In this article, Shubham Kumar of Hidayatullah National Law University discusses rules and procedures to be followed by residents of India while borrowing from NRIs.
Introduction
The lending and borrowing between residents of India and Non-Resident Indians are regulated by the Ministry of Finance and the Reserve Bank of India. Some notifications are issued from time to time by the RBI, regulating the lending and borrowing. The lending and borrowing is regulated by The Foreign Exchange Management Act, 1999 (see here), Master Direction on Borrowing and Lending transaction in Indian Rupee between Persons Resident in India and Non-Resident Indians issued by the Reserve Bank of India on January 1, 2016 (see here) and Foreign Exchange Management (Borrowing or lending in foreign exchange) Regulations, 2000 issued by the RBI on May 3, 2000 (see here). In this article, the recent notifications regulating the transactions will be dealt in detail.
Some important definitions you should know before reading this article
An authorized person in this article will mean any person who is permitted by the RBI to deal in foreign exchange or foreign security or is an authorized money changer or an offshore banking unit.
Capital Account transaction would mean any transaction which affects the assets or liabilities of residents of India.
Current Account transaction would mean any transaction other than capital account transaction.
Foreign currency will mean any currency other than Indian currency.
Foreign Exchange will mean foreign currency, letters of credit and bills of exchange payable in foreign currency.
A resident of India will mean a person residing in India for more than 182 days during the preceding financial year but will not include foreign citizens coming on employment or business visa to work in India.
Non-Resident Indian (NRI) means a citizen of India residing outside and persons of Indian Origin.
FCNR account means a Foreign Currency Non-Resident (Bank) account which can be opened with funds remitted from outside India by any NRI. Such account can be opened in any nationalized bank in India.
Non-resident ordinary rupee account will mean an account by any person residing outside India who opens an account with any authorized bank involving transaction in rupees.
Non-resident (non-repatriable) rupee deposit account will mean an account opened by any NRI out of funds remitted from outside India or by debiting their existing NRE/ FCNR account.
Inward remittances are defined as a transfer of funds from a bank account in a foreign country to an account in India.
Can a resident of India borrow money from an NRI?
Yes, as per the Master Direction on Borrowing and Lending transaction in Indian Rupee between Persons Resident in India and Non-Resident Indians issued by the Reserve Bank of India on January 1, 2016 and the Foreign Exchange Management (Borrowing or lending in foreign exchange) Regulations, 2000 issued by the RBI on May 3, 2000 an Indian resident can borrow money from NRI but there are restrictions upon it. However, there is a difference between FDI and loan which can be understood by reading https://blog.ipleaders.in/every-indian-know-fdi/
For Indian Citizens
What are the conditions to be satisfied by residents of India for borrowing in Indian rupees from NRI’s?
Resident of India can only borrow money in Indian rupees from NRIs. The conditions under which he/she can borrow are:
Borrowing shall be only on a non-repatriation basis. This means that funds once given cannot be taken back.
The loan can be received only in two ways. The first way is to debit the NRE/NRO/FCNR account of the NRI and give the loan to the Indian resident. The second way is by inward remittance from outside India.
The loan cannot be given for more than three years.
The rate of interest on such loan is fixed. The rate of interest should not be more than two percent above the Bank Rate prevailing on the day of giving of loan.
The repayment of the principal amount and the interest can be done only to the NRO account of the NRI.
Click Above
What are the conditions to be satisfied by residents of India for borrowing in foreign exchange from NRI’s?
A resident of India cannot borrow in foreign exchange from an NRI. However, under certain situations, RBI may permit a person to borrow in foreign exchange from a person outside India. These situations are described below:
A resident of India can borrow by way of a loan from a bank outside India for execution of any project outside India related to civil construction or for exports
A resident importer can borrow in foreign currency from the overseas supplier of goods, in foreign currency. However, the loan should be repaid in three years.
A loan in foreign exchange can also be taken by resident Indians from their close NRI relatives. However, such loan cannot exceed US$ 2,50,000. The loan taken should be free of interest. The minimum period of repayment should be seven years. The loan should be utilized for borrowers’ personal use. The loan cannot be used to buy immovable property or for investment in shares and debentures or for re-lending.
For Indian Companies:
Can an Indian Company borrow from NRIs?
Yes, a company incorporated in India under the Companies Act can borrow money from NRI’s, but only subject to certain terms and conditions.
What are the conditions to be satisfied by Indian companies for borrowing in Indian rupees from NRI’s?
The borrowing company should not be engaged in agriculture or real estate business or a chit fund company.
Borrowing can be done only by way of issuing non-convertible debentures. Such issue of a non-convertible debenture is made by public offer.
The rate of interest payable on such debentures shall not be more than three percent of the interest charged by the State Bank of India while lending. For example: If SBI charges 10% interest to anyone who takes a loan, then the interest payable on debentures issued to the NRI’s by the Indian company cannot be more than 13%.
The loan should be repaid by the Indian company within three years.
If the borrowing is on repatriation basis, then the percentage of NCDs issued to NRIs to the total paid up value of all NCDs issued shall not exceed the ceiling prescribed for issue of equity shares/convertible debentures for foreign direct investment in India.
If the borrowing is on a non-repatriation basis from NRIs, then the amount of loan should be received either by inward remittance from outside India or by debit to NRE/NRO/FCNR(B)/NRNR/NRSR account of the investor maintained with an authorized dealer or an authorized bank in India. Payment of interest and repayment of principal shall be made only to the NRO account of the lender.
What are the procedures to be followed by Indian company while borrowing?
After taking a loan, the borrowing company should submit to the nearest office of the RBI:
Full details of the remittance received including a list containing name and address of NRIs who have given loan
Amount and date of money received
A certificate from the Company Secretary of the Indian company stating that all applicable provisions in regards to issue of Non-Convertible debenture have been followed
Is there any restriction on the company in utilization of funds?
The loan raised can be utilized only for the own business of borrower.
The loan raised cannot be used for further investment or further lending to any person or a company. However, it is permitted to keep the loan in fixed deposits with banks till utilization of funds.
What are the conditions to be satisfied by Indian companies for borrowing in foreign exchange from NRI’s?
An Indian entity can borrow up to US$ five million or its equivalent from an NRI. Such loan can be used only for corporate purpose. The minimum maturity of such loans should be three years.
An Indian entity can also borrow up to US$ ten million or its equivalent from an NRI, but in such cases, it is only for limited purposes:
Borrowing for Financing of Infrastructure Projects:
Borrowing in order to finance equity investment in a subsidiary/joint venture company promoted by the Indian entity for implementing infrastructure projects. The minimum average maturity of such loan is three years. In case the loan is to be raised by more than one promoter entity for a single project, the aggregate of the loan by all promoters should not exceed US$ 10 million.
2. Borrowings by Exporter/Foreign Exchange Earner:
Borrowing in foreign exchange by an exporter/foreign exchange earner up to three times of the average amount of his annual foreign exchange earnings during the previous three years subject to a maximum of US$ Ten million or its equivalent, with a minimum average maturity of three years.
3. Long-term Borrowings:
Borrowing for general corporate purposes at the minimum average maturity of eight years.
Yes, a resident Indian can give loans to an NRI relative subject to the following terms and conditions:
The loan should be free of interest.
Minimum maturity period should be one year.
The limit of loan is US$ 25.000.
The loan should be utilized by the NRI for his personal use.
Loan amount should be credited to the NRO account of the NRI.
Can an NRI borrow from an Indian company?
Yes, an NRI can borrow from an Indian Company subject to the following terms and conditions:
The loan can be granted only for personal use.
The loan can be granted for purchasing a housing property in India.
The loan shall be granted according to the Staff Housing Loan Scheme.
The lender shall credit the loan amount to the NRIs NRO account.
The repayment of loan can be done only by way of inward remittance from outside India.
What are the procedures to be followed by an NRI in case a resident of India defaults in payment of loan?
In such a case, he has to file a petition under the Civil Procedure Code, 1908 in a district court or a high court depending upon the amount of loan. The court in such cases pass a decree against the lender directing him to pay the amount and in case of failure to repay, freezes his bank accounts, attaches his property and repays to the NRI. The case of Vijay Malia on default of loan would be interesting to read in this regard https://blog.ipleaders.in/vijay-mallya-case-study/.
Conclusion
Thus, a loan from an NRI can be taken by a resident of India or an Indian Company. Similarly, the loan can be taken by an NRI from a resident of India. The rules and procedures to be followed in such cases have been dealt above. RBI from time to time revises such rules, so one needs to be updated regarding the current rules. This article is based on rules prevalent on December 15, 2017. Any change in the rule is updated by the RBI on its website.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:
In this article, Sushant Pandey discusses the legal framework on Parental Child Abduction in India.
Introduction
Each state has its own laws representing parental rights and duties, yet for the most part, guardians are the people that have a legitimate care of a child. A child can’t have more than two legitimate guardians at any given moment.
In re McGrath (Infants), Lindley LJ said: “The dominant matter for the consideration or the Court is the welfare of the child. But the welfare of a child is not to be measured by money only, nor by physical comfort only. The word welfare must be taken in its widest sense. The moral and religious welfare of the child must be considered as well as its physical well-being. Nor can the ties of affection be disregarded.”
What constitutes parental child abduction?
Definition of Abduction
‘Abduction’ is Defined under section 362 of the Indian Penal Code, 1860 as an act compelling or taking away a person by deceitful means inducing him to go from any place. Abduction, all things considered, isn’t just an offence, rather is a helper demonstration not culpable in itself, but rather when it is joined by a goal to submit another offence, it as such ends up noticeably culpable as an offence. On account of ‘parental abduction’, these supposed ‘abductors’, are the vast majority of the circumstances, adoring guardians. The child is taken away by a parent to some other place as a result of the dread of losing his/her care i.e. such an abduction, as expressed prior, is out of overpowering adoration and friendship and not to hurt the child or accomplish some other ulterior reason. Despite the fact that many states don’t have a penal code entitled “Parental Abduction,” most have organized their general Abduction laws to accommodate a similar kind of offence.
Ingredients of parental child abduction
Whether or not the taking of a child by a parent will constitute parental Abduction is controlled by three primary variables, including;
The legitimate status of the culpable parent,
The presence of any court orders with respect to care, and
The goal of the culpable parent.
Why Might a Parent Kidnap a child?
Disagreement With Custody Order
Fear of Harm To child
Revenge Against The Other Parent
THE HAGUE CONVENTION, 1980
The aim of The Hague Convention,1980
Essentially, The Hague Convention, 1980 looks to accomplish two factors in particular—to shield a child. from the destructive impact of such expulsion; and to secure incite return and re-reconciliation of the child in a domain of his or her ‘ongoing living arrangement’, and both these targets compare to the particular thought concerning what constitutes the ‘best enthusiasm of the child’.
Highlights of The Hague Convention, 1980
It guarantees fast technique for the arrival of the child wrongly evacuated to or held in contracting to gather its nation of ‘constant living arrangement’;
It guarantees that privileges of care and of access under the law of one of the Contracting States are successfully regarded in another Contracting State,
It re-builds up existing conditions bet by restoring the child to the nation of ‘ongoing living arrangement,
An arrival arrange isn’t the last assurance of the issue of care, rather, it accommodates return of the child to the locale which is most suitable to decide the issues of care and get to; and
Each nation that has marked the Convention more likely than not built up a Central Authority, which procedures such applications. The Convention sets out specific parts and elements of the Central Authority. This Authority must, bury alive, help find the child; support genial arrangements and help process demand a return of the child.
Law Commission in 263rd report
“The Hague Convention, 1980, in spite of the fact that uses the word ‘Abduction’, it isn’t proposed as in a common instance of abduction under criminal law. Thusly, the word ‘abduction’ inside The Hague Convention, 1980, is to be considered as shorthand for a more proper phrasing, “wrongful evacuation or maintenance” which shows up all through in the content of The Hague Convention, 1980. Consequently, at the start, the Law Commission is of the Opinion that the word ‘abduction’ in the present Bill, be shed. In any case, wrongful expulsion and maintenance not just purpose genuine preference to the next parent yet may seriously affect the general improvement of the child. All the more along these lines, such wrongful evacuation and maintenance might be in absolute dismissal or infringing upon the 13 requests of the capable court with respect to authority of the child”
Advantages of the 1980 convention suggested by the Law Commision
The current circumstance plays under the control of the abducting custodian. The culpable parent now and again usurps the part of the able Court. Earlier India’s non-signatory status had the negative effect on an outside Judge who regularly decreases a parent from taking the child to India dreading non-return. The Convention stays away from the issues that may emerge in Courts of various nations which are similarly skilled to choose such issues
The ideal arrangement will turn it into a signatory to The Hague Convention and establish an Indian International child Abduction Law and make a Central Authority for contact and for looking for settling under the watchful eye of assigned existing Indian Courts to determine such question to choose outline return or to render choices on justifying. In light of a legitimate concern for the child, the stalemate must end.
Without a residential law on “between parental child abduction” in India, all the time offspring of such NRIs who have grown up abroad turned out to be noiseless casualties of their individual conjugal debate when they are coercively brought back by one of the guardians. Be that as it may, this is set to change.
Like 90 nations that are a signatory to the 1983 Hague Convention on the Civil Aspects of International Parental Child Abduction, a persuasive expulsion of a child from a nation where they are constantly dwelling to India may soon turn into an offence.
The Hague Convention looks for “to shield to shield child universally from the unsafe impacts of their wrongful evacuation or maintenance and to set up methods to guarantee them to provoke come back to the State of their ongoing habitation, and in addition to secure insurance for the privileges of access.”
India is not currently a signatory to The Hague Convention. A nation needs to have a residential law set up before it can turn into a signatory.
The number of cases identified with between parental childcare clashes has gone up forcefully. The Hague Convention, a multilateral settlement created by The Hague Conference on Private International Law gives a quick technique for restoring child taken starting with the one-part country then onto the next.
The Convention was drafted to “guarantee the provoke return of the child who has been snatched from their nation of routine living arrangement or wrongfully held in a contracting state not their nation of ongoing home.”
The essential goal of the Convention is to safeguard whatever the present state of affairs child authority course of action existed instantly before an asserted wrongful evacuation or maintenance consequently preventing a parent from intersection worldwide limits looking for a more thoughtful court.
Legal actions one can take
As of now, there is no particular Indian enactment tending to issues identified with the abduction of the child from and into India. However, Law Commission of India had presented the 218th Report titled “Need to consent to The Hague Convention on the Civil Aspects of International Child Abduction 1980” on 30th March 2009.
Common Aspects of International Child Abduction Bill, 2016 is acquainted with the point with secure the incite return of child wrongfully evacuated to or held in any Contracting State, to guarantee that the privileges of care and access under the law of one Contracting State are regarded in the other Contracting States, and to build up a Central Authority and for issues associated therewith or accidental thereto.
The speedier cure is to record a Writ of Habeas Corpus in the High Court or the Supreme Court for the return of authority by a parent on the quality of a remote Court arrange or infringing upon parental rights. The elective cure is to start guardianship procedures under the Guardian and Wards Act, 1890 by driving proof and setting all apt material on the record under the watchful eye of a Guardian Judge. The process is bulky, repetitive and tedious.
Judicial view
In Surinder Kaur v. Harbax Singh Sandhu and in 1987 in Elizabeth Dinshaw v. Arvind M. Dinshaw, the Supreme Court practising its synopsis purview restored the abduction minor child to the outside nation of their root based on remote court care orders. In Dhanwanti Joshi v. Madhav Unde and, in Sarita Sharma v. Sushil Sharma, the Courts favoured remembering the child’s welfare and best advantages over every other viewpoint. In like manner, Foreign court orders turned out to be just a single thought in child authority debate which was to be settled on the benefits of each case with no outline return.
In V. Ravichandran v. UOI and again in Shilpa Aggarwal v. Aviral Mittal, the Supreme Court, following Habeas Corpus petitions, guided the outline return of a child to USA and UK individually, leaving all angles identifying with child welfare to be researched by Courts in the outside purview. In May 2011, in Ruchi Majoo V. Sanjeev Majoo, in an interest, in a Guardian and Wards appeal, the Supreme Court has coordinated that the procedures for choosing authority rights might go ahead under the steady gaze of the Guardian Judge at Delhi and till then the between time care should be with the mother. The father has been given appearance rights.
Principles governing
The Supreme Court laid down the following principles in its judgment on the case delivered.
The expression “Ordinarily resides” in Guardian & Wards Act to be determined also by ‘intention’ of parties and not merely on residence abroad or overseas nationality.
Custody Orders issued by foreign courts not to be taken as conclusive and binding but should be considered as just one of the factors or consideration that would go into the making of a final decision by an Indian Court. “Objectivity and not abject surrender is the mantra in such cases, ” says the apex court’s order.
Habeas Corpus petitions being summary in nature can determine custody issue of children present in its jurisdiction and also embark upon a detailed enquiry in cases where the welfare of a minor is in question. In Habeas Corpus proceedings, the legality of the detention of the alleged detenu in the territorial jurisdiction of the Court will be gone into.
The principle of “Comity of Courts” in child custody cases has generally held that foreign judgments are unconditionally conclusive. However, the welfare of the minor being paramount, the Supreme Court now says, Indian Courts are duty bound to examine the matter “taking the foreign Judgment only as an input for final consideration.”
Recent development by Indian Government
People are looking for such a kind of law that deals with these issues and accordingly on June 22, 2016, the Ministry of Women and Child Development (MWCD) transferred on its site a proposition to institute a draft of the Civil Aspects of International Child Abduction Bill, 2016. This was considered as it was basic to have an empowering enactment in India before the increase to The Hague Convention. The proposed Bill, to be renamed as the Civil Aspects of International Child Abduction Bill, 2016, was set on the Ministry’s site for remarks till July 13, 2016. Ideally now, the last form may discover Parliament’s endorsement to end up plainly a classified law.
The proposed Bill considers the expulsion to or the maintenance of a child in India to be wrongful in the event that it is in rupture of privileges of authority ascribed to a man, an organization, or some other body, either together or alone, at a place where the child was routinely occupant instantly before the evacuation or maintenance. It additionally stipulates that the evacuation to or the maintenance in India of a child is to be viewed as wrongful where at the season of expulsion or maintenance those rights were really worked out, either together or alone, by a man, an organization or some other body, or would have been so worked out, however for the evacuation or maintenance.
The draft Bill was readied following a reference made by the Punjab and Haryana High Court to the Law Commission of India to consider whether proposals ought to be made for authorizing a reasonable law and for marking The Hague Convention. The High Court had made this reference when a minor child stayed untraceable after she was expelled from the by right guardianship of the court and taken abroad by abusing an interval request of 2006. The court had seen in its request that for a need of the Indian government agreeing to The Hague Convention or instituting a household law, a child would keep on being cheerful far from and to India, with courts and specialists “remaining by in give up”.
Notable highlights – The Civil Aspects of International Child Abduction Bill, 2016
The Bill accommodates the constitution of a Central Authority.
A choice under The Hague Convention, 1980 concerning the arrival of the child isn’t the last assurance on benefits of the issue of care as India isn’t a signatory to it.
It traces the part of the Central experts with respect to a child, who is expelled to India, and from India to other Contracting State of The Hague Convention, 1980.
It sets down technique for securing the arrival of a child and accommodates the Central Authority to apply to the High Court for re-establishing care of the child.
It engages the Court to deny guardianship on specific grounds. It enables the Courts in India to perceive choices of State of the ‘routine home’ of the child.
It likewise expresses that the Indian Court that needs to dismiss the break/last request of the remote court must record purposes behind the same.
Awareness Programmes
“Bring Our Kids Home” is an association established by left behind guardians, whose kids have been abducted to India from the United States. They bring issues to light about International Parental Child Abduction (IPCA) inside the group and supporter for the provoke return of all stole American kids, casualties of this wrongdoing.
Through training, activism and support, they expect to change the way worldwide child abduction is seen and treated in the United States and India. Child abduction is child abuse and it is crime against kids and their deserted parent.They additionally try to have a wide coalition of help from Government, child’s rights group, legitimate community, media and in particular overall population
In India, there are various organisation as well as NGOs which are working on and for the maintenance and enforcement child right.
For example: “Cry” is an organisation working in this field. These organisations ensure and involve that all children be supported and shielded from unsafe impacts, mishandle and abuse in any frame and have a minding, secure family. By preparing groups to request least wages and benefit of government plans like business ensure plans, with the goal that they don’t need to send their kids to work. Along these lines by requesting for a responsible administration, making a more secure condition for India’s kids. For more information on can contact through:EMail: :[email protected]Tel :011-29533451/52/53,011-29531835
“Child Rights and shared parenting”(CRISP) is a Non-Governmental Organization (NGO) founded recently by a group of citizens, who recognize the serious effects of “parental alienation” on children due to single parent families on account of divorce or separation. CRISP also focuses on furthering the rights of a child to remain connected with both parents. While most NGOs pertaining to children deal with issues related to child labour, education etc. They also deal with issues related to the unquestionable right of children to be cared for by both biological parents.
Recent judicial development in India
In a noteworthy improvement, the Supreme Court on 1st December 2017 issued notice to the Central government in a request of looking for rules for countering International Parental Child Abduction (IPCA)
A Bench of Justices Rohinton Fali Nariman and Navin Sinha issued a notice in the petition by an “NGO Bring Your Kids Home” and two guardians, Nihar Panda and Siminder Kaur.
Cases where child is taken to a foreign territory after abduction
In the absence of proper laws a case of “abduction” by one parent, is treated as a case of a custody battle. If a country has signed the treaty, a court in the country where the child had been residing, passes an order that a child is returned. The court in the country where the child has been brought to passes a mirror order. This is not an order of custody. It just means that the child is taken back to the country of habitual residence where both parents may then file for custody.
For example: in 2012 Vividha’s mother, Sapna a British national who has affirmed that Vividha’s father “abducted” the child and took her to India 2009. Sapna claims that the family was living in the UK at the time and that Vividha was conveyed to India without her permission and authorization. Sapna says that she has been battling to take her little girl home since. In any case, guarantees that in the years that her little girl has been far from her, her husband and his family has harmed her girl’s brain against her with the outcome that her little girl wouldn’t like to live with her any longer.
Statistics related to child abduction
India is among the main ten nations to which child kidnapped from the UK are being taken by the abducting guardian.
A 2013 report found that in the vicinity of 2003 and 2013 the quantity of parental youngster kidnapping cases has multiplied in the UK.
India is number two on the rundown of nations to which children wrongfully abducted from the US are being taken
As indicated by US government information, there were more than 80 instances of parental abduction cases from the US to India
Parents who are trying to run away with their children feel India is the safe haven for them.
In 70% of cases, it is the mother who removes the child
Case study
Shanmughan case
Shanmughan of Texas is a U.S citizen, a business person who claims an organization in Texas, and a victim of International Parental Child Abduction. His U.S national daughters (Malia and Purul) were kidnapped on July 21, 2005, by his wife Sakshi (a US Resident for around 8 years) and taken to Bangalore (India) without his consent. This was in coordinate infringement of a Collin County Court’s order that removed his wife from expelling the children from Texas. On Oct 2nd, 2006, a similar Court granted the father (Shanmughan) sole care of his US native youngsters. Since 2 years Shanmughan has not seen her daughter. His father-in-law gone about as an assistant in kidnapping Shanmughan ‘s children from Texas. After running to India, his wife filed a divorce petition and then sold his property in Bangalore without his consent she likewise acquired an ex parte order from the neighbourhood Court in Bangalore giving her guardianship of the abducted children regardless of the way that she was Permanent US Resident.
Deshmukh’s case
Deshmukh of Bamberg, Germany says that his child has been held hostage by his wife and her helpers. He has been paying Rs. 18000 every month as upkeep for most recent 15 years, yet his better half has constantly denied him access to his child since she is anxious about the possibility that that once the child meets his father all the time, he will leave his mother (and she will lose her wellspring of pay). Both German and Indian courts have given him rights to visit the child; the lower Indian court and even the German court gave him care of the child, be that as it may, his better half outrightly declines to take after the court orders.In an attempt to deter Deshmukh from following the custody case his wife has filed a completely baseless 406 case against him. He has lost his property and his mom needed to pitch her home to battle this case.
Ramesh Krishnan’s case
Ramesh Krishnan – a US occupant, came to India. Ramesh purchases return tickets for his wife and child. His wife within 2 weeks of her stays in India filed for child’s guardianship in India. Ramesh moves the court in the US (where the child “Commonly dwelled”) for child-custody. Summons were sent to his wife. wife sends her complaint letter to the US Court; the court considers the letter and passes an order for Ramesh showing that it had the Jurisdiction to choose as the child had and would have kept on dwelling in the US however for the child abduction. Ramesh needed to contest before 4 judges because of Judicial exchanges. Ramesh challenges the case in India and gets a court order for him that required his wife to guarantee that the child has consistent contact with the father. She likewise filed a false dowry case against Ramesh. Ramesh has not been able to talk to his son for over a year now.
Vilas’s case
Vilas is a surgeon by profession. In September 2006 Vilas and her baby daughter (Amole) were abducted from Mumbai Airport (in transit from NZ to the UK) by his ex-wife and her helpers and taken to a small taluka in interior Maharashtra. Ever since his daughter was taken away from the airport he has not been able to meet or speak to her (more than a year). Vilas plea to produce children before the Honorable Mumbai court has still not being honoured by Indian legal system. In addition, his ex-wife has filed all sorts of criminal cases against him in UK, New Zealand and Indian courts to stop the children from seeing him. This has also put an end to his professional career. local Maharashtra police refused to register complaints against his ex-wife and her family and threatened to get him killed in a fake encounter.
Rana’s case
Rana is a US national who works for a presumed budgetary organization. On November 26th, 2006, his 6-year-old US native little girl Nalanda was abducted from the US and taken to India by his ex-wife, Nandini. Nandini petitioned for divorce as she was having an extramarital illicit relationship, and the gatherings were separated in January of 2005.In June of 2006, Nandini wedded her closest companion’s after his separation came through. After the marriage, Rana’s ex-wife intentionally beginning eliminating the time, that Rana was permitted with his little girl (who was extremely angry with this new course of action and her mother’s new spouse).
Under these conditions; Rana pushed for organized visitation and revised authority. On getting this notice, his ex-wife took his little girl and fled to India in striking back.In the interim, Rana sought after a lawful game-plan and the Court requested his ex-wife to send his little girl back for visitation in February of 2007. Rana’s ex-wife defied the request and disregarded every other request that took after and has not enabled the young lady to address her dad. On Dec nineteenth Rana was conceded sole guardianship and Nandini was given 30 days to return Nalanda to the US. Rana misses his girl in particular and needs her back in his life so he can give her a sincerely and fiscally stable life that she merits. He needs to shield her from the turmoil that her mom’s narrow-minded choices have placed her into again and again.
Where to Complaint if your spouse abducted your child?
As there is no law in India regulating Parental child abduction, there is no specific forum to approach to register your complaint. But you can approach the nearest court and obtain an order for interim custody with an apprehension and residence clause included. Make sure the court order clearly defines the details of custody, access, and limitations for travel. The court order should state the following:
The non-custodial parent may not travel abroad with the child outside of the province without first notifying you or the court in writing.
The non-custodial parent is to surrender passport, and the child’s if they possess it, to his/her lawyer. The non-custodial parent is to post a bond to ensure that the child is returned at the end of the visitation period.
Certify the custody order and keep it up to date. Keep a copy with you at all times.
If the non-custodial parent is allowed visitation with your children, there should be specific time-frames, e.g., Fridays from 6 p.m. to Sundays at 6 pm.
Any other as per circumstances of the case necessary to include.
Is abducting one’s own child an offence in India? Putting things simply
There is no law against Parental Kidnapping or Parental Child Abduction in India. If one parent chooses to take the children and restricting the other parent from meeting/ talking to the children), there is no law against it. The only option left for the later is to go to the court and fight a civil battle, which could last a decade if they’re lucky! There is nothing the other parent (left behind parent) can do except go through the tedious and lengthy court battle. Again, the chances are that the later will not be allowed to have any contact with their child again. Parents live in India and one parent (abducting parent) decides to take the children) to a separate country. Again in this scenario, there is not much the other parent (left behind parent) can do to since the Indian Judicial System does not consider the Parental Abduction as a criminal offence. With the rise in cases like these where one parent abducts the child, there should be laws in place which deem this as a criminal offence and also as an act of Child Abuse! Parental Kidnapping and Parental child Abduction should be treated in India as a criminal offence and should be considered an act of child abuse.
This article is written by Ramanuj Mukherjee, CEO and Co-Founder at iPleaders.
There are more than 15 lakh lawyers in the country. Standing out is very important if you are going to practice law, be it in big law firms or build your own law practice in some court. Lawyers make much more money when they specialize in a specific area of practice. Unless, of course, they specialize in a function (such as generalist in-house counsel) and not in an area of law. Still, it is a specialization nonetheless.
The example of a lawyer who specializes in a specific area of law, or more likely a specific industry, will be a capital markets lawyer, or an aviation lawyer. There can be super specializations as well.
For example, there are investment lawyers who do all sizes of investments. They will do private equity investments, venture capital or angel investment work, or even M&A work. Most Indian lawyers in big law firms do all these as long as clients are able to afford them. However, there are smaller boutique law firms who specialize in impact investments, or seed and angel round investments. They build their network, train their juniors, create a reputation – all around a specific, small industry that has enough work! It is very difficult to be the number one law firm in Venture Capital today, but you can still become the best Impact Investment boutique law firm in the country and benefit from the superstar effect! Here is an article that explains the concept of superstar effect, and why it is highly rewarding to systematically pursue this effect. Ever wondered why doctors spend decades pursuing super-super specializations even after getting a medical degree that takes them 5-6 years to obtain? It’s the superstar effect. By specializing, you eliminate intense competition.
In crowded markets, specialization reduces your options, but increases the likelihood of getting the options that you really seek.
Let’s take another example. Most big law firms have a banking law team. This team mainly negotiates debt agreements, ensures compliances to regulatory requirements and advice clients in these areas. Project finance is a super-specialization within banking. Many law firms didn’t have a project finance team initially. However, as work in this area grew (as India’s economic engine is often fired by government spending, which majorly goes into projects like naval ports, metro rail, airports and roads), project finance teams grew in size and now have become bigger than vanilla banking teams in some firms. There are boutique firms that only do project finance mostly.
The right specialization does not reduce your opportunities, but make you way more likely to attract the right opportunities for you.
How does this apply to law students and young lawyers?
I have many times heard senior lawyers giving the advice to young lawyers that they must not specialize in initial years and get general experience to start with. Remember that in the legal profession, learning used to be slow in the past, and specializing was incredibly difficult and rare.
The economics of legal business has changed. They supply of high quality law graduates (at least smart and confident ones) have really gone up in the past two decades. From a career pursued by some left over students who could not get seats in other colleges, law has become a sought after career for ambitious people in India. With decline of engineering and MBA as career options, the lure of the legal career is at an all time high. Parents are ready to spend obscene amounts to get their children into the right law colleges.
On the other hand, internet is a game changer. Today you can directly access wisdom of the finest practitioners of securities law or IP law through blogs for free or for a small cost access online courses and learn from practitioners at the cutting edge of law practice rather than professors who do not have any idea about how the practice of law and markets are rapidly evolving. You can also email or call or solicit the mentorship of any lawyer you want much easily because the world is connected and people are open to be reached out to much more than they have been in the past. All you need is the right messaging (bothering them or propositions that they do not appreciate will only get you blocked) and a reasonable proposition. Even after you graduate, the process of learning and growth must continue till you get where you want to get.
For ages, the legal profession depended on seniors willing to spend their time on their junior, educating them about how the work is done. Beyond that you could only rely on classes in law schools, textbooks, conferences etc to keep the learning alive. It was inefficient, and broken. If you want to specialize in Shipping Law, which is highly lucrative and relatively uncrowded, you could not find a single law school that offered classes on shipping laws. All the good shipping lawyers who knew enough may not bother to teach, and law teachers didn’t know what to teach if they had to offer a shipping law course to save their lives. On the other hand, publishers thought there are too few buyers to bother about publishing a Shipping Law book. If they did publish something, they cut costs as possibility of profits on a high budget shipping law book is really low. They also priced these books really high!
So if you wanted to learn shipping law, it was a nightmare for you. Only real chance would be to find a nice senior who likes you and is willing to spend his billable hours teaching you how to do it. If you think about it, the possibility of this actually happening was quite remote. Those who worked in big law firms know how little law firms actually teach their new recruits despite all the knowledge management programs.
The truth is that you are not dependant any more on your college, your teachers, some publishers, your senior, even online course providers for that matter, thanks to the internet, which opened a million doors. It is now up to you to open the right ones and walk through.
How early should you start building an area of expertise?
Apparently, it is never too early. Early in my career as a law student, I interned with an exceptional lawyer who made a name for himself very early in Bombay High Court as a shipping lawyer and is one of the owners of Chambers of George Rebello, regarded as one of the best Shipping Law firms in India. His name is Ashwin Shanker. Ashwin sir once interned with a shipping lawyer in his 2nd year of law school, following which he decided to become a shipping lawyer. After this, he focussed his undivided attention, as a law student at NLS Bangalore, as far as possible into shipping law. Every subject he studied, he tried to relate the same to shipping law. If he was studying insurance law, and asked to write a project on insurance law, he will chose to write about a topic relevant to shipping industry insurances. If it was Civil Procedure Code, he will find out which provisions of the CPC are most relevant to shipping law practice. When he finished law school he joined the Chambers of George Rebello. But even before that, all his internships were in shipping law firms!
I must say it is really difficult for young law students to demonstrate such a sharp focus and far sighted wisdom. As a law student, I myself wanted to explore different areas of law practice. I interned sometimes at a shipping law firm, then at a chamber that focussed on arbitration, then with a historian, and eventually with a few corporate law firms in different cities. I wanted to experience different things at different places. It is indeed tempting to do so and as a law student you have the luxury to do this. So why not?
But well, if you can discipline your mind and focus all your energy to one discipline, one specialization, your work becomes much easier, you gain notoriety amongst peers and teachers, and it becomes far easier to land lucrative jobs or start a practice of your own.
You must have had some people in your college or class who focussed on a single subject like that and gained notoriety. Maybe they are amazing at constitutional law, criminal law or something more esoteric. My co-founder at iPleaders is Abhyuday Agarwal, my best friend from college. While at college, he was legendary for his knowledge of corporate laws. When we were in 5th year at NUJS, the 4th year batch invited Abhyuday to take some special sessions to teach corporate law. If you know how much law students usually despise going to classes, how much rivalry often exist among different batches, and how many great lawyers are willing to come and teach at a place like NUJS, you will realise what a miracle and honour it is to be called by your immediate junior batch to teach corporate laws in several unscheduled classes for which nobody got any credits or attendance.
One of the leading practitioners of cyber law in the country in Puneet Bhasin, who focussed on cyber law right from her college days. By the time she graduated, this enabled her to start her own solo practice right off the bat rather than having to work with seniors for years before going solo, the usual norm in the industry.
How do people achieve that level of knowledge while they are still in college, and have pretty much same access to teachers, books, internet, library or visiting faculty?
Another good example I love to quote is of Jay Sayta from NUJS, who was being quoted as a gambling law expert in the national media by the time he was in his second year. This is also an amazing example of the superstar effect in action. What does it take to do that?
The secret – apply yourself to one area of law over time with dedication
Learning the law is the first step. Read bare acts, scan through any available commentaries. However, it gets boring quickly. So make it interesting. Here are few things you can do:
Write in legal publications and contribute to major blogs. When you publish interesting articles and people read them, give you feedback, it makes a difference.
Set up google alerts so that you can keep in touch with what is happening in that area of law, and news. For example, if Securities Law is your chosen area of expertise, you want to know when new committees are set up by SEBI and there are controversies in the capital markets over new SEBI directions.
Read classic books that are not law books but business related non-fiction. A good example will be Cold Steel if you are interested in M&A. You should also read books like Predators Ball or Barbarians at the Gate. If you are interested in laws related to startups, read Zero to One by Peter Thiel and The Upstarts which is the story of the growth of AirBnB and Uber.
Even start a blog if you are writing frequently and you are sure you can publish at least once a week without fail for next year or two.
Organize conferences and symposiums around your area of interest. Connect with industry insiders. Or just volunteer in events that are already taking place. All events need more and more volunteers.
Take up online courses in your area of interest that promise practical learning along with theoretical knowledge. Only certificates are not useful on their own unless you have skills to back up. Check out courses.lawsikho.com and onlinecourses.nujs.edu for courses that fall squarely in your area of interest.
Go for internships in your area of interest rather than taking up any internships that come your way. Network hard, get recommendations and referrals. If you are doing some of the above, getting the right internships become easier. If you are already a graduate, try and get a job in the firms that are doing the best work in your area of interest. Here is a program that can help you to get amazing internships and perform better than your peers.
After you publish your articles in any respectable online blog (preferably, and not boring and difficult to share journal articles), share the links on linkedin with people from the same industry and ask for their feedback on how you can improve.
File PILs in your area of interest. Help those organizations who are already filing PILs. PILs have no specific format, cost little to file, and if you choose the right cause many experienced lawyers will be happy to mentor and guide you. What amazing learning is that? For instance, while jay Sayta was still in college, he collaborated with practicing lawyers to sue the Maharashtra Government for not implementing a casino related bills that it passed in the state legislature but never notified. Top lawyers in Mumbai helped him in the process pro bono.
Start doing some freelance work in your area of interest, for other lawyers or businessmen. People will pay you for high quality research, first drafts of contracts, ghostwriting, help in research to write books, and what not. Explore.
There are lot many opportunities that you can invent, seize or discover. It requires you to get into the water to figure out how to catch the fishes and where to position yourself. Get started with small steps! Do something today, take small steps every day, do not wait for some perfect opportunities to come by.
All the best! If you are interested in quickly gaining some skills around business law/corporate law, check out this course I conceptualized.
In this article, Akanksha Mathur of National Law University, Delhi discusses the procedure to go for mediation and the issues one should be aware of before going for it.
With changing times, an increasing number of people are resorting to alternative methods of dispute resolution such as mediation in order to resolve their issues.
What is Mediation?
Mediation is an alternative method of resolving disputes without resorting to the courts. It is a structured, voluntary and interactive negotiation process where a neutral third-party uses specialized communication and negotiation techniques to help the parties in fulfilling their stated objectives. As a party-centred process, it focuses on the interests, needs and rights of the parties.
Laws Governing Mediation in India
Mediation first came to be legally recognised as a method of dispute resolution in the Industrial Disputes Act, 1947.
In 1999, the Code of Civil Procedure Amendment Act was passed by the Parliament. It provided for Section 89 of the Code of Civil Procedure, 1908 which allowed the courts to refer to alternative dispute resolution (ADR) methods to settle pending disputes.
Under this, consent of the parties was made mandatory and the court could refer cases for arbitration, conciliation, judicial settlement through Lok Adalat, or mediation.
Moreover, the Civil Procedure- Mediation Rules, 2003 provide for mandatory mediation under r. 5(f)(iii). These allow the court to refer cases for mediation even when the parties are not ready for reference for mediation if there is an element of settlement.
Types of Mediation
Mediation is of many kinds-
Statutory/Mandatory
There are some kinds of disputes that are required by law to be subjected to the mediation process, such as disputes in labour and family law. In India, r. 5(f)(iii) of the Civil Procedure- Mediation Rules, 2003 provide for mandatory mediation, though recourse to it is rare.
Court Ordered
Some sort of alternative dispute resolution is required by most jurisdictions in India before resolution through the judicial process. As soon as a case is filed, the parties are provided with a number of ADR options out of which they must select and pursue one unless exempted by the court.
Court-Annexed
Under Court-Annexed Mediation, the mediation services are provided by the court as part of the judicial system.
The Court maintains a list of skilled and experienced mediators who are available to the parties. The Court appoints a mediator and sets a date by when the mediation must be completed. The results of the mediation are confidential, and any agreement reached is enforceable as a judgement of the court.
Since the case is referred to a court-annexed mediation service, the overall supervision is kept on the process and there is no feeling of abandonment by the system. The litigants, lawyers and judges become participants in the system and it is felt that the settlement is achieved by all the actors in the justice delivery system.
The same lawyers who appeared in the case represent their clients before a mediator and the litigants are also allowed to participate. The popular acceptance for mediation also improves as it is the integral and impartial court-system which is seen as extending an additional service. The dispensation of justice thus becomes well-coordinated.
Court-Referred
Under Court-Referred Mediation, the court merely refers the matter to a mediator.
Private
In private mediation, mediation services are offered on a private, monetary basis by qualified mediators to the Court, general public, and the commercial and governmental sectors for dispute resolution through mediation. Recourse may also be taken to private mediation in pending cases or pre-litigation disputes.
Contractual
Parties to a contract may include a mediation clause to resolve disputes as part of the terms of their agreement as it can effectively resolve contractual disputes before they turn into a protracted legal battle. The conditions of the mediation and the selection of the mediator are mentioned in the contract. The results of the mediation may be enforced as judgements of a court.
VoluntaryParties to a dispute may also decide to seek mediation off their own accord, without being compelled by the law, the court or a contract. This can be done at any time and is controlled by the parties.
Click Above
Cases Suited for ADR
In Afcons Infrastructure Ltd. and Anr. V. Cherian Varkey Construction Co. Pvt. Ltd. and Ors., the Supreme Court laid down guidelines pertaining to the kind of cases that would be eligible for ADR and those not. It ruled that the following nature of cases would be considered unsuitable for ADR-
Representative suits under Order 1 Rule 8 CPC which involve public interest or interest of numerous persons who are not parties before the court.
Disputes relating to election to public offices.
Cases involving grant of authority by the court after enquiry, as for example, suits for grant of probate or letters of administration.
Cases involving serious and specific allegations of fraud, fabrication of documents, forgery, impersonation, coercion etc.
Cases requiring protection of courts, as for example, claims against minors, deities and mentally challenged and suits for declaration of title against government.
Cases involving prosecution for criminal offences.
All other civil suits and cases were to be considered suitable for ADR, such as-
All cases relating to trade, commerce and contracts, including-
Disputes arising out of contracts (including all money claims);
Disputes relating to specific performance;
Disputes between suppliers and customers;
Disputes between bankers and customers;
Disputes between developers/builders and customers;
Disputes between landlords and tenants/licensor and licensees;
Disputes between insurer and insured;
All cases arising from strained or soured relationships, including-
Disputes relating to matrimonial causes, maintenance, custody of children;
Disputes relating to partition/division among family members/co-parceners/co-owners;
Disputes relating to partnership among partners.
All cases where there is a need for continuation of the pre-existing relationship in spite of the disputes, including-
Disputes between neighbours (relating to encroachments, nuisance etc.);
Disputes between employers and employees;
Disputes among members of societies/associations/Apartment owners Associations;
All cases relating to tortious liability including
claims for compensation in motor accidents/other accidents;
All consumer disputes including
Disputes where a trader/supplier/manufacturer/service provider is keen to maintain his business/professional reputation and credibility or `product popularity.
Steps in the Mediation Process
Whenever any case is to be sent to mediation, the following steps are followed-
Step 1: Convening the Mediation Process
The convening of the mediation is often the most difficult and challenging part of the mediation process. It involves a varied range of procedures-
Reference to ADR by the Court
The court is required to direct the parties to opt for any of the five modes of alternative dispute resolution and to refer the case for Arbitration, Conciliation, Judicial Settlement, Lok Adalat or mediation under Section 89 and Order X Rule 1A of Code of Civil Procedure, 1908.
The Court must consider the option exercised by the parties and the suitability of the particular case for the option chosen. The judge making the reference, known as the referral judge, is required to acquaint himself with the facts and the nature of the dispute, and objectively assess the suitability of ADR.
This appropriate stage for making the reference in civil cases is after the completion of pleadings and before framing the issues, while in cases pertaining to family law, the appropriate time for making the reference would be immediately after service of notice on the respondent and before the filing of objections/written statements by the respondent.
Even if the court did not refer the cases to ADR at these times, nothing prevents it from referring to it at a later stage.
Preparation for Mediation
The referral judge then has the crucial job of bringing the parties together and motivating them to resolve their disputes through mediation. This involves finding the reasons for any disinclination on behalf of the parties to enter into mediation, along with explaining the concept, process and advantages of mediation.
While the consent of parties is required for mediation, the court can also apply external pressure to induce the parties to enter the mediation, to the extent of ordering or forcing them to do so.
Referral Order
A referral order issued by the referral judge initiates the process of mediation and s the foundation of a court-referred mediation. An ideal referral order contains details like name of the referral judge, case number, name of the parties, date and year of institution of the case, stage of trial, nature of the dispute, the statutory provision under which the reference is made, next date of hearing before the referral court, whether the parties have consented for mediation, name of the institution/mediator to whom the case is referred for mediation, the date and time for the parties to report before the institution/ mediator, the time limit for completing the mediation, quantum of fee/remuneration if payable and contact address and telephone numbers of the parties and their advocates.
Step 2: Initiation of the Mediation Process
The mediator has to ensure that the parties and their counsels are present at the commencement of the mediation process.
Introduction and Opening Statement
Introduction
The mediator gives an introduction with his qualifications, establishes his neutrality and reposes faith in the mediation process.
The mediator requests the parties to introduce themselves, attempts to develop a rapport with them and gain their confidence and trust.
The motive is to create a constructive environment conducive to negotiations and motivate the parties for an amicable resolution of disputes.
The mediator establishes control over the mediation process.
There is no standard set of rules that have to be followed, making the mediation procedure flexible.
Opening Statements
The mediator’s opening statement is intended to explain to the parties-
the concepts, processes and stages of mediation,
the role of the mediator, advocates and parties and
the advantages and ground rules of mediation.
The mediator confirms that the parties have understood the process and gives them the opportunity to get any doubts clarified.
Statements are also sought from the negotiators. The parties articulate their positions, enabling the other party to understand what they want.
This is followed by a restatement of the problem by the mediator where an attempt is made to incorporate the differing perspectives.
Step 3: Setting the Agenda
Setting the agenda is an important duty imparted on the mediator in order to shed clarity on the mediation proceedings and remove vagueness.
It involves setting down the order in which negotiation is to proceed and gives the parties a standard using which they can individually evaluate the progress of the negotiations.
The mediator may mention the time and venues for the negotiation sessions, along with the issues before the parties, to be discussed sequentially.
Step 4: Facilitation of Negotiation and Generation of Options
Joint Session
The purpose of the joint session is to gather information.
The mediator provides an opportunity for the parties to hear and understand each other’s perspectives, relationships and feelings.
The petitioner is allowed to explain their case in their own words, followed by the presentation of the case by their counsel and the statement of the legal issues. Similarly, the defendant is allowed to explain their case, followed by the presentation of the case and statement of the legal issues involved by the defendant’s counsel.
The mediator attempts to understand the facts, issues, obstacles and possibilities and ensures that each participant feels heard.
The mediator encourages communication and asks questions to elicit information.
At the completion of the joint session, the mediator may also suggest meeting each party with their counsel separately.
Separate Sessions
The separate sessions are meant for the mediator to understand the dispute at a deeper level.
It provides the parties with a forum to further vent their feelings and disclose confidential information they do not wish to share with the other parties.
It helps the mediator to understand the underlying interests of the parties, the positions taken by them and the reasons for these positions, identify areas of dispute, differential priorities and common interests, and to shift the parties to a mood of finding mutually-acceptable solutions.
The mediator is supposed to reaffirm confidentiality, gather further information and challenge and test the perceptions and conclusions of the parties in order to open their minds to different possibilities. This is to be done by asking effective questions and helping the parties understand the strengths and weaknesses of their cases.
The mediator offers options which he feels bests satisfies the underlying interests of the parties.
Step 5: Reaching a Settlement
By helping parties to understand the reality of their situation and give up rigid positions, the mediator creates creative options for settlement.
The mediator can conduct as many separate sessions as necessary and may even conduct sessions with groups on the same side with diverging interests.
The parties negotiate through the mediator until a solution mutually acceptable to all the parties involved. The mediator directs the parties to a solution which he believes will satisfy the underlying interests of the parties.
In case negotiations fail, the case is sent back to the referral court.
Step 6: Closing
There is no fixed procedure that must be followed.
Once the terms of the settlement have been agreed to, the parties are reassembled.
The mediator orally confirms the terms the terms of the settlement as a procedural requirement.
The parties, with the mediator’s aid, write down the terms of the settlement and sign the agreement.
The settlement has the binding nature of a contract and is enforceable in a court of law.
In his closing comment, the mediator thanks the parties for their help and participation in the mediation process.
In case no settlement is reached between the parties, the case is returned to the referral court stating failure to settle. The proceedings of the mediation are kept confidential and cannot be revealed even to the court.
Advantages of Mediation
Mediation is a better and more lucrative alternative to the court system as-
Control- It gives the parties control over the scope of the mediation in terms of the issues discussed, and its outcome, with regard to the terms of the settlement and to settle or not.
Control is vested not with a judge or jury, but the parties themselves and helps them in reaching a mutually agreeable solution.
By giving control to the parties, it may also result in the settling of related and connected issues and disputes.
It also allows the parties to satisfy their long-term and underlying interests at each stage. This is immensely beneficial as it allows the parties creativity in examining alternatives, evaluating options and reaching a settlement. When the parties themselves agree to the terms of the settlement, there is compliance with the terms.
Consent-based- Based on voluntary consent, it allows any party to opt out at any stage if they find mediation to be unhelpful.
Participation- It allows the parties to directly participate in the negotiation and present the case in their own perspective.
Economical- Mediation takes less time to resolve disputes than standard legal channels. While courts may take months or years to pronounce judgements in cases, mediations take mere hours. According to figures released by the Bangalore Mediation Centre, while the mediation process can take a maximum of 60 days, the average time taken to settle a case is a mere two hours.
If a settlement is reached, the parties also save money on their hourly costs and no further litigation. Court fees are also refunded.
Since it takes less time, it is speedy, economical and efficient.
Confidentiality- Mediations remain strictly confidential, with the terms of the mediation being known only to the parties involved and the mediator. This aids in better and effective communication between the parties.
Conducive to dispute resolution- By providing a procedure that is simple and flexible, mediation can be modified to the demands of each case and allows the parties to carry on with their day to day activities. It thus created an informal, cordial and conducive environment for dispute resolution.
Mutuality- Since parties to a mediation are amenable to mutually working towards a solution, they are more receptive to the other party’s side. This aids in restoring the relationship between the parties and settles the dispute in a mutually beneficial manner.
Support by mediator- As a neutral, impartial and independent third-party, mediators ensure that the mediation remains a fair process. They also guide the parties through the process as neutral facilitators, encourage creativity in resolution and broaden the range of solutions.
Finality- Mediation promotes finality in dispute resolution as there is no scope for an appeal, a revision or further litigation on the successful conclusion of a mediation.
Refund of court fees- Court-referred mediation also allows for a refund of court fees in cases of settlement.
Disadvantages of Mediation
Informality- In the informal setting of a mediation, there are no formal rules or procedures that have to be followed. Thus, mediators do not have access to a lot of tools to get people to testify or produce evidence to get to the truth of a matter.
Unfairness- Moreover, the lack of formal rules means that there is no way to ensure a fair procedure for the parties involved. An aggressive party might be able to steamroll a timid one despite the best efforts of the mediator.
The imbalances of power that exist in a family may thus also lead to unfairness in the mediation.
Success not guaranteed- Mediation may also be unsuccessful and not lead to a settlement between the parties involved. The parties will then have to resort to the money and time intensive court system after already wasting a significant amount of them in the mediation.
Non-binding- The agreement reached in a mediation is non-binding. Parties to a settlement may also attempt to dispute the settlement agreement in case the agreement is not made binding on them. They can file another suit in court challenging the legitimacy of the settlement, creating another dispute on top of the underlying one.
The only solution to this is to agree to make the settlement agreement binding on both parties before signing it.
What To Consider When Going for Mediation
Time and Cost of the Mediation Process
Time
Mediation can take any amount of time, ranging from several hours to days. This depends on the complexity of the issues to be discussed, the number of parties, and their preparation, flexibility, and desire to resolve disputes.
According to figures presented by the Bangalore Mediation Centre, however, the average mediation in India takes only two hours. Moreover, the parties are given a maximum of 60 days to resolve their disputes before reverting to the court.
Cost
The cost of mediation is extremely economical as compared to the courts. A single motion filed by an attorney often costs more than the mediation. Mediation fees currently range between Rs. 15,000 to Rs. 70,000.
A mediation is also less emotionally stressful than a trial might be.
What to Discuss With Your Lawyer Before Going to Mediation
Alternatives to Trial to be Taken Up
Alternative methods to litigation and trial for dispute resolution that can be referred to by the court include arbitration, conciliation, judicial settlement through Lok Adalat, and mediation. It is a good idea to discuss with your lawyer exactly which method to take up as an alternative to trial.
Form of Mediation to be Pursued
There are many different forms of mediation, with the most popular being traditional mediation. A traditional mediation has many distinct phases, such as openings, joint sessions etc. Other forms of mediation include-
The success of a mediation depends highly on the parties present at the table. This, too, varies according to the kind of mediation.
Any mediation requires a person who can make a binding decision to be present.
Parties may also want their technical experts to be present as it allows them the opportunity to learn more in a short amount of time.
In emotionally charged mediation, it may be prudent for a party to ensure the presence of their psychologist.
Risk Factors
Mediation statements are issued by the parties days before the mediation begins. These contain the factual claims and legal arguments according to a party. The parties and their counsels then need to discuss the risk factors, i.e. the opposition’s strengths and their weaknesses. This also allows them to start considering solutions.
Timing of the Mediation
Timing is crucial in a mediation. A person should discuss the timing of the mediation with their lawyer. The ideal time is as early in the dispute as possible after the parties and counsels have a good knowledge of the factual and legal issues. It should take place before expensive phases in the trial, such as depositions.
Challenging a Mediation Agreement
A successful mediation results in a negotiated agreement that takes the place of a contract between the parties. The parties cannot pursue any litigation for the underlying dispute if they are dissatisfied with the settlement reached as it would amount to a breach of the contract.
However, if the parties wish to dispute the agreement, they can bring an action in court challenging the validity of the agreement based on principles of contract law, and not on the basis of the underlying dispute.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:
In this article, Amandeep Singh discusses whether a criminal conviction in Indian Courts impacts the ability to stand for election in India or not.
Introduction
Ours is a constitutional democracy and it is axiomatic that the citizens have the right to know about the affairs of the Government. People in India vote for persons who govern them and usually the persons whom they vote for are termed as Public Servants. But there are some persons who in the disguise of Public Servants are criminals. This article elaborates on how different laws in India treat criminal politician and answers whether a criminal conviction in Indian Courts impacts the ability to stand for election or not.
Representation of People Act, 1951: How Elections are regulated in India
Elections in India are held by the Election Commission of India which has the residuary power under the Constitution to act in a suitable way under Article 324. We live in a democracy and have a parliamentary system of Government. The core of this framework is a promise to hold customary, free and reasonable decisions.
The Representation of People Act, 1951 was enacted to fill the seats of House or Houses of Parliament and to the Houses of each State, the qualification and disqualification for the participation of those houses.
Be that as it may, we as voters have the privilege to know who are we voting in favor of and why as it will help us in discovering the best contestant in the election.
The qualification of contesting elections in India gets invalidated if there are any criminal allegations going on or the applicant has been sentenced before for any offense.
‘Election’ is defined in Section 2 (d) of Representation of People Act, 1951 as “an election to fill a seat or seats in either House of Parliament or in the House or either House of Legislature of a State other than the State of Jammu and Kashmir.”
‘Conviction’ is defined as “an outcome of a criminal prosecution which concludes in a judgment that the defendant is guilty of the crime charged.”
Conviction of Politicians standing for Election
Political parties and Corruption are interrelated to each other. Influence of cash affects the election procedure, the influence of cash has an evil impact on the election procedure and trading off the honesty of discretionary vote based system remains a huge test today. Candidates with criminal records don’t cover their reputation. Prior this year in January, a politician having a seat in the ruling party in Northern Uttar Pradesh State reportedly bloated to a party worker that he was the “greatest criminal”. Such affirmations by politicians and the advancement of media today help in making things straightforward.
If a person contesting election is charged with any criminal charges or has been convicted for the same earlier loses his right to stand for election according to the statute. Section 8 of Representation of People Act, 1951 provides various grounds under which a person may be disqualification on conviction for certain offenses.
Section 8(1) states that a person convicted of an offense punishable under
Section 153A i.e. offence of promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony or Section 171E i.e. offence of bribery or Section 171F i.e. offence of undue influence or any offence relating to rape given in Section 376 or offence of cruelty towards a woman by husband or any relative of husband or sub section (2) or (3) of Section 505 which states offence of making statement creating or promoting enmity, hatred or ill-will between classes or offence relating to such statement in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies; of the Indian Penal Code (45 of 1860).
Likewise, there are various other offenses which if committed by a candidate will lead him to disqualification. For instance :
Protection of Civil Rights Act, 1955 which provides for preaching and practice of untouchability.
Section 11 of the Customs Act, 1962 which states the offense of importing and exporting of prohibited goods.
Sections 10 to 12 of Unlawful Activities (Prevention) Act, 1967 i.e. offense of being a member of an unlawful association.
The Narcotics Drugs and Psychotropic Substances Act, 1985
The Prevention of Corruption Act, 1988
Shall be disqualified, where the convicted person is sentenced to –
(i) Only fine, for a period of six years from the date of such conviction;
(ii) Imprisonment, from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.
Supposing a politician is on bail, pending disposal of his appeal, can he contest the election?
No
Even if is a person is on bail, after the conviction and his appeal is pending for disposal, he is disqualified from contesting an election as per the guidelines issued by the Election Commission of India.
On 10 July 2013, the Hon’ble Supreme Court of India, in its judgment of the Lily Thomas v. Union of India case (along with Lok Prahari v. Union of India), decided that any Member of Parliament (MP), Member of the Legislative Assembly (MLA) or Member of a Legislative Council (MLC) who is sentenced for a crime and granted at least two years of imprisonment, loses membership of the House with immediate effect.
This is opposed to the earlier position, wherein sentenced members clutched their seats until the point that they exhausted all judicial solution in lower, state and Supreme court of India. Further, Section 8(4) of the Representation of the People Act, which permitted elected representatives three months to appeal their conviction, was proclaimed unconstitutional by the seat of Justice A. K. Patnaik and Justice S. J. Mukhopadhaya.
While trying to overturn this decision, the Representation of the People (Second Amendment and Validation) Bill, 2013, was introduced in Rajya Sabha on 30 August by Law Minister Kapil Sibal; by the proposed amendment, representatives will be disqualified promptly after conviction.
The Indian government also filed a review petition, which the Supreme Court dismissed.
On 24 September, a couple of days before the fodder scam verdict, the Government attempted to bring the bill into effect as an ordinance.
However, Rahul Gandhi, Vice-President of the Indian National Congress, made his opinion of the ordinance clear in a press meeting: “It’s complete nonsense. It ought to be torn up and thrown away.”
Members of opposition party asserted that Gandhi’s remarks indicated total confusion within the government and called for the resignation of Prime Minister Manmohan Singh.
Within 5 days, both the ordinance and the bill were withdrawn on 2 October.
On 1 October 2013, Rasheed Masood turned into the principal MP to lose his membership of parliament under the new guidelines, when he was sentenced to four years imprisonment for cheating, forgery, and corruption.
If an aggrieved person wants to complain about the corrupt practices going on in any phase of election process then he can make a complaint to the Election Commission of India where there is the office of Chief Election Commissioner.
Role of Cash Flow in Electoral Process
“When power is married to money, it gives birth to corruption.”
Where there is money there is corruption.
Dr. SY Quraishi and Shri Satya Narain Sahu opined that the main source of Corruption is Election expenses. Huge amount of money is spent in elections and that is why people who are rich enter into politics
But such huge amount that is spent in contesting elections is out of the prescribed legal limits.
It has likewise been powerfully contended that the reason and reasons for corruption can be followed by the huge measure of cash spent in election process i.e. election by the political parties.
If the measure can be taken to effectively manage it, at that point the very root of corruption can be hit with a conclusive blow and a perfect country and an ideal society can be built up.
A committee was set up in 1964 by the then Home Minister of India, Shri Lal Bahadur Shastri named as The Santhanam Committee on Prevention of Corruption which in its report stated :
“ The public belief in the prevalence of corruption at higher political levels has been strengthened by the manner in which funds or private funds are invested in contesting elections.”
This report also stated that this conduct of political parties should be regulated by making strict principles in relation to the collection of funds and electioneering.
A candidate is not free to spend as much as he likes on his election. The law prescribes that the total election expenditure shall not exceed the maximum limit prescribed under Rule 90 of the Conduct of Election Rules, 1961. It would also amount to a corrupt practice under sec 123 (6) of R. P. Act, 1951 and will result in candidate’s disqualification.
The limit for election expenditure is revised according to the needs of the growing society. Presently the upper limit of expenditure for a parliamentary constituency in states like Uttar Pradesh, Bihar, Andhra Pradesh, Madhya Pradesh is Rs. 40 lakhs.
It is true that the elections cannot be held without a huge amount of money but it should be made transparent as to from where these funds are coming into the election process whether they are coming from the supporters and sympathizers or from private funds of the person contesting the election.
Interesting Statistics an Electorate must know about corruption in election process.
Indian Politicians who have been charged with serious offenses or have been convicted for such offenses are more likely to win elections than those who have never committed a wrong. Below is the data are taken from the association of democratic reforms :
According to this data,
34% of the Members of Parliament (MPs) in the Lower House i.e. Lok Sabha have criminal charges filed against them and the percentage is rising with time.
Some are charged with less serious crimes like unlawful assembly or theft. But around one-fifth of the politicians are facing or have faced serious criminal charges like rape, murder, criminal intimidation and worse.
The percentage given in the chart is of those MPs, cases of whom are still pending before the Court.
As the Judicial System in India has a backlog of 31 million cases, cases with serious crimes take a long period of time to try, but slowly and steadily the cases are being disposed of.
How can criminalization in politics be reduced?
For this, the most important approach would be to bring the political parties under the purview of Right to Information Act, 2005.
Section 2(h) of RTI, 2005 defines “Public Authority” as any authority or body or institution of self-government established or constituted,—
(a) By or under the Constitution;
(b) By any other law made by Parliament;
(c) By any other law made by State Legislature;
(d) By notification issued or order made by the appropriate Government, and includes any
(i) Body owned, controlled or substantially financed;
(ii) Non‑Government Organisation substantially financed, directly or indirectly by funds provided by the appropriate Government;
If the political parties are put under section 2(h) of RTI Act, 2005 they will be obliged to be transparent in every process of election from funding till the election symbol but unfortunately, the Government is busy with some more important work like the Ayodhya Dispute.
Every voter has the right to information as to whom he is voting for and from where that contestant is acquiring funds but as political parties do not come under RTI Act, they are not liable to provide the voters with any such information. This is because there is a lot of interference of Executive in Judiciary.
In regard to the same, Hon’ble Supreme Court in the case of Namit Sharma V. Union of India (2013) 1 SCC 745
Held: “Besides Separation of Powers, the independence of Judiciary is of fundamental constitutional value in the structure of our Constitution. Impartiality, Independence, Fairness, and Reasonableness in judicial decision making are the hallmarks of the judiciary.”
Common offenses committed by politicians
Disproportionate Assets
A Public Servant is said to carry out the offence of Criminal Misconduct (of ownership of disproportionate assets), “on the off chance that he or any individual for his sake, is under lock and key or has, whenever amid the time of his office, been under lock and key for which general society hireling can’t attractively account, of monetary assets or property lopsided to his known wellsprings of salary”, as set down under statement (e) of sub-sec.(1) of sec.13 of the Prevention of Corruption Act, 1988.
The assets are disproportionate if, on a given date decided for the reason, they are found to surpass the actual savings meeting the total expenditure incurred by him. It is an offense just if the assets are disproportionate to his known sources of salary.
Scams
Scams basically mean Fraud or a dishonest scheme.
There are various scams which have taken place in India.
Indian Coal Allocation Scam took place in 2012 amounting to Rs. 1,86,000 Crores. This Scam shook India.
2G Spectrum Scam took place in 2008 amounting to Rs. 1,76,000 crores in which Mr. A Raja and Kanimozhi and other accused were acquitted.
The Fodder Scam of the 1990s in which Mr. Lalu Prasad Yadav was convicted. The scam amounted to Rs 1,000 Crores.
Commonwealth Games Scam of 2010 amounted to a handsome amount of 70,000 Crores.
Such enormous amount of money of the people of India is being laundered by these corrupt politicians but having hold of the sovereign authority, they enjoy freedom from Jail but the Judiciary is working on these issues and justice is being preserved.
List of elected representatives disqualified after conviction by the court of law
Rasheed Masood, a Rajya Sabha MP from Uttar Pradesh belonging to the Congress Party, was convicted for 4 years in MBBS seat scam and was disqualified from Rajya Sabha.
Lalu Prasad Yadav, Lok Sabha MP from Saran, Bihar belonging to Rashtriya Janta Dal (RJD), was convicted for 5 years in fodder scam and was disqualified from Lok Sabha.
Jagdish Sharma, Lok Sabha MP from Jahanabad, Bihar belonging to Rashtriya Janta Dal (RJD), was convicted for 4 years in fodder scam and also was disqualified from Lok Sabha.
Babanrao Gholap, MLA from Deolali, Maharashtra belonging to Shiv Sena was convicted for 3 years in disproportionate assets case and was disqualified from the Legislative Assembly.
T.M Selvaganapathy, Rajya Sabha MP from Tamil Nadu belonging to DMK was convicted for 2 years in cremation shed case and was disqualified from Rajya Sabha.
Suresh Halvankar, MLA from Ichalkaranji, Maharashtra belonging to Bhartiya Janta Party (BJP) was convicted for 3 years in power theft case and was disqualified from the Legislative Assembly.
J. Jayalalitha, Chief Minister of Tamil Nadu, MLA from R.K Nagar, Tamil Nadu was convicted for 4 years and fined of Rs 100 Crores in disproportionate asset case and was disqualified.
Asha Rani, MLA from Bijawar, Madhya Pradesh belonging to Bhartiya Janta Party (BJP) was convicted of abetting suicide maid and was disqualified from the Legislative Assembly.
Kamal Kishore Bhagat, MLA from Lohardaga (Vidhan Sabha Constituency) Jharkhand was convicted for attempt to murder case and was disqualified from the Legislative Assembly.
There are various recent cases where one can see politicians facing criminal charges like Mr. A Raja, Kanimozhi, and 17 others were acquitted by a CBI Court in 2G Spectrum Case. Then Comes the Fodder Scam where Mr. Lalu Prasad Yadav and 15 others were convicted of corruption charges.
As stated by me earlier, where there is a huge amount of money there will be corruption so there is a need to allocate funds in the starting only that means at the time of nomination in the election process. This will help in minimising the amount of money which at a later stage will not lead to corruption. So, a person having been convicted is not at all reliable and is also not trustworthy as to he will not cause corruption after coming into power. For further information on Disclosures to be made by a candidate when contesting an election in India.
In this article, Sushant Pandey discusses the laws regulating School and College fees in India.
Introduction
The significance of a logic of training is that it characterizes the reason and centre of an instructive foundation. It turns into a piece of its statement of purpose which thusly characterizes what subjects are instructed, how they are educated and, maybe more significantly, the qualities that are educated both certainly and expressly alongside the subjects being secured and In all these cases a fee is to be paid to the educational institution. The reason for education, as depicted by scholars, is by and large thought to be the multiplication of a culture.
Laws regulating School and College Fees
As of today, there is no enactment proposed to control fees in private professional institutions. In any case, the strategy for controlling the fee structure in private professional establishments has been set down in view of the Supreme Court of India heading on account of T.M.A. Pai Foundation and Others Vs State of Karnataka & Others on 31 October 2002 wherein the Court has requested that each State Government ought to constitute a Committee to settle the roof on the fee chargeable by a professional college or class of professional college, by and large. This board of trustees should, in the wake of hearing the professional colleges, settle the fees once like clockwork or at such longer period, as it might think proper until such time that the National Fee Committee fixes such standards.
AICTE and UGC Standards
The standard set by education controlling bodies is also a key guide to the college as well as the other educational institutions. All India Council for Technical Education (AICTE) in its first fee committee meeting laid down the standard & recommended maximum tuition and development fee per annum for full-time programmes by the national fee committee. Recommendations made are accepted by the Council and shall have been followed. These standards cover all such kind of issues and figures estimated that are to be used by every engineering college, including the maximum limit for charging the fee and various relaxation to various group of societies. These are:
AICTE will control the fee charged by the institutions.
Basic fees charged by the institution shall include the cost of providing and maintaining infrastructure and other services provided.
If an institution providing facilities beyond the minimum limit prescribed, such institutions may be allowed to charge the fee higher than prescribed.
Fee concessions are to be provided for students of socially and economically weaker sections.
There can be a higher fee for the foreign nationals.
There are 4 types under which fees can be charged, these are:
Tuition
Development
Examination
Other
Procedure for approval of fees charged must be according to prescribed guidelines and must be verified by AICTE or Ministry of HRD.
Violation of any of the guidelines attracts penalties.
Likewise, UGC has also laid down the standards for charging the fees for the specified number of the courses and issues related to it. These are elaborative on their point and violating it may attract penalties.
The Maharashtra educational institutions (regulations of fee) Act, 2011
In pursuance of clause (3) of article 348 of the constitution of India, the new THE MAHARASHTRA EDUCATIONAL INSTITUTIONS (REGULATIONS OF FEE) ACT, 2011 was enacted and published. The act provided for the regulation of collection of the fees by educational institutions in Maharashtra and for the matter connected to it.
Objectives
The objective with which the government seeks are:
The curbing national policy on commercialization of education and profiteering by the educational institutions.
Curbing the increase in the practice of charging the exorbitant fees by the education institution.
Hence the act was enacted for the undesirable practices going on in the state.
Parent-teacher association
The act provides under section 3, a prohibition of collection of excess fees collection. Section 4 talks of making a Parent-Teacher Association which shall be formed by the head of the school within 30 days from the beginning of academic year. Parents of every student will be the member and a prescribed fee has to be paid by every member. An executive committee has to be made among the members of the association. The executive committee shall consist of: 1. Chairman, 2. Vice-chairman, 3. Secretary, 4. Two joint secretaries and 5. Members, which shall be appointed amongst the members and shall be constituted every year.
Regulation of fees and mechanism
The government shall be competent to regulate the fees in the government and aided the school in its own manner.
But in the case in private unaided school, they shall be competent to propose the fees structure and send it to the executive committee who shall approve such proposal and shall communicate to the management which shall be displayed on the notice board which shall be binding and applicable for 2 academic years.
The government will constitute the Divisional fees regulatory committee who shall decide upon the matter of the Executive committee fails to approve the plan proposed by the management within 30 days and the matter has to be solved within 90 days of the application. The Division fees regulatory committee may pass any appropriate order as it may deem fit. In case the management and the committee fail to agree on such increase and the appeal to Division fees regulatory committee is preferred, the school is at liberty to increase the fees not more than 15% and if such is more than 15% then the approved plan of the committee shall be implemented.
The government will also constitute the review committee which shall hear the appeals from the orders passed by the Division fees regulatory committee within 30 days of the decision of the Division fees regulatory committee which shall have the same power mutatis mutandis of the Division fees regulatory committee.
Under this act, the government Is also given the power to regulate the management of accounts by the private educational institution and the records have to maintain for the same by the institution.
Under this act, the 3-layer mechanism has been made for the working and deciding the issues related to increases in the fees. The act also restricts the power of the government in matters related to fees and the same footing curbed the arbitrary decision of hike in fees by the educational institution. The power of the government is restricted to the regulation of the fees of government and aided private school.
Factors affecting fees
Various factor has been laid down in order to determine the fees levied by the schools, these include the:
Location
Infrastructure
Educational standard of the school
Expenditure on administration and maintenance
The excess fee generated from the non-resident Indians
Qualified teaching and non-teaching staff
Reasonable amount of yearly salary increment
Expenditure incurred on students
Other factors
Evaluation
The involvement of the parents in the decision making the whole process has given a perfect chance to present their views regarding the increase in such fees. Similarly, the interference of government in the management and deciding the fees have also been curbed. The indiscriminate decision of the educational institutions has also been curbed. The new mechanism given in such an act gives a proper representation to the parents which actually cannot afford such an increase in the fees.
Tamil Nadu Schools (Regulation of Collection of Fee) Act, 2009
The Act can be comprehended as a response to be anticipated by the legislature in Tamil Nadu which has a background marked by surrendering to open request. While objections from guardians and the media about some education-based schools charging extremely expenses were referred to as the purpose behind such a move, it is vital to comprehend the concealed variables adding to this issue. Under the Act, a district committee will choose the most extreme charge that can be charged by an education-based school subsidiary to the state education board in the region. The panel comprises of a retired High Court Judge selected by the administration, other executives from the state education division, the Chief Engineer from the PWD at the state level, area level instruction officers, and principals of government schools at the district headquarters. The components to be considered under the Act to settle the fees charged by schools, other than administrative expenses and a “reasonable surplus required for development” are: 1. Region of the school, to be specific, Rural region, Town Panchayat, Municipality, District Basecamp, Corporation 2. Quality of the education 3. Classes of study, and 4. Status of the school, as demonstrated beneath: –
Schools having least framework offices as recommended by the Government from time to time
Schools having facilities more than prescribed:
Schools having more than least necessity of lab, number of library books, classroom offices and other clean and drinking water, offices, Examination of School Fee Regulation
Schools having more than sufficient classroom offices, lab offices, library zone, number of books, great sanitation offices, exceedingly ensured drinking water offices and other sterile offices together with a high level of results
Schools completely outfitted with present-day offices like Air Conditioner with 100% results
While schools may question the underlying settled fee once, the decision of the board is last and the expense is settled for a long time. Schools can apply for an amendment of fees afterwards. The committee also has the power to verify whether schools that are already affiliated with the Central Board of Secondary Education (CBSE) charge fees commensurate with the facilities.
Rajasthan Schools (Regulation of Collection of Fee) Act, 2013
The circumstance in Rajasthan is comparative, with the execution of the Rajasthan Schools (Direction of Collection of Fee) Act, 2013. The Rajasthan law considers the capabilities of teachers as an extra factor for the district level boards that choose the fees for private schools for a three-year time frame. The burden of a most extreme top on the expenses that can be charged by private schools is the extra weight that intensifies the issue.
Possible Solutions
Under Article 19(1)(g) of the Constitution gives basic ideal to do any occupation, exchange or business of one’s decision. However, this privilege isn’t absolute. The state under Article 19(6) can make “any law forcing, in light of a legitimate concern for the overall population, sensible confinements on the activity of the privilege gave.” Hence there must be a fine harmony between income age and beneficent nature of conferring instruction.
The Supreme Court in TMA Pai Foundation and Ors versus State of Karnataka and Ors expressed – “maximum autonomy has to be with the management with regard to administration, including the right of appointment, disciplinary powers, admission of students and the fees to be charged”. The administration, all things considered, can give directions to guarantee restriction of capitation expense and “profiteering” by instructive organizations since their question is by definition – “charitable”. In this way, they can’t charge such a fee, to the point that isn’t required for the satisfaction of question. The court additionally said that a sensible income surplus might be produced yet just with the end goal of advancement of training and development of the foundation.
Opinion of education institutions
Today, private unaided schools battle that in the reason of increased costs, to create offices and framework a charge modification is essential. Additionally, after the Seventh Pay Commission, there is an expanding strain to refresh the compensation structure of educators. It is sufficiently reasonable, to permit a sensible expense climb according to TMA Pai controlling on these grounds. Truth be told, the 2016 roundabout of CBSE had just enabled the schools to equivalent expense accuse of the offices gave by the establishment.
Actual not the same as the circumstances when guardians of the eighties conceived the child would get a little larger than the average dress that kept going serenely for a long time at any rate. It worked out totally fine and child managed to get a quality training and do extraordinarily well throughout everyday life.
Association of private schools
Associations of private schools have been protesting against these Acts before and after their implementation in the whole country. They have sought help from the judiciary, individually and as groups, to remedy this situation and several court cases remain in motion.
Endeavors at directing charge have dependably met furious opposition from these associations which contend that such laws encroach their self-rule. Others fight that high charges are an issue just in a couple of schools that take into account understudies from high-pay foundations, so such directions ought not to be consistently forced on every single private school. These civil arguments have as often as possible discovered their way to the courts.
Scholarship
The scholarship is a grant or payment made to support a student’s education, awarded on the basis of academic or other achievements. The institution which increases the fees of the education shall make provision for those students which cannot afford the increased fees. Expelling that student from the institution is not the just way to deal with it. Scholarship can be helpful for them and give them a lift towards the education.
Educational institutions & Consumer Protection Law
Any student turns into a purchaser when he goes to an educational institution and contracts the administrations of that endless supply of fees for going to classes and composing examinations. He turns into a buyer when that fee is acknowledged by him.An educational Institution can likewise be held liable under the Consumer Protection Act, 1986. The holding of exams, announcements of results are generally benefiting under the Act and can be investigated by the customer courts. Consumer courts have likewise held that it isn’t inside their locale to investigate whether specific guidelines in an establishments plan are unlawful or not.
This is a great move in the direction ofConsumer Protection as many Five stars schools & colleges are mushrooming day by day. These claim of false affiliation with well-known Universities in India as well as abroad and charge huge sums in the name of fees and other charges, which is unaffordable for the common man. To be cheated and lose hard earned money is one thing but the more important fact is that the future of many students is at stake.
Fees and related survey
With private school’s increasing their fees by 150 percent in the last decade and standards of government schools falling, a rising number of parents in metro cities are opting for the single child, an ASSOCHAM survey said.
following are some survey:
Situation
2005
2015
Average school fee
Rs.15000 p.a.
Rs.22500 p.a.
Parents difficulty in meeting expense
3 out of 10
9 out of 10
Rise in tuition
55,000 p.a.
1,25,000 p.a.
Parents Spending on education of their income
10%
30-40%
Pre-Schooling fees
35000 p.a.
75000 p.a.
These expenses include uniforms, books, stationery, transport, sports activities, school trips, contributions to upgrade schools, school aids etc. The total expenses for learning would be many times higher than school fees.
CONCLUSION
The control of charges gathered by private institution appears like a sensible move considering the standard understanding that every tuition based Institution charge high expenses. Be that as it may, the issue with the standard comprehension is that there is a greater part of tuition based Institutions that charge low expenses and take into account burdened segments of India. What is likewise significant is that an ever-increasing number of guardians need to send their child to tuition-based at any rate yet the supply does not take care of the demand. This is the reason guardians need the Fees to be brought down.
Corporate law internships are high stakes. You can get a great job or not depending on how you perform. Out of hundreds of internship applications, only dozens are selected. Out of dozen interns, one or two at best are offered a job or an opportunity to come back for another internship.
Corporate law internships are not opportunities for learning as many students mistakenly think. These are opportunities to shine, to perform, and to demonstrate what you are capable of, so that you are given a bigger opportunity. How do you prepare for this opportunity? Are you making any conscious effort towards that at all?
As somebody who’s spent a great deal of time being unemployed, underemployed, or an aimless student, I have felt the pangs of boredom and feeling like I’m spinning my tires in the mud and doing nothing with my life. And of course, with every aimless day running into each other, it’s incredible how fast the days turn into weeks which turn into months and eventually, years.
I’ve seen people accept it and just do nothing as time slipped by. You can spend your entire life saying that “Oh it’s too hard, I’m not going to do it,” or, “I’ll start tomorrow.”
After all, people want to see instantaneous results, which aren’t going to happen. However, the good news is that systematic effort of five months is enough to turn an incredible amount of stuff in your life around for the better if you want to. And if you’ve ever been unemployed, directionless or had a lot of spare, aimless time, you know how quickly five months can disappear. So why not make something out of it?
We, at iPleaders, take the pleasure to announce the launch of Ace Your Internship program, the country’s first program designed to enable you to secure and succeed in corporate law internships. We observed the process of securing a corporate law internship and converting one into a job offer for hundreds of law students and then identified the elements that worked and that didn’t work. We then developed this program so that you can progressively acquire the qualities and skills that take your performance to a higher level before you even walk into an internship.
Champions are not made on cricket field or boxing rings. They are made in net practice sessions that run into hours, days of giving it all you have with a punching bag, practice, discipline, sweat and blood. It is no different if you want to be a successful lawyer. A critical step in that is getting the right internships and acing them. What if we say we made a program that will train you for exactly that?
In the Ace Your Internship program, you will learn and develop the following skills:
Why do clients approach law firms and what do they expect from the lawyers
What is expected of you as an intern and what skills and qualities you need to demonstrate
How to excel at different tasks that interns get
How to write compelling covering emails that are opened and read
Extensive CV-Writing Training: How to represent yourself best in your CV and how it influences your interview
Interview training – Detailed video lectures on how to answer different kinds of questions in HR and technical interviews
How and when to network with seniors and co-interns
Technical knowledge and skills that are indispensable in a corporate law internship:
Corporate Law
M&A Law
FDI
How to perform due diligence exercises
Practical contract drafting skills
How to excel at proof-reading and drafting assignments in an internship
Debt Finance
General Corporate and Advisory Practice
Stamp duty
How to keep growing your legal knowledge and expertise over time
How to stay updated with new developments in law
How to read financial statements
Tools for Exemplary Success in Internships:
Improved mechanisms for Manupatra search
How to hack Google search
Speed up diligence through BSE and MCA searches
Email writing training
Most important MS Word features for corporate lawyers
How to draw complex corporate structures in PowerPoint from Day 1.
In addition, you will also get access to 5 live online trainings (1 per month) around the following areas:
CV creation and CV-writing
How and why to build your LinkedIn Profile
Mock Interview
Email and Follow-Up Training
1 contract drafting exercise
Feedback on article-writing
Your skills are of little value unless recruiters know that you have them. In fact, most recruiters undertake a Google search for candidates to learn more about them. How would it be if they found you wrote on an area which is relevant to their practice? What if your article gives them new insights they are looking for?
In Ace Your Internship, you will also learn how to publish and promote 5 articles online in an area of your interest.
If you don’t know whether you want to be a corporate lawyer but want to secure at least one corporate internship, it makes sense to walk in prepared. Someone said, “Luck is what happens when preparation meets opportunity.”
If you want to get top law firm internships and ace your internship, you can’t afford to miss this program. It is the most exhaustive and targeted program available on how to secure and ace a corporate law internship.
To know more about it, mail us at [email protected] or call us at 011-33138901.
Remember that champions walk into any situations well-prepared.
Bottom line is this – no it won’t be overnight. No, it won’t be easy. Five months isn’t THAT long. However, it’s long enough to make some incredible changes to your legal career, to your work experience, to your life in a positive, meaningful way. You can change SO much in that time.
Only way to get out of rut is to take action. I learned it the hard way, somewhere along the road in my career. Action moves the needle, that’s the secret.
This article is written by Deepanshi of JGLS. The article discusses ten cases of Consumer Disputes.
Introduction
Purchase or hire of good and services has become an inevitable part of our daily lives. This decision to effectuate such purchase or hire such service is essentially based on trust, failing which can cause, more often than not to the consumers, anything from a monetary loss to physical harm. Consumer Protection Act, 1986 (hereinafter referred to as CPA) aims to provide speedy relief to such breach of trust or negligence. A hierarchy of three tribunals has been set up for this purpose—
The District Consumer Disputes Redressal Forum (DCDRF),
The State Consumer Dispute Redressal Commission (SCDRC), and
The National Consumer Dispute Redressal Commission (NCDRC).
Over the years, these tribunals, along with the apex court, have developed a better understanding of the CPA, meanwhile making sure to strike a perfect balance between the demands of both sides.
Following are ten important cases that hold relevance in case of consumer disputes:
The Supreme court, in this case, held that a corporate body is included in the meaning of ‘person’ in section 2(1)(m) of the CPA. It reiterated the position of Lord Watson in Dilworth v. Commissioner of Stamps that the word “includes” is generally used to enlarge the meaning of the word but can alternatively be used to say “mean and include”, in which case what follows is an exhaustive explanation. The interpretation depends on the text, context, and objective of the Act. It was held that the section never intended to exclude juristic persons from its purview and the definition is inclusive in nature.
It also reiterated its own position in Southern Petrochemical Industries that the word “supply” is not the same as “sale” and in the context of electricity, it would be a provision of service as under section 2 (1)(d)(ii) of the Act.
Professional services fall within the scope of the Act
In deciding this case of deficiency of medical service, the court held that the services rendered by a medical professional fall within the ambit of ‘services’ under the section 2(1)(o) of the Act. It rejected the contention that a medical practitioner, being a professional and falling under the scope of Indian Medical Council Act, stands excluded from the CPA.
Moreover, it held that provision of a token fee (for the hospital administrative purposes) would not include an otherwise free service within the ambit of the definition of services. Also, the cost of the services paid by the employer or the insurance company would be deemed similar to paying for the service by the consumer itself.
Services have to be rendered with due care and in accordance with the Law
In this case, the complainant alleged that his son died due to the administration of a wrong treatment by the doctor. The State Commission upholding negligence provided a compensation of five lakh rupees.
In appeal, the National Commission observed that the two prescriptions that were available on record neither contained any description of the symptoms that the patient was experiencing nor did it have any preliminary vital information that a doctor is mandated to check, as per the guidelines and regulation of the Medical Council of India or the concerned State Medical Council, like body temperature, blood pressure, pulse rate, prior medical history et cetera. If further tests were required for the diagnosis, such was also mandated to be mentioned. The commission, following the case of Samira Kohli v Dr Prabha Manchanda [I (2008) CPJ 56 (SC)], held that failure to put such essentials in the prescription amounted to medical negligence. The Commission also noted that availability of such essentials, clinical observations and consent of the patient, point towards the care and diligence of the doctor and act as evidence against frivolous cases of medical negligence.
However, due to lack of available evidence that attributed the death of the patient directly to the negligence, the National Commission reduced the compensation to two and a half lakhs along with the interest thereon.
In this case, the respondent, a homoeopathic doctor, prescribed allopathic medicines for the treatment of a patient who did not respond to the medicine and subsequently died. The Supreme Court held that the right to practice the allopathic system of medicine was restricted by the Central and State Acts which prohibit such practice unless the person possesses requisite qualification and is registered according to the Acts. Based on the fact that the respondent was qualified and registered to practice Homeopathy only, he was found to be in violation of the statutory duty not to practice Allopathy given under the section 15(3) of the Indian Medical Council Act, 1956. Respondent’s act was held to be actionable negligence and he was ordered to pay a compensation of three lakhs.
Educational institutions must refund extra fee paid
To seek admission in a medical coaching center, the petitioner, in this case, was made to deposit a lump sum fee for two years within the first six months. When the petitioner left the course midway on account of deficiency in the services, the coaching center refused to refund the remaining amount. The State Tribunal, following the view of the apex court and the National Commission, held that no educational institution shall collect lump sum fee for the duration of the entire course and if one does, such extra fee should be returned in case the student drops out due to deficiency. It noted that any clause in a contract contrary to this is invalid due to lack of equal bargaining power and contravention of the principles of natural justice.
The court was also of the opinion that additional compensation should be granted for the mental agony caused due to approaching the legal forum. However, since such was not asked in the petition, it could not be granted.
In this case, the complainant claimed for compensation due to alleged medical negligence before, during and after a medical procedure that led to a partial paralysis of the patient. The National Tribunal ruled medical negligence stating various lapses in all three phases mentioned including on the ground that consent of the patient was taken only for the examination of the tumor and not for its removal.
In the appeal, the Supreme Court confirmed the findings of the Commission and stated that the removal of the tumor was deferred through discussion on record and therefore an implied consent cannot be inferred.
The court recognised that a balance has to be struck between the inflated demands of the victim and the unreasonable claim of the opposition party that on compensation needs to be paid. It recognised that sympathy for the victim should not come in the way while deciding compensation but the court should not refuse to provide “adequate compensation”. In light of this and the peculiar facts of the case, it increased the sum of compensation to twenty-five lakhs each for the continuous medical expenses that need to be borne and the loss of employment that the petitioner had suffered. Additionally, compensation for the pain and suffering that the appellant had undergone amounting to ten lakhs, for the expenses of a driver-cum-attendant for thirty years amounting to seven lakhs and twenty thousand, for nursing care amounting of fourteen lakhs and forty thousand and physiotherapy expenses of thirty years amounting to ten lakhs and eighty thousand along with interest of 6% was also granted.
The petitioner alleged negligence by a medical practitioner, claiming that he left a mass of gauge in her abdomen during a procedure to remove stones from the gallbladder. However, the petition was raised nine years after the procedure when the petitioner underwent a second operation, in another hospital, to remove the mass.
The Supreme Court recognized that in cases of medical negligence no straightforward formulae is present to determine when the cause of action has accrued. The court, following ‘Discovery Rule’ evolved by the courts in the United States, stated that in the case where the effect of the negligence is obvious, the cause of action is deemed to have arisen at the time of negligence. However, in case the effect of negligence is dormant, the cause of action arises when the patient figures out about the negligence with reasonable diligence. The court noted that the petitioner had been experiencing pain and discomfort since the time of the operation for which she continued to take painkillers for nine years without consulting the doctor. In the light of this and the fact that she herself was an experienced nurse who can reasonably be expected to possess more knowledge than a layman, the court set aside the Commission’s order and dismissed the complaint.
Both parents and minor can claim for compensation under Consumer Protection Act
This appeal was filed before the Supreme Court by a hospital defending the negligence of its nurses and a doctor which resulted in a minor being in a permanent vegetative state subsequent to a brain haemorrhage. The issues revolved around whether the parents of the child, not being the patient themselves, can ask for compensation for mental agony caused to them. The court held that the definition of services in the CPA is wide enough to include both the parents who pay for the services and the child who is the beneficiary of the services. The National Commission was found correct in its approach as it granted compensation to the child for the cost of equipments and recurring expenses that he would have to bear owing to his vegetative state, whereas the compensation provided to the parents was for the agony caused and the lifetime care that the parents would have to provide.
Imposition of penalty for frivolous consumer claims
In a complaint against HDFC for debiting money without the permission of the holder, the National Commission noted that payment was done in compliances with the order of a statutory authority and only after giving the complainant due notice of the same. The Commission stated that there is a need to guard against the possibility of frivolous complaints from being filed due to the absence of any court fees. For this reason, holding that the complaint lacked seriousness and was filed without sufficient grounds, the Commission imposed a fine of twenty-five thousand on the complainant under section 26 of the Act.
Compensation to the complainants for frivolous appeals
In the case of an accidental double allotment of a plot by the Delhi Development Authority, the State Commission refused to accept the defence that the plot had not been provided to the complainant only for his failure to pay the cost. It was found from the records that the plot had been allocated to another person. It, therefore, ordered the Delhi Development Authority to either provide another plot of the same description to the appellant under the same conditions or pay the escalated price of the plot.
The National Commission dismissed the revision petition for lack of infirmity in the State Commission’s judgment and ordered the payment of five lakhs for indulging in unfair trade practices and unduly harassing the respondent for more than eighteen years.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:
The Stockholm Declaration recognized that man is a part of nature, and life depends on it. U. Thant, the then Secretary-General, United Nations, in Stockholm Conference appealed “Like or not, we are travelling together on a common planet and we have no national alternative but to work together, to make an environment in which we and our children can live a full and peaceful life”.
The present seminar focuses on global and national environmental laws and policies in analyzing the need of different countries to manage and control the bio-diversity, climate change, water and air pollution, land degradation, the depletion of ozone layer and persistent organic pollutants etc. for sustainable development.
We hope that the suggestions, recommendations and resolutions from this seminar will be of immense value and will pave the way for the Academicians, Judges, Lawyers, Policy Makers and Law Makers to come out with viable solutions.
Call for Papers
Research Papers/Articles and Case Studies from legal fraternity are invited for presentation in the National Seminar. Communication of acceptance will be sent to authors for presentation. Co-authorship is allowed, but each author is required to register and pay the registration fee individually.
The Seminar will focus on following Issues/Sub-themes:
Environmental Law- Principles and Policies in India
Global Warming, Climate Change and Depletion of Ozone Layer
Environmental Protection and Sustainable Development: Indian Legal Perspective
Green Economy, Poverty Eradication and Human Resource Development
Technological Advancement and Environment Degradation
Protecting the Marine Environment: Role of Environmental Law and Policy
Biodiversity and Natural Resources at Global and National level
Protection of Flora and Fauna: National Scenario
Environmental Issues and Dispute Resolution Mechanism
Public Participation for Enforcement of Environmental Laws in India
Environment and the Role of Supreme Court of India
Above identified issues /sub-themes are only illustrative. Participants may select the related topics covered under the main theme.
Important Dates
Last date for Abstract Submission: March 15, 2018
Last Date for Communication of Acceptance of Abstract: March 18, 2018
Last Date for Submission of Full Paper: March 25, 2018
The abstract and full-length paper must include Title, Author(s) Name & Designation, Name of the institution of the researcher, Mob. No. and e-mail address.
Submission Guidelines
The submission shall consist of an abstract and full paper.
An abstract shall not be more than 300 words excluding title and keywords.
The length of the paper should not exceed 3000 words.
Footnotes must conform to the authoritative standard, rules of legal citation and must include a description of each authority adequate enough to be understood by a reader.
Paper should be submitted in MS Word format with the subject “National Seminar on Emerging Issues Relating to Environmental Laws: National Perspectives”.
Cover-page must contain name, nationality, e-mail, contact number, and name of the college/university along with the address of the participants.
In case of co-authorship, the covering letter should include details of all the authors.
Submission of abstract and full paper must be made to [email protected]
Delegates must submit the hard copy of his/her paper on the day of seminar, at registration desk.
The paper should be in the following format:
Font Type: Times New Roman
Font Size: 12
Line Spacing: 1.5
Foot Note Size: 10pt
Contact
In case of any queries, contact:
Tarun Kumar: 7060471943
Anshuman Sahoo: 7895194740
Basuki Nath Pandey: 7060471936
Ashish Kumar Rai: 9918473419
For further details, kindly refer to the brochure.
In this article, Shubham Kumar of Hidayatullah National Law University discusses the eligibility and process of getting an employment visa.
Introduction
The entry and stay of foreigners into India is governed by The Passport Act, 1920, The Passport Rules, 1950, The Foreigners Act, 1946 and the Registration of Foreigner Rules, 1992. All the policies related to foreigners are issued by Ministry of External Affairs. The Ministry of External Affairs issues various types of visas depending upon the purpose of visit in India. For instance, in case a diplomat is coming to India ‘D’ visas are issued, whereas in case a tourist is coming for touring purpose ‘T’ visa is issued. The duration of stay, rights, and liabilities of all visas are different. In this article, we would focus on employment types of visas granted to foreigners desirous of working in India.
What is an employment visa?
An employment visa allows a foreign national to work in the country for a temporary period of time. This usually involves a sponsorship by the employer. However, employment visas are issued for a short period. They are also called as work visas or work permits.
Who are eligible for an employment visa?
Any foreign national coming to India for employment in a company or a firm or an organization registered in India
Any foreign national coming to India to execute some project awarded to a foreign company
Any foreign national coming to India as a consultant on a contract getting paid a fixed remuneration
Foreign artist coming to India for regular performance in hotels, clubs or other organizations
Foreign nationals who are experts in sports can get employment visa for acting as a coach in any national or state team or any reputed club
Foreign sportsperson who is awarded a contract by any sports club
Professional foreign nationals like engineers, doctors, accountants, lawyers desirous of practicing in India
Foreign language interpreters
Foreign chefs
Foreign engineers or technicians to set up plant and machinery procured from outside India
Foreign national coming to India to provide training and technical support to employees of an Indian company for which the company pays them a fee
What are the conditions to be fulfilled for getting an employment visa?
The applicant should be a highly skilled or a qualified professional who is being engaged by an Indian Company.
Employment visas will not be granted for jobs for which qualified Indians are available or for routine, ordinary or clerical jobs.
The foreign national being employed by an Indian company should be given a minimum salary of US$ 25,000 per annum. However, this condition will not apply to foreign chefs, interpreters, staffs working in the foreign embassy, foreigners working with any NGO.
For nationals of Bangladesh, Afghanistan, China, Iran and Sri Lanka the condition of a minimum wage is relaxed. In their case, employment visa will be granted if they are offered a minimum salary of US$ 14,000 per annum.
The foreign national must hold a valid passport.
The foreign nation must comply with the tax liabilities.
The foreign national must submit proof of the employment contract with the Indian Company.
The foreign national is also required to submit his proof of professional expertise which can be in the form of degree certificates.
The visa sticker should contain the name of the employer.
What is the duration of stay in case an employment visa is granted?
A foreign national coming to India to provide technical expertise as per the contract between Indian Government and Foreign Government may permit to stay in India for the duration of employment or for a period of 5 years, whichever is less.
A foreign national who is a skilled professional and is being employed by an IT sector is allowed to stay for a period of three years or for the duration mentioned in the contract, whichever is less.
A foreign national coming for any other purpose is permitted to stay up to two years.
Can the period of stay be extended?
Yes, the duration of stay can be extended by the permission of FRROs/FROs. The total period of stay, however, cannot be extended for more than five years from the date of the initial employment visa. This is subject to producing yearly filing of Income Tax returns.
What are the documents required to get an employment visa?
Passport Requirement: Original passport and one photocopy of passport with at least two blank passport pages available for India visa stamp.
Indian Visa Application Form: The foreign national is required to submit one signed application form and one copy of the form. The signature is required at the bottom of the photograph and bottom of the second page of application form. The application form can be accessed at https://indianvisaonline.gov.in/visa/. It must be noted that any downloaded form or handwritten form is not acceptable. The application is completely online.
Photo requirement: One 2×2 passport sized photograph in colour with a white background should be pasted on the form. Glasses should not be worn in the photograph.
Proof of state residency can be in the form of driving license of the applicant or state issued ID card.
A letter of appointment must be submitted by the applicant containing the name of the company, nature of job, duration, position, and salary. Salary must be at least US$25,000.
The applicant’s resume also needs to be submitted.
Memorandum of Association or Article of Association of the company being employed in, for proving that the company is registered in India.
A tax liability letter, from the company in India certifying that the Indian company shall be liable to pay tax in case the applicant defaults.
A justification letter by the employer stating that applicant is a skilled, qualified professional, senior executive or a technical expert.
A foreigner working wishing to work with an NGO can be granted an employment visa with a special endorsement on E-Visa mentioning “TO WORK WITH NGO”, name and place of the NGO.
Other conditions remain the same.
Can the visa be granted to family members of a foreigner coming to India for employment?
Yes, family members or dependents of the foreign national can be granted with an ‘X’ visa. An ‘X’ visa is an entry visa in the country. To get an entry visa same formalities and documents need to be submitted. The validity of entry visa is for the same duration for which employment visa is granted. If the period of stay of the employed foreign national is extended, the same will apply to their family members, however, approval of FROs need to be taken.
Can the employment visa be converted to any other visa during the period of stay?
No, the employment visa cannot be converted to any other visa during the stay except under the following situations:
If the foreign national who has come to India on employment visa marries an Indian national during the period of stay and after that does not wish to continue his employment, his employment visa can be converted into entry visa on submission of the marriage certificate.
Any foreigner who falls ill after coming to India rendering him unfit for employment and he/she requires specialized medical treatment, his employment visa can be converted to medical visa on producing a medical certificate from any government hospital. In such cases, visa of family members is also converted into Medical Attendant visa.
Employment visa of a Person of Indian Origin can be converted to entry visa. Such conversion of visa can only be done by FROs after approval of Ministry of Home Affairs.
Can a foreign national change his employer during the stay period?
No, a foreign national who has come to India on employment visa sponsored by a particular employer cannot change his employer. However, employment can be switched to a holding company or a subsidiary company of the original employer. Change of employer is also permitted under the following circumstances:
Permission to change employer is taken from MoHA.
Employment change can be permitted at a senior level.
What if I overstay after the expiry of my employment visa?
Overstaying in India is a criminal offense. The punishment for overstaying is US $30 per day fine and jail for up to 5 years.
Under what circumstances can my employment visa be recalled?
Employment visa granted can be recalled at any time by Ministry of Home Affairs if you are fired by your employer or you are found evading taxes or you are found to be involved in any criminal activity in India.
What to do if my employment visa is lost in India?
Steps to be taken in case you lose your visa:
Report to nearest Police station and take FIR copy
Contact the FRRO/FRO where foreigner is registered with the copy of the FIR and do the necessary formalities.
Contact the Embassy of the foreigner’s Nationality country with FRRO report and do the necessary formalities.
Report to the concerned employer to which the foreigner is associated with.
What are the tax liabilities of foreigners working in India?
Thus, all rules and regulations related to getting employment visa have been dealt in detail. The procedures related to the application of employment visa, documents required, period of stay, grant of visa to family members of the foreign national getting employed have all been dealt in this article.
Allow notifications
