In this article, Akshita Rishi pursuing M.A, in Business Law from NUJS, Kolkata discusses Rules & Regulations Related to Road Tax in India.

Introduction

Road tax as the name suggests means the tax levied on any vehicle before it is used in public on the road. It is a state level tax, i.e. it is imposed by various states at their individual level, which leads to a varying percentage of taxes in different states.

Road tax is one of such taxes, which are very important for every individual tax paying citizen of India.

It is nowadays important because approximately one person amongst three owns a vehicle. Also, Road tax is a compulsory tax paid by the person when he purchases it.

So, it is paramount to know about tax, which is popularly paid by many.

Let us Understand the Concept and Related Rules Framed by Government

Vehicles Liable to Pay Road Tax

This tax is paid on all the vehicles including two-wheelers and cars. The tax is levied on all private and commercial vehicles.

Authorities who Levy such Taxes

Road Tax is levied by,

• Central Government
• State Government
• Local Authorities

Reason Behind the State Levying Road Tax in India

In India, all the roads are not made by the Central Government. Around 70% to 80% roads in the state are constructed by their respective state governments. So, obviously the cost is borne by the state government due to which they are given the responsibility to impose road tax for their state. This is the reason behind different rates in different states.

So, the reason behind such different rates is clear but still due to variation in the tax rates, the common man faces a lot of problems in transfer of vehicles or goods from one place to another.

The transfer process is also time consuming, thus, creating complications for the common person.

Time of Payment of Road Tax

Road Tax is paid when the registration of the vehicle takes place. It is paid either on a yearly basis or once in a lifetime. This payment depends on the various criteria of the state governments. However, if the owner of the car uses it in some other state, i.e. not in the state where the vehicle is registered and the owner has paid the road tax for the lifetime, then in this case, the person has to pay the road tax again in the new state.

• Like in Delhi, the Road Tax is paid at once at the time of registration.

Place of Payment of Road Tax

The Road Tax is paid at the Regional Transport Office i.e. RTO.

Calculation of Road Tax

The calculation of Road Tax is done on the basis of ex-showroom price of the vehicle purchased.

Following Points are taken into Consideration while Calculating Road Tax,

• Age of the vehicle
• Seating capacity of the vehicle
• Weight of the vehicle

Rates of Road Tax in India

In India, Road Tax is imposed by three bodies of the Central government, State government and local authorities. Customs duty, Central excise and central sales tax are levied by central government, motor vehicles tax, passenger and goods tax, state vat and toll taxes are charged by state government and local bodies collect Octroi.

When a vehicle is purchased Central Excise Duty, Central Sales Tax and state VAT are applicable at 10%, 3%, 2% and 12.5% respectively.

For example, The rate of tax in Gujrat is 6% while in Tamil Nadu, it is 10% for the cars amounting to ₹10 lakhs and onwards.

As per Central Motor Vehicles Act, if a car is being used for more than a year, then it is compulsory to pay the whole amount of road tax at once.

Refund of Tax Paid

If the vehicle is used for less than 15 years and the owner decides to scrap or discard it, then he needs to cancel the registration of his vehicle at the Regional Transport Office in which the vehicle was registered. In case of transfer of registration of vehicle from one place to another, then the refund of tax can be claimed from the RTO in which the vehicle was initially registered and not in the RTO in which the vehicle was subsequently transferred.

Following Steps are Taken to Cancel the Registration

1. Either the Engine or Chassis number is removed from the vehicle and it is submitted at the RTO.
2. The number plate is also submitted after removing it from the vehicle.

On successful completion of these steps, the refund can be claimed after submission of other relevant documents which the authority may deem fit.

Online Payment of Road Tax in India

Online payment of Road tax can be done for the transport vehicles which are registered with the respective Transport Department. Any user can pay the tax by entering and submitting the Vehicle Registration Number and the Chassis number. They have to then select the mode of payment of tax and complete the payment process.

Role of GST i.e. Goods and Services Tax on Road Tax

Goods and Services Tax is the new tax replacing all the Indirect taxes. However, it is to be noted that some of the taxes like Road tax, Property tax, Stamp duty is outside the ambit of GST.

Thus, there is no effect of GST on road tax in India.

As the Rate of Tax of Different States is Different, So Let us Understand the Rules and Regulations of a few States

DELHI

Delhi, the Capital region levies Road tax as per Delhi Motor Vehicle Taxation Act, 1962.

The Road tax is paid under Section-3 of the above-mentioned act at the time of registration of the vehicle at RTO.

Rates of road tax

Different types of vehicles pay different percentage of tax. The number of drivers also plays a major role while calculating tax for commercial vehicles.

The Amount is as follows,

• Maximum passengers excluding the driver are liable to pay ₹305. However, more than two but upto 4 are required to pay ₹605. This amount increases as the number of passengers also increases. If the passengers are more than 18 or above excluding both driver and conductor, the owner is liable to pay ₹1915 plus ₹280 per passenger.

• The rates for airlines and staff vehicles are same as that of commercial passenger vehicles as mentioned above.
• The loading capacity of the goods vehicles plays a dominant role for commercial goods vehicles.
• If the loading capacity of the vehicle is less than 1 tonne then the road tax is ₹665. As the loading capacity increases, the amount liable to be paid by the owner also increases. For the vehicles of more than 1 tonne and less than 2 tonne the amount of tax is ₹940. The maximum tax which the owner is liable to pay is ₹3790 plus ₹470 per tonne. For trailers the amount increases as per the additional 10 tonnes and per trailer. In such a case, the maximum amount which the owner is liable to pay is 3,790.00 +@ Rs.470/-per Tonne + Rs.925/-
• It is to be noted in the case of the trailer that the road tax is charged to the corresponding registered vehicle only.
• For auto rickshaws ₹305 per annum is to be paid by the owner and in case of taxis ₹605 per annum is to be paid.

Payment of Road Tax

For personal use of vehicles, the Road tax is paid at once only, but in case of commercial vehicles, the Road tax can be paid on monthly, yearly and half-yearly basis as well. Such vehicles include all autos and taxis also.

Place of Payment

For private vehicles, the Road tax is paid at the respective Zonal Registration Office. Such payment is one-time payment only.

In case of commercial vehicles, the tax is deposited at the Headquarters of the Transport Department in the Account branch.

Time of Payment of Road Tax

The tax is to be paid at the time of registration of the vehicle. This provision is covered under Section 3 of Delhi Motor Vehicle Taxation Act,1962.

Tax Payment

The tax is paid at once and not on yearly basis.

Registration

In case the same vehicle if already registered either in Delhi or some other state, amount of one-time tax will be “amount specified in column (2) of part B of Schedule I and subtracting the proportionate amount of one-tenth of the tax which is calculated on each completed year from the month in which the vehicle was registered. If the vehicle is more than 10 years old, then this rule is applicable if the owner applies to the taxation authority for an endorsement and inform them that, as the motor vehicle is more than 10 years of age so the use of vehicle will not attract any tax.

Payment of Tax

The Registered owner of the vehicle or the person having control of such vehicle, either used or kept for use in Delhi is under obligation to fill up and sign the form, prescribed under the act stating all particulars. This form is then delivered within the prescribed time to the taxation authority.

Token

After successful payment under Section 3 of this Act and the owner has proved to the authority that no amount is due on such vehicle, the Taxation Authority will issue a token to that person. The token will be valid only for the period for which the payment has been done. This will also be mentioned in the Certificate of registration.

Alteration

In case the vehicle is used or kept for use in Delhi, is either altered or is propounded to be used in such a manner in which the owner or the person in possession is liable to pay additional tax, in this case the person is required to disclose all the related information and pay such tax with respect to such vehicle.

Certificate of Insurance

The Certificate of Insurance is compulsorily required to be presented at the time of payment of Road tax by the owner of the vehicle or the person in possession of such vehicle.

Arrears of Road Tax

If there is arrear of tax and the person before payment of such tax has either transferred the vehicle to another person or has terminated the ownership, then in such a case, the person currently in possession or the legal owner of the vehicle is liable to pay such road tax.

Penalty in Case Road Tax is not Paid

When the person in possession of the vehicle or the registered owner of the vehicle makes default in making payment of Road tax, then the Taxation authority may direct such person to pay the arrears of tax along with an amount not exceeding the annual tax payable with respect to such vehicle. This amount will be recovered as penalty from such person.

MAHARASHTRA

Calculation of Road tax

Following things are taken into consideration while calculating Road tax in the state of Maharashtra:

• Age of the vehicle
• Manufacturer of such vehicle
• Fuel type i.e. petrol or diesel
• Measurement of such vehicle i.e. it’s length and width
• Seating capacity
• Number of wheels of the vehicle
• Engine capacity of such vehicle….and many more

Schedule A (III)

This schedule mentions the tax rate with respect to the weight in kilograms. For less than 750 kg, the tax rate per year is ₹880. The amount increases with the increase in weight, like if the weight is equal to or more than 6000 but less than 7500 then the amount of tax will be ₹3450. The maximum tax to be paid shall be ₹8510 plus ₹375 to be paid for every 500 kilograms and part with respect to increase in excess of 16,500 kilograms.

Schedule A (IV) (1)

This schedule explains the tax rates with respect to the vehicle type. The vehicles which are licensed to carry 2 passengers is ₹160 per seat per year. With the number of passengers, the rate per seat per year also increases. The maximum tax is ₹600 per seat per year for a vehicle which carries 6 passengers.

The vehicle type differs and so as the rate of tax for,

1. a) air-conditioned taxi
2. b) Tourist taxis for AC or non – AC taxi or foreign make.

There are other schedules also like:

Schedule A (IV) (3) (A) stating the tax for inter-state route.

Schedule A (IV) (4) states the special permit vehicle covered under Central Motor Vehicles Act

Schedule A (VIII) deals with tax for transport of goods excluding for agricultural purposes.

Assessment of Tax Rate

The Taxation Authority shall verify all the particulars filled in the application form of registration and shall determine the rate of tax which will be imposed on the vehicle. This is applicable on all the vehicles registered in the state. In case the Taxation authority and registering authorities are different, the registering authority after verifying the particulars furnished by the person will intimate and forward the fact of such registration to the taxation authority so that it can also ascertain the rate of taxation applicable to such vehicle.

Payment of Tax

The tax can be paid with a government treasury also. Mode of payment can be as follows,

• Cash
• Cheque
• Demand draft
• Money order

This payment is done to the Taxation Authority in whose jurisdiction the vehicle is brought to be registered. In case of Government Treasury, the payment is done.

Change in Address or Transfer of Ownership

In Case of Change of Address

The owner has to inform the taxation authority in writing within 30 days but only in case if the transfer of the vehicle is in the same jurisdiction. If the transfer of vehicle is in another jurisdiction, then the owner shall forward the certificate to the jurisdiction in which the vehicle is being transferred so that the new address may be entered therein. The owner shall also intimate the taxation authority in which the vehicle was previously registered.

In Case of Transfer of Ownership

The transferor should within 14 days of such transfer, inform the taxation authority in form ‘TCR’ and also send a copy of this form to the transferee. The transferee, on the other hand, should inform about such transfer to the taxation authority in the jurisdiction of which the vehicle is being transferred (i.e. either at the place of residence or business) in form ‘TCA’ and shall forward to them, the certificate of transfer along with the copy of documents received by him from the transferor so that the particulars of transfer of ownership can be amended in the certificate of taxation by the authority.

Certificate in Case of Non-User of a Vehicle

The owner in whose name the vehicle is registered or the person in use have to make a declaration to the appropriate authority in writing on the following matters:

• The name and address of the registered owner or the person in possession of the vehicle, as the case may be.
• Registration mark of the vehicle.
• The starting and the end date during which the vehicle will not be used.
• The address of the place where the vehicle will be kept in the duration of its non-use.
• Reasons behind non-use of the vehicle.
• A declaration stating that the owner or the person in possession of the vehicle will not use the vehicle sans prior approval from the Tax Authority.
• A declaration stating that the certificate of taxation will be surrendered along with the declaration.

The above-mentioned declarations shall be made before the period of non- use of the vehicle is commenced and before the termination of current period in which the tax is to be paid.

Declaration for Payment of Tax

The following declarations shall be made in Form ‘AT’ stating-

• The registered trade mark on the vehicle, if any
• In case of advance payment of tax, the period of payment of tax
• The type of fuel used for the vehicle i.e. petrol or diesel
• In case the vehicle is covered under Clause A in the first schedule of the act and the mentioned tax rates are applicable to it then, it is compulsory to mention if the vehicle is,
  • Used only in the limits of the local authority which has imposed tax on the vehicle.
  • Used both in or out of the limit of local authority.

It is to be noted that a fresh declaration is required to be made each and every time the tax payment is done.

Refund Procedure

Under Section 9, the person claiming a refund is liable to submit an application to the appropriate authority in Form ‘DT’ mentioning all the relevant grounds to claim the refund along with the certificate of taxation. However, the authority will not entertain any application if such application is made after the expiry of six months from the date,

1) Mentioned on the “certificate of non-use” for the last date of non-use of the vehicle.

2) Cancellation, expiry or suspension of the certificate of registration of the vehicle.

The refund can also be claimed if the vehicle is permanently discarded or has been removed from the state.

After the application is received by the Taxation Authority under Rule 12, the amount of refund is calculated and a certificate is issued to the applicant in Form ‘ET’. Also, the Certificate of Taxation is returned to the applicant after entering the details of refund paid by the authority.

Such refund is claimed by the applicant within 90 days of issue of such certificate, by presenting Part II and Part III of the certificate at The State Bank of India, The Reserve Bank of India or any other bank which undertakes the cash business of the State Government. Part III of the certificate will be returned by the Taxation Authority with a “P stamp” to the Tax Authority, after the refund is done.

Vehicles Exempted from Levy of Road Tax

The Registered Owner or the person in possession or control of the vehicle can claim exemption from tax under Section 13 by making an application in “Form MT.

Any application made by the applicant can be entertained by the Regional Transport officer only if the application for the vehicle is made in respect of the following issues:

1. The vehicle is covered under sub-section (1)of Section 13.
2. The vehicle is a tractor which is used for drawing trailers solely for the purpose of conveying goods used for agricultural purpose. Any tractor used for transportation of agricultural produce from the farm to any godown, marketplace or the residence of the owner.
3. The vehicle belongs to the United Nations International Children’s Emergency Fund, New Delhi and is given to the Government of Maharashtra on the basis of a loan to execute schemes under the Community Project Programme. Also, it is mandatory that it should be registered in the State of Maharashtra.
4. The vehicle either belongs to The Government of India or The Government of Maharashtra
5. The vehicle belongs to the Consular and Diplomatic Officers
6. The vehicle belongs to the Cooperative for American Relief Everywhere Inc. (CARE). Also, it should either be imported or locally purchased and is used solely related to the work of a specific organisation in State of Maharashtra.

KARNATAKA

The Karnataka Road Tax Rules are stated under the Karnataka Motor Vehicles Taxation Act, 1957. The act has been amended several times thereafter.

Certain provisions with respect to Karnataka road tax are: –

Tax Percentage

• The cost of the vehicle and the age plays an important role.
• For 2 wheelers, the new vehicles which cost less than ₹50,000 or more than 50,000 are liable to pay 10% and 12% of the cost of such vehicle respectively. Vehicles that run on electricity have to pay 4% of the cost of such vehicle. Vehicles less than 5 years old are liable to pay 73% to 93% as covered under clause A and those of 10 to 15 years old have to pay 45% to 25% under clause A.
• For 4 wheelers, new vehicle which cost less than 5 lakhs have to pay 13% of the cost of such vehicle and those above 5 lakhs upto 10 lakhs pay 14%, and 17% and 18% is paid by those owners owing vehicles ranging 10 lakhs to 20 lakhs and more than 20 lakhs respectively. Vehicles which run on electricity have to pay 4% of the cost of such vehicle. With respect to age, the rate of tax is same as of 2 wheelers.  

Life Time Tax Payment

If the vehicle is registered in some other state but is currently operating in Karnataka, then such vehicle owner is not liable to pay lifetime tax again if such vehicle is used for less than one year in this state.   

Levy of Tax

The Tax is imposed on all the vehicles which are considered feasible to be used on road. The rates applicable on such vehicles are specified in Part A of the schedule.

Payment of Tax

The payment of tax is done within 15 days of the commencement of each quarter, year or half-year, as required under Section 3. This payment is done in advance by either the person in possession of such vehicle or the registered owner.

Taxation Card

After payment of tax which is levied on vehicle under Section 3, the Taxation authority will issue following to the applicant:

1. A receipt specifying the amount of tax paid
2. A Taxation Card mentioning both the rate of tax levied and the period for which the tax has been paid.
3. It is to be noted that in case of no Taxation Card with the owner or person in possession of the vehicle, such vehicle which is liable to pay tax under Section 3, cannot be held in custody unless the owner obtains Taxation Card.

Conclusion

Here we have discussed only a few states and their Road tax rules and regulations. However, as we discussed above, different states in India have different rules and regulations. This can clearly be concluded from the above provisions specified and followed by different states.

As per a news report by Economic Times, Karnataka is charging the highest tax amongst all the states in India. Even Delhi and Maharashtra are not that behind. They both charge the highest tax on diesel vehicles.

However, Maharashtra, on the other hand, charge lowest tax rate for CNG-run cars. The Road tax is found is to lowest in North Eastern region.

Thus, for every layman, knowledge of road tax is crucial, according to the current scenario.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

References

1) National implementations of road tax- Wikipedia

https://en.wikipedia.org/wiki/Road_tax

2) Blog post on “road tax is refundable on transfer and cancellation of registration”

http://www.livemint.com/Money/cu4zP3mtdcs16SXDzqaxCN/DYK-Road-tax-is-refundable-on-transfer-and-cancellation-of.html

3) Delhi government transport department official web site

http://delhi.gov.in/wps/wcm/connect/doit_transport/Transport/Home/Road+Tax/Where+to+Pay

4)National portal of India – Government of India official website

https://india.gov.in/pay-online-road-tax-transport-vehicles-registered-delhi

5) Delhi Motor Vehicles Taxation Act, 1962

http://it.delhigovt.nic.in/writereaddata/egaz20177559.pdf

6) The Maharashtra Motor Vehicles Tax Rules, 1959

https://transport.maharashtra.gov.in/Site/Upload/GR/The%20Maharashtra%20Motor%20Vehicles%20Tax%20Rules,%201959.pdf

7) Bank bazaar.com

https://www.bankbazaar.com/tax/maharashtra-road-tax.html

8) The Karnataka Motor Vehicles Taxation Act, 1957

http://dpal.kar.nic.in/pdf_files%5CMOTOR%20VEHICLES%20TAXATION%20ACT-new%20(Final).pdf

9) Bank bazaar.com

https://www.bankbazaar.com/tax/karnataka-road-tax.html

10) Blog post on “Road tax in Karnataka is the highest, North East levies the least”

http://www.businessinsider.in/Road-tax-in-Karnataka-is-the-highest-North-East-levies-the-least/articleshow/46932140.cms

In this article, Arunava Bandyopadhyay pursuing M.A, in Business Law from NUJS, Kolkata discusses how to Participate in Government e-Market (GeM) as a Seller.

Introduction

“The Government is committed to curbing corruption. One of the key aspects of this objective is to minimize Government’s human transactional interface. Accordingly, public procurement is being transformed by leveraging technology such as online marketplaces and e-tendering. The Government E-marketplace (GeM) also offers other advantages such as minimizing prices while maximizing ease, efficiency and transparency. It will help enhance processes in ways such as demand aggregation, real-time price discovery, and prompt automated payments.” – Shri Narendra Modi, Prime Minister of India.

The above quote of the Hon’ble Prime Minister of India summarizes the whole objective of the Government of India noble Initiative to bring in transparency and curb corruption. Public procurement forms a very important part of Government’s work and as such it involves significant amount of money and goods transaction. The bureaucratic ways of Government processes led to various loopholes and ultimately the cancer of corruption has eaten up a big amount of government’s exchequer. To curb this corruption and bring transparency and efficiency reform in Public Procurement is one of the top priorities of the Indian Government. Government e-Marketplace (GeM) is an exceptionally intense stride of the Government with the hope to change the way in which acquisition of merchandise and ventures are executed by the Government Ministries/Departments, PSUs, Autonomous bodies and so on. This initiative expects to upgrade straightforwardness, effectiveness and speed in public procurement. It gives the instruments of e-bidding, reverse e-auction and demand aggregation to encourage the government users to accomplish the best incentive for their cash. In short, it is government’s initiative for Procurement made smart.

Background of Government e-Marketplace

The Government e-Marketplace initiative owes its beginning to the proposals of two Groups of Secretaries made to the Hon’ble Prime Minister in January 2016. They suggested setting up of a devoted e-market for various products and services procured/sold by Government/PSUs other than improving DGS&D. Along these lines, the Hon’ble FM in his Budget discourse for FY 2016-17, declared setting up of an innovation driven stage to encourage procurement of products and services by different Ministries and offices of the Government. DGS&D with expert help of NeGD (MeitY) has created GeM portal for procurement of both Products and Services. The portal was launched on 09th August 2016 by the Hon’ble Commerce and Industry Minister. Procurement on GeM has been approved by GFR by including Rule 141A (DoE OM dated third May 2016). Presently more than 7400 products in about 150 product categories and hiring of transport service are available on GeM POC portal. Transactions for more than Rs 140 Crore have already been processed through GeM. It is a totally paperless, cashless and framework driven e-commercial center that empowers acquisition of regular use merchandise and services with negligible human interface.

Benefits of GeM

Government e-Market place has several benefits to the Government, Sellers and Indian Industry and economy. Let us explore the benefits for different stakeholders:

Buyers

1. Offers rich posting of items for singular classes of Goods/Services
2. Makes accessible hunt, think about, select and purchase facility
3. Empowers purchasing Goods and Services on the web, as and when required.
4. Gives straightforwardness and simplicity of purchasing

5.Guarantees ceaseless merchant rating framework

6. Progressive easy to understand dashboard for purchasing, checking supplies and payments
7. Arrangement of simple merchandise exchange

Sellers

1. Accessibility to all Government offices in one go
2. One-stop search for showcasing with insignificant endeavors
3. One-stop search for offers/reverse auction on items/services
4. New Product Suggestion facility accessible to Sellers
5. Dynamic pricing: Price can be changed based on market conditions
6. Seller cordial dashboard for offering, and checking of supplies and payments
7. Consistent and uniform purchase procedures

Common Benefits to all Stakeholders

Transparency

GeM disposes of human interface in seller enlistment, arrange position and installment preparing, all things considered. Being an open platform, GeM offers no entry barriers to bonafide suppliers who wish to do business with the Government. At each progression, SMS and email notices are sent to both purchasers, his/her head of association, paying specialists and additionally merchants. On the web, cashless and time bound installment on GeM is encouraged through combination with PFMS and State Bank Multi Option System (SBMOPS); web-administrations incorporation is being stretched out to installment frameworks of Railways, Defense, major PSUs and State Governments. Seamless processes and online time-bound payment, which is also mandated by the OM issued by Department of Expenditure, has given confidence to the sellers and reduced their ‘administrative’ cost involved in pursuing officers for timely payment.

Efficiency

Coordinate buy on GeM should be possible in a matter of minutes and the whole procedure in on the web, end to end incorporated and with online instruments for evaluating value sensibility. For acquirements of higher value, the offering/RA office on GeM is among the most straightforward and proficient, in contrast with e-acquisition frameworks in vogue inside the Government segment. For making an offer/RA, the purchaser does not have to make his/her own particular specialized details as they have been institutionalized on GeM. The offer/RA can be made in a matter of minutes and concluded inside at least 7 days. The offer/RA is advised by means of email and SMS to all the qualified providers; new providers are additionally told once they get themselves enrolled online on GeM and are resolved as “qualified” by the framework. Diamond offering/RA along these lines guarantees rivalry, reasonable play, speed and effectiveness and prompts appropriate value disclosure. The sensibility of the rates can likewise be affirmed through online correlation with advertise cost on driving internet business entryways. Soon, GeM will likewise begin getting nourishes from different other open acquisition gateways keeping in mind the end goal to guarantee that a similar thing has not been obtained at a lesser rate by some other Government office, from the same or an alternate seller.The sensibility of cost would be additionally fortified by method for incorporation with GSTN and ICEGATE that will empower the purchaser to find out the cost of a thing when it left the plant entryway or when it got transported in into the nation. These would make GeM a greatly capable device in the hands of Government associations to arrange and obtain.

Secure and Safe

GeM is a totally secure platform and every one of the archives on GeM are e-Signed at different stages by the purchasers and dealers. The predecessors of the providers are confirmed on the web and naturally through MCA21, Aadhar and PAN databases. What’s more, SEBI empaneled FICO assessment offices are likewise being utilized for directing third party appraisal of providers. This would additionally reinforce due diligence about the veracity of providers planning to work together on GeM. For high value bids/RA on GeM, an e-Bank Guarantee is likewise being presented.

GeM is an obviously better framework than the current one which depends more on money related instruments (EMD if there should be an occurrence of tenders for extensive acquirements just) to ensure great lead by the providers. In the current framework, there is zero keep an eye on the predecessors of the providers for little value acquirements (upto Rs. 1 lakh) whose total value is huge across the Government organizations. GeM does a 100% online check of all sellers independent of the estimation of procurement.

Potential to Support Make in India

On GeM, the channels for choosing merchandise which are Preferential Market Access (PMA) consistent and those produced by Small Scale Industries (SSI), empowers the Government purchasers to acquire Make in India and SSI products effectively. Effortlessly available MIS additionally empowers the executives and arrangement creators to effectively and adequately authorize the Government directions on PMA and SSI sourcing.

Savings to the Government

The straightforwardness, effectiveness and convenience of the GeM portal has brought about a significant diminishment in costs on GeM, in contrast with the delicate, Rate Contract and direct buy rates. The normal costs on GeM are bringing down by at least 15-20%, and now and again even upto 56%. Jewel is additionally doing Demand Aggregation for things that are to be secured by different Central/State Government Departments. Request Aggregation is relied upon to additionally minimize the costs, by method for institutionalization of details and economy of scale. Request conglomeration for the greater part of the basic utilize products and services is evaluated to bring about yearly funds to the tune of Rs 40,000 Crore per annum. On the off chance that sought after to its coherent decision, GeM would, in the end, rise as the National Public Procurement Portal, keeping tuned in to the Global accepted procedures; the greater part of the OECD nations, similar to USA, South Korea, UK, Singapore and so on, have a single NPPP and as a result annual savings of billions of dollars are made in public procurement, besides giving a fillip to the domestic industry.

How to Start Business as a Seller on GeM

As General Financial Rules, On GeM, for purchases upto Rs.50,000/-, “Purchaser (s)/Buyer(s)” are authorized to source required items through any of the available sellers on the GeM meeting requisite quality, specifications and delivery period. However, for purchases above Rs. 50,000/-, “Purchaser (s)/Buyer(s)” are authorized to source required items through the supplier having lowest price amongst the available suppliers on the GeM meeting requisite quality, specifications and delivery period. Aforesaid, powers have been vested in the Government user departments so that they can meet their requirement of common user goods and services with the flexibility and speed of e-market place and relieve them from repeated mundane activity of bid management. The primary registration to the government users is granted at the level of Deputy Secretary/equivalent officer in respective government departments.

The terms “Sellers” or “Sellers” has been defined as the firm(s) a proprietorship/partnership firm/Limited Liability Partnership/Private Limited/Limited company/Society registered under Society’s Act that offers its Good(s)/Service(s) on GeM and agree to accept the contract placed by “Buyer(s)” for supply of the Good(s)/Service(s) as per the terms and conditions of GeM. The Sellers on GeM will be the OEMs (Original Equipment Manufacturers) and/or their authorized channel partner(s)/ resellers (having any general authorization/dealership of the OEM to sell their product in open market) and e- Marketplaces.

The Steps for Starting Selling on GeM Portal are broadly as follows

1. Business Registration

The firm willing to sell on GeM portal or generally starting a legal business model would require to incorporate a new Private Limited Company or LLP, if required.

2. Tax Registration

Aadhar, PAN, GSTN registration numbers needs to be obtained.

3. Bank Account Link

A Bank account needs to be opened and registered with name of the business firm.

4. GeM Registration

GeM Seller or service provider registration to be completed by registering online and providing required information and documents.

5. E-Sign Terms and Conditions

After all requisite forms are filled up, GeM terms and conditions needs to be e-signed.

6. Knowledge

Learn selling on GeM portal, usage of GeM Dashboard and procedures.

7. Begin Selling

Now let us look into details of the Seller registration process and documentation required:

The following documents are required for Seller Registration:

1. PAN CARD
2. UDYOG ADHAR or COMPANY REGISTRATION or LLP REQUIREMENTS
3. VAT/ TIN NUMBER (of applicable)
4. BANK ACCOUNT & SUPPORTING KYC DOCUMENT
5. IDENTITY PROOF
6. ADDRESS PROOF
7. CANCELLED CHEQUE COPY

The Following links are applicable for Online Registration as Seller / Service Provider

• https://gem.gov.in/register/provider/register

After registration, the firm will be issued a userID and password from GeM portal to access the seller account. Afterwards, the listing & pricing of the products or services are done which are to be offered. The sellers have freedom of pricing the product as per the cost involved. But the final price should include the costs like cost of logistics, duties, packing & taxes, etc. along with a reasonable margin to arrive at the selling price on all-inclusive basis- indicating percentage of GST, as applicable at site basis. Once registration and listing is complete, the products of the seller are visible to the buyer and orders can be placed. If any order is placed the seller will find it in its dashboard and the GeM portal will also send an email alert to sellers registered email id.Buyer shall award the digitally signed/e-signed on-line Contract(s) in the GeM after due diligence to meet their requirements including the requisite specification and delivery period. The Buyer shall satisfy them that the price of the selected offer is reasonable. In case of Services, the agreed SLA (Service Level Agreement) would also constitute the integral part of the Contract(s). For award of Contract(s), Buyer is at liberty to utilize all the data/information and tools made available in the GeM including e-bidding and reverse e-auction. On award of the Contract(s), it would be construed that the Buyer has obtained all necessary Administrative & Financial sanctions of the competent authority and adequate funds are available indicating the relevant Head of accounts in the awarded Contract(s). These Contract(s) in the GeM shall be governed as per terms and conditions specified in the Order document.

After order receipt then it is the seller’s responsibility to pack and deliver the goods safely to buyer’s delivery address on time. The payment will be processed directly to the registered bank account of the seller after ten days if the buyer is not availing the return policy.

Some Important Guidelines for Sellers

• Any number of products can be offered by a seller subject to the condition that more than one OEM is not represented.
• Seller enrolled with GeM shall be required to furnish requisite information regarding them and their offered product(s) on GeM as per template prescribed in the GeM.
• Sellers are required to keep GeM refreshed with changes/revisions in any of the particulars outfitted by them. Updates towards such changes would entirely be required to be made by Seller inside a time of 15 days from the date of such change(s). The rebelliousness of moment condition might equivalent to disguise of truths and make them obligated of evacuation of their enrolment with GeM and/or corrective action(s) as valued fit.

Seller would likewise be at risk to be suspended from GeM and/or correctional activity, on the off chance that they neglect to comply with any of the terms and conditions stipulated for GeM or on the accompanying grounds. In the event that the seller:-

• Supplies products of second rate/substandard quality.
• Executes services without fitting in with prerequisite given in Service Level Agreement (SLA).
• Neglects to execute a request/contract or neglect to execute it palatably.
• Is pronounced bankrupt or wiped out.
• Neglects to deliver the essential records/data over the span of review/evaluation at any stage; and,
• On some other ground for which, in the sentiment of GeM, the maintenance of the seller or any of its offered item in GeM is not in Public Interest.

The grounds mentioned above are illustrative only. The Appellate Authority for any representation or grievance on account of seller’s removal would be vested with the Director General.

• DGS&D maintains all authority to review and to survey fabricating/testing/quality control arrangement(s) of assembling premises and/or any of the premises identified with assembling procedure of offered result of the Seller. DGS&D additionally maintains whatever authority is needed to investigate nature of the offered item through archives, test reports/authentications, testing at any free lab or through review/testing by its approved delegate/s at Association’s premises or at client’s premises as chosen by DGS&D, for which the dealer should give important offices and labor to such reason.
• If any firm has been de-registered or debarred from business dealings with DGS&D then such firm or their agent/partner shall not be permitted to register and offer/sell their products on GeM in terms of DGS&D Circular No.112 dated 19-09-2016.
• The individual(s) registering on GeM and/or offering or buying Goods/Services and/or participating in e-bidding/reverse auction on GeM, must ensure that they have the requisite authorization to enter into contract with Buyer(s)/Seller(s) in GeM for and on behalf of the concerned legal entity, failing which such individual(s) shall be individually liable for its actions and also for any liability arising out of such actions.
• All sellers on GST needs to be mandatorily GST complaint from 1st July 2017.

Conclusion

There is no doubt that it is a noble initiative and will curb corruption and bring transparency in system in immense way, however as soon as the rules are known to the users, in no time it will be bent to serve the purpose of any miscreant. Government should strengthen the mechanism of periodic audit of buyers and sellers to stop any type of curtail formation and price control. The appellate authority needs to be strong and swift in handling complaints. While curbing corruption is one facet, the quality control mechanism in India needs to be strengthened to become world class. As per directive Government always tries to go for lowest bids, however it needs to be understood that best quality will seldom accompany lowest price. It is a misnomer to assume that with lowest bid the government is registering savings, on proper investigation, it will be found out that lowest bid parties rarely complete their scope and also provide poor quality service and supply which leads to repeated ordering and increased rectification cost. The GeM somehow promises to control the quality aspect but the overall solution is not visible. Strong analytical setup for quality control and fraud identification needs to be structured along with identification of minimum allowable price for entry of sellers needs to be processed. On part of the seller, getting approval to sell on GeM portal itself is a proud moment and provides sufficient recognition for future business development. This opportunity should not be wasted with poor workmanship and giving scope to criticism of a noble initiative. With vigilant buyer and honest sellers only the e-Market place can be successful and progress the nation in the right direction.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: 

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

References

1.      https://gem.gov.in/aboutus
2.      http://pib.nic.in/newsite/PrintRelease.aspx?relid=157610
3.      https://gem.gov.in/register/provider/register
4.      http://legaladda.myonlineca.in/government-e-marketplace-registration-guide/
5.      https://gem.gov.in/userRegisterGuide
6.      https://gem.gov.in/termsCondition

In this article, Anubhav Pandey editor at iPleaders blog and an academic at Rajiv Gandhi National University of Law discusses how to settle a case out of court. All you need to know about out of court settlement.

Out of Court settlement

Consider the situation of your case getting settled without getting into the nitty-gritty of court procedure. The idea is not only impressive from a litigant perspective but the Court nowadays are more oriented towards settling cases out of court. Let us understand the complexities involved in out of court settlement.

In what cases can we undergo out of court settlement?

The route of out of court settlement can be exercised in both criminal as well as civil matters. Although, in civil matters, complexities are relatively very less compared to criminal matters. Out of court settlement in criminal matters involves lots of issues. For illustration, only those criminal offences can be settled out of court which is not very grave in nature such as criminal defamation.

In addition to the above cases, out of court settlements are observed in cases involving Family disputes, Motor vehicle claims, Industrial disputes and more.

Legal validity of out of court settlements

Out of court settlement in civil matters – (Section 89, & ORDER 23, Rule -1) CPC

Section 89 of the CPC talks of out of court settlement through the means of Alternative Dispute Mechanism. Mediation, Conciliation, Lok Adalats are the new tools of the justice dispensing system. It is to be understood here that, it will be wrong to infer from the provision that if the parties agree they can take the case completely out of court’s court. Still, the case will be regulated as per the provisions of the relevant ADRs Act. ^[1]

Order 23 Rule 1 of CPC talks of withdrawal of suit or a part of the claim in a suit. The order of CPC discusses out of court settlement without naming it.

Thinking of out of court settlement in civil matters. Do follow the checklist below.

• Make it sure you mention your clear intention of out of court settlement before the court.
• Under Order 23 Rule 1 of CPC when a suit is withdrawn for an out of court settlement, litigants are precluded from initiating fresh proceedings of the matter withdrawn.
• Out of court proceedings can be quashed by the court. Court can do this only under special circumstances.
• In the following case, the parties opted for an out of court settlement. The settlement was later found out to be malafide. The parties filed a Civil Miscellaneous Appeal (C.M.P) to quash the settlement results.^[2]

Out of Court Settlement in criminal matters

Criminal cases which are mostly concerned with private wrong can be settled out of court. These categories of offences are termed as compoundable offences. Therefore only compoundable offences can be settled out of court.

Offences arising from commercial, financial, mercantile, civil, partnership, relating to matrimony or dowry can be opted for out of court settlement.^[3] The court observes that the offence should not be of such grave nature to harm the society at large.

The list of the criminal cases which can be settled out of court is listed below.

Different ways of settling a case out of court

Alternate Dispute Resolution is the need of the hour. It is more convenient to settle a case outside the court in a regulated mechanism than to fight the same in the court of law. The concept of ADR comes as a rescue to help people settling their cases out of court.

The most common types of ADRs are

1.  Arbitration
2.  Conciliation
3.  Mediation
4.  Neutral Evaluation

Arbitration as a mechanism of ADR is used mostly by corporate entities. Mediation is mostly used to settle matters relating to family disputes. Conciliation is a form of arbitration but it is less formal in nature. It is the process of facilitating an amicable resolution between the parties, whereby the parties to the dispute use conciliator who meets with the parties separately to settle their dispute.Neutral Evaluation is a new mode of ADR introduced in India in 2007.

Defining Neutral Evaluation in Robert A Goodin’s words. “ Early neutral evaluation is a technique used in American litigation to provide early focus to complex commercial litigation, and based on that focus, to provide a basis for sensible case management or offer resolution of the entire case, in the very early stages”.^[5]

To read more on ADR VISIT. https://blog.ipleaders.in/adr-alternative-dispute-resolution/

Do we need court’s permission to do out of court settlement?

In case of civil suits, out of court settlement can be brought at any stage of the suit. The only requirement to formalise the settlement is a compromise Agreement in Civil Cases.

The complexities arises in criminal cases. But the same is settled by the new guidelines issued by the Supreme Court.^[6] In case of compoundable offences, court permission is not required. But when there is compromise between the parties or out of court settlement in non-compoundable offences, prior permission of court is required. Although court holds a discretionary power to cancel the settlement anytime.

What to do when out of court settlement does not works out? What if any parties to the agreement retract from the settlement?

In civil cases, only those settlements made out of court and involving the elements of fraud or coercion or made with malafide intent can be called off. For more detailed answer to the provision, please refer to the following judgment, “Ghulam Nabi Dar v State of J&K, (2013) 3 SCC 353”. In usual sense, if any parties to the agreement retract from the settlement one can always approach the appropriate court for the grant of specific performance of the compromise agreement.

Out of court settlement in cases of Property Disputes?

Cases relating to property disputes usually take years to settle. Therefore, an alternative of mediation is always available to settle the dispute. This is a form of out of court settlement the only condition is, all the parties to the dispute must agree to out of court settlement.

Family Settlement Deed

By agreeing to Family Settlement Deed, the family members mutually work out and distribute the property among themselves. Family Settlement Deed is an out of court settlement to which the court agrees. There is always a discretionary power available with the court. Using this discretionary power the Court can anytime declare the agreement null and void if there is presumptive essence of fraud or coercion.Disputes relating to Real Estate, Jewellery or money in bank accounts.

Only disputes relating to common property or joint family property can be settled with a Family Settlement Deed.

The following is the procedure for undergoing a Family Settlement Deed.

• The settlement must be signed by all the concerned family members to the settlement. This is formally called the Memorandum of Partition.
• The memorandum consists respective shares of particulars in each schedule.
• A usual practice is to get the deed attested by two witnesses.
• Registration according to Section 17 of the Indian Registration Act.

Out of court settlement in divorce matters? Say no.

Indian court does not accept out of court settlement in divorce matters. Mediation is a way to settle the dispute but if the couple wish to simply call off the marriage without letting the court know of their intention, this is not an intelligent way to separate. If you are legally married, you can apply for and avail a decree of divorce dissolving your marriage, Out of court divorce is not accepted by the courts in our country.

Couple cannot enter into a compromise deed wherein the wife forgoes her maintenance rights and settle for a divorce out of court via an agreement. Justice, Akil Qureshi in a case illustrated this point clearly. The same goes with prenuptial agreements. The couple cannot get a prenuptial agreement as it is not valid in India. Prenuptial agreements have no binding value in the Indian Courts.^[7]

Out of Court Settlement in case of Industry Disputes?

Collective Bargaining – Out of Court settlement of Industrial Disputes

The term ‘Collective Bargaining’ is to be understood by its etymological sense. Lengthy court procedure is not a solution nowadays. Both the management as well as the workers are not in favour of lockouts or strikes. The Industrial sector depends on manpower and labour. An alternative to court procedure is the option of ‘Collective Bargaining’.

Stages of Collective Bargaining

Collective Bargaining is a very organised way to settle Industrial disputes without going into litigious processes. The stages to collective Bargaining are as follows^[8] –

Step 1 – Preparation for Negotiation

The first step includes the overall process of forming a team both from management’s and worker’s side. The workers decide the demands to put forth before the management. The management decides the extent to which they will accept the demands put forwarded by the workers.

Step 2 – Negotiations between the management and union

This stage is excessively a complicated one. It requires a protracted and complex interchange of ideas combining argument, horse-trading, bluff, cajolery and threats. The result of the overall negotiation is the actual settlement reached between the workers and the management. When the terms of the negotiation is formally decided, this results in the final third step.

Step 3 – Drafting Agreement

Drafting of agreement must be in such a manner as to respect the real intention of the parties. The provisions mentioned in the agreements are supposed to be clear and definite and should explicitly cover the subject matter in accordance with the intent of the agreement.

Enforceability of Collective Bargaining Agreement

In India, collective bargaining agreement can be enforced under Section 18 of Industrial Disputes Act, 1947, as a settlement arrived between the workers and the employers. Under Section 18 (1) of Industrial Dispute Act, 1947, a settlement arrived at by an agreement between the employer and workmen otherwise than in the course of conciliation proceedings is binding only on the parties to the agreement.^[9]

Settlement of Motor Accidents Claims through Compromise

JALD RAHAT YOJANA

Steps to be taken for implementation of the Scheme General Insurance Corporation has prescribed certain steps as follows:

1. Calling for application from claimants who desire to secure compensation at pre litigation stage.
2. For this purpose, it may be necessary to insert public notice so that the claimants who are having complete documents may apply for compensation in the prescribed form which can be obtained from the address indicated in the public notice.
3. The claimant has to submit the prescribed application duly completed along with the supporting documents as enumerated in the application.
4. The application along with the documents may be scrutinised to confirm that the application so received can be considered for payment of compensation at the pre-litigation stage.
5. Motor Policy of the involved vehicle is required to be verified to ensure that accident has fallen within the policy period.
6. There is a valid insurance at the material time of the accident due to compliance of Section 64 V B of the Insurance Act, 1938.
7. To ascertain that the liability about the accident reported is established under the policy.
8. Vehicle documents and driving licence of the person driving at the material time of accident needs to be verified.
9. On considering the foregoing, if the application is found in order, the amount of compensation can be estimated.
10. A panel to recommend the quantum of compensation consisting of retired judge and medical practitioner as nominated by the State Legal Aid Board may be constituted.
11. A retired Insurance Executive to work on the panel may also be nominated by Chairman, GIC/CMD of the company.
12. Notice about the date of the session may be given to claimant and issued to remain present before the panel to negotiate compensation.
13. Once the amount is agreed in the presence of the claimant, insured and representative of the Insurance Company, a prescribed form of agreement may be signed by the concerned parties. A discharge voucher in the prescribed form may be obtained from the claimant so as to disburse the amount of compensation as agreed.
14. An intimation of the agreement and the amount agreed may be furnished to the concerned MACT to record with them the compromised settlement.^[10]

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:  

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

References

^[1] Salem ADvocate Bar Association v Union of India, AIR 2003 SC 189

^[2] Ghulam Nabi Dar v State of J&K, (2013) 3 SCC 353

^[3] Gian Singh v. State of Punjab and another (2012) 10 SCC 303

^[4] For the complete list you can visit – http://devgan.in/crpc/section/320/

^[5] Bawa Masala Company vs. Bawa Masala Company Pvt. Ltd. (OS No.139 of 2002).

^[6] Narinder Singh & Ors V State of Punjab & Anr. (SLP Criminal 9547 of 2013)

^[7]http://timesofindia.indiatimes.com/city/ahmedabad/Out-of-court-alimony-settlement-not-final-HC/articleshow/6616323.cms

^[8] 47 Indian Law Institute, Labour Law and Labour Relations, 1968, p. 30.

^[9] Marysur, Collective Bargaining, 1965, p.4.

^[10] http://shodhganga.inflibnet.ac.in/bitstream/10603/8947/14/14_chapter%2010.pdf

In this article, Ashwini Gehlot of Institute of Law, Nirma University, Ahmedabad discusses the legality of online pharmacy in India. 

What Is Online Pharmacy?

At an age where everything is going on the web and individuals are purchasing nearly everything from staple to contraptions on web stores, it is the time that the medical and pharmaceutical market makes up to the trend and without a doubt it has. You would now be able to satisfy all your medical needs online, at well, an online pharmacy.

Legal Status of Online Pharmacy in India

The Drugs and Cosmetics Act, 1940 and it’s given provisions, have set rules on the offer of Schedule H and Schedule X drugs, which can be sold with a legitimate prescription only. Along these lines, in India, where online drug store is taking control over, the administration’s laws have kept up; ensuring no unlawful medication utilization is practiced online. Ayurveda and nutraceuticals likewise have laws that regulate and govern their use.

Formalities to be made when opening an online pharmacy

• As expressed over, specific laws are to be followed while opening an online drug store and these rules are very stringent.
• The sum total of what laws have been settled and any online drug store must agree to every one of the standards and directions, nonetheless, there are numerous escape clauses that these drug stores are using for their benefit and illicit medications have been on the ascent.
• In light of its inconceivability, medical laws can’t be extensive henceforth causing the flow of illicit medications and pharmaceuticals.

How Many Online Pharmacies Are Present

• The number can’t be precisely assessed, in any case, in light of a pursuit, around 3000 online drug stores were found, and half of them were situated in the USA and 19% in the UK and the adjust in different nations like India, Canada, and so forth. In another discovering, B-2-B organizations additionally offered online pharmaceuticals of which 19% are from India.
• All the western nations are affectionately utilizing this astounding facility. Likewise, in India, the development of online Pharmacy is altogether heightening. In spite of the fact that India should work harder in persuading individuals about the originality of medications, the extent of an online drug store in India is as still huge.

An Online Pharmacy In India Can Be A Successful Venture If It Can Lure Its Local Audience By

• Making them acquainted with the way that medicine eCommerce’ exist
• Guaranteeing them that payments on such site are agreeable and safe
• Offering aggressive discount like that of physical chemist expert stores
• Keeping medications of well-respected brands
• Housing other health care items for purchasing
• Offering a freedom to pick the sort of payment alternative relying upon person’s comfort
• Conveying the service to all aspects of India.

Legality Of Online Pharmacy

The essential contention about the legitimacy and viability of the online pharmacy has been with respect to the sale of prescription drugs. Numerous e-drug stores have received a strategy where the customers are required to upload a virtual copy of their e-prescription or prescription This virtual remedy is then confirmed by the online drug store and appropriately the medications are given to the clients. Such a prescription can be utilized just once to buy the endorsed medicine and can’t be re-utilized.

The law in regards to e-pharmacies is loaded with ambiguities, and accordingly has been translated in an accompanying way and partitioned into three categories:

Green Zone

1. In this zone fall the prescriptions which must be sold -out by a registered pharmacy having a drug specialist (pharmacist) on its payroll.
2. The orders of the offer must be taken from areas where the retail permit is legitimate and registered. For instance, if the permit for retail is legitimate just in Karnataka, at that point orders might only be engaged for Karnataka.

Grey Zone

1. Each state has a state drug department that issue licenses for the sale of the medical drug just in that specific state.
2. There is uncertainty with respect to the sale of medications between various states, in light of the fact that there exist no provisions for an inter- state permit available for sale of medicinal drugs.
3. There is additionally some uncertainty in connection with the collection of cash before the conveyance of medicines. This raises the question to the legitimacy of the payment through credit/charge card choice given on the sites, where one can make the payment before the conveyance of the prescriptions ordered.

Red Zone

1. Sale of physician recommended drugs without a prescription from a specialist is prohibited.
2. Sale of medications at a cost higher than the value given as the maximum retail price (MRP) is an offense.

The legitimacy and lawfulness of e-prescriptions fall into a gray area of the law and accordingly, acknowledgment of these prescriptions by e-drug stores for providing drugs against such prescription has been under the scanner.

Section 4 of the Information Technology(IT) Act manages “Legitimate acknowledgment of electronic records” and Section 5 of the IT Act accommodates “Lawful acknowledgment of electronic signature”. sec 5 likewise gives the three essentials for legitimate acknowledgment is that there ought to be a law that requires data, matter or report should be signed by a man, in place of such signature, an electronic signature is affixed and such an electronic sign ought to be appended in a way recommended by the central government. Run 65 of The Drugs and Cosmetic Rules, 1945 provided that “a prescription ought to be in writing and signed by the individual giving it with his typical sign and be dated by him”.This perusing of sections 4 and 5 of the IT Act alongside Rule 65 of the Drugs and Cosmetics Rules fulfill the lawfulness and legitimacy of an e-prescription, that is to be composed and signed electronically.

The position of law on the legitimacy of e-prescription has been settled by the currently enacted Pharmacy Practice Regulations, 2015. Sec 2(j)(3) of the Regulations give the meaning of a prescription as a “written and electronic bearing from a Registered Medical Practitioner or other appropriately license experts to a pharmacist to compound and apportion a particular sort and nature of arrangement or prefabricated medication to a patient”. This definition clarifies that e-prescription is substantial and legitimately recognizable.

Subsequently, it can be inferred that doctors can prescribe medication to their folks through an electronic remedy also, yet the issue remains regardless of whether the present Indian laws consider these e-prescriptions to be utilized for purchasing prescriptions online too or just to buy from a physical pharmacy.

In India, the sale of professionally prescribed medications is controlled by laws detailed under “the Drugs and Cosmetics Act, 1940, Drugs and Cosmetics Rules, 1945, and Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954”. Every one of these Acts is pre-colonial and in this way couldn’t have expected the online offering of pharmaceutical items through e-pharmacies. Subsequently, these laws are quiet on the issue of e-drug stores and don’t have any laws to direct online selling of professionally prescribed medications. Since the Indian laws are silent on the working and controlling of online drug stores, numerous online pharmacy sites have taken the directions given under the Drugs and Cosmetics Act for running physical pharmacy as being appropriate to online drug stores too, building them to be lawful in essence.

In July 2015, the health ministry of India requested the constitution of a subcommittee to investigate the issue of online drug stores. The Committee has been constituted under the headship of the Food and Drug Administration (FDA) Commissioner of Maharashtra, Harshadeep Kamble. The issue before the subcommittee was the examination of the online sale practices practiced by developed nations and how they have affected public health in these nations and whether their usage is conceivable in India. The committee has welcomed remarks and contributions from different stakeholders, for example, public organizations, trade bodies among others. The subcommittee has not presented its report yet.

On October 29, 2015, the Bombay High Court pronounced that the online offer of medicines provided under schedule H of DCA without a cash memo or a prescription is illicit and requested that the Maharashtra government make the strides important to avoid unapproved and unlawful selling of scheduled drugs on the internet. This was an outcome of a PIL looking for a prohibition on e-pharmacies selling doctor prescribed medications without prescription or money memos.

The rules on control of e-drug stores proposed by FICCI ought to be placed in the drive to guarantee purchaser security while completing the transaction of pharmaceutical items online. Execution of these rules will likewise make obligations with respect to the e-drug stores to ensure that they don’t sell unlawful or fake pharmaceutical items and furnish the consumers with all the fundamental information for purchasing prescriptions online. The VIPPS accreditation program presented by the NABP in the US can be merged in India also to make e-drug stores safe for Indian customers. The idea of planning a protected application for obtaining medicine online will likewise contribute to expanding the ease of access to the buyers to medical supplies.

References

1. Verma, N. (2015). Online pharmacy business in India– Past, Present and Future – Better Health with Care, Fitness and Remedy. [online] Better Health with Care, Fitness and Remedy. Available at: http://www.mchemist.com/blog/online-pharmacy-business-in-india-past-present-and-future/ [Accessed 10 Aug. 2017].
2. Gupta, A. (2016). Legal status of Online Pharmacies in India. [online] The Law Blog. Available at: https://thelawblog.in/2016/11/07/legal-status-of-online-pharmacies-in-india/ [Accessed 10 Aug. 2017].

In this article, Harsh Vardhan Tiwari of Rajiv Gandhi National University of Law discusses Section 124A of IPC. Is the sedition law an Anathema to Freedom of Speech and Expression?

This article discusses the impact of sedition law in India and questions the state power in using it. This law has been in news recently with JNU student leader arrest on the charge of sedition, Allahabad High Court quashing summon sighting to Finance Minister Arun Jaitley to Harki Patel parole where Supreme Court has been requested to re-examine Sedition law in the country. The article will cover what is section 124A? What is the constitutional history of sedition law? What are the reasonable restrictions imposed under Article 19(2)? What is the way forward? Should the law on sedition be repealed? Is it unconstitutional and does it compromises freedom of speech and expression assured under Article 19(2)? Is the Law on sedition an anathema to the freedom of speech and expression? There has been a demand made by the public activist in India to re-examine law on sedition. The article delves into the law itself, its use and misuse and on a larger question of the right to question the state.

What is the law on Sedition in India?

Section 124A of the Indian Penal Code, 1860[1]  in Chapter VI deals with the law on Sedition. It is considered as “Offense against the State”. There is no mention of the word “Sedition “in the particular section.  The sedition law in independent India has colonial origins being enunciated by the English Government in the year 1870 i.e. ten years later than the original Code due to reluctance of Macaulay to include it in the original code. It stipulates that –

“Whoever, by words, spoken or written, or by sign, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt. Or excites or attempts to excite disaffection towards, the Government established by law in India, Shall be punished with

• Life Imprisonment with/without fine

• Imprisonment up to 3 years with/without fine

• Is a non-bailable, non-compoundable ,cognizable offense”

There are three explanations attached to section 124A.[2] Explanation 1 highlights the expression “disaffection [3]“ includes disloyalty[4] and all feelings of enmity[5]. Explanation 2 and 3 states what does not constitute an offense under this section, it includes comments expressing disapprobation of the measures of the government with a view to obtain their alteration by lawful means, without exciting of attempting to excite hatred, contempt or disaffection (Explanation 2). Comments expressing disapprobation of the administrative or other action of the government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offense under this section.(Explanation 3)

Simply put the offense of sedition under Section 124A is the doing of certain acts which would bring the Government established by law in India into hatred or contempt or create disaffection against it. [6]

Sedition law – Constituent Assembly Debate 1948

When the initial draft of the Indian Constitution was being debated on, sedition was included as one of the restriction on freedom of speech and expression. But, after deliberations took place, the scope and restrictions on the free speech was made, sedition was eventually excluded from the ambit of Article 19(2).

Numerous Members of the constituent assembly took oppositions to this and recapped the assembly that Indians had suffered greatly due the misuse of the sedition laws.

Shri Rohini Kumar Choudhari said ,” I must congratulate the House for having decided to drop the word “sedition” from our new Constitution. Unhappy word “sedition” has been responsible for a lot of misery in this country and had delayed for a considerable time the achievement of our independence.”[7]

Seth Govind Das stated, “I would have myself preferred that these rights were granted to our people without the restrictions that have been imposed. But the conditions in our country do not permit this being done. I deem it necessary to submit my views in respect to some of the rights. I find that the first sub-clause refers to freedom of speech and expression. The restriction imposed later on in respect of the extent of this right, contains the word ‘sedition’. An amendment has been moved here in regard to that. It is a matter of great pleasure that it seeks the deletion of the word ‘sedition’. [8]

Conflict between Article 19(1) (a) & Sedition law?

Article 19(1) (a) – guarantees the freedom of speech and speech as fundamental rights subject to “reasonable restrictions “mentioned under Article 19)2)

Article 19(2) – Reasonable restrictions can be imposed on the following grounds-

• Security of the State,[
• Friendly relations with Foreign states,
• Public order,
• Decency and morality,
• Contempt of court,
• Defamation,
• Incitement to an offence, and
• Sovereignty and integrity of India.

The right to freedom of speech & expression constitutes one of the essential foundations of a democratic society.^[9] Overbroad restrictions on freedom of expression are invalid.^[10] Each person has a right to hold & articulate opinions;^[11] any overbroad restrictions on this fundamental right of expression should therefore be carefully scrutinised.^[12] When a State party imposes restrictions on the exercise of freedom of expression, these may not put in jeopardy the right itself.^[13] The government’s interest in public order must be balanced with the people’s interest in preserving free expression.^[14]

Criminal sanctions are the most severe sanctions that society can impose on a person[15], both in terms of the restrictions that they place on his freedoms & the damage they do to his reputation. There must be proportionality between the effects of the measures responsible for limiting the right or freedom, & the objective which has been identified as of “sufficient importance.”^[16] This test has been relied in a number of other jurisdictions.^[17] Moreover, the act which has been curtailed should be of such a nature so as to create a clear & present danger & that it will bring about substantive evils that the legislation seeks to prevent.^[18]

According to the Johannesburg Principles,^[19] the freedom of expression or information cannot be restricted unless the government can demonstrate that the restriction is prescribed by law & is necessary in a democratic society to protect a legitimate national security.^[20]

While international instruments can only be enforced in a country if the country has ratified it, they still have an overbearing significance and influence law-making. As a member of the United Nations General Assembly, India has ratified the UDHR[21] and ICCPR[22] and, therefore, has enforcement value in the country. In India, while the offence of sedition is per se not in violation of international standards, any restriction on the freedom of speech and expression needs to be justified as recognized by international covenants and treaties.

Constitutional History of Sedition law

Tara Singh v State of Punjab[23]: Section 124A was struck down as unconstitutional being contrary to Freedom of Speech and Expression guaranteed under Article 19(1).

Ram Nandan v State[24] : Allahabad High Court overturned Ram Nandan conviction and declared Section 124A to be unconstitutional because –

If criticism without having any tendency in to bring about public disorder, can be caught within mischief of section 124A of the Indian Penal Code, then the Section must be invalidated because it restricts freedom of speech, and is capable of striking at the very root of the Constitution providing right to speech and expression with certain limitations provided under Article 19(2) of the Constitution of India.

Kedarnath v State of Bihar[25] : The Supreme Court overruled the 1958 judgment and held that the Sedition law was constitutional but at the same time observed that the sedition law must be narrowly interpreted and if given wider interpretation, it would not survive the test of constitutionality.

The apex Court sustained the constitutionality of Section 124A, but at the same time limiting its connotation and restraining its application to acts linking intention or propensity to create chaos, or disturbance of law and order, or provocation to violence. The Supreme Court distinguishing clearly between unfaithfulness to the government and remarking upon the actions of the government without inciting public disorder by act of violence.

Indra Das v State of Assam[26] : the Supreme Court reiterated that all laws, including Section 124A, have to be “read in a manner so as to make them in conformity with the Fundamental Rights”. In Arup Bhuyan v State of Assam[27] , Supreme Court reiterated that the speeches which amounts to “incitement to imminent action “can only be criminalized. Recently in the Shreya Singhal v Union of India[28], the Supreme Court clearly drew distinction between “Advocacy” and “incitement”, in which only incitement can be punished.

Therefore, only the words and speech which cause incitement to “imminent violence” can be criminalized and punished. Mere using words however distasteful, do not constitute sedition.

Laws dealing with Offense of Sedition

Apart from section 124A of the IPC, 1860, there are some other legislations too which deals with the offense of the sedition in India.

1. Indian Penal Code, 1960 – Section 124 A.
2. Criminal Procedure Code, 1973- Section 95.
3. Unlawful Activities (Prevention) Act, 1967- Section 2(o) (iii) and Section 13.
4. Prevention of Seditious Meetings Act, 1911- Section 5.

The use and abuse of Sedition law in Colonial and post-colonial era

In the 19^th and 20^th century, there took place several high profile trials in cases involving the sedition laws in India which also comprised of several Indian Freedom fighters. The most famous of such trial was that of Bal Gangadhar Tilak- (1897 killing of plague commissioner Rand). Strachey J. stated the law in the following terms;

“The offence consists in exciting or attempting to excite in others certain bad feelings towards the government. It is not the exciting or attempting to excite mutiny or rebellion or any sort of actual disturbance, great or small. Whether any disturbance or outbreak was caused by these articles is absolutely immaterial.”[29]

The vital ethical question that Tilak raised was whether his trial constituted sedition of the people against the British Indian Government (Rajdroha) or the government against the Indian people or of the government against the Indian people (Deshdroha).

The most famous sedition trial after Tilak’s was the trial of Mohandas Gandhi in 1922. “Section 124A under which I am happily charged is perhaps the prince among the political section of the IPC designed to suppress the liberty of the citizen. Affection cannot be manufactured or regulated by law. If one has no affection for the person, one should be free to give the fullest expression to his disaffection, so long as he does not contemplates, promotes or incites to violence. I have studied some of the cases tried under it, and I know that some of the most loved Indian patriots have been convicted under it, I consider it a privilege, therefore to be charged under that section.”[30] Stated Gandhi.

In the post-independence era, its record of use since independence of India points out repeated instances of misuse. It has been used arbitrarily to curb dissent. Its main target have been writers, journalist, activists who question government policy and projects, and political dissenters.

From people objecting to the nuclear plants at Kudnakulam, to writers like Arundhati Roy, to journalists and cartoonists ( like Aseem Trivedi ) and to social activists like Binayak sen, there is sufficiency of evidence to exemplify the indiscriminate manner in which this provision has been used.

Recent Cases at a Glance

Aseem Trivedi, Cartoonist (September 2012): Arrested for offense of sedition on the complaint that his cartoons made mockery of Indian Constitution and the National Emblem.[31]

Hardik Patel (October 2015): Man behind spearheading protest with the demand of reservation for the quota. Arrested by police on charge of sedition in two separate cases. [32]

Kanhaiya Kumar, Student JNU (February 2016): Arrested for voicing anti-national slogans.[33]

Conclusion and Suggestions

We need to understand that there lies a difference between populist opinion and constitutional morality. The Indian Judicial System should be allowed to interpret the law, trial by media is uncalled for. Dr. Ambedkar observed: “the question is, can we presume such a diffusion of constitutional morality? Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it. Democracy in India is only a top dressing on an Indian soil which is essentially undemocratic. [34]“Thus, the father of the Indian Constitution had a premonition that in the absence of constitutional morality, democracy may flounder in India.

There is an urgent need to narrow down the interpretation of the section 124A of IPC and prevent its indiscriminate use in the frivolous arbitrary manner as the instance of misuse of section 124A has a “chilling effect “on freedom of speech and expression.

Sedition as a crime has been disfavored in many States. It has either been repealed ( UK and News Zealand) , is rarely being used, punishment is only fine or less punishment than the death penalty, further efforts are being made to repeal such law.  Indian law should be brought in consonance of accepted international principles and most contemporary democratic outline like that of UK, USA and New Zealand.

It is hereby recommended to

1. Repeal Section 124A of IPC, 1860.
2. Remove reference to section 124A from Section 95 of CrPC (Criminal Procedure Law), 1973.
3. Repeal the Prevention of Seditious Meetings Act,1911
4. Repeal the Criminal law Amendment Bill, 1961.
5. Remove the reference to Disaffection from Section 2(o) (iii) of the Unlawful Activities (Prevention) Act, 1967.
6. Make Speech related offenses bailable.
7. Make speech related offenses non-cognizable.
8. Extend Section 196(1) of CrPC to Section 124A of IPC i.e. Prior sanction of government required.
9. There should be action against malicious complaints.
10. There is time to raise the burden of proof on person claiming that his sentiments got hurt.

The freedom of speech and expression is a fundamental right and also a basic human right. It gives an opportunity to an individual to express himself, dissent, self-improvement and free flow of information both imparting and receiving. The restriction on it have to be constitutionally valid and reasonable not arbitrary.  Section 124A of IPC needs a relook in the present scenario. There is need to maintain proper balance between the sedition laws and freedom of speech and expression.

[1] K.D Gaur, Textbook on the Indian Penal Code, Universal Law Publishing, 2009, pg. 229.

[2] Kedar Nath Singh vs State Of Bihar, 1962 SCR Supl. (2) 769.

[3] Ratanlal and Dhiraj Lal, Law of Crimes, 24^th Edition, Vol. 1 ,Pg. 505-506.

[4] Queen Empress v. Amba Prasad, (1897) ILR 20 All 55

[5] Emperor v. Bhaskar Balwant Bhopatkar,(1906) 8 Bom LR 421.

[6] Bilal Ahmed Kaloo v State of Andhra Pradesh, (1997) Supreme Today 127.

[7] Constituent Assembly debate on 2 December, 1948, Part 1 (Available at: https://indiankanoon.org/doc/1389880/ ; last accessed on 15^th April, 2016 at 04:12 PM).

[8] Ibid.

[9] Handyside v UK (1976) 1 EHRR 737; M Janis, R Kay & A Bradley, European Human Rights Law: Text & Materials (Clarendon Press, Oxford 1995) 157; DJ Harris, M O’Boyle & C Warbric+k, The European Convention of Human Rights (Butterworths, London 1995) 373.

[10] Amnesty International v Sudan (2000) AHRLR 297 (ACHPR 1999) ¶ 80.

[11] International Covenant on Civil & Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) Art 19(1).

[12] Amnesty International v Sudan (2000) AHRLR 297 (ACHPR 1999), ¶ 80.

[13] UNHRC ‘General Comment 34’ in ‘Article 19: Freedoms of Opinion & Expression’ (2011) UN Doc CCPR/C/GC/34, ¶ 21.

[14] Zana v Turkey (1999) 27 EHRR 667, ¶ 55.

[15] Ariel L. Bendor, Prior Restraint, Incommensurability, and the Constitutionalism of Means, 68 Fordham L. Rev. 289 (1999); Available at: http://ir.lawnet.fordham.edu/flr/vol68/iss2/2( Last accessed on 18^th April 2016).

[16] R v Oakes [1986] 1 SCR 103 (Canada); R. v Big M Drug Mart Ltd., [1985] 1 SCR 295 (Canada); Leary v United States 395 US 6 (1969); Singh v Minister of Employment & Immigration 1985 1 SCR 177 (Canada).

[17] Nyambirai v National Social Security Authority & Anr 1995 (9) BCLR 1221 (Zimbabwe).

[18] Schenck v United States 249 US 47 (1919).

[19] The Johannesburg Principles on National Security, Freedom of Expression & Access to Information, UN Doc E/CN.4/1996/39 (1996). Principle 1.1.

[20] The Sunday Times v United Kingdom App No 6538/74 (ECHR, 26 April 1979); Albert Womah Mukong v Cameroon Communication No 458/1991, UN Doc CCPR/C/51/D/458/1991 (10 August 1994) (HRC); Surek v Turkey App No 24122/94 (ECHR, 8 July 1999); Herrera-Ulloa v Costa Rica Petition No 12367 (IACHR, 2 July 2004); UN Human Rights Committee, ‘General Comment 34’ in ‘Art 19: Freedom of opinion & Expression’(2011), UN Doc CCPR/C/GC/34/CRP.2; UN Human Rights Committee ‘General Comment 10’ in ‘Art 19: Freedom of Opinion & Expression’ (1983) UN Doc CCPR/C/GC/10/REV.1.

[21] Article 19, Universal Declaration of Human Rights, 1948 (UDHR).

[22] Supra 2.

[23] Tara Singh v State of Punjab, AIR 1950 SC 124.

[24] Ram Nandan v State, AIR 1959 All 101.

[25] Kedarnath Singh v State of Bihar, AIR 1962SC 955.

[26] Indra Das v State of Assam, (2011) 3 SCC 380.

[27] Arup Bhuyan v State of Assam, (2011) 3 SCC 377.

[28] Shreya Singhal v Union of India, AIR 2015 SC 1523.

[29] Queen Empress  v. Bal Gangadhar Tilak, (1898) ILR 22 Bom 112.

[30] M.K Gandhi , The Voice of Truth, Part 1 , Navajivan Publishing House , Pg. 14-24; Available at : http://www.mkgandhi.org/ebks/voice_of_truth.pdf( Last Accessed on 15^th April,2016 at 01:21 PM).

[31] Mail Today, IndiaTodayi.n, September 9, 2012; Available at: http://indiatoday.intoday.in/story/anti-corruption-cartoonist-aseem-trivedi-arrested-on-sedition-charges/1/216643.html (Last accessed on 15^th April 2016 at 4:36 PM).

[32] IndiaToday.in, October 19, 2015; Available at: http://indiatoday.intoday.in/story/hardik-held-for-insulting-national-flag-charged-with-sedition/1/502402.html (Last accessed on 15^th April 2016 at 03:46 PM).

[33] PTI, New Delhi, The Indian Express, February 12, 2016; Available at: http://indianexpress.com/article/india/india-news-india/afzal-guru-event-jnusu-president-arrested-after-anti-india-slogans-in-campus/ (Last Accessed on 15^th April 2016 at 05:03 PM).

[34] Ramchandra Guha, ‘Makers of Modern India ‘, Penguin Books India, Pg 316.

In this article, Alric Tirkey of Institute of Law, Nirma University discusses the grounds on which a doctor can refuse to perform an abortion in India. 

Legal definition of abortion

The term abortion is derived from the latin word ‘aboriri’ which means to detach from the proper site. According to medical language, abortion is termination of pregnancy before the period of viability or extraction or expulsion or extraction of all or any part of the placenta or membrane without an identifiable fetus or stillborn infant. Legally abortion the premature expulsion of the product of conception from the uterus at any time before the full term is reached. The law of abortion in India are governed under the medical termination of pregnancy act 1971.

Grounds for termination of pregnancy

Section 3 of medical termination of pregnancy act, 1971 provides on which termination of pregnancy is valid –

• Pregnancy can be terminated in a case where the length of the pregnancy does not exceed 12 weeks if such medical practitioner is,
• Where the length of the pregnancy exceeds 12 weeks but does not exceed 20 weeks, if not less than 2 registered medical practitioners are of opinion, formed in good faith or bona fide that:

1: The continuance of the pregnancy would involve a risk to the life of the pregnant women.

2: A risk of grave injury to her physical or mental health; or

3: If the pregnancy is caused by rape.

4: if is there is a presumption of the risk that the child was born it would suffer from some physical or mental abnormalities so as to be seriously handicapped.

5: Failure of any device or method used by the married couple for the purpose of limiting the number of children.

6; Risk to the health of the pregnant woman by the reason of her actual or reasonably foreseeable environment.

Consent for abortion

According to Section 3(4) of MTPA 1971 which clarifies as to whose consent would be necessary for the termination of pregnancy.

(a)according to the MTP act  no pregnancy of a woman is allowed who has not attained the age of 18 years or who have attained the age of 18 years is a lunatic shall be terminated except with the consent in writing of her guardian.

(b)  no pregnancy shall be terminated without the consent of the pregnant woman.according to MTPA 1971 the consent of the woman is the essential factor for the termination of the pregnancy. The consent of the husband or other is irrelevant if the woman wants an abortion and her husband objects it, abortion can still do.only if the pregnant woman is lunatic or mentally ill, the abortion can be done only with the consent of her guardian.

Abortion Permitted on Therapeutic Grounds

An abortion which is done with the aim to preserve the health of the mother when her life is in danger or when it is found that the child if both will be a disabled one at a time it is termed as therapeutic abortion.

Section 312 of the MTPA 1971 permits abortion only on therapeutic grounds with the aim to protect the life of the mother. According to law,  the unborn child, must not be destroyed except for the purpose of preserving its life of the mother. The provision by implication recognizes the fetus’ has the right to life. The threat to life, however, need not be imminent or certain. If the act is done in good faith the person is entitled to the protection of the law. But good faith is deceptive and ambiguous enough to protect most therapeutic abortions so long as they are conducted ostensibly to preserve the mother’s life. In fact, what constitutes good faith is not a question of law, but it is a question fact to be decided in each and every case according to the facts and circumstances.

Abortion has been legal in India since 1971 when the Medical Termination of Pregnancy Act was passed. The law is quite liberal, as it aims to reduce illegal abortion and maternal mortality.

The Act which legalizes abortion in India up to 20 weeks if it fulfills the following conditions:

• Abortion is  Performed by a registered medical practitioner as defined in the MTP Act.
• Abortion is performed in a place which is approved under the medical termination of pregnancy Act 1971.
• Other requirements such as gestation period, consent, and opinion of registered medical practitioners are fulfilled. According to the act, Abortion can be legally performed by the doctor up to 12 weeks gestation on prescription by one medical doctor and abortion performed up to 20 weeks gestation with the concurrence of two medical doctors.

Other Condition

Abortion has been legal in India since 1971 when the Medical Termination of Pregnancy Act was passed. The law is quite liberal, as it aims to reduce illegal abortion and maternal mortality. An abortion can be performed in India until the 20th week of pregnancy. The opinion of a second doctor is required if the pregnancy is past its 12th week. The Medical Termination of Pregnancy Act was amended which is aim to allow doctors to provide mifepristone and misoprostol (also known as the “morning-after pill”) on prescription up until the seventh week of pregnancy. An abortion is permitted in the following cases:

• A woman has a serious disease and the pregnancy would endanger her life.
• A woman’s physical or mental health is endangered by the pregnancy.
• The fetus has a substantial risk of physical or mental handicap.
• A woman contracts rubella (German measles) during the first three months of pregnancy.
• Any of a woman’s previous children had congenital abnormalities.
• The fetus is suffering from RH disease.
• The fetus has been exposed to irradiation.
• The pregnancy is the result of rape.
• A woman’s socioeconomic status may hamper a healthy pregnancy.
• A contraceptive device failed.

Procedure

Abortions can be performed in any medical institution that is licensed by the government to perform medically assisted terminations of pregnancy under the MTP Act 1971. Such institutions must have to display a certificate issued by the government. Abortions must be performed by a doctor with one of the following qualifications:

• A registered medical practitioner who has performed at least 25 medically assisted terminations of pregnancy.
• A surgeon who has six months’ experience in obstetrics and gynaecology.
• A person who has a diploma or degree in obstetrics and gynaecology.
• A doctor who was registered before the 1971 Medical Termination of Pregnancy Act and who has three years’ experience in obstetrics and gynaecology.
• A doctor who registered after 1971 and has been practising in obstetrics and gynaecology for at least a year.

Punishment

• According to Section 312 to 316 of the Penal Code provided that any person performing an illegal abortion was subject to imprisonment for three years and/or payment of a fine.

Section 312: ‘causing miscarriage’

“Whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both, and, if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Explanation: A woman who causes herself to miscarry, is within the meaning of this section.”

• if the woman was “quick with child”, the punishment was imprisonment for up to seven years and payment of a fine.
• The same penalty applied to a woman who induced her own miscarriage.

Section 314: Death caused by act done with intent to cause miscarriage

“Whoever, with intent to cause the miscarriage of a woman with child, does any act which causes the death of such woman, shall be punished with imprisonment of either description for a term may extend to ten years, and shall also be liable to fine.”

Section 315: Act did with intent to prevent child being born alive or to cause it to die after birth

“Whoever before the birth of any child does any act with the intention of thereby preventing that child from being born alive or causing it to die after its birth, and does by such act prevent that child from being born alive, or causes it to die after its birth, shall, if such act be not caused in good faith for the purpose of saving the life of the mother, be punished with imprisonment of either description for a term which may extend to ten years, or with fine, or with both.”

Section 315: Act did with intent to prevent child being born alive or to cause it to die after birth

“Whoever before the birth of any child does any act with the intention of thereby preventing that child from being born alive or causing it to die after its birth, and does by such act prevent that child from being born alive, or causes it to die after its birth, shall, if such act be not caused in good faith for the purpose of saving the life of the mother, be punished with imprisonment of either description for a term which may extend to ten years, or with fine, or with both”.  

Sources referred

http://www.ili.ac.in/pdf/p10_bhavish.pdf

http://www.legalservicesindia.com/articles/pregact.htm

http://www.medindia.net/indian_health_act/medical_termination_of_pregnancy_act_1971/list-of-acts.htm

http://thelegiteye.in/2017/02/04/law-abortion-india/

In this article, ABUL KALAAM AZAD A.S. pursuing M.A, in Business Law from NUJS, Kolkata discusses the bindingness of International treaties entered into by India.

Introduction

This article will discuss the treaties entered into by India, whether those are binding on our country, the difference between binding and non-binding treaties[1], the difference between MOUs and Treaties, and finally about the enforcement of obligations. International treaties are entered between two or more nation-states or between nation-states and intergovernmental organizations. Most of the intergovernmental organizations were established by treaties entered into by two or more nation-states to achieve a particular goal. (Example: NATO, etc)

Treaty

Treaty is an agreement under International Law entered into by two or more nation-states or between nation-states and International (intergovernmental) Organizations. Treaty is also called as International agreements, protocols, conventions, pact and covenant. Based on the nature of treaty, it can be classified as Binding and Non-Binding treaties. Based on the number of countries ratified the treaty, the treaties can be classified as Bilateral treaties and Multilateral Treaties. If the treaty is between two parties (two states or two intergovernmental organizations or between a state and intergovernmental organization), it is called as Bilateral Treaties[2]. If there are several countries (or Intergovernmental Organizations) participating in the treaty, such treaties are called as Multilateral Treaties. There is some important aspect to consider while classifying a treaty as either Bilateral or Multilateral. Some treaties may have more than two signatory countries, but still, those are considered as Bilateral Treaty. For Example The treaty between Switzerland and the European Union. In this treaty there are more than two parties (Switzerland and several states of European Union), but still it is considered as Bilateral. Because it is considered to be between two groups, Switzerland as one part and the European Union and its member states as another part. All treaties must be registered with the United Nations Treaty Collection under Article 102 of the United Nations Charter. Once registered, the UNTC will allocate a registered number for the treaty. (For Example: United Nations Treaty Series UNTS 49006/49007[3] is the treaty that established Euclid IGO).

Relationship between International Law and State Law

International law is a new concept of human history. State law (Municipal law) means the internal law of a sovereign state. International law and State law (Municipal law) are two separate legal orders, existing independently of one another. A state law cannot act as International law, but International law can act as Municipal (State) law in certain circumstances. State law has binding force within its territories of a sovereign state. But in certain circumstances, International law may not have such binding force, unless and until the sovereign state incorporates it in its state law.[4] Due to this, there can be controversy about whether the relations between these two laws are relations of coordination between self-existent independent orders or relations of subordination of the one to the other, or of the other to the one. Or again whether they are part of the same order but both subordinate to a superior order.

It is necessary that they should both be purporting to be, and in fact be applicable in the same field, that is, to the same set of relations and transactions.

Harris says “International law is a law of coordination, but not subordination. It is usually regarded as a law between, but not above several states.”

Indian Practice

Principally, Indian practice regarding the relationship between International Law and Internal law was emanated from British practice. From the beginning, Britain distinguished the customary rules of International Law and the rules laid down by treaties.[5] This was India’s pre-constitution situation.

After Indian Constitution was framed, India adopted the practice of adopting everything in accordance with Indian Constitution. In fact, the Indian Constitution framers had been inspired with the Charter of United Nations Organization.[6] This has been reflected in Indian Constitution’s’ Preamble, Part- I to Part- IV especially.

Article 51 [7] of Constitution of India provides as follows

• Article 51 – Promotion of International Peace and Security.

The state shall endeavour to:-

• Promote international peace and security;
• Maintain just and honourable relations between nations;
• Foster respect for international law and treaty obligations in the dealings of organized peoples with one another; and
• Encourage settlement of international disputes by arbitration.

Article 51 of Constitution of India reflects India’s State Policy and Practice regarding the relationship between the International Law and Municipal Law (State Law concerned to India).

Article 51 (c) stresses on “Pacta Sunt Servanda” principle[8]. Article 51 (b) and (d) explain how the relationship between India and other countries shall be maintained. Article 51 (a) provides that India is a peace-loving country, and it should promote International Peace and Security.

Article 51 is incorporated in Part – IV of the Constitution of India which is “Directive Principles of State Policy” which are not enforceable in a Court of Law.

Article 372 (1) of Constitution of India provides that the laws, which were existed at the time of the adoption of Constitution, shall continue in force and shall be adopted in future, unless they are altered or repealed or amended by a competent legislature[9]. That means the treaties, agreements etc.; entered into by the then British Government on behalf of British India shall be valid, until they are repealed, amended or altered.

Practically India adopted the customary International Law in her Internal Law. It is similar to that of British Practice. British follow dualistic view. India also follows dualistic procedure.

Berubari Case (1969)

Berubari was a small piece of land of 9 square miles in West Bengal having about 12,000 populations. The Indian Government entered into an agreement with Pakistan to give Berubari to Pakistan in exchange of Cooch-Behar enclaves. Political agitation started against this agreement.

The President of India referred the matter to the Supreme Court of India under Article 143 of the Constitution of India[10].

The President of India asked two questions,

• Was any legislative action necessary for the implementation of agreement?
• Was Article 3 of the Constitution sufficient or an amendment was needed?

Decision

The Supreme Court gave its opinion under Article 143 that if the Government of India would want to cede a part of the territory of India to a foreign state, it can do so only by an amendment of the Constitution.[11]

Supreme Court held “Ordinarily an adjustment of a boundary which International law regards as valid between two nations, should be recognized by the courts and the implementation thereof can always be with the executive unless a clear case of cession is involved when Parliamentary intercession can be expected and should be had. This has been custom of nations, whose constitutions are not sufficiently elaborate on this subject. A settlement of a boundary dispute cannot be held to be a cession of territory. A treaty really concerns the political rather than the judicial wing of the state. When a treaty or award after arbitration comes into existence it has to be implemented and this can only be if all the three branches of Government to wit the legislature; the Executive and the Judicial; or any one of them, possess the power to implement it. If there is any deficiency in the constitutional system, it has to be removed and the state must equip itself with the necessary power. In some jurisdictions, the compromise read with the Award acquires full effect automatically in the Municipal Law, the other body of Municipal Law notwithstanding. Such treaties and awards are self-executing. Legislation may nevertheless be passed in aid of implementation but is usually not necessary. “

Result

As a result of the Supreme Court’s decision in Berubari case under Article 143, Ninth Amendment of the Constitution of India, 1960 was passed by the Parliament[12], which redefined the boundary of the State of West Bengal and made necessary changes in the First Schedule so as to cede the Indian Territory of Berubari to Pakistan as provided in the Indo-Pakistan Agreement.

Treaties entered into by India

India entered into various treaties with several countries. There is a database called “Indian Treaties Database”, maintained by the Ministry of External Affair’s Legal and Treaties Division. It has a complete database of all treaties entered by the Government of India with various countries and intergovernmental organizations since 1950. You can also read complete text of the treaties entered into by the Government of India. There is also a facility to search the database using a search string to find the treaty you are looking for. There are 500+ treaties entered into by India as listed in United Nations Treaty Series.

Are these Treaties binding on our Country

Any Country has to follow the obligations of the treaty which they entered into and ratified. In fact, the Country should follow the International Law in the same manner as the country would expect its own citizen to follow the domestic law. In case if it is not observed, then the courts may order to implement such international law if it is not inconsistent with the domestic law enacted by the Parliament. In case, if the international law is not consistent with the domestic law enacted by the Parliament of India, the court will follow the domestic law. The leading case is: Gramophone co. of India Ltd vs. Birendra Bahadur Pandey[13].

In India, the Parliament, that is the legislative body can only enact laws. Indian Courts cannot enact laws or make legislations since the powers to enact laws are vested with legislatures according to the Constitution of India. Separation of Powers is a great feature of Constitution of India. In India, Courts can only interpret the laws made by legislatures, the Courts in India interprets the obligation of Government of India under International Law related to various treaties entered into by Government of India by issuing judgments and verdicts in domestic cases in which the issues are related to or concerned with treaties entered into by Government of India. As like the Judicial Activism, the Judiciary in India is playing very important and crucial role in fulfilling the obligations of Government of India under various treaties entered into by Government of India.

Application of International Law in India

As mentioned earlier, the Constitution of India has a provision regarding International Law under article 51. It is in the Directive Principles of State Policy (DPSP) which are in directive nature and cannot be enforced by a Court (under Art 32 or Art 226). But still this Article 51 clearly shows the intention of the framers of the Constitution of India. The Founding Fathers of the Constitution of India had clear vision about the International Law. Article 51 reads as

Promotion of International Peace and Security.

The State shall endeavour to-

(a) Promote international peace and security;

(b) Maintain just and honorable relations between nations;

(c) Foster respect for international law and treaty obligations in the dealings of organized peoples with one another; and

(d) Encourage settlement of international disputes by arbitration.

In the leading case of Kesavananda Bharati v/s State of Kerala[14], the Chief Justice Sikri opined that: “It seems to me that, in view of article 51 of the directive principles, this court must interpret language of the constitution, if not intractable, which is after all a municipal law, in the light of the United Nations Charter and the solemn declaration subscribed to by India”.

In the above judgment, we can understand that in case the language of domestic law (law enacted by the Parliament or State legislatures) are not clear, then the Court must rely on the International law (parent authority based on which the domestic law was enacted). In the above judgment, we can understand that even if the language of the constitution is not intractable, then the court must interpret it in the light of the United Nations Charter, and the solemn declaration subscribed to by India.

Article 253 of Constitution of India confers power upon parliament to enact laws relating to treaties, to give effect to such treaties, protocols, covenants, agreements and conventions entered into by India with one or more countries and intergovernmental organizations or any decisions concluded at international conferences in which India was a participant.

Article 51 is just directive in nature. It directs the Country to give due respect to International Law. This Article 51 is not saying that International Law is at par with or equal to or part of law enacted by legislature (Parliament or State Legislatures) in India.

Any Article under Part IV (Directive Principles of State Policy) of the Constitution of India must be read with Article 37 of Constitution of India[15].

Article 37 in the Constitution of India, reads as follows,

37. Application of the principles contained in this Part

The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.

Hence if is there any inconsistency between the International Law and the Domestic Law, the Court has to interpret and construe in harmonious manner to protect the interest of both the laws.

In Krishna Sharma vs. State of West Bengal[16], the Calcutta High Court has decided the case considering the above view. But in ADM, Jabalpur vs. Shivakant Shukla[17], which is a Writ of Habeas Corpus case, the Honorable Supreme Court of India clearly opined that “nothing which conflicts with the provision of our constitution could be enforced here under any disguise”

The Honorable Supreme Court of India interpreted with liberal construction in the case of Gramophone Co of India vs. Birendra Bahadur Pandey. The Supreme Court of India in this instant case opined that “the comity of nations requires that the rules of international law may be accommodated in the municipal law even without express legislative sanctions provided they do not run conflict with the acts of parliament …the doctrine of incorporation also recognizes the position that the rules of international law are incorporated into the nation’s law and considered to be part of national law , unless they are in conflicts with an act of Parliament.”

Judicial Activism paved the way for various good and noble things in India. Polluter Pays Principle, Principle of Sustainable Development, Precautionary Principle are the brainchild of Judicial Activism in India.  In Vellore Citizens Welfare Forum vs. Union of India, the Supreme Court has laid down that “once these principles are accepted as part of customary International law, there should be no difficulties in accepting them as part of our Domestic law. It is almost an accepted proposition of law that the rules of customary International law, which are not contrary to the Municipal Law shall be deemed to have been incorporated in the Domestic law and shall be followed by the court of law.” The Honorable Supreme Court decided in the same manner in the case of People Union for Civil Liberties vs. Union of India[18]. Hence we can come to an understanding that the Courts in India has interpreted and applied the International Law if it is not inconsistent with the Domestic Law and if is there any inconsistency between the International Law and Domestic Law, the Courts have construed harmoniously.

Enforcement of Treaty Obligations

Here, the first and foremost question, in case of enforcement of International Law Treaties, Conventions etc, is whether those treaties and conventions are binding on India automatically or will they become binding once ratified by the Government (according to Article 253, the power to ratify international treaty is vested with the Government and there is no need to place the treaty before Parliament, even if the treaty has monetary obligations) or do they need any legislation enabling the treaty.

Article 253 reads as follows

“Article 253. Legislation for giving effect to international agreements:

Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.”

The question, whether the treaties are binding automatically or do they need any legislation enabling it was answered in the judgment given by the Honorable Supreme Court of India in the leading case of Jolly George Varghese and Others vs. Bank of Cochin[19]. In this case, the Honorable Supreme Court of India, in the words of Justice Krishna Iyer had opined that “The positive commitment of the State Parties ignites legislative action at home but does not automatically make the covenant as enforceable part of the corpus juris of India “.

In general, we can observe that the International Treaties and Covenants are being used to support the Domestic laws. Usually the treaties are used, to fill any discontinuity in the domestic law, to interpret the domestic law in case of ambiguity in the language, to justify and fortify a decision taken in any case related to Domestic law or International law, to implement international conventions, decisions of international conferences and treaties, covenants and protocols if such treaties or conventions are not inconsistent with existing domestic laws, to fulfill and help achieve the noble cause of the conventions and treaties, to interpret the domestic law so that it will reflect the developments and changes at international level.

Another leading case relating to the enforcement of International treaty obligation is Vishaka vs. State of Rajasthan[20]. Judicial Activism again paved way for guidelines for protecting women from sexual harassment. In this case, the Honorable Supreme Court of India laid down the guidelines for protection of women against sexual harassment and opined that “in the absence of domestic law, occupying the field to formulate effective measures to check the evil of sexual harassment of working women at all work places, the contents of international conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Article 14, 15, 19(1)(g) and 21 of the constitution and the safeguard against the sexual harassment implicit therein. Any international convention not in consistence with the fundamental rights and in harmony thereof to promote the object of constitutional guarantee”.

Hence we can understand from the above case that the Court can apply International Treaties along with the domestic law, if the treaty is not in conflict with the domestic law.

In the leading case of Nilabati Behera alias Lalit Behera vs. State of Orissa[21], the Honorable Supreme Court of India granted compensation for custodial death and it has justified the decision based on the Article 9(5) of the International Covenant on Civil and Political Rights (ICCPR). In the case of Chairman, Railway Board and Others vs. Chandrima Das[22], the Apex Court while interpreting the scope of Article 21 of the Constitution of India and referred to the Universal Declaration of Human Rights to provide protection to foreign rape victim. In this case the court has observed that “the application of UDHR, and principles thereof may have to be read, if need be, into the domestic jurisprudence.”

Conclusion

Based on the above-discussed provisions of the Constitution of India, judgments in various leading cases, we can conclude that the International Treaties and the treaty obligations are enforceable by the Courts in India, if such treaties are enabled by legislating an act by the Parliament of India. There are several such legislations which are enacted by the Parliament of India, once India became signatory to the related treaties and conventions. Example: The Diplomatic Relation (Vienna Conventions) Act 1972. SAARC Convention (Suppression of Terrorism) Act 1993, Protection Of Human Rights Act 1993[23]. Similar acts are enacted on the subjects of territorial waters, exclusive economic zone etc.

In the past few years, the Courts in India decided based on, or justified based on International Treaties and Conventions in various leading cases in case, if such treaties and conventions are not inconsistent with the Domestic laws in India.

References

1. BINDING AND NON-BINDING INSTRUMENTS IN INTERGOVERNMENTAL RELATIONS – EUCLID PUBLICATION
2. Modern Treaty Law and Practice – Anthony Aust
3. https://treaties.un.org/Pages/showDetails.aspx?objid=08000002802f011f
4. Developments of International Law in Treaty Making –  Rudiger Wolfrum, ‎Volker Röben
5. India and international law – Nagendra Singh – 1969
6. India and International Law: Introduction – Bimal N. Patel
7. Constitution Of India, 10/e – Bakshi, ‎P M  
8. Introduction to the Constitution of India – Durga Das Basu
9. Constitution Of India, 10/e – Bakshi, ‎P M  
10. The Bengal Borderland: Beyond State and Nation in South Asia – Willem van Schendel
11. Indian Administration (Sixth Edition) – Maheshwari
12. Reconstitution of the Constitution of India – Kanhaiyalal Sharma
13. Creative Activities and the Law: Human Rights Approach – Shive Datta Sharma
14. Landmark Judgements That Changed India – Asok Kumar Ganguly
15. Commentary On The Constitution Of India – PK Agrawal , K.N. Chaturvedi
16. Digest of Constitutional Law – Simhambhotla Subrahmanya Sastry
17. The Supreme Court Versus the Constitution: A Challenge To Federalism – Pran Chopra
18. The State Practice of India and the Development of International Law
19. Nationality and International Law in Asian Perspective – Swan Sik Ko
20. Need for Judicial Activism – Dr. Moreshwar Kothawade
21. International Human Rights Law and Practice – Ilias Bantekas, ‎Lutz Oette
22. Tools of Justice: Non-discrimination and the Indian Constitution – Kalpana Kannabiran

1. The Indian Journal of International Law: Official Organ of the Indian Society of International Law, Volume 32 – M.K. Nawaz

In this article, Aishwarya Sujay Kantawala pursuing Diploma in Entrepreneurship Administration and Business Laws from NUJS, Kolkata, discusses the Major Legal Issues in Corporate Leasing.

Accommodation/Housing are one of the pressing issues in this decade. An increased growth in people has demonstrated the urgent need not for land but housing, wherein a large influx of the population has moved into urban or metropolitan areas for job prospects. Housing means to roof people which can be stretched to the definition of a business or enterprise. The cycle behind a higher population is that it demands more jobs, on such happening more investments occur in businesses, corporates and enterprises. These businesses, corporates and enterprises require SPACE i.e. physical area. Many start-up companies or large franchises cannot afford to invest high amount of money into real estate. Purchasing power is relatively stagnant and immovable property is a less appreciating asset, this has resulted in astronomical prices. Real estate has become a potent part of any business, where India is yet warming up to virtual entities and might take longer.

Simply, every business or enterprise, profession or consultancy requires an office space. A space depending on the nature of business, type and requirements. For instance, a lawyer’s office would need space for conferences, storage of papers, computers, reception, personal cabins, pantry, associate desks, files, etc. This office would require enough space to accommodate people as well as the enormous paperwork that comes with duty calls. On the other hand, a doctor’s clinic would require space for storage, medical checks, apparatus, medicines, equipment, records etc. Further, a business being a retail entity would mainly require less office space and more storage space. Hence, it would be easier to term any kind of space required for commercial and not personal purposes as commercial space. This essay will ponder about primarily corporate leasing of real estate/property, the major legal issues while corporate leasing, as well as an interesting angle to corporate leasing of movable property such as vehicles, machinery etc.

Firstly, it is important to understand corporate leasing from renting, borrowing etc. In common parlance, we initiate a leave and license agreement for tenants or as tenants when we rent immovable property residentially for a short period of time. The difference between leave and license and lease is that a license agreement results in no transfer of ownership or possession of the property to the licensee, whereas a lease agreement causes the lessee to have exclusive possession of the property. License agreements do not directly make an interest in favor of the licensees. Now, the amount payable for such leave and license is known as rent, the amount payable for lease is called as consideration/lease amount. In relation to corporate leasing, which is more of a commercial characteristic of letting property, it would be more efficacious for a lease agreement as one would have exclusive possession of the property instead of a leave and license. The general outlook for a lease period depends anytime between 12 months onwards. Although, commercial entities when leasing a space would rent for nothing less than 3 years as they would be functioning out of there, basing their commercial address, visiting cards, clientele, orders from that location. One must not forget that corporate leasing involves expenditure in interiors, maintenance as the premises has to be in accordance with the function it is being leased for. Hence, for shops they would require shelves, storage space, mirrors, vents, air conditioners, demonstration tables, changing rooms etc.  On research, I came across this company Jones Lang LaSalle which mentioned how corporate leasing is about long-term tenant relationships. This helps bring a deeper meaning as to the purpose of such kinds of transfers of immovable property.[1]

Shortly, one can term Corporate Leasing as the following

Corporate Leasing is a part of the rental industry, this kind of leasing could be commercial as well as residential. Corporate lease is also known as Commercial Lease, Commercial Lease Agreement, Business Lease and Industrial Lease. A Corporate lease is initiated by way of a Corporate Lease Agreement. This agreement is essentially a legal contract structured when renting immovable property to or from a corporate when renting business property. This could be residential or commercial. Further, corporate leasing also involves the lease of assets such as vehicles, machinery etc. A commercial lease would entail the owner/ landlord of the property also legally known as the lessor’s details and specifications and the lessee’s desire and purpose of such corporate leasing. Seldom, a lease would require a guarantor who would stand as a guarantee for such non-payment of the lease amount. The agreement also contains the lease amount payable, duration of the lease, any such information required at the discretion of the parties. Corporate leasing is often availed by companies to put a roof over their employees’ heads, especially when transferring from a hometown or previous location. This would save a major chunk on accommodation overheads in hotels, guest houses etc. The same ideology can be used for commuting individuals who spend weekends in different cities.[2]

On scuttling to the meaning of a lease, it is important to make it clear that commercial leasing of property is of immovable property as well as moveable property. It can be argued that, tangible as well as intangible property can be leased. However, for the sake of clarity, at the instant immovable property leases will be defined. The General Clauses Act, 1897 defines “immovable property” as shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth;[3]

Hence, land, building or apartment are immovable property. Leasing of this property in India requires the execution of a lease deed. Further, the person leasing the property has to be the true owner of such leased property. Lease can be defined as the transfer of interest, such interest in an immovable property. Such transfer of interest is subject to conditions set out and agreed upon between parties in a lease deed. The person leasing or giving the immovable property who is the owner or acting on behalf of the owner is known as lessor, he also receives the consideration amounting from such lease. The lessee is the individual who obtains possession of the immovable property and pays consideration to the lessor. The main factor between leases and other forms of renting or letting is that the former creates an interest in the property. [4]

At the instant, the premise of this essay deals with the major issues with corporate leasing in India. India as a huge republic and regional based laws conferred by the Indian Constitution lays down certain powers in Union Lists, State Lists and Concurrent Lists. Transfer of Property Act, is a Central Legislation, however, States have the power to enact provisions relating to Stamp duty, taxes, rents etc. Maharashtra has various laws such as The Maharashtra Rent Control Act, 1999[5], The Maharashtra Tenancy And Agricultural Lands Act, 1948[6], The Real Estate (Regulation And Development) Act, 2016[7] (RERA) etc. Now, why is it that many foreign or inter-state corporates are adversely repulsed to invest in property by way of leasing?

Further, I will be discussing Legal Issues as well as Non-Legal issues which contribute to setting back Corporate Leasing, reasons being  as follows-

1.Demand

The demand for immovable property outweighs its supply inevitably. Corporates look to invest in large commercial areas with a variety of facilities and maintainable conditions and are often struck by the overwhelming demand that already exists. Real estate in itself is and has become a competition due to the exponential demand for leasing. The investments in India are multiplying with our current flexible investment policies. This has illustrated the booming welcome to corporates from every curve of Earth to invest in India. Needless to say, every corporate needs adequate space to function especially close to its business operations or customers. Most businesses come to either of the metropolitan cities and generally have headquarters close to where financial intuitions are present and functional. A mainstream example of H&M and ZARA shopping companies which effectively only leased premises in the most congested and busy places in Mumbai such as Fort, Lower Parel and in Delhi. The core reason behind this is the demand generated by the public vis a vis the demand in property. On locking down leases here, it has become easier for the company to function. On the other hand, smaller enterprises which are not million-dollar capital backed companies cannot afford to lease premises in such highly demanded areas. Also, it is worth wondering why would a corporate lease in areas not in demand? They wouldn’t.

2. Expenditure

Real estate in Mumbai, Delhi, Bangalore, Chennai is extremely expensive. Being the hub of activity for business, manufacturing, services, tourism, professions etc. these cities are pressurized by the large influx of population and with it the demand of more branches of the company arises. Now real estate can be expensive especially when compared to the ready reckoner rate for the property wherein such property is expensive. This colludes a restraint in the minds of investors especially where capital and budgetary allowances are at a minimal. The expenditure incurred when leasing is astronomical. One of the main reasons is land or buildings or apartments to be leased commercially or otherwise will always be in commercial areas or the central business districts. For Example- In Fort, every bank from HSBC, Standard Chartered, HDFC, State Bank of India, Central Bank of India etc. have leased gigantic premises. This can be incurred by such entities however what about startups and small or micro business entities. They wouldn’t be able to afford a spot of this property. Now, it is often argued that investment of big entities is enough rather than concentrating on smaller shops/industries or businesses i.e. the business generated from these large corporates is more beneficial. At the end of the day, on viewing the spectrum of entities in India everybody corporate matters. Needn’t it be, that one can neglect smaller companies as they cannot afford such expensive corporate leasing.  Expenses, costs and such lease overheads are a huge impediment to corporate leasing in India.

3. Inter-State Legislation

The reasons will be discussed further on however, one primary issue is the inter-state legislations that stem as an immense challenge. The legality of leases in Maharashtra would be different from Delhi, Bangalore would be different from Chennai. Due to the lack of uniformity in inter-state legislations, body corporates are likely to be revolted and repelled from investing in India. A noteworthy point is that due to inter-state legislations and various jurisdictions vested in High Courts in India, in case of disputes the cause of action varies by location. This essentially results in a tug of war when litigation is initiated in any of the forums. Hence, there is lack of much clarity on where, which and how many legal forums are to be approached in case of a major deadlock or disagreement of a lease.

4. Stamp Duty

One of the major legal concerns of body corporates is the paying of stamp duty on leases. The stamp duty varies from place to place, time to time. Further, Stamp duty can be a very expensive phenomenon especially in Mumbai. Often, legal practitioners in the field of property or civil law are well aware of the procedural requirements of corporate leasing, this entails hiring of a property lawyer. Over and above, stamp duty is payable generally by the lessee of the property. In case of queries on stamp duty, an RTI (Right to Information) can be drafted to the appropriate authority which would in effective time share the details of the amount to be paid by the entity. This can indeed be a long-drawn process for body corporates who are on deadlines to commence business in India.

5. Political Instability

One can view this as a legal issue or otherwise, but political instability is one main reason for the lack of any investment in India. Now it is worthwhile to think that corporate leasing would be for a minimum of 36 months onwards, this being a long period of time is a huge risk entangled with legal obligations. In the event of any political instability, much less legal issues but more safety issues would be a priority. India due to its vibrant politics results in economic losses recurrently. No entity in its right mind would want to risk such instability in India where the environment can turn hostile and less efficacious. Now leasing can be highly affected due to this kind of patterns wherein legality would be rudimentary to the game of politics.

6. Forum Shopping

Litigation can be extremely commercial and marketable for practitioners who intern become con-artists. They often guide such big corporates to initiate proceedings in various forums unnecessarily. Forum-Shopping is a core legal issue for corporate leasing as this results in string being tied in litigation for long periods of time in various forums unnecessarily. A frivolous complaint can be filed in the Consumer Dispute Forum against the lessor or lessee, a complaint can be filed in the Debt Recovery Tribunal which would end up tying the assets of the lessor and the lessee being unaware of this non-debt free immoveable property would lose out on its heavily paid lease. This becomes highly inconvenient; besides one can never dig out current litigations against entities these days. It is easy to fool and be fooled.

7. Legislations

India has over 60 acts/statutes only dedicated to property by way of transfers such as rent, gift, lease, leave license etc. Now, for a body corporate to adhere to ample procedural ties and sustain in the market with the updating nature of legislations comes as a severe disinteresting enigma.

8. Registration

The duration requirement for a lease has to be for a bare minimum for 12 months onwards which upto 36 months requires registration. Now, this provides as a safety measure for many individuals who wouldn’t want to take up the precarious and tenacious and tedious procedure of registration. This requires photographs, affidavits, proof of citizenship if not a citizen then a letter from the government or consulate, in case of foreign body corporates the procedure is extremely complex and often foreign funds are under strict regulation of the Indian Government. Further, registration might require certain permissions from departments as well as witnesses. This ordeal for every lease agreement coupled with security checks serves as a major setback for corporate leasing procedures.

9. Fraud

Often, when a body corporate leases property it does so through brokers, agencies or based on word of mouth. Fraud occurs more often than one can imagine, everyday someone gets cheated for leasing property that either does NOT exist or that exists in descriptions appears different. Sometimes, people lease out property that does not belong to them or is owned otherwise by another individual. It is not uncommon to hear that there are multiple lessees for the same property i.e. cheating tenants. In such a case, institution of a suit is the only remedy where the body corporate would get tangled with various investigations etc.

10. Execution of Projects

Projects leased often take longer to execute than to negotiate, the reason being that generally the culture of execution is lax and laidback. This forms a chain of slipshod foundations wherein the execution is poor and time consuming wherein body corporates hard pressed on time lose interest.

11. Discrimination

Our Multi-cultural, Secular, Democratic country pays way too much heed to religious sentiments than moralistic values. In the process, discrimination is avid and prevalent. Often, attractive properties do not get leased due to various sentiments of people as they prefer body corporates owned, managed or run by favored castes. Yes, this is prevalent in India, vegetarians prefer leasing commercial as well as residential property to only vegetarians. The same for castes. This absurd phenomenon despicable as it is causes a major setback leading to outright discrimination towards corporates. Further, as no courts would like to intertwine in personal right issues, this major and most important legal hostility lie unnoticed and unsolved.

Movable Corporate Leases

According to the General Clauses Act, “Movable Property” shall mean property of every description, except immovable property.[8] Examples of movable property is vehicles, furniture, machines etc. Unlike the Western culture of leasing, Indians believe in buying new and avoiding second hand items. Concurrently, firms are looking at leasing moveable property such as vehicle, machinery and other assets. This offers as a more feasible option than to be flooded with outstanding dues, payments and nightmare generating EMIs. Consumers should have the flexibility to recycle their desires, and should be able to invest partially and generate on use. The mentality of ownership is disappearing and interest is rising. [9]

Also, people are making money steadily, revenue is being generated and companies require space. Space has to be created. A potential next United States of America, India is booming in IT, engineering, manufacturing, pharmaceutical, e-commerce, retail, research etc. This requires commercial space to grow and expand. Encouraging corporate leasing is important for functionality of the nation. Body corporates will always have been averse to purchasing property, leasing being the only option has to be thrived. And why should it only be that Multinational corporations should occupy the highest stake in the corporate leasing market. [10]

Bibliography 

1. “Agency Leasing.” JLL. N.p., n.d. Web. <http://www.jll.co.in/india/en-gb/services/investors-and-developers/agency-leasing>.
2. Schmidt, Diana. “Is Corporate Housing the Right Choice for Your Move?” The Spruce. N.p., n.d. Web. <https://www.thespruce.com/what-is-corporate-housing-2436015>.
3. General Clauses Act, 1897
4. “Leases – Understanding the Concepts.” Net Lawman. N.p., n.d. Web. <https://www.netlawman.co.in/ia/lease-understanding-concepts>.
5. The Maharashtra Rent Control Act, 1999
6. The Maharashtra Tenancy and Agricultural Lands Act, 1948
7. The Real Estate (Regulation and Development) Act, 2016
8. “Leasing for Corporate Customers at Sixt.” Corporate Leasing. N.p., n.d. Web. https://www.sixt-leasing.com/corporateleasing
9. Goyal, Malini. “How a Boom in Corporate Office Leasing Reflects India’s Solid Economic Base.” The Economic Times. Economic Times, 24 Jan. 2016. Web. <http://economictimes.indiatimes.com/news/company/corporate-trends/how-a-boom-in-corporate-office-leasing-reflects-indias-solid-economic-base/articleshow/50700291.cms>.

Citations

[1] http://www.jll.co.in/india/en-gb/services/investors-and-developers/agency-leasing

[2] https://www.thespruce.com/what-is-corporate-housing-2436015

[3] Section 3 (26) of The General Clauses Act, 1897

[4] https://www.netlawman.co.in/ia/lease-understanding-concepts

[5] The Maharashtra Rent Control Act, 1999

[6] The Maharashtra Tenancy And Agricultural Lands Act, 1948

[7] The Real Estate (Regulation and Development) Act, 2016

[8] Section 3 (36) of The General Clauses Act, 1897

[9] https://www.sixt-leasing.com/corporateleasing

[10]http://economictimes.indiatimes.com/news/company/corporate-trends/how-a-boom-in-corporate-office-leasing-reflects-indias-solid-economic-base/articleshow/50700291.cms

In this article, Abhishek Singh pursuing Diploma in Entrepreneurship Administration and Business Laws from NUJS, Kolkata, discusses how to handle overbearing and difficult clients.

Be a Business Psychologist

“Deal with ‘Difficult’ Clients, Keep Business Relationships Healthy and Fix the ones which Deteriorate.”

“Love is a tricky thing. We stick with people we deem worth it, and when we seem like it’s too much effort, chances are it isn’t meant to be.”

Haha, I feel like I am acting as a relationship consultant, trying to sort out differences between the estranged couple.

You can’t blame me though; business relationships are a lot like normal relationships. We have a wide array of relationships that we maintain on a daily basis, and it surprises me just how many people immediately assume an air of professionalism or importance the second they expect to deal with a relationship of a professional nature.

I’m writing this to explain how you can do a better job managing your relationship with clients, especially difficult ones, and yet I would encourage you to consistently notice how my advice stands coherent with relationships of a non-professional nature as well, as this would trigger your intuitive thinking and help you come up with unique solutions for yourself when you face similar problems in your professional career.

Before anything, it is of paramount importance to understand that a business relationship, no matter how professional it is, involves human collaboration just like any other relationship you establish or maintain in your daily life. There are two parties who expect some mutual benefit or gratification from each other, thus creating a symbiotic relationship in which both intend to stay happy.

Understanding that simple principle alone brings about an astounding level of clarity in the sense that embodying the same would automatically solve the majority of your problem. Seriously; the entire solution of the problem of handling difficult clients lies in the simple truism stated above.

Another thing to understand is that almost no one in the professional world behaves in an irrational way or holds grudges against another person without a plausible reason. Mostly, there is a very pertinent reason why a client behaves in a way that makes you deem that client ‘difficult’, and it is up to you to adopt a problem solving attitude as opposed to a reactive attitude, because the latter almost never solves the problem; in fact in most cases it worsens it.

Before discussing how to circumvent the problems that these ‘difficult’ clients pose, it is important to understand how a healthy and well rounded attitude on our part can help us avoid being wound up with such a client in the first place.

Be the Best Version of Yourself

All of us are on a personal journey in our own lives. All of us have a vision of who we want to be and on some level, we all believe that we are working towards it.

When it comes to handling clients, there could be a ton of advice that you could gather from the internet or from other experienced people you connect to, but none of that can bring a complete transformation unless you take up the lifelong task of working to be self-disciplined.

How well we manage our professional lives is a very accurate and brutal mirror of how well we manage our entire life, and the better you are at being productive and effective on a daily basis, year by year, the lower are your chances of being overwhelmed with problems like this one because in the end, there are always certain things you can do to solve every single problem you face.

I am currently reading ‘Getting Things Done’ by David Allen, and I find it to be an amazing resource if you want to learn to be productive while also being stress free so you can perform at optimum levels at everything you do. I highly recommend reading it.

After you get your personal life in order, there are certain habits that you can adopt to make sure that you can minimise the instances you end up facing such problems.

Assess the Other Side

Have you read ‘Rich Dad Poor Dad’? You should.

About ten pages in the first lesson, the author discusses how he, at the tender age of 9, was taught by his ‘Rich Dad’ (his best friend’s dad who taught the former how to be financially independent) a tough lesson – working for a pay check is never a sound idea in the long run.

He discusses how Rich Dad thought that working for a simple, material benefit without paying much attention to the surrounding circumstances offering that benefit inhibits free thinking and prevents us from coming up with original, creative and profitable ideas we would be in a position to perceive if only we were more broad minded.

This is a very beautiful lesson, and is fortunately scalable to a higher level of generalisation.

“Getting into a relationship with an agency while keeping in mind only the possible benefits in terms of increase in financial strength; is a fool’s way of bonding. A sound professional treats his own party as a living, breathing organism who has certain characteristics and features, and gives an appreciable amount of importance to how well the other party can compliment them in a professional environment.”

Pick your relationships very carefully, while keeping a sagacious disposition to the prospect of the same.

Once You Love, Give it Your All  

Sometimes being Cheesy does Work

Once you do pick up a partnership with another party, give that relationship your full attention. This will obviously require a fair bit of discipline, but it is worth it. That will necessarily include establishing clear ground rules about what and how you two are going to play your respective parts in the whole venture, anticipating the needs that might arise that you can satisfy from your side beforehand and then doing the needful o preparing a coherent and exhaustive documentation of all the proceedings that you two undertake during the tenure of you two working together to minimise confusion.

Keeping a well-documented journal of every single conversation that you’ve had with the other party is a great idea, because not only will that help you be more accurate and focussed in your work, but it will also help in solving disputes while also avoiding awkwardness to creep in the relationship.

Keep in touch with the other party and talk about their expectation and perceptions regularly. Just like a social relationship, a professional relationship will fare much better if both sides care about the other side enough to want to understand the other side’s thinking and mitigate any differences discovered subsequently.

This will also help both sides avoiding setting unreasonable expectations and focussing on getting the work done sans the unnecessary hurdles caused by a communication gap.

Even if you exercise due caution and do everything you’re supposed to do in your personal and professional sphere to the T, you might still wind up with a client you’re facing troubling differences with.  When that happens, it is very important to ascertain what the core issue is; what exactly is the source of the differences between you two.

There could be a ton of Differences, but generally, the problem is either of the following three:-

1. Anxiety

In your professional career, no matter what your job is chances are you will come across clients from a variety of spheres of life, and every one of them wants to do a great. However, handling the ambition and the restlessness that comes with it is not everyone’s cup of tea, and some become extremely anxious and cynical, expecting things to start fall apart at any minute.

This is why these kind of ‘difficult’ clients are the ones, who called in incessantly, confirm every single piece of information multiple times and ask a ton of irrelevant questions that stem purely out of their own insecurities and not general doubts.

2. Distrust

No one in this world is liked equally by everyone else. People fit in perfectly with some people while the same people face a ton of difficulties relating or being comfortable with the other person. This lack of trust could stem out of their inhibitions about a certain part of your technical expertise or even a discouraging review that they have heard about your general disposition towards the different elements of your work or personal environment. These are the kind of people who would constantly ask for feedback as to how you’re carrying out the different parts of your task, thus creating an atmosphere where they end up validating or striking down your every development even if their judgement might not be based on sound reasoning.

3. Condescension

Some people are just the worst at collaboration. They believe they have read a little bit of everything (which is actually an amazing accomplishment; and one that’s sorely needed in the modern world) but they start assuming that the entire world needs a bit of advice on how to do their work by these people. These are the people who will continuously ask you to do things that are daily activities for you (and hence know a lot about practically) in a way that I ‘optimised for maximum efficiency’. I highly stress the need of adopting an attitude wherein you appreciate all opinions regardless of the source, but these people have a habit of behaving in a way that makes you feel like you’re being put down.

There could be other reasons as well, but majority of differences generally stem out of these three problems. To deal with such problems, there are some things one can do to salvage the situation.

Pick your Fights

Before you do anything, you need to make absolutely sure that the problem isn’t one that isn’t fundamentally unsolvable by you. If it is, it would probably be a better idea to hand over the client to someone who is in a better position to handle the client.

For example, if the client has a personal grudge against you, or your ad his style of working are polar opposites, both you and the client would be much better off separating ways.

Once you make sure that it’s definitely something fixable by you, you can employ a plethora of techniques to deal with the client, keeping in mind the exact reason why you are facing this problem in the first place.

Keep Calm and Fix Things

If you want to deal with clients that should be the banner of your firm’s flag.

As we discussed in the beginning of this article, it is a much better idea to be in a mental state wherein you focus on solving the problem and not reacting to the stimulus that either the other party or the situation sticks to you, because the client is being reactive himself/herself. Once you adopt that methodology, it would be easier for you to identify the core issue and solve it.

Another thing that you need to keep in mind in this regard is to refrain from getting personal. Not only is it highly unprofessional, it is a very weak and juvenile attempt to solve a problem that probably has you overwhelmed. Instead, focus on the issue and hand and avoid holding personal grudges in view of the longer professional perspective.

Ask Harder Questions

No one likes hard questions, but they work.

Thus, that is what you need to do. Whenever you’re having difficulty ascertaining the core issue because of the unwillingness of the client in your conversations, you need to make sure you listen to whatever they have to say fully, intently and sincerely. After you do that, ask harder questions that eventually prevent them from giving you a callous or weak answer and reveals the core issue expressly or impliedly. That is how trained psychologists treat people who are distressed, and that is how you can be your own personal relationship doctor and be good at it.

Find a Middle Ground

After everything is said and done, it is simple. Your ability to stick with your client is depends solely on how far both of you are willing to go to find a middle ground and work things out.

Involve your client in the process; make sure your client is absolutely convinced that whatever you’re doing is the best that can be done to obtain the desired results. Whenever they are in doubt about any component of their or your work which is actually fine, make sure you show compelling evidence as to how that element has no problems with it. As I said before, talk to the client regularly to identify any and all discrepancies as and when they occur.

When either of the parties go wrong, acknowledge the mistake and make sure both of you find ways to reach a fair compromise. That is how you find the middle ground; by collaborating with the other person and by forming a true connection.

Know When to Let Go

Dignity is Everything

You do have a moral duty to be compassionate and understanding, but the world also demands you to be firm and assertive in your actions. Understand the difference between a fair compromise and knuckling under and never let your or your staff’s dignity stoop down to satisfy a single client. If after trying everything you still hit a brick wall, fire the client. You and your staff’s integrity and confidence is the greatest asset that you will ever possess, and no client, no matter how big is not worth compromising it.

Nothing I stated above was rocket science. True, I did research a bit to gather the experts’ views on the issue so that I could create a comprehensive guide for your reference, but all this is still essentially modified ways that you generally undertake to mend relationships in your personal sphere.

I could add thousands of more pages, creating more subsections filled with things you can keep in mind and that still won’t be enough because in this new world, intuitive thinking cannot be substituted. In the end, you will need to be confident and effective enough to come up with unique solutions that improve things to a great extent.

Regardless, the tips and ideologies shared above will push you a lot further this road if you embody them faithfully. Just don’t consider them as the entirety of the situation you need to keep in mind; instead use these as tools and keep an open mind, and I promise, you will find dealing with these clients effortless and fun.

In this article, Rajdeep Singh Rao pursuing M.A, in Business Law from NUJS, Kolkata discusses the Different Parts of the Indian Constitution and what do they deal with.

Introduction

“I feel that the constitution is workable, it is flexible and it is strong enough to hold the country together both in peacetime and in wartime. Indeed, if I may say so, if things go wrong under the new Constitution, the reason will not be that we had a bad Constitution. What we will have to say is that Man was vile.” (Dr. B. R. Ambedkar – Principal Architect of the Constitution of India)

“So far as the government is concerned, there is only one holy book, which is the Constitution of India.” (Narendra Modi – Prime Minister of India)

The former quote by Dr. Ambedkar after the Constitution was adopted by the Constituent Assembly on 26th January 1950. The longest written Constitution of any sovereign country of the world came into effect on 26th January, 1950 which is celebrated as the Republic Day every year. The latter quote, however, highlights the Constitution’s importance 67 years hence after it has been amended 101 times.

The Constitution is the supreme law of the land. It lays down the framework to make laws, govern the country, establish a structure of policies, procedures, powers and duties of the Union and State governments. It states out the Fundamental Rights, Directive Principles and Duties of citizens.  

It all began with the constituent assembly setting up a Drafting Committee on 29th August 1947 to frame the Indian Constitution. The Chairman of the Drafting Committee was Dr. B.R. Ambedkar along with six other members while the constitutional adviser was B. N. Rau. Inspired majorly by the British Constitution. However there was a lot of framework taken from other countries like the idea of preamble taken from United States which says:

“We, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a [SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC, REPUBLIC] and to secure to all its citizens:

JUSTICE, social, economic and political;

LIBERTY, of thought, expression, belief, faith and worship;

EQUALITY, of status and of opportunity; and to promote among them all

FRATERNITY, assuring the dignity of the individual and the unity and integrity of the Nation;

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.”

Originally the Constitution had 395 Articles, 8 Schedules and 22 Parts; currently it has 448 Articles, 12 Schedules and 25 Parts. The Constitution has been amended 101 times till date. The power of amending the Constitution and making laws lies with the Parliament. The most important amendment being the 42nd Amendment in 1976 which was so elaborate that it is called the Mini-Constitution.  The latest 101st Amendment being the Goods and Service Tax which is by far the biggest Tax reform after the Indian Independence.

The Twelve Schedules

1. First Schedule: Territorial Demarcations of States and Union territories.
2. Second Schedule: Provisions for the President, Governor and Senior Executives.
3. Third Schedule: Affirmations and Oaths.
4. Fourth Schedule: Allocation of Seats in the Rajya Sabha.
5. Fifth Schedule: Administration and Control of Scheduled Areas.
6. Sixth Schedule: Administration of Tribal areas of North-East.
7. Seventh Schedule: Union, State and Concurrent Lists.
8. Eighth Schedule: Languages (22).
9. Ninth Schedule: Laws immune to Judicial Review.
10. Tenth Schedule: Disqualification on grounds of Defection.
11. Eleventh Schedule: Provisions for Panchayats.
12. Twelfth Schedule: Provisions for Municipalities.

Parts of the Constitution

There are a total of 25 parts of the Indian Constitution from Part I to Part XXII explained individually below. Originally there were only 22 parts but more were added through amendments.

PART I

Article (1 to 4)

The Union and Its Territory

The first part of our Constitution deals with the States and Union territories of India. It starts by describing the country “India that is Bharat, Shall be a Union of States” and then frames the laws under which the States can be divided or merged with a simple Parliamentary Majority. The boundaries can be altered and the names of states can be changed. It also gives a clause in which territories can be annexed into the Union. Currently there are 28 States in India and 7 Union Territories.

This part itself is a part of the Basic structure of the Constitution and hence cannot be amended via article 368. However small amendments can be made like the Constitution (40th amendment) act, 1976, substituted a new Article 297 so as to vest in Union of India all lands, minerals, and other things of value underlying the ocean within the territorial waters or continental shelf or exclusive economic zone of India. Sikkim was admitted as a state in India on 26 April 1975. The latest effect of this law can be seen in Andhra Pradesh Reorganization Act, 2014 where Telangana was formed as a new state.

PART II

Article (5 to 11)

Citizenship

This Article decides whether a person can carry the Blue Indian passport or not. It has 7 articles which are given below:

5. Citizenship at the commencement of the Constitution.
6. Rights of Citizenship of certain persons who have migrated to India from Pakistan.
7. Rights of Citizenship of certain migrants to Pakistan.
8. Rights of Citizenship of certain persons of Indian origin residing outside India.
9. Persons voluntarily acquiring citizenship of a foreign State not to be citizens.
10. Continuance of the rights of citizenship.
11. Parliament to regulate the right of citizenship by law.

Using the power vested in Parliament by Article 11 of the Constitution of India, a comprehensive law “The Citizenship Act, 1955” was passed by the Parliament. This act has been amended from time to time to make space for provisions as and when required. Primarily India was a country which only allowed Single citizenship, but the Citizenship Bill 2003 allows people of Indian origin lining in 16 specific countries to acquire dual citizenship. Citizenship can also be acquired by the following ways:

(a) Person who was born in the territory of India or

(b) Either of whose parents was born in the territory of India or

(c) Who has been ordinarily resident in the territory of India for not less than five years.

PART III

Article (12 to 35)

Fundamental Rights

The most important part of the Constitution. The Fundamental Rights are the core rights citizens enjoy and all laws are made around them to either protect them directly or indirectly. Although this part has been prone to various contraventions, amendments and political debates, it was settled in the Kesavananda Bharti case that this Part is included in the “Basic Structure” of the Constitution and can be only amended positively and progressively. However these rights are subject to reasonable restrictions imposed by law e.g. Like some Rights can be taken away in case of Emergency.

14. Equality before Law

Everyone Including a Non Citizen is equal in the eyes of law. The State ensures equal protection of the laws within the territory of India.

15. Prohibition of Discrimination on grounds of Religion, Race, Caste, Sex or Place of Birth

The makers of our Constitution wanted an egalitarian society. Hence, they ensured that the State did not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. But then nothing shall prevent the State from making any special provision for the advancement of any socially and educationally Backward Class of citizens or for the Scheduled Castes and the Scheduled Tribes as also given in Part 29 (2) holds good.

16. Equality of Opportunity in matters of Public Employment

Much similar to Article 15 which prohibits discrimination, in this case from public employment. Hence a person can very much be from Bihar and work in Mumbai.

17. Abolition of Untouchability

The social abuse of untouchability practiced in ancient India which was prevalent in many parts of the country was totally abolished under this article.

18. Abolition of Titles

Only Military or Academic distinctions can be held as Titles. No citizen of India shall accept any title from any foreign State either.

19. Right to Freedom of Speech

A much debated article especially with the ongoing clamor and barrage of news channels and the unregulated Social Media. We ought to remember that this freedom is not absolute and no one can stop the State from making any law which imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.

20.  Protection in Respect of Conviction for Offences

A person cannot be convicted of any offence except for violation of a law in force at the time of the commission of the Act, nor be prosecuted and punished for the same offence more than once. No person accused of any offence shall be compelled to be a witness against himself.

21. Protection of Life and Personal Liberty

The ambit of this law is the largest among all Fundamental Rights. It says that no person shall be deprived of his life or personal liberty except according to procedure established by law.  Article 21(A) added by the Right to Education 2005 makes it compulsory for the State to provide free and compulsory education to all children of the age of six to fourteen years.

22. Protection against Arrest and Detention in certain Cases

Every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of twenty-four hours of such arrest. The writ of Habeas Corpus enumerates from this article.

23. Prohibition of Traffic in Human Beings and Forced Labor

24. Prohibition of Employment of Children in factories

Children below the age of fourteen years cannot be employed to work in any factory or mine or engaged in any other hazardous employment.

25. Right to Freedom of Religion

Freedom of conscience and free profession, practice and propagation of religion.

26. Freedom to Manage Religious Affairs

This right is Subject to public order, morality and health.

27. Freedom as to Payment of Taxes for Promotion of any Particular Religion

28. Freedom as to Attendance at Religious Instruction or Religious Worship in certain Educational Institutions.

29. Cultural and Educational Rights

Protection of interests of minorities. Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same. No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.

30. Right of Minorities to establish and Administer Educational institutions.

31. Right of Compulsory Acquisition of Property was repealed by the Constitution (Forty-fourth Amendment) Act, 1978 and is now only a legal right in Article 300A.

32. Right to Constitutional Remedies

Also describes by Dr. Ambedkar as the “Heart & Soul of Indian Constitution” Remedies for enforcement of rights are conferred by this Part. A person can move to the High court or Supreme Court to ensure his rights. The Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.

33. Power of Parliament to modify the rights conferred by this Part in their application to Forces.

34.  Restriction on Rights conferred by this Part while Martial Law is in force in any area.

35. Legislation to give Effect to the Provisions of this Part.

PART IV

Article (36 to 51)

Directive Principles of State Policy

These are Directives to the Union and state governments to make laws for a more healthy, law abiding and idealistic society. These were inspired by the Irish Constitution. They promote general welfare of people but cannot be enforced by the means of Writs in the Courts of law.

The directives are,

38. State to secure a social order for the promotion of welfare of the people.
39. Certain principles of policy to be followed by the State are,

a) that the citizens, men and women equally, have the right to an adequate means of livelihood;

b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good;

c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment;

d) that there is equal pay for equal work for both men and women;

e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength;fs

f) That children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.

g) Equal justice and free legal aid to be provided by state (39A) .

(Articles 40 – 51)

• Organization of village Panchayats as units of self-government.
• Right to work, to education and to public assistance in certain cases.
• Provision for just and humane conditions of work and maternity relief.
• Living wage for workers and 43A. Participation of workers in management of industries.
• Uniform Civil Code for the citizens.
• Provision for early childhood care and education to children below the age of six years.
• Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections.
• Raise the level of nutrition and the standard of living and to improve public health.
• Organization of agriculture and animal husbandry.
• Protection of monuments and places and objects of national importance.
• Separation of Judiciary from Executive.
• Promotion of International peace and security

PART IV-A

Article (51A)

Fundamental Duties

Inspired by the Russian Constitution the Fundamental Duties are the responsibilities of a citizen towards the nation. Though the duties cannot be enforced in a court of law but the Constitution expects the people of India to follow them duly. These were not part of the original Constitution they were added on the recommendations of Swarn Singh Committee by the 42nd Constitutional Amendment Act, 1976. These are,

• To abide by the constitution and respect its ideal and institutions
• To cherish and follow the noble ideals which inspired our national struggle for freedom
• To uphold and protect the sovereignty, unity and integrity of India
• To defend the country and render national service when called upon to do so
• To promote the spirit of common brotherhood amongst all the people of India
• To preserve the rich heritage of our composite culture
• To protect and improve the natural environment
• To develop the scientific temper, humanism and the spirit of inquiry
• To safeguard public property
• To strive towards excellence in all spheres of individual and collective activity

Further under 86th Amendment of the Constitution in 2002 one more Fundamental Duty has been added to the Indian Constitution which is Right to Education which says it is the duty of parent or guardian, to provide opportunities for education to his child.

PART V

Article (52 to 151)

Government at the Union Level

This part deals with duties and functions of the President, Prime Minister, Ministers, Attorney General, Parliament, Lok Sabha and Rajya Sabha, Comptroller and Auditor General.

Articles 52 to 62 outline the Powers of the President and the Executive. The election, re-election, eligibility, manner, qualifications and also the procedure of impeachment of the President. Articles 63 to 71 in the same manner talk and regulate the position of the Vice President. Article 72 lays down the power of the President to grant pardons in certain cases. Article 73 gives the extent of Executive powers of the Union. Article 74 tells how the aid and advice of the Council of Ministers is binding on the president.

Article 75 says that the Prime Minister is to be appointed by the President and also the other ministers to be appointed by him on the advice of the Prime Minister. It also lays down some other provisions as to the Ministers.

Article 76 lays down the appointment and duties of the Attorney General of India. Articles 77-78 regulate the conduct of Government Business.

Articles 79 to 122 lay down details of the Parliament. The Constitution and Composition of both the houses, duration, sessions, prorogation of these houses. Further the qualifications and appointment of members, their salaries, the appointment of speakers and deputy speakers. The legislative procedure of the Parliament is also described in these articles. Article 123 lays down the power of President to promulgate Ordinances.

Articles 124 to 147 details the Union Judiciary. The establishment of Supreme Court, The appointment of Judges, their salaries and powers. It also lays down the procedures of the working, powers, jurisdiction of the Supreme Court of India.

Articles 148 to 151 describe the role, powers, procedures and duties of the Comptroller and Auditor general of India.

PART VI

Article (152 to 237)

Government at the State Level

This part of the Constitution deals with the duties, functions of a Chief Minister and his Ministers, Governor, State Legislature, High courts and the Advocate General of the State.

Article 152 to 164 details the Governor of the State. It describes the executive powers, appointment, term of office, qualifications and the methodology and procedure to discharge the powers of the Governor. It describes how the advice of the council of minister is binding to the Governor. Article 165 lays down the duties of advocate general of the state.

Article 168 to 195 details the state legislature, the formation, composition, duration and desolation of legislative assemblies and councils. It also talks about the qualifications, nominations and disqualifications of the members of these houses. The appointment of the Speaker and the Deputy Speaker, their powers and their salaries are also detailed in these Articles.

Articles 196 to 212 detail the legislative procedure of the State Legislature. These Articles define bills, money bills, appropriation bills and how these bills are tabled to become law. Article 213 talks about the power of Governor to promulgate ordinances during the recess of legislature.

Articles 214 to 231 detail the establishment of High Courts of States. The appointment of Judges, their salaries, their transfers, appointment of Chief Justice and acting Judges, jurisdiction of High Courts, their power to issue writs, their extension to some Union Territories and/or States is also provided in these Articles. Articles 233 to 237 describe the procedures and application of Sub-ordinate Courts and its Judges.

PART VII

Article (238)

This part dealt with States and was repealed by the Constitution (Seventh Amendment) Act, 1956.

PART VIII

Article (239 to 242)

Union Territories

Articles 239 to 242 lays down the procedures of administration and provisions in Union Territories and special character of Delhi as National capital Territory. It details the power of the Lieutenant Governor. Article 242 was repealed by the Constitution (Seventh Amendment) Act, 1956

PART IX

Article (243 to 243 O)

The Panchayats

Articles 243 to 243O describes the Constitution of Panchayats and Gram Sabha, their working duration, qualifications and disqualifications of memberships, powers, authority and responsibilities of a Panchayat. This part also gives procedures of financial management, audits and applications of the Panchayats. Schedule 11 was added by the Seventy Third Amendment in 1992.

PART IX-A

Article (243P to 243 ZG)

The Municipalities

Articles 243P to 243ZG describes the Constitution of Municipalities their working duration, qualifications and disqualifications of memberships, powers, authority and responsibilities of the Municipality. This part also gives procedures of financial management, composition of committee for metropolitan planning, audits and its applications. Schedule 12 was added by the Seventy Fourth Amendment in 1992.

PART X

Article (244 to 244A)

Scheduled and Tribal Areas

Article 244 and 244A describes the procedures of administration for Scheduled and Tribal areas. The provisions of the Fifth Schedule control the Scheduled areas and Tribes with the exception of Assam, Meghalaya, Tripura and Mizoram where the provision of Sixth Schedule shall apply.

PART XI

Article (245 to 263)

Relations between the Union and States

Articles 245 to 261 details the distribution of Legislative powers between the Centre and the States. They describe the extent of laws which can be made by the Parliament and by the Legislatures of States. The power of Parliament to legislate in the State list for national interest, in proclamation of emergency is prescribed in this part. The obligation of States and Union towards each other and the control of the Union over States in certain cases is also provided. Article 262 provides for adjudication of disputes relating to waters and interstate rivers while Article 263 gives provisions with respect to an interstate Council.

The 101st Amendment Act, GST inserted two important articles to this Part,

Article 246 (A)

It states that (1) Notwithstanding anything contained in articles 246 and 254, Parliament, and, subject to clause (2, the Legislature of every State, have power to make laws with respect to goods and services tax imposed by the Union or by such State. (2) Parliament has exclusive power to make laws with respect to goods and services tax where the supply of goods, or of services, or both takes place in the course of inter-State trade or commerce.

PART XII

Article (264 to 300A)

Finance, Property, Contracts and Suits

This part deals with the distribution of revenue between Union and States, appointment of the Finance Commission (under Article 280), contracts, liability, taxes, consolidated funds, public accounts and grants etc.

Here also the GST has made a few important amendments,

Article 269A

This article says that in case of the inter-state trade, the tax will be levied and collected by the Government of India and shared between the Union and States as per recommendation of the GST Council. The article also makes it clear that the proceeds such collected will not be credited to the Consolidated Fund of India or state but respective share shall be assigned to that state or centre. The reason for the same is that under GST, where centre collects the tax, it assigns state’s share to state, while where state collects tax, it assigns centre’s share to centre. If that proceed is deposited in Consolidated Fund of India or State, then, every time there will be a need to pass an appropriation tax. Thus, under GST, the apportionment of the tax revenue will take place outside the Consolidated Funds.

Article 279A

This Article provides for Constitution of a GST Council by President within sixty days from this act coming into force.

The GST Council will constitute the following members,

• Union Finance Minister as Chairman of the council
• Union Minister of State in charge of Revenue or Finance
• One nominated member from each State who is in charge of Finance or Taxation.

PART XIII

Article (301 to 307)

Trade, Commerce and Intercourse within the Territory of India

This part talks about freedom of Trade, Commerce and Intercourse throughout the territory of India. It also mentions the power of the Parliament to impose restrictions and also the power of States to do the same. Article 307 appoints an authority for carrying out Trade and Commerce for the purposes of Article 301 to 304. Article 306 was repealed by the Constitution (Seventh Amendment) Act 1956.

PART XIV

Article (308 to 323)

Services under the Union and the States

Article 308 to 314 details the Union Public Service Commission and its appointments, tenures, dismissals and reduction in ranks. Articles 315 to 323 detail the State Public Service Commission and its functions, appointments, tenures, dismissals, and reduction in ranks.

PART XIV-A

Article (323A and 323B)

Tribunals

This part deals with administrative tribunals, their composition, working, jurisdiction, procedures, powers and exceptions exercised by Tribunals in different States. It was introduced to hear disputes and complaints regarding the Union, States or Local Government employees in the year 1976 by the 42nd Amendment.

PART XV

Article (324 to 329A)

Elections
This part deals with the conduct of Elections and the Election Commission. It gives the right of Superintendence, Direction and Control of Elections to be vested in the Election Commission. Three Election Commissioners are to be appointed with one of them as the Chief Election Commissioner who will be responsible for the conduct of Elections. Article 329A was repealed by the Constitution 44th Amendment Act 1978.

PART XVI

Article (330 to 342)

Special Provisions relating to Certain Classes

This part deals with certain provisions for Schedule Castes, Schedule Tribes and Anglo-Indian representation. Article 330 and 332 reserve seats for Schedule Castes and Schedule Tribes in the house of people and Legislative Assemblies respectively while Article 331 and 333 reserve them for Anglo-Indian community. Article 338 details the establishment of a national commission of a Schedule Caste while Article 339 to 342 lay procedures to investigate the conditions of Backward Classes.

PART XVII

Article (343 to 351)

Official Language

Article 343 of this part says that the Official Language of the Union shall be Hindi in Devnagri script. Article 344 provides for a commission and a committee of Parliament on Official Language. Article 345 to 347 describes the roles of regional languages while Articles 348 to 351 lay down Languages to be used in Supreme Court, High Court, in Acts and Bills. These Articles also contain some directives of development for Hindi and other languages.

PART XVIII

Article (352 to 360)

Emergency Provisions

The provisions of Emergency have been borrowed from the German Constitution. Article 352 describes the procedure and other details of procurement of Emergency while Article 353 describes the effect of Emergency. Article 354 to 359 detail the application, the duties, provisions and the exercise of the legislative powers during Emergency. Article 360 provides provisions for a Financial Emergency.

PART XIX

Article (361 to 367)

Miscellaneous

Article 361 provides for the protection of the President and other Legislators. Article 362 which was repealed by the Constitution (Twenty Sixth Amendment) Act 1971 had rights and privileges of rulers of Indian States. Similarly Article 363A abolishes any recognition granted to rulers and cessation of their privy purses. Article 366 gives some common definitions of words used in the Constitution.

PART XX

Article (368)

Amendment of the Constitution

One of the most important Articles of the Constitution provides the power to the Parliament to amend the Constitution and procedure thereof. Here we must take into consideration the famous case of Kesavananda Bharati v/s State of Kerala in which the Supreme Court stated that the basic structure of Constitution cannot be amended.

PART XXI

Article (369 to 392)

Temporary, Transitional and Special Provisions

Article 369 gives temporary power to the Parliament to make laws with respect to certain matters in the state list and concurrent list. The much debated and controversial Article 370 gives special but temporary status to provisions with respect to the state of Jammu and Kashmir. This Article does not permit the state to make matters given in the State list. The Article also gives special powers to the State Legislature.

Article 371 and 371A gives special privileges and provisions to the state of Gujarat, Maharashtra and Nagaland respectively. Article 371B for Assam, 371C for Manipur, 371D and E for Andhra Pradesh, 371F for Sikkim, 371G for Mizoram, 371H for Arunachal Pradesh and 371I for Goa.

PART XXII

Article (393 to 395)

Short Title, Commencement, Authoritative Text in Hindi and Repeals

The Constitution in its “short title” form may be called the Constitution of India. Article 394 says that the Constitution shall come into force on 26th January 1950. Article 394A talks of authoritative text in Hindi language. Article 395 repeals the Indian Independence Act 1947 and the Government of India Act 1935 together with all enactments supporting the same.

Conclusion

I have tried to give a concise analysis of all parts contained in the Constitution and what aspects they deal with. The Indian Constitution is a comprehensive draft of framework a sovereign country needs to administer and run with. Though it is 67 years old it still supports and gives a great foundation for any modern laws the Parliament wants to enact with upcoming challenges.