In this article, Astha Mishra discusses Biases of Adultery laws in India.

INTRODUCTION

“Infants have their infancy; adults, adultery.”-David Philip Barash

The law of the land as laid in the Indian Constitution envisages equality before the law and equal protection of the law for its entire citizen that includes both the sexes. Yet the archaic law on adultery as laid in Section 497 is one of the six sections in chapter XX of the IPC, entitled “Of Offences Relating to Marriage” does not adhere to this one fundamental rule.

Under Section 497 of the Indian Penal Code,

“Whoever has sexual intercourse with a person who is and whom he knows, or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case, the wife shall not be punishable as an abettor.”

Adultery is a term that describes any form of mixing of impurity. In other words, if Simranjeet is married to Kuljeet, and Simranjeet has an affair with Rajdeep, then Kuljeet can bring charges against Rajdeep, but Simranjeet will not be charged with the same offence. Although adultery by definition refers to any extramarital incidence of sexual intercourse, the Indian law in its current form criminalizes only one form of adultery.

It is illegal only if a man has sexual intercourse with a woman who is married, and he does not have the consent of the husband of the woman for the sexual activity. The women herself is denied by any agency, and this includes the wife of the adulterer, who can take no action against her husband.

When taken literally, the words of this law state that women are not to be charged with adultery, even when they are willing and equal participants in the act – hence it has been the subject of various debates, with some contesting that it seems to be ‘protecting’ women, and is, therefore, unfair to men. Although, Adultery is a solid ground for divorce under every personal law. Therefore, a husband can seek a divorce from an adulterous wife.

THE INHERENT BIASES

Since time immemorial women have been subjected to the males, as referred in Manusmriti a woman is subjected to her father than to her husband and later in life to his son, thus making her an object under the control of the males. This patriarchal character is still well embedded in our society even in the modern days.

The charges of adultery can be brought only during the subsistence of a legal marriage. The law while criminalizing adultery as a penal offence was not concerned with the ethical, moral or with the sanctity of the institution of marriage rather at the time when it was criminalized in 1860 by the British it was done under the pretext that women were the property of the husband and the husband had complete right to control that property in the ways that best suit their interests. Now examining the reasons behind why the institution of marriage came up in the society, it came into existence as a means to secure a man’s property even after his death, men wanting to retain it( their material property) throughout there lifetime and beyond. It was only possible if they had a check system on the purity of their bloodline and hence ensuring that their property was inherited by the right person.

Further criminal intercourse with married women would lead to adulterate the issues of the children born out of such relationships, thereby burdening the woman’s husband to support and provide for ‘another man’s children’. Hence to maintain the chain of inheritance the purity of the bloodline was necessary and to accomplish that the offence of adultery was criminalized.

Further the framer of the provision looking at the social situation prevailing at that time in the Indian society where women were already on the weaker subjugated side cogitated of not including it as a penal offence.

The Law Commissioners in their Second Report on the Draft Penal Code, however, took a different view, Macaulay view had been that-

“We considered whether it would be advisable to provide a punishment for adultery, and in order to enable ourselves to come to a right conclusion on this subject, we collected facts and opinions from all the three Presidencies. The following positions we consider fully established;

Firstly, that all the existing laws for punishment were at that time inefficient from preventing the husband who usually belongs to the elite class from taking the law into their hands and propounding the judgment.

Secondly, that in a very few instances a person of the high caste and class would resort to the law for bringing the charge on the grounds of adultery in order to protect his honor lastly the husband who have recourse in case of adultery for redress to the court are generally poor men whose wives have run away, that these husbands seldom have any delicate feelings about the intrigue, but think themselves injured by the elopement, that they consider wives as useful members of their small households, that they generally complain not of the wound given to their affections, not of the stain on their honor, but merely as a loss of a menial whom they cannot easily replace, and that generally their principal object is that the women may be sent back. These things being so there is no purpose that the act provides and hence it would be best to include it under the civil offence.”[1] Further, Macaulay was convinced that since polygamy was an everyday affair at that time, the wife was socially conditioned to accept her husband’s adulterous relationship. She neither felt humiliated nor was it a culture shock for her.

Disfavouring the Macaulian perception of adultery but placing heavy reliance upon his remarks on the status of women in India, they concluded:

“While we think that the offence of adultery ought not to be omitted from the Code, we would limit its cognizance to adultery committed with a married woman, and considering that there is much weight in the last remark in Note ‘Q’, regarding the condition of the women in this country, in deference to it, we would render the male offender alone liable to punishment.”[2]

THE FLAWED REASONING

This was the very idea of including the offence of adultery under the penal code, thus leading to the following flaws and loopholes in the law in its applicability with reference to the present times.

1. The law makes it an offence only with regards to the other men who is an outsider in the marriage and the husband can bring the charges against him in the court of law but the wife who is also an active and equal accomplice in the offence is not penalized. Moreover, this provision only punishes a man, therefore, assuming that a woman is incapable of thinking and taking responsibility for her own actions. Another point of this provision that may be worth pointing out is that in cases where a married man indulges in sexual intercourse with an unmarried woman, the man cannot be charged with adultery although his wife and the unmarried woman are helpless victims of his act.

This is essentially saying that if a man’s property is defined by another, the man can punish the offender – the woman here is reduced to mere property. This was reinforced in the case of Sowmithri Vishnu v. Union of India[3] – where Sowmithri, whose lover was prosecuted for adultery, contended that the law was gender biased. Despite being an equal party in the offence, the woman was a ‘victim’- she was exempt from punishment, as a child would be, suggesting that the woman committing adultery is incapable of rational thought and therefore has no agency.

2. Sexual intercourse with a prostitute, unmarried woman or a widow would not fall within this section and hence the husband who is committing infidelity and adultery cannot be charged under the offence since adultery can be committed only with another’s wife thus indicating that a women who is unmarried, prostitute or widow is no one’s property.
3. The charge of adultery can be brought only by the husband and not by the wife.
4. The consent does not have any part in the offence – This also implies that the wife who had consented to an adulterous relationship does not have the freedom to come out of her marriage and make a new life with her new partner even if she is oppressed in her present one. In other words, this suggests that she is brought back to the husband she wants to leave but fails to because the legal statutes, by simply ignoring her will because she is a woman, forces her to stay in a marriage she may not want to remain in.
5. Adultery committed by an Indian woman, across boundaries of language, culture, education and economic status, may often be more a question of seeking security and self-esteem than love or sex beyond the parameters of marriage. It might perhaps be a search for confidence and self-assurance which a boring marriage to an indifferent spouse has destroyed.[4] If the women is below 16 years of age, her consent to such sexual intercourse may also be immaterial and would constitute rape.
6. Section 497 is indeed not to protect the rights of the women.
   • No wife can bring the charge against her husband and his lover. But at the same, the husband can bring the charge against his wife’s lover.[5]
   • The court regarded it as a “legislative packet”[6] designed to “deal with the offence committed by an outsider to the matrimonial unit who invades the peace and privacy of the matrimonial unit and poisons the relationship between the two partners constituting the matrimonial unit… It does not arm the two spouses to hit each other with the weapon of criminal law.”[7] Ultimately, the Court concludes that “even-handed justice” was meted out to both parties.[8]
   • If the husband has sexual intercourse with the wife of some other man, with that man’s consent in that case to the charge of adultery cannot be brought.

Lastly, the section does not even provide any provision or relief which enables the court to hear the women against whom the husband brings charges of having indulged in an extramarital affair. Hence the section was enacted basically for the protection of the rights of the husband. The point is whether intercourse with an unmarried, prostitute and widow makes less of the offence of adultery and hence less guilty of breaching the trust of the wife.

In the present scenario is it reasonable to include adultery as a criminal offence.

The code provides punishment of 5 years imprisonment to the lover of the wife. The fact that the two individuals who are adults with their consents who have indulged in a private activity of intercourse should be penalized.

Crime as has been definedas, A body of rules and statutes that defines conduct prohibited by the government because it threatens and harms public safety and welfare and that establishes punishment to be imposed for the commission of such acts.[9]

As J.S. Mills propounded under the harm principle that any conduct on the part of any individual that hampers threatens the rights of the others in the society should be under state sanction and control. Here the act of the husband or the wife of adultery though leads to the breach of trust of the marriage, the sanctity is dissolved and such an act is not morally permissible in any society yet is not of such a nature that a penal punishment of 5 years is required. Further, the argument that the law leads to deterrence and hence preserve the institution of marriage holds no more good a ground to allow this callous provision to sustain in the present times. One cannot in the present times force two individuals who are adults to live under one roof be happily married when the essence of the marriage is lost.

The last resort principle[10] provides the resort of filing a case for divorce to both husband and wife on the grounds of adultery and since the civil remedy is present, of dissolving the marriage the criminal remedy is not necessary.

CONCLUSION

The 42^nd Law Commission report recommended to include the women under the purview of the law making it gender neutral.[11] In 2003, the Committee on Reforms of the Criminal Justice System [Malimath Committee] published its Report.[12] It maintained support for the Law Commission proposals to not repeal the offence, but to equate liability for the sexes,[13] for it observed: the object of the Section is to preserve the sanctity of marriage. Society abhors marital infidelity. Therefore, there is no reason for not meting out similar treatment to the wife who has sexual intercourse with a man (other than her husband)”.[14] A decade has passed since this Report, but there has been no activity in the Legislature to incorporate its proposals.

Hence the legislators need to decriminalize the section as adultery is no threat to the society. Thus respecting individual’s rights to privacy, equality and right to live with dignity.

Just recently, Justice SN Dhingra of Delhi High Court said :

“ We are living in an era of equality of sexes. The Constitution provides equal treatment to be given irrespective of sex, caste and creed. Does this concept of equality not apply in case of adultery also? Are women a child, baby, an insane or suffers from some other infirmity that anyone can easily take her for a ride? Even if she is highly educated then also she is granted blank cheque of having free sex and not be held liable and face punishment for the same! This is most despicable, to say the least. A crime is a crime.If women can be punished for murder, theft and other offences then why not for adultery also? Time has come when this gross injustice perpetrated on men alone is rectified suitably and necessary amendments be made to Sec. 497 IPC, so as to do away with the irregularities, and in the interest of doctrine of equality.”

References

[1] Macaulay’s Draft Penal Code (1837), Notes, Note Q, pp. 90-93, cited from, Law Commission of India, Forty-second Report: Indian Penal Code (Government of India, 1971), para 20.13.

[2]Second Report on the Draft Indian Penal Code (1847), pp. 134-35, cited from, Law Commission of India, Forty-

second Report: Indian Penal Code, id., p. 365.

[3] Sowmithri Vishnu v. Union of India, (1985) Supp. SCC 137.

[4] Chatterji, A Shoma, The price of adultery, the tribune, Saturday, January 20, 2007.

[5] V. Revathi v. Union of India, (1988) 2 SCC 72.

[6] V Revathi, at para 2-3.

[7] V Revathi, at para 5.

[8] V Revathi, at para 5.

[9] http://legal-dictionary.thefreedictionary.com/Criminal+Law.

[10] Douglas Husak, The Criminal Law as Last Resort, 24(2) OXFORD JOURNAL OF LEGAL STUDIES 207 (2004).

[11] LAW COMMISSION OF INDIA, 41ST REPORT: CODE OF CRIMINAL PROCEDURE, 1898 (1969).

[12] REPORT OF THE COMMITTEE ON REFORMS OF CRIMINAL JUSTICE SYSTEM (2003).

[13] Id.

[14] Id.

In this article, Astha Mishra* of NUSRL Ranchi discusses the right to maintenance of a Muslim Women.

The right to maintenance is available to a Muslim wife under Muslim law even when the wife leaves the society of the husband if it is justified by the circumstances.[1]

In Ameer Ali’s Mohommedan law[2], the right of the wife to maintenance is subject to the condition that she is not ‘refractory’ or does not refuse to live with her husband without reasonable cause.[3]

Moreover, Section 125 Criminal Procedure Code 1973 empowers the Magistrate to order maintenance in favour of Muslim women whose marriage remains intact in law.[4]

Section 125 Criminal Procedure Code, 1973 empowers the Magistrate to order maintenance in favour of women. If the husband neglects or refuses to maintain his wife without any lawful cause, the wife may sue him for maintenance. She may apply for an order for maintenance under Section 125 of the Criminal Procedure Code, in which case the court may order the husband to pay maintenance.

Conditions for Granting Maintenance:

1. The person must have neglected the claimant or refused to pay maintenance.
2. Persons claiming maintenance must be unable to maintain themselves. If a person is healthy, adequately educated or capable of pursuing gainful employment no maintenance is given. Wives and elderly parents are generally given maintenance.

Section 125 of the code of criminal procedure provides a right to seek maintenance to all the woman irrespective of caste, religion and creed. Muslim Woman and her children entitled to maintenance u/s 125 CrPC as Section 3(1)(b) of the Muslim Women (Protection of Right on Divorce) Act, 1986 does not affect such right under Section 125 CrPC. Benefits of Section 125 CrPC is available irrespective of religion and it would be unreasonable, unfair and inequitable to deny this benefit to the children only on the ground of their being born of Muslim parents.[5]

WHEN WIFE HAS LEFT WITH A REASONABLE CAUSE AND THUS MAINTENANCE MUST BE PROVIDED TO HER AND THE CHILDREN

Presumption of disharmony when wife leaves matrimonial home with child

When a young lady with a few months old child is unable to bear the blunt of the matrimonial life in the matrimonial home, she cannot be blamed for living apart. In our Indian condition ladies are generally very tolerant and they always consider the normal quarrels as an ordinary wear and tear of matrimonial life. Only when the solution goes beyond hand the women leave her matrimonial the home.[6]

When the wife is subjected to Cruelty and thus has reasonable ground to desert

A wife can refuse to live with the husband on the ground of his cruelty and still claim maintenance from him.[7] For succeeding the claim of cruelty, the wife must prove two distinct elements,

1. First, ill-treatment complained of, and
2. Secondly, the result and danger of apprehension thereof.

Any conduct of husband which causes disgrace of wife or subject to a course of annoyance and indignity amounts to legal cruelty. The harm apprehended by the wife may be a mental suffering as distinct from bodily harm, because the pain of the mind may be even more severe than bodily pain.[8]In both the cases, the Court held that the behaviour of the husband amounts to cruelty and the wife is entitled to live separately and claim maintenance.

In Shobha Rani v. Madhukar Reddi[9], while dealing with ‘cruelty’ under Section 13(1)(a) of the Act, this Court observed that the said provision does not define ‘cruelty’ and the same could not be defined. The ‘cruelty’ may be mental or physical, intentional or unintentional. If it is physical, the court will have no problem to determine it. It is a question of fact and degree. If it is mental, the problem presents the difficulty. Thereafter, the Bench proceeded to state as follows: –

“First, the enquiry must begin as to the nature of the cruel treatment. Second, the impact of such treatment on the mind of the spouse. Whether it caused a reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.”

The father is responsible for the maintenance of infant children

The father is responsible for the maintenance of infant children. There is no obligation upon the mother to suckle child at the breast. It is the duty of the father to provide a wet-nurse who is to stay with or near the mother. He cannot hire his own wife for the purpose but may hire one of his other wives, if any.

The SC court has been of the opinion that the child has a right to demand maintenance from the father even when they are in the custody of a separated mother or any other person.[10]

Under Islamic law, father is liable to maintain his sons till they attain puberty and daughters till they are married and such obligation cannot be denied on the ground of his pecuniary incapacity or indigence so long as he has the ability to earn and no one shares such obligation. He is bound to maintain even if he is indigent or the children are in the custody of the mother.[11] In Mst. Akhtari Begum v. Abdul Rashid[12] where the rights of a four-year-old child was upheld despite the fact the child was in the custody of the mother.

CONCLUSION

Thus after the Shamim Ara judgement, the Magistrate is bound to provide maintenance to Muslim women even though she approaches the court under the personal law.

* 3rd Year National University of Study and Research in Law, Ranchi

[1] Khurshed Begum v. Abdul Rashid, AIR 1927 Nag. 139 at p. 144: 100 I.C. 169.

[2] Vol.II, 5^th Edn., p.407

[3] Majidakhatoon Bibi v. Peghalu Mouhammad, P.L.D., 1963 Dacca 583 at pp 588, 589.

[4] Shamim Ara v. State of UP(2002) 7 SCC 518; Iqbal Bano v. State of UP JT (2007) 8 SC 648

[5] : (i) Judgment dated 16.04.2014 of the Supreme Court in SLP (Criminal) No. 4377/2012, Shamim Bano Vs. Ashraf Khan. (ii) Noor Saba Khatoon Vs. Mohd. Quasim, (1997) 6 SCC 233.

[6] Fathimath Sahira v. Hakkem, 2010(1) K.L.T.S.N. 89 at p. 89 (C.No.108).

[7] Shabana Bano v. Mohd. Rafiq RLW 2009 (4) Raj. 3158.

[8] 2 Preeti Sharma, Hindu Women‟s Right to maintenance (ed. I, 1990, New Delhi) p. 135. AIR 1984 Kant. 41

[9] (1988) 1 SCC 105.

[10] Mohammad Yusuf v. Zarina 1075 CrLJ 1988; Siddique Sanj v. Parveen 1984 1984 CrLJ 3141; State of Haryana v. Santra (2000) 5 SCC 182.

[11] Baya Bai v. Esmail Ahmad, AIR 1941 Bom 369

[12] Mst. Akhtari Begum v. Abdul Rashid AIR 1937 Lah. 236.

In this article, Sanghamitra Sengupta discusses the legal consequences of overstaying in India.

Entering a country on any visa requires you to leave at some point. Stretching your visit over a period of time can result in a legal fiasco. There are different reasons for one’s visit or stay in India such as education, tourism, employment, internship, business, conference, medication, and transit. Whatever the reason be, just like any other country, India too does not tolerate one’s stay in their country, after their visa has expired.

What is a visa?

• A travel visa is granted by a country to a foreigner visiting the country for a specific period of time. The travel visa authorizes the foreigner’s stay in the country. Every country has different rules, with regard to travel visas.
• For instance, Qatar easily grants a visa on arrival on payment of a small fee which can be charged on the spot on a credit card. Such a system does not involve any tedious procedure before travel journey to a foreign country commences. Some countries which provide a visa on arrival may require you to provide evidence of solvency and hotel booking.
• Some countries like Algeria require a foreigner to apply for a visa long before their travel to the foreign country and even carry an authorization letter from their government.
• Some countries exempt citizens of a particular country from obtaining a visa. For instance, Nepalese do not require a visa to travel to India when traveling from Nepal. Similarly, U.S citizens do not require a visa to stay in Japan for 90 days.

Who needs a Visa to visit/stay in India?

• If you are a foreigner, i.e., not an Indian citizen, you require a visa to travel or stay in India.
• Only citizens of Nepal and Bhutan have been exempted from obtaining a visa to travel to the country. Nationals of Maldives do not require a visa to stay in India for tourism purposes for maximum 90 days.
• One cannot depend on their Indian origin to not obtain a visa to travel to India. The visa must be approved before you travel to India.
• Currently, there are 12 different types of visas offered by India. You can opt for one, as per your type of stay and visit to the country.
• Indian visas are usually granted for a period of 6 months, 1 year, 5 years or 10 years, depending on one’s citizenship, type of visa and fee paid.
• A foreigner can now apply for a visa online by clicking here. An interview may then be conducted where documents required for processing of visa will have to be submitted.  

FRRO Registration

• Every foreigner entering India on a visa that is valid for 180 days or more has to register themselves with the Foreign Regional Registration Office (FRRO), within 14 days of arrival.
• Pakistani nationals have to register with the FRRO within 24 hours of arrival and not 14 days.
• Foreign diplomats, OCI, children aged 16 years and below need not register themselves with the FRRO.
• If a foreigner does not stay in India for 180 continuous days, no registration is required.
• FRRO monitors and regulates the stay of foreigners in the country. A late registration with the FRRO would attract a fine and a lengthy process of explanations and justifications.
• A foreigner may extend his visa if he wishes to do so by seeking permission of the FRRO before the visa expires. Tourist, internship and transit visas cannot be extended.
• A visa is extended only on reasonable grounds, for instance, medical reasons.
• A visa granted by India can be extended at least 60 days prior to the expiry of the visa.
• You must carry your confirmed air ticket, copies of your passport photo, and a photocopy of your passport in order to obtain an extension of visa. Carry extra copies to be on the safer side.
• In case of overstay in India, a foreigner has to obtain an exit visa from the FRRO.

FRRO OFFICES

What is an exit visa?

Exit visas have to be obtained by those who had entered the country without a visa, for instance, a foreigner’s child born in the country and those who have overstayed their visa in the country.

• In order to avoid punishment and imposition of fine, the foreigner is expected to extend the visa if an extended stay is desired or apprehended.
• This is because not extending a visa by approaching the FRRO on time results in overstaying which is a punishable offense in the country.
• Foreigners must submit an application for extension of visa at least 60 days prior to its expiry to the Bureau of Immigration or the FRRO.
• FRRO can condone or regularise overstay up to three months beyond the validity of the visa, excluding tourist visa. However, the grounds of overstay must be reasonable. The FRRO charges an overstayal fee of US$ 30. A fee of US$ 40 is also charged for the extension of visa.  
• No charge is imposed for obtaining an exit visa.
• A foreigner wishing to obtain an exit visa may apply for one online by clicking here. It is a government initiative to digitize the application process, making it easier for foreigners.
• It must be noted that the State Government or Union Territory administration along with FRROS have powers to grant an exit visa to foreigners holding Tourist/X Visas who have overstayed for three months or less. This is subject to no local objection, no LOC, no court case pending, and on payment of fees or penalty.
• FRRO offices are currently present in Delhi, Mumbai, Chennai, Kolkata, Amritsar, Bangalore, and Hyderabad.

Steps to get an exit visa

The process is quite cumbersome and dreadful as it takes days to process an exit visa considering the number of formalities involved. Show up early at the FRRO, to get a chance to produce your documents early. Note down clearly the documents the officer at the FRRO demands from you as you’ll be asked to head back even if one document is missing. To be on the safer side, carry at least 2 copies of all documents required. Make sure all the copies of your personal documents are self-attested. All corporate documents should be attested by a gazetted officer. Lastly, be patient and friendly.

What happens if someone overstays?

• Overstaying in India amounts to a criminal offense and is dealt with seriously. A foreigner who overstays in the country may have to pay a fine, face imprisonment and even be barred from entering the country in the future if the circumstance demands so.
• A fine of 30$ has to be paid for overstaying in India when caught for overstaying.
• Regardless of whether one’s overstay is for a long or short period, the individual will be regarded as an illegal migrant.
• Under Section 14 of the Foreigner’s Act, 1946, a foreign national who overstays his visa will be penalized. This section of the Act provides for penalizing a foreign national who remains in India for a period exceeding the period allowed by the visa. The penalty may extend to an imprisonment term of 5 years along with a monetary fine.

Deportation of a Foreigner for overstaying

Deportation means sending a foreigner back to his country for not abiding by the immigration rules of a particular country. Such a person who faces deportation is not easily allowed to enter the country again. Under the Foreigner’s Act, 1946, the Central Government is empowered to deport a foreigner who has overstayed in India, by virtue of Section 3(2)(c) of the Act. The Central Government has delegated this power to all the state governments and UT administrations too.

In fact, the police also have the power to arrest a foreign national living illegally in India, by virtue of Section 4 of the Passport Act, 1920. According to norms, the police authorities must inform the embassy concerned with the arrested foreigner about his arrest and even offer a visit from an official of the embassy to the arrested foreigner. The Ministry of External Affairs and Ministry of Home Affairs too must be intimated about the arrest.

Legal steps to take when you have overstayed

Stay calm. There are a couple of solutions which will lessen the hassle.

• Reschedule the flight

Often, people realize that their visa expires before their date of departure from India. In such a scenario, they are quite apprehensive about rescheduling their flight owing to increased airfare. But, it’s a wise option to not overstay in the country and reschedule your travel by departing earlier.

• Extend the visa

If your stay is necessary in India beyond the period specified in the visa, approach the FRRO and ask for a visa extension. It is not an easy task as a lot of questions will be directed to you making the process long and tiring. But, this seems to be a straightforward move. The authorities may require a proof of the residence as well for this purpose.

• Request for an exit visa

How to avoid overstaying in India

You must remember that the validity of your visa starts from the day it is issued to you. Most people confuse the validity of their visa to start from the day they have departed for India or have arrived in India. This is a highly erroneous understanding and can land you in problems. It is advised that you make your final travel schedule after obtaining the visa.

Conclusion

Being jailed or snubbed in a foreign country can be an individual’s biggest nightmare. Make sure you follow these guidelines to avoid any legal hassle in your trip.

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This article is written by Deepshikha Sarkar.

Why is a prior art search conducted?

The rise in the number of patents in last decade in India may be attributed to the change in the Indian Patent System on 1st January 2005, which was the day India signed the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement and consequently Sec 25 of the Patents Act 1970 was amended in order to introduce an “integrated system” of both pre-grant and post-grant opposition.

Grounds of Pre-grant opposition

Any person any person, including a third party unrelated to the patent applicant may file an opposition before the grant of a patent (as per Sec 25 of Patents Act 1970).

The Opposing Party may file such an opposition on one or more of the following grounds as enlisted under section 25(1)(a) to (k) of the Patent Amendment Act, 2005:

• Wrongfully obtaining the invention

• Anticipation by prior publication

• Anticipation by prior date, Prior claiming in India

• Prior public knowledge or public use in India

• Obviousness and lack of inventive step

• Nonpatentable subject matter

• Insufficiency of description of the invention

• Non-disclosure of information as per the requirement or providing materially false information by an applicant

• Patent application not filed within 12 months of filing the first application in a convention country

• Non-disclosure/ wrong mention of the source of biological material

• Invention anticipated with regard to traditional knowledge of any community, anywhere in the world.

The grounds mentioned in Sec 25 (c) and (d) talk about the anticipation of prior publication, or prior date claiming in India or prior public knowledge in India. If these grounds are to contend in the Pre Grant Opposition then the Opposing party needs to do a “Prior Art Search” to substantiate his or her claim.

In the case, General Tire And Rubber Company V Firestone Tyre And Rubber Company Ltd Sachs LJ summarized the law in anticipation of prior publication as follows;

“To determine whether a patentee\’s claim has been anticipated by an earlier publication it is necessary to compare the earlier publication with the patentee\’s claim. The earlier publication must, for this purpose, be interpreted as at the date of its publication, having regard to the relevant surrounding circumstances which then existed, and without regard to subsequent events. The patentee\’s claim must similarly be construed as at its own date of publication having regard to the surrounding circumstances then existing. If the earlier publication, so construed, discloses the same device as the device which the patentee by his claim, so construed, asserts that he has invented, the patentee\’s claim has been anticipated, but not otherwise. In such circumstances the patentee is not the true and first inventor of the device and his claimed invention is not new within the terms of section 32(1)(e)\”. This corresponds to s 64(1)(e) of the Indian Patents Act.

For example, Companies may conduct prior art searches for prior art to invalidate intellectual property rights of competitors. The prior art search is also conducted by Patent examiners in the Patent Offices in the course of filings.

In patent opposition proceedings it is crucial to prove that the technology in question was a part of the prior art at the time of the patent application. It needs to be proved that a patented technology is not novel invention and documents proving the same are required.

Publicly Known/Use

Prior public knowledge is a ground for opposition to a patent in India. As the term “public knowledge” suggests, it means known by the public. If a product is already known by people patent cannot be granted for such a product. In Section 25(1)(d) even if a product is imported from outside and people in India do not know about the product but outside India, the product is known then in such a case it would be a ground for rejection of the application of a patent.

However, there is a difference between what is publicly known and what is published. While public knowledge can be a ground for rejection of the patent application, publication of the product without being publicly known cannot be a ground for rejection. Mere publication is not sufficient to establish public knowledge. On the other hand, public knowledge without publication can be a ground for rejection.

The \”publicly known or publicly used\” expression is a ground for the opposition of a patent application. Under the explanation paragraph to s 25(1)(d), importation into India before the priority date of a product made by the patented process would amount to public knowledge or public use, except where such importation was for the purpose of reasonable trial or experiment. While one of the grounds for the revocation of the patent under s 64(1)(e) is that the invention is not new, regard needs to be had as to what was publicly known or publicly used in India before the priority date of the claim or to what was published in India or elsewhere.

There is a stark difference in this section pertaining to, what is ‘publicly known’ and just ‘published’. Just by plain publication, ‘public knowledge’ cannot be established. On the other hand, if something is known publicly it is automatically considered as publicly used even though it is not published in a document.

Prior Art Search

A patent application can be rejected if there exists, a patent of a product or there is a published patent application. Registered as well as published patents or any printed publication which potentially contains patentability of any claim in a patent application everything qualifies as “prior art”. It also needs to be explained as to how the prior art is pertinent. And this proof of pertinency is important not only for disproving lack of novelty or obviousness but also to substantiating other grounds like insufficient description in support of invention.

The filing Opposition may be used as a means to put before a controller printed publications or other information that might not be identified in a routine search during the examination.

The chance of success is dependent upon the strength of the written submissions and the particular matters raised. The Controller may or may not be persuaded that the matters raised affect the patentability of a patent claim.

If the Controller cites the prior art in the Opposition the Applicant has the option of arguing or even amending the specification, in response. As a result, the Controller may altogether refuse the patent claim or grant the patent with narrower claims. This has no concrete effect apart from elongation of the examination process.

To know more about Patents please visit:

Optimizing Your Prior Art Search

STEP 1 – Identifying Keywords

It is important to know the proper keywords to find the relevant information. Common and obvious keywords should be avoided as they would produce a lot of irrelevant results which may render the search impossible.

For example, A search for “mosquito cream” may produce millions of hits. So instead ‘pest repellant’ (what else it is) or  ‘repelling insect’ (what it does) will produce considerably lesser results. Which are still not small numbers but they are likely to be more relevant, so one can usefully start searching here.

The search terms giving best results usually are technical in nature. For example, a search for external devices that pump blood around the human body required the crucial medical term ‘extracorporeal\’. If a person with zero medical knowledge conducted this research then, he would only be able to come across it when examining the results of other keyword searches. Hence it takes quite some number of preliminary searches to find apt keywords and do accurate searches.

STEP 2 –  Patent searching

Patent searching involves two skills

1. To come up with each and every patent document relevant to the Patent application after the patent search.

2. Interpreting these findings in the correct manner,

For many ideas, patent searching will be far more important than product searching.

STEP 3 –  Product searching

For many cases, patent searching will be far more important than product searching. This would be a relevant step as all the products which may be a part of Prior Art or a part of public knowledge may not necessarily be a patented. And hence it would not be found if only a patent search is run.  What are the present products available in the market, is a very important question to answer. Similar ideas and the products which solve the same problem are prior art. One should also of course search offline – in shops, books, periodicals, printed catalogues etc. Experts who have extensive knowledge in a particular field by, say, by having relevant long careers in the field can be the great source of information as their experience is invaluable.

Patent Public Search – Click here for the PDF

How is a prior art search relevant

Such searches may also be a means to prompt the controller to be more careful in considering the question of patentability or any other ground of non-compliance or identification of additional relevant documentation.

If the Opposition containing the prior art contention raises matters such that the Controller has reasonable grounds to believe that the application does not comply with the Patent Act or Patent Rules, the Patent may not be granted at all.

However, a third party\’s participation is limited. The third party\’s submission concerning prior art or protest is acknowledged by the Patent Office but no further information will be given as to action taken. Accordingly, the third party will be required to independently monitor the patent file to determine the outcome. The third party has no right of appeal if the patent is granted.

There might be disclosure of additional prior art, contraventions to Patent Rules and additional grounds for objection may arise because of the submissions. As a result of this mechanism, a third party may publicly dispute the patentability of a patent application.

In this article, Deepshikha Sarkar discusses Standard Essential Patents and FRAND Litigation.

The concept of standard essential patents (SEP) is new in India and gained popularity only after the Microsoft Ericsson dispute. Where the multinational Ericsson brought Indian Micromax to court to enforce its SEP’s.

In order to understand what are “Standard Essential Patents,” one has to first know what is “standard” and “essential” in relation to the term.

What is standard in a SEP?

The meaning of standard in this context is a “technical standard” or more specifically an “industry standard”. They are standards in technology requirements which need to be met to provide so that a product or process, functions in a specific manner.

As per the ISO/IEC Guide 2:2004 (which can be found here) “standard” is defined as “a document, established by consensus and approved by a recognized body, that provides, for common and repeated use, aimed at the achievement of the optimum degree of order in a given context.

Taking into consideration the electronics industry, we can say that in order to manufacture, an ‘industry standard compliant’ mobile phone, tab, etc the manufacturer will have to use certain technologies that are covered by a SEP. In case of the telecom industry: there are two technologies that are SEPs- Code Division Multiple Access (CDMA) and Global System for Mobile Communication (GSM).

How is it determined that a patent is essential to a particular standard?

In simple words, it can be said that a patent can be termed as “essential” to a particular standard when it is not possible to manufacture a product compliant to industry standards set by SSOs without infringement of that patent.

In the case Microsoft Corp. V. Motorola, Inc., Motorola Mobility, Inc., And Gen. Instrument Corp. the Washington District Court held, “A given patent is essential to a standard if use of the standard requires infringement of the patent, even if acceptable alternatives of that patent could have been written into the standard.”

How does a particular patent acquire SEP status?

If for making a product compliant with certain industry standards – a manufacturer needs to use patented technology and it is impossible to manufacture that without infringing the said patented technology, then that patented technology is a Standard essential patent.

Like in the case of smartphones etc, it is not possible to create a standard compliant product without using technologies like CDMA OR GSM.

According to European Telecommunications Standards Institute (ETSI) and its IPR policy (available here) the condition for essentiality is:

“ESSENTIAL” as applied to IPR means that it is not possible on technical (but not commercial) grounds, taking into account normal technical practice and the state of the art generally available at the time of standardization, to make, sell, lease, otherwise dispose of, repair, use or operate EQUIPMENT or METHODS which comply with a STANDARD without infringing that IPR. For the avoidance of doubt in exceptional cases where a STANDARD can only be implemented by technical solutions, all of which are infringements of IPRs, all such IPRs shall be considered ESSENTIAL”

Therefore, Patents that are essential for compliance with industry standards and have been adopted by a Standard Setting Organisation (SSO) are SEPs.

To know more about Patents please visit 

FRAND and SEP

As discussed any patented technology which has to be mandatorily adopted in order to produce a standard compliant product is a Standard Essential Patent (SEP). And although these standards are important for many industries in the modern world they may pose patent licensing issues.

In case there exists a ‘standard’  in the industry then the owner of a SEP will have a superior bargaining power that can be misused by him during licensing in order to earn disproportionate revenues by the virtue of t technology is an industry standard.

In the same manner, any standard setting organization (SSO) may avoid adopting a standard if the owner of the SEP is reluctant in licensing the patent in advance as the level of adoption by the SSO is a determining factor of the SEPs value.

These situations are called patent licensing “holdups”. And probably the only solution to this is the creation of F/RAND – Fair, Reasonable, And Non-Discriminatory terms. These terms are made as requirement by SSOs in order to ensure Fair, Reasonable, And Non-Discriminatory licensing of patents by SSO members to other members and sometimes non-members as well. The FRAND terms ensure a balance between use of the standard by all the manufacturers in the industry and the fair benefits reaped by the SEP owner.

FRAND IN INDIA

The position of the F/RAND litigation in India is relatively new as compared to the European Union and United States. The Supreme Court in India has not yet delivered a final decision in this matter. At present the Competition Commission of India (which has just begun deciding cases on topics like calculating a FRAND loyalty) and the Courts are overrunning each other.

Whereas the Indian antitrust Authority- CCI seems to be favoring smallest salable patent-practicing component as the base for calculating FRAND royalty, on the contrary, Delhi High Court has used the downstream product as the royalty base. This is seen as a non-productive trend in the FRAND jurisprudence in India if the judiciary and the competition authority continue to take opposing stands towards SEP holders and SEP implementers.

Can an injunction by a SEP holder against a third party amount to an anti-competitive practice?

There is no statute or regulation imposing a FRAND obligation and it created wholly by SSOs in response to some of the members suing other members who use their SEPs.

A FRAND commitment may arise due to contravention of any of the SSO’s by-laws which the members have agreed to or agreements between members in relation to the adoption of standards.  Hence an F/RAND commitment is made by an owner of a SEP to the SSO itself or to another SSO member and not to any third person or the public.

This question of law is still developing and usually courts have allowed SSO members to enforce FRAND commitments on the theory that they are third-party beneficiaries of FRAND agreements between the SEP owner and SSO.  If there is a third party at all it has to be a beneficiary of the contract. it is usually a beneficiary The case of non-members using the standards being third parties or not is not clear in law on this date.

FRAND OR (F)RAND OR F/RAND

FRAND is the acronym for fair, reasonable and non-discriminatory. It generally arises in antitrust cases where an owner of intellectual property rights (IPR) refuses to grant a license or refuses to grant a license on FRAND terms.

Comparison of compulsory licensing vs. FRAND licensing

FRAND and Compulsory Licensing are two different forms of licensing. On one hand, FRAND licensing is widely used in software, mobile phone, and communications sector whereas on the other hand Compulsory licenses have been used by Governments, of different countries, where the need of the use of the invention (mostly pharmaceuticals) by the general public is of prime importance.

A FRAND license lays emphasis on proving the license holder with decent and reasonable terms. Which results in a SEP holder not extracting unreasonable royalties. Whereas Compulsory license lays emphasis on the benefit of the general public through wider access to patented inventions. Both ultimately create value for the patented product which is different from the value of the product in the market. The entity which ultimately consumes the product pays lesser for it due to both these licensing mechanisms.

A compulsory license is a result of a supervisory mechanism of the government. It stems from the government sovereign right to determine that public welfare trumps a patentee’s rights of commercial exploitation of his patent. On the contrary FRAND licenses are a result of free market forces working within industries and SSOs in order to determine whether a patent can be “standard essential” and be licensed as per FRAND terms.

If seen from the perspective of a consumer, then the biggest difference lies in negotiation. In case of FRAND licensing there lies this uncertainty about royalty which is result of the negotiation alone. But in the case of compulsory licensing the royalty rates are pre set by the government and there is constancy regarding the same. One of the biggest criticisms of FRAND licensing in the recent times has been that instead of promoting innovations.

What are the factors involved in differentiating a FRAND litigation from a regular patent infringement case?

A FRAND litigation happens when there is a FRAND agreement between the parties. And a FRAND agreement arises as a contractual obligation. Ans in a FRAND litigation case goes in the direction of an exact form of relief to be recovered which was a part of the contract.

For example in the Microsoft vs Motorola case, the parties had argued the different perspectives which have to be considered in arriving at a “reasonable”  royalty rate. The judgment can be found here.

Whereas there is Patent infringement when a party makes, uses or sells a patented item without the permission of the Patent holder. The Patent holder may take the infringing party to court stop its activities and receive compensation for the illegal and unauthorized use of the patent.

Hence a patent infringement case arises when the exclusive right of the patent holder is taken away by a third party. On the other hand, an F/RAND litigation arises on a breach of contract.

In this article, Deepshikha Sarkar discusses steps for drafting effective patent claims.

What is a Patent claim?

Patent Claim is that part of the Patent Specification which defines the boundaries of Patent protection. They form the base of the protection given by law by virtue of patents. One among the many functions that a patent claim has is that of forming the scope of the patent. In a way, claims create the boundary line which is crossed will amount to infringement of the patent holders rights.

As the claims are so crucial, they need to be perfectly worded for complete protection. If not, it might cause problems with relation to prosecution and litigation. Hence, it is advised to inventors to take help from the legal professionals in drafting claims as it is a techno-”legal” document.

How to draft a claim?

As per the PATENT CLAIM FORMAT AND TYPES OF CLAIMS published by the World Intellectual Property Organisation (WIPO) which can be found here, the following formula is put forth

Patent Claim: A + B+ C

A B C

{insert title} comprising: {list the parts one by one} {then explain how each are connected}

Any claim can be divided into three parts, namely, preamble, linking word and the main body of the claim.

• Preamble

  • Identifies the category into which an invention falls (device, composition, process).
  • Talks about the objective of the invention.
  • Relates the claims to the title of the invention.

• Linking Word

  • Open-ended Phrases-, “including, “characterized by” this aids in expanding the scope of the claims.
  • Closed-ended Phrases- “comprising” “consisting of” this basically lists the items mentioned and NOTHING else.

(example :A chemical compound consisting of: 50% A component; 25% B component; and 25% C component)

• Main body

  • A coherent sentence actually explaining the content of the claim.
  • Not merely a list of parts

EXAMPLE

An apparatus, comprising: a plurality of printed pages; a binding configured to hold the printed pages together; and a cover attached to the binding.

Preamble: An apparatus

Linking (transition): comprising

Main body: a plurality of printed pages; a binding configured to hold the printed pages together; and a cover attached to the binding

How to punctuate a claim?

A comma (,) separates the preamble from the linking word or the transitional phrase. A colon (:) separates the transitional phrase from the body of the claim.

Subsequent small paragraphs that describe the elements further are separated with semicolons (;)

Basics of Patent Claim Drafting

Starting to Draft Claims

1. One should remember to keep a claim broad-but not add anything unnecessary. The “scope”, “characteristics” and “structure” of the invention must be very clear from reading the claims.
2. Clarity and conciseness are mandatory.
3. Addition of dependant claims is a good way of defining the borders of the invention with minute detailing and specificity
4. The focus should be kept on the “scope”, that is, one should check that whether the claim covers all parts of the invention or not.
5. It is important the claims should include “broad” claims as well as “specific” claims. This aids in balancing the invention, in a way that, the claims don’t leave out anything that the invention does or in a broad sense as well as a specific sense.
6. A key to effective claim drafting depends upon explanation of the “connection” between several parts of the invention, and the interconnecting functioning.

ILLUSTRATION

CLAIM SAMPLE A

A shovel comprising:

an elongated handle; and

a shovel head;

wherein said shovel head is attached to said elongated handle.

CLAIM SAMPLE B (IMPROVED)

A shovel comprising:

an elongated handle having a first end and a second end; and

a shovel head;

wherein said shovel head is attached to said first end of said elongated handle.

When one part of the invention is introduced, like here “Hammer head” and then later referring to it as “said hammer head” or “the hammer head” etc. Use “a” or “an” would be incorrect grammatically. Also, to avoid the confusion (arising in CLAIM SAMPLE A) regarding the where the hammer-head is to be attached to the elongated handle- extra explanation is added as to how to elements of the inventions are interconnected.

1. As one of the main objectives of claim drafting shows that the invention is different from the knowledge available in prior art so the drafting of claims should be done in such a way that it shows the uniqueness of the invention.
2. Laudatory language should be avoided. This usually stifles the descriptive details. More importantly, praises for the invention do not matter in a Patent Specification.

For example “Earth’s best gadget” or “the perfect solution” or “using this tool is the ultimate choice for a technician to make.”

1. The Patent claims can be said to be similar to an instruction manual. The detailing available in such manuals is such that by which a layman can put together something as complex as a lawnmower.

What does an effective claim look like?

EXAMPLE: PEANUT BUTTER AND JELLY SANDWICH. US Patent No. 6,004,596. Available here.

CLAIM SAMPLE 1

A sandwich comprising: 2 pieces of bread, peanut butter, and jelly, wherein the peanut butter is spread on 1 piece of bread and the jelly is spread on the other piece of bread and then the two pieces of bread are put together so that the peanut butter and jelly are touching.

CLAIM SAMPLE 2 (IMPROVED)

1. A sealed crustless sandwich, comprising:
   1. a first bread layer having a first perimeter surface coplanar to a contact surface;
   2. at least one filling of an edible food juxtaposed to said contact surface;
   3. a second bread layer juxtaposed to said at least one filling opposite of said first bread layer, wherein said second bread layer includes a second perimeter surface similar to said first perimeter surface;
   4. a crimped edge directly between said first perimeter surface and said second perimeter surface for sealing said at least one filling between said first bread layer and said second bread layer;
   5. wherein a crust portion of said first bread layer and said second bread layer has been removed.

The CLAIM SAMPLE 1 explains the claim in a very general sense and it does not look like a part of a techno-legal document at all. Also, by using terms like “peanut butter” “jelly” the drafters have excluded the scope of any other nut butter or filling etc.

Whereas CLAIM SAMPLE 2 “any” crustless sandwich which has two layers of bread, “any”center filling which would cover less than the entire layer of bread leaving perimeter surfaces on both layers without filling on them, and a sealed plus crimped edge around the sandwich circumference. And because it is a “crust sandwich”, the crust is explained to be that part of the sandwich which is formed by the contact of the perimeter parts of the two layers of bread.

In this article, Amandeep Singh discusses the superstar effect and how should you use it to your advantage when you prepare for getting Scholarships for higher education.

Introduction

Most of the times, it is not enough to be above average, or even good. One needs to be the best or different from the rest of the crowd.

College admissions is an interesting process. It has become an arms race due to high competition and the ideal approach to winning this race is to change the standards. A student for attaining higher education can get admissions either under the scholarship programme if he is credible or needy or he can take normal admission by paying the fee amount which is usually high. Superstar Effect can help a person in getting Scholarship for Higher Education. This article elaborates on how a person can inculcate Superstar Effect and how he can use it to his advantage for getting Scholarships for Higher Education.

What is Superstar Effect?

The term “Superstar Effect” was first recognized and published by Sherwin Rosen who was an economist. This term was used by him in a newspaper published in the American Economics Review. The economist worked through the arithmetic that clarifies why geniuses receive a larger number of benefits than peers who are slightly less talented. He called this marvel, “The Superstar Effect.”

• Superstar Effect can be defined as imbibing those qualities in oneself that are necessary for making an individual different from his peers. Superstar Effect is a thing that makes a person stand out from the crowd.
• Superstar Effect is simple to understand if it is explained but it is very difficult to practice. It is difficult to imbibe those qualities in the day to day life and compete to be the Superstar.
• Being a genius in any field makes a person impressive to a large extent to the outside world.
• It does not matter what kind of a field it is, be it crowded, competitive or well known, the superstar effect holds to itself.
• For instance, suppose there are 10,000 Bollywood music fans each having 1,000 rupees to spend on a music album. They are trying to decide whether to buy an album of Arijit Singh or an album of Mika Singh.
• According to the theory of Sir Sherwin Rosen, the bulk of consumers will purchase Arijit Singh’s album thinking, “although both singers are great, the best is Arijit Singh, and if I have to spend money on one album only, I might as well get the best one available.”
• The result was that the vast majority of Rs. 1 crore goes to Arijit Singh, though he has less experience than Mika Singh in the field of singing.

Obviously, it is really hard to be a superstar. Most of us will never become a superstar. Then how is it that superstar effect is of any use to us?

• One reality is that the best one reaps more rewards than his peers who are slightly less talented. This is basically the Superstar Effect.
• The Superstar Effect is very useful for every person as it is human nature to ponder on different things, we humans find it difficult to focus on one particular thing. Opportunity calls out to us and we cannot resist our temptation to get hold of that opportunity. Ultimately, we end up attempting many activities at the same time.
• Superstar Effect helps you to choose the best opportunity from the pool of opportunities. It helps you to find something you can commit to and make double efforts in it.
• If you participate in many activities at the same time, it is obvious that you will face many rivals or competitors as you are in many fields but if you put your efforts in one particular field at a given point in time then you will face fewer competitors as the crowd in one field would be less than the crowd in many fields, here you earn a greater chance to win as you have fewer competitors here.
• The concept is that limited resources can only be invested fully in one source if the required goal is to be achieved. It is always appreciated to be the best in one thing than being good or mediocre in most of the things.
• Time and energy are the two biggest resources which every person can invest but a person uses both these resources in many activities at the same time. If both the resources are used in being good at one particular thing and it can be used to master our field bringing us to Best, And the gap between good and the best makes all the difference.

Scholarships for Higher Education

The first thing that crosses the mind of a student who applies for a course in studying abroad is the academic fees of that college and the scholarship amount listed on offer. In most of the cases, the amount of money through scholarships determine whether the student will accept the admission offer and join the institution or not. Merit and need-based students are awarded scholarships. The students who are not worthy of scholarships but want to study in the institution have to pay the full amount of the academic fees of the college.

• Scholarships have become way too crucial in student life now as the cost of living and tuition fee of colleges is increasing day by day.
• A lot of capable students often fail to fulfill their dream of higher education due to the high cost of education. Nowadays education has become a costly affair. There is a critical need for scholarships in today’s world which is more than ever before.
• According to the Global Population Distribution by Income,2011 by Pew Research Center, 56% of the world’s population earn low income around 2.01$ – 10$ per day and 13% of the world’s population is middle class earning 10.01$ – 20$ per day and also 15% of the world’s population have low income and earn less than 2$ per day.
• This means that 84% of the world’s population face difficulty in paying the tuition fee for studying abroad in a recognized institution of their choice.
• There are different types of Scholarships offered to students. They are:

1. Scholarships offered by the Institution or University.
2. Scholarships offered by the Government of a particular country.
3. Scholarships offered by Private Trusts, Charitable, and companies.

• Scholarships usually cover the tuition fee of a student, the amount of the scholarship is not given in cash to the student but at the time of payment of the tuition fee only it is deducted from the scholarship fund maintained for the student.

Scholarships in different countries

Different Countries offer different scholarships to meritorious and need-based students.

Scholarships in the United Kingdom (UK) and the United States of America (USA)

• Merit and need-based fee waivers are granted to universal students. Candidates with solid scholastics, great performance in standardized exams and extracurricular accomplishments would be eligible for scholarship and financial help.
• To profit from these opportunities, one needs to keep in mind to send all the required documents by specific deadlines. In the same way, the presentation of the application is also important in light of the fact that one is judged by the picture one projects.

Documents Required – The documents which are usually needed for a scholarship application are as follows but it may differ according to the needs of an individual :

1. Academic records and photocopies
2. A recent Curriculum Vitae
3. A letter of Intent which acts as a cover page
4. Certificate if Language Proficiency (IELTS, TOEFL)
5. Letter of Recommendation (LOR)

List of Scholarships to study in the UK – For the list of Scholarships to study in the UK click here.

List of Scholarships to study in the USA – For the list of Scholarships to study in the USA click here.

Scholarships in Europe

• Studying in Europe can be exceptionally cost-effective. European nations put resources into their advanced education frameworks to help make education affordable while keeping up top-notch standards.
• Every nation in Europe has its own fee policy however in general, educational cost charges here are lower than in other leading study destinations.
• Actually, in some European countries, study programmes are free of cost.
• In Europe, there are hundreds of scholarships and financial support schemes for international students who wish to study here. Some schemes support part of the academic fees, some cover the whole amount of the academic fees and some cover whole amount of academic fees plus the living costs.

List of scholarships to study in Europe – For the list of Scholarships to study in Europe click here.

Harnessing the Superstar effect

A person can only use the superstar effect to his advantage if and only if he hacks the effect and harness it. Superstar Effect once explained is hard to get but it is very difficult to do. A person has to work on himself in a daily dimension. It is not a simple task, it does not make things easier.

• Being a superstar is not a simple task, it’s quite hard to a Superstar as the path becomes hard with time and situation.
• Cal Newport, an author has written about how to harness the superstar effect in his book, “How to be High School Superstar”.
• According to him, there is a way to get all the benefits which the superstar gets using the superstar effect without competing on such bloodstained battlegrounds. This can only be done by a process known as Superstar Corollary.
• The Superstar Corollary is an impressive tool for increasing returns without increasing the burden of work involved. It is an excellent way for a student to get exposure who could not study in the best schools or who lack a publishing record.
• Cal Newport refers to the Superstar Corollary and adds some points to facilitate one’s effort. Those points are –

1. Sloganize: Cal says that the field in which the person wants to excel or the goal which the person wants to achieve should be precise and easy to explain which means that communication and focus is very important to conquest the field.
2. Apply the 1000$ wager test: If a person thinks that he can succeed in 6 to 12 months, he should bet 1000$ on it. If not, then maybe you are not ready for the task and you need to build up more before trying.
3. Negations diligence: Rather than diligent work completing just one thing, try not doing different things.

• There is a difference between first in a class and first in your field. Being a Superstar in one field is harder than being the Superstar of class as the first of class only needs to follow the orders but being first in your field means building your own path and walking on that path facing difficulties which you yourself create.
• And doing so is the talent by itself, same as being the best at something.
• Unfortunately, talent alone is not enough, the field in which you want to accomplish should be precise and clear.
• One can become a superstar in the academic field by going to the best high school, having the best articles published in his name and by knowing the most influential people but it is very difficult for most of the students. If they are able to do so then it is obvious that they do not need scholarships to study in a college of their choice as they have those resources with the help of which they can study without scholarships.
• Thousands of people are competing on the same above mentioned ground but remember you have to stand out of the crowd and for that, you have to harness the superstar effect and work on it to achieve your goal.
• That is the reason employment opportunities get many job applications from hundreds of applicants with marginal differences between any two of them, yet at last, the job goes to the best applicant.

• One Example originates from podcasting. Chris Gratien is one of the hosts of The Ottoman History Podcast. He started the venture in April 2011 during his Ph.D. studies to discuss topics in the field with fellow Ottoman Scholars. In spite of the fact that Chris has excellent academic and publishing credentials from a traditional point of view, he has still triggered The Superstar Effect through podcasting. By recording almost 200 episodes, he has turned out to be a standout amongst the most understood podcaster in Ottoman studies and an outstanding name over the discipline. While every other person is just competing in the field of published articles and conference papers, he is gaining exposure by unconventional yet significantly less complex means.

Using the Superstar Effect for getting Scholarships for Higher Education

The academic world uses the “competition model” of work. Just some fortunate students can win the prize of getting admission in world-class colleges like Cambridge, Oxford and Stanford University while most of the students languish in the no-mans-land that is known for languishing. College admission is an interesting game. The level of competition for college admission has progressed to the point where a student needs more than a 4.0 GPA on a scale of 0-4 and 5-10 extracurriculars.  

• The key here is that it is less demanding to be the best if there isn’t much competition. The GPA and extracurriculars competition is quite outstanding and dormant, so the race goes to those students who have motivated and wealthy parents generally. In any case, if you find an uncontested field, the bar is lower.
• According to Cal Newport’s Superstar Effect Theory, there is no need to work 16 hours a day on different things but to be Superstar one must work on one thing for 16 hours a week. This approach can make a person Superstar and this in simple terms is called the Superstar Effect.
• This kind of work is called Smart-work which is the need of the time. For students who want to get Scholarships in the college of their choice should work smart and not hard. They should work on one project and they should become best in that project. Students are required to give in less time in that particular project than those who do multiple projects at one time and invest so much of hard work in it.
• Cal Newport’s book advises high school students who are looking forward to getting scholarships for higher education to choose any one extracurricular activity and shine at it to the level that it impresses the admission officers who select students for scholarships.
• There are three plans to use the Superstar Effect to your advantage for getting scholarships for Higher Education:

1. The Law of Under scheduling: A student needs to schedule his work keeping in view that he gets enough free time to explore. A student should avoid getting being involved in too many things or activities, whether academic or extracurricular. The free time in the schedule must be used to read and learn about a wide range of activities going on in the society.
2. The Law of Focus: A student needs to choose one activity and master one serious interest in that activity. The focus should be only on one activity and not on unrelated or irrelevant activities. Focus on a particular interest is very important to master that interest. The Superstar Corollary helps one in mastering his field of interest.
3. The Law of Innovation: Seek accomplishments that are difficult to explain, not difficult to do: Newport referred to a term  “failed-simulation effect” where things appear to be noteworthy if the general population who find out about them can’t easily imagine a standard way to them. He at that point offers some more guidelines both on how to innovate and on the best way to influence one’s innovation to appear to be noteworthy.

• By following these laws a student can impress the admission officers and in return get the scholarships as an award by them for higher studies.
• I would like to share one more example, there was a student who applied for the scholarship in Stanford University, his GPA put him on the list of students who were to be accepted. In High School to he did not take many courses instead he took only one course of his interest during the dreaded junior year. He always kept his extracurricular activities clean and joined no club or sports but he dedicated his attention to no more than one project at any given time. When one project gets finished then only he moved on to the other one.
• Eventually, he was accepted for the scholarship against those to had joined clubs and sports and also worked hard on many projects at a given point in time. The student name was Srijan. Srijan’s rise required no rare natural talent or high workload. His projects only required a less daily time investment than participating in a variety of sports. However, he was the best at what he did among all the candidates who applied for a scholarship to Stanford, and the resulting Superstar Effect benefitted him with a disproportionate award.

Conclusion

Superstar Effect helps a person in getting scholarships for higher education if one harness this technique by going through the process which is known as Superstar Corollary and then, a student can also become a Superstar by working in one particular field at a time and mastering that field with his ability by investing time in that activity and focussing on that particular goal which he is willing to achieve. Superstar Effect is not a lie, it is the truth and students or people who wish to excel in life are trying to inculcate this effect and work on the field of their choice and surely one gets a result as the reward of his work.

In this article, Ramanuj Mukherje, CEO and Co-Founder at iPleaders discusses how to network with co-interns and lawyers when you are interning.

I once interned at a Bangalore law firm called Murali and Chandy when I was in 3rd year of law school. It was the summer of 2009. This firm had freshly broken away from AZB Bangalore. After a few months, it would go on to become JSA Bangalore.

It was the best law firm internship I ever did. I had interned at AZB Bangalore just before that. However, I could see the difference in the work culture here. M&C was a far more open, friendly and happy place. Associates would be laughing and joking and would occasionally take interest in you even though you are just an intern. We even went to play cricket on a few occasions with the lawyers and the partners and got an opportunity to bond with some of them. One of the associates used to drop me home on the way back as he lived close by.

Besides work, what a fantastic way it was for them to find out which interns are good enough for them to consider hiring. For us, what a fantastic way it was to get connected with the people who we may want to work with someday. This is where I experienced how important it is to network with lawyers when you go for an internship.

However, what I didn’t realise that time at all, and learned only over the next few years, was the importance of networking with other interns. We connected with other interns anyway, as young people sitting around a table tend to do, but we probably could not imagine the value it will bring to our lives later anyway. In the last 10 years since that internship, the people I met at that internship has referred me clients, helped me with esoteric branches of law a number of time, offered jobs and opportunities to our students, given interviews on Superlawyer sharing in great details amazing career insights they learned along the way, mentored students in iPleaders club, taken webinars sharing their valuable knowledge and even helping us to build entire courses like this at Lawsikho.com. When I started experimenting with ClikLawyer, they gave me leads, and were willing to take up cases at far less fees than they usually would, just so that I can try out the ideas I have. When I was just beginning as an entrepreneur, and was dead broke, they took me out for drinks and encouraged me and appreciated me.

It’s not that just entrepreneurs like me benefit from the friendships they develop at workplaces. Everyone who builds deep and meaningful relationships around them know the magic of networking. People who think that the art of networking means shallow conversations that end with exchange of cards, are really stupid. Networking is all about humanity, it is about knowing how to develop deep and meaningful relationships with the people you work with. If you did not help out the people in your network at least 3 times on an average day, you are probably not doing it right.

Yes, just help 3 people out, in any possible way, every day – and you are on your way to be a super-connector with a formidable network down the road. If you are not consistent, if you cannot do it over the years though, and give up after a few day, don’t blame me for lack of results. It takes time.

First you give a lot, and then you get back a lot. Eventually. How many people did you help out in the last 3 months? If the number is too low, you are in trouble as far as networking is concerned.

What is networking?

It starts with a kind conversation. A little appreciation. A genuine smile. It can be small gesture that makes one feel human and respected and cared for. That is the bare minimum threshold.

Honesty, integrity, not gossiping, listening to what someone has to say without interrupting, watching out for someone, bonding – these come next. Very valuable gifts.

Sharing of information and insights is also an amazing way to help people. Do you know very well about the PR industry? Do you know how to get the best out of a PR agent? Perfect. Can you tell your lawyer friends how to do this and show them the ropes of hiring a great PR agent? Maybe you can make some introductions?

Do you know a lot about how to find better leads when one is trying to hire lawyers? Help out others in your network who are struggling with hiring. Did you come across a fabulous blog post from which you learned a lot or a video which really inspired you? Share it with 10 people who will benefit from it.

Referred a client, even if you charged a referral fee? Great. You are collaborating with other lawyers. Many lawyers do not have the mindset to collaborate. They are missing out on being connected, being part of a network economics that rewards being connected and helpful.

Are you writing insightful articles and sharing on linkedin or iPleaders blog? That definitely counts as sharing knowledge with a big network, adding value to others and therefore great networking.

Invited some lawyer friends for dinner and drinks on Saturday evening? Definitely counts as networking. How about sharing an opportunity for internship or job, or maybe helping out an associate to get his kid into the school he wants? Well, as long as you are adding value to another person without a specific obligation for that person to do something in return, you are doing amazing at networking.

All of these count as help, as long as you add value to another person, you are networking right and strengthening the power of your network. Don’t think of it just as networking, but being human on an everyday basis and connecting with other human beings to leave a positive impact on them.

So how do you apply all these when it comes your internship?

I am assuming that you are in your internships for a month or two at best. You will perhaps meet and interact 10 to 30 individuals, including lawyers, staff and co-interns during this period. It is a great opportunity to create those many amazing relationships that you can count on years down the line.

And of course, it increases your chance of landing a job. People who do not learn and do not know how to network will always be at a huge advantage in environments like a law firm.

Why is networking inside a law firm important?

I was told an amazing story about this by Murali Neelakantan, one of the first India educated lawyers (NLSIU graduate) who went on to become a partner in London law firms. He also worked as a partner at Khaitan & Co. and acted as Global General Counsel of Cipla where legal departments from 80 countries reported to him. He was explaining to me why networking in critical in big law firms. Other lawyers often had circles of friends in the firm as they went to the same University or are neighbours or members of same clubs etc. Murali was an absolute new comer in this environment, and had lo alumni group, golf club buddies etc to fall back on. What did he have to do to become well known enough in the firm to be elected partner one day? Here is what he said in his SuperLawyer interview:

When I landed in London, I hardly knew anyone there. Almost every little thing was a challenge. For example, since I didn’t have a credit history in the UK, it was difficult to rent an apartment or get a bank account or credit card. Unlike most of my peers who had a network of family and friends within and outside the firm, I had to find my way around. If there was a situation where one needed help on a tax issue, my peers would have a friend who they know from university or as fellow trainees in the tax team, who they could call. I wouldn’t even know where the tax lawyers in the firm were!

Being a vegetarian teetotaller didn’t help with socialising in a country where the heart of the social scene was the pub. It was cricket that saved me. Simmons had a long tradition of supporting cricket, rugby, softball, netball and hockey and players of all abilities were warmly welcomed. There was always a very enjoyable dinner in the Long Room with an eminent cricketer as the speaker to kick off the cricket season. It was my opportunity to know people from all over the firm besides playing cricket which I loved, even though I was not very skilled. I also played for a team composed of lawyers in Barnes called the Nashers, after Malcolm Nash, whose claim to fame was that he was the bowler who was hit for 6 sixes in an over by Gary Sobers.”

I can definitely go on to quote more lawyers on why they think networking in critical, but I think you have now began to grasp the concept.

How can you build deep, meaningful relationships that last a long time during a month long internship?

That sounds quite crazy. Is that even possible? Well, you probably can’t build a lot of great relationships that last a lifetime in just one month of interaction. However, it is a great idea to treat every person you meet as if 10 years later they are going to head a big law firm or be elected the President of United States. It is a good strategy to be an interesting person, which most people pursue with a lot of gusto. Unfortunately, there is a much easier but rarely followed path – that is to take interest in other people.

Take interest in everything, especially success and welfare of others while you intern. Look after the associates, try to reduce their work burden, ask them if there are more ways in which you can help them. Nothing wrong in getting their coffee while they are really stuck with some work at their table and can’t visit the canteen. Even as a CEO I will not hesitate to do this for someone who works for me. Demonstrate genuine care and interest in other people, and everything will become very easy.

Empathy, empathy, empathy

Indian workplaces are often very stressful environments. People shout at others, scream when they are disappointed, use bad words, operate under high pressure and often forget to smile. As an intern for you this is a new world. Don’t get intimidated. Smile. Empathize. That’s the way to survive big law firms as an intern and build lasting relationships.

Be damn good at research and proofreading

Associates are always looking for more research. Become the go to guy. They also always need proofreading. Become so good at it that they do not want to work with anyone else. These are your windows of opportunity to be known as reliable, diligent interns who everyone is looking for. On top of this, if you have good knowledge about the area of work in which the law firm or those certain associates operate, then you are gold. However, you need practical knowledge and not just textbook knowledge that you do not know how to apply in real life. For example, an associate wants you to help with some research about NBFCs. Now you have no idea what is an NBFC, who regulates these NBFCs and where are all the rules, regulations and circulars regarding NBFCs to be found. How long will it take you to do the job if you have to start with googling what is an NBFC?

On the other hand, what if another intern has done this course, knows where exactly in RBI website he will find what he is looking for, and produces the answers in next 30 minutes? Will this particular intern going to corner most of the work and interesting assignments or not? What if that associate has to go for a due diligence on the next day? Who do you think she is going to ask to come along with her, you or the other intern who is super quick with research?

Those who do the initial tasks well continue to get lots and lots of work and get an opportunity to stand out. Those who do not do a good job, soon realises that associates are ignoring them, or saying things like I do not have any work to give you at the moment.

No point networking in a law firm if you can’t do the work. So walk in prepared.

Find a mentor

Law firms are quite political places. You need to find someone important enough in the system who is ready to guide you and vouch for you to others. Every law firm has some budding lawyers who want to have a circle of influence around them. They want to find mentees too. However, if you are not good at your work, people may not be willing to guide you and mentor you. Also, don’t be stubborn. Listen to people. Learn from them. Many youngsters feel entitled and a false sense of superiority. Don’t let your past experience fool you, a law firm is not how your college is. You will depend on others if you have to survive for long, and especially if you want to thrive. The faster you find people who will watch your back, the better it is.

Should I compete with other interns?

Absolutely, you should. You are in a competition whether you like it or not. Even the associates and partners are competing with each other, so there is little you can do about it. Let’s imagine for a moment that there are 20 summer interns in a big law firm in Delhi in the month of June. Only 1 or 2 of them are likely to be offered a PPO. Maybe 5-6 will be invited to come back and intern again. Want to be the guy who landed the job amongst those 20 kids who were lucky enough to have that internship? Then you would better stand out in the crowd with your amazing work and dedication.

If you are however the sort of person who will hide books in the library or slip in a pill in co-interns coffee, you are probably doomed. You need to stay positive and compete. Negative people are quickly singled out and steamrolled in law firms unless they somehow manage to become partners 😀

How can I prepare for my next internship?

Work on the following:

1. Gain relevant practical knowledge. If you want to do a corporate law internship, I recommend this course.
2. Learn how to do due diligence.
3. Learn how to draft contracts. Your bosses will not expect you to know how to do it. However, if you know it, they will be surprised and delighted to give you more responsibility.
4. Plan out every detail of how to do better at your internship by participating in this program.
5. Keep yourself updated about the laws in your area of interest.

In this article, Suyash Sahai of Faculty of Law, University of Allahabad discusses the status of Freezing of Bank Account under International Law and Indian Law.

Introduction

Freezing of Bank account is considered to be one of the Economic Measure and this measure is imposed in response to other Country’s Human Right Abuse. Freezing of bank account may also enable the international community or the States to inflict retribution upon target states for past human rights violations and also to deter future violations. This economic measure can be imposed unilaterally or by the group of States with the authorization from Security Council. U.S officials has recognized bank freeze as Punitive and emphasize that deterrence and retribution are the main objective of it but some States has characterize that International bank freeze is coercive. It is also to be noted that by employing such measure of bank freeze States gets a powerful bargaining chip which is used to extract  humanitarian concessions from a foreign state and such coercive asset freeze can be imposed for variety of humanitarian purpose. For eg.  Asset freeze has been done by U.S for facilitating the release of American hostages in Iran, securing reparations for victims of Libyan terrorist attacks, and incentivizing target states to accept human rights monitors.

Freezing of bank account can also be imposed by the court order of one State having jurisdiction, it can be imposed by the executive order of the State and also by an Security Council as punishment. But Freezing can also be done by the bank itself when it is found that account holder being declared bankrupt or insufficient funds in the account or who has not paid back the debt while dealing in offshore banking. A bank account may also be frozen if the bank is notified about a dispute concerning the ownership of funds or account operation, or to protect the account holder, the bank or a third party who has a reasonable interest in the account. However it can be imposed by the bank of any Country against the account holders of their country.

Under International Law

What is Offshore Banking?

Before coming into International Freezing of Bank account it is necessary to know about Offshore Banking System. An offshore bank is a bank located in a jurisdiction different from that where its depositors reside and offshore banking is the practice of dealing and transacting in Foreign Banks which gets its authorization by the Bilateral Investment Treaty between  the States.

It’s Advantages

• Provide favorable tax structure.
• Interest on this account usually is non-taxable.
• It maintains confidentiality regarding customer identities and other details.
• Provide accessibility of foreign investment opportunities and banking products.
• Provide multi-currency account facility.

It’s Disadvantages

• • The main problem is that offshore banking has been associated with the underground economy and organized crime through money laundering.
  • It encourages tax evasion by providing an attractive place to deposit their hidden income.
  • It requires a high minimum deposit.
  • Deposits may not be protected in the event of financial crisis.
• Their lies a danger of account freeze

Is Freezing of Bank Account a Countermeasure?

Countermeasures in response to an internationally wrongful act are intrinsically unlawful but are justified by the alleged initial failing to which they were the response. And Countermeasures against an offending state for violation of an International Law may be taken by the offender through Joint or Parallel action. Thus Freezing is legal when it is qualified as countermeasure.  Freezing of Bank assets also comes under the category of pacific sanction which also includes travel bans, trade embargos and also account freeze. The freezing in this sense is punitive in nature in response to other State’s default.

And apart from countermeasure, host states have also frozen foreign  other country’s assets to preserve them from misappropriation or spoliation and international asset freezes have been used to combat public corruption, preserving a target state’s national patrimony to ensure that misappropriated public funds would be available to advance international human rights for foreign people. (Source- Swiss Freeze $1bn in Gaddafi, Mubarak, Ben Ali Assets’, BBC News Middle East, 3 May 2011)

Legality and Recognition of Freezing of Bank Account of Other Country

International Law Commission has recognized in it Draft Article on State Responsibility under Article. 22 which permits states and regional organizations to freeze foreign assets, suspend trade agreements, and impose other non-forcible measures as necessary to address another state’s breach of international law and the same is also recognized by  Draft Articles on the Responsibility of International Organizations and Customary international law.

Freezing is also considered as Reprisal which means measures of coercion, derogating from the ordinary rule of International Law, decided and taken by a State in response to wrongful act committed against it by another state and intended to impose on it by pressure exerted through injury, the return to legality.

Account freezing also complies with Article 2(4) of U.N Charter which says that all Member States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

Thus account freezes, as purely economic measures, do not involve the ‘use of force’ under Article 2(4) of the U.N Charter. It sidestep some of the thorny legal and ethical issues associated with military intervention. Nonetheless, international asset freezes qualify as a form of ‘humanitarian intervention’ to the extent that states freezing foreign assets (‘host states’) purposefully interfere in the domestic affairs of a foreign state (the ‘target state’), undermining the target state’s political independence and transgressing legal protections for the fair and equitable treatment of foreign investment, in order to promote cosmopolitan humanitarian values abroad and is considered as an economic and pacific measure which is considered as coercive method or tool for the settlement of dispute under International Law.

What are its Objectives?

• Punishment

As mentioned above, measure of account freeze is punitive in nature emphasizing on deterrence and retribution as its main objective. It acts as a tool for punishing where host states may seek to freeze foreign assets to punish target states or individual foreign nationals for violating human rights. International asset freezes have expressive power as a signal that the international community condemns a target state’s behaviour. In theory, asset freezes may also enable the international community to inflict retribution upon target states for past human rights violations and deter future violations. Punitive freezing is different from Coercive because it aims to bolster the rule of law by imposing a penalty for past violations and discouraging future violations rather than compelling the violator to change its current practices.

• Preservation

Its objective also lies in preserving the assets in the account where the  host states freeze the  foreign assets to preserve them from misappropriation or spoliation. The main example of it is that  shortly after the outbreak of World War II, many countries in North and South America froze the assets of Denmark and Norway to ensure that those assets would not fall into the hands of Nazi Germany.

• Compensation

Seeking Compensation from the Offending State is also one of its objective. Compensatory asset freezes differ from coercive asset freezes to the extent that they do not seek to compel a target state to act or refrain from acting in any particular manner. For example, when US courts froze assets of former-Philippine President Ferdinand Marcos to ensure that victims of human rights abuse in the Philippines could obtain compensation in civil actions.

• Incapacitation

Account freeze is also done with the view to incapacitate the offender State. It is used to limit or restrict the destructive capacity of the violators of Human Rights Abroad. It can be done with the view to combat terrorism also as such freezing will stop the evil activities of State Sponsored Terrorism or Terrorist Financing.

• Coercion

It is also done with the view to coerce the violator State and compelling the offender State to withdraw practicing of evil activities. By this the host states acquire a powerful bargaining chip and thus use it to extract humanitarian concessions from a foreign state. It is done for achieving the Humanitarian Purposes for example the Financial Measure took by USA for facilitating the release of American hostages in Iran, securing reparations for victims of Libyan terrorist attacks, and incentivizing target states to accept human rights monitors.

What are its Conditions?

• Their must be a wrong – Their must be a wrong occurred on the part of an offender State. And in response of such wrong by an offender State the affected State individually or collectively by the help of other State and by the authorization of Security Council can impose such measure.

• It must be proportionate – The measure must be proportionate to the wrong. It means that one cannot permanently freeze the account  in response to the wrong which are trivial in nature.
• It must be done out of necessity – The measure must be taken out of necessity which means their must be an imminent peril or an imminent danger to apply the measure of account freeze. Unless the measure is the only means of safeguarding an essential interest of the State against a grave and imminent peril such measure will not be treated legally valid under International Law.

Is Account Freezing an Intervention?

The principle of non-intervention is part of customary international law and founded upon the concept of respect for the territorial sovereignty of states. Intervention is prohibited where it bears upon matters in which each state is permitted to decide freely by virtue of the principle of state sovereignty. Now the question arise is account freezing an intervention?. Humanitarian asset freezes require special legal justification because they represent a form of ‘dictatorial interference’ that violates general principles of international legal.

Although, on December 21, 1965, in resolution, 2131, the General Assembly adopted a Declaration on the inadmissibility of intervention in the domestic affairs of the state and the protection of their independence and sovereignty. It asserted that “no state has the right to intervene directly or indirectly for any reason whatever in the internal or external affairs of any other state”. Freezing of bank account thus intervention becomes wrongful when it uses methods of coercion in regard to such choices, which must be free ones. Even such non-forcible interference i.e asset freeze arguably transgresses customary principles of external self-determination and non-intervention that are embedded in the UN Charter.

By the support of these authorities, I conclude by saying that yes it is an intervention but it require special legal justification, it is mostly imposed by the powerful countries who are in the position to dominate the will of weak or developing countries who use it as a powerful bargaining chip.

What is the difference between Expropriation of Property and freezing of Bank Account?

Expropriation is the act of a government in taking privately owned property, ostensibly to be used for purposes designed to benefit the overall public. concerns related to government expropriation are the rule of law, questions of due process and the issue of compensation. It is important that laws specifically delineate a government’s rights to expropriate property and there are adequate due process channels available for citizens to appeal a proposed expropriation

Where as Freezing is only restricting the account holder to transact in the  bank, it is not taking the possession of the account asset but it is just freezing against the transaction. A frozen bank account is a bank account that you cannot access because a creditor has placed a restraint on it.  When your bank account is frozen, you can put money into it, but you can’t take money out.

Freezing of Bank Account by Swiss Bank

The evolution of Swiss law on asset freezing in recent years has given some valuable tools and protection to creditors and defrauded parties seeking to recover funds from their evasive counterparties. Since 1980’s people use to hide their dishonestly because they knew that their own State laws does not enforced by the Swiss Courts and Government.

But in the recent years swiss bank has started taking into consideration and started enforcing and now swiss banks have become more are to comply with international asset recovery efforts, even in civil proceedings.

However, In October Swiss Government passed the Restitution of Illicit Asset Act Which allows Swiss Cabinet to freeze asset even though the other country has not formally asked the Swiss Government to do so.

Swiss Bank has frozen the account of the imminent personalities such as  Egyptian President Hosni Mubarak, Laurent Gbagbo the Former President of Cote d’ lvorie and Zine El Abidine Ben Ali, Former President of Tunisia.

Frozen bank account – Indian Perspective

Why Bank freezes accounts in India?

If the bank feels that transaction in account is specious, then the bank can freeze the account after giving the proper notice to the account holder. The reasons of such freezing of bank account can be:

• Money laundering
• Unpaid private loans
• Terrorist financing
• Tax dues (For example, the account of Sahara and Kingfisher Airlines has been frozen for non payment of tax dues)
• Unpaid money to a organisation/individual.
• Use of the account for illegal activities
• Suspicious activities in the account

What you should do if bank freezes your account?

When a bank freeze bank account, it has a solid reason to take such action. And the bank within their rights freeze the account when an illegal purpose of account comes into the knowledge of the bank. And if you think that you have not transacting for the illegal purpose or are not coming under the above mentioned reasons then you can approach the bank personally yo contact them or if the bank could not be able to understand your reasons then you may approach to Reserve Bank of India (RBI)

Who has the right to order account freeze in India?

• Reserve Bank of India
• Securities and Exchange Board of India (SEBI)
• Income-tax authorities
• Indian Courts

Non Compliance with Foreign Account Tax Compliance Act (FATCA) shall result into Freezing of Bank Account

On account of making our Indian Economic System more clear Foreign Account Tax Compliance Act (FATCA) has been introduced by the Government in the Indian Banking System. It meant that Bank account holders, mutual fund investors as well as people who have invested in insurance schemes have to make their bank accounts compliant with FATCA, or their accounts will freeze on 1st May 2017, FATCA is basically a sort of income declaration by people who invest in Mutual Funds, insurance and other schemes. The account holders are required to provide a self-declaration about the tax residency to their financial institution.

Frozen bank account – How to unfreeze a bank account?

According to Reserve Bank of India (RBI) rules, it is mandatory for bank account holders to provide their PAN or Form 60. In a circular issued in December 2016, RBI instructed all banks to disallow debit transactions in accounts where PAN or Form 60 (in terms of Rule 114B of the Income Tax Rules) had not been provided.

• Scope

Debit freeze for non updation of PAN Form 60 may be done only in the following cases: Account balance is `5 lakh or more.

Total deposits made after 9 November 2016 exceed `2 lakh.

• Unfreezing debit freeze

In order to unfreeze the debit freeze on one’s account, the account holder must forthwith furnish PAN Form 60 (as applicable) to the bank.

• Visit to the branch

The account holder can visit the nearest bank branch and fill up a designated form for updation of customer details. Self attested copy of PAN or Form 60 shall be attached to the form and submitted.Original PAN should also be carried along at the time of submission.

• Online method

Banks also provide an online method to carry out this procedure. The account holder can log in to the Net banking portal of the bank and click on the “Update PAN” section. The account holder will have to key in his PAN details and upload the PAN or Form 60 as applicable. Once the documents are uploaded successfully the account will be unfrozen by the bank.

• Email

Alternatively, the account holder can write an email to the designated customer services email id quoting the PAN or Form 60 details and upload the PAN or Form 60 (as applicable). Once the email is sent, the documents are verified by the bank and account is unfrozen.

No withdrawals or debits in any form will be possible (not even electronically), once the account is frozen for debits. Some banks also allow updation of PAN details on their mobile banking portals.