mrs. Preeti Aggarwal (North Delhi) Contact – 011-23228301 Email-id. – [email protected]

Commissioner –   Amulya Patnaik Contact – 23490201, 23319661 Email-id. – [email protected]

Bengaluru

Bengaluru – Municipal Corporation of Bengaluru – http://bbmp.gov.in/home Address – BBMP Head office, Corporation circle,Hudson Circle,Bangalore-560002 Contact –  22221188

Mayor – Sri. R Sampath Raj Contact – 080-22975501 Email-id. – [email protected]

Commissioner – T. Suneel Kumar Contact –  080 22942222, 080 22943322 Email-id. – [email protected]

Mumbai

Mumbai – Municipal corporation of Mumbai – http://www.mcgm.gov.in/irj/portal/anonymous Address – Near Dr B.A. Road , Chinchpokli East, Anant Ganpat Pawar Road, Ghodapdeo, Byculla East, Mazgaon, Mumbai, Maharashtra 400027

Mayor –  Vishwanath Mahadeshwar Contact – 9322257751

Commissioner – Dattatray Padsalgikar Contact – 22620826, 22613552 Email-id. – [email protected]

Kolkata

Kolkata –  Municipal corporation of Kolkata –  https://www.kmcgov.in/KMCPortal/jsp/KMCPortalHome1.jsp Address – 5, S.N.Banerjee Road,Kolkata 700 013. Contact – +91 33 2286-1000

Mayor – Sri Sovan Chatterjee, MLA Mayor. Contact – 033-22861211.

Commissioner – Sri Khalil Ahmed, IAS Commissioner Email-id. –  [email protected] Contact – 033-22861234

Chennai

Municipal corporation of Chennai –http://www.chennaicorporation.gov.in/ Address – 5, Anderson Road, Chinna Chembarambakkam, Ayanavaram, Chennai, Tamil Nadu 600023

Mayor – Shri Saidai Duraisamy Mayor Email-id. – [email protected] Contact – 044-25381328

Commissioner -Dr. D. Karthikeyan I.A.S. Email-id. – commissioner@chennaicorporation. gov.in Contact – 044-25381330

 

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References

[1]http://lawmin.nic.in/ld/P-ACT/1957/A1957-66.pdf

https://timesofindia.indiatimes.com/city/mumbai/Want-to-complain-about-illegal-buildings-BMC-wants-evidence/articleshow/26488022.cms

https://www.quora.com/How-do-I-report-illegal-construction-work

http://www.livemint.com/Money/vGwO6ejDP4PKIPTAEP9CLP/Four-ways-to-check-whether-property-is-legal.html