In this article, Shubham Prakash discusses whether it is possible to make a joint will with another person or not.

Introduction

A will is a legal declaration by which a person, a testator transfers his/her estate or property to another person, a beneficiary or legatee at the time of death. A will can be made by anyone who is 21 years or above in an oral or written form expressing the manner in which the estate or property would be transferred and distributed. The ‘Will’ will come into effect after the death of the testator. If the person does not write a will when he is said to have died as intestate and in such cases, his devolution of a property will be governed by his personal laws.

Definition

Section 2(h) of Indian Succession Act, 1925 defines:

“Will” means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.

Statutes Relating To Concept Of Will

There are many laws which deal with the concept of ‘Wills’

• 2(h), Indian Succession Act, 1925
• Hindu Law (Hindus Personal Law)
• Muslim Law (Muslims Personal Law)
• 40 and 41, Indian Registration Act, 1908

Valid Will

1. There should be a name of the Testator.
2. The testator has the right to appoint a Legatee.
3. The Will would be executed after the death of Testator.
4. Under Section 63, Indian Succession Act, 1925 a Will can be revoked by the testator during his lifetime and can also make an alteration in the will which is called Codicil.
5. A third party does not have the right to file a civil suit against testator on the ground of alteration or cancellation of a Will.
6. The intention of the testator is supreme and has the power to revoking the previous testamentary instruments and stating that ‘This is my last Will’.
7. The testator can make a declaration of his will multifarious time but when he or she uses the word ‘Last and Only will’ at the time of his death it would be assumed that all the previous will was revoked and a fresh will come into effect.
8. If the original will has been lost, it is mandatory for the testator to provide proper evidence with a legitimate reasoning for the revocability of the will. If it is proved in the court of law that an original will is lost then ‘Subsequent will’ is valid and will be executed.

Procedure to Make A Will

While making a will all the necessary provision is taken into consideration with utmost care and must contain several part and clause. Although there is no particular format that is adopted while making a will. But in a will the testator should include:

1. In the first paragraph, there should be full name, address, age, etc. of the person who is making the will stating that he is making the will in a free sense and free from any kind of pressure and undue influence.
2. It is the duty of the testator to reveal all the information about the property and documents. To tell the current value of the house, land, bank fixed deposit, mutual funds and the share certificates owned by the testator. This information should be disclosed or communicated to the executor of the will or any of the family members or friends.
3. When an original will is made the testator should clearly mention who should acquire his entire property (in case of Muslims, Will cannot be made for more than 1/3^rd of the property) so that the interest of the successor is not infringed after the death of the testator. In case of the minor, the legal guardian should be made as the beneficiary of the property, so that when the person becomes major he has right to inherit the property. Although he has the rights not to accept the property.
4. Once the original will is finalized, the testator should sign the will carefully in presence of at least two witnesses, who also have to sign after the testator signature. The will should also contain the date and place at the bottom and it is not mandatory for the person to sign all the pages but he may sign so that there is no legal instability.
5. With the death of the testator, the executor of the will or a legal heir of the deceased should apply for probate. The court will ask the executor or the heir if there is any objection regarding the execution of the will. If there is no such objection, the court will grant probate. A probate is generally considered as evidence in order to execute the will.
6. If there is any objection raised by the heirs in executing the will, the parties are called upon to make mutual consent. If there is no objection raised the probate will be granted and the will would be executed.

‘Joint Will’ In Comparison With ‘Other Wills’

There are different types of will like Simple Will, a Testamentary trust will, Living wills and Joint wills. But Joint will is different from the other wills because it is created and executed by two testators usually a married couple who leave all their property for each other. It means that the testator who dies first, his or her estate would be distributed to the other testator. A will cannot be revoked without the mutual consent of both the testator but when one of the testators dies it can be revoked. The concept of joint will provide that:

• That when one spouse dies, the other testator will inherit everything, and
• When the second spouse dies, everything directly goes to the person in whose favour will is made.

But the concept of joint will is hardly used in India. While making a joint will there are certain provisions laid down that a single spouse cannot revoke or alter any clause until and unless there is a mutual consent between the two spouses. A conventional will can be revoked at any point in time but a joint will cannot be revoked as it is a legally binding contract.

In Narayani and Anr. v. Sreedharan[1], Kerala High Court held that:

“A joint Will is a single testamentary instrument constituting or containing the Will of two or more persons based on an agreement to make a conjoint Will. Two or more persons can make a joint Will, which if properly executed by each so far as his property is concerned is as much his Will. That will come into effect on his death.”

How many people can make a joint will?

A minimum number of member required for making a joint will is two whereas ‘n’ number of members can make a joint will.

Best practices to follow while drafting a joint will

A joint will can be revoked at any time during the lifetime of the testators or after the death of one of the testator. A joint will can be executed with each other or with the third person in accordance with a proper agreement or contract in order to transfer or dispose of the property. A joint will can be made with another person through an agreement but it cannot be revoked by one testator. If a joint will is made by the surviving testator with another person, then the testator gets to benefit from the legal document that has been created between the testator and another person.

When a testator enters into a contract or agreement with another person, the clause of the will should be definite so that the joint testator cannot revoke it will when they receive benefits from the will. The joint will is generally made when:

• The testator is in a dominant position but that does not mean that they seize all the legal rights of a person.
• As the concept of joint will clearly state that one of the testators cannot revoke a joint will, mutual consent is necessary.
• At the same time if it can be proved that there is no such agreement made between the parties then the testator has the right to revoke the will.
• If one testator has died without disposing of his property and has not revoked the joint will, the other testator has the right to do so, although an agreement has been made.
• But if it is clearly mentioned in the agreement that a notice has been given to a survivor not to alter or revoke the will, then he cannot do so.
• Since the will gives him the right to dispose of his property or make an alteration on his part.
• In case deceased has not altered or revoked his will, the survivor will get a probate from the court which would be considered as the ‘Last Will’. The survivor has the power to execute the provision of the joint will.

Precautions to take while drafting a joint will

The concept of joint will is hardly used because it is not possible for the surviving spouse to change the terms and condition of the will, as it may not give him or her right to dispose of the property of the deceased. The survivor may not able to make an alteration in the will because:

• It puts a restriction on the money that is going to be inherited by the child who is financially weak.
• If the child gets the property very early, they may misuse the property or may sell it to another person at a very low price.

Registration of joint will

Although in India, the registration of will not compulsory but it can be registered at the discretion of testator. But it is not easy to get joint will registered after the death of the testator (i.e. husband). It should be registered by Sub-Registrar, checking the validity of the will. The sub-registrar has the discretion to register the will. They have to check the validity of the will because there are instances where the registration is done fraudulently or by forgery.

Procedure

• A joint will can be executed on plain paper without requiring any stamp duty for execution and registration of will.
• The Government fee should be paid.
• The testator along with two witnesses has to register the joint will before the Sub-Registrar.
• For registering a joint an identity proof such as Aadhar Card, Voter ID card, Passport etc. A will cannot be registered online.

What can be bequeathed in a joint will?

In a joint will, the testator bequeaths or leaves his property and assets which he or she has acquired throughout his or her life. The property would be transferred in favour of the legatee.

Whether ancestral property can be given by a way of joint will?

No, the ancestral property cannot be given by undivided share in the mitakshara or dayabhaga co-parcenary property.

Who can raise suspicion in a joint will?

A suspicion can be raised by one of spouse if the other spouse goes against the terms and condition of the will. The third party can raise the suspicion that should be in favour of natural legal heirs of the deceased.

Supreme Court Rules on Right of Alienation in a joint will and mutual will

Alienation is defined as a capacity for a piece of property or a property right to be sold or otherwise transferred from one party to another. Although the property is generally deemed to be alienable, it may be subject to restraints on alienation. In K.S. Palanisami (Dead) v. Hindu community in general and citizens of Gobichettipalayam and others[2], the Supreme Court of India discussed on the issue related to an ‘absolute right’ to deal with the properties under a ‘joint and mutual will’. The Court held that when there is any legal declaration made by the testator with respect to property then the court cannot ignore or add any word while executing the will. The intention of the testator is taken into consideration while reading the language of the document. Generally, in a joint will, the word ‘absolute’ is used many times which leads to myriad interpretations:

• The construction of the will is entirely unambiguous;
• The will specifically manifest the testator’s intention

Can a ‘joint will’ take effect after the death of any one of the testator?

The joint will made by the two-person will take effect after the death of both the person. The will not be admitted to probate during the life of either. Joint will are revocable at any time by either of the testators during the joint lives, or, after the death of one of them, by the survivor.  

Conclusion

In executing a joint will it is necessary that the intention of the testator should be taken as primary evidence. In a contract or an agreement, it is necessary to prove that after the death of one of the testator the surviving testator have only disposed of his property only. So, it is concluded that contract plays a major role in executing the joint will.

[1] AIR 2012 Ker 72

[2] AIR 2017 SC 1473

About the Author

The Author of the Article is co-founder at India’s leading online Legal Service Provider, LegalWiz.in. He can also be reached at [email protected] for Incorporation of Private Limited Company other personalised solutions.

Description

Identify the procedure for adding & removing partner in LLP or resignation of Partner from LLP. LegalWiz.in can help with add & removal of partner in LLP.

The requirement to change of Partner may arise after the Online LLP Registration and incorporation. Various reasons are there affecting the changes in the partners of the LLP. Following can be the prime reasons behind the change of Partners in LLP or their Designation after incorporation and LLP registration in India:

• Requirement to invest capital in LLP;
• Change of responsibilities or engagements of the Partner(s);
• Disability to perform to reach the expectations laid down under LLP Agreement or by Partners;
• Change of terms of agreement between Partners and LLP;
• Resignation and retirement of the Partner;
• Requirement to appoint expertise in specific field of operations of LLP.

Apart from the reasons mentioned above, there are number of reasons which require the addition or removal of Partner(s); or change in designation of Partner(s) after LLP Registration. In this article, we have provided the step-by-step guide to effect the change of partners or designation of partners in the Limited Liability Partnership.

Difference of Change of Partners & Change in Designation

The term change in Partners includes addition, appointment, resignation or removal of the Partner in the LLP. Whereas the term change in designation does not include addition or removal of Partner in LLP however the term change in designation refers to change in position of designation of the Partners. The Partners of LLP are classified as Designated Partner and other normal Partners. Therefore, the procedure to change the designation includes following:

1. Partner as Designated Partner; and
2. Designated Partner as Partner

The change in Partners, as well as change in designation, requires following the same procedure with little changes.

Below mentioned is the procedure to be followed to effect the changes.

When the application is filed for addition of Designated Partner or change of designation from Partner to Designated Partner, the concerned person shall also obtain DIN (Director Identification Number). If the said person has already applied and allotted, the same DIN shall be given and noted for his addition in the Limited Liability Partnership. In case of resignation of Partner or Designated Partner, the said person shall provide a Notice to the LLP for a minimum period of 30 days.

1. Pass resolution to affect the change
2. Execute Supplement Agreement
3. File an Application for approval of change

Pass resolution to affect the change

To effect any changes in the Limited Liability Partnership, the Partners shall pass the resolution at the meeting of Partners as required by the LLP Agreement of concerned Limited Liability Partnership. Further, the resolution shall authorise any of the existing Designated Partner to act on behalf of the LLP and its Partners. Further, the authorised partners shall also hold a valid DSC to file the application to the Registrar.

Execute Supplement Agreement

The supplement deed to the LLP Agreement shall be executed by the Partners of the LLP including the Partner who is to be added or removed.

• It should be taken care that the clauses, terms and conditions relating to addition/removal of partner provided in the LLP Agreement are complied with by the supplement.
• Any additional requirement or clause to can also be inserted or altered or removed through this Agreement.
• Further, the said supplement deed shall be executed on payment of Stamp Duty as required. The stamp duty payable will be decided based on the capital changed or introduced during the change.
• In case, there is no addition of the capital in the LLP during the change, the said agreement shall be executed by payment of Stamp Duty amounting Rs 100/- only.

Please refer to another blog “When to change the LLP Agreement: Know reasons and procedure” to know what shall be complied taken care while execution of Supplement Agreement.

File an Application for approval of change

As soon as the Supplement Agreement is executed by the Partners for change of partner or their respective designation, an application shall be filed with MCA to approve the changes of partner or the designation. The application shall be filed with the help of a Practising professional including Company Secretary or Chartered Accountant. The application shall be filed in the prescribed forms, i.e. LLP Form 3 & LLP Form 4.

The said application shall be filed along with the details and information of changes and following documents

• Notice of Resignation/ removal (when applicable);
• Consent to act as Partner/ Designated Partner (when applicable);
• Resolution passed at the meeting of Partners;
• Original LLP Agreement; &
• Supplement Deed to LLP Agreement

The given application shall be filed within 30 days of the effective date of change or execution of an agreement, whichever falls earlier. Failing to file the application within prescribed period, an additional fee will be levied at Rs 100 per day of delay.

The application of change of designation or addition and removal shall be reviewed by the registrar. The registrar on his satisfaction may grant the approval for the changes. Here, the changes shall be effective only after the approval received from the Registrar. However, the said changes will be having retrospective effect to be in force, once approved.

Conclusion

The procedure for changes in partners for LLP along with drafting of agreement with necessary changes shall be followed in a well compliant manner which necessitates the consultancy with the Professional. You may reach the experts at LegalWiz.in through toll-free number 1800-313-4151 or can drop an e-mail at [email protected].

In this article, Sanghamitra Sengupta discusses the visitation rights for divorcees in India.

Divorce, an unavoidable step in one’s marriage can either prove to be a bitter experience for one party and a much-awaited event for the another. Regardless of how the parties to the divorce feel or experience, the party most affected by a divorce is the child. The question of child’s custody is of utmost importance after a divorce has been granted to two spouses.   

Who is a Guardian

Every child in India, below the age of 18, must have a legal guardian. This guardian is necessary to take all important decisions on behalf of the minor. Guardianship and custody are not the same and must not be considered synonymous. Mostly, the right of custody and guardianship reside in the same person, but essentially, guardianship is a greater role played by a person than custody as custody is merely taking care of a minor’s daily needs and upbringing. Custody, as compared to guardianship, is a limited right. In our country, guardians can be of 2 kinds.

1. Natural Guardians – natural guardians are those persons who are presumed naturally, by the law, to be guardians of a minor. According to this, parents are natural guardians.
2. Limited Guardians – legal guardians are those persons who could be either appointed by a court of law to manage the affairs of a minor or could be appointed by a natural guardian, himself.

What Does My Personal Law Have To Say About Guardianship?

• Under the Hindu Minority and Guardianship Act, 1956, a Hindu minor’s natural guardian is his/her father. The mother is a guardian only ‘after’ the father. This implies that, in case of divorce, a mother has to file for custody of the minor as she is not assumed to be a ‘natural guardian’. But, section 13 of the same act also lays down that right of the father to be a guardian of the minor is subordinate to the welfare of the child. This goes on to show that the act values the minor’s welfare above all. If the minor is of the age of 5 or below, then, it is assumed that the mother is the natural guardian.
• Under Muslim Law, be it the Shia or Sunni sect, a father is considered to be the natural guardian of the minor child. The mother is not given the status of a natural guardian, even after the death of her husband. This means that under Islamic law, a father will have guardianship, even if the mother has custody of the minor, after divorce. Although the mother may have custody of the child after divorce, the father still remains the guardian of the child, as he may decide about the child’s movement, education, religion and other important matters.
• Christians and Parsis follow the Guardians and Wards Act, 1890, which is essentially a secular law regarding matters of guardianship.

What Is Child Custody?

When two spouses decide to divorce each other, they usually find themselves on opposite sides with regard to ‘custody’ of the child. The same matrimonial court that decides the divorce case, according to principles of the personal law, governing the spouses, is empowered to decide matters of custody of minor children. If the court of law awards custody to a particular spouse or parent, it means that, the particular parent will be in charge of looking after the daily affairs and upbringing of the minor child. The minor child will live with the parent who was awarded custody of the child.

Can Both Parents Have Custody Of A Child After Divorce?

When both parents have custody of their minor child after divorce, it is known as Joint Custody. In India, Joint Custody has not been dealt with by the law, but, with changing times and difficult scenarios emerging, joint custody is being offered by courts of law. This change is because of one spouse,  expressing their angst against another, having complete custody of the child. In Joint Custody, a minor child may reside with one custodial parent for a specific period of time and with the non-custodial parent for another specific period of time. However, it must be noted that, joint custody is still not provided for by the Indian Law.

Is a Non-Custodial Parent Allowed To Visit The Child?

Yes. There are certain parties, apart from the custodial parent who are in proximity to the child, who may be granted visitation rights by the court. They are:

• Grandparents of the child
• Non-custodial parent, i.e., biological parent

A court may pass a visitation order in favour of the noncustodial parent, establishing the visiting time and place. The main consideration for awarding visitation rights must be that it is awarded for the welfare of the child and that the non-custodial parent is very close to the child. Make sure your visitation rights are explicitly stated in a document with no ambiguous terms.

Why Are Visitation Rights Important For The Noncustodial Parent?

The basic motive of awarding visitation rights to the noncustodial parent is to protect the child from the conflict between the two parents. The child is entitled to spend substantial time with the noncustodial parent, if not the equal time. Efforts should be made by the parents or even the court, for that matter, to enable them, to mutually decide a visitation schedule and the rights given to the noncustodial parent. Visitation must be viewed as something done for the benefit of the child. Visitation rights can be granted to grandparents and not just a biological parent.

What Are The Visitation Rights A Non-Custodial Parent Is Entitled To?

1. The non-custodial parent receives his visitation rights through an order made by the court of law, dealing with the custodial matter at hand.
2. The order given by the court must ensure that the child has frequent and continuing contact with both parents, to ensure the welfare of the child.
3. The noncustodial parent, too, must have an equal opportunity, to spend quality time with the child on holidays and vacations.
4. The noncustodial parent is responsible for the care and safety of the child during the visits.

The timing and other rights can also be determined by the court by looking into important details such as-

• Age of the child
• Distance between the homes of the custodial and noncustodial parent
• Holidays are given more preference for purposes of meeting the child. This implies that, while giving an order spelling out the visitation rights, the court may allow the noncustodial parent to meet the minor child on weekends, festivals, religious occasion, birthday and long school vacations

It must be noted that the court has all the rights to decide the time, manner and place to enforce visitation rights of the noncustodial parent. Sometimes, the noncustodial parent receives a right to visit the child, only, in a children’s complex room of the family court. The court may revoke the visitation rights awarded, if, it finds that the noncustodial parent has misused his right or breached the duties imposed by the court.

Can My Visitation Rights Be Denied By The Court?

Yes. If the custodial parent files a complaint or an injunction to the court, in order to deny the noncustodial parent, their visitation rights, the court may grant so, on the basis of the complaint. The court may call for a hearing where it seeks to establish whether the noncustodial parent is not fit to receive visitation rights due to his abusive nature towards the child or his tendency to affect the child immorally.

Can My Visitation Rights Be Denied If I Cannot Continue Child Support?

Child support is a right that cannot be denied on the basis of inability to provide support to the child. If due to difficult circumstances, you as a parent are unable to provide financially to your child, you cannot be denied a right to visit the child, by the custodial parent. If, the custodial parent denies you, your right to visit the child, this will result in “frustration of visitation”. On being refused your right to visitation, you must approach the family court to receive your right.

What Happens If The Custodial Parent Wants To Relocate Somewhere Else?

We live in a time where migration for better work opportunities has become easier. Relocation to a different city or country, by the custodial parent, is no doubt, a threat to the welfare of the child as it stands as an obstacle in the visits made by the noncustodial parent, but, it is inevitable. The court cannot refuse the custodial parent to relocate. There are a few measures which law prescribes for a custodial parent wishing to relocate-

• The custodial parent must give a notice to the court expressing intent to relocate and send a copy to the noncustodial parent, as well. The notice must include: address of the place the custodial parent intends to move to, legitimate contact number, reasons to relocate in brief, a proposal for a new schedule of visitation.
• The noncustodial parent is allowed to make a statement, filing an objection, to the child relocating with the custodial parent
• The noncustodial parent is allowed to file a petition regarding modification of custody, parenting time or child support

Abduction of Child in Visitation Cases

Dirty games have often been witnessed in child custody cases where a noncustodial parent may abduct the child from the residence of the custodial parent or the child’s school during school hours in order to get custody of the child. In such a fiasco between two parents, the child becomes the ultimate victim.

Dr. V. Ravi Chandran Vs Union of India & others – In this case, a US court while granting a divorce to an Indian couple handed over their child’s joint custody to the couple. The wife brought the child to India, depriving the father of joint custody. Supreme Court of India directed the wife to head back to the USA in order to give her husband equal rights of custody of their child otherwise her passport would be seized and the child would be under the sole custody of the father in the USA.

NGOs fighting for visitation rights

There are a handful of NGOs in India that seek to help a noncustodial parent and grandparents to win visitation rights in the court or outside court, by way of mediation.

• Child Rights Foundation: This NGO, based in Mumbai, Maharashtra, has put in tremendous amount of hard work over the years into making a guideline for those facing divorce cases. The High Court of Himachal Pradesh, Madhya Pradesh, Bombay has adopted their formulated guidelines on child access and custody and directed family courts to refer to them while dealing with a divorce case at hand.
• Child Rights Initiative for Shared Parenting (CRISP): This particular NGO has different “wings” meaning departments that deal with various aspects of child custody. One such wing of theirs deals with grandparents and custody of children. This department has run a campaign on the need for a law to safeguard grandparents’ visitation rights. Several senior citizens have approached the NGO with their complaints of being separated from their grandchildren after their child’s divorce. Thus, CRISP as an NGO has demanded visitation rights for grandparents, a helpline for distressed grandparents, creation of a law for visitation rights of grandparents. One can contact CRISP here.

Practical Advice on Visitation

Although visitation rights have been written about in quite some depth in this article, practical advice helps a noncustodial parent largely by guiding them on how to react to a situation where laws start seeming vague and vulnerability surrounds them.

• Make sure you have a document in your possession that is legally binding on both the custodial parent and you, as a noncustodial parent/individual with visitation rights. The document must contain in unambiguous terms when and how you can gain access to visit your child. This document will serve as a brilliant tool in achieving access to your child with certainty.
• Acknowledge the fact that in India, child support and visitation are treated separately. You mustn’t worry about your visitation rights being taken away solely because you can no longer financially support the child. Visitation rights are beyond one’s financial capability and can never be abrogated because of such a reason. If the custodial parent prevents you from visiting the child because of your inability to support them financially, speak up, as the custodial parent could lose their right to custody on this ground.
• If the custodial parent seeks to relocate to another part of the country or abroad, worry not. Talk to the custodial parent about the child’s need of love from both the custodial and noncustodial parent. Talk to your lawyer about the custodial parent’s relocation plans if the custodial parent refuses to understand your stance.
• Do not be irregular in visiting the child for whom you’ve sought visitation rights for. Such irregularity is noticed by both the custodial parent and the court. The irregularity can thus affect your rights negatively.
• Inform the custodial parent of your visit beforehand so as to avoid any awkward scenario for both of you and the child.

We arrive at the final conclusion that, in our country, the family courts run by the doctrine of Parens Patriae. The doctrine implies that the court is obligated to make a decision, keeping in mind, the child’s welfare above all. This reason is exactly why visitation rights are considered to be highly important, to allow the child to bond effectively with both parents.

In this article, Prashant Gupta discusses how to file a Public Interest Litigation.

Introduction

Public Interest Litigation in India marked an epoch in the year 1979 when it was filed against the inhumane conditions that were meted out to the prisoners on trial. In this popular case, Hussainara Khatoon v. State of Bihar, a PIL was filed by an advocate in the apex court on the basis of an article published in the newspaper Indian Express, which put into fore the poor living condition of undertrial prisoners in various jails in the state of Bihar. The Supreme Court took cognizance of the matter and this ultimately led to the release of nearly 40,000 undertrial prisoners languishing in dilapidated jails in Bihar.

The Public Interest Litigation movement in India was further heralded in the case SP Gupta v. Union of India, also known by the moniker – ‘The Judges Transfer case’, the judgement of which was delivered by Justice PN Bhagwati. It was held in this case that, any member of the society/public acting bonafide can file a writ petition in any High Court or the Supreme Court to seek redressal against violation of a legal/constitutional right. As a result of this judgement, PIL became a potent tool for the deprived section/class of the society when the right(s) of the society or a group of individuals are compromised by the government resulting in public injury. A PIL can be filed not only by a group of people collectively but also by any individual directly/indirectly connected or even not connected to the cause or they can be represented by an advocate.

In the year 1981, the brutalities of the Police against the prisoners was exposed in the case of Anil Yadav v. State of Bihar, where a news report revealed that about 33 suspected criminals were blinded by the police by pouring acid into their eyes. The apex court not only ordered the Government of Bihar to bring the blinded victims for treatment to Delhi but also ordered a speedy prosecution of the policemen involved in the incident. The court in this case also recognized the right of free legal aid as a fundamental right of every accused. The petitioner, Anil Yadav, marked a start of social activism and investigative litigation.

Meaning and Definition

As defined in the Black’s Law Dictionary, PIL means “a legal action initiated in a court of law for the enforcement of certain rights that are in the interest of the public where the class of community may or may not have a pecuniary interest or any other interest by which their legal rights are affected”.

Concept of Public Interest Litigation

Under Article 32 of the Indian Constitution, only the aggrieved individual has the right to file a writ in the Supreme Court. Article 32 of our Constitution confers right upon an individual to move to the apex court by appropriate proceedings for the enforcement of rights/duties under the constitution.

Justice PN Bhagwati articulately explained the concept of Public Interest Litigation in SP Gupta v. Union of India in the year 1981. He said, “Whenever a legal wrong or a legal injury is committed upon an individual or a particular class of individuals by reason of violation of any fundamental/legal right or without authority of law any legal wrong is committed or legal injury is inflicted upon, or any illegal burden is inflicted upon downtrodden section of individual(s) by reasons of poverty, disability, helplessness, poor economic and social conditions, are unable to approach the judiciary for relief then any member of the society can file a writ under Article 226 of the Constitution in the High Court and in case of a breach in the fundamental rights of such individuals or class of individuals, relief can be sought in the Supreme Court by virtue of Article 32 of the Constitution.”

Writ Jurisdiction under the Constitution of India

Article 32 of the Indian Constitution is referred to as the ‘Doctrine of Constitutional Remedy’ for enforcement of fundamental rights. The Father of Indian Constitution, Dr BR Ambedkar, dubbed Article 32 as the ‘heart and soul’ of the Indian Constitution. The Supreme Court vindicated the importance given to this article as it provides justice to the economically and socially deprived sections of the society. The Supreme Court went on to expand the term ‘appropriate proceedings’ mentioned under article 32 by saying, the term does not refer to the ‘form’ in which the application/writ is to be filed but to the purpose of the proceeding. As long as the objective of the proceeding is to enforce fundamental rights, the ‘form’ becomes insignificant. This form of interpretation gave rise to epistolary jurisdiction by which even telegrams and letters were accepted as writ petitions.

A PIL can be filed in the apex court under article 32 of the constitution or before the High Court under Article 226 of the constitution.

Subjects of Public Interest Litigation

The below-mentioned subjects may be litigated under the head of PIL

Matters pertaining to the public interest which generally include and not limited to the following issues:

• Petitions from the riot victims;
• Environmental pollution, ecological imbalance;
• Food adulteration, preservation of heritage, culture, forests and wildlife;
• Exploitation of economically and socially downtrodden sections of the society (Scheduled Castes/Scheduled Tribes etc);
• Welfare of children;
• Other matters related to public interest.

Matters that are private/civil in nature generally include but not limited to the following:

• Admission related issues to colleges/universities of national importance. (Indian Institutes of Technology, Indian Institutes of Management, National Law Universities, to name a few);
• Seeking investigation by an agency other than the local law enforcement (Like Central Bureau of Investigation, National Investigation Agency);
• Service-related matters;
• Landlord-Tenant matters;
• Threat/intimidation of the petitioner(s) by private individuals.

Petitions can be filed by letters and even electronically as well online or by simply writing an E-mail addressed to the Chief Justice of India. Petitions that are not of public interest can also be treated as writ petitions subject to the discretion of the Judge of the Supreme Court/High Court concerned. Such matters may include but are not limited to the following:

• Police torture;
• Kidnapping;
• Offences related to Women/Children;
• Petition regarding Pensions;
• Petition regarding refusal of the law enforcement to file FIR(s)

Procedure for filing a Public Interest Litigation

The modus operandi for filing a PIL can be divided into two ways:

1. Filing: A PIL is filed in the same manner as a writ petition is filed either in the Supreme Court (Article 32) or in the High Court (Article 226). If the PIL is to be filed in the High Court, then two copies of the petition have to be filed and if the PIL is to be filed in the Supreme Court, then the petition has to be filed in five sets (4+1). Also, it is imperative to serve an advance copy of the petition on each respondent/opposite party and the proof of having served the copy of the petition to the respondent(s) has to be affixed with the petition – that can be in the form of postal or courier receipts.
2. Procedure: A court fee amounting to Rs. 50 per respondent (for more than one, each respondent will have to pay Rs. 50 as court fee) has to be affixed to the petition. The proceedings in a PIL hearing are carried out in the same way as in another case irrespective of its nature. However, during the PIL proceedings, if the presiding judge feels a court commissioner has to be appointed to investigate the matter in question like inquiry on allegations of pollution being caused, trees being cut among other things. Post reply by the respondent(s) or rejoinder by the petitioner, the judge(s) may give his/her decision.

It is pertinent to note that before filing a PIL, it is admonished that the petitioner first brings the dispute before the relevant authorities and give them sufficient time to act on it. However, when no action is taken or the petitioner is not satisfied with the response/action, they may file a PIL before the concerned court of law, High Court or the Supreme Court.

Against whom a Public Interest Litigation can be filed

A PIL can be filed against the Central government, State governments, municipal corporations and any other authority that comes within the purview of a ‘state’ as defined under Article 12 of the Indian Constitution. Article 12 of the Indian constitution includes the following:

• The Government (central and state);
• Parliament of India, Legislative Assemblies/Councils of all states and Union Territories;
• Any local or other authorities within the delimitations of India and controlled directly/indirectly by the government.
• Other authorities

The Public Sector Undertakings (PSUs), government enterprises, government institutions, Government agencies come within the ambit of Article 12 of the constitution. In Electricity Board, Rajasthan v. Mohan Lal, the apex court held that ‘other authorities’ include all the institutions/authorities that are created by the Indian constitution and upon whom powers are conferred by law. A ‘private party’ can be made a ‘respondent’ only when the state is made a party to it.

Aspects of Public Interest Litigation

1. Remedial in Nature: The remedial nature of Public Interest Litigation is a result of its tectonic shift from the traditional ‘locus standi’ rules. It incorporated the Fundamental Duties under Part IV of the Indian constitution into Part III of the constitution which mentions Fundamental Rights. By this change, the ‘straitjacketed’ nature was shifted to a more dynamic welfare oriented one.
2. Representative Standing: This is an exception to the general ‘locus standi’ rule which allows a third party to file a habeas corpus in cases where the aggrieved party cannot appear before the court.
3. Citizen Standing: This doctrine of citizen standing marked an epoch in the significant expansion of the court’s rule from a ‘protector’ of individual rights to a ‘guardian’ of the rule of law whenever the latter is threatened by official apathy.
4. Non-Adversarial Litigation: The apex court in People’s Union for Democratic Rights v. Union of India distinguished traditional litigations from Public Interest Litigation. It said PIL is a different kind of litigation which is substantially different from the adversarial form of litigation where one party seeks relief against the other party and that another party (opponent party) opposes such claims. Non-adversarial litigation has two aspects:

(i) Collaborative Litigation: In such form of litigation, the effort to provide justice is from all sides namely the petitioner, the court, the government/public official to check if the human rights of every individual are not violated. PIL petitions help the government/executive discharge their constitutional functions. The court assumes three different functions to deliver justice – different from its traditional role of determinations and issuance of the decree.

• Ombudsman: An ombudsman is a quasi-judicial body where the citizen may file a written complaint in a prescribed format and submit it to them for quick redressal.
• Forum: The courts provide a forum as a place to deliberate on public issues at length and provide emergency relief through interim orders. Different forums include- National Lok Adalat, Permanent Lok Adalat to name a few.
• Mediator: The court may also act as a mediator to settle disputes. It is primarily focused on personal, business, family, social and community matters.

(ii) Investigative Litigation: In most of the cases, the court appoints officials like the District Magistrate, Superintendent of Police, Central Bureau of Investigation, National Human Rights Commission or even ad-hoc commissions of enquiry in socio-political-legal matters. This is called investigative litigation.e. Crucial Aspects: The Supreme Court in Sheela Barse v. State of Maharashtra, the apex court issued guidelines to curtail custodial violence. The Supreme Court broadened the meaning of the right to live with dignity as given under Article 21 of the Indian constitution.f. Epistolary Jurisdiction: The term ‘epistolary’ means ‘in the form of letters’. As mentioned earlier, the apex court started accepting PILs in the form of letters, emails. Telegrams etc. The main purpose of introducing such a concept was to focus on the purpose of the PIL than its form.

Factors leading to the growth of Public Interest Litigation

PIL is a result of judicial activism. It has become a tool to address public issues before the court within the confines of the legal and constitutional mould. Public Interest Litigations have played a substantial role in upholding fundamental rights of the people as well as exposing the latent as well as patent social problems and finding a remedy for them. PIL is a weapon that must be used with great care and circumspection. It is the responsibility of the court to see if such a tool is not being encroached upon the sphere reserved by the constitution to the executive and legislature under the garb of redressing the public grievance.

The main reason for the growth of Public Interest Litigation in India was its bureaucratic ‘inertia’ and the apathy of the executive towards the problems faced by the society especially the downtrodden sections of the society. The administration in India still has an antagonistic demeanour rather than a helpful one towards the public. There is no mechanism for redressal of public grievances in the country. For years there have been talks of establishing a Lokpal Ombudsman but it is still a distant reality. Hence, till date, an aggrieved person only has courts for redressal of its grievances. Similarly, the mechanism established for the protection of the environment has proved to be ineffective and hence, the option of PIL is resorted to for the protection of the environment. The administration lacks a sense of accountability and responsibility while the legislature focuses on issues that are unrelated to the welfare of the hoi polloi. All these factors led to the growth of Public Interest Litigation in India. The courts in India have played a substantial role in promoting the welfare of the people and restraining the waywardness of the executive in the country.

Conclusion

PIL has proved to be an important instrument for social change. PIL works for everyone irrespective of caste, class, gender etc. The introduction of this tool has proved beneficial for a developing country like India. PIL has been utilized as a strategy to counter the atrocities by the underprivileged in the society. However, it is also important to check for the misuse of this tool. Frivolous PILs are also filed under the guise of voicing of the downtrodden sections of the society. Advocates file PILSs to garner limelight – this defeats the very purpose of PILs. Hence, it becomes important to differentiate between a genuine and a frivolous PIL. Quoting Cunnigham, he once said – “Indian PIL might rather be a Phoenix: a whole new creative arising out of the ashes of the old order.”

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In this article, Prashant Gupta discusses Important clauses in a ‘Terms of Service’ Agreement For E-Commerce Websites.

A Prologue to E-Commerce Industry in India

E-commerce includes all transactions of business made through an electronic medium. It also includes all the transactions made via mobile devices. Some of the popular models of e-commerce are appended herein below –

• ‘B2B Model’ or Business to Business Model

In a ‘B2B’ e-commerce model, a business sells products/services to another business via an online sales portal.

• ‘B2C Model’ or Business to Customer Model

A ‘B2C Model’ focuses on selling products/services directly between a business and customer via an online sales portal. A lower volume of purchase characterizes Business-to-Customer companies.

• ‘B2B2C Model’ or Business to Business to Customer Model

Business to Business to Customer is an e-commerce model that combines ‘B2B’ and ‘B2C’ models together for a complete product or a service transaction. Such a model creates, albeit, in theory, mutually beneficial service and product delivery channels.

• ‘C2C Model’ or Customer to Customer Model

‘C2C’, an abbreviated form of Customer-to-Customer or Consumer-to-Consumer, is an e-commerce model which facilitates the transaction of products between customers only. Such a business model facilitates an environment where the customers can trade with each other.

• ‘C2B Model’ or Customer to Business Model

A C2B model, also known as Customer-to-Business model, is the most recent form of e-commerce model where the individual customers offer to sell their products/services to companies who want to purchase them. This model is the exact opposite of the ‘B2C’ model.

The E-commerce industry in India dates back to the year 1999 when IndiaPlaza.com was established. It marked an epoch to the establishment of the e-commerce industry in the country. Since then, the e-commerce industry has flourished with new age e-commerce companies like Flipkart, Amazon, and Snapdeal introducing strategies like Cash-on-Delivery and establishment of their own logistic chain to supplement their customer base.

The growth of e-commerce industry can be attributed to urbanization, increase in the number of mobile and internet users. As the e-commerce market is developing at a rapid rate, it becomes imperative for an e-commerce company to formulate a legal strategy to deal with regulatory matters and possible litigation from customers, suppliers and other partners.

Online Contracts & Terms of Service

The contracts in India, both online and offline are governed by the Indian Contract Act read with section 10A of the Information Technology Act, 2000. The relationship between the e-commerce companies and the customers are governed by the End-User License Agreement and Terms of Service.

The nature of the contract in the e-commerce websites are on a ‘take-it-or-leave-it-basis’ as they are in the form of ‘browsewrap contracts’ or ‘clickwrap contracts’ – Such form of contracts has no scope of negotiation for the customers concerned. Certain terms and conditions in such standardized contracts may be unenforceable especially if they are unreasonable. Although there are no substantial number of cases pertaining to disputes pertaining to online contracts, in other developed nations, the disputes have been primarily for reasons mentioned herein below –

• Limitation of Liability

This clause limits the liability of the seller concerned to an arbitrarily low extent. On this context, the Madras High Court had struck down a clause in the laundry services contract way back in 1966 which restricted the liability of the laundry services company to fifty percent of the total cost of the damaged good.

• Choice of Law

Such type of clause indicates the law of the country that would apply in case there is a dispute. For instance, a clause states the laws of the United States will be applicable whereas the buyer is located in India. In case of any dispute, the Indian laws cannot be excluded.

• Arbitration

An arbitration clause determines the forum for arbitration. The place of arbitration is decided by the seller of their choice which is already mentioned in the contract. In case of a dispute, this can put undue costs on the other party or the buyer. Hence, the court may allow the buyer to sue in other location of their convenience.

Intellectual Property

Protection of intellectual property is one of the most important aspects that an e-commerce entity should keep in mind before starting their business. Also, they should make sure that they are not violating others’ intellectual property, at the same time. Some of the important forms of IP that an e-commerce entity should protect are appended herein below.

• Websites – Registering a domain name should be the first step by the proposed e-commerce entity. Domain names are considered to be a ‘trademark’, and a trademark infringement suit can be filed against anyone who is found to be using the domain name for a fraudulent purpose. Hence, it is admonished that the domain name should be booked before it is started formally.
• Trademarks – Protection of e-commerce’s trademark is important and of primary concern. The entity should protect the logo, slogan and its trade name as a trademark. Most of the times, the symbol, and name of the company is decided by the founders of the company or the marketing agency after taking into consideration the considerations and perceptions of a customer. However, the founders of the company should consult a lawyer who would be in a better position to advise on the availability and sustainability of the mark which is the proposed trademark.
• Copyright – The designs, images, illustrations used on every website including e-commerce websites come under the copyright laws. Although there is no need as such to apply for copyright of the website concerned, however, registration of the same is an evidence of copyright. If the website is being designed by a freelancer/professional, it is important that there is an agreement mentioning the rights of copyright for the content created. In the end, every e-commerce website must have a copyright notice so as to prevent someone else/other entity from using it for commercial purpose. A copyright would look something like – “Copyright ©2017 My Business Name”.

Terms and Conditions

It is important that every e-commerce website has a set of Terms and Conditions that could be easily found on the website concerned. It is also advised that the terms and conditions are not exhaustive and is not legally verbose. The terms and conditions should be exclusive and distinct from other e-commerce websites. Copying terms and conditions from other e-commerce websites may cause a breach of copyright protection of the website from where it is copied.

‘Best Practices’ for Terms of Service

While it is uncertain whether a particular ‘Term of Service’ would be enforceable in a court of law, the e-commerce sites are admonished to follow certain best practices mentioned herein below –

• The entire ‘Terms of Service’ should be presented in a clear format and must ensure that the customer has read it. That can be done by disabling the ‘I Agree’ button until the customer scrolls down till the last page of the agreement or by enabling a timer after which the same button would be enabled.
• The customer should be given an opportunity to save or print the terms and conditions of the service so that it could not be manipulated/changed by the service provider concerned after the customer agrees to it.
• The terms of service should be identifiable and must be placed at a conspicuous place on the website so that the buyer/customer could read it with ease.
• It is advised that the important terms and conditions are explained in a lucid manner understandable by a layman. Also, one-sided terms like the limitation of liability clause and arbitration are placed near the ‘I Accept’/’I Agree’ button, i.e., in the end, so that the customer could have a look at it even if they scroll down the page without reading the whole of the terms.
• In case there is a change in the terms of service, the customers should be intimated by all means possible so that the customers are given an opportunity to accept them. Websites like LinkedIn, Google, Twitter notify their users regularly well before the ‘effective date’ by showing pop-ups or displaying the notification at a conspicuous part of the website, usually at the top. The user is required to read the terms and take action by either clicking on the ‘I Agree’ button or the ‘Dismiss’ Even though there should be an ‘I Do Not Agree’ option, but very few websites implement it.
• The e-commerce websites should in the process of every transaction direct users to the terms and conditions applicable to that purchase.

Many websites including the e-commerce sites face issues related to the usage of the website by minors. Under the Indian Contract Act, 1872, minors cannot enter into contracts independently as mentioned under section 11. Hence, it becomes imperative that such websites include in their terms of service that the service would be available to individuals above 18 years of age. However, it is also pertinent to note that it is practically difficult to restrict underage individuals from providing false age credentials.

Shipping and Returns Policy

The Shipping and Returns Policy is a part of the terms and conditions, and if the e-commerce entity concerned is selling a commodity, it becomes important that this policy is easy to find and understand as well. The product being sold must match the description and purpose as mentioned on the website. The product description must not be vague in nature and does not open a potential problem.

Returns create the need for a refund to the customer/buyer concerned in case the product bought is defective or does not match the description. That can be done in a number of ways – it can be done by issuing a cheque in the buyer’s name, transferring the amount electronically, processing the refund to the card from which it was bought, etc – but the process for refund must be stipulated clearly so that it cannot be disputed later on. Alternatively, instead of a refund, the e-commerce entity can offer a credit certificate, which could be used at a later date or simply replace the product with another one.

In this article, Vardhan Shenoy discusses whether the Indian regulatory framework resolves the credibility crisis in the Indian Media.

Introduction

“The Fourth Estate”, “Watchdog in a democracy”, “Voice of the People”, “Pillar of a Democracy” are some of the usual terms associated with the role of media in a working democracy. The modern times have seen a huge breakthrough in the reach of media with the rise of new forms, especially of social media. People now have access to information like never before with all news updates from across the world at their fingertips. It thus becomes all the more necessary that the media be responsible and provide credible information to its viewers while reporting. Has that been the case?

It is undisputed that media has the most potent influence on public opinion. It is thus the responsibility of the media to keep the citizens informed of the state of governance. As the Code of Ethics and Broadcasting Standards of the News Broadcasters Association[1] also recognizes, media is meant to expose the lapses in the government and to give the public a sense of involvement in the process of governance.

Traditionally, successive governments have always sought to control the media. Such attempts are being supported by those of religious, financial and other actors who are investing substantial financial resources to advance their own interests at the expense of the larger concept of public interest. As a result, we now see a reduced quality of India’s public discourse. The rapid expansion of media has ironically led to a shrinking of the public sphere and the much-needed space for dissent. This is producing a growing crisis of credibility in the Indian media. Paid news, misuse of Government controlled broadcast units, the filing of defamation suits against journalists in the recent years amongst many others, are seen as attempts to control, manipulate and even intimidate media.

India is on the cusp of both economic and social change and is considered to be one of the emerging Global superpowers. The time has come when some introspection by the Indian media is required to correct certain defects and thus overcome the crisis of credibility, thereby assisting India’s growth in this period of transformation.

Growth of Indian Media

Historically, media was born as an organ of the people against the feudal oppression. In Europe, the print media played an important role in transforming a feudal society into a modern one. The print media was widely used to prepare and organize the people during the French and American Revolutions. The thoughts and teachings of great thinkers from various part of the world were available to the people through media. Even during India’s struggle for the freedom, leaders like Mahatma Gandhi, Bal Gangadhar Tilak, Jawaharlal Nehru used the media extensively to reach the masses.

Traditionally, in the rural areas, the radio broadcast medium has been very popular since it reaches the remote parts of the country and it is very simple to use. The government broadcasts, weather-related information via radio channel which is very essential for the farmers, similarly the warnings related to flood is broadcasted near the coastal areas for the fishermen. The government also uses it to popularize its schemes related to rural areas. The present Prime Minister Narendra Modi has effectively used this medium for his ‘Mann Ki Baat’ a programme in which he addresses the people of the nation on All India Radio, Doordarshan etc.

In the urban areas, Print and Television media has had deeper penetration. However, the new kid on the block- Digital media is the one to watch out for, in the age of smartphones. The internet has indeed made it possible to disseminate information and ideas in real time across the globe. The media has undoubtedly evolved and become more active over the years. Mass media has a great influence on human life in the present century. They have provided information and entertainment to people across countries.

The present-day social media has had a democratizing effect on government and institutions. It has been used repeatedly for seeking feedback, the pronouncement of public policy, issue-based and generic discussion and brand. It has given the citizens, a new platform to express their views regarding various policies affecting public life. Social media has been extensively used by government authorities for complex evacuation processes, crisis communications etc.

Media and good governance in a democracy

To understand the role of media as the voice of people in good governance, one must first understand the concept of governance and then as to what constitutes good governance. Governance is not a new concept as it is as old as human civilization itself. Simply put “governance” means the process of decision-making and the process by which decisions are implemented (or not implemented).[2] Government is only one of the actors in governance. Other actors involved in governance like Multinational Corporations, Non-Governmental Organizations, Trade Unions, Media etc. may also play a direct role in the decision making or in influencing the process of decision-making by the Government. The number of actors involved in governance varies depending on the level of government- local, regional or national.

So, what then is good governance? Good governance has 8 major characteristics. It is participatory, consensus oriented, accountable, transparent, responsive, effective and efficient, equitable and inclusive and follows the rule of law. It assures that corruption is minimized, the views of minorities are not sidelined and that the voices of the most vulnerable in society are heard and taken into consideration, in the process of decision-making. If the aforementioned characteristic features of good governance are analyzed, it can be seen that media plays a pivotal role in promoting good governance.

As far as our Constitution is concerned, the media has no defined role in governance. It doesn’t have the power to change any decisions made by the various organs of a state–the legislature, executive, and the judiciary. Yet, the media continues to play a vital role in the functioning of any society. It provides the crucial link between the government and the citizens and makes them both accountable for their actions. It helps form opinions and also helps the weakest in the society to amplify their voice to those responsible for their governance. But does access to information guarantee a well-informed society?

If media is to have any meaningful role in democracy and governance, it is essential that it should be free and independent from the control of the government. A free and independent media provides a key platform for the exercise of freedom of speech and expression which is guaranteed by our Constitution under Article 19(1)(a) as a fundamental right. For the exercise of such a right, it is essential that the citizens have access to balanced, reliable and trustworthy information from the media. It is based on such informed that citizens are expected to make informed choices. The media are also expected to provide a forum where a broad range of voices – opposition parties, civil society actors, independent experts and ordinary citizens – can express alternative views.

The recent years have seen attempts to control, co-opt, manipulate and even intimidate media. Contrary to its role, the media has lowered the quality of India’s public discourse. Rapid expansion has ironically led to a shrinking of the public sphere and the much-needed space for dissent. This is producing a growing, and a potentially grave crisis of credibility. The degrading quality of Indian journalism is evident in a number of ways especially- Lack of reportage on the real issues of poverty, unemployment in the society, political bias, paltry coverage of international issues etc.

India is the world‘s largest democracy. A vibrant, independent and pluralistic mass media is an important pillar of democracy in the country that facilitates adherence to democratic norms. The media requires independence from governmental, political or economic control, or from the control of materials and infrastructure essential for the production and dissemination of media products and programmes. There needs to be the end of monopolies of any kind and thus the existence of the greatest possible number of newspapers, periodicals and broadcasting stations reflecting the widest possible range of opinions within a community.

Recognising the important role of media in promoting good governance as early as 2005, the Director-General of UNESCO, on the occasion of World Press Freedom Day, observed on 3rd May every year, said-

“Independent, free and pluralistic media have a crucial role to play in the good governance of democratic societies, by ensuring transparency and accountability, promoting participation and the rule of law, and contributing to the fight against poverty. The UNESCO has decided to pay tribute to this critical role played by the media in promoting democracy and good governance by choosing ‘Media and Good Governance’ as the key theme for this year’s celebration.”[3]

It is pertinent to note that media all over the world have certain dependencies chiefly: finance and the constant need for information. It is not feasible to eliminate all different kinds of media dependencies. What needs to be done is to recognize what those dependencies are, remove those that can be eliminated and mitigate the effects of those that remain.

However, the question still remains- Is it enough, for the media to be independent, that it be free from the influence of the government? What about market-driven media?

Freedom of Press

Can one seriously speak of “good” governance while there is a continuous assault on the freedom of speech and expression in India?

The Hon’ble Supreme Court observed in Union of India v/s Association for Democratic Reforms[4] “One-sided information, disinformation, misinformation and non-information, all equally create an uninformed citizenry which makes democracy a farce. Freedom of speech and expression includes right to impart and receive information which includes freedom to hold opinions”. In Indian Express Newspapers v/s Union of India,[5] it has been held that the press plays a very significant role in the democratic machinery. The courts have a duty to uphold the freedom of the press and invalidate all laws and administrative actions that abridge that freedom.

Freedom of the press has three essential elements. They are:

1. Freedom of access to all sources of information,
2. Freedom of publication,
3. Freedom of circulation.

Freedom of the press should not be viewed solely as the freedom of journalists to report and comment. Instead, it is strongly correlated with the public’s right of access to knowledge and information. Given the media’s crucial role in disseminating knowledge and information, it is vital that media outlets and professional associations encourage accurate, professional and ethical reporting.

Government-owned media – Use or Misuse?

Allegations of misuse of Government-owned Media are nothing new. During one of the darkest periods of Independent India – The Emergency, Smt. Indira Gandhi, the then Prime Minister reportedly told her I&B Minister, I K Gujral that she wanted to see the radio and TV scripts of all news bulletins. Thereby, all media units were made instruments of Government propaganda. The Prime Minister was reportedly upset that government-controlled media were not giving the desired spin to the news.

The call for an autonomous public service broadcasting system in India was finally heeded in 1997, with the formation of Prasar Bharati, India’s largest public broadcasting agency. It is an autonomous body set up by an Act of Parliament and comprises Doordarshan Television Network and All India Radio, which were earlier media units of the Ministry of Information and Broadcasting, Government of India. The Parliament of India passed the Prasar Bharati Act to grant this autonomy in 1990, but it was not enacted until 15 September 1997.

Despite being given autonomy, the state media machinery continues to be misused by successive governments. In 2014, Doordarshan and All India Radio made the first live telecast of RSS chief Mohan Bhagwat’s address from Nagpur on account of Dussehra receiving condemnation from the Congress and the Left as a violation of norms. Meanwhile, the then Doordarshan Director General Archana Dutta defended the coverage by saying “speech was covered like any other news”. The Prime Minister also hailed Bhagwat’s speech and said that issues of social reform are very relevant today.

The fact of the matter is that no ruling government- Either the earlier UPA or the present NDA government would be willing to forego its controls over such a coveted instrument of public power.

Voices being silenced: The Chilling Effect

In media laws parlance, “chilling effect describes a situation where a speech or conduct is suppressed by fear of penalization in the interests of an individual or group especially by the filing of multi-crore defamation suits.

The Wire, a news website published by the Foundation for Independent Journalism, a non-profit Indian company, on 8th October 2017 published an investigative report titled ‘The Golden Touch of Jay Amit Shah’. The report highlighted a dramatic increase in returns of some of the businesses of Jay Shah, son of ruling Bharatiya Janata Party President Amit Shah since Narendra Modi became Prime minister. The report was based on annual filings of Jay Shah’s companies with the Registrar of the Companies. Within hours the publication, the report went viral with over 1 lakh ‘shares’ in about a few hours. An excerpt from the report reads: “The turnover of a company owned by Jay Amitbhai Shah, son of Bharatiya Janata Party leader Amit Shah, increased 16,000 times over in the year following the election of Narendra Modi as prime minister and the elevation of his father to the post of party president, filings with the Registrar of Companies (RoC) show.”

Businessman Jay Shah filed a 100-crore criminal defamation suit in Ahmedabad, Gujarat, against reporter Rohini Singh and Siddharth Varadarajan, Sidharth Bhatia and MK Venu, the editors of The Wire for an investigative report. Mr. Shah, proceeded to issue a statement which read: “Since the website has proceeded in making an absolutely false imputation in a highly slanted article thereby damaging my reputation I have decided to prosecute Author, Editor/(s) and the Owner/(s) of the aforesaid news website for criminal defamation and sue them for an amount of Rs. 100 crores… If anyone else republishes/re-broadcast the imputations made in the said article, whether directly or indirectly, such person or entity will also be guilty of the very same criminal and/or civil liability.”

The 100-crore defamation suit grabbed attention, not only of Indian journalists but also those across the world. The International Federation of Journalists, a global union federation of journalists’ trade unions—the largest in the world which aims to protect and strengthen the rights and freedoms of journalists and has over 6 lakh members in 139 countries issued a statement with regard to the same, which read:

“The IFJ is concerned over the misuse of the criminal defamation to harass journalists and media to stop them for investigating matters of public interest and publication of critical stories. While the IFJ is confident that the court will ensure justice, the trend of filing criminal defamation cases for critical news is a matter of concern as it puts the financial and psychological burden on media and journalists; and can create a chilling effect. The IFJ also calls for decriminalization of defamation by making defamation only civil offense.”

Mr. Sreenivasan Jain, Managing Editor of NDTV had authored a report about the business dealings of Jay Shah, the son of Bharatiya Janata Party president Amit Shah and whether the loans handed out to his company were deserving or a result of cronyism. The Channel later took down the said report from its website NDTV.com for “legal vetting”. Mr. Jain who initially tweeted that it was merely a temporary takedown, later in a Facebook post described this action by NDTV as “deeply unfortunate” and that “situation like this presents journalists with hard choices”. Mr. Jain, however, chose to treat this as a “distressing aberration” only.

In retort, Ms. Barkha Dutt former anchor and Senior Journalist at NDTV in a Facebook post alleged that such axing of stories was “hardly new” at her mentor Channel. While giving examples of previous stories and interviews being taken down by NDTV, she wrote that terming such action as a mere “aberration” by her ex-colleague Mr. Jain was “a knowing falsehood”. She further alleged that while her ex-colleagues chose to stay mum beg well-versed with the facts, she was punished for speaking her mind on news-censorship which ultimately led to her quitting NDTV in January 2017.

Such instances of the axing of stories or interviews or reports prepared by Journalists by the owners of media houses are not restricted to NDTV alone and are common among other Channels too.

Issues of credibility in Social Media

Social media has been revolutionizing the way we communicate for years now. It is now also shifting the flow of discourse between government bodies and the public. According to a report by WeAreSocial and HootSuite, two leading social media marketing companies, in the year 2016 alone, 55 million new users from India joined social media, second only to China[6]. Reportedly, India has overtaken the United States to become Facebook’s largest country audience. As of July 13th, Facebook is reporting a total “potential audience” of 241 million active users in India, compared to 240 million in the United States[7]. Hence, the growth of social media users in India has been unprecedented and has thus changed the way Indians communicate with each other.

Immediate and transparent, social media has provided the public with greater control, participation, and influence over governance issues and initiatives. Crisis communications, Evacuation processes, Consultation processes have become easier because of social media use by the government. For example, consultations like the recent one by Telecom Regulatory Authority of India on the much-debated issue of net neutrality was immediately circulated shared across Social Media. During operation Raahat, an operation of the Indian Armed Forces to evacuate Indian citizens and other foreign nationals during the Yemeni crisis, many approached the Ministry of External Affairs on Twitter for evacuation.

However, there are some concerns about credibility here as well. The Press Information Bureau, nodal agency of the Government of India which disseminates information to the print, electronic and new media on government plans, policies, programme initiatives and achievements, recently received a lot of flak for tweeting a photo-shopped image of the Prime Minister in a helicopter , purportedly doing an aerial survey of flood-hit Chennai which was removed quickly after questions were raised in social media about its authenticity. Former minister for power and energy, Piyush Goyal recently tweeted the government’s achievement of illuminating 50,000 km of Indian roads with LED lights. Except for one problem: the image used in the tweet was from Russia. Mr. Goyal later deleted the tweeted and thanked people and pointed that social media helped “illuminate facts”.

Most recent attempt to gag media

The Vasundhara Raje led government in Rajasthan as recently as September 6, 2017, promulgated an ordinance which prohibits investigation without prior sanction against judicial officers and public servants. The said ordinance also imposes restrictions on the media which impinges free speech and expression and can be used as a pernicious instrument to harass the media. Under the new law, the media cannot report on the accusation against such a person until the prosecution gets the go-ahead from the sanctioning authority, which may take up to six months. Such action by an elected government effectively curbs the freedom of the press, guaranteed by the Constitution of India and repeatedly reaffirmed by the Supreme Court of India.

Conclusion: The way ahead

The media in India to become an effective voice of the people in governance must be administratively and financially autonomous. What is expected of a responsible media is- to report news in-depth without opinions, to provide people with facts and facts alone, Data-driven journalism with use of statistics and verifiable data, offer plurality and diversity in voices.

The media is facing a problem of credibility, and the only way to overcome this is to ensure that they are transparent. Even then, there is a strong feeling everywhere that the media is not subject to public scrutiny; that they run stories without due consideration of the public sentiment and that they publish what their editors rather than the public want to read.

Media organizations must have editorial independence and transparent ownership. These qualities are extremely important because media independence has often been compromised by owners who do not value independent views but focus only on commercial interests. It is high time that the media in India corrected itself to regain its lost sense of credibility.

_______________________________________________________________

[1] Code of Ethics and Broadcasting Standards of the News Broadcasters Association, 2008

[2] United Nations Economic and Social Commission for Asia and the Pacific – “Characteristics of good governance”- Mr. Yap Kioe Sheng Chief, Poverty Reduction Section, UNESCAP

[3] http://www.unesco.org/new/en/unesco/events/prizes-and-celebrations/celebrations/international-days/world-press-freedom-day/previous-celebrations/worldpressfreedomday200900000/

[4] (2002) 5 SCR 294)

[5] (1985)1SCC 641

[6] https://wearesocial.com/special-reports/digital-in-2017-global-overview

[7] http://www.thehindu.com/sci-tech/technology/internet/india-overtakes-us-as-facebooks-no-1-user/article19276683.ece

In this article, Radhika Misra discusses Important things to decide before you go for an LLM abroad.

I just want to write this post to help all the students/professionals who want to take a year off and pursue their dream of doing a Masters Degree in Law at a Foreign University. So the task is to the ‘get’ to their desired Law school.

Step One – Choosing the Course

The first step which most of the people in general miss out on deciding before they start their application process is which course should I specialize in! Most foreign Universities have a ‘General’ LL.M. Course wherein they permit Law students to take up a number of unrelated subjects like International Arbitration Law with Entertainment Law or Intelligence Law. However, my personal recommendation for all the students who want to apply for a Masters Course is to be very clear about which subjects interest them the most. It is an investment of one whole year, so be very wise with the Course you want to study because at the end of the day, your resume will have the specialization written on it and the same may either prove to be either a hindrance or a blessing for you at a later stage.

Step Two: Researching on the ‘best’ faculty for your Course across all Universities

Faculty plays a very important role in choosing the Law School. If the faculty for your Course is the best in an Asian University than an American one, I would personally recommend you to choose the Asian University because the end goal is to gather all the knowledge that is imparted to you by the faculty members who actually ‘know’ what they are saying, instead of blindly following the masses and choosing to go to an American, Australian or a British University. One must do a thorough research on the profile of the Faculty members before they shortlist the University.

Step Three: Figure out the ‘budget’

There are a lot of students who do not need any funding to go study at a foreign University, but at the same time there are many who cannot afford the same and take up student loans from banks. The first step is to sit with your family members and intimate them about the expenditure you will be incurring for the One year programme. Assuming that one has not been able to get a Scholarship from either the University or the Government, the Bank is the only place that one resorts to after he/she has exhausted all their options, and therefore you must identify the ‘budget’ and figure out your savings and only then apply for certain Universities. For Example: If you are applying for a University in New York, Geneva or even Singapore you really need to work out your finances before you even start the application process.

If you are an Indian reading this post I would like to tell you that as a fellow Indian it really upsets me to pay INR 90 for 2 bananas in Singapore and INR 715 for one tiny bowl of French Fries in Geneva.

Therefore, I would request you to find out the cost of living for these nations before you apply.

Step Four – Getting the ‘right’ Letter of Recommendations

If you are a professional, most of the Universities will ask you for a Letter of Recommendation (LOR) from your current employer. Therefore, I would personally recommend you to NOT keep your current employer in the dark about your applications. The Employer is the best person to endorse your skills and you must try to get him/her to write your Letter of Recommendation for you. Some universities like Cambridge, Oxford, NUS, Leiden and NYU only ask you for professional recommendation after three years of work experience therefore, you can still apply without telling your boss about the application.

For all the students, please try to get recommendations written either from Professors who are really fond of your academic pursuits or from professors who have taught you a similar course at the under graduate level. For Example: If you are applying for an International Arbitration and Dispute Resolution specialization, then try to get your LOR written from professors who have either taught you a similar subject like Alternative Dispute Resolution at an Under Graduate level and make sure they mention how you are actually suitable for the course and how you have been a diligent student at Law School.

Please do not get LOR’s from your Tort Law professor or Political Science Professor if you are applying for a specialization in Business Law, try getting the LOR from your Company Law or Taxation Law Profs instead.

The other important aspect of LOR is choosing a Professor who is technologically friendly. Most of the foreign Universities will send a link to the e-mail id provided by you directly to the Professors. Therefore, please try to avoid choosing Professors who check their mail once in three weeks.

Also, keep at least four Professors in the loop. Many times the Universities ask for two-three Academic References, therefore please do not run to your Professors at the last moment because they can be out of town or even sick at the last moment when you expect them to write a two page document. (Yes, that is generally the maximum number of pages you must have).

Step Five – Writing the Statement of Purpose

Most students and even professionals wait until the deadline to start writing the SOP. A good SOP takes a minimum of two months. Not because you take so much time to pen down your thoughts but because you need to get the same reviewed by your Professors, Friends, Colleagues and even family if you want. Always get a friend who is great in English to review the SOP, then proceed to a person who knows you closely to review the same. Get a minimum of six people to review your SOP before you submit it.

Address questions like- Why the University should take you? Why have you chosen the Course? Exhibit all your skills in a subtle manner and do not flaunt the same. Be humble and only put in everything you have done in a truthful manner. The readers are very qualified individuals, they read a thousand SOP’s every day before they select you, so do not try to lie or be ‘cool’ about anything in your SOP.

You may wish to start with ‘where you come from’ and then proceed to ‘why the LL.M. at this stage in your life’ and finally ‘why this University’? Try to address these basic questions in your SOP. Do not say things like ‘I want to study because the University is prestigious’! They already know such things! Just be honest and simple.

Step Six – Deadlines

Universities in the UK like LSE and Queen Mary generally take students on a rolling basis, so you need to be ready with your applications and apply as soon as they declare the dates.

Cambridge, Yale, Oxford and NUS have a very early deadline. Most of the Law programmes have their deadline in End November (Example – for 2018-2019 Academic Year their deadline is in November end 2017). One needs to plan accordingly and apply at the earliest. Do not wait till the last day to apply, there are times when the server crashes and many other issues can crop up if you wait for the last date!

Step Seven: Taking TOEFL or IELTS is actually Optional in some Universities

Many students and professionals are not aware that they can choose to ‘waive’ taking the English Language Test. There are many Universities which allow you to ‘waive’ it and the best way to go about it is to get a letter from your Under Graduate University saying that the medium of instruction for the 5 year Law School was English. Further, try getting another letter from your School Principle stating the same. The English Language requirement is only for students coming from counties like China, Japan etc where the medium of instruction at the Under Graduate level is actually their native language and not English.

However, there are Universities which have a pr-requisite TOEFL or IELTS score that one must meet. Therefore, do thorough research but also try getting the test waived as you will save INR 10,000 (approximately).

Step Eight – Keep Focus

As a professional, one must realize that they are taking a huge risk by switching to the academic road. After practicing at the High court or working in a Law firm, one generally looses the ability to sit and take ‘exams’. Most of the Universities will have either ‘take-home’ exams or research paper submissions on a weekly basis. So one needs to be focused at all points of time. It is not a ‘break’ year as such because all the good universities are very strict with their plagiarism checks and marking criteria. Therefore, keep focus once you get through the University and for students who are applying, you need to be focused while applying, because the application process can get very tedious. Try maintaining a diary will all the deadlines and keep following up with your professors and employers for your letter of recommendations and transcripts.

Best of Luck! 🙂 

In this article, Shubham Kumar discusses accountability of celebrities for endorsing false claims in an advertisement.  

Introduction 

Since 1991 the competition among manufacturers has increased because of the opening of the economy. To stand in the market and to make profits they devise new techniques to sell their product in the form of product innovation, attractive packaging, offering discounts, etc. One of such technique is “Advertisement.” In layman’s term advertisement can be defined as the promotion of a product through audio-visual or print modes. To advertise the products the trend among big companies is to hire the services of a celebrity. The reason for hiring celebrities in India is that celebrities dominate common people lives in India. A common man in India tries to copy whatever his/her favourite celebrity does, tries to imitate them and believes whatever the celebrities promote is good and buys such product. Thus, promotion of a product by a celebrity plays a major role in the decision-making process of the consumer and hence laws should be in place to regulate celebrities promoting a product.

What is an advertisement?

• An advertisement is a means of communication between the seller of a product and a user of the product, where the seller informs buyers about the product through mediums like newspapers, journals, radio, posters, sounds, visuals, etc.
• In the case of Suswarajya Foundation, Satara vs. The Collector, Satara And Anr, an advertisement is defined as any representation in any manner such as announcement or direction by words, letters, models, signs or by any means of a poster, hoarding, etc.

What are the laws governing an advertisement in India?

Provision under the Consumer Protection Act, 1986

Under Section 6 of the Consumer Protection Act, 1986 a consumer has the right to be informed about the quantity, quality, purity, standard of the goods and services, as the case may be and to protect the consumer against unfair trade practices. Under Section 2(r) of the same act, “unfair trade practices” includes false advertising, misrepresentation as well as false allurement. Thus, the act provides protection against false advertisement. The redressal mechanism is provided in the Act itself.

Provision under the Cable Television Network (Regulation) Act, 1995

Under Section 6 of the Cable Television Network (Regulations) Act,1995 provides that no person shall broadcast any advertisement unless the advertisement is in conformity with Cable Television Network (Amendment) Rules, 2016.

Provision under the Indian Penal Code, 1860

Under Section 273 of IPC, whoever offers for sale any article unfit for consumption having reason to believe that the same is unfit for consumption shall be imprisoned for a term which may extend up to six months or a fine or both.

Past controversies related to celebrity advertisement

• Recently FIR against celebrities like Madhuri Dixit, Preeti Zinta, Amitabh Bachhan was registered for promoting Maggi as nutritious food after the lab samples showed a high quantity of MSG and lead harmful to human consumption.
• In 2012, FIR was registered against Genelia D’ Souza for making false promises in the brochure of a real estate firm.
• Jaya Bachchan and Amitabh Bachhan were also involved in legal troubles after they endorsed Tanshiq as the only brand which offered true diamond.

What are the laws under which celebrities can be made liable for false claims in an advertisement?

• Under Section 24 of the Food Safety and Standards Act, 2006 if a person engages himself in misleading representation concerning quality, standard, quantity, grade or usefulness of a food product or he makes any statement giving a guarantee to the public of the efficacy of the product which is not based on an adequate or scientific justification will be liable under Section 53 of the Act for a penalty of INR 10 lakh rupees.
• The Act applies to any person. Thus, its ambit extends to celebrities too. Under this Act, celebrities can be made liable for false representation. The burden of proof of lies on the celebrities to prove that such statement was made on an adequate ground.
• In the present legal framework, a celebrity can be held liable for inappropriate advertisements and promotional activities of products that adversely affect the interest of consumers, under statutory provisions of the Food Safety and Standards Act, 2006, and the Indian Penal Code, 1860, and as well as under the Consumer Protection Act, 1986. However under the proposed provisions of the bill celebrities who make false or misleading claims in their endorsements would be subject to heavy penalties.

Celebrities endorsement: A look at the Consumer Protection Draft Bill, 2015

The business scenario in India is under a revamp. The introduction of CSR has made companies responsible towards society for its acts. Under such scenario liabilities of celebrities who influence a major chunk of the population should also be increased so that they exercise due care while promoting products which are likely to affect the society. Celebrities who enjoy such prestige of the members of the society should, in turn, give back to the society by not doing any such act due to which society will suffer.

After the Maggi fiasco, the topic of making celebrity brand ambassador responsible had been in the spotlight. The report by the Parliamentary Committee on Food, Consumer Affairs, and Public Distribution recommended stringent provisions to handle misdirecting ads and to settle risks on endorsing celebrity.

As a result of that, the Ministry of Consumer Affairs, Food and Public Distribution, GOI on August 10, 2015, introduced The Consumer Protection Bill, 2015.

Under the new bill, Celebrities liability towards false representation has been increased. The bill if passed will make celebrities liable for any false or misleading advertisement.

What is the punishment for celebrities in case of misleading advertising under the new bill?

Section 75B has been added which states, any reckless endorsement by brand ambassadors who exercise influence on consumers without any due diligence or truthfulness of claims made by the product, advertises such product shall be made liable for an imprisonment up to 2 years and fine of INR 10 lakhs for the first offence, and imprisonment of 5 years along with a fine of INR 50 lakhs for the second and subsequent offences.

Who can prosecute the celebrities for misleading advertisement?

The proviso attached to 75B, however, states that the liability for misleading advertisement can be done away with. It is a duty of a brand ambassador to take all precautions and due diligence before endorsing the product.

Thus, the proposed law does not make the celebrity ipso facto liable or vicariously liable for products of the manufacturer. The liability arises only when he does not exercise due care in finding out the true nature of the product. For example, the endorser will not be liable if he makes a claim that the product tastes good or the perfume has a good fragrance, but he will be liable if he makes a claim that a food product is healthy, but in reality, it contains ingredients harmful for human consumption.

Another feature of the draft bill is that the consumer cannot criminally prosecute the celebrity for a false claim. This means that it is not open for individuals to start a criminal proceeding against celebrities for false claims in an advertisement. Criminal Prosecution can be done only by an officer of the Central Consumer Protection Authority, duly authorized by the Chief Commissioner.

Another protection given to celebrities is that in case they shell out monetary damage charges against them can be dropped.

Though the Consumer Protection Bill,2015 has not been passed from Rajya Sabha, once passed it will increase the liability of celebrities many folds.

Further details of the bill can be accessed at http://www.prsindia.org/uploads/media/Consumer/Consumer%20Protection%20bill,%202015.pdf

Ninth report of the standing committee on food, consumer affairs, and public distribution

The Consumer Protection Bill, 2015 was placed before a standing committee which took suggestion about the bill from various organisations like FICCI, ASSOCHAM, Consumer Education and Research Centre, Ahmedabad, NLSIU, Banglore, etc. After taking suggestions from the experts, the committee opined, false claims in an advertisement by celebrities need to be dealt stringently since consumers believe whatever is said by the celebrities blindly. The Committee strongly feels that the existing laws are not deterrent enough to discourage manufacturers or publishers from using such personalities for misleading advertisements. The Committee, therefore, recommended that stringent provisions may be made in the Bill to tackle misleading advertisement, as well as to fix liability on endorsers/celebrities. The Committee recommend that for first time offense, the offender may be penalized with either of a fine of Rs. 10 lakhs and imprisonment upto two years or both, for second time offence, a fine of Rs. 50 lakhs and imprisonment for five years and for subsequent offences, the penalties may be increased proportionally based on the value of sales volumes of such products or services.For more details about the report of the standing committee(see here).

Is the bill violative of the fundamental right of trade and occupation of celebrities?

No, in the author’s opinion a restriction on celebrities against endorsing harmful products cannot be said to be in violation of their fundamental rights under Article 19(1)(g) which guarantees citizens freedom of trade and occupation. Under Article 19(1)(g) a citizen is free to engage in any profession he likes, however, such a freedom is regulated by Article 19(6). Under Article 19(6) government can impose reasonable restriction on freedom of trade and occupation in the interest of general public. This will include the health of the citizens of India. No one can be allowed to play with the health of citizens of the country at the cost of the right of celebrities to freedom of trade and occupation. In the past, SC has regulated freedom of trade and occupation where the health of public was involved. In the case of State of Punjab vs. Devans Modern Breweries Ltd., the SC has regulated liquor business as it affected with the health of the public. Thus, a ban on selling of liquor was held not violative of freedom of trade and occupation. Similarly, in this case also celebrities cannot be allowed to advertise those products which are harmful to the health of public and such a regulation by the central government in the form of Consumer Protection Bill,2015 is intra vires to the Constitution of India.

Conclusion

Thus, in the lights of the expanding economic horizons of the country, it is the need of the hour to preserve the concept of Welfare State in India. To abide by such a concept, the government needs to frame strict regulations against any person be it a celebrity or a politician or big corporate house. No one should be allowed to play with the health, peace and well being of the citizens of the country. Till now, no celebrity has ever been prosecuted for any misleading claims in the advertisement. But once the proposed bill is passed the responsibility of celebrities towards society would be enforced by a legal backing.

In this article, Shubham Kumar discusses Laws against giving and taking bribe in India.

Introduction

India has been ranked 76th out of 176 countries in the Corruption Perception Index released by Transparency International. In the past decades and also at present, India has seen a series of corruption with the most recent being, INR 1,86,000 crore coal scam in 2012, 2G spectrum scam of INR 1,76,000 crore in 2008, Commonwealth Games Scam of INR 70,000 Cr. in 2010, Bofors Scam of INR 200 Cr. in 1980 etc. In the light of these scams, it can be concluded that the problem of corruption in India is huge. Right from the clerical to the ministerial level, corruption is rampant prevalent in India. Thus, in India, there is an immediate need for strict regulation to keep checks on government officials. If corruption remains unchecked, the inequality gap in India would further widen with the ministers and govt. officials holding wealth and the poor in India will remain starving for days.

What are the laws to prevent corruption in India?

In the wake up of series of corruption in India, the GOI has passed many laws to prevent corruption. Some of the major laws for keeping a check on corruption are:

• Indian Penal Code, 1860
• Prevention of Corruption Act, 1988
• Prevention of Money Laundering Act, 2002
• Right to Information Act, 2005
• Central Vigilance Commission Act, 2003
• Whistleblowers Protection Act, 2011

Under what provisions of IPC can a complaint be made against public officials asking for a bribe?

• Under IPC, a government employee, an officer in the military, navy or air force, police, judges, officers of Court of Justice, and any local authority established by a state or central Act is treated as a public servant.
• Under Section 166, if a public servant does not do what is required to be done by him, in his official capacity he will be punished with simple imprisonment of a term. For example: X who is a public official is directed by the court to seize the property of Z, but X shows some favor to Z. He can be made liable under this provision.
• Under Section 171B, if any public official accepts either for himself or for any other person any gratification as a reward for showing undue favour to any person commits the offence of bribery and will be liable for imprisonment.
• Under Section 409 of the IPC, if a public servant is entrusted with any property or dominion over the property and he converts such property for his use, he is guilty of criminal breach of trust. The punishment for an offense under Section 409 is life imprisonment or imprisonment up to 10 years.
• Under Section 169 of IPC, if a public servant unlawfully bids for any property he shall be punished with imprisonment up to 2 years or fine or both.

Lodging a bribery complaint – Steps to follow

There are two ways in which criminal law against such public officials can be set into motion.

• By registering an FIR before police u/s 154 of CrPC. or by making application u/s 156(3) to the Magistrate, thereby magistrate directing the police to register the FIR.
• By making a private complaint u/s 200 of CrPC. to the Magistrate.

In the case of Sunil Bharti Mittal vs.CBI , the court held that magistrate could take cognizance of the offense, if on his application of mind he is satisfied that the allegations made are true.

Procedures for registering FIR can be accessed at this link.

Under what provisions of POCA Act, 1988 can a complaint be made against public servant asking for a bribe?

• Under Section 2 of the Act, a public servant is defined as any person in service or remunerated by the government, any person remunerated by entities established by the government, any Judge, officials of the Court, any official of a registered co-operative society, VC, professors and officials of university,etc.
• Under Section 7 of this Act, if a public servant accepts or agrees to accept any gratification other than legal remuneration as a reward for showing a favor or disfavor to any person shall be liable under this Act for imprisonment up to 3 years which may extend up to 7 years and fine.
• Under Section 11 of the Act, if a public servant accepts a valuable thing without paying for it or paying inadequately from a person with whom he is involved in a business transaction in his official capacity, he shall be penalized with a minimum imprisonment of six months and a maximum imprisonment of five years and fine·
• Under Section 13 of the Act, a public servant will be liable for criminal misconduct if he habitually accepts or agrees to accept any gratification other than his legal remuneration or dishonestly misappropriates any property entrusted to him as a public servant or abuses his position as a public servant will be liable for criminal misconduct and shall be punished with imprisonment for not less than four years which may extend up to 10 years and shall also be liable to pay fine.
• Under Section 19 of the Act, the previous sanction of the concerned government department is necessary to prosecute a person for the offenses committed by him.
• Special Judges are appointed by Centre and state to try cases related to corruption. Such judges can also take complaints from private individuals about public officials demanding the bribe. Read the case law regarding this here.

Where to file a complaint against public servant asking for a bribe?

• The main authorities where bribery related complaint can be filed are the Central Vigilance Commission, The Central Bureau Of Investigation and the State Anti-Corruption Bureau.
• The CBI and state ACBs investigate cases related to corruption under the Prevention of Corruption Act and the Indian Penal Code.
• The CBI’s jurisdiction is the Central Govt. and UTs whereas ACBs investigate cases within the state.
• CVC is a supervisory body. It makes rules to be followed by ACBs as well as CBIs. It refers cases received by it to CBI or ACB.
• A complaint to the CVC can be made by a letter. An online complaint can be made at [email protected].
• For a complaint to be made by a letter it should be in a closed envelope, name and address of the complaint should be mentioned, the envelope should be sealed.
• Complain can also be made on the website of CBI http://cbi.nic.in/contact.php.
• Complaint to the ACB can be made by addressing a letter to them, or by a phone call or by writing an email to them. The phone numbers, address, email ids of ACBs can be accessed at this link.
• The ACB accepts complaint in disproportionate assets cases and bribery cases and lays a trap to catch the guilty.

Judicial Corruption – How to lodge a complaint against the judges

• For the judges of the lower judiciary, CBI is the competent authority to receive complain and take actions against the erring judge.
• In case of higher judiciary, an in-house mechanism has been formulated to receive complaints against judges. In case a judge of the High Court demands bribe, complaint can be made to the CJ of the concerned High Court. In case, a CJ of a high court asks for a bribe complaint should be addressed to the CJI. Complaint against any judge of the SC is also made to the Chief Justice of India.

Where to file a complaint in case an MP or an MLA demands bribe?

• Provisions for complaint against MPs has been discussed above.
• In case a MLA demands bribe, complaint can be made to the Lokayukta of the state. The Lokayukta has the power to initiate enquiry against any minister including the chief minister.
• The steps of filing complaint to the Lokayukta can be accessed at this link.

Where to make a complaint in case of corruption in different sectors like real estate sector, aerospace sector or mining sector etc?

• Complaints of corruption against any officials of any of the governmental departments can be made to the Central Vigilance Officer of the concerned department. The procedures for making complaint is same as that of complaint to CVC.

How long does the overall procedure take

• The time limit for investigation of charges and awarding of punishment has been given in Complaint Handling Policy of the CVC. Under the policy, the Chief Vigilance Officer (CVO) has to submit his report on the complaints sent by the CVC for investigation within three (3) months. Based on the investigation report, the CVC will render advice after an independent application of mind. Subsequent disciplinary action by the concerned Disciplinary Authority takes around six (6) months. Imposition of penalty takes a further period of three (3) to six (6) months.

What to do in case CVC is not taking any action against the complaint?

• After a complaint is filed a key number is allotted to the complaint. He/she can track the status of the complaint using the key number.
• Generally, the whole procedure takes a time up to 6 months. From filing of complaint to investigation of charges, 3 months time is required and additional 3 months are required to take disciplinary proceedings and imposition of penalty.
• Where CVC, after receiving complaint does not take any action a writ petition can be filed in a High Court, whereby the HC will issue the writ of Mandamus directing the CVC to take action against the complaint.

Protection of the person making complaint of bribery

Any person who reports offense of corruption shall be protected by the Whistleblowers Protection Act, 2011.

Where any public official asks for a bribe , any public servant, or other person including NGOs can disclose of the wrongful acts to the Competent Authority. Any disclosure made under this Act shall be treated as a public interest disclosure, and such person is entitled to certain protection,

• If he is a public servant, no departmental proceeding can be initiated against him.
• If any person is victimised on the ground that he has filed a complaint, he can report the matter to the competent authority. The Competent authority can give direction to the police for protection of the complainant.
• If the public servant is removed from office after he has made a disclosure, the competent authority can restore his job.

Disclosure means reporting of any offense under Prevention of Corruption Act, 1988 or any wilful misuse of power made in writing or by email to a competent authority. The Competent Authority includes PM when the complaint is against any minister, CM when the complaint is against any State Minister, Cabinet Ministers in relation to a complaint against the concerned department, in relation to the judges except a judge of HC & SC to the High Court, CVC, and the SVC.

The identity of the complainant must be included in the complaint, however, the competent authority has to conceal the identity of the complainant unless he has himself revealed his identity (by way of media interviews, etc.). The Competent Authority may with prior approval of the complainant reveal his identity to such organization where it becomes necessary to do so. While dealing with such enquiry, the designated agency shall have the power of a civil court under the Civil Procedure Code, 1908.

The time limit for making a complaint is seven years from the date on which such act was committed. Under the Whistleblowers Protection Act, 2011 the identity of such person shall be concealed. Any person who reveals the identity of the complainant shall be imprisoned up to 3 years and fine not exceeding INR 50000.

Similarly, any disclosure made with mala fide intention knowing it to be false shall be punished for two years and fine not exceeding INR 30000.

The Act extends to companies also. Where a wrongful act is committed by any company, every person who at the time of the offense was responsible for the conduct of the business shall also be guilty.

Procedures to file complaint under the Whistleblowers Act, 2011

The GOI has issued guidelines on public interest disclosure and procedures to file complain to avail benefits under WhistleBlowers Protection Act, 2011.

Under the guidelines, the GOI has authorized the CVC as the designated agency to receive written complaints about disclosure of any allegation of corruption or misuse of office.The Commission can receive complaint against employees of the Central Govt. or of any corporation established by the government. Rules to be followed while making a complaint:

• The complaint should be in a closed envelope.
• The envelope should be addressed to Secretary, CVC and on top of the envelope “Complaint under The Public Interest Disclosure” should be written. If it is not closed and it is not super scribed it will be dealt as per normal policy, and the person cannot avail benefit under the WhistleBlowers Protection Act, 2011.
• The Commission will not entertain the complaint if the name of the complainant is not mentioned.
• The text of the complaint should not give any clue as to the identity of the complainant.
• The whistleblowers should not enter into any further communication with the Commission.

Laws against person giving bribe

• Under Section 12 of the Prevention of Corruption Act, 1988, if a person offers a bribe to any public official or intends to give him any valuable object, in return of a favor extended to him shall be liable for an imprisonment of three years which may extend up to seven years.
• However, a statement made by a person during the proceedings stating that, he offered or agreed to offer any gratification or a valuable thing would not make him liable under Section 12.
• Under Section 171E of the Indian Penal Code,1860, a person offering a bribe can also be punished for a term of one year or fine or both.

Conclusion

According to a survey, 38% of land and property deals in India involves bribes, 62% of law enforcement officers take bribes, INR 222 crore is paid by truck drivers every year to police, forest officials, excise officials, etc. A study showed that 60% of people having driving license have never appeared for a driving test. The monetary value of petty corruption in 11 services of the Govt. like education, healthcare, judiciary, etc. amounts to INR 3,19,72,50,00,000 annually. In lights of such statistics related to corruption, it can be concluded that problem of corruption is deeply rooted in the Indian Society. The problem cannot be solved by law-making. To deal with such a societal evil, people need to bring change in themselves. The coming generation should be made to realize the evils of corruption and should be taught not to indulge in these practices.

About

iPleaders is accepting applications for internship in December and January 2018.

Work

Interns are given work related to legal research, upcoming PILs, writing blogs and articles and will be trained to become excellent researchers and writers.

Training Sessions

There are regular training sessions organized for interns to make them effective.

Application Procedure

Send your updated CV to [email protected]. Interns who can join by December 23, 2017, will be given preference. 

Stipend

Upto INR 5000 stipend is available on achievement of certain metrics.

Internship Experiences Shared by Interns

Here is a recommended one where the person shares what she got to learn at iPleaders. Click HERE.