In this article, Yash Purwiya discusses the Inherent powers of Supreme Court, High Court, Civil Court and Criminal Court.

Inherent powers are those powers which are not subject to being taken away from courts and may be used by a court to do complete and satisfied justice between the parties before it.

Whether civil or criminal, in the absence of the prohibition of the procedure, is to be deemed to possesses inherent powers embodied in its constitution as may be necessary, to do justice and to undo the wrong, in the course of providing of justice. The inherent powers of the court a fairly wide to serve the ends of justice.

To know more about the powers and functions of the Supreme Court in brief, please refer to the video below:

Inherent powers of the Supreme Court under the Constitution

• The Constitution of India under Article 136 provides powers upon the Supreme Court such as the power to grant special leave petition against any orders or judgments from any court or tribunal in the country.
• The Supreme Court has the power to decide election dispute of the President and the Vice President.
• The Constitution of India through Article 142 provides the Supreme Court of India for passing such “decree or order as may be necessary for doing complete justice among the parties“. In our Constitution Article-142 provide in the process to do complete justice, Supreme Court has the power to pass any Judgment, decree or order as is necessary. Any such order made by Supreme Court will be enforceable all over the territory of India. The instrument of enforcement of such order shall be determined by the law that has been passed by parliament regarding it. If there will be no existing law there passed by parliament to enforce the order passed by SC then, a President’s order shall determine it by prescription. In this article, Supreme Court can also give order for the attendance of a person, ask for discovery and production of documents, and can also investigate and punish for its contempt.
• These powers have been given to Supreme Court because the Supreme Court protect the other court from any type of jurisdictional difficulties and does not harm the court to do justice among the parties before it.

Inherent powers of the High Court

• Under section 482 of the Code of Criminal Procedure, the inherent power of High Court is peculiar in criminal jurisprudence. It is the most powerful weapon for the High Court to clear the province of criminal law jurisdiction of all vitiating and malicious influences. The issue naturally lifted in the context are about the extent, scope, and limitation of the power.
• These powers are not available to the subordinate courts for the obvious reason that there will be pandemonium in the criminal justice system’.These powers are available only to the High Court for reasons philosophical, historical and practical.

According to Sec 26 of CrPC, 1973, Offences under the Criminal Procedure Code are divided into:

1.Offenses under Indian Penal Code (IPC).

2.Offenses under any other law.

Section-482 of CrPC deals with Inherent powers of the Court.Section- 482 of CrPC of provides:

“Saving of inherent power of High Court- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.”

This section was added by the Code of Criminal Procedure (Amendment) Act of 1923 as the high courts were unable to render complete justice even if in a given case the illegality was palpable and apparent. The section envisages 3 circumstances in which the inherent jurisdiction may be exercised, namely:

1. To give effect to an order under CrPC.
2. To prevent abuse of the process of the court.
3. To secure the ends of justice.

Ways to prevent the abuse of process of the court

The high court has the power to interfere in any case where there is harassment of any person who is a citizen of India, by illegal prosecution. The High Court cannot obstruct at an interlocutory stage of a criminal proceeding in subordinate court, however, if there is any exceptional or extraordinary reason, it would do so.

How do we know if there is an abuse of court or not?

1. Whether a bare statement of facts of the case would be sufficient to convince High Court if it is a fit case for interference at the intermediate stage.
2. In the admitted circumstances whether it would be a mock trial if the case is allowed to proceed.

To secure ends of justice

The High Court can interfere for securing the ends of justice. For example, when a clear constitutional provision of law is violated, the High Court can interfere to safeguard proper freedom. The independence of Judges must be preserved and they must be permitted to perform their functions freely and fearlessly, without the undue influence of anyone.

The grounds on which the High Court can impede

1. Extended lapse of time.
2. Non-achiever to supply to accused, copies of police statements and other relevant documents- grounds for other relevant documents- grounds for HC to quash proceedings against accused.

Inherent powers of the Civil Court

The law that deals with the inherent powers of the Civil Court, falls under Section-148 to Section-153A of the Civil Procedure Code (CPC), which envisages the exercise of powers in different circumstances. The provisions that deal with these inherent powers are:-

• Section-150: This provision is related to the transfer of business.
• Section-151: It conserves the inherent powers of the courts
• Section 152, 153 and Sec 153A: These provisions of the CPC deal with amendments in decrees, judgments orders or in other proceedings.

Provisions under Civil Procedure Code (CPC),

Section 148, clearly points out that the court has no application when the time has not been fixed or granted for doing a particular act, that has not been prescribed or allowed by the court. This power of the court, being discretionary in nature cannot be claimed as a right. Section 148 provides that the court, may extend to a maximum period of 30 days, when a definite time period is fixed or granted by it, for doing an act.

Section 149, deals with payment of court fees. The power of the court is discretionary and must be exercised only in the interest of justice. This section certifies the court to allow a party to make up for the deficiency of court fees payable on a plaint or a memorandum of an appeal etc., even after the expiry of the limitation period that is provided for the filing of a suit or an appeal etc.

Section 150 of CPC relates to the ‘Transfer of businesses’, and provides thus: “when the business of any court is transferred to any other court, the transferee court will exercise the same power or discharge same duties conferred or imposed by CPC upon the transferring court“.

The inherent powers of the court can be used to secure the ends of justice under section 151 of the CPC.

The scope of the exercise of these powers, under Sec 151 of CPC can be illustrated by a few cases, such as-

• The court may recall it’s orders and correct any mistakes;
• An illegal order, or orders passed without a jurisdiction can be set-aside.
• The court has the power to hold a trial ‘in camera’ or prohibit any publication of its proceedings.

Sec 152, 153 and 153A of the Civil Procedure Code relates to the application of the inherent powers for effecting amendments of judgments, decrees, orders or other records.

• Section 152 provides that “clerical or arithmetical mistakes in Judgments, decrees or orders arising from any accidental slip or omission may at any time be corrected by the court either on its own motion or on the application of any of the parties”.
• The apex court explained that Section 152 is based on two principles:-
• Any act of the court shall not lead to any discrimination against anyone.
• It is the duty of the court to ensure that its records are true and represent the correct state of affairs.

• Sec 152 and 153 of the CPC makes it clear that the court may correct any mistake made in their records, at any time.
• While Section 152 is confined to amendments of Judgments, orders or decrees, Section-153 confers a general power on the court to amend defects or errors of any proceedings in a suit. Necessary amendments can be made in order to determine the real issues between the parties.

When can the inherent powers be exercised?

While exercising their inherent powers the court has two primary objectives, that it takes into their consideration. This is recognized under section-151 of the Civil Procedure Code:

1. The powers are to be exercised only for the ends of justice.
2. To prevent abuse of process of the court.

The powers can not be exercised when excluded or prohibited by the Code or any other statute. In the situation where specific provisions exist in the Code, it is applicable to the litigation at hand.

Inherent Powers of the Criminal Courts

Section– 482 of the Code of Criminal Procedure

“Nothing in this code shall be deemed to limit or affect the inherent powers of the High court to make such orders as may be necessary to give effect to any order under the Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice”.

• Sec 482 of the CrPC deals with the inherent powers of the court. This section was added by the Code of Criminal Procedure (Amendment) Act of 1923, as the high courts were unable to render complete justice even if the illegality was apparent. The inherent jurisdiction may be exercised under this section, except under 3 circumstances, namely:

1. To secure the ends of justice.
2. To prevent abuse of the process of the court.
3. To give effect to an order under CrPC.

When can the inherent powers be exercised?

1. The jurisdiction is completely discretionary. The High Court has the power to refuse to use its power.
2. The jurisdiction of High Court is not limited only to cases that are pending before the High Court, and it can consider any case that comes to its notice (in appeal, revision or otherwise).
3. Under Section of 248 of CrPC, when the aggrieved party is being unnecessarily harassed, then this power can be implored if he has no other remedy open to him.
4. The High Court does not conduct a trial or appreciate evidence. This power of High Court is limited to cases that compel it to intervene for preventing a palpable abuse of a legal process.
5. The High Court has the right to provide relief to the accused even if he or she has not filed a petition under section 482.
6. If any trial is pending before the apex court, and has been directed to the sessions judge for the issuance a non- bailable warrant regarding an arrest of the Petitioner(s), this power of High Court can not be exercised.
7. Section 482 of the CrPC specifies that the inherent power is not intended to scuttle justice at the threshold, but to secure justice.
8. This power has to be exercised sparingly with circumspection and in the rarest of rare cases, but it cannot be said that it should only be exercised in the rarest of rare cases. The expression rarest of rare case may be exercised where death penalty is to be imposed under Section 302 of IPC but this expression cannot be extended to a petition under Section 482 CrPC.
9. Any proceeding if it finds that initiation to abuse of the process of Court, Court would be justified to the quashing of these proceedings.
10. As long as the inherent power under Section 482 of CrPC is in the statute, the exercise of such power is not impermissible.

Conclusion

Today we live in an age where the legal system highly developed. The governance of rights and liabilities depend upon the law and its principles, rather than equality, and we still find the basis of such laws in the concept of justice. Justice has been the central theme of all the civilizations of the world. In our legal system, every court is composed for the purpose of serving justice to the people. The court must be deemed to possess all such powers that may be necessary to do the right thing, and to undo the wrong in the process of providing justice. The court has an inherent duty to stop the abuse of the existing processes of the court. The court has often used Article-142 of the Indian Constitution,  as a tool for doing complete justice. The Supreme Court has always risen to the occasion to ensure that the supremacy of law prevails, yet its strict adherence does harm to no one.

In the CPC, it may be suggested that the norms laid down by the courts in the exercise of inherent powers together with restriction and limitation on the exercise of such power, can be codified in the form of rules to be framed by the Supreme Court and be made available to the courts for their guidance.

In the code of criminal procedure,1973 section-482 is really important and has a wide scope for the courts to use it in a proper way. This section of CrPC enables the court to stop the public from filing complaints regarding a fictitious matter, which may never have occurred, in order to fulfil their personal grudges.

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This article is written by Ramanuj Mukherjee, Co-Founder and CEO of iPleaders & LawSikho

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In this article, Syeda Muneera Ali of KIIT School of Law discusses Top five judgments on legal rights of Muslim women in India.

Introduction

• In India, Muslims personal laws are governed by the Shariat Law. In simpler terms, the Shariat Law is basically governed by the provisions of The Quran, and the teachings of the Prophet Mohammad.
• It is usual for Muslims in India to be governed by personal laws, as opposed to the Indian laws, as the Constitution of India provides provisions for the Right to Religion (Article 25 of the Constitution of India).
• However, unlike the usual situation, where Constitutional Rights are given higher strata, in comparison to ordinary laws, this principle fails to apply when it comes to personal laws.

While most Islamic countries, such as Egypt, Pakistan, Turkey, Bangladesh, etc., have chosen to modify and incorporate modernized versions of the Shariyat laws, India is still battling to do the same, when it comes to certain specific aspects of the personal law, such as, marriage, divorce, inheritance, family relations, etc. Some of the leading Supreme Court judgements, that have tried, to the best of their abilities, to defend the rights of Muslim women. These judgments are discussed below.

Mohd. Ahmed Khan vs Shah Bano Begum And Ors 1985 SCR (3) 844

One of the most landmark cases in the history of India, pertaining to Muslim women, was the Shah Bano Case of 1985. This case introduced an ever standing conflict between what should and should not come under the adjudication of the Supreme Court of India.

Facts of the case

• Shah Bano Begum, a Muslim woman, was divorced by her husband, Mohd. Ahmed Khan, by virtue of the Triple Talaq system. The issue that came up, was that Ms Bano had claimed maintenance under the Code of Criminal Procedure, rather than as per the personal laws.
• The personal laws of Islam state that a woman may be given maintenance for the ‘iddat’ period, i.e., a period of three menstrual cycles, along with the ‘mehr’, i.e., the money promised to the bride, at the time of marriage.
• Beyond these two, there is hardly any legally enforceable way of maintaining the woman for life. The Indian law, on the other hand, provides for maintenance for life, barring some exceptions.

Held

• The plaintiff and the defendant being Muslims, were to be governed by the Muslim Personal Law. However, since the petition was filed under the Code of Criminal Procedure, the district court, the High Court and the Supreme Court passed their judgements, favouring Ms Shah Bano.
• However, this judgement was opposed by the AIMPLB, as they claimed that adjudication of Personal laws was beyond the jurisdiction of the courts.
• The Shah Bano Case had received a lot of varied public stances. Muslim women vehemently defended the Supreme Court judgement of husbands having to maintain the wife.
• The then government had passed a legislation, termed as ‘The Muslim Women (Protection of Rights on Divorce), 1986’, and aimed to overturn the judgement of the Supreme Court.
• According to this legislation, Muslim women were entitled to a ‘fair and just’ amount of money within the ‘iddat’ period, beyond which, the husband was to have no liability.

Ahmedabad Women Action Group (AWAG) v. Union of India (AIR (1997) 3 SCC 573

Facts of the case

Muslim law allows Muslim men to have four marriages, along with the right to divorce, under the concept of Talaq, whereby, the husband has the authority to divorce by the utterance of the term ‘Talaq‘, without judicial methods, and this may happen without her consent. The PIL filed in this case addressed both these issues, along with some others.

The PIL addressed five major issues. They were:

• to declare Muslim Personal Law which allows polygamy as void as offending Articles 14 and 15 of the Constitution.

• to declare Muslim Personal Law which enables a Muslim male to give unilateral Talaq to his wife without her consent and without resort to judicial process of courts. as void, offending Articles 13. 14 and 15 of the Constitution.

• to declare that the mere fact that a Muslim husband takes more than one wife is an act of cruelty within the meaning of Clause VIII.

• of Section 2 of Dissolution of Muslim Marriages Act. 1939.

• to declare that Muslim Women (Protection of Rights on Divorce Act, 1986 is void as infringing Articles 14 and 15.

• to further declare that the provisions of Sunni and Shia laws of inheritance which discriminate against females in their share as compared to the share of males of the same status. void as discriminating against females only on the ground of sex.

Held

In the light of these contentions, the court was of the opinion that India and Indians have been governed by personal laws, regardless of the time period. It was of the opinion that an interference by the court would lead to several undesirable outcomes, as the adjudication of personal laws was beyond the jurisdiction of the courts. The petition was therefore dismissed.

Danial Latifi and another v. Union of India (2001) 7 SCC 740

Facts of the case

After the landmark judgement of Shah Bano’s case, there was a chaos in the Muslim personal law. The parliament passed and enforced The Muslim Women (Protection of Rights on Divorce) Act, 1986, which provided that under section 3(1)(a), a divorced woman is entitled to reasonable and fair provisions, and maintenance within the ‘iddat’ period. One of the council, i.e, Danial Latifi challenged the above act, claiming that it was unconstitutional, and in violation of Article 14 and 21.

Held

In this case, the petitioner, in his argument said that that the Act is unconstitutional and has the potential of suffocating the Muslim women, and undermines the secular character, which is the basic feature of the Constitution. There is no reason to deprive the Muslim women of the applicability of section 125 of CrPC and present act is in violation of article 14 and 21. To this, the respondent said that personal laws are a legitimate basis for discrimination and therefore does not violate article 14 of the Constitution. The Court thereby held that the said Act was not in violation of Article 14 and 21 of the Indian constitution.

Shamim Ara v. State of U.P. (MANU/SC/0850/2002)

Facts of the case

• The petitioner was married to the respondent in 1948, in accordance with the Muslim personal law, and subsequently had four sons.
• The wife filed an application in the court, under Sec. 125 of the CrPC, claiming that her husband had deserted her and that there was cruelty by the husband.
• The family court denied her maintenance, on the grounds that she had already been divorced. However, a sum of Rs. 150/- was granted as maintenance for one son, till he attained majority.

Held

• The petitioner denied having been divorced. One of the major points of conflict, was that ‘Is a divorce valid if it is not directly communicated to the wife( in this case the husband said to have dissolved marriage by means of triple Talaq in presence of neighbours) and the said divorce communicated to the appellant become effective from the date of filing the written statement by the husband in the proceeding?’
• To this, the Supreme Court was of the view that the mere plea of a Talaq, would not validate the same. Ther Quranic procedures of obtaining a Talaq need to be fulfilled, i.e., Talaq has to be pronounced in the Quranic injunction.
• The following case had several reactions, the most popular one being that the concept of triple Talaq was both demeaning as well as cruel to Muslim women. There were several other contentions, however, the idea that triple Talaq was immoral stuck to the minds of people.

Shayara Bano v. Union of India and others. (The current Triple Talaq case.)

Though this case has not yet received a judgement, it deserves a mention in this article, as it has challenged the very concept of ‘instantaneous triple Talaq’, though not the concept of ‘triple Talaq’ itself.

The mere approval of the PIL filed by Ms Shayara Bano has led to a ray of hope for millions of women who have suffered because of this immoral and unfair practice. To begin with, this petition has been greatly discussed, supported and believed to have given a chance to those who have suffered for a long time.

The PIL was initiated by Ms Shayara Bano, a resident of Uttarakhand, who was constantly abused by her husband and eventually divorced by way of Triple Talaq at one go. Her plight was heard by the Supreme Court of India and a 5-judge Constitutional Bench heard this case. The verdict is yet to come.

India is a secular country and its citizens deserve to be happy, content and should always have the right to equality and justice. The very fact that the Hon’ble Supreme Court of India has chosen to acknowledge the rights of those who truly deserve it, is commendable and a positive step towards the injustice that women are subjected to.

India is the home to the second largest Muslim population. If several Islamic countries have chosen to forgo the concept of Triple Talaq, why shouldn’t a secular country like India, do the same?

Conclusion

India is one of the most accepting and broad-minded countries and takes pride in being the most secular-democratic state in the world. It has always supported what is right and has chosen to abolish what is wrong. The patriarchal Muslim population needs to recognise the rights of women, and it is the time that we, as citizens of India do that too. It is crucial today, for people to stand united against the plight of those Muslim women, who have been suffering for a very long time. There has been an unfair interpretation of Islam and it is upon the Legislature and Judiciary to change that. Having a 14.2% Muslim population, i.e., roughly 172 million people (as per the 2011 census), it is important for India to accept that times are changing, and personal laws need some reformation. Furthermore, it is important for the All India Muslim Personal Law Board (AIMPLB) to accept that women are equal to men and not subordinates, otherwise, are we really evolving as human beings?

References:

1. https://scroll.in/article/808588/the-debate-on-triple-talaq-and-muslim-womens-rights-is-missing-out-on-some-crucial-facts
2. http://www.thehindu.com/todays-paper/tp-opinion/triple-talaq-and-the-constitution/article18421721.ece
3. https://wrcaselaw.files.wordpress.com/2012/08/talaq-shamim-ara-v-state-of-u-p-ors.pdf
4. http://www.aljazeera.com/indepth/features/2017/05/tripple-talaq-triple-divorce-170511160557346.html

In this article, Vidushi Pandey discusses, under which laws sex outside the matrimonial alliance is illegal in India.

Significance of Marriage in India

• In India, marriage is deemed to be a sacred vow and it’s believed that it is a religious duty performed by the spouses and their relatives. The foundation of marriage is based on trust, care, concern, mutual understanding and giving respect to each other equally.

• If we talked about premarital sex then it is prevailing but statistics provide that 50%of the couples have done sex outside the marriage and moreover they don’t have any guilt.” It is spreading at the speed of the light and in the recent years, we can witness that many of them or out of every three there is one partner who is engaged in this type of practice. Sex outside the marriage is destroying the legitimate relationship and opening the doors of divorce. Yes, sex outside the marriage is illegal in India.

Laws making sex outside marriage illegal

Provisions under the adultery laws

According to the Indian penal code “sex outside marriage is illegal “is termed as an Adultery in India and accordingly, the provision defines it as,

Sec. 497 Adultery[1].—Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case, the wife shall not be punishable as an abettor. Women never are punished by her husband.

• Adultery has been a ubiquitous issue and the whole world seems fighting to it. Adultery interferes in the institution of marriage and tries its best to break the marriage i.e. divorce.  Adultery means that a person indulges in the act of illegitimate sexual intercourse other than his or her spouse.
• Adultery destroys or it affects the person mentally, physically, and spiritually not only the person but also the people around them. No one can make assumptions or can identify, why such a heinous crime is committed, some cases in the past year reveal that either the person has not got what they ought to get or otherwise they must have an addiction.
• An offence of adultery is caused when there is no love and affection in the relationship and to grab that kind of concern and care the person seems to tilt to the other person and create an extramarital affair.
• In India, the offense of adultery is punishable under Section 497 of the IPC.our penal laws are designed in such a way which only punishes a man for adultery. No woman can be held liable for adultery under section 497. The report of the mallmath committee on criminal justice Reforms & the 42nd report of the Law Commission of India recommended amending the section to make the women liable also.

Acts and sections related to it

Provisions related to enticing or taking away or detaining with criminal intent of a married woman

• • Sec 498. 2 Enticing or taking away or detaining with criminal intent a married  woman —Whoever takes or entices away any woman who is and whom he knows or has  reason to believe to be the wife of any other man, from that man, or from any  person having the care of her on behalf of that man, with intent that she may have  illicit intercourse with any person, or conceals or detains with that intent any such  woman, shall be punished with imprisonment of either description for a term which  may extend to two years, or with fine, or with both.”  

• Sec 198 of Code of Criminal Procedure, 1973 says that only husband of that wife who got indulge with another man can file a complaint case and not anyone else.

• Section 13 of the Hindu Marriage Act, 1955 and Section 27 of the Special Marriage Act 1954, stated the grounds and reasons for divorce which are as follows:

(1) Any marriage solemnized, whether before or after the commencement of the Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-

(i) Has, after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse; or

Adultery is the act of indulging in sexual intercourse outside marriage which is termed as adultery. Adultery is counted as a criminal offense and substantial proofs are required to establish it. An amendment to the law in 1976 states that one single act of adultery is enough for the petitioner to get a divorce.

Special Marriage Act, 1954 – Restitution of conjugal rights and judicial separation.

Sec22. Restitution of conjugal rights- when either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other the aggrieved party may apply by petition to the district court for restitution of conjugal rights, and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal; ground why the application should not be granted, may decree restitution of conjugal rights accordingly.

Adultery under Muslim Law?

• According to the Islam “adultery is a sexual intercourse which has been done by the person to other than his or her spouse .it is considered as a sin. Zina is an Arabic locution used to describe premarital sex or an extramarital affair.
• The act of Zina is considered the most odious type of crime and a most unforgivable offense because of its dreadful consequences which not only affect the other partner but also the family and society. This adulterous act attracts a savage and barbaric kind of a punishment which is given to any man or woman. Married man sleeping with unmarried women can not come under this crime.
• Divorce under Muslim law on the grounds of adultery is been referred as a Lian. In this, a man traduces false charges of an affair against his wife then this result in the deception of her character and then the wife has got the right to ask for a divorce.
• This mode of divorce is called Lian. Even if the husband has out of any aggressive nature or anger assassinated her of false charges then also she can file a case for divorce.

According to the dissolution of Muslim Marriage Act 1939, a woman married under this act can obtain a divorce against his husband if he indulges in the sexual intercourse with other women.

Christian Law

According to this law, the parties can take divorce under the Divorce Act 1939, section 10 (1)(a) of the act says,

“Any marriage solemnized, whether before or after the commencement of the Indian Divorce (Amendment) Act, 2001, may, on a petition presented to the District Court either by the husband or the wife, be dissolved on the ground that since the solemnization of the marriage, the respondent has committed adultery.”

Under Section 11 of the Act, it is requisite that the adulterer must be impleaded as a co-respondent in the suit, unless:

• That the respondent is living in adultery and the petitioner has no whereabouts with whom the adultery has been committed.
• The petitioner doesn’t know the name of the adulterer in spite of investing efforts
• The adulterer is dead.

The Code of Criminal Procedure, 1973 (CrPc)

There have been provisions laid down which tells about the extramarital affair.

A wife is not entitled to get maintenance from the husband if she lives in adultery. If an order has been passed to pay maintenance and later a proof is presented of her living in adultery, such order shall be cancelled by the magistrate.

If a person commits house-breaking by day with the intent to commit adultery and commits in the house so entered adultery with your wife he may be separately charged with and convicted of offences under sections 454 and 497 of the Indian penal code.

If a person entices your wife away from you, with an intent to commit adultery with her and then commits adultery with her, he may be separately charged with and convicted of offences under sections 498 and 497 of the Indian penal code.

What legal actions can I take if my spouse is engaged in sexual relationships with someone outside the marriage?

Judicial Separation

Hindu law

• If you are not willing to take a divorce then you can file a petition in the court to obtain a decree of judicial separation on the ground of adultery either by husband or wife. After obtaining the degree you no longer have to cohabit with your spouse.
• This will give you time to think over the situation and decide whether or not you want a divorce. If you fail to cohabit with your spouse for one year then either of the spouses can file for dissolution of marriage.

Christian law

You may file a petition for judicial separation under the sec. 22 of the Divorce Act on the ground of adultery.

Special Marriage Act, 1954

Judicial separation –

A petition for judicial separation may be presented to the district court either by the husband or the wife-

(a) On any of the grounds specified in sub- section (1) and sub-section (1-a) on which a petition for divorce might have been presented or

(b) On the grounds of failure to comply with a decree for restitution of conjugal rights and the court, on being satisfied with the truth of the statements made in such petition, and that there is no legal ground why the application should not be granted may decree judicial separation.

Where the court grants a decree of judicial separation, it will be no longer obligatory for the petitioner to cohabit with the respondent but the court may on the application by petition of either party and on being satisfied with the truth of the statements made in such petition rescind the decree if it considers it just and reasonable to do so.

Why Are Women Not Punished Under The Offence of Adultery?

• In the most part of the world, women are punished for this offense but exceptions are always there and the exception to it is that in India the women are not held liable.
• The laws were made by the British rulers’ in 1860 and at that time the social condition of women was equal to animals and they were treated like them.
• They were under the control of men and probably live their life in confinement. There was no education and no independence. The provision at the time it was enacted, the polygamy was at the peak and to abolish the practice of polygamy and this was believed that men’s firstly make sexual intercourse and then they marry to those women.
• There comes a case of K.M Nanavati vs. the State of Maharastra[5], there was a naval officer, who was charged with the murder of his wife’s lover. The facts go like that the naval officer Nanavati was married to Sylvia, his wife. Thereafter due to his (Nanavati) job he and his family migrated from one place to another. But finally, they shifted to Bombay. And then through a common friend, they met Ahuja, who was having a large automobile business in Bombay itself. The twist, in this case, comes when Nanavati has to go for his duty. Meanwhile, Sylvia and Ahuja became good friends and then they became intimate in their relationship. Now later she confessed the relationship about her and Ahuja. Unable to tolerate the deception, annoyed Nanavati decided to have a word with Ahuja. But before going to Ahuja’s house, he went to store of his ship to take the licensed revolver. When he reached there, he saw his servant but he directly went to Ahuja room and there he asked Ahuja to marry his wife and also take care of the children but he firmly refuses. After having a heated argument, accidentally in the fight, two bullets of Nanavati’s revolver strikes the Ahuja’s chest and in the consequence, he died. And then he was charged with the murder. But a woman was set free.
• There is the case of Yusuf Abdul Aziz vs. The state of Bombay [8] In this case, the appellant was charged with adultery and file the case in the high court of the Bombay to govern the constitutional pungency between the article 14 of the constitution and the sec 497 of the IPC. But the court dismissed his petition. Sadly he moves to the Supreme Court and their S.C establishes the relation between Article 15(3) and 497 of IPC.

The constitutionality of sec 497 was challenged before the court in the case of Sowmithri Vishnu vs. Revathi that it is the policy of the law that not to punish the woman and policies are not questioned.

Conclusion

• The question is about the legality of the act. After seeing the holistic views and ideas, this can be concluded that it is an illegal act and there are punishments given in the provisions. The state recognized the adultery as a criminal act or offense.
• Yes, this can be a gender biased law but we cannot see light at the end of the tunnel. The act was made i.e. penal laws at the time of colonial period and at that time women were treated as the mere possession of the husbands and they treat them like a slave.
• But the present world and society demands an amendment in the act and make women also punishable which is to some extent is valid and reasonable.

References

Sec 497 Indian Penal Code, 1860

Indian Penal Code, 1860

Code of Criminal Procedure, 1973

Hindu Marriage Act, 1955

1962 AIR 605 1962 SCR Supl. (1)567

http://www.prsindia. org/upload/media criminal law 2013

Barton JL, the Story of Marital Rape Law Q Rew 1992.

1954 AIR 321, 1954 SCR 930

In this article, Ashok Samal of HNLU, Raipur discusses Top 10 International Moots around the World.

• A Moot Court competition is a simulation of a real-life court experience where participants argue from both the appellant’s and the respondent’s side to bring about justice to the aggrieved party.
• However, it is not necessary that you shall lose if you have to support the offender. The one with the best speaking and research skills shall take the trophy. Moots are held both at national and international levels.
• Mooting helps in increasing the practical knowledge of the participants as they experience what they would have instead experienced in a later stage of their life.
• Here is a list of the top 10 international moots all over the world. These are the most reputed and renowned moots at a global level.

Stetson International Environmental Moot Court Competition

About the Moot

• Surana and Surana International Advocates group has been conducting the Stetson, India National rounds for more than two decades now. Counting for more than 20 years and still going on, students have never missed participating in any edition of the respected and reputed Stetson moot.
• Students coming from all over the world have been participating and competing with a fiery enthusiasm to take the prestigious trophy with them.
• A group of Students from Gujarat National Law University have won the recent and 21st edition of the moot held on the issue of climate geoengineering and its impact on oceans.
• The competition is held in the later months every year with different environmental issues being addressed through the moot.

How to participate

Interested candidates can go and register on the website through this link.

Rules

First, teams would have to participate in a regional round and then after qualifying the regional round they would get a chance to compete in the world rounds.

Other detailed rules regarding moot court procedure and marking scheme can be accessed from here.

Awards

The following awards can be won by a team, notably, the Champions trophy, runners-up trophy, semifinalists, three best memorial’s, five best oralists in the Preliminary Rounds and a best oralist in the final world rounds.

Price Media Law Moot Court Competition

About the moot

• The Price Media Law Moot Court Programme was established by the programme in “Comparative Media Law & Policy” at the Oxford University in 2008.
• The moot specifically has the noble aim of fostering and cultivating interest in the right to freedom of expression and the increasing responsibility of media and information technology around the world.
• The annually held Moot Court Competition encourages students to engage in constructive research of legal precedents and to construct their arguments on the latest and unanswered fields of media and ICT law.
• The competition’s regional rounds are currently held in five areas, namely, South Asia, Asia-Pacific, South East Europe, North East Europe, Middle East and Americas. Students from diverse nations and culture heavily participate in the International Rounds held in Oxford. Countries such as Trinidad and Tobago, Belgium, India, Lebanon, Serbia and Ethiopia also take part in these competitions.
• The Price Media Law Moot Court Programme is much more huge than a moot court, it’s an experience.

How to participate

Candidates can go to the official website of the moot to register, here.

Rules

Each team may comprise of minimum 2 members and maximum 6 members, along with one coach. For more detailed rules on registration, penalties, memorial submission, the candidates can access the official rule book of the competition here.

Awards

The Price Media Law Moot awards the following prizes namely, winners, runner ups, best memorials, best individual oralist and the best speaker in the final rounds.

Nelson Mandela World Human Rights Moot Court Competition

About the Moot

• The glorious 9th Nelson Mandela World Human Rights Moot Court Competition is into its 9th Year now with its 9th Edition being held this year from 18th to 21st July 2017 at  Palais des Nations in Geneva, Switzerland.
• The Competition is founded and sponsored by the Centre for Human Rights, having its base at the University of Pretoria, with the zealous support of the United Nations Office of the High Commissioner for Human Rights in Geneva, and is also in collaboration with the Regional Office for Southern Africa of the United Nations High Commissioner for Human Rights.
• Both undergraduate and master’s degree law students are eligible to take part in the competition. A team comprising of two students representing each university are invited to participate in the event.
• However, the organisers prefer it that the team should be composed of a man and one woman, to promote gender equality and women’s rights. This is a very appreciable move on their part.

How to Participate

All the universities are invited by the organisors to register once information is made available on their Moot website at this link.

Rules

In the preliminary rounds, the students submit heads of argument for a hypothetical case, which are assessed by a panel of experts. The best 5 teams from each UN region are then invited to participate in the pre-final and final rounds of the Competition in Geneva. Here, teams have to argue the two sides of the hypothetical case, the Applicant and the Respondent, before a ‘bench’ of human rights experts. The two best teams proceed to the final round, which is presided over by judges from international courts and tribunals. The Competition will be held in English. More detailed rules can be found here.

Awards

For related information, their brochure can be downloaded from here.

Philip C. Jessup International Law Moot Court Competition

About the Moot

• The Philip C. Jessup International Law Moot Court Competition, or more popularly known as the Jessup is supposed to be the largest, oldest and most prestigious moot around the world.
• Students from around 700 universities from 90 countries have participated in the reputed moot. A lot of universities and international organisations also define the moot in the same way.
• This moot is a realistic simulation of an imaginary dispute between nations, which then plead before the International Court of Justice.
• The competition is named after the famous Philip Jessup, who once served on the ICJ panel. The International Law Students Association is responsible for organising the said competition.
• It originally started as a friendly mooting competition between two teams from Harvard University in 1960. It started under the leadership of Stephen Schwebel, the author of the inaugural moot problem.
• In 1963, the first championship trophy was given away in 1963 and the doors of the competition were opened to international teams only in 1963. The university of Sydney was the latest champion of the event in 2017.

How to Participate

Candidates need to fill an online registration form available each year at the official website.

Rules

The official rules for the competition can be accessed here.

Awards

Details about awards and prizes can be accessed from here.

Henry Durant Human Rights Moot

About the Moot

• The reputed Henry Durant Human Rights national level moot is conducted every year by Indian Society of International Law and International Committee of the Red Cross in the memory of ICRC’s founder Henry Durant.
• Indian Society for International Law was founded in 1859 and was also inaugurated in the same year. It was founded by Pundit Jawaharlal Nehru.
• The principal objective of ISIL is to “foster nationwide, the study and development of International Law and to encourage the comparative study of the application of International Law in other States”.
• ICRC and ISIL have been collaborating successfully to conduct the Henry Durant Memorial Moot Court Competition, every year.

How to Participate

The regional rounds of the competition are to be held in India this time from 21st to 24th September in New Delhi. The venue for the regional rounds changes every year. The candidates can take part in this prestigious events by registering and filling up the registration form accessible here.

Rules

The speaker time in each round varies i.e., for the preliminary round they have a speaker time of 10+2 minutes and for the semifinals and quarters the permitted time is 15 minutes and for the finals, a total of 20 minutes shall be allowed at max. The detailed and official rules can be accessed in pdf format from this link.

Awards

The organisation offers a running trophy to the winning team along with medals to each winning participant. The detailed description can be found in the rules document itself.

Red Cross International Humanitarian Law (IHL) Moot

About the Moot

• The Red Cross International Humanitarian Law Moot is proudly organised by Hong Kong Red Cross Society and International Committee of the Red Cross in collaboration with Faculty of Law, the Chinese University of Hong Kong and Faculty of Law, the University of Hong Kong.
• The principal objectives behind organising the moot court competition is to raise awareness relating to international humanitarian issues among law students and to increase knowledge and application of International Humanitarian Law.

How to Participate

Students can participate by filling up a very simple registration form.

Rules

Each team shall consist of two mooters, one researcher and a faculty coach, if it shall be possible to being one. Further rules regarding scoring, disqualifications can be accessed on the organisers official page here.

Awards

The winning team shall be awarded a trophy, individual certificates and a cash prize of $ 2000. The runners up are given the same awards except the fact that they receive a cash prize of $ 1000. Further detail information can be found in Rule 22 of the official rulebook.

Manfred Lachs Space Law Moot Court Competition

About the moot

• The Manfred Lachs Space Law Moot Court Competition was started by International Institute of Space Law in 1992.
• It covers a total of four world regions, namely, North America, Europe, Asia-Pacific and Africa. Participation amounts to more than 60 teams in a year.
• The teams that successfully register get exclusive and free access to papers of the IISL’s colloquium proceedings from 2005.
• The regional winners out of the four world regions receive monetary support from IISL to attend the world finals.

“This moot finds its place along with other internationally acclaimed moots as it has a tradition of placing the Judges of the International Court of Justice in the bench presiding over the world finals.”

• The World Finals competition is conducted within the structure of the IISL’s annual Colloquium, which is an exclusive event in the International Astronautical Congress and is held on a different continent annually. This particular moot offers an uncontested Educational experience to all teams at all rounds.

How to Participate

To register participants need to simply fill out the registration form here.

Rules

Students who participated in a prior edition of the competition and won it shall not participate again. For further specific rules, you can refer to the official rulebook.

Awards

The winners receive the Manfred Lachs Trophy and also, best memorial and best orator awards are given by the organisation.

International Criminal Court Moot Court Competition

About the Moot

• The International Criminal Court Moot Court Competition is conducted annually by the Grotius Centre for International Legal Studies and was founded by the Pace Law School in 2004.
• The competition is held in the month of May in the Hague, Netherlands.
• Universities all around the world are invited for taking part in a large-scale moot court competition simulating the proceedings of the International Criminal Court (ICC).
• The Competition comprises of an extensive six-day social and educational program, which brings together students of different backgrounds and cultures to The Hague to test their skillsets as future international lawyers.
• The object behind this moot is to extend support for international law and the fight for liberty by gathering the young generations’ support.
• The Competition involves collaboration with judges from international courts and tribunals, professors of international criminal law, and other legal experts. This combination makes the moot court seem as real as possible.

How to Participate

The deadline for submitting the forms is October every year. For completing the registration process, completed registration forms can be submitted by email to ([email protected]) during the registration period only.

Rules

All participating teams must have to mandatorily nominate the name of one person to be on the panel. The list to select from shall be provided by the organisers. Selective rules can be found here.

Awards

ICC awards the winners, runners-up, second runners up and third prize. Further differentiated award list can be found at the end of the rulebook.                                    

The Annual Willem C. Vis International Commercial Arbitration Moot

About the Moot

• This prestigious international Moot is organized by the Association for the Organization and Promotion of the Willem C. Vis International Commercial Arbitration Moot.
• The objective behind conducting this moot is to promote the study of international commercial law and arbitration for the purpose of international business dispute resolution.
• The goal of the Vis Arbitral Moot is to foster the study of international commercial law and arbitration for resolution of international business disputes through its application to a concrete problem of a client and to train law leaders of tomorrow in methods of alternative dispute resolution.
• The business community’s likeness and the pacifying effect of arbitration as a method for resolving international commercial disputes is the reason it was selected as the preferable method to train law students through two important phases; the preparation of memorandums for the appellant and defendant sides and the hearing of spoken argument based upon the memorandums.                                                                   

How to Participate

The candidates need to fill the registration certificate before he can be held eligible. The registration form is easily accessible on the official website of the organisers.

Rules

Rules can be accessed from here.

Awards

Along with the winners and runners-up trophy many other prizes are given away by the organisation itself. More details can be garnered from the rulebook given above.

Leiden-Sarin Air Law Moot Court Competition

About the Moot

• The Leiden Sarin Air Law Moot Court is conducted by Sarin Memorial Legal Aid Foundation and International Institute of Air and Space Law of Leiden University in the Netherlands, along with thee Maltese Ministry of Tourism and the University of Malta.
• This is the eighth edition of the reputed contest. Students can to their advantage learn a lot from this moot court about international law and also can make a good contact base around the world.
• The Competition has been conducted this year from 6-9 April 2017 in Valletta, Malta.

How to Participate

In case more than 3 countries register from one country, a national selection round shall be held to determine which university shall represent the nation. A simple registration form is available on this link.

Rules

The competition shall be judged by three duly qualified judges in accordance with the rules of this competition available here.

Awards

There shall be a championship trophy which shall be given to the winners who will be decided on the basis of the aggregate number of team score.

Conclusion

This article representing these moots to be the best in the world, however, does not represent any kind of ranking of any sort. To determine that these moots are the best globally, their popularity among law students and their vibrant history has been considered. This is completely the authors’ analysis.

Participating in these moots has a great impact on a law student as it gives him unlimited exposure and a chance to make contacts on a global level. Although mooting is an art that requires specific skill set and sometimes years of experience to master, but this first ever Online course developed by champion mooters has made it simpler to ace the Mooting game. So gear up and mark the dates on your calendar, participate in these moots to experience on a practical level, what it will be, to argue in front of an actual court, against an actual lawyer.

In this article, Anu Bhatnagar of Amity Law School, Amity University Madhya Pradesh discusses India’s Role in International Space Law.

Only two things are infinite, the universe and human stupidity, and I’m not sure about the former.   

                                                                                                             -Albert Einstein

With a beautiful start of the Year 2017, in the month of February where youth were celebrating Valentine’s Day Indian scientist on 15 February made it possible to launch 104 satellites in a single take which were indeed record breaking event. It was a phenomenal achievement performance by the Indian scientist that overtook and defeated the Russian record of 37 in single launch quoted by the Current Prime Minister.

Currently, India does not have any legislation in the field of space law. Now the question arises that who governs or regulate national laws in the field of space. What are the provisions that ensure the peaceful environment and prohibition? This article has covered the above questions and laid down the suggestions as well for better implementation of legislation.

International Space Laws

• As we all know that Law is the rule and regulation that govern or make that framework which helps to regulate things properly. Let’s understand this law in the field of space. Technically speaking space is the place where waves don’t travel through vacuum.
• Space Law in an ordinary language can be understood as a practical approach to deal with the day to day problems that are happening in the outbound space.
• Another precise definition for space law “the body of regulations in international law that governs conducts in and related to areas of space above Earth’s lower atmosphere.”[1]

Legislation that governs International Space laws

Laws regulating the provision of space activities in India are divided into two points:

1. Laws related to space which are concerned at International level.
2. Laws related to space concerned at national level (i.e. Space Laws In India).

With that great initiative, there are five International agreement and treaties that regulate all the activities in the space.

It is to be noted that, it is a legal obligation and mandatory law for only to those countries or the member states that have signed it or ratified it.

At the United Nations Committee the agreements and treaties drafted with the objective of the harmonious and balanced uses of outbound space.

The Outer Space Treaty  of 1967  

Aim of the treaty

Regulate and supervise the actions and affairs of the member states. Moreover, all the activities which are related to the surveys or study and the use of outbound space (including all celestial bodies, and moon).

Effect and Year of Ratification right

Since October 1967, after going into the effect approx 103 countries have become signatory and ratified the treaty, which also includes UK, Russia, and US.

Functions and accountability

• It is an important and foremost treaty among the rest five treaties. Subsequently, the whole structure of the treaty is based on the laws which are beyond the planet (Earth).
• The deed which was signed by the member states lay down that those who are parties to treaties shall keep the peaceful environment and the non-militaristic area in the space. Also, the consensuses were given to the point that there shall not be any use of nuclear weapon in the space orbit or around the planet (Earth).
• Parties to the treaty shall not establish any form of military base, insert, or barricade and check any sort of weapons on celestial bodies.The principle of outer space treaty is stated as like space or the universe is not personal property it is defined as the common heritage of all mankind. All nations may with due diligence avail the all beneficial services but with the restrictions pertaining to the protection of the celestial bodies.
• The stated prohibitions do not bound the legal entities and the private individuals.One disadvantage has been noted that the treaty doesn’t specifically mention the exact address at which the non-nuclear-weapon is supposed to be placed.

The Rescue Agreement of 1968

Aim of the treaty

The Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space.

Effects and Year of Ratification

Since 19 December 1968, As of May 2013, 92 States have ratified the Rescue Agreement, 24 have signed, and two international intergovernmental organizations (the European Space Agency and the European Organization for the Exploitation of Meteorological Satellites) have declared their acceptance of the rights and obligations conferred by the agreement.[2]

Functions and Accountability

• It elaborates and expands the duties and responsibilities which are mentioned in outer space treaty.
• The can be understood as the aid or an assistance must be provided by the member states to the respective astronauts in their distress time. For Example: if an astronaut gets struck during his/her journey to space, then it the responsibility of the member state to provide assistance to the astronaut.

The Liability Convention of 1972

Aim of the treaty

International Liability for Damage Caused by Space Objects.

Effects and Year of ratification

Since 1 September 1972, As of 1 January 2013, 89 States have ratified the Liability Convention, 22 have signed but not ratified and three international intergovernmental organizations (the European Space Agency, the European Organization for the Exploitation of Meteorological Satellites, and the European Telecommunications Satellite Organization) have declared their acceptance of the rights and obligations provided for in the Agreement.[3]’

Functions and Accountability:

• Same as the Rescue Agreement, the Liability Convention was taken into the consideration to define liabilities which were mentioned in the outer space treaty.
• The principle of this Convention says that the party or the member state whosoever launching any space objects would be absolutely liable for any cause damage caused by the space objects on the earth or aircraft or any damage which caused in the space itself. For example: if any space object launch by the party due to some negligence or mistake damage caused. The damage caused either at the surface of the earth, aircraft or in the celestial bodies itself; there shall be an absolute and strict liability of the launching party. Possible damages could be collision of any two satellites, personal injury, loss to the property etc.

The Registration Convention of 1975

Aim of the treaty

Registration of Objects Launched into Outer Space.

Effects and Year of Registration

Since 15 September 1976, As of November 2016, it has been ratified by 63 states[4]. The member states which have signed, but not ratified those are Burundi, Iran, Nicaragua, and Singapore.

Functions and Accountability

• The objective of this convention is to ensure and protect the peaceful use and right use of space environment by registering the space objects that are going to be used during the launch by the member party.

Following are the information that is required by the Convention:

• Name of launching State.
• An appropriate designator of the space object or its registration number.
• Date and territory or location of launch.
• Basic orbital parameters.
• The general function of the space object.

The Moon Treaty of 1979

Aim of the treaty

Governing the Activities of States on the Moon and Other Celestial Bodies.

Effects and Ratification

Since, July 11, 1984,  As of November 2016, it has been ratified by 17 states. In practical approach, this treaty has failed because the major space powers namely US and Russia hasn’t signed and ratified this treaty.

Functions and Accountability

• Last but not the least convention, but most controversial treaty. It states about the whole prohibition and restrictions on the use of nuclear weapon and the objects that cause mass destruction in the space.
• It extends the outer space treaty and states that any claim by the party on the moon and on the celestial bodies would amount to violation of the peaceful use of space because the resources which are available in the space are subject to all mankind.

Space laws at national level (i.e. India)

It is laudable to note that India is a member of the above-mentioned conventions

1. The Outer Space Treaty of 1967,
2. The Rescue Agreement of 1968,
3. The Liability Convention of 1972,
4. The Registration Convention of 1975, and
5. The Moon Treaty of 1979.

Background

• India is the country which has tremendous resources in the field of scientific research with great amount of population of scientist.
• The person behind this mission and vision of having space law in India was our great leader Mr. Jawaharlal Nehru.
• This initiative first got into process on 1975 under the guidance of United States. A space object called small sounding rockets was launched from the station named Thumba Equatorial Rocket Launching Station (TERLS).
• First satellite in 19 April 1975 namely Aryabhatta was launched by India.
• The launching of SLV-3 in July 1980 brought Asian nation additional near the dream of achieving native satellite launch capability.
• With the launch of Polar Satellite Launch Vehicle (PSLV) on fifteen October 1994, Asian nation achieved the native satellite launch capability.
• Asian nation has currently specially created PSLV and Geosynchrous Satellite Launch Vehicle (GSLV).

International Space Laws: India’s Role

• Contributing factors embrace rubble from Associate in Nursing ISRO satellite falling on a Japanese fishing village, rockets berating on the launch pad and damaging alternative payloads from multiple countries, and therefore the large 104 satellites initiated area creating India accountable for any accidents that happen.
• With Antrix Corporation, ISRO’s business arm, increasing centered on being a launch service supplier, the requirement for a national area policy becomes even additional stark. We have each capability to affix leading nations in gather resources from area, and wish to possess a transparent position and capability to handle legal problems.
• World organisation treaties from 1967 aren’t any longer capable of addressing the challenges of the weaponization of area and India has to consolidate its position as a world area power that has reached Mars.

India has continuously explored area in an exceedingly peaceful manner and may become a serious moral of demilitarization during this era of killer satellites once the 2007 check by China. If Bharat needs to encourage non-public investment during this sector and transcend its government monopoly on area, it must have an outlined area law on the books. ISRO would be ready to look on the {far side} the day to day activities of satellite launches and invest its time and resources in additional far-reaching endeavours. Current proposals embrace industrial zones close to the area port on Sriharikota further as city. With 100 percent FDI being planned by the govt, this looks to be following massive wave that may catch the imaginations of voters, businesses, investors and researchers to call many.

Conclusion

Space laws are often delineating as that branch of law that is applicable to and governing the house law connected activities. The housing law is that space of law which incorporates all the national and international conduct within the space. The Republic of India doesn’t have any legislation on house and house connected matters.

Our Indian legislation ought to incorporate

1. The legal problems connected to launch services (space transportation systems);
2. The legal problems connected to satellite telecommunications, as well as satellite broadcasting;
3. Analyze problems associated to earth observation services further as processing and distribution;
4. Satellite steering systems and
5. Analyzes the property.

Refernces

1 Definition of Space Law, Encyclopedia Britannica Online: Academic Edition 2011 available at http://www.britannica.com/EBchecked/topic/557401/space-law

2 Rescue Agreement available at https://en.wikipedia.org/wiki/Rescue_Agreement#cite_note-1

3 Space Liability Convention available at https://en.wikipedia.org/wiki/Space_Liability_Convention

4 Registration Convention available at https://en.wikipedia.org/wiki/Registration_Convention#cite_note-3

This article is written by Ramanuj Mukherjee, Co-Founder and CEO of iPleaders, mbl.nujs.edu, startup.nujs.edu.

Energy law is a little new to all of us. Most of us do not have much idea as to what one can do if one specializes in energy law. At iPleaders, we created one of the most sought after specialized degree course in energy law offered by NUJS, Kolkata, and quite a few high ranking professionals and lawyers are pursuing the same. However, we have been getting increasing number of questions around career opportunities that are available to lawyers and policy experts in energy sector. What are the best jobs? What are the growth predictions? Is it a good idea to choose a career in energy laws at this point? Well, let us give you all the information you need to make your decision.

General outlook on Energy Laws as a career avenue

It goes without saying that energy sector now holds the key to human civilization. Growth is only possible beyond current levels if we learn to harness greater amount of energy. Along with the damage that fossil fuel is doing to the world, which makes it costly for every living being but especially hazardous for certain countries, people and organizations, the tremendous hunger for more energy across the world means that the energy sector is set to experience trailblazing growth in years to come.

It is often said that India’s growth story is linked to the fortunes of the energy sector. Energy consumption in India has grown at a compound annual growth rate of about 6% during the last decade. BP Energy Outlook 2035 expects India to achieve the fastest energy consumption growth among all major economies in the coming decades. The total energy consumption is expected to grow by 128% by 2035. Demand for gas is expected to expand by 155%, followed by coal (121%) and oil (118%), while demand for renewables, nuclear and hydro are estimated to rise by 656%, 334%, and 99%, respectively.

As the number of power projects for generation, efficient distribution, pricing etc. are growing, so are the complications related to their finance, compliances, viability, contractual disputes, litigation. One key driver of legal work in this is regulatory litigation as we see government relinquishing more powers to tribunals headed by technocrats who hear both sides before making major decisions that can make or break fortunes, increasing importance of lawyers and legal researchers in the sector.

Also, this is an unique sector that requires special skills and abilities, and not lawyers of all hues and colours can simply pick up an electricity or oil and gas matter. Energy laws is strictly the domain of specialized professionals.

I would go out on a limb here, and say that on basis of these above factors, energy law is one of the top 3 career choices for lawyers at the moment as far as legal profession in India is concerned, and especially for those who want a desk job. The number of jobs opening up in this sector will be difficult to match in years to come, by any other sector, by a long shot.

Where do these career opportunities exist in energy sector?

I went ahead and did some research. I spoke to a bunch of energy lawyers and figured out the brightest opportunities which have sufficient size to provide employment to enough lawyers and managers.

So what are the best possible jobs lawyers specializing in energy laws could bag? Here you go.

Regulatory Litigation – Electricity laws

This has emerged as one of the best paying jobs possible for any lawyer. While regulatory litigation in the general is very lucrative, it is especially so in case of electricity lawyers. It is however notoriously difficult if you do not have a knack for technical things that may require some number crunching. At least 3 good lawyers I know attempted electricity law litigation and advisory and quit in under 6 months. It is tough. It is an expertise which is very hard to come by at the moment, so it is very well paid. Initially it was mainstay of a few boutique law firms, but now all of the big law firms have woken up the the possibility in regulatory litigation generally and have been hiring partners who can run their electricity litigation practice. There are also senior advocates of the Supreme Court and High Courts who focus on this sort of litigation. There is still a lot of opportunity for young lawyers to make a mark here – either by working with a law firm or straightaway starting a law practice.

Power Projects – finance and compliances (Projects practice)

Lawyers who work on finance and compliances related to power projects are popularly called project lawyers and every big law firm worth its salt has a huge projects tea. Back in 2011-12, when I was working at Trilegal, by a coarse estimate I can say one third of all lawyers employed by Trilegal at that time were project lawyers. There are huge project teams in SAM, CAM, Luthra (one of the early success in this domain), JSA and all the others. Most of them have specialized practice groups inside the project practice which exclusively handled electricity practice.

Until now, junior lawyers rarely come with any experience, skill or knowledge of electricity law or anything about power industry for that matter. However, if you could show you do indeed have specialized knowledge or skill, a world of opportunities await you as you will be considered a prize junior.

What would you be doing in this role? You are likely to find yourself advising clients in building and operating major power projects and securing production and distribution business. You will have to understand and be aware of the risks and opportunities arising at every stage from conception to drawdown and from production to consumption. You will have to negotiate and draft the project documents, including Concession Agreements, EPC Contracts, O&M Contracts and financing and security documentation, Power Purchase Agreements, Fuel Supply Agreements, Land Agreements, Construction Agreements, Production Contracts, Implementation Agreement, and BOOT projects. You will be drafting Shareholders Agreement and other Risk Management Documentation and might be advising clients like National Thermal Power Corporation, Power Grid Corporation Of India Ltd., Tata Power, Reliance Projects etc. on the financial and energy regulatory and litigation aspects of their business.

In the electricity sector, project lawyers may act for state owned, public and privatized power generation, transmission and distribution companies. Increasingly, a specialized band of lawyers are advising clients on issues relating to renewable energy including solar energy and wind energy. You will have to advise your clients on tax, loan, insurance and guarantee, counter-guarantee documents, joint venture, joint operation and maintenance agreements, opportunity exploration memorandum of understanding and related agreements.

A smaller but very critical part of this is to take care of regulatory and environmental compliance related to power and energy projects, for which companies usually hire in-house teams. Big power corporations are increasingly setting up larger and larger legal teams.

Energy Policy Advisory

Public interest in the energy sector is really heavy, and that attracts a lot of government interest. Power sector, from power generation, transmission, distribution, to retailing – is highly regulated and there is a lot of policy interference from the state of central governments. As investors and lenders pour in large sums into these companies, they need their top executives as well as decision makers at every level to be aware of government policies, develop an understanding of where future policy making might be headed and ensure effective representations to the authorities that make these policies as well as those who implement them, failing which running a power business may prove very costly.

Naturally, the need of the hour are clued-in, experienced policy professional with the right links in the industry as well as the bureaucracy who may also have the ears of politicians. These professionals play a major role in bringing efficiency to India’s energy sector, and have helped the government in the past to come up with the right policies that help the consumers as well as fosters entrepreneurship and innovation in the power sector. Sometimes, it is not just the private parties that hire policy specialists, in the past the government has engaged their services many a times.

Hence, you can definitely say that these policy professionals play a very important role in the energy sector. In the process, policy experts tend to earn really good money.

While several law firms have senior partners who can play this role, increasingly clients are turning to specialized policy practices or policy advisory firms.

Oil and Gas Contracts

Oil may be on its way out, but there is gas and then there is fracking and definitely the era of fossil fuels is not getting over in our generation or probably not even the next. And the point is that lawyers who deal with oil and gas contracts make a fortune. This is again a area for specialized professionals. Please don’t indulge into the idea that while you are having your nice civil law or real estate law practice, on the side you can do an oil and gas matter on the side. It is something that takes dedication and a specialized knowledge of the oil and gas industry.

Oil and gas account for 41 percent of India’s energy consumption. The government has permitted 100 percent FDI in almost all areas of oil and gas sector that includes exploration and production (E&P), oil marketing, refining, and oil product pipelines.

Oil and gas contracts practices of major law firms will usually be devoted to providing clients with advice, representation, negotiation, and drafting concerning a wide variety of agreements for oil and gas exploration, acquisition, and production.

A key part of oil and gas contracts is identifying the matters that are of the most significance to your clients so that you can seek to achieve those goals. In addition to price issues, often there are many critical matters that must be understood, such as on-time performance and allocation of risk for unknown matters, which are usually bitterly negotiated. Typically, other important terms concern risk allocation, defining the rights and obligations of parties to ongoing contractual matters (such as joint ventures), identifying special rights that may arise in certain circumstances (such as a failure to make capital contributions or achieving earn-in), and matters that require precise definition (such as the acceptable deductions in a net profits interest calculation). This is where good negotiation skills, experience in past deal, knowledge of the industry and regulations come real handy, and good lawyers are highly rewarded simply because the stakes involved are usually massive.

Many oil and gas contracts include ongoing relationships between parties, such as joint ventures, earn-in agreements, and master service agreements. Your role as oil and gas contract attorney in these situations will be to identify potential legal risks and neutralize them. You might also have a role to play in full blown disputes over such contracts.

Oil and gas contracts lawyers will have to draft and assist their clients in negotiating exploration and Production Sharing Agreements, Gas Transmission Agreements, Farm-in/ farm-out Agreements, LNG Supply Agreement, Pipeline Transportation Contracts, Power Purchase Contracts, Fuel Supply Agreements, Shipping and Bulk Carriage Contracts, Contracts for the Purchase and Leasing of Rigs and other drilling equipments, Natural Gas Gathering and Processing Agreements, Leasing agreements for mines etc. They advise their clients routinely on development, transfer and termination of agreements, taxation, and private participation in government contracts.

Oil and Gas Projects – finance and compliances

Apart from drafting oil and gas contracts, another major area of work for lawyers are oil and gas projects which require some special knowledge and skills. These lawyers have to handle oil and gas transactions from upstream to downstream, including pipelines, liquefied natural gas (LNG), distribution networks, trading and petrochemicals. They may work on development, mergers and acquisitions, joint ventures, privatizations, finance, tax, environmental or litigation work related to oil and gas transactions.

In light of a lot of FDI coming into this sector, they also advice foreign oil and gas companies on establishing wholly owned subsidiary in India or investing in Indian oil and gas companies. Usual clients include public and private sector companies as well as foreign companies.

Renewable Energy

There is no doubt that the maximum growth is definitely happening in this sector. Although the famous cleantech bubble has popped, taking down a host of renewable energy companies with it, it has survived and gained momentum since then. In any case, the work of lawyers have drastically increased over the years and there are really few who can claim any expertise in this field. As usual, most of the work in this sector involve either finance and compliances related to projects, ranging from solar to offshore wind energy units, or contracts. Currently, electricity lawyers handle a big chunk of renewable energy matters, especially due to lack of trained lawyers in this area, but clearly in times to come specialized lawyers will be preferred if they are available.

Nuclear Energy

Just like renewable energy, atomic energy or nuclear energy is also a growing sector. Interestingly, the lawyers who practice in this area are a distinct bunch from other energy sector lawyers. Again, a highly specialized practice area that is expected to grow rapidly. Apart from the usual finance, compliance and contracts work, another major angle here is waste disposal since nuclear plant waste is deadly and very hazardous. Appointing lawyers or those with sufficient knowledge of laws and regulations to ensure safety and compliances, apart from drawing up appropriate safeguards and internal policy is industry standard.

Consumer disputes over electricity supply

This is a great opportunity in big cities as consumer disputes involving electricity is very common. Consumers, both individuals and large organizations with substantial legal budget, complain of inflated bills, faulty power supply or equipment, illegal disconnection, harassment by employees or agents who collect bills etc. and often have to move to court to get justice. As numbers of these cases grow, indeed litigators could develop a strategy to attract these consumer matters if it suits their practice.

Rehabilitation and Resettlement of Project Displaced people

Well, indeed this has opportunity for fewer lawyers and big law firms do not get into this. However, increasingly, this is being handed over to professional organizations who take care of the project displaced people and rehabilitate them according to government policies. This space is very good for lawyers or those with adequate understand of law. As these projects involves both big sums and good karma, those with a bend of mind to contribute to the society should definitely consider it.

How can you learn energy law?

If you are excited about the career prospects after reading about the kind of work that energy lawyers do and why a massive growth in opportunity and salaries is expected in this sector, you might want to go ahead and study it. Well, here is the deal. There are no places in India where you could learn the work described above as a student. Currently, people graduate from law schools, secure entry level jobs or internships (very hard to come by for most) and then learn the work on the job.

We wanted to change that, and hence introduced an amazing online master degree course from one of India’s top law schools, M.A. in Business Laws with specialization in Energy Laws. In this course, you will get the practical knowledge you may need to take your first step in the energy sector as a lawyer very confidently. With the knowledge you will acquire from this online course taught entirely by professionals, you will not only impress your interviewers, peers and superiors at work, you will truly be able to make a contribution to your clients.

If you are interested, please visit the energy law course page here and go through the syllabus.

In this article, Shitij Oberoi of VIPS discusses the legal consequences of having two PAN cards.

Purpose and Utility of PAN

Permanent Account Number popularly known as PAN card is used for the various purposes like opening any account with the bank, making transactions, credit facilities, loans or even as an ID proof but the most vital purpose of the PAN card is for the tax purposes. Income tax is filed by an individual with the help of the unique Permanent Account Number which is 10 digits alpha-numeric according to new series. An individual can also be a minor, company or body corporate in the name of whom a PAN can be issued.

After demonisation row linking of AADHAR card and PAN, card linking is made mandatory. The track is to be kept of users having different bank accounts on same PAN number and bank account is also to be registered with the PAN. Cash transaction above 2 lacs are also now prohibited. So PAN card is required for cheques and even for cash deposits. So in the above said situations PAN comes handy for the individual.

What are Multiple PAN or Duplicate PAN cards?

Multiple or duplicate cards are simply to say more than one PAN card or PAN numbers issued to the same individual.

Section 139A (7) Income Tax Act, clearly states that no individual shall apply, possess or obtain more than 1 permanent account number under the new series.

There can be a possibility that an Individual might be having more than 1 Permanent Account Number without being in his knowledge. But it is not illegal to have 2 Physical PAN cards of the same number, latter would be called as just a PAN’s copy.

So it is very important to know the circumstances and instances under which the person cannot possess multiple PAN, which are as follows

• Multiple application by one individual-  Let us assume and say if you have applied for a PAN via the online method and you have submitted the application and but it is taking too long for the PAN to reach you. The person who applied may think that there could be a technical jargon or application might have been rejected by online database due to various reason. Hence, the person applies for an offline mode to apply for PAN through physical form and submitting the same to the Assessing Officer. Now in this case later when he will receive both cards it would be having 2 different Personal Identification Number issued to the same individual. This is the case of multiple application by a person hence it is always advised to be patient and wait a bit longer before taking any further step.

• Change in the PAN details-  Change in the PAN can be like Address or Name. Generally, it is observed that after marriage women change their surname to husband’s family. So sometimes the applicant instead of giving application for change in the PAN they submit a new application for PAN which results in more than one PAN.
  Similarly, in the case of change in address it is many times observed that applicant files a new application. In the case of change in address it is not mandatory for a PAN holder to get it rectified but it is advisable that only the CORRESPONDING ADDRESS should be changed. The address change does not require a fresh PAN application hence it can be done on the existing PAN via the website or offline form method.
  

• Intent of the PAN holder- An individual who has deliberately obtained more than 1 PAN for the purpose of tax evasion, defrauding the tax agencies and government or to manipulate income etc falls in this category. These type of Individuals attract penalty and various other serious consequences.

Is it Legal?

The answer is straight and blunt ‘NO, it’s not‘. It is not only unethical but it is an offence as per the law with a liability of fine also.

Section 139A (7) Income Tax Act reads as: No person who has already been allotted a permanent account number under the new series shall apply, obtain or possess another permanent account number.

Section 272B of Income Tax Act talks about the imposition of the fine of Rs. 10,000, upon failure to comply with section 139A and moreover any person when asked to quote his Permanent Account Number and quotes false Permanent Account Number shall also be fined by the Assessing Officer.

Consequences and Legal Implications for having multiple PAN cards

As mentioned above Section 272B of IT Act imposes the penalty of Rs 10,000 upon the offender with intent to defraud. The Assessing officer after hearing the person who is to be penalized can fine him if he thinks that the person has done it for purpose of hiding income or tax evasion. [Section 272B(3)]. The opportunity of being heard is given to differentiate between a genuine case of omission where the PAN holder himself is not aware that he is possessing more than one PAN from those who intentionally do it.

Bank Credit/Loan– Since loan and credit facility require PAN is one of the required documents and any discrepancy in PAN can result is the rejection of the loan or credit facility. The bank classifies multiplicity of the pan as Intentional fraud which directly questions the person’s ability to repay the debt. Hence, they reject the application. This is not only construed as a financial fraud but has the potential to get all the credit access blocked despite having a good CIBIL score. CIBIL is basically the score of a debtor in repayment of loans and credit based on his past track records like timely payment of installments etc. A person with a bad CIBIL score also has a possibility to get a loan but once a person gets into the blacklist of a bank he will not get loan or credit under any circumstances. As of now the blacklist database is not shared among the banks but it is kept within the bank but once the Anti-fraud database is shared then he might not get the loan from any other bank also.

Other implications are that a person can be asked to surrender the duplicate or multiple cards to the assessment officer in whose jurisdiction the individual or assessee falls.

How to surrender the duplicate/multiple PAN?

Surrendering the card by the Individual in order to help the authorities would not amount to penalties unless there is some intentional fraud committed by that person. Surrender basically means to cancel and submission of that PAN which is not required. So Basically there are 2 methods to do it, namely manual/offline and online.

• Manual/Offline Method – Individuals seeking to surrender or change the details of the PAN can do so by filling PAN change request Application Form and submitting it to the assessment officer under whose jurisdiction the individual falls. In that form under column 11, an individual can mention the PAN which he wishes to retain and the one which he wishes to surrender. A copy of such PAN should also be submitted along with the application and after submitting the form the acknowledgement slip has to be retained for any future references and in case any dispute arises which will work as a proof of surrender of PAN. 

The form for cancellation can be downloaded from the following link.

• Online Method – The Individual can do so by logging on to the official site of the Income Tax Department which is  http://www.incometaxindia.gov.in/Pages/default.aspx  and filling in details of the Individual.like their name, address, DOB etc. Further, the individual has to mention details about the PAN he is willing to retain and the PAN he is willing to surrender. After submitting the application acknowledgement is received and an individual shall retain it for the future references. So through this online process surrender can be done.

Conclusion

So it is highly not recommended to have more than one PAN as it can lead to some serious consequences and can attract penal liability along with the fine imposed under the IT Act. So to aid the government and the tax authorities it is always advisable to surrender the PAN if there are more than one with the individual and in case if the holder is unaware of the fact that he is holding more than 1, then it should be surrendered immediately after the individual comes to know without any delay.

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

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

In this article, Ashima Bhargava of Amity Law School, Lucknow, and Richa Ray, pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from Lawsikho, put forth the legal actions which can be taken on data theft.

Introduction

When it comes to Data Theft, there is a very old and famous saying:

Control + Alt + Delete when you leave your seat

In very simple words the slogan writer clearly says how we can stop data theft by hackers but what should we do when it is done by one of our employees? To find out the solution, It is very important to understand the meaning of Data Theft. It means an act of stealing digital information on computers, servers and electronic devices of an unknown victim with the intent to compromise privacy or obtain confidential information.

Many employees actually don’t even know that they are committing data theft. They think taking corporate data with them is as similar an offence as taking paper clips home but sometimes there is intentional data theft by the employees so that they can cause loss to their current company.

When we, as common people, hear the phrase ‘data breach’ or a story about cybersecurity, the initial thought that comes to us is that it is a result of actions of a sophisticated hacker. Yes, industries are of course getting targeted by sophisticated cyber-attacks however, many unsophisticated data breaches are happening every day where employees are stealing data and trying to profit from this in some or the other way.

In the case of the ‘Wolf of Manchester’, Shane Jerman took photographs of customer information while working for AXA Insurance, sending 100 lines of data a week via Whatsapp to Stuart McGill who was a former employee of the firm in a six month period in 2015.  Investigators believe that the claims management company Mid North West Ltd. would have used the data to call AXA customers and try to refer them onto solicitors who would aid with their accident claims. Jerman and McGill made a total of £18,250 between them. In 2018 Verizon found that 28% of all its breaches were insider jobs and most of them were done for profits, while ‘pure fun’ was also one of the motivations.

In another case in May 2015 Jawbone accused Fitbit, in California State Court, accusing its rival of systematically plundering confidential information by hiring Jawbone employees who downloaded sensitive information shortly before leaving. As per the complaint Fitbit approached nearly 33% of Jawbone’s employees in early 2015 who then chose to leave the company and while doing as such they downloaded the data, such as Jawbone’s current and future business plans and products. According to court filings, those individuals used thumb drives to download records and used programs to cover their tracks or erase system logs.

In another incident, SunTrust Banks Inc. reported data theft by an employee who is alleged to have stolen important information of about 1.5 million customers and provided it to a “criminal third party”. Therefore, the employers should keep in mind the various measures that they can take to prevent the company’s secret from leaking out by the employees who are entrusted with the company’s sensitive information. For this, they need to upgrade the policies and enhance data security.

Understanding data theft

The major issue regarding data theft is its international character. The data of the country is being leaked by the foreign countries and then there are a lot of manipulations and ultimately the consequences of such things are felt in India. Also, there are a lot of lack of coordination between the different agencies on how to tackle such situations. So here we need to find out whether there are any specific laws or any legal actions which need to be taken to prevent such activities. Does India have sufficient laws? In the Information Technology Act 2000, there are certain laws which deal with such crimes. Therefore, here we will be discussing the legal actions that can be taken if any such thing happens.

Motivations of data thief

We can easily classify the various types of Data thief. Some of them are –

a) The Clueless

This category tops the list as they lack even the most basic security awareness and become victims to every phishing attack since they start clicking on every link. They are those people who send the company’s attachment to wrong people disclosing profit margins etc. They somehow unknowingly share company documents on public services or through chat services and social media.

b) The Entrepreneur

Next comes in the list those employees who are planning to leave the company or start their own company and in the process start to gather company data during their notice period. In some cases where the IT fails to revoke all the access permissions, they gather data by using their active credentials before leaving the company eg. Customer lists, document templates, policies and procedures, all these are huge time savers in a new company.

c) The Criminal

This is the category of people who are only motivated by financial gain, their only aim is to gather data to sell it elsewhere.

d) The Disrupter

This category is motivated by revenge or malicious intent. Users in this category delete or remove important data to disrupt operations. Mostly, IT professionals, if involved, fall in this category as they have the permissions to enter the database and cause some real damage before they leave.

e) The Legal Expert

Last but not the least, this category users believe that they have some claim on the work that they have produced on the workplace but unfortunately, copyright law does not apply to projects completed at work and on company equipment. 

Legal actions to take on data theft

If we compare ourselves with any person who is very active in this day-to-day world of business and information technology, one thing always pops up in our mind that what will we do if our data is lost, if someone takes it through hacking or by using our wifi connections. Another question arises in our mind that how the law can help us cope with this kind of situation. What about any legal actions, if they can be taken? Does Indian law is competent enough to help us?

To begin with this, we do have specific laws by which we can proceed to the court for imposing the restrictions on any person who is responsible for the same. So, for now, I will be talking about the laws which are there to help us in punishing that particular person.

SECTION 43 OF THE INFORMATION TECHNOLOGY ACT, 2000 (Penalty and compensation for damage to the computer or the computer system)

If any person without the permission of the owner or the any other person who is the incharge of the computer, computer system or any computer network

• If he accesses or secures access to such computer, computer network or any computer system,

• If he downloads, copies or extracts data from any computer based information from any computer network,

• If he introduces or causes to introduce any computer contaminant, or a virus into a computer, computer system, or a computer network,

• If he damages the computer, computer system, or a computer network,

• If he disrupts or causes disruption of any computer, computer system, or a computer network,

• If he denies any person who has a right to access that computer, computer system, or a computer network,

• If he destroys, deletes any information from the computer to which he has no right to access,

He shall be liable to pay for damages by the way of compensation which would not exceed more than one crores rupees to the person who has heavily affected.

Section 66 of the Information Technology Act, 2000 (Computer-related offences) 

Whoever intentionally or knowingly conceals, destroys, or alters or causes another, intentionally or knowingly to conceal, destroy or alter any computer source code for a computer, computer based programming, computer network, when the computer source code is required to be kept or maintained by law for the time being in force shall be punishable with imprisonment upto three years or with fine which may extend to two lakh rupees or with both.

If any person, dishonestly or fraudulently, does any act which is inconsistent with the provisions of section 43, he shall be punishable with imprisonment for a term which may extend to two three years or with fine which may extend to five lakh rupees or with both.

Section 75 of the Information Technology Act, 2000 (Act to apply for the offence committed outside India)

If an offence is committed outside India, irrespective of a person’s nationality, if the act or conduct constituting the offence involves computer located in India, the person shall be made liable.

Section 378 of the Indian Penal Code

Although the section deals with the movable property only and data is itself an intangible so it doesn’t come under theft since the data is stored in the floppy, hard disk etc so such things act like a medium and medium is movable property and if that medium is stolen, the person can be made liable for such act.

Data theft and misuse when offshoring data to India

As the number of companies is growing in India, they are becoming more centralized and using less expensive information, consequently, they are now turning to offshore outsourcing to fulfill many of their of their business and human resources processes. So in order to protect the companies from the becoming the victim of data theft, there are some preventive measures. In this wake of concern of data security and privacy in India, the NASSCOM (National Association of Softwares and Service Companies), one of the most recognized organisation in the Information Technology sector has put in several measures to control such data theft and misuse of the same. Like if a company has to deal with the data theft, they will file a complaint in the police station or the Cybercrime centres but what if the company believes that the police or the cybercrime centre does not possess such capacity to help the company then they will go to the CBI or the Central Board of Investigation, it is an independent body, autonomous body who has themselves trained the cybercrime units. They will look into the matter cautiously and come up with a value judgement. The company can also file a criminal complaint under the information technology act. Upon the receipt of the complaint, the controller of the certifying authorities investigates allegations and can order for the punishment of an offender under the provisions of the IT Act.

How to file a complaint on data theft

To file a complaint if data theft takes place, here are the following measures:

1. First of all, for the cyber complaint, write an application to the head of the cyber cell.
2. Provide the following things in the application:

• Name
• Address
• Email address
• Phone number

3.   In case of hacking or say Data theft, the following details are required for cyber cell    complaint:

• Logs of the server
• A hard copy and soft copy of the defected page
• If the data of the defected site is compromised you will need a soft copy of the original data as well as the compromised data.
• Control mechanisms details of access in which you have to tell who has accessed your computer.
• If you have any doubt or you are feeling suspicious about anyone, then you have to provide the list of those suspicions.

4. You can file a complaint from any of the cyber cells of the city or you can directly mail at their respective websites. Here is the complete information of the prominent cyber cells of the country. You can refer this link for the same.

How to Register Cyber Crime Complaint with Cyber Cell of Police – Online Complaint Procedure

What employers should do

Today, practically there are endless options to share data making data theft an easy way to harm a company. To name a few ways that we can share data in a digital workplace, we can transfer any number of data between devices, take a photo with smartphones, transfer to any number of cloud services and multiple storage options etc. Current security practices are often focused on the external threats without giving much emphasis to the internal theft but now, this flaw is receiving more and more attention.

To protect his company an employer should consider as many solutions as possible. All the below-mentioned solutions can reduce the risk of insider threats if applied.

(a) Documentation

Companies must draft a detailed data governance policies handbook which includes all the requirements of the company, as part of the hiring process. These policies must include the types of data like ‘personal data’, ‘confidential data’ etc. and also identify the data that an employee is permitted to access and also that company is the owner of the data that is created by the employee during the course of his/her employment.

(b) Better technology

To prevent the employees from installing any software and hardware that belongs to the Company, Employers should ensure that all computers, devices and systems are encrypted. Companies should install firewalls to prevent the outsiders from entering the company network. Employees should not be allowed to create CDs/DVDs or copy data to USB unless there is any business need.

(c) Whistleblowers

Companies should reward those employees who give a tip of any suspicious user activity.

(d) BYOD

BYOD, in other words, bringing your own device might save the employees on their budget but it poses an unnecessary and unacceptable threat of data leakage. Employee’s tablets and phones could be used by their family members who can access ant company data on the device.

(e) Install snort

Snort detects unusual activity on the Company’s network that might be the precursor to an employee running off with the company’s database. It is worthwhile software as it detects disgruntled employees before he or she does any damage.

(f) Exit formalities

Upon termination, it is important for employer to secure all the electronic devices of the employee which includes computer, phones, tablets etc. and get it verified by sending it to the company’s IT team and getting it checked if there is any leak of data or illegal activity and the It team should immediately change passwords, access, authorization, and delete usernames.

Corrective measures

In case the theft has occurred, employers can take the following actions against the culprit employee:

(a) Civil Suit for breach of Contract

A civil suit can be filed against the culprit employee for breaching the terms of employment contract such as Non-disclosure, confidentiality etc. and violation of data protection policy.

(b) Information Technology Act 2000

Cyber laws, in India, are majorly governed by the IT Act. Provisions of IT Act such as Section 43 ((Penalty and compensation for damage to computer, computer system etc.); Section 65 (Tampering with computer source documents); Section 66 (computer-related offences); Section 72 (Penalty for breach of confidentiality and privacy); Section 76 (Confiscation) can be taken recourse to depending upon the nature of theft.

(c) Indian Penal Code

Section 405 and 408 – Criminal Breach of Trust: Since the employees are entrusted with the Company’s data by the employee during the course of their employment, if any employee dishonestly misappropriated or uses or disposes off that data or information, he/she may be charged under this section.

Non-Disclosure Agreement

Moreover, the provision of Non-Disclosure-Agreement is also one of the ways in which the company can stop its employees or former employees from stealing the data. By signing an NDA, the employees are legally by means of a contract bound not to disclose data and other relevant information of the companies to third parties outside the course of business.

Conclusion

These are the laws which are applicable in today’s era for the prevention of data theft. Though these laws have been made by the legislature there is no proper implementation of these laws. Neither the executory body nor the caretakers have taken these laws seriously. On the other hand, when we talk about the citizens, they are even hardly aware of these laws. This has lead to a lot of increasing cyber crimes including data theft in the I.T. sector. So it is the sheer need to make these people aware of these laws and direct the concerned authority for proper implementation and lodging proper complaints and providing justice to the victims. It is a common responsibility of the government and judiciary to seriously look into the laws and take strict actions if these laws are being violated in any form, be it by any person like the police officer, and common man, just anyone. Therefore in my article, I have just made an attempt to make the people aware of these legal actions that can be taken towards data theft.

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In this article, Mansi Bathija of UPES Dehradun discusses Legal Issues Around Auction of Tea, Coffee and other Agricultural Products.

The agriculture sector plays a vital role in our nation. The sale and purchase of the Indian farmers and although 70% of India’s population depends upon the agricultural sector income, it would not be wrong to say that these farmers are not provided with fair remuneration for their agricultural produce.

In the last few years, the government of India has come up with the idea of an online sale of the produce and due to which online auctions are held. In fact, not just the agricultural produce but tea and coffee are also auctioned online. This step was taken by the government to create transparency in the market. However, it still acted as a setback sometimes.

The agriculture sector in India is expected to generate better momentum in the next few years due to increased investments in horticultural infrastructure, for example, water system facilities, warehousing, and chilly storage. Components, for example, reduced exchange expenses and time, improved port gate management and better monetary incentives would contribute to the sector’s development.

To get to the crux of the topic, we need to understand the outer prospects of it.

The physical market – regulated

A Regulated market is a wholesale market where purchasing and offering are regulated and controlled by the state government through the market board. Regulated markets go for the advancement of the marketing structure to guarantee gainful cost to the farmers; decrease non-practical edges of the merchants and commission operators, and limit the value spread between the maker and the buyer[1].

In India, the organized marketing of horticultural items has been advanced through a system of regulated markets. Most state governments and UT organizations have enacted legislations to accommodate the control of farming produce markets. While before the finish of 1950, there were 286 regulated markets in the nation, their number as on 31 March 2006 remained at 7566. Likewise, India has 21780 rural periodical markets, around 15% of which capacity under the ambit of direction. The appearance of regulated markets has helped in relieving the market impediment of makers/dealers at the wholesale gathering level. However, the rural intermittent markets as a rule and the tribal markets specifically, stayed out of its formative ambit.

The historical backdrop of regulated markets in India was begun, when the British government felt the need of providing the unadulterated cotton at a sensible cost to the material factories at Manchester. The Karanjip Cotton Market was built up in 1886 as a regulated market under the principal legislation in India was the Barer Cotton and Grain Market Act of 1897.Toward the end of 1940 there were 135 regulated markets in India which expanded to 286 by 1950. The development of regulated markets in India demonstrated an amazing advancement since the start of the arranging time (1951).

There were other legislations such as the Agricultural Producer (Grading and Marketing) Act, 1937 to regulate the standard and quality of the products to be used within the country and to be exported, the Forward Contracts Regulations Act, 1952 to regulate and control the market charges, Standards Weight Act 1939 and the Metric Systems of Measures Act 1958 to avoid manipulations in prices etc.

Regulated agricultural produce market committees (APMC)

In India, farming is a “state subject”. In this manner, the wholesaling of agricultural products is represented by the Agricultural Produce Marketing Acts of different State governments. The particular goal of market control is to guarantee that farmers are offered reasonable costs in a straightforward way. The APMC Act[2] enables state governments to tell the products, and assign markets and market territories where the regulated exchange happens. The Act additionally accommodates the development of agrarian deliver market boards of trustees (APMC) that are in charge of the operation of the markets. The whole State is partitioned and proclaimed as a market zone wherein the markets are overseen by the Market Committees constituted by the State Governments. In 2015, there were approximately 7,500 regulated markets in the nation.

Methods of Sale carried out by APMC Market

1. Sample: It is the most helpful technique for sale where the product is deliberately reviewed. It spares the cost of transportation and investigation. However, most extreme genuineness in the managing is to be taken after. The farmer or the commission specialist displays the sample to the dealer and decides the price.
2. Open Auction: This is a bidding process according to which the agents or broker bid on the prices of the products being sold and the then at the highest price the product is sold by the farmer to the bidder.
3. Hatta Sale: This is an illegal method of sale but it is still used in some regulated markets for fruit and vegetables.

Electronic Portal – NAM

The National Agriculture Market (NAM) is envisaged as a container India electronic exchanging portal which seeks to network the existing Agricultural Produce Market Committees (APMCs) and other market yards to create a unified national market for agricultural commodities. NAM is a “virtual” market yet it has a physical market (mandi) at the back end.

NAM was announced amid the Union Budget 2014-15 and is proposed to be achieved through the setting up of a typical e-platform to which at first 585 APMCs selected by the states are linked. NAM was launched on 14 April 2016 with 21 mandis from 8 States going along with it and the principal phase of connecting 250 mandis was over on 6 October 2016.[3]

NAM is implemented as a Central Sector Scheme through Agri-Tech Infrastructure Fund (ATIF). The Department of Agriculture and Cooperation (DAC), Ministry of Agriculture will set it up through the Small Farmers Agribusiness Consortium (SFAC). The Central Government will provide the software free of cost to the states and also, a concede of up to Rs. 30 lakhs per mandi/market will be given as a onetime measure for related equipment and infrastructure requirements. In order to promote genuine price discovery, it is proposed to provide the private mandis additionally with access to the software yet they would not have any monetary support from Government.

A measure of Rs. 200 crore has been earmarked for the scheme from 2015-16 to 2017-18. This includes arrangement for providing software free of cost by DAC to the States and Union Territories (UTs) and for cost of related hardware/infrastructure to be subsidized by the Government of India up to Rs. 30 lakh per Mandi.

E-auction

The central government had written to all state governments to pick, where possible, for e-closeouts to procure agricultural commodities. This was done a few days before the Union Budget was presented. This is a piece of an arrangement to get going in a National normal market for Agri items, connecting all the wholesale markets keep running by Agricultural Produce Marketing Committees (APMCs). The Center has lauded NCDEX’s mandi modernisation program (MMP), under which all APMCs of Karnataka have already been linked electronically and farmers get one state price for commodities traded on this regular platform. The Survey said in Karnataka, 51 of the 155 principal market yards and 354 sub-yards have been integrated into a single licensing system. Rashtriya e-market Services, a joint venture created by the state government and NCDEX Spot Exchange, offers automated sale and post sell off facilities (weighting, invoicing, market fee collection, bookkeeping), measuring facilities in the markets, help of warehouse-based sale of produce, ware funding and price dissemination NCDEX is additionally implementing a Unified Market Platform, whereby all mandis in the state are being unified for single trading. Aside from Karnataka, it has started bringing together mandis in Telangana and Andhra Pradesh.

Centralized e-Auction System for the North Eastern States

The “NE-Fresh Online Auction System” (URL: www.eauction-neramac.in) has been launched on August 10, 2016 at Gangtok.

Developed by the Center for Development of Advanced Computing C-DAC[4], Kolkata, after being approached by the North Eastern Regional Agricultural Marketing Corp. Ltd (Neramac)[5], a government of India enterprise under the service of development of north eastern region, the online e-auction system of ranch products has tasted starting success with Sikkim’s large cardamom produce. A simple process of online registration and participation of bidders across India and the world is being offered as an answer to the logistical problems of distance to wider markets, remoteness, and lack of infrastructure that have hamstrung the development of the agricultural sector of the eight north-eastern states, including Sikkim. Under the system known as the Centralized e-Auction System for the North Eastern States, buyers are expected to call out offers on the agricultural products. The products are placed in parcels and are showcased online to prospective bidders before the actual auction takes place on the website, eauction-neramac.in, that can be accessed through any computer with an Internet connection.

While farmers have to pay Rs.2,000 for registering on the site, traders pay Rs.15,000, with the registration being substantial for two years.

E-auction of tea and coffee

Coffee –  The Indian coffee trade association was introduced in Feb 1993 with the aim of holding coffee auctions[6]. Prices were based on the New York and London coffee settlement rates.

Tea – Tea auction was introduced in India in 2008. It was considered to be the finest tea auction worldwide which was organized by Calcutta tea traders association and tea board. It was expected that the e-auction would bring in transparency in the tea trading

Although the pan India Association came up with the scheme of online market of tea and coffee to make it easier for people from throughout the country to be able to participate in the trading of these, somehow initially it did not turn out well for some farmers. There have been technical issues regarding the payment options on the part of bank of India. Certain issue read that a major problem arose in sale number thirty seven in which rs. 167 crore were locked up in the settlement account of the bank of India.  

Issues associated with E- auctions

1. The e-platform is based just on mass sales, with a minimum order of 25kg, going up to 4 quintals. Once an offer is sealed, the farmer needs to pay 1% while the sale winner pays 2% of the sale add up to Neramac.
2. The current state-level APMC laws permit the principal sale of yields — after harvesting by farmers — to take place just in regulated market yards or mandis. It, in this way, restricts the farmer’s universe of buyers to only the traders licensed to operate in the mandi under the concerned APMC’s ward. Even traders have to procure separate licenses to operate in different mandis inside the same state. NAM would essentially be a typical electronic platform enabling farmers to sell their yields to buyers anywhere in the nation and vice versa. The benefits to buyers — be it large retailers, processors or exporters — are self-evident, as they can sign into the platform and source from any mandi in India connected to it. They don’t need to be physically present or depend on intermediaries with exchanging licenses in those mandis. However, with farmers, it may not be as simple. Most farmers don’t take their product to the mandis; they sell off to the neighbourhood arhatiya or produce aggregator even before that. Even the ones who take would offer a trolley load or two and no more — barely enough to excite far off buyers offering online. To that extent, the possibilities for better price discovery through a widened universe of buyers, both neighbourhood and online, are quite limited for them.
3. Further, there are different constraints under the current framework related to direct marketing legislation, multiple duty levies and licenses, coordinations and infrastructure. These challenges in the existing system and low returns to farmers prompted the Center to visualize the creation of a unified National Agriculture Market (NAM). NAM has been proposed to induce transparency in the marketing system, leverage state of the craftsmanship technology for a well-regulated market, and enable support and benefits for the entire agri value chain, from farmer to consumer. The proposed NAM framework envisages real-time electronic selling of the commodities alongside integrated testing, weighing, storage and payment systems. It proposes to issue a single license for exchanging the nation over in order to promote increased interest. Measuring, weighing and FIs will be integrated with unloading in such a manner, to the point that the payments will be credited directly to the farmers’ records. In this context, the Prime Minister’s Jan Dhan Yojna can be a great enabler towards payment assistance for negligible and little farmers.
4. Talking specifically about tea auction, since the online portal has made it an open market where people from across states can trade and the exports have also become easier, it has resulted in the demand of tea increasing and hence an increase in the price of tea.
5. The imposition of GST is also going to affect the prices of tea[7] . it is predicted that the prices will rise by minimum by 6 to 7 percent. The farmers get to suffer because of GST because they would have to shift the tea from garden to the warehouse and then they need to shift to another state for an auction, they will have to pay 1% inter state tax despite the fact that it is not a sale but just a transfer.[8]

References

[1] Regulated Markets: Subject-Matter, Features and Objectives, Economics Discussion (2016), http://www.economicsdiscussion.net/market/regulated-markets/regulated-markets-subject-matter-features-and-objectives/19103 (last visited Jun 14, 2017).

[2] APMC Act 2003, GKToday (2015), http://www.gktoday.in/apmc-act-2003/ (last visited Jun 14, 2017).

[3] eNAM, eNAM, http://www.enam.gov.in/NAM/home/about_nam.html# (last visited Jun 14, 2017).

[4] https://cdac.in/index.aspx?id=about

[5] Aparna Desikan & Sovon Manna, Better quality, pan-India e-auction put tea on boilThe Economic Times (2016), http://economictimes.indiatimes.com/industry/cons-products/food/better-quality-pan-india-e-auction-put-tea-on-boil/articleshow/53109366.cms (last visited Jun 14, 2017).

[6http://www.indiacoffee.org/RTI/CB%20-%20Annual%20Report%2013-14%20-%20Eng_ctp.pdf

[7] Our Bureau, GST Bill: Tea industry keeps fingers crossed on impactThe Hindu Business Line (2016), http://www.thehindubusinessline.com/markets/commodities/gst-bill-tea-industry-keeps-fingers-crossed-on-impact/article8876690.ece (last visited Jun 14, 2017).

[8] Avishek Rakshit, Tea sellers criticise e-auction after Rs 167-cr payment hold-upBusiness Standard (2016), http://www.business-standard.com/article/markets/tea-sellers-criticise-e-auction-after-rs-167-cr-payment-hold-up-116092600709_1.html (last visited Jun 14, 2017).