In this article, Ashwini Gehlot of Institute of Law, Nirma University Ahmedabad discusses Liquor laws – Production & distribution, Consumption and Import & Export.

Production And Distribution

• India is one of the greatest producers of liquor around the world and adds to 65% of manufacturing and about 7% of imports into the territory. The exact gauge of unrecorded liquor production is not clearly known.
• It is evaluated that the quantity of liquor manufactured in India in 2006 – 07 may have been roughly 4 million liters. The mass liquor manufactured in India is predominantly from sugarcane molasses. Around 52% of liquor produced in India is for the consumable reason.
• Among the prevalent liquor products, country liquor and Indian-made foreign alcohol represent about 60 to 70% of the aggregate beverage liquor consumed. The conventional home-prepared beverages represent an expansive degree of unrecorded consumption.
• Liquor sale and production and distribution are basically a state subject in India. Because of a few impediments in the current excise policies, a considerable lot of the Indian states produce liquor far in abundance of the stipulated quantity.
• The production, sale, and distribution pursue a complicated duty structure differing from state to state. The tax assessment on imported liquor additionally varies between 100% and 500%.
• The liquor industry contributed an expected 216 billion in the year 2003 – 04 to the State exchequer and constituted about 90% of the State excise obligations. This income era is one of the essential sources of income for the government.
• The consumption level of liquor is not directly connected with the taxation policies because the government only increases the tax to generate more revenue.
• The policies which are promoted till date have been basically with a view to expanding taxes to generate more revenue and not from a public health perspective. Actually, the importance of public’s’ health has been totally ignored while making the policies and programes.

State-wise Alcohol Consumption

State-wise alcohol consumption per capita per week (in ml) as of 2011-12.

A Look At The Different States And Their Liquor Policy, The Amount Of Spirit One Can Stock At Home

Delhi

As per Delhi excise rules, no person can stock more than 18 liters of liquor, wine, cider, alcopop and beer and 9 liters of Indian and foreign alcohol (rum, whiskey, vodka, gin) at home or for parties. Those making a trip from another state to the capital can’t carry more than a liter of any type of alcohol and those coming from abroad can bring just 2 liters of foreign alcohol with them.

Madhya Pradesh

The Madhya Pradesh government’s decision to permit those with a yearly income of over Rs 10 lakh to stock as many as 100 bottles of costly alcohol in their homes, for a yearly fee of Rs 10,000, has turned the focus on a little-known part of drinking laws in the nation.

Punjab

The state enables family units to stock 2 bottles of IMFL (Indian Made Foreign Liquor); 2 bottles of imported alcohol of any size (1 litre or 5 liters); 1 case of beer (650 ml for each bottle); 2 bottles of the nation made alcohol and of brandy. Those hoping to stock more can get an L-50 license (yearly expense of Rs 1,000 and lifetime charge of Rs 10,000).

Assam

Till 1976, alcohol must be purchased in this north-eastern state through a remedy from a registered medical specialist, but the law was revised/amended in 1976. The state now permits its inhabitants 12 IMFL bottles of “reputed” liquor, each of a greatest 750 ml. There are no arrangements for stocking more.

Haryana

It enables people to stock 6 bottles (750 ml each) of country alcohol; 18 bottles (750 ml) of IMFL alcohol, of which 6 bottles can be of Imported Foreign Liquor; 6 bottles (750 ml) of rum; 12 bottles (650 ml) of beer ; 6 bottles (750 ml) of gin/cider/vodka and 12 bottles of wine. For those who are still not content or satisfied, the state permits more private ownership through an L-50 form, that can be purchased for Rs 200 (for a year) and Rs 2,000 (lifetime charge).

Rajasthan

The state permits residents 9 liters of IMFL or 12 bottles of IMFL. There are, also, arrangements for people hoping to hold parties. For residential parties, licenses can be purchased for Rs 2,000 and also be adding some taxes while for business ones, the rate has been set at Rs 10,000 plus taxes.

Goa

The daylight state permits 24 bottles of beer; 12 containers of IMFL alcohol; 6 bottles of rectified spirit and denatured spirit at home; 18 bottles of country alcohol. Goa, however, has strict punishment for violators. According to its excise Act, the punishment which is there are imprisonment (rigorous) which may reach out to 7 years, with or without fine (least punishment not to be less than 6 months).

Himachal Pradesh

48 bottles of beer and 36 of whiskey per individual. For much else, the L-50 permit is appropriate. The hill state also offers some concessions under a special permit called 50-A.

Uttar Pradesh

“The limit is 1.5 liters country-made alcohol, 1.5 liters IMFL and 4 bottles of beer. In the event that anybody is found storing alcohol above this limit, he or she will be liable for lawful action.”

Alcohol Ban On States

Gujarat

Gujarat is proclaimed “dry” by the government. It has a law called Bombay Prohibition (Gujarat Amendment) Bill, 2009 that disallows the sale, production, and consumption of liquor inside the state boundaries.

Bihar

Liquor has been prohibited in Bihar from April 1, 2016. Under Bihar Excise (Amendment) Bill 2016 Section 19(4). All sort of alcohol has been restricted in the state. Sale of a liquor in bars, hotels, clubs and some other place has been unlawful.

Kerala

It was decided in 2014, that state claimed Kerala State Beverages Corporation (Bevco) has 338 shops, and Bevco will close down 10% of them consistently. Consumerfed, which has 46 shops, will likewise be shut. Be that as it may, the sale of liquor will continue to be allowed in 5-star inns, and there were fourteen 5-star inns in the state as of August 2014.Toddy will likewise keep on being legitimately sold, and toddy shops will be allowed to work as before.

Lakshadweep

Lakshadweep totally bans the consumption and sale of liquor. Bombay Prohibition (Gujarat Amendment) Bill, 2009. Consumption is allowed just on the island of Bangaram.

Manipur

A restriction was upheld statewide with impact from 1 April 1991 however in 2002, the government lifted prohibition in the 5 hill district of Manipur.The state Legislative Assembly passed the Manipur Liquor Prohibition (Amendment) Bill, 2002 lifting restriction in the specific regions. And in July 2014, it was expressed in the Manipur state assembly that the state government was taking a gander at the alternative of lifting prohibition in the state.

Nagaland

Nagaland is another north eastern state to a put ban on liquor. The Nagaland Liquor Prohibition Act was instituted in 1989 to put a restriction on the consumption and sale of liquor. Regardless of the prohibition on Zutho and IMFL, a mainstream local drink is to a great extent accessible over the state. Police Authorities know about this illicit sale however they are inactive in making any stride against it.

Liquor Consuming Age In India In Different States

State in which liquor consuming age is 21

1. Chhattisgarh (The Chhattisgarh Excise Act, 1915 Section 23)
2. Arunachal Pradesh (The Arunachal Pradesh Excise Act, 1993 section 42)
3. Andhra Pradesh {The Andhra Pradesh (regulation of Wholesale Trade and Distribution and Retail Trade in Indian Liquor, Foreign Liquor, Wine and Beer) Act, 1993}
4. Assam (Rule 241 and 5.10 of the Assam Excise Rule 1945)
5. Goa (The Goa Excise Duty Act and Rules, 1964 Section 19)
6. Dadra and Nagar Haveli (THE DADRA AND NAGAR HAVELI EXCISE REGULATION, 2012 Section 24)
7. Jammu and Kashmir (Jammu and Kashmir Excise Act, 1958 SECTION- 50 B Jammu and Kashmir Liquor License and Sales Rules, 1984 RULE 11)
8. Daman and Diu (The Goa, Daman and Diu Excise Duty Act & Rules 1964 section 19)
9. Madhya Pradesh (The Madhya Pradesh Excise Act, 1915– SECTION 23)
10. Orissa (THE ODISHA EXCISE ACT, 2005 SECTION 61)
11. Jharkhand (The Bihar & Orissa Excise Act, 1915 Section 54)
12. Tamil Nadu {Tamil Nadu Liquor (License and Permit) Rules, 1981 Section 25 rule XV}
13. Karnataka (Karnataka Excise Department, 1967)
14. Uttrakhand {United Provinces Excise Act, 1910 The Uttaranchal (The Uttar Pradesh Excise Act, 1910) Section 2}
15. Tripura (THE TRIPURA EXCISE ACT, 1987 SECTION 53)
16. Telangana (Andhra Pradesh Excise Act 1968- SECTION 36)
17. West Bengal (Bengal Excise Act 1909 SECTION 51)
18. Uttar Pradesh (United Provinces Excise Act, 1910 Section 2)

States in which liquor consuming age is 18

1. Andaman Nicobar islands (Andaman and Nicobar Islands Excise Regulation, 2012 Section 24 Excise Policy RULE 14)
2. Kerala (Abkary Act, (1 OF 1077) Section- 15A & 15B)
3. Himachal Pradesh (THE HIMACHAL PRADESH LIQUOR LICENSE RULES, 1986 RULE- 16)
4. Pondicherry (The Pondicherry Excise Act, 1970 Section 35)
5. Mizoram {Mizoram Liquor (Prohibition and Control) Bill 2014 Section 58}
6. Sikkim {THE SIKKIM HOME GUARDS BILL, 1992 ( BILL NO. 1 OF 1992 ) SECTION 20}
7. Rajasthan (Rajasthan Excise Act 1950, SECTION 22)

States in which liquor consuming age is 25

1. Chandigarh (Punjab Excise Act, 1915 Section 23)
2. Haryana (Punjab Excise Act,1914– SECTION 29)
3. Delhi (Delhi Excise Act, 2010 Section 23 Delhi Liquor License Rules, 1976)
4. Punjab (Punjab Excise Act,1914– SECTION 29)
5. Meghalaya (EASTERN BENGAL AND ASSAM ACT, 1910)

Dry Days In India

Most Indian states and Union Territories have Dry Days – days when the sale of liquor is restricted. Consumption of liquor out in the public eateries and restaurants is banned while individuals can drink in their homes. Independence Day (August 15), Republic Day (January 26), and Gandhi Jayanti (October 2) are usually observed Dry Days in all over the nation. Aside from these, significant celebration days (festival) of the state are normally Dry Days. Various states likewise observe regular Dry Days, for example, the 1st day of the month and so forth. The days going before or following the state/national election are likewise normally Dry Days.

Liquor License

General Procedure Of Getting A License

Part 1 – Understanding What Type of License You Need

Know your state’s liquor laws.

The main thing to know about is that each state has its own principles and prerequisites with respect to the issuance of alcohol licenses, so you should contact a local authority to get some knowledge about concerning liquor laws and the sale of licenses in your particular state.

• Every state has an Alcoholic Beverage Control (ABC) organization that directs the distribution and sale of alcohol, so you can also contact your local ABC agency for more information.
• A few states have license quotas with respect to the number of places that can sell liquor inside the state, at any given point in time. Towns may likewise have quotas in place. It is critical to know whether there are any accessible licenses for your state and town – if there aren’t, you may experience issues getting a license.

Figure out if you need an on-license or an off-license.

There are two types of alcohol license required by premises that offer liquor.

• You will require an on-license if the alcohol you offer is proposed to be consumed on the premises. Businesses that would require an on-permit are taverns, bars, and restaurants.
• You will require an off-permit if the alcohol you offer is expected to be consumed off the premises. Businesses that would require an off-license are drug stores, alcohol stores, and grocery stores.

Figure out the specific class of license you need.

In a few states, you have to apply for a specific class of license, contingent upon the nature of your business and the assortment of alcohols you expect to offer. Examples of common license classes comprise:

• Tavern license: it might be required in some states by organizations/businesses that serve food, but earn up to half of their overall benefits through the sale of liquor.
• Beer and wine: Some smaller restaurants and bars may only be allowed a license to offer “delicate” (soft) alcohols like wine and beer. This license does not give permission to the owner to sell “hard” alcohols, similar to spirits.
• Restaurant: Restaurant licenses commonly enable any sort of liquor to be sold on the premises. However, the permit may stipulate that exclusive a specific rate of the restaurant’s aggregate income may originate from the sale of liquor. This rate is normally in the region of 40%.

Part 2- Navigating the Application Process

Start as early as possible

 In the event that you anticipate opening a restaurant or bar that serves liquor, it’s essential that you start the way toward acquiring your alcohol permit as ahead of schedule as would be prudent.

Consider the cost.

The cost of getting your alcohol license can shift incredibly. In some cases you will just need to pay a couple of hundred dollars to cover the application fee and taxes.

• Sadly, because of the license quota that exist in numerous towns and cities, you might be required to purchase a license from an restaurant,existing bar or alcohol store. At the point when this happens, the cost of your acquiring your permit could rocket into the a huge number of dollars range.

Write a clear outline of the type of business you will be running.

As mentioned in Part 1 above, there are normally different licenses for various sorts of organizations – for instance, opening a alcohol store will require a different kind of license than running a local bar.

• Subsequently, as a major aspect of your application, you should compose a clear portrayal of the sort of business you will be running. You ought to incorporate information on whether you mean to offer liquor for consumption on the premises and on the rate of your aggregate income you hope to originate from the sale of liquor.
• You ought to incorporate information on what sort of liquor you will be serving or offering. This is vital as a few sorts of liquor require a different license in comparison to others.

Fill in the necessary forms and provide any required documentation.

You can gain the essential forms from your ABC agency or local council and Trade Bureau and The Alcohol and Tobacco. In a few states, you have to submit an application to both the state and your local town or district.

• The application will incorporate insights about your business and your personal background. And other details, for example, your business experience, your age and having a clean personal record may influence the state’s decision to concede you a license.
• You will also need to incorporate various vital documents with your application, which may include: a partnership agreement, a certificate of incorporation, a duplicate of your proposed food menu, company constitution, floor plan of the interior and photographs or drawings of the building’s exterior, a code compliance certificate and a duplicate of the declaration of title for the premises.

Be prepared to defend your proposal.

After you present your application, a notice will be posted in the proposed area of your business, including your name, the sort of permit you are applying for and what selling privileges the proposed permit would entitle you to.

• This notice must be publicly shown for a particular time period (which fluctuates by state). Amid this time, anybody from the local community can approach and challenge your application.
• Contingent upon the state or city laws, you may be required to post an announcement of your alcohol license application in the local newspaper, and in some other places also which are connected with local neighborhood associations, for example, place of worship, schools, and nearby parks.
• In the event that there are no objections to your application, local government will continue with assessing your application as normal. On the off chance that there are complaints, you might be called forward to defend your proposition at an open hearing, before an official decision is made.

Part 3- Maintaining your liquor license

Renew your liquor license yearly.

You should renew your alcohol license on a yearly premise, which will include paying a renewal fee.

• Remember that in case, you remain on favorable terms with your local agency consistently, you might be qualified for a decreased fee.

Be aware that your license can be revoked.

You should have the knowledge of the fact that your license can be revoked in the event that you violate the terms set by your local agency.

• Basic infringement incorporates over serving liquor beverages to patrons, selling alcohol to a minor and enabling a worker to be intoxicated on the premises.

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References

• Edayaranmula, J. (2014). Alcohol In India: Production And Distribution. [Blog] IOGT International. Available at: http://iogt.org/blog/2014/03/17/alcohol-in-india-production-and-distribution/ [Accessed 14 Jul. 2017].
• My India. (2015). Alcohol Consumption in India. [online] Available at: http://www.mapsofindia.com/my-india/india/alcohol-consumption-in-india [Accessed 14 Jul. 2017].
• The Indian Express. (2016). In high spirits: India’s drinking laws. [online] Available at: http://indianexpress.com/article/india/india-news-india/in-high-spirits-indias-drinking-laws/ [Accessed 14 Jul. 2017].
• kumar, v. (2012). Party spoiler! Stocking up booze can make you poorer by Rs 1 lakh and even land you in jail. [online] indiatoday. Available at: http://indiatoday.intoday.in/story/party-spolier-delhiites-stocking-up-on-booze-jail-india-today/1/234608.html [Accessed 14 Jul. 2017].
• (2016). 6 States in India where Alcohol is Banned. [online] Available at: https://www.expertily.com/blog/6-states-to-ban-alcohol-India [Accessed 14 Jul. 2017].
• Vohra, B. (2016). ALCOHOL LAWS IN INDIA. [Blog] lawfarm. Available at: https://lawfarm.in/blogs/alcohol-laws-in-india [Accessed 14 Jul. 2017].
• (2017). How to Get a Liquor License. [online] Available at: http://www.wikihow.com/Get-a-Liquor-License [Accessed 14 Jul. 2017].

In this article, Ashwini Gehlot of Institute of Law, Nirma University Ahmedabad discusses Safe Harbour Regulations (2017) In India.

Background

To control the expanding numbers of transfer pricing audits and prolonged disputes, the CBDT (Central Board of Direct Taxes) published the Safe Harbour Rules (SHRs) in September 2013. But the safe harbour rules didn’t get many responses from the taxpayer because of the high margin and vagueness in the classification of services. And now CBDT has recently issued a notification on 7 June 2017, revising the already established safe harbouring rules in India.

Safe Harbour – The concept

Section 92CB of The Finance (No. 2) Act 2009 defines the term Safe Harbour as “circumstances under which the income-tax authorities shall accept the transfer pricing declared by the assessee.”^[1]

Safe harbours provide for conditions in which a specific category of taxpayers can follow a straightforward arrangement of rules under which transfer prices are mechanical, accepted by the revenue authorities. Safe harbour provisions offer necessary advantages to taxpayers and tax administrators with benefits of administrative simplicity, compliance relief, and certainty.

Benefits for taxpayers and the revenue authorities by the adoption of safe harbour rules, like^[2]

• Advance information or information about the range of profits or prices to meet all the requirements for the safe. This brings certainty in transactions.
• Removal of the likelihood of litigation between the revenue authorities and the taxpayers.
• Self-assessment procedures and Automatic approvals.
• Ease of compliance.
• The decrease in compliance cost harbour.

The above-mentioned advantages enable the taxpayers and its partners for better planning of intra-group transactions.

Alongside the advantages, certain difficulties will be confronted by the taxpayers as well the income tax authorities like^[3]

• Characterising the qualification for safe harbour.
• Computation of operating benefits and its adequacy to Income Tax Authorities.
• Approval process and subjectivity in approvals.
• Administrative implementation of the provisions.

Benefits for taxpayers and the revenue authorities by the adoption of safe harbour rules, like^[4]

The earlier SHRs were applicable from AY(assessment year) 2013-14 till 4 consecutive years following this AY i.e. till 2017-18 and the new SHRs are applicable from AY 2017-18 up to 2 consecutive years i.e 2019-20. And for the AY 2017-18, taxpayer have the choice to choose the rules from old or new rules, whichever is more profitable or beneficial for them.

Key Highlights^[5]

Rationalisation Of Safe Harbour Rates

The safe harbour rates are now decreased for all the contract services, like-

• For IT (Information Technology) and ITeS ( IT-enabled services) previously it was 20-22% and now it is decreased to 17-18%.
• For KPO services (Knowledge Processing Outsourcing) it is brought down from 25% to 18%, 21% and 24% depending on the percentage of employee cost to operating cost.
• For R&D (Research and Development) service provider (for genetic pharmaceutical drugs and IT) is decreased from 29-30% to 24%.

Introduced Upper Turnover Threshold Of Rs. 200 Crore

This is introduced for all types of contract service providers as mentioned above like IT, ITeS and so on. For AY 2017-18 rules, the taxpayer has the discretion to choose between old and new rule. So, now even a taxpayer with pertinent international transaction surpassing Rs. 200 crore can according to old rules, opt for safe harbour.

Safe Harbour Introduced For Receipt Of Low Value Adding Intra-group Services

In the revised rule, the provision of the safe harbour is extended and now Indian entities can receive low value adding intra-group services. And in this matter the SHRs are mostly in line with the guidelines issued by OECD under BEPS (Base Erosion and Profit Shifting) action plan 8-10, in respect of low value adding intra-group services, there are some gaps. To be covered by SHRs, like such services should-

• Not be duplicate service or shareholder services or a part of multinational enterprise (MNE) group.
• Be services which do not have the reliable external comparable services used to determine their ALP (Arm’s Length Price) and should be in the nature of support services.
• Not required to use or create, unique and valuable intangibles.
• Not include the assumption or control or creation of significant risk by/for the service provider.

There is a list of 10 types of services which are excluded from the low value adding intra-group services, like BPO, KPO, IT etc.

The new rules of SHRs have set down the definition of an accountant and also set a requirement for the applicant to get the following aspects certified by the accountant.

• Procedure of cost pooling,
• The reasonableness of allocation keys used for allocation cost and
• Removal of duplicate costs and shareholder costs from cost pool.

Safe Harbour Rate For KPO Service

For the request of the unsteady safe harbour rate for the KPO services, which is dependent on the application of employee cost to operating cost ratio, the employee cost has been defined to add different items of employee benefit and compensation like gratitude, bonus, salary, prerequisite, commission, wages, expenses incurred on the contractual employment of a person who is performing similar skills like that of regular employee, payment received on termination of service, relocation, recruitment and training expenditure etc.

It also included outsourcing expenses, to the level of employee cost, whenever determinable it is set in the total outsourcing expenses and if not determinable then 80% of the total outsourcing expenses are considered as employee cost.

Safe Harbour Rates On Loan Advanced In Foreign Countries

This rate which is given by the revised SHRs is based on the LIBOR (London Inter-Bank Offer Rate) for loans provided to AEs denominated in foreign currency. This new rule has also given the staggered rates depending on the credit rating of the overseas borrower, and such credit rating should be approved by Credit Rating Information Services Of India Limited (CRISIL a global analytical company giving research, risk, policy advisory services and rating)

Definition Of Operating Cost And Operating Revenue

The revised SHRs amended the definition of operating expenses to include-

• Cost related to ESOP (Employee Stock Option Plan) given by associated enterprises (AE)
• Compensation to AE for expenses incurred by the AE on behalf of the taxpayer.
• Amount recovered from the AE which is related to normal operations of the taxpayer.

Safe Harbour Rates^[6]

A brief snapshot of the eligible transactions, circumstances for application of SHR 2017, threshold, and the safe harbor margins is provided below:

^[1] THE FINANCE (No. 2) BILL, 2009, NO. 33-F, Act of Parliament, 2009 (India), 92CB.

^[2] Malpani, M. (2017). An overview of Safe Harbour Rules in Indian Transfer Pricing Regime (April 2014) | Bizsolindia Services Pvt. Ltd.. [online] Bizsolindia.com. Available at: http://bizsolindia.com/an-overview-of-safe-harbour-rules-in-indian-transfer-pricing-regime-april-2014/ [Accessed 12 Jul. 2017].

^[3] Malpani, M. (2017). An overview of Safe Harbour Rules in Indian Transfer Pricing Regime (April 2014) | Bizsolindia Services Pvt. Ltd.. [online] Bizsolindia.com. Available at: http://bizsolindia.com/an-overview-of-safe-harbour-rules-in-indian-transfer-pricing-regime-april-2014/ [Accessed 12 Jul. 2017].

^[4] Anon, (2017). [online] Available at: http://www.in.kpmg.com/taxflashnews/KPMG-Flash-News-CBDT-notifies-revised-Safe-Harbour-Rules-2.pdf [Accessed 12 Jul. 2017].

^[5] ibid.

^[6] Anon, (2017). [online] Available at: http://www.in.kpmg.com/taxflashnews/KPMG-Flash-News-CBDT-notifies-revised-Safe-Harbour-Rules-2.pdf [Accessed 12 Jul. 2017].

In this article, Himanshi Srivastava of Amity Law School, Lucknow discusses the laws regarding blocking of website.

There are various laws which regulate the working of websites. These laws are meant to regulate the content of websites in order to maintain the peace and morality among the public. A wrong content of a website can mislead public, at large. The Information Technology Act, 2000 is the statute came to prevent the cyber crimes against public. There were lots of cases of cyber attack to the mass number of people, which made a need for the lawmakers to bring a separate law statute for the cyber crimes.

There are two laws which laid down the provision for blocking the Websites

1. Information Technology Act, 2000 (Section 69 A)
2. Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009

Information Technology Act, 2000

Section 69 A: Power to issue directions for blocking for public access of any information through any computer resource-

1. Where the Central Government or any of its officer specially authorised by it in this behalf is satisfied that it is necessary or expedient so to do, in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above, it may subject to the provisions of sub-section (2) for reasons to be recorded in writing, by order, direct any agency of the Government or intermediary to block for access by the public or cause to be blocked for access by the public any information generated, transmitted, received, stored or hosted in any computer resource.
2. The procedure and safeguards subject to which such blocking for access by the public may be carried out, shall be such as may be prescribed.
3. The intermediary who fails to comply with the direction issued under sub-section (1) shall be punished with an imprisonment for a term which may extend to seven years and shall also be liable to fine.^[1]

This Section can be read as:

The central government must have a designated officer “not below the rank of a Joint Secretary” for the aim of issuing direction for blocking under Section 69. Nodal officers receive complaints on behalf of central and state governments, and after assessment, forward these complaints to the designated officer. The grievance shall be examined by a Committee of government Personnel who initially have to build all affordable efforts to identify the originator or intermediary (hosting companies/ISPs/telecom operators/Social Media sites/publications) who has hosted the data. The intermediary will be asked to look before the committee within 48 hours. The committee will consider whether or not the request is covered by 69A, and if it is, the designated Officer must submit the recommendation to the Secretary, Department of IT, who will approve such requests, which will be sent to the intermediary to block.

In cases of emergency, the blocking might occur without any hearing, and therefore the designated Officer shall bring the interim direction to the committee.

A Review Committee shall meet a minimum of once in 2 months and record its findings on whether or not directions issued are in accordance with Section 69A(1)

Critical Analysis of Section 69 A

Section 69 of the IT Act provides the government the authority to intercept/monitor/decrypt data in special situations regarding with sovereignty, unity, friendly relations with foreign states,public disorder etc. Thus, this act places India in a category where it’s comparatively easy for a govt. to get access to data, unlike US that has high restrictions on data access . The recent spat in US between Apple and Federal Bureau of Investigation over user privacy vs security has some lessons for India .

Lessons for data protection standards

India presently has low data protection standards. This has serious security and economic consequences :

1. Low data protection standards compromises the privacy and security standards of the users,
2. This discourages companies like Apple, that are believed to ensure high data protection, to produce in Indian markets,
3. Also, this offers a legal opportunity to several Indian based mostly firms to produce lower security devices by lowering their prices. This creates a negative competitive atmosphere where the businesses that ensure ignore greater security face a drawback.
4. Low encryption standards for ISPs makes them a lot of vulnerable to cyber attacks,
   Thus, India needs to adopt high encryption standards.

Lessons for data access standards

Section 69 provides govternment the power to access data under certain conditions. This discourages investors, puts users security in danger and conjointly provides a chance to state to misuse the provision.
Thus, India has to achieve a balance in setting data standard furthermore as its use for interception if needed under special circumstances by amending the specific provisions under the IT Act and bringing a comprehensive encryption policy.

Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009

In exercise of the powers conferred by clause (z) of sub-section (2) of section 87, to be read with sub-section (2) of section 69A of the Information Technology Act 2000, the Central Government hereby makes the following rules:

Blocking of information in cases of emergency

1. Notwithstanding anything contained in rules 7 and 8, the Designated Officer, in any case of emergency nature, for which no delay is acceptable, shall examine the request and printed sample information and consider whether the request is within the scope of sub-section (1) of section 69A of the Act and it is necessary or expedient and justifiable to block such information or part thereof and submit the request with specific recommendations in writing to Secretary, Department of Information Technology.
2. In a case of emergency nature, the Secretary, Department of Information Technology may, if he is satisfied that it is necessary or expedient and justifiable for blocking for public access of any information or part thereof through any computer resource and after recording reasons in writing, as an interim measure issue such directions as he may consider necessary to such identified or identifiable persons or intermediary in control of such computer resource hosting such information or part thereof without giving him an opportunity of hearing.
3. The Designated Officer, at the earliest but not later than 48 hours of issue of direction under sub-rule (2), shall bring the request before the committee referred to in rule 7 for its consideration and recommendation.
4. On receipt of recommendations of committee, Secretary, Department of Information Technology, shall pass the final order as regard to approval of such request and in case the request for blocking is not approved by the Secretary, Department of Information Technology in his final order, the interim direction issued under sub-rule (2) shall be revoked and the person or intermediary in control of such information shall be accordingly directed to unblock the information for public access.

Process of order of court for blocking of information

In case of an order from a competent court in India for blocking of any information or part thereof generated, transmitted, received, stored or hosted in a computer resource, the Designated Officer shall, immediately on receipt of certified copy of the court order, submit it to the Secretary, Department of Information Technology and initiate action as directed by the court.

Expeditious disposal of request

The request received from the Nodal Officer shall be decided expeditiously which in no case shall be more than seven working days from the date of receipt of the request.

Action for non-compliance of direction by an intermediary

In case the intermediary fails to comply with the direction issued to him under rule 9, the Designated Officer shall, with the prior approval of the Secretary, Department of Information Technology, initiate appropriate action as may be required to comply with the provisions of sub-section (3) of section 69A of the Act.

Intermediary to designate one person to receive and handle directions

1. Every intermediary shall designate at least one person to receive and handle the directions for blocking of access by the public any information generated, transmitted, received, stored or hosted in any computer resource under these rules.
2. The designated person of the Intermediary shall acknowledge receipt of the directions to the Designated Officer within two hours on receipt of the direction through acknowledgement letter or fax or e-mail signed with electronic signature.^[2]

Is Section 69 A of IT Act unconstitutional?

In Shreya Singhal vs Union of India^[3] case , Supreme court while declaring Section 66A of IT Act had kept 69A which deals with blocking the content of websites if their content harms the security and integrity of India, public order and friendly relation with other countries. However Supreme Court gave 3 guidelines to restrict the misuse of this section: The central government can resort to this section if it is fully satisfied that it is necessary to do; can be done only in cases set out in Article 19(2) of constitution; these reasons should be recorded in writing so that can be assailed in writ petition.

It is not unconstitutional, because it may be used in cases prescribed in constitution, it provided a lot of freedom to centre to misuse the provision and thereby against the spirit of freedom of expression included in constitution. The misuse arises from overall non-transparent nature to choose the character of content of a website. Procedure for approval is provided in the act itself involving senior official from ministry of law and justice, home affairs, information and broadcasting and Computer Emergency response Team of India. But the procedure can be bypassed in case of emergency. These emergency situations are not defined by the act.

Rather than clear reasons, government is more inclined to use broad terms like national security. In the face of these terms it can restrict the honest criticisms posted on a site against and disagreement with government and its policies. The cases of banning books in the name of harming culture can be used against the sites also. Also it did not opportunity to the originator to put her point or withdraw the content from website. Content on one page can be used to block the full site.

The growing use of internet for dissemination of information is a potential tool to spread information which have potential to damage the nation. But options to restrict these contents should be used in genuine cases and with proper procedure followed. Restricting criticism and research should not be part of project. Section 69A though not unconstitutional but can be arbitrarily used.The necessity is to provide transparency by putting info regarding blocking and therefore the reason for blocking in clear terms in public space in order that can be scrutinized by civil society and therefore the originator of content for further action.

Conclusion

Section 69A of the IT Act deals with the blocking of internet sites which might cause problems of national sovereignty unity and integrity. India being a rustic with non secular, cultural, ethnic, linguistic, social diversities there might be problems of each internal and external threats which will disrupt the prevailing peaceful and harmonious setup of the country. thus in the interest of the national sovereignty and integrity there’s a necessity to keep up laws like Section 69A of IT act and in no manner that’s unconstitutional.

The incidents of propagating hate speech, promoting communal dissonance, raising rumours etc are being done by anti social elements and from time to time by some sections within society for partisan gains. it is the duty of the state to protect the government to guard the people societies against such acts as they might create violence, insecurity. further with the exaggerated usage of social media the chance of such incidents has raised. terrorism is one in all major threats to the country and world nowadays and banning such websites that promote it is a must for the peace. different areas of potential threat to society are communalism and regionalism, child pornography, Naxalism etc and promotion of them through websites etc is prohibited in the interest of the state and law like Section 69A could be a need for promoting peace, diversity, integrity and holistic development of the country.

Reference:

 http://www.insightsonindia.com/

  https://www.medianama.com/2015/03/223-section-69-it-act-india/

  https://cis-india.org/

^[1] https://indiankanoon.org/doc/10190353/

^[2] http://www.itlaw.in/bareact/it-rules-2009-blocking-of-websites/

^[3] AIR 2015 SC 1523

In this article, Shweta Kumari of Lloyd Law College discusses how to register cooperative societies in Delhi.

The article will cover the following points –

1. REQUIREMENT AND PROCEDURES
2. CONDITION OF ENROLLMENT OF MEMBER
3. ROLE OF REGISTRAR
4. KINDS OF SOCIETIES COULD BE REGISTER UNDER REGISTRAR COOPERATIVE SOCIETIES
5. TIME SCHEDULE OF REGISTRAR COOPERATIVE SOCIETIES
6. METHOD OF DEALING WITH THE COMPLAINTS
7. NGO-SOCIETY FORMATION
8. DOCUMENTS REQUIRED FOR THE STATE LEVEL
9. DOCUMENTS REQUIRED FOR ALL INDIA LEVEL
10. HOW A CLASS CONFLICT IN A NOIDA HOUSING SOCIETY ASSUMED COMMUNAL TONES
11. GOVERNMENT HOUSING
12. SOME HOUSING FACILITIES

INTRODUCTION

The registrar cooperative societies, appointed by the  Lt .governor, Delhi under Delhi cooperative societies act 2003, heads the cooperative department and plays a pivotal role in monitoring the functioning of cooperative societies registered under the act. The LT. Governor also appoints other persons to assist the registrar and has designated them as joint registrar, deputy registrar, assistant registrar and other ministerial staff. The office of the registrar is working on eight-section pattern and has eight sections headed by assistant registrar level officers. Each section handles the matters of various cooperative societies on the basis of their registered office located in that particular section. All issues concerning in particular society are examined at the section level only. [1]

REQUIREMENTS AND PROCEDURES FOR THE REGISTRATION OF NEW SOCIETY

The application or proposal for registration of society should come from promoter members who belong to different families but are residents of Delhi only. The proposal should also mention the specific scheme indicating that the proposed society will be viable and will ensure promotion of economic interest of the member.

DOCUMENTATION AND PROCEDURES

The complete set of registration papers can be obtained from the office of the Delhi state co-operative union, 31, Netaji Subhash Marg on payment of prescribed fees. The applications along with schemes initially received from the chief promoters and are scrutinised by the Dept. To ensure:-

• The viability of a society.
• Its conformity with Delhi co-operative societies act and rules.

The required documents are as follows:-

• Model by laws ( 4 copies )
• Enquiry Performa
• List of promoter members.
• Copy of promotional meeting resolution resolving name of the society, value of share money, admission fees, liabilities, total number of members of managing committee, annual submission fees, etc.[2]

MAIN CONDITIONS OF ENROLMENT OF A MEMBER IN A CO-OPERATIVE SOCIETY

A resident of Delhi can become member of the society if he or she fulfils the conditions laid down in registered by laws of different types of societies. The person can become member on an industrial or transport society if he or she is actually engaged in their respective field and he or she should not be member of other society of similar activities. But in case of housing societies, an applicant for membership should not have any flat in their name or in the name of any dependent member of their family and should also be resident of Delhi for minimum period of 3 years on the date of application.

ROLE OF REGISTRAR

From the registration of co-operative societies till the cancellation of its registration, the registrar acts as a friend philosopher and guide to the co-operatives registrar order to ensure that the co-operative societies function in accordance with the provisions of Delhi co-operative act, rules, bye- laws, and govt policies. The main functions of registrar are as under:-

• Registration of co-operative societies.
• Amendments to the bye –laws of co-operative societies.
• Amalgamation, division and re-organisation of co-operative societies.
• Conduction election of managing committee in primary co-operative banks and federal co-operative societies.
• Regulation of investment of funds by co-operative societies as per act $ rules.
• To conduct audit and inspection, handle enquiries and fix surcharge on negligent functionaries of co-operative societies.
• To settle disputes of co-operative societies through the process of arbitration.
• Function as an appellant court.
• Enforcement of orders, awards and decrees of various courts.
• Winding up and cancellation of registration of non functional societies.
• To operate co-operative education fund for training, education and carry out publicity program to strengthen co-operative movement in the N.C.T of Delhi.
• To frame Delhi co-operative societies rules, 1973 from time to time.
• To issue directive for the promotion of business of different categories of co-operatives.
• To verify membership in housing co-operative for allotment of plots.
• To frames, execute and monitor various welfare schemes approved by the central govt including financial assistance to various sectors co-operatives.[3]

KIND OF SOCIETIES COULD BE REGISTER  UNDER REGISTRAR COOPERATIVE SOCIETIES

• Thrift and credit co-operative societies.
• Urban co-operative banks
• Industrial co-operative societies.
• Labour and construction cooperative societies
• Motor transport cooperative societies
• Consumer cooperative societies
• Marketing cooperative societies
• Co-operative federations
• Group housing societies.
• Security service cooperative societies
• Cooperative societies formed by professionals in the areas like IT, education art $ culture, insurance, women empowerment etc.

TIME SCHEDULE OF REGISTRAR COOPERATIVE SOCIETIES TO APPROVE THE NEW COOPERATIVE SOCIETIES

The time schedule for disposed of various applications received from societies are detailed below:-

1. Approval of proposal for registration of a new co-operative society 30 days.
2. Amendment in bye laws 60 days.
3. Maximum credit limit of the society 90 days
4. Approval of registration and enrolment of members in housing 60 days group housing society
5. Other ( miscellaneous) 60 days.[4]

METHOD OF DEALING WITH THE COMPLAINTS

When a complaint is received in the co-operative department, it is examined by the section concerned. If need be, the comments of the society concern official/non official is called for. After examination, if required, inspection u/s 54, enquiry u/s 55 or surcharge proceeding u/s 59 are ordered by the registrar. If the complaints fall in the purview u/s 60/61, the complaint is accordingly advised to file the arbitration case.[5]

NGO- SOCIETY FORMATION

A NGO or society in India can be registered either on state level or on all India level. Before registering the NGO or society you should know about the difference between both of them.

STATE LEVEL

To register the society or NGO at state level. You will have to provide the ID proof of seven members ( DL/copy of passport/ voter id ). You will have to provide two members ( president – treasurer secretary – treasurer ) from Delhi and another five member’s can be from any states. Two set of MOA of NGO or society.

DOCUMENTS REQUIRED FOR THE STATE LEVEL

• Id proof of seven members from the same state ( voter id/ driving licence/Adhaar card.
• One address proof of office premises.( Electricity bill/ water bill/house tax receipt)
• Name of the society/ NGO.
• Rest of the documents we will prepare.
• For any query please feel free to contact us.

ALL INDIA LEVEL

To register the society or NGO at all India level. you will have to provide the ID proof of nine member’s ( DL/ copy of passport/voter ID ). You will have to provide two members ( president- treasurer or secretary – treasurer ) from Delhi and another seven member’s from seven different states. Two set of MOA of NGO or society.[6]

HOW A CLASS CONFLICT IN A NOIDA HOUSING SOCIETY ASSUMED COMMUNAL TONES

The events at the NOIDA housing society called MAHAGUN MODERNE  started out as a class conflict protects over a domestic worker being allegedly locked up but has ended up with the same old Bangladeshi bogey. The society has now reportedly decided to ban Bangladeshi worker from entering the complex, and the slum cluster near sector 78 NOIDA where many of them live is also being demolished. It’s a safe way to end the entire matter for some of the self-righteous middle and upper-class people although the good news is that some residents are protecting. Of course, the Bangladeshi tag can be used to disenfranchise Indian Muslim who happens to be Bengali speaking. The maid who was locked up is reportedly from Cooch Behar,Westt Bengal, while those who will treat the domestic worker get away scot free.[7]

GOVERNMENT HOUSING

The directorate of estates is responsible for administration and management of the office buildings for various central government organisations as well as reside accommodation for the employees in the metropolitan cities of Delhi, Mumbai, Kolkata, Chennai and five other cities.

HOUSE ALLOTMENTS

The scheme of house to central government employees is aimed at providing assistance to the government employees to acquire house of their own.

General pool residential accommodation

HOLIDAY HOMES

Holiday homes are available for all the government employees throughout India. They can avail accommodation facilities at nominal charges while touring. Ordinarily, the booking of holiday is done on ‘first come first served’ basis. The allotting authority has a right to assign priority in booking in following order:-

• Holiday homes information
• Apply online

CENTRAL GOVERNMENT EMPLOYEES WELFARE HOUSING ORGANISATION (CGEWHO)

The central government employees welfare housing organisation ( CGEWHO) has been established to promote control and coordinate the development of houses at selected places across India on no profit no loss basis as a welfare employees.

The organisation maintains skeleton project teams at construction sites which look after day to day operations of the construction and development. The goal of the government is to provide quality welfare housing services to the employees.

• Rules $ regulations
• Projects/schemes under planning

FOLLOWING ARE SOME HOUSING FACILITIES

• House building advance

The scheme to central government employees is aimed at providing assistance to them to

Construct / acquire house/ flats of their own. The scheme was introduced in 1956 as a welfare measure. The ministry of urban development $ poverty alleviation acts as the nodal agency for the same.

• EAWAS- government accommodation management system (GAMS)

The EAWAS is a government to employee ( G-2-E) e-governance tool. It has been instrumental in creating a transparent, corruption free and efficient house allotment system. It helps maintain rules $ regulation in the system and generate more revenue.

• Housing maintenance (CPWD)

Residents of government accommodation in new Delhi can lodge their complaints related to civil, electrical and horticulture. CPWD service centre download data for the complaints lodged for their service centre. It also update the status of the complaints after they have been addressed.[8]

REFERENCES

[1]   Delhi.gov.in. department of registrar societies. government of NCT Delhi.[online] available at: http://www.delhi.gov.in/wps/wcm/connect/DOIT_RCS/rcs/home/ [ accessed 22 jul.2017].

[2]   Delhi.gov.in, 23 mar.2015.registrar of co-operative societies.[online] available at: http://delhi.gov.in/wps/wcm/connect/doit_rcs/RCS/Home/FAQ [ accessed 22 jul.2017].

[3]   Supra 2

[4]   Supra 3

 [5]  Supra 4

 [6]  Supra 5

 [7]   The economic times. 2017.maids in modern India: how a class conflict in a NOIDA housingsociety assumed communal tones. [online].available at: http://economictimes.indiatimes.com/news/politics-and-nation/maids-in-modern-india-how-a-class-conflict-in-a-noida-housing-society-assumed-communal-tones/articleshow/59715317.cm. [accessed 23 jul.2017].

[8]India.gov.in,  national portal of India.2013.[online] available at: https://india.gov.in/people-groups/community/government-employee/government-housing. [accessed 23 Jul.2017]

In this article, Shagun Bahl discusses the fundamental provisions of the Protection Of Children From Sexual Offences Act, (The POCSO Act, 2012). A short guide to The POCSO Act.

Sexual abuses on children are a big blot on society at large as it shook’s the human consciousness of the society and retard the normal healthy growth of children. It leads to grave physical and psychological effects on the body and mind of a child and dismantles the normal growth of a child. It does not leave only physical injuries on the body but also leaves an everlasting scar on the child’s mind at a very nascent age. POCSO ACT has been birthed out of the very need to enact a specific legislation to tackle with the increasing sexual abuse against children in form of abuses like rape, pornography, various forms of penetration and criminiliases acts of immodesty against children too.

Child Sex Abuse is considered as the most heinous crime which can be done to a child as the offender of these crimes knows that the forced sex which they are doing with the child is by leashing child’s vulnerability and trust and is exposing to child under grave trauma which is not just a physical attack on its body and private parts but also disturbing a child’s mind so blatantly that it can take a lifetime for the child to feel normal ever after that abuse.

What is Child Sexual Abuse?

World Health Organization (WHO) defines child sexual abuse as, ‘inappropriate sexual behavior with a child’ and ‘involving a child in sexual activity that he or she doesn’t fully comprehend, is unable to give informed consent to, or that violates the laws and social taboos of society.

In Short, following actions are considered as Child Sexual Abuse

(According to a report by WHO)

• Fondling a child’s genitals
• Making the child fondle the adult’s genitals
• Intercourse, incest, rape, sodomy, exhibitionism and sexual exploitation
• Inducement or coercion of child in unlawful activity.
• The exploitative use of child in prostitution or other unlawful sexual practices
• The exploitative use of children in pornographic performances and materials.

The effects of child sexual abuse can include:

• Depression
• Post traumatic stress disorder
• Anxiety
• low self esteem
• propensity to further victimization in adulthood
• physical injury to child
• Psychological trauma

Law before POCSO Act, 2012

Child sex abuse crimes before the enactment of POCSO Act were dealt under Indian Penal code. Child Sexual abuses were prosecuted under Indian Penal Code under following sections

• P.C (1860) – Sec 375 Rape
• P.C (1860) – Sec 354 Outraging the modesty of women
• P.C (1860) –  Sec 377 Unnatural Offences

 The I.P.C. was not adequate enough to protect the children and criminalize non- conventional sexual abuses which are different from above mentioned conventional crimes in form of child trafficking, pornography , sale of children.

There were several loopholes in the IPC which could not effectively protect the child due to various loopholes like:

• IPC 375 doesn’t protect male victims or anyone from sexual acts of penetration other than “traditional” peno-vaginal intercourse.
• IPC 354 lacks a statutory definition of “modesty”. It carries a weak penalty and is a compoundable offence. Further, it does not protect the “modesty” of a male child.
• In IPC 377, the term “unnatural offences” is not defined. It only applies to victims penetrated by their attacker’s sex act, and is not designed to criminalize sexual abuse of children.

The Protection of Children from Sexual Offenses Act, 2012

Reasons for Enactment of POCSO Act, 2012

The very inadequacy of Indian Penal Code and absence of any stringent legislation for effectively addressing and tackling heinous crimes such as sexual exploitation and sexual abuse of children birthed the commencement of  POCSO ACT as the very intention of Government establishments was to protect the children from offences of sexual assault, sexual harassment and pornography and to facilitate adequate legal machinery by establishing special courts for trial of such offences and matters incidental connected with child sexual abuse crimes. This was in due compliance of Article 15 of Constitution of India which mandates the states to protect the children of this nation and in lieu of United Nations Conventions on the Rights of the Child which prescribes the set of standards to be followed by state parties in securing the best interest of the child.

Commencement of POCSO ACT, 2012

The Protection of Children from Sexual Offences Act, 2012 received the President’s assent on 19th June 2012 and was notified in the Gazette of India on 20th June, 2012.

The preamble of POCSO Act emphasis that child protection legislation like POSCA is necessary for proper development of child so that his or her right to privacy and confidentiality will be protected and respected by every person by all means and through all stages of judicial process involving a child.

POCSO ACT makes it imperative that child protection is given paramount importance to ensure holistic development of child’s physical, emotional, intellectual and social faculties.

 POCSO ACT mandates the state parties to the Convention on the Rights of the Child are required to undertake all appropriate national, bilateral and multilateral measures to prevent –

• The inducement or coercion of a child to engage in any unlawful sexual activity;
• The exploitative use of children in prostitution or other unlawful sexual practices;
• The exploitative use of children in pornographic performances and materials;

Seven most important features of The POCSO Act, 2012

1. POCSO ACT defines a child as a person under the age of 18 year. It encompasses the biological age of the child and remains silent on the mental age considerations.
2. It recognizes all forms of penetration other than penile-vaginal penetration and criminalizes acts of immodesty against children too.
3. With respect to pornography, this act criminalizes even watching or collecting pornographic content involving children under Sec 15 of the Act and shall be punished with imprisonment of either description which may extend to three years or with fine or both.
4. This Act makes abetment of child sexual abuse an offense under Sec 17 of the act and is punishable under Section 18 of the act with imprisonment of any description provided for the offence, for a term which may extend to one half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence or with fine or with both.
5. It also provides for various procedural reforms under Sec 19-22 of the Chapter V under the Act making the tiring process of trial in India considerably easier for children. The procedural formalities of reporting the case to Special Juvenile Police has made it easier to report child sexual abuse cases in a prompt and hassle free manner.
6. Under Sec 20 of the act under chapter V makes it obligatory for media personnel’s and personnel employed by hotel or lodge or hospital or club or studio or photographic facilities, by whatever name called, irrespective of the number of persons employed therein, shall, on coming across any material or object which is sexually exploitative of the child including pornographic, sexually-related or making obscene representation of a child or children) through the use of any medium, shall provide such information to the Special Juvenile Police Unit, or to the local police so that such sex abuse offenders’ can be tracked down by police immediately.
7. However, This Act also has been criticized as its provisions seem to criminalize consensual sexual intercourse between two people below the age of 18 and take the personal liberty of adolescents to indulge in consensual sex and youngsters who indulge in sexual activities will be prone to further harassment from family members, police and society. This new legislation has reignited the debate over the validity of rationale behind age consent laws and the harmfulness of adolescent.

THE STATISTICS OVERVIEW BY SAVE THE CHILD ORGANISATION BIG PICTURE OF POCSO ACT ACROSS INDIA

As per the data collected by Save the Children, India it has shown that recently, the new child protection legislation like the Protection of Children Against Sexual Offences Act (2012) has given more teeth to fighting child rights violation.

The number of cases registered for child abuse raised from 8,904 in the year 2014 to 14,913 in the year 2015, under the POSCO Act. Sexual offences and kidnapping  account for 81% of the crimes against the minor as preventive measures designed to ward off strangers (installing CCTV cameras and providing self-defense training) will be ineffective, as children do not know how to ward off unwanted sexual advances from their known relatives, acquaintances or workplace seniors they trust.

POSCO – State wise cases –

• Uttar Pradesh led the highest number of child abuse cases (3,078)
• Madhya Pradesh (1,687 cases)
• Tamil Nadu (1,544 cases)
• Karnataka (1,480 cases)
• Gujarat(1,416cases).

REVIEW OF POCS0 2012

POST ANALYSIS of POCSO ACT,2012 byhttp://www.satyamevjayate.in/child-sexual-abuse/reviewing-pocso.aspx  has concluded in its review that most states have not yet notified special courts or appointed special public prosecutors. Cases of offences against children are therefore still being brought before regular criminal courts, thus denying children their right to a child-friendly system and structure.

Moreover, the act has raised the age of consent from 16 to 18 years without considering scientific evidence on adolescent sexuality. Children involved in sexual activity will be treated as juveniles in conflict with the law. In cases of consensual sexual relationships between those in the age group of 16 and 18 years, how can we distinguish between the victim and the perpetrator.

Implementation of The POCSO Act, 2012

 The effectiveness of a law depends largely on the people responsible for its implementation and application. State governments will have to ensure that all the requirements specified under the law are in place and all key stakeholders will have to internalize the core principles of child rights in order for the law to work.

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In this article, Karan Singh of JGLS discusses all you need to know about the admissibility of Dying declaration.

Introduction

Dying declaration is the statement made by a person as to the cause of his death or as to the circumstances of the transaction resulting in his death.

In Section 32(1) of the Evidence Act, the only statement that is given just before the death is dying declaration. Also, the statement that is given before and which explains the cause of death is also dying declaration. A person who is conscious and knows that death is about to happen can make a statement about the reason of his/her death will be admissible in the court. The word dying declaration explains the word itself. It means a written or verbal statement of relevant facts made by the person who is about to die or is dead. It is the statement of a person who knew the cause of his death or the circumstances of his death. It is said that a man will not meet his maker with lying on his mouth (nemo mariturus presumuntur mentri). In our Indian Law it is a fact that is believed that a ‘dying man can never lie’ or ‘truth sits upon the lips of a dying man’.^[1]

Gestures & signs form

Gestures and signs can form dying declaration even when the victim does not speak a word. The Apex court stated that the evidentiary value of the gestures and signs will depend on certain factors like who recorded the statement, what are the gestures, what were the questions asked, were the questions asked were simple or not etc. Gestures can be difficult to interpret but this does not mean that the accuse can roam freely after hurting someone. If the victim is not able to speak, gestures or signs can be taken as evidence.

In Nirbhaya case 2013, a bench of Justices Dipak Misra, R Banumathi and Ashok Bhushan said a dying declaration should not necessarily be made by words or in writing and it could be through gestures. Not just words but even gestures can be made admissible in the court now.

Question answer form

Dying declaration should be in question and answer form.  If the dying declaration is not in question answer form it was held that it cannot be discarded for this reason alone. The Statement can be recorded in a narrative way also. It is not mandatory to record it in question answer form. But it is always best to record it in question answer form as that will make the evidentiary value of the dying declaration more.

Fitness Of the victim should be examined

While recording the statement of the victim, it is very important to examine the health of the victim. It can be possible that he is making stories in the presence of drugs given. Judicial Magistrate should satisfy himself that the victim is in a fit condition to give a statement. A certificate should be obtained by the judicial magistrate from the doctors examining the victim.

This certificate can prove in court that the statement given was in fit condition and it is true. If the circumstances do not permit attendance of the medical officer, then judicial magistrate can record statement without the medical certificate but judicial magistrate should provide the reason why he considered it indivisible for a doctor’s attendance.

Who should record the dying declaration

If the dying declaration is recorded by the magistrate, then it will hold more evidentiary value than any other dying declaration. Doctors and police officer are also authorized to record the dying declaration if the magistrate is not present. But sometimes the situation arises where dying declaration recorded by the magistrate can be questioned. For example, If the magistrate records it even when the doctor does not approve the victim medically fit. In this situation, the evidentiary value of the dying declaration can be questioned.

The court always looks into the certain things to decide the value of the statements. The court always seeks if the victim was mentally fit while giving the statement. If the victim is not fit at the time of giving a statement then that statement won’t hold any value.

Confusion can occur while recording dying declaration as anything can effect its evidentiary value. It should be taken with precaution and keeping in minds the following points:

1. The victim should be mentally fit to given statement. A medical certificate should be given by the doctor about her health.
2. Doctors and the Police officer can record the statement but it is best if a magistrate records it.

In 2013, Delhi gang rape three dying declarations of Nirbhaya were recorded.^[2] The first was recorded by the doctor when she was admitted to the hospital, the second was by SDM during which she gave exact details of the crime and the third one was recorded by a metropolitan magistrate and was mostly by gestures.

In this case, all three dying declarations were recorded. But the one recorded by the magistrate was important. And the court did accept the dying declaration recorded by magistrate even when it was in gestures and nods.

In Kushal Rao v State of Bombay^[3], The Supreme Court Of India accordingly states that the court must be satisfied that the deceased was mentally fit to make the statement. And victim had the opportunity to observe and identify the accused. The victim should not be making the statement under any influence. Also, Supreme Court Of India held that once the court is satisfied that the dying declaration is true, the conviction can be upheld and there is no need for further corroboration.

If the dying declaration is recorded by the medical officer or police officer, it should be attested by one or more person that is present there.

Language Of Statement

As far as possible the statement should be recorded in the language of the declarant or the court language. The court cannot discard the dying declaration on the basis of the language. It can be recorded in any language. Even if the deceased made the statement in Urdu, Hindi, Punjabi languages, it was held that statement could not be discarded on the ground of language alone or on the ground that it was recorded in Urdu. Where the statement was in Urdu and the magistrate recorded it in English but the precaution was taken in explaining every statement to the deceased by another person, it was held that the statement was the valid dying declaration.

Points to remember

1. Dying declaration can be recorded in any language.
2. If the statement was in another language than the one which magistrate recorded, then precaution should be taken.
3. The court cannot reject or discard the dying declaration on the sole ground of language.

In Biju @ Joseph Vs State Of Kerala^[4] it was held by the court that merely on the ground that the statement of the deceased was in her own language can not vitiate the dying declaration. It was stated by the High Court Of Kerala :

“Assuming that the deceased gave her statement in her own language, the dying declaration would not vitiate merely because it was recorded in a different language. We bear in mind that it is not unusual that courts record evidence in the language of the court even when witnesses depose in their own language. Judicial officers are used to the practice of translating the statements from the language of the parties to the language of the court. Such   translation process would not upset either the admissibility of the statement or its reliability”

Multiple dying declarations

Supreme Court Of India held that multiple dying declarations can be relied upon without corroboration if there is consistency in all the dying declaration. If all the dying declarations are similar to each other than it can be admissible.^[5]

But if the dying declaration is different from each other than the court will examine the facts of the case or can examine the statement of other witnesses to ascertain the truth of the case.

The statement of the deceased should match the facts of the case. It is very important to understand the nature of dying declaration. Points to remember in multiple dying declarations:

1. Consistency in all the dying declaration should be there.
2. If all the dying declaration does not match, then the court will examine the facts of the case with the dying declaration Or examine the witnesses.

In Kushal Rao v state of Bombay^[6], this case set the importance of dying declaration and what is the right process to record it. In this case, if the dying declaration is recorded in question-answer form, if the medical certificate is given by the doctor, if it is recorded by the authorized person, then it is admissible and reliable. If there are multiple dying declarations, then court looks into all these points to see which dying declaration holds more evidentiary value.

The Supreme Court has held that multiple dying declarations can be relied upon without corroboration if consistency is maintained throughout. Otherwise, the courts would have to examine the statement of other witnesses to ascertain the truth in a criminal trial.

An Expectation of death not necessary

Under English Law, the victim should not be under any expectation of death. Evidence Act has taken this law from English law. If the statement has been made even when no cause of death had arisen then also the statement will be relevant. It is not important at all that the statement recorded should be just before the death of the victim.

In Pakala Narayan Swami v Emperor^[7], it was held that the letter given by the deceased to his wife before going to the place where he was killed was relevant. The court said that the statement made must be at any rate near death or the circumstances of the transaction explaining his death is relevant under section 32 of Evidence Act. In this case, the court stated that dying declaration can be any statement that explains the cause of death or the circumstances of the transaction explaining his death. Hence, statements as to any of the circumstances of the transaction which resulted in the death would be included.

F.I.R as dying declaration

When an injured person lodges a FIR and then dies, it was held that the FIR will be relevant as a dying declaration.

 In Munnu Raja and another v. State of M.P.^[8], the Supreme Court Of India held that statement by injured person recorded as FIR can be treated as dying declaration and such statement is admissible under Section 32 of Indian Evidence Act. It was also held that dying declaration must not cover the whole incident or narrate the case history. Corroboration is not necessary for this situation, Dying declaration can be the sole purpose for conviction.

If declarant does not die

The question arises when the dying declaration is recorded and the declarant does not die. The statement is only converted in dying declaration when the victim/ declarant dies. If the declarant does not die, then the declarant can be used as a witness in the court against the accused. It is said that the dying declaration is only recorded on the presumption that the declarant is about to die. And the declarant won’t lie just before dying. But if the declarant does not die then the statement can’t be admissible as dying declaration.

Conclusion

Dying declaration is one of the most important evidence that is admissible in court as dying declaration can be a sole purpose for conviction of accuse. Hence, it should be recorded carefully with all the procedure that the court has mentioned. It should not be tampered at all by anyone. If the dying declaration is incomplete, then it is very much to be rejected by the court. It is on the court discretion to check if the dying declaration is recorded carefully or not.

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^[1]http://delhihighcourt.nic.in/writereaddata/upload/CourtRules/CourtRuleFile_P9S0NL6U.PDF

^[2] State Vs. Ram Singh and another.

^[3]  Kushal Rao vs The State Of Bombay on 25 September 1958 AIR 22, 1958 SCR 552

^[4] Biju Joseph vs State Of Kerala Represented By on 14 February, 2011

^[5] http://www.deccanherald.com/content/336207/multiple-dying-declarations-can-relied.html

^[6] Kushal Rao vs The State Of Bombay on 25 September 1958 AIR 22, 1958 SCR 552

^[7] Pakala Narayana Swami vs Emperor on 19 January, (1939) 41 BOMLR 428

^[8] Munnu Raja and another v. State of M.P., 1976 AIR (SC) 2199

In this article, Shivendra Pandey of NLUO discusses how to use the legal system to stop the menace of the of fake news.

Introduction

India a country with more than 50,000 newspapers, 400 news channels, thousands of online news portals, lakhs of blogs, social connection platforms, and countless other news feed sources. In the present world people are constantly exposed to different news feeds from different sources. It is difficult for a reader to know the authenticity of any such feeds and condition becomes more grave when it is published by a news disseminating source. A lot of times they fall prey to such fake news.

“Internet” is a world in itself, innumerable data is being circulated every moment called as cyber traffic. A significant part of this data is in form of news making people aware of happenings all around the world. There are chances that individuals come across a lot of fake news. All nations all around the world in some way or the other witness fake news but it is the responsibility of the government to take appropriate steps to curb such news. In a democratic country like India media acts as the fourth pillar of democracy. Even before independence Newspapers like Kesari, Vande Mataram played a key role in awakening and strengthening the freedom struggle. But with the advent of technological advancements T.V news channels, online media became the main source for instant and breaking news. We see a lot of news and information trolling all over the internet and especially social media like viral whatsapp hoaxes. There have been many instances where news have been declared spurious and fake. Some of the recent most controversial fake news cases in India and legal recourses available against such fake news are discussed in this article.

JNU Student Najeeb Jung searching for ISIS

There was a news in the media about Najeeb Ahmed a JNU student on the frontpage of a newspaper stating that he was searching about ISIS on internet about lSIS online which caused a huge hue and cry all over the media and internet as well the boy had had to face lot of criticism. However, later it was found by the police that there was no record of such online searches and police expressly denied veracity of the news. Even after such findings by the police there was no apology, clarifications or response made by the Newspaper and this news is still trolling on social media. Such irresponsible behaviour of news portals can put lives of the people in peril.

New Indian Currency notes with inbuilt chip

During the Indian currency demonetisation process when new notes were going to be introduced in the economy a lot of news channels carried stories like “New Rs 2000 Notes with GPS Chip”. Later RBI had to pass clarification that no such inbuilt chips have been installed in the new notes.

Why there are no Muslim Characters in Film “Bahubali”?

Recently, a viral photo on WhatsApp suggesting that Newslaundry‘s Madhu Trehan had an issue with the ‘Baahubali’ film as it did not have any Muslim characters and the makers need to answer this. It trolled all over the social media. Especially on the right-wing news sites and social media. However, Trehan vehemently denied the veracity of any such statements. The above-mentioned image kept trolling all over media. It was  Alt News in a piece which pointed out that Trehan had never said any such thing.

How to curb this menace of Fake news? What are the remedies available?

Complaint Indian Broadcast Foundation

IBF was established in 1999 to fulfill the Simple Need. At present 650 Channels has been broadcasting 24×7 365 days. To look after and regulate these channel’s IBF has founded. If anyone wants to complaint against any TV Channel than IBF will solve these problems.^[1]

If any channel under the IBF broadcasts any kind of serial which promotes smoking, abuse or any kind of violent activities then user can register complaint to IBF India via online or offline mode by Filing a Complaint Form. Complaint Form in English-http://www.ibfindia.com/sites/default/files/pdf/Complaint_Form_BCCC.pdf

Complaint Form in Hindi-http://www.ibfindia.com/sites/default/files/Complaint_Form_hindi.pdf

Online Complaint Form Link is http://www.ibfindia.com/node/2

Complaint to National Broadcasting Standards Authority

The News Broadcasters Association (NBA) is a body representing the private television news & current affairs broadcasters. It is the collective voice of all the news & current affairs broadcasters in India. It is funded completely by its members.

Presently NBA has 23 leading news and current affairs broadcasters as its members (consisting of 62 news and current affairs channels) as its members. The NBA acts as a unified and credible voice before the Government, on matters affecting the industry. A person can file a complaint against any of the members of the NBA.^[2]

Complaint to Broadcasting Content Complaint Council

A Complaint can be filed against any objectionable T.V content or fake news to Broadcasting Content Complain Council if it incites communal disturbance, violence against women or gender specific, child abuse, contains coarse scenes of violence, criticizing any religion, creates superstition, encourages consumption of drugs or any other prohibited product etc., For more details please follow: https://blog.ipleaders.in/how-to-file-a-complaint-against-objectionable-television-content-in-india/.

Complaint under Section 153 or 295 of IPC

If a fake news can be termed as hate speech, in that case, an FIR can be filed under 153 (Wantonly giving provocation with intent to cause riot) and 295 (Injuring or defiling place of worship with intent to insult the religion of any class) Indian Penal Code.

Civil or criminal suit for Defamation

If a person finds a fake news defamatory he/she can file a civil or criminal case for defamation. For more information follow: A guide to civil and criminal cases of defamation.

What steps can be taken?

At present India doesn’t have any separate legislation to deal with instances of fake news. As many scholars and eminent organisations have suggested creating an ombudsman body to regulate and cross-check the activities of Indian media especially the news segment. Further the existing bodies like PTI, NBSA, Broadcasting Content Complaint Council, needs to make structural changes and take stern actions against the News agencies, online portal and other news disseminating sources violating the rules passed by these bodies. Further, there should be strict and expeditious implementation of all the actions taken by these bodies to deter any future mischievous acts. Even the courts should ensure speedy justice to all the grievances against any fake news circulating bodies.

We need to establish institutions like “Cross Check” (a consortium of 37 publishers mainly from Britain And France) which acts as a watchdog to keep the media accountable as well as formalisation of news and information through social media. It is necessary to take concrete steps in order to eradicate this menace. News agencies and other information sources have far reaching effects on all spheres of our life. It acts as a guiding source for public as well as the government, it has immense power.

References

^[1] BF India (BCCC) Customer Care Contact Phone Number, Office Address, Email Id, Accessed on 8 May 2017, Available at:http://customercaresupportinfo.in/ibf-india-bccc-customer-care-contact-phone-number.html.

^[2] News Broadcasting Association, About us, Accessed on 8 June 2017. Available at: http://www.nbanewdelhi.com/about-nba.

In this article, Pradipta Nath discusses Payment of Gratuity to contract labors in India.

In India, we find employers often depute outsourced deputies at their organizations. Those deputies are often called as ‘Contract labours’ and in India and the said is guided under the Act called as ‘THE CONTRACT LABOUR (REGULATION AND ABOLITION) ACT, 1970.

Be it an Establishment or Office or Factory or any where workers are employed, the CLRA Act applies. But on the other hand the implementation of this Act is delegated onto the hands of the Appropriate Government. For easy understanding, an Appropriate Authority may be the Central Government or the State Government. Different State forms their State specific rule for the CLRA’s Applicability. The below furnished CLRA applicability table can be referred for our easy view, though the applicability is always subjected to amendments.

As per the applicability of CLRA is concerned there arise no dispute or a meager on
the below aspects like:-

1. EPIF
2. ESIC
3. Maternity Benefit
4. Payment of Wages
5. Minimum Wages
6. Labour Welfare Fund
7. Professional Tax
8. Payment of Bonus

The main reason as to why there arise little some concerns on extending benefits based upon the above Acts, is because of S. 21 under the CLRA Act. The section basically enumerates the responsibility of the Principal Employer.

But where the case comes into the ‘Payment of Gratuity’ to the contract labours, the mater get complicated as in most of the cases the principal employer do not take the responsibility for the gratuity payment and in the opposite side the Contractors are incapable to afford the payment of gratuity to the workmen as normally in most of the cases contractors income is based upon the ‘commission’ on the total monthly bill amount.

In this article we will try to find out the answer on whether the Principal employer is obliged to pay the gratuity amount to its contract labour or not?

In order to find out the answer, the followings are taken into consideration: –

1. Analysis of S. 21 of CLRA Act.
2. Employer definition under the Payment of Gratuity Act.
3. Employee definition under the payment of Gratuity Act.
4. Wages definition under the CLRA Act.

21 of CLRA Act

Section 21 (4) of the Contract Labour (Regulation and Abolition) Act, 1970 (CLRA), mandates that a principal employer is responsible for the payment of ‘wages’ to a contract employee in the event of a contractor’s failure to pay within the stipulated timelines or in the event of a contractor making a short payment. The principal employer then has the ability to recover the amount paid as ‘wages’, from the contractor.

In The Superintending Engineer vs Appellate Authority on 18 July, 2012, the Hon’ble Madras High Court held that the “it is clear that it will be the basic responsibility, under Sec. 21(4) of the Contract Labour Act, of the petitioner to make the payment of gratuity and the petitioner will have a right to recover that sum from the third respondent contractor”.

Link: https://indiankanoon.org/doc/182458868/

Whereas, in Cominco Binani Zinc Ltd. vs Pappachan on 28 December, 1988, The Hon’ble Kerala High Court held that, “The principal-employer’s liability to pay wages is recognised in Section 21(4) of the Contract Labour (Regulation and-Abolition) Act, 1970 as well. If the contractor fails to pay the wages the petitioner will be bound to pay the same. The wages due to the workmen does not include bonus or gratuity. This is made clear by the definition of wages in the Industrial Disputes Act and Payment of Wages Act. While defining the term “wages”, the above mentioned Acts specificially excludes bonus and gratuity from its purview”.

Link: https://indiankanoon.org/doc/1387153/

In Senior Regional Manager, Food Corporation of India, Calcutta Vs. Tulsi Das Bauri and Others, The Apex held that Section 21 postulates the responsibility for payment of wages. Under Sub-section (1) a contractor shall be responsible for payment of wages to each worker employed by him as contract labour and such wages shall be paid before the expiry of such period as may be prescribed. Under Sub-section (4), in case the contractor fails to make payment of wages within the prescribed period or makes short payment, then the principal employer shall be liable to make payment of wages in full or the unpaid balance due, as the case may be, to the contract labour employed by the contractor and recover the amount so paid from the contractor either by deducting from any amount payable to the contractor under any contract or as a debt payable by the contractor. That liability has been prescribed under Sub-section (2) thereof which says that every principal employer shall nominate a representative duly authorised by him to be present at the time of disbursement of wages by the contractor and it shall be the duty of such representative to certify the amounts paid as wages in such manner as may be prescribed…..the principal employer is required to pay the wages. The term ‘wages’ includes the balance of wages or arrears thereof”.

Link: https://www.legalcrystal.com/case/662861/senior-regional-manager-food-corporation-india-calcutta-vs-tulsi-bauri

In Hindustan Steel Works Construction Ltd. Vs. Commissioner of Labour and ors. The Apex held that, “the term ‘wages’ for the purpose of Section 21 of the Contract Labour (Regulation and Abolition) Act, 1970, means contractual wages which are payable under the terms of employment as between the contractor who is the employer and the contract labourers who are his employees. ‘Wages’ would also include, inter alia, any remuneration which the contractor is required to pay under any award or settlement between the parties or under an order of the Court. By reason of Section 21 of the Contract Labour (Regulation and Abolition) Act, 1970, the principal employer is required to nominate a representative to be present at the time of disbursement of wages by the contractor to the contract labour employed by him, in order to certify that the contractor has paid these wages. And similarly a duty is cast on the contractor to ensure that the disbursement of wages takes place in the presence of the authorised representative of the principal employer. The purpose of keeping the representative of the principal employer present is obviously to ensure that the contractor makes full payment of wages to each worker employed by the contractor as contract labour. These wages are the wages which the contractor has to pay to his workers in terms of the agreement of employment, or any award, settlement etc. If the contractor does not pay these wages to his workmen engaged by him as contract labourers, then under Sub-section (4) of Section 21 the principal employer becomes liable to make good the difference and recover this amount which the principal employer has paid to the workmen of the contractor, from the contractor, (Vide Gujarat Electricity Board v. Hind Mazdoor Sabha and Ors. : (1995)IILLJ790SC and R.K. Panda and Ors v. Steel Authority of India and Ors. : [1994]3SCR1034”.

Further also held that, “the contractor cannot recover any such additional amount from the principal employer under section 21(4)”.

Link: https://www.legalcrystal.com/case/673258/hindustan-steel-works-construction-ltd-vs-commissioner-labour

Thus on analyzing the above contentions, the two commons can be drawn:-

1. Principal Employer is liable for disbursement of wages to the Contract Labours.
2. In case the Contractor is unable to make payment of wages, the Principal Employer can and in sequence it can recover that payment from the contractor.

The next, may we discuss on the definition of ‘Employer’ under the Payment of Gratuity Act.

Employer’ under the Payment of Gratuity Act

On analyzing S. 2 (f) of the Payment of gratuity Act it is found that the legislature did not put a distinction between an employer and a principal employer has not been recognized anywhere in the Payment of Gratuity Act 1972. As per Sec 2 (f) (iii) of the Act, employer means any person who has ultimate authority over the affairs of the establishment.

From the ‘Payment of Gratuity’ point of view, it is the mandate upon the ‘Employer’ to pay gratuity to the employees who suffice S. 4(1) read with S. 2 (c).

(D.B.R. Mills Ltd. Vs. Appellate Authority)

Link: https://www.legalcrystal.com/case/428645/d-b-r-mills-ltd-vs-appellate-authority

And for certain, contractors who are responsible only for supplying or providing for manpower do not owe to qualify as an ‘Employer’ under S. 2(f) of the Payment of Gratuity Act and at the same time only the ‘Principal Employer’ do have control over the affairs of the business.

‘Employee’ definition under

Section 2 (e) of The Payment of Gratuity Act, states that employees means the person employed on wages to do any skilled, semi-skilled, or unskilled, manual, supervisory, technical or clerical work, but deliberately excluded the Apprentice appointed under the Apprentice Act.

Thus even in this case also the legislature do not segregated the Contract Labours or Company payroll employees in respect to Gratuity payment.

Hence an employee whether on-roll or through contractor, will be eligible for the payment of Gratuity upon substantiated S. 4 (1) read with S. 2(c).

Wages under the CLRA Act

Section 21 of the CLRA, envisages the responsibility for payment of Wages to the Contract Labours. Now let see the definition of Wages under the CLRA Act.

Section 2 (h) of the CLRA Act referred the definition of wages from that of S. 2(vi) of the Payment of Wages Act. It defines the term ‘wages’  as all remuneration (whether by salary, allowances or otherwise) expressed in terms of money or capable of being so expressed, which would if the terms of employment, expressed or implied, were fulfilled, be payable to a person employed in respect of his employment or of work done in such employment and includes, among others, “(d) any sum which by reason of the termination of employment of the person employed is payable under any law, contract or instrument which provides for the payment…”. However, it excludes “(6) any gratuity payable on the termination of employees in cases other than those specified in (d)”.

Upon analyzing this Section the following points can be taken up for further discussion: –

1. Wages definitions are same to CLRA Act with the Payment of Wages Act.
2. Wages includes any sum or amount which is payable as a result of termination of employment. On analyzing this, it is found that not only gratuity, even bonus and leave balance also covered in this line, and ought to be payable upon termination from the employment.
3. Wages definition specifically excluded the term ‘Gratuity’.
4. Section 4 (1) of the Payment of Gratuity Act states the payment of Gratuity upon termination of employment too on the below grounds: –

(a) on his superannuation, or

(b) on his retirement or resignation, or

(c) on his death or disablement due to accident or disease

Hence, by virtue S. 4(1) of the Payment of Gratuity Act, the ‘Gratuity’ by default is included in the definition of Wages under the CLRA Act.

(Superintending Engineer, Mettur Thermal Power Station, Mettur vs. Appellate Authority, Joint Commissioner of Labour, Coimbatore & Anr, 2012 LLR 1160)

Link: https://indiankanoon.org/doc/182458868/

Rule of Harmonious Construction

When there are two provisions in a statute, which are in conflict with each other, they should be interpreted such that effect can be given to both and the construction which renders either of them inoperative and useless should not be adopted except in the last resort. Bengal Immunity Co. vs. State of Bihar (1955) 6 STC 446 (SC).

Link: http://lawtimesjournal.in/interpretation-of-statutes-important-questions/

In the landmark case of B Shah v Presiding Officer, Labour Court, court applied beneficent rule of construction in construing section 5 of the Maternity Benefit Act, 1961, which makes the employer liable to pay maternity benefit to woman worker at the rate of average daily wage for the period of her actual absence immediately preceding and including the day of her delivery and for six weeks immediately following that day. The court held that Sundays must also be included and held that the Act was intended not only to subsist but also make up for her dissipated energy and take care of child. The Act was read in the light of Article 42.

Link: https://www.lawctopus.com/academike/beneficent-statutes-beneficent-rules-of-construction/#_ednref22

In construing social welfare legislation, the court should adopt a beneficent rule of construction and if a section is capable of two constructions, that construction should be preferred which fulfils the policy of the Act, and is more beneficial to the persons in whose interest the Act has been passed. When, however, the a language is plain and unambiguous, the Court must give effect to it whatever may be the consequence, for, in that case, the words of the statute speak the intention of the legisl When the language is explicit, its consequences are for the legislature and not for the courts to consider. The argument of inconvenience and hardship is a dangerous one and is only admissible in construction where the meaning of the statute is obscure and there are two methods of construction. In their anxiety to advance beneficent purpose of legislation, the courts must not yield to the temptation of seeking ambiguity when there is none.

Link:https://indiankanoon.org/docfragment/1020600/?formInput=social%20welfare%20legislation

Conclusion

From the above discussion it is clear that

1. If any welfare legislation, contemplates two meanings, then the Judiciary do interpret the cause which best serves benefit to the beneficiary or the employee.
2. Under CLRA Act, wages includes the payment which the Employees are entitled for payment at his/her termination form employment, be it called as Gratuity or otherwise.
3. Gratuity applies to both on-roll and off-roll employees, if attracts S.4 of PoG Act.
4. Under Gratuity Act Employer means the one has the ultimate control over the affairs of the Company.
5. The Principal Employer can claim or recover the gratuity amount paid to the contract labour from the Contractor.

At the end, would like to highlight, whatever the Act contemplates it is always beneficial to have a registered contract between the Principal Employer and the Contractor specifying the payment of Gratuity to the Contract Labours. This will enable to avoid any confusion and/or dispute.

After all, it is a matter of prerogative for any type of employees to get gratuity from its employer, be it ‘Principal’ or ‘Contractor’.

In this article, Mohammed Zain Khan, Founder and Managing Partner of One Legal, Advocates and Legal Consultants draws an assertion on the provision of section 34 and section 38 of the Specific Relief Act. 

Chapter VI of the Specific Relief Act 1963 provides for Declaratory Decrees under section 34 of the Act.

Section 34 of the Specific Relief Act – Discretion of Court as to declaration of status or right

Any person entitled to any legal character or to any right as to any property, may institute a suit against any person denying, or interested in denying, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any relief.

Provided that no Court shall make any declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

Chapter VIII of the Specific Relief Act 1963 provides for Perpetual Injunctions under section 38 of the Act.

Section 38. Perpetual Injunctions when granted

1. Subject to the other provisions contained in or referred to by this chapter, a perpetual injunction may be granted to the Plaintiff to prevent the breach of an obligation existing in his favor, whether expressed or by implication.
2. When any such obligation arises from contract, the Court shall be guided by the rules and provisions contained in chapter II.
3. When the defendant invades or threatens to invade the Plaintiff’s right to or enjoyment of property, the Court may grant a perpetual injunction in the following cases, namely:-

• where the defendant is trustee of the property for the plaintiff;
• where there exist no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion,
• where the invasion is such that the compensation in money would not afford adequate relief;
• where the injunction is necessary to prevent a multiplicity of proceedings.

When a suit for Injunction and Declaration would lie?

Any person who has any legal character or any legal rights as to any property by virtue of title deeds or otherwise may file a suit for declaration of those rights and for injunction against any person denying or interested to deny his title to such character or right.

The Hon’ble Supreme Court has in the matter of Anathula Sudhakar vs. P Buchi Reddy & Ors, clarified the general principles as to when a mere suit for permanent injunction will lie and when it is necessary to file a suit for declaration and or possession with injunction as consequential relief which reproduced as under:

Para 11.1- When a Plaintiff is in lawful or peaceful possession of a property and such possession is disturbed or threatened by the defendant, a suit for injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.

Para 11.2- Where the title of the Plaintiff is not disputed, but he is not in possession his remedy is to file a suit for possession and seek in addition, if necessary an injunction. A person out of his possession cannot seek the relief of injunction simpliciter, without claiming the relief for possession.

Para 11.3- Where the Plaintiff is in possession but his title to the property is dispute, or under a cloud, or where the defendant asserts title thereto and there is also thereat of dispossession from the defendant, the Plaintiff will have to sue for declaration of title and consequential relief of injunction. Where the title of the Plaintiffs is under cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.

In view of the above judgment any person can file a suit for declaration and injunction with regard to any legal character or rights as to any property against any person who is denying or interested to deny his title or such character. In a suit for seeking declaration with regard to a right or title in respect of property along with consequential injunction the Plaintiff will have to pray for a declaration as contemplated under section 34 of the Specific Relief Act, 1963, an interim injunction during the pendency of the suit under order 39 of the Civil Procedure Code 1908 and a mandatory injunction under section 38 of the Specific Relief Act, 1963.

The Hon’ble Supreme Court in the matter of Dalpat Kumar Vs Prahlad Singh and Ors has provided the manner in which a temporary injunction can be granted under order 39 rule 1(c) of the Civil Procedure Code 1908 in a suit for Declaration and Injunction which is reproduced as under:

Para 4- Order 39,Rule 1(c) provides that temporary injunction may be granted where, in any suit it is proved by affidavit or otherwise, that the defendant threatens to disposes the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the court otherwise may by order grant temporary injunction to restrain such act or make such other order for the purpose of staying and preventing or dispossession of the plaintiff or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as court thinks fit until the disposal of the suit or until further orders. Rule 1 primarily concerns with the preservation of the property in dispute till legal rights are adjudicated. Injunction is a judicial process by which a party is required to do or refrain from doing any particular act. It is in the nature of preventive relief to a litigant to prevent future possible injury. It is settled law that grant of injunction is a discretionary relief. The exercise thereof is subject to the court satisfying that,

1. There is serious disputed question to be tried in the suit and that an act, on the facts before the court, there is probability of his being entitled to the relief asked for by the Plaintiff/defendant;
2. The courts interference is necessary to protect the party from the species of injury. In other words, irreparable damage or injury would ensue before the legal right would be established in trial and
3. That comparative hardship or mischief or inconvenience which is likely to occur from withholding the injunction will be greater than would be likely to arise from granting it.

Based on the aforesaid principles the Hon’ble Supreme Court in the matter of Lakshmi alias Bhagyalashmi & Anr vs. E. Jayarani set aside the order of the High Court which had in turn set aside the order of the Additional Judge City Civil Court which had granted interim injunction under order 39 Rule 1 and 2 of the Civil Procedure Code. On the basis of the pleadings and submissions of the Court observed that the Additional Judge City Civil Court has rightly granted interim injunction under order 39 rule 1 and 2 by categorically observing that the respective rights of the parties shall be decided at the time of final disposal of the Suit.

In a suit for declaration of rights or character and injunction the Plaintiff will have to substantiate/prove his rights as claimed thereof. Accordingly the Court may in its discretion award the rights so prayed along with permanent injunction if deemed fit and necessary in the facts of the case.

Under section 35 of the Specific Relief Act, 1963 the declaration made under section 34 by any court will only be binding on the parties to the suit or any persons claiming through them respectively as a declaration under section 34 is a right in Personem and not a right in Rem. (SNP Shipping Service Pvt Ltd  vs. World Tanker Carrier Corporation) AIR 2000 BOM 34.

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In this article, Alric Tirkey of Institute of Law, Nirma University discusses whether entering into a prenuptial agreement is advantageous or not?

Prenuptial Agreement

In a country like India where prenuptial agreement which is also known as antenuptial agreement, or premarital agreement is neither legal nor valid under the marriage law in India because in India marriage is not considered as a contract between husband and wife on the other hand according to Indian culture marriage is considered as sacred religious bond between husband and wife and prenuptial agreement between spouse do not accepted by the society. However, in India prenuptial agreement are governed by the Indian contract act 1872.

Prenuptial agreement is a written agreement between husband and wife who will about to married in which the contract defining themselves about their respective rights, duties, and responsibilities in the event their marriage terminates by death of any spouse, annulment, separation, or divorce. In this agreement, the both the parties agrees to give an equal and equitable division of property, support spouse or other rights they will entitled under the law.

Objective

Although In India all the matrimonial laws of the country have the provisions for wife’s maintenance and alimony under the Hindu Marriage Act in which either party can claim it. at the time of divorce the amount of maintenance will always depend upon the partner’s income, property and other assets. So it might have helped the couples who are fighting legal battle, had they declared their assets in the very beginning, reviewed their financial positions and agreed to a mutually acceptable division of wealth with the help of the prenuptial agreement. This is the primary reason behind drawing up a prenuptial agreement in which both the parties have the fair idea about what to give and what to receive at the time of divorce. In spite of lacking legal sanctity under Indian marital laws, a prenuptial agreement still be treated as a valid contract if a person and his/ her spouse consent to go by its terms and conditions of the agreement. ^[1]

Condition

Following are the condition for the prenuptial agreement^[2]

1. The prenuptial Agreement between parties should be fair, and duly acknowledged.
2. The prenuptial Agreement should have attorney certification from both parties as well.
3. The prenuptial Agreement should contain clause stating that if any provision of the agreement is invalidated, the rest of the agreement still remains in effect.
4. Prenuptial agreement there should be list attached which is showing each spouse’s assets and liabilities.
5. The prenuptial Agreement should have all the clauses of agreements arrived at between the

prospective spouses.

6. The prenuptial Agreement may also contain the necessary history of proposed alliance.
7. The prenuptial Agreement should be reviewed by separate lawyers and duly certified by them.
8. The prenuptial Agreement should be setting out each party’s assets, debts, and property rights before the marriage, settling issues of division of property and of spousal support in the event of marriage breakdown.

Important provisions which a prenuptial agreement should contain^[3]

The following are the key provisions that must be stated by both the parties in the prenuptial agreement:

• Disclosure of assets and liabilities
• Financial or monetary state
• Ownership of property or real estate
• Estate planning
• Alimony, spousal support or maintenance and child custody & maintenance
• Financial state of business, partnership rights in business
• Monetary savings
• Life insurance, medical insurance, claims
• Credit card limits, debts, spending, payments
• Financial investments
• Management of bank accounts or joint accounts
• Management of household expenses, bills, etc
• Retirement benefits and accounts
• Division of property
• Gifts in the form of jewellery, engagement ring, precious bands, art, etc

Form Needed

This form includes the following key provisions:^[4]

• Separate Property:- The agreement will allow the parties to set out the property being brought into the marriage that should remain separate in the event of death or divorce. The agreement will enable both the parties to set out the property being brought into the marriage that should be separated at the time of divorce or death of the any
• Shared Property:- identifying the property that will be shared between both the parties.
• Division of Property:- set out the way in which how all the property will be going to divided at the time of divorce or death of any of the spouse.
• Disclosure of Assets and Liabilities:- Gives the opportunity to the couple defining each party’s assets and liability coming into the marriage and this is consider as important provision as failure of this provision lead to invalidate the agreement between parties.
• Alimony, Support and Maintenance
• Estate Planning/Wills: every couple should have acknowledged about the estate and identify what should be included (every couple should have comprehensive estate plan).
• Additional Clauses: Provides room for the parties to add additional provisions that they may find important.

Advantages of the prenuptial agreement ^[5]

1. A prenuptial agreement between couple going to married can protect the inheritance rights of children and grandchildren from a previous marriage.
2. If any of the spouse own any business or professional practice, a prenuptial agreement between couple can protect that interest so that business or practice did not divided and subject to the control or involvement of your former spouse upon divorce.
3. If one spouse having more debt than the other spouse with help of prenuptial agreement which can protect the debt-free spouse from having to assume the obligations of the other.
4. If any of the spouse want to give up a lucrative career, the agreement can ensure that you will be compensated for that sacrifice if the marriage does not last.
5. A prenuptial agreement focus more on the financial aspect of the marriage which cover any of the details of decision making and responsibility sharing to which each party agrees in advance.
6. A prenuptial agreement can limit the amount of spousal support which will have to pay at the time of divorce.

Disadvantage of the prenuptial agreement^[6]

• Deciding to go for an antenuptial agreement is a very difficult and complex step for both the parties.
• The agreement implies that the couples do not envision the marriage did not last forever.
• The agreement can adversely impact life of both the parties post marriage.
• The agreement can enhance the importance of money than the thought of living together for both the parties.
• The agreement can adversely impact the lifestyle of both the parties.

Provisions in a prenuptial agreement that can be overruled by the courts^[7]

• Agreements that promote or encourage divorce/separation.
• Mention of spousal waivers
• Waivers of counsel fees, temporary alimony and permanent alimony
• Agreements that do not support child custody, child support and maintenance
• Regulation of conduct during marriage
• Agreements that mention religious upbringing of children
• Enforceability of no child provisions
• Limiting the grounds for divorce
• Agreement comprising of provisions requiring the spouses to marry
• Severability

References

^[1] https://blog.ipleaders.in

^[2]  http://www.legalserviceindia.com/article/l284-Pre-nuptial-agreements.html

^[3] Helplinelaw – http://www.helplinelaw.com/family-law/PRENAI/prenuptial-agreements-in-india-an-overview.html

^[4] https://india.findlegalforms.com/product/prenuptial-premarital-agreement-india/

^[5]http://family.findlaw.com/marriage/pros-and-cons-premarital-agreements-prenuptials.html

^[6]http://www.helplinelaw.com/family-law/PRENAI/prenuptial-agreements-in-india-an-overview.html

^[7]http://www.helplinelaw.com/family-law/PRENAI/prenuptial-agreements-in-india-an-overview.html