In this article, Syeda Muneera Ali, of KIIT School of Law discusses Is it illegal for unmarried couples to book a room in a hotel together? Can hotels refuse to give you accommodation? Can the police raid your hotel and harass you?

Introduction

There is a long-standing idea in India, that men and women should not associate with one another, let alone share a room. Conservative India has vehemently discouraged the very idea of ‘love’, ‘pre-marital sex’, ‘casual sex’, etc., between men and women (let alone homosexual relationships), and there are hundreds of instances where couples have been harassed in public spaces. There are people who have declared themselves as ‘the protector of Indian culture and traditions’, and take it upon themselves to ‘educate’ people, based on the morality of the society.

The apparent rationality behind the public interference of private affairs is that such interventions would eventually lead to a ‘cleansed’ and ‘well-behaved’ Indian society. However, what people fail to understand, is that what happens between two conscious and consenting adults, is not the business of any third person, let alone the government and its law enforcement agencies. While the Judiciary is willing to recognise these rights and try to modernise India, the older generation, along with the legislature and the law enforcement, choose to go in a different direction.

The concept of what is illegal and what is immoral has a very thin line of distinction in the Indian concept. When it comes to the matters that trigger the conservative side of India, there is hardly any distinction. It is common for people in India to not accept something, even though it may be perfectly legal. For example, live-in relationships are legalised in India. Yet, we have repeatedly seen that couples have been denied residency and harassed by ‘social vigilantes’. Clearly, it is more important to protect the ‘Sanctity of the Indian Culture’, as opposed to respecting the will and the privacy of the people.

Is it illegal to check into a hotel as a couple if you are unmarried?

In a country where people consider every act that is beyond their personal acceptance to be illegal, is important to understand what is truly illegal, and what is merely immoral. Legally speaking, there is absolutely no law in India that prohibits unmarried, single couples to rent a room in any hotel. There is no provision in any recognised Indian statute that declares getting a room together as an unmarried couple to be illegal. However, what makes most people ‘think’ that this is illegal, is the societal portrayal of the same. Police officers have often harassed innocent people for choosing to have a different ideology and a different sense of morality. For example, in 2015, several policemen arrested as many as 40 couples in Mumbai, and charged them with ‘indecent public behaviour’, and fined them with Rs. 1200/-. Furthermore, they were detained at the nearest police station and were forced to call their parents.

Can hotels refuse to give you accommodation for being an unmarried couple?

According to the Hotel Association of India, there is no law that allows the refusal of accommodation, on the grounds that the people staying are an unmarried couple. However, several hotels in India have repeatedly refused accommodation. In most situations, hotels do so in order to protect their own interests (such as prevention of raids by policemen). Several hotels put clauses such as, “Occupying hotel rooms by unmarried couples is illegal under Indian laws and therefore hotels have a right to refuse entry or evict any guests on this ground.” However, that is not the case (as there is no illegality involved), and you may question the hotel.

Several hotels reserve the right to refuse admission to certain people. In most scenarios, hotels do that to prevent unnecessary police interference, and for safety reasons. This is an acceptable practice in India, as long as there is no discrimination involved, in terms of religion, race, caste, sex, place of birth etc., as it is prohibited under Article 15 of the Constitution of India.  

Can the police raid your hotel harass you for renting a room in a hotel as an unmarried couple?

Law enforcement agencies are generally on the lookout for illegal activities. It is their job to ensure that there is no wrongdoing going on in the society. In their quest to attain a crime free society, policemen often conduct raids and ensure that everything is legal. However, contrary to popular belief, the police has no authority to arrest you on any grounds, as long as there is no illegality involved in the situation. Despite this, police have often detained and harassed people. This is primarily because the law enforcement agencies understand that most couples are vulnerable and a report to their parents would lead to them being ‘ashamed’ of their apparent ‘crime’.

Here are some ways in which the police may harass you, and how you can escape from such uncomfortable situations:-

1. Charges under the banner of ‘Indecent Public Behaviour’: A common reason for policemen to detain you or harass you, would be on the said ground. However, they cannot do that. One of the most obvious reasons as to why they cannot, is that a hotel room is not a ‘public place’. Moreover, it is crucial to understand that the police are authorised to charge you for illegal activities, and getting a hotel room is not illegal in any form.
2. Take photographs of you, or videotape you, with the intention of harassing you in public or in front of your parents: Please understand that though there is no law against taking pictures of people, it is a blatant invasion of privacy if the same is done. However, if a policeman is taking photographing you and blackmailing you, it is against the law. Be clear about your rights and don’t hesitate to establish these right. Be vocal about your knowledge and tell the police that you have the right to file a FIR if her is harassing you. Also, do understand that the police many threaten you, however, it is important that you maintain your stance and handle the situation calmly.
3. Charges based on ‘Abduction’ of the girl: Though this is one of the most devious ways of charging you with something, just for the sake of teaching you a lesson, it may be done. One of the most predominant issues with this charge is that due to stigma and taboo, the girl’s parents may support the policemen. But, as long as you can prove yourself, you need not fear.
4. Parental phone-calls: Parents are usually opposed to any form of sexual relationships or relationships in general. This leads to policemen being confident that phone calls to parents would put you in trouble. It is advisable that you understand the consequences of your decisions and keep your parents in the loop. Parental support often weakens the case of the policemen.
5. Extortion: More often than not, policemen harass young couples, with the ulterior of extorting money from them. It is usually believed by most policemen that couples who book hotel rooms are hiding from their parents, or do so without the consent or approval of their parents. They often blackmail such couples and eventually let them go upon payment. Such an act by the police is completely illegal and amounts to extortion. It is advisable that such acts be reported to competent authorities.

Are there any alternatives to save yourself from such harassment, or refusal to hotel rooms?

Though it may seem really difficult to get some quiet time with your loved one, it actually is not. Here are few ways to get rooms, as opposed to traditional means:-

1. Book your rooms via. Makemytrip or other apps, that are couple friendly and make sure you mention that you have a guest.
2. Several bold and modern start-up companies, such as Airbnb or StayUncle have desperately tried to make life easier for couples to rent rooms for short periods of time. It is preferred that you choose such websites to get hotel rooms.

Conclusion

The idea behind a culturally ahead society in India is considerably divided into two mainstream ideas- the ideas of the elderly, and the ideas of the young. Those who have lived their youth in a certain mannerism, have desperately hung on to the very same idea. It becomes significantly difficult for them to accept the growing ideas of modernity and change. On the other hand, the youth of today have a rather distinctive idea of what is socially acceptable to them. It is crucial to understand that while the elderly are an important part of our society, the younger generations are the ones who are going to grow up to be a significant part of the society. It is their ideas that will reform and modify the ideals of our society, in the years to come. It is unfair on the part of the law enforcement agencies and the social vigilance, to impose an idea of cultural acceptance, that is purely subjective.

In today’s society, where live-in relationships and pre-marital sex are legal, it is obvious that people would eventually require some space together as a couple. Making it difficult for the youth to practice a lifestyle that they consider acceptable, is both wrong and unacceptable. The government today, controls all our actions. From what is an acceptable food, to what is an acceptable sexual preference, there is an active participation by those who were never supposed to be involved. Should we really allow them to dictate what is truly, a personal choice? If we can abolish certain archaic rituals and ideas, why can’t we strive to make India a more youth-friendly society, that does not deliberately try to sabotage the relationships of its younger generation?  

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References:

1.https://www.stayuncle.com/deals?gclid=CjwKEAjw1PPJBRDq9dGHivbXmhcSJAATZd_Bcdimh-m4YkX3d8SVuQSBgzPEjrK_94sDxN1jcmL8lxoCsdfw_wcB  

2. https://www.airbnb.co.in/
3. http://www.pocketlawyer.com/blog/get-room-unmarried-couples/
4. http://www.thenewsminute.com/lives/507

In this article, Mansi Bathija of UPES Dehradun discusses Extent and limitation of Limited Liability Partnership and partners.

The need for limited liability partnership act 2008 is pronounced by the Ministry of affairs as “a new corporate form that would provide an alternative to the traditional partnership, with unlimited personal liability on the one hand, and, the statute-based governance structure of the limited liability company on the other, in order to enable professional expertise and  entrepreneurial initiative to combine, organize and operate in flexible, innovative and efficient manner”[1]

To comprehend a LLP, it is best, to begin with, the general partnership. A general partnership is a profit driven organization that is made by a common understanding between at least two parties. A general partnership can be very casual. All it takes is a mutual interest, maybe a composed contract (however not really), and a handshake.

Obviously, with the casual way of a general partnership, there is a drawback. The most evident hazard is that of legitimate liability. In a general partnership, all partners share liability for any issue that may emerge.

Formal Structure of A Partnership – Limited Liability Partnership

Limited liability partnerships offer similar tax-favorable circumstances as a general partnership yet offer some assurance for partners’ personal assets by constraining their liability to that of their enthusiasm for the organization as it were. All partners are permitted to deal with the systematic in a general partnership; in any case, a formal understanding is required for this business sort. This structure shields all partners from subjecting their personal assets to the business liabilities.

A limited partnership varies by requiring no less than one general accomplice to oversee and go for broke, while uninvolved limited partners appreciate no liability. For investment purposes, a limited partner is a judicious position in a partnership on the grounds that, only the partnership interest is liable to liability.

Difference between partnership and limited liability partnership

Who can be a partner?

Any Indian citizen residing in India can be a partner to general as well as LLP.

What is the maximum limit of the number of partners in both?

The maximum number of partners in a general partnership can be 20 however there is no limit in the LLP.

What is the Minimum number of partners?

To start off a partnership firm, the minimum number of partners should be two in the case of general as well as

Status of minor partners.

Minors can be a partner in general partnership on the other hand, in limited liability partnerships, a minor cannot be a partner.

Registration process

Limited liability partnerships are to be registered under the ministry of corporate affairs whereas a partnership is to be registered with the registrar of firms. The registration process of a LLP and a private Limited Company is very similar.

The Registration Process of a LIMITED LIABILITY PARTNERSHIP

The first step is to obtain a Digital Signature Certificate and then the designated partner identification number for partners is to be approved. Next step is to check the name availability and then the limited liability partnership agreement is drafted. The incorporation document is to be filed and then the certificate of incorporation is obtained

Why is limited liability partnership considered to be better than a partnership?

Unlimited liability

A partnership is easy to start but it comes with a high risk and that is the risk of unlimited liability. So if the partnership firm is in debt, the partners might have to sell off their personal assets to cover the debts. This is not the case in limited liability partnership. Limited liability partnership, as the name suggests, provides limited liability on each partner so the personal assets of the partners do not come into the picture and the amount of liability is limited to the amount of capital contributed by them.

A partnership is not a separate legal entity and if one of the partners dies or retires or in any other case if he has to leave the firm, the partnership ceases to exist and so a new partnership has to be formed but this is not the case in limited liability partnership. Limited liability partnership is a separate legal entity.

Limited liability partnership more trustworthy than partnership because it is registered under the ministry of corporate affairs.

Exception to the limited liability rule

As per section 30[2] of Limited Liability Partnership Act, if a limited liability partnership or any of its partner is indulged in fraudulent activities with its creditors, the law shall come into the picture and the liability can be extended to be unlimited to cover the debts.

However, if the limited liability partnership is able to prove that the firm was not aware of the partner being involved in such practices, it can avoid the liability.

Every person who is proved guilty of being involved in the fraud being carried out can be punished by the way of imprisonment of two years or less and a fine or fifty thousand rupees or more up to five lakh rupees.[3]

Advantages of a Limited Liability Partnership.

1. A limited liability partnership is easy to be registered
2. It is easy to maintain
3. The cost of formation is low.
4. Every partner’s personal obligation for another partner’s acts is limited to the partnership’s assets.
5. One major advantage is the capacity to get new partners and let partners out. Since a partnership deed exists for a limited liability partnership, partners can be included or resigned as illustrated by the agreement. This proves to be useful as the limited liability partnership can simply include partners who carry existing business with them. Normally the choice to include requires endorsement from all the current partners.[4]
6. It offers a range of benefits to the promoters.[5]
7. The formation and compliance cost of a limited liability partnership is more flexible and cheaper

Limitation in the formation of Limited Liability Partnership

1. Partners attempt to make some contribution towards limited liability partnership firm while executing the limited liability partnership agreement. When money or resources are added to limited liability partnership, it can’t come back to the partners of a limited liability partnership unless there is a particular arrangement specified in limited liability partnership agreement.
2. Consent of all partners is mandatory to be acquired for the transfer of ownership rights. To transfer some portion of the ownership, the partner has to take the consent of all the partners of the Limited liability partnership firm.
3. The Government of India is vested with powers to investigate into the affairs of a limited liability partnership, if required, by appointment of Inspectors as competent authorities for the purpose.
4. If a new partner is to be admitted, an agreement where all the details of the new partner are mentioned has to be created and accordingly the existing parties are revised or changes are made. These revisions are to be asserted by the concerned registrar of companies
5. Limited liability partnership is not allowed to raise external commercial borrowing (“ECB”). Thus limited liability partnership cannot take commercial loans from its foreign partners, FII’s (foreign institutional investors), banks from outside India, any financial institution outside India or any other entity outside India.
6. Under some cases, liability may extend to personal assets of partners

Conclusion

Limited liability partnership is a new step taken forward in the commercial sector of India. It is a better form of business organization as it minimizes the possibilities of malpractices carried out in the context of business terms. Each person is responsible for his own deeds or negligence. It is termed as an “alternative corporate business vehicle” as the functioning is same as any other general partnership but it comes with a special provision of the limited liability rule. In this way, the limited liability partnership (LLP) turns into another corporate frame that empowers proficient skill and entrepreneurial activity to join, arrange and work in a creative and productive way.[6]

In this article, Dhruv Singhal discusses How to Use newspaper if you want to crack CLAT.

Understanding why Newspapers are important from CLAT perspective

Common Law Admission Test has been taken in order to check the overall capabilities of the candidates to solve the problem in a limited time frame. It tests the logical reasoning capabilities as well as the decision making capabilities in the shortest possible time. Along with this, candidates are tested on other fronts as well like English, Maths and General Knowledge. Hence it is very important for the candidate to prepare in all the fronts. To check the overall speed of the candidates is the primary objective of this exam and when it is about speed it is essential to read quickly and comprehend the same completely. For this candidates must make sure that they develop the habit of reading newspaper as it will not only help in general knowledge but also increase the overall capabilities and comprehension abilities of the candidates.

Reading newspaper has various advantages and it actually is a sheer myth that it only helps in improving general knowledge.  

Reading newspaers not only gives you an edge over the GK section it enhances your skills in other sections as well.

English – A candidate can improve his English if he read newspaper daily. Essentially a candidate can complete his paper in time only if he has good reading and it can only be improved by practice, so why not doing practice by reading newspapers?

Logical Reasoning – It generally observed in CLAT that half of the portion of this section is covered by the logical reasoning questions. These questions can only be attempted if the candidate have sharp logical mind. Reading newspaper is no doubt helpful in this front because it is observed that daily newspaper reading will improve the logics and sharp the brain which will effectively improve the logical reasoning capability of the candidate.

Legal Reasoning – This portion is generally covered by the principles and facts questions. Candidates have to apply their mind and answer the question on the basis of principle given. This is a lengthy section and can only be completed in time if the candidate read and comprehend effectively and efficiently.

These are not exclusive benefits of reading newspaper. There are various other benefits which are not specifically related to any particular subject but will help in improving the overall capabilities of the candidates. These general benefits are:

1. Cultivate and Improve reading habit and comprehension abilities of the candidate. This will help the candidate to complete this exam in time and with maximum percentage of correct answers.
2. Give idea about sentence formation and sentence structure. This will help the candidate when he is solving English, Logical Reasoning and Legal Reasoning because it will help the candidate in getting correct idea of what the examiner is asking before answering it. This leads to the more effective answers in the paper.
3. Improve General Knowledge and provide the candidate with abundance of knowledge. The primary objective of reading newspaper is to get well versed with current affairs. This purpose will be served if candidates read newspaper daily. Also it becomes easy for the candidates to memorise a particular news because of the knowledge of the historical event relating to that news.
4. Important events of the world come into light. Some specific pages of the newspaper will report those events which are very important for the general public to know. Like front page of any good newspaper will report only those news which are the important events of the day.
5. Increase in Confidence. The daily reading habit of the newspaper provides adequate confidence to the candidates. They would get information about politics, economy, sports, geography etc. This will help the candidate not only in exam but also in the overall personality development which is essential for the candidate and a must requirement in any of the law school for overall development of the candidate in future.

Common Law Admission Test became tougher every year because of the increasing level of competition and the significant growth in the number of students appearing in this exam. To qualify and nail this exam candidate must have an edge over other candidates. Reading newspaper will provide the candidates with the edge that is essential for cracking this exam. But candidates generally ignore this exercise because it is a time-consuming. Here are some tips that a candidate may use in future while reading newspaper. These tips help the candidate to complete a newspaper in comparatively less time with full efficiency.

How should a law entrance aspirant figure out what to read in the newspaper and what to leave?

As stated above, many students find this task difficult because of the paucity of time. Here are some points that will help the candidate to read a newspaper in comparatively less time with full efficiency.

Selective Reading

It is not possible for the candidates to read the whole newspaper as it is time consuming and also unnecessary. Candidates are required to read only that news which are important and that have major impact on the society. For example it is essential for the candidate to know about important appointments, some important obituaries, major sports event, major political event, major scientific event, major economic event or any major judicial decision. Generally that news which is related to only a single state and which have less significance on the society are considered to be less important. For instance the news which appear on the front page are more important as compare to the other back pages because these news are not state specific and has higher significance at the national level. This type of selective study will help the candidate to read the newspaper in comparatively less time, efficiently and effectively.

Daily Reading

“What to Read and What to Leave”

The basic problem that a candidate may face is to decipher and find the relevant news. When we are talking about selective reading many candidates suffer from this problem. Those candidates who read newspaper daily find it easy to decipher the important news. Candidates must understand that they should not read newspaper once in a blue moon and rather they should cultivate the habit of reading newspaper daily. Practice makes the man perfect and the more one will read newspaper the more he will understand and decipher the relevance and importance of a news for this competitive exam. Other than this daily reading habit will gradually boost the morale of the candidate for this exam and make the candidate more passionate for selection. Selective but daily reading will in some time automatically develop and build the confidence of the candidate and prepare the candidate in a better way to face the exam. It also built the comprehension and analytical abilities of the candidate and helps in improving vocabulary with time. But, eventually these benefits could be availed by the candidates only if they cultivate the habit of reading newspaper daily and not once in awhile.

Don’t miss to read the editorial page

Every newspaper contains at least one and at most two pages that occupied the place for articles and views written by the highly qualified personnel of different field on various different issues. These articles and views are related to current issues and contain the view point of the individual writer on that specific issue. The authors of those articles are the qualified individuals of that field and because of this reason their views on that particular issue are very important to know. These articles generally are the amalgamation of various thoughts and because of this reason the candidates who read these articles will be able to look at the things from various different angles and will gradually improve their own mental and evaluation capabilities. Authors while writing these articles use various different tons. Daily reading of these articles help the candidate to decipher the tone of the article which is a very difficult task for a naive reader. Understanding tone is important from the exam point of view as it had been seen various times that question came in CLAT which specifically ask about the tone of the speaker in a particular paragraph. So students should cultivate the habit of reading editorial pages on a daily basis.

Highlight and Memorise Important Words

Vocabulary development is very important for this exam not only for solving any specific question but also to read and understand the whole paper completely. Generally three sections that are English, Logical Reasoning and Legal Reasoning have various questions which contain difficult vocabulary. To solve those questions it is very important to decipher the meaning of those questions properly. Reading newspaper will provide an opportunity to deal with that type of difficult vocabulary on a daily basis. Once the candidate get familiarised and well versed with those words it became easy for him to comprehend and decipher the meaning of the whole sentence properly. For this purpose it is advisable to the candidates to make a separate register and write difficult words daily on that register. This is a very beneficial exercise and candidates will reap the benefits of this in near future. The most important benefit of this exercise is that the candidates will gradually increase their vocabulary without even making any extra effort. Suppose a candidate learn and write only 20 words daily, then in a month candidate have the vocabulary strength of 600 words, while if he follow this exercise regularly for 6 months he will have 3600 difficult words in his pocket. 3600 words are more than enough not only to nail CLAT but any other competitive exam as well.

Write Important News in a Separate Register

Though by reading newspaper a candidate may have various benefits, the most important benefit which is the primary benefit of newspaper reading is to get the knowledge of current affairs. It is true that the news one will read from newspaper will be easily memorise because of the supplementary and historical information provided with main information. But then also there are various news which requires revision like news related to appointments, news related to obituary, sometimes news which are related to sports, economy, politics, or any other event. It is essential to record these news properly in a register so that at the time of exam candidates can revise the relevant news from there well prepared notes. At the same time when a candidate will read the important news about a particular event he may find that there are various other supplementary information which is not possible to record but which is very important for the purpose of exam. For example if you will read about Olympics 2016 there may be a mention of the place where it has occurred, the place and the year of the next Olympic may also be mentioned. Here information about next Olympics is supplementary information which maynot be writen but this information is very important. There are many other similar supplementary information given in the newspaper. It is advisable to the candidates that they must read these type of information twice and try to memorise those information then and there. It had been seen various times in CLAT that questions appear from these supplementary information.

Considering the benefits which a candidate may availed by reading newspaper this exercise should not be ignored.

In this article, Sachin Vats of Rajiv Gandhi National University of Law discusses Ten Most Important Environmental Law Judgments in India.

The Indian Heritage and Culture has an intimate relation with the conservation and protection of the environment. The Indian State has also enshrined it in the Constitution which requires both the State and the Citizen to “protect and improve the environment”. The Environment Act, 1986 is one of those acts which extends to the whole of India without any exception.  

Constitutional Interpretation of Environment:-

• The 42nd Amendment to the Constitution of India added Article 48A and 51A(g) which comes under the Directive Principle of State Policy and the Fundamental Duties respectively.The Supreme Court of India in “Sachidanand Pandey v. State of West Bengal AIR 1987 SC 1109” stated that the Court is bound to bear in mind the above said articles whenever a case related to Environmental problem is brought to the Court.
• The Article 48A states: “The State shall endeavour to protect and improve the environment and to safeguard the forest and wildlife of the country.”
• The Article 51A(g) imposes a duty upon every citizen of India to protect and improve the natural environment and confers right to come before the Court for appropriate relief.
• The Apex Court in “Damodar Rao v. S.O. Municipal Corporation AIR 1987 AP 171” held that the environmental pollution and spoliation which is slowly poisoning and polluting the atmosphere should also be regarded as amounting to violation of Article 21 of the Indian Constitution.

Public Liability and Public Nuisance:-

• “M.C. Mehta and Anr. Etc vs. Union Of India and Ors. Etc 1986 SCR (1) 312” discusses the concept of Public Liability. This case is also known as Oleum Leakage Case. It is a landmark judgment in which the principle of Absolute Liability was laid down by the Supreme Court of India. The Court held that the permission for carrying out any hazardous industry very close to the human habitation could not be given and the industry was relocated.
• The instant case evolved the “Deep Pocket Principle”. This judgment guided the Parliament to add a new chapter to the Factory Act, 1948. The Public Liability Act was passed and the policy for the Abatement of Pollution Control was also established.
• When the Directive Principles of State Policy has clear statutory expressions then the Court will not allow Municipal Government to make fun of the Statutes by sitting idly. It was decided by the Supreme Court in the “Municipal Corporation, Ratlam vs. Vardhichand AIR 1980 SC 1622”. The plea of lack of fund will be poor alibi when people in misery cry for justice. The office in charge and even the elected representatives will have to face a penalty if they violate the constitutional and other statutory directives.

Sustainable Development

• The Bench of Justices PN Bhagwati and Ranganath Mishra in “Rural Litigation and Entitlement Kendra, Dehradun vs. State of Uttar Pradesh AIR 1987 SC 2187” introduced the concept of “Sustainable Development”.An NGO named RLEK filed a case against limestone quarrying in the valley in 1987.
• It was stated that the permanent assets of mankind are not to be exhausted in one generation. The natural resources should be used with requisite attention and care so that ecology and environment may not be affected in any serious way.

Environmental Impact Assessment

• Justice Jeevan Reddy in the landmark judgment of “Indian Council for Enviro-Legal Action vs. Union of India AIR 1999 SC 1502” held that the financial costs of preventing or remedying damage caused by pollution should lie with the undertakings which cause the pollution by adopting the “Polluter Pays Principle”.
• The Court set a time limit for the coastal states to formulate coastal management plans and banned industrial or construction activity within 500 metres of the High Tide Line.

Water Pollution

• The writ petition filed by the activist advocate M.C. Mehta in the Supreme Court highlighted the pollution of the Ganga river by the hazardous industries located on its banks. Justice ES Venkataramiah gave a historic judgement in “M.C. Mehta vs. Union of India AIR 1988 SCR (2) 538” ordering the closure of a number of polluting tanneries near Kanpur.

• In this judgment it was observed that just like an industry which cannot pay minimum wages to its workers cannot be allowed to exist, a tannery which cannot setup a primary treatment plant cannot be permitted to continue to be in existence.

Animal Welfare

• The Hon’ble Supreme Court in prohibited Jallikattu and other animal races and fights. It was observed that the Bulls cannot be performing animals in the case of “Animal Welfare Board of India vs. A. Nagaraj and Ors. (2014) 7 SCC 547”.
• The court alluded to the section 3 and section 11 of the Prevention of Cruelty to Animals Act, 1960 and declared that animal fights incited by humans are illegal, even those carried out under the guise of tradition and culture. The Court listed various recommendations and overhauled the penalties and punishment in the Prevention of Cruelty to Animals Act, 1960 to function effectively.

Air Pollution

• The pride of India and one of the wonders of the world i.e., Taj Mahal, was facing threat due to high toxic emissions from Mathura Refineries, Iron Foundries, Glass and other chemical industries. The acid rain was a serious threat to the Taj Mahal an 255 other historic monuments within the Taj Trapezium.
• The Apex Court in “M.C. Mehta vs. Union of India (Taj Trapezium Case) AIR 1987” delivered its historic judgment in 1996 giving various directions including banning the use of coal and cake and directing the industries to Compressed Natural Gas (CNG).

Environmental Awareness and Education Case

• The Supreme Court in “M.C. Mehta vs. Union of India WP 860/1991” ordered the Cinema theatres all over the country to exhibit two slides free of cost on environment in each show. Their licenses will be cancelled if they fail to do so. The Television network in the country will give 5 to 7 minutes to televise programmes on environment apart from giving a regular weekly programme on environment.
• Environment has become a compulsory subject up to 12th standard from academic session 1992 and University Grants Commission will also introduce this subject in higher classes in different Universities.

Wildlife and Forest Protection Case

• The livelihood of forest dwellers in the Nilgiri region of Tamil Nadu was affected by the destruction of forests. The Supreme Court in “TN Godavarman Thirumulpad vs. Union of India and Ors.” passed a series of directions since 1995, till the final judgment in 2014.
• The Apex Court decided to set up a Compensatory Afforestation Funds Management and Planning Authority (CAMPA) to monitor the afforestation efforts, to oversee th compensation who suffered on account of deforestation, and to accelerate activities for preservation of natural forests.
• A writ petition was filed by the Tarun Bharat Sangh in the Supreme Court to stop mining activities in the Sariska Wildlife Sanctuary. The Court in the case of “The Tarun Bharat Sangh vs. Union of India and Ors. (1991)” banned all the mining activities in the Sanctuary.

Public Trust and Right to Life

• The Bench of Justices Kuldip Singh and Sagir Ahmed held that the Government violated the Doctrine of Public Trust in “M.C. Mehta vs. Kamal Nath and Ors. (1996)”. The Himachal Pradesh State Government had leased out a protected forest area on the bank of river Beas to motels, for commercial purposes.
• In 1996, the Supreme Court passed a judgment that would hold the State more responsible for maintaining natural resources.
• The Right to Pollution Free Environment was declared to be a part of Right to Life under Article 21 of the Constitution of India in the case of “Subhash Kumar vs. State of Bihar and Ors. (1991)”. Right to Life is a Fundamental Right which includes the Right of enjoyment of pollution free water and air for full enjoyment of life.  

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In this article, Shubham Singh, of KIIT School of Law, Bhubaneswar does An Analysis of Liquor Laws in India

India is one of the world’s fastest growing alcohol beverages consumption market. And presently world’s 3rd largest market of liquor. The tariffs and taxes on liquor are high in India. Liquor prices in India are comparatively higher than 95% of the other countries in the world. A normal liquor consumer in India has to pays 5-6 times more than the manufacturing cost.

The Consumption of alcoholic beverages has been dated back even before the British Colonization. The central and state levels both have formed several restrictive policies regarding safety issues related to drinking. But, these policies have often proved to be affecting in a negative way. These rules aiming for safety lead to black market exchange, corruption, hike in prices and also more public health concerns because of the cheap and extremely poor quality substitute products.

There are two types of liquor available in Indian market

1. Indian Made Foreign Liquor (IMFL): It includes ‘Hard’ liquor. It is incorporated by importing raw materials or borrowing the concept from foreign liquor brands.
2. Imported Foreign Liquor (IFL): The liquor which is produced outside India and later imported to India are grouped under this type. Mostly IFL is consumed by rich and upper middle-class people or international travellers.

Liquor shop or bar license in India

Any person who wants to sell liquor has to take permission from their respective state government. One also needs permission for selling and consumption of liquor at a public place or social gathering or wedding. All state government has laid down certain rules and conditions for selling of hard drink which must be fulfilled. The Excise department of each state grants different licenses for different types of liquor shops. Tenders or applications are invited from time to time. Notices in leading newspapers and on state governments official websites are issued by state governments as per their requirement.

Different types of license

There are several different types of licenses which are issued by every state government. It is necessary for a company or an individual to get the grant of following licenses and for said purposes:

L-1 License

This license is granted by the state government to a company or to a society or a partnership or proprietorship firm that is running a licensed manufacturing unit/s.

L-3 License

For granting this license state government issues tenders and it is granted to working distilleries or bottling plants which must be licensed by either Central or State government.

L-6 license

This license is granted by the sate government only for selected undertakings to retail vend of Indian liquor or beer.

L-9 license (Earlier L-52D)

The state government for the purpose of retail sale of liquor of foreign brands only grant this license. Only those who already have the L-1 license can apply for this license.

L-10 license

State government grants this license especially for the purpose of retail sale of various Indian and foreign brands only.

P-13 license

The state government grants this license to those hotels or restaurants or clubs that are duly licensed giving them permission to serve foreign liquor inside or outside their licensed premises for hosting a function only on a specific day, on a temporary basis.

P-10 license

This license can be provided by the state government for serving liquor in any function at specific premises anywhere in the city, but public parks are excluded from it.

Other

Other than licenses mentioned above there are more licenses that are granted or issued for different reasons: L-11, L-12, L-15, L-16, L-17, L-18, L-19, L-20, L-21, L-28, L-29, L-30.

What is the legal age for liquor consumption in India

As, per the seventh schedule of Constitution of India, liquor or alcohol comes under State List. Therefore, the law regarding liquor varies from state to state. Legal drinking age is Included in it. The consumption age and also purchasing age of liquor is different in different states. Places where liquor can be sold, are also defined in it, and it differs from state to state. There are some states in which purchase and consumption of liquor are prohibited in a strict manner.

States having minimum drinking age- 18

1. Andaman Nicobar Island [Andaman and Nicobar Islands Excise Regulation, 2012 Section 24 Excise Policy Rule 14]
2. Mizoram [Mizoram Liquor (Prohibition and Control) Bill 2014 Section 58]
3. Himachal Pradesh [The Himachal Pradesh Liquor License Rules, 1986 Rule-16]
4. Puducherry [The Pondicherry Excise Act, 1970 Section 35]
5. Rajasthan [Rajasthan Excise Act, 1950 Section 22]
6. Sikkim [The Sikkim Home Guards Bill, 1992 Bill No. 1 of 19920 Section 20]
7. Kerala [Abkary Act, (1 of 1992) Section 20]

States having minimum drinking age- 21

1. Andhra Pradesh [The Andhra Pradesh (Regulation of Wholesale Trade and Distribution and Retail Trade in Indian Liquor; Foreign Liquor; Wine and Beer) Act, 1993]
2. Arunachal Pradesh [The Arunachal Pradesh Excise Act, 1993 Section 42]
3. Assam [Rule 241 and 5.10 of the Assam Excise Act, 1993 Section 42]
4. Chhattisgarh [The Chhattisgarh Excise Act, 1915 Section 23]
5. Jammu and Kashmir [Jammu and Kashmir Excise Act, 1958 Section- 50B  Jammu and Kashmir Liquor License and Sales Rules, 1984 Rule 11]
6. Jharkhand [The Bihar and Orissa Excise Act, 1915 Section 54]
7. Dadra and Nagar Haveli [The Dadra And Nagar Haveli Excise Regulation, 2012 Section 24]
8. Daman and Diu [The Goa, Daman and Diu Excise Duty Act And Rules, 1964 Section 19]
9. Karnataka [Karnataka Excise Department, 1967]
10. Goa [The Goa Excise Duty Act and Rules, 1964 Section 19]
11. Madhya Pradesh [The Madhya Pradesh Excise Act, 1915 Section 23]
12. Odisha [The Odisha Excise Act, 2005 Section 61]
13. Tamil Nadu [Tamil Nadu Liquor (License and Permit) Rules, 1981 Section 25 Rule XV]
14. Telangana [Andhra Pradesh Excise Act, 1968 Section 36]
15. Tripura [The Tripura Excise Act, 1987 Section 53]
16. Uttar Pradesh [United Provinces Excise Act, 1910 Section 2]
17. Uttrakhand [United Province Excise Act, 1910 The Uttaranchal (The Uttar Pradesh Excise Act, 1910) Section 2]
18. West Bengal [Bengal Excise Act, 1909 Section 51]

States having minimum drinking age- 25

1. Chandigarh [Punjab Excise Act, 1915 Section 23]
2. Delhi [Delhi Excise Act, 2010 Section 23 Delhi Liquor License Rules, 1976]
3. Haryana [Punjab Excise Act, 1914 Section 29]
4. Meghalaya [Eastern Bengal And Assam Act, 1910]
5. Punjab [Punjab Excise Act, 1914 Section 29]

States where liquor has been declared illegal

These are “DRY STATE” in which the sale of liquor in any form has been banned and declared illegal for any person living in the state.

1. Bihar [Bihar Excise (Amendment) Bill, 2016 Section 19(4)]
2. Gujarat [Bombay Prohibition (Gujarat Amendment) Bill, 2009]
3. Manipur [The Manipur Liquor Prohibition Act of 1991]
4. Lakshadweep [Bombay Prohibition (Gujarat Amendment) Bill, 2009]
5. Nagaland [Nagaland Liquor Total Prohibition Act, 1989]

Liquor laws of Maharashtra

In Maharashtra, a person must have attained an age of 18 years for consumption of wine, and for a beer, the legal age is 21 years, for liquors the age has been set to 25 years. For those people who are living in Wardha district or visiting there, the authentic age has been set to 30 years.

Liquor Laws in Bihar

In Bihar, liquor has been banned by Chief Minister of the State, Nitish Kumar from 4th April 2016.

DRY Days:

Few days are declared by Government of India as dry days. Dry days are those days on which regardless of any state liquor is totally banned. Some specific days are:

• 26 January (Republic Day)
• 15 August (Independence Day)
• 2 October (Gandhi Jayanti)
• During Election Period
• Few other celebrations or functions (it varies from state to state)

Judgment by Supreme Court of India in the case, State of Tamil Nadu Rep. By Its Secretary Home, Prohibition & Excise Dept. & Ors v K.Balu

The Supreme Court of India has ordered that from 1st of April 2017 there would be a ban on the  sale of liquor within a distance of 500 meters from any national or state highways. The apex court modified its order stating an exemption within 220 meters of any highway for small towns or municipalities where the population of people will be less than 20,000. In the order, the Honorable Court has clearly stated that any hotel, bar or pubs serving alcohol will be included in the ban. The Supreme Court bench headed by CJI Thakur, Justices D.Y. Chandrachud and L. Nageswara Rao, has said.

Why was the ban ordered?

The order of ban of liquor near national and state highway by the apex court is focused on tackling the rising risk of drunk driving as well as a step for improving road safety conditions in India. The Honorable Court has stated that there are “alarming” statistics showing drunk driving-related accidents and deaths, and said the order is passed in “overwhelming public interest”.

This order was passed by Supreme Court following a Public Interest Litigation (PIL) which was filed by, Harman Sidhu, an activist based in Chandigarh who has fought for strict laws for road safety in India. After meeting with an accident Sidhu was paralyzed neck-down when he was 26 years old.

Implementation of the liquor laws in India

There is a strict ban implemented on the sale, purchase, and consumption of alcohol in 5 states of India. In Constitution of India, Article 47 it has been clearly mentioned that “The State shall endeavour to bring about a prohibition of the consumption except for medicinal purpose of intoxicating drinks and of drugs which are injurious to health.” It is noted that legal drinking age of different state differs between 18 years to 25 years. But in the real case, it can be also be seen that children and teenagers of age group 9 to 19 years are involved in this practice.

This act of taking of liquor is not only limited to rich societies but it also exists in the middle class and also among the poverty stricken youth at a higher scale. The reason behind this is that liquor is easily available and poor application of the law, etc.

Laws regarding drunk driving

As per M.V Act, the Blood Alcohol Content (BAC) has been fixed at 0.03% i.e., 30mg per 100ml of blood. If someone BAC value will be more than 0.03%, then he or she will be booked for the first offence, which may amount to a fine of Rs. 2000 and/or a jail term of up to six months. If a Second offence is committed within 3 years of the first offence then the penalty would be a fine of Rs. 3000 and a maximum of 2 years of imprisonment. The union cabinet has proposed changes to Motor Vehicle Act, recognizing penalties as per BAC. According to the new provisions, if a person having BAC of less than 0.03% or 30mg, would not face any penalty. If the BAC level of a person is between 30mg to 60 mg, the penalty would be imprisonment up to 6 months and/or fine of Rs. 2000. If the BAC is between 60-150 mg, he/she would face imprisonment up to one year and/or a fine of Rs. 4000. If this offence will be repeated within three years, the punishment of imprisonment will rise up to three years in prison and a fine of Rs. 8000. Whereas, it has been agreed by the authorities that these laws are not completely implemented as the offender gets away by paying a bribe after committing the offence.

Motor Vehicle (Amendment) Bill 2016: Under this Amendment Bill, with an aim to improve road safety and implementing a higher level of fines and penalty for drunk driving. Under this new bill, the penalty has been raised by 5 times, from Rs. 2000 it has been set to Rs. 10000.

Conclusion

The practice of consumption of liquor in India has been since very long time, but the rate and amount by which liquor is consumed has also increased and so does the problems associated with it. Along with licensed beverages, unlicensed or illegal liquor is also widely available and it may even amount to half the quantity of legal alcoholic beverages. The recent economic liberalization policy has allowed different multinational liquor brands to enter Indian market, this may lead to increase the quality of liquor in India in upcoming future.

Although most of the population is trying to restrain themselves, for those who drink, as per the available evidence it points towards the high level of drinking with related health and social problems. Consumption of liquor has already created serious public health and social problems and also affected the development of poorer regions of the country in a bad manner. Policies are implemented after the Central and State government have been insufficient and unstable, resulting in the unopposed promotion of alcohol in most of the country, while few states maintain the partial and complete ban on liquor sale and consumption. Treatment facilities and other prevention programmes have been proved fully insufficient to meet India’s requirement. It can be foreseen that alcohol consumption and problems related with it will increase in India in the upcoming future. Unless a planned policy is designed and strongly implemented the problems related to liquor are likely to produce an excessive burden on this developing country’s resources.

REFERENCE

1. www.cppr.in/
2. http://lawfarm.in/lic
3. http://blog.ipleaders.in/
4. apapaonline.org/
5. https://www.alcoholwebindia.in/
6. http://www.caclubindia.com/
7. http://www.livelaw.in/
8. http://indiastudychannel.com/

In this article, Twinkle Jaiswal discusses whether a wife can file a rape case against husband or not?

Introduction

A wife cannot file a rape case against her husband directly. However, alternative remedies are available to the wife under Protection of Wife under Domestic Violence Act,2005. Marital rape is one of the acts of sexual intercourse with one’s spouse without consent. It is a form of intercourse with one’s spouse without consent. It is a form of domestic violence and sexual abuse. Marital rape in India has become a common issue affected by many legal and cultural factors. In India, marital rape is not criminalized, and culturally it is accepted as a norm of marriage. Statistics shows that incident of rape within marriage is increasing in India. Not only in India this concept is same in England also. During the 1600s in England, Justice Sir Matthew Hale wrote; The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife had given herself in kind into ‘the husband’ whom she cannot retract.

Marital Rape and the Indian Legal Scenario.

Section 375 of the Indian Penal Code defines Rape and in the exception clause, it is provided that “ Sexual Intercourse by a man with his own wife, the wife who is above fifteen years of age, is not rape. Section 376 of IPC which provides punishment for rape, states that rapist should be punished with imprisonment of either description for a term which shall not be less than 7 years and may extend to life or a term exceeding 10 years and shall also be liable to fine unless the woman raped is his own wife and is not under 12 years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to 2 years with fine or with both.

This section dealing with rape, in a very narrow purview, which lays that, an offense of rape within marital bonds only stands if the wife is below the age of 16, once the age is completed there is no legal protection provided to the wife under this section. However the legal age of marriage is 18 but the law on rape only provides punishment to the husband, if the wife is below the prescribed age. These two laws are inconsistent with each other.

The role of wife has traditionally been understood as submissive, docile and that of a homemaker. A marriage is a bond of trust and that of affection, there is no place for sex without consent.

The 72nd Law Commission Report had made the following recommendations for substantial change in the law with regard to rape.

1. ‘Rape’ should be replaced by the term ‘sexual assault’.
2. All forms of penetration such as penile/vaginal, penile/oral, finger/vaginal, finger/anal and object/vaginal as sexual intercourse must be included in Section 375 of IPC.
3. In the light of Sakshi v. Union of India and Others [2004 (5) SCC 518], ‘sexual assault on any part of the body should be construed as rape.
4. A new offense, namely section 376E with the title ‘unlawful sexual conduct’ should be created.
5. Section 509 of the IPC needs an amendment, providing higher punishment where the offense set out in the said section is committed with sexual intent.
6. Marital rape, explanation (2) of section 375 of IPC should be deleted. Just as any physical violence by a husband against the wife, forced sexual intercourse must be treated equally as an offense is treated as an offense. On the same reasoning, section 376 A was to be deleted.
7. When alleged that a victim consented to the sexual act and it is denied, the court shall presume it to be so, under Indian Evidence Act.

Despite all efforts, still, in India marital rape is not considered. There is a great irony that a woman can protect her right to life and liberty, but not her body, within her marriage.

Marital Rape Statistics.

Every 6 hours, a young married woman is burnt or beaten to death or driven to suicide by emotional abuse by the husband. The U.N population fund states that more than 2/3rd of a married woman in India, aged between 15 to 49 are beaten, raped or forced to provide sex. In 2005, 6787 cases were recorded of women murdered by their husband or their husband’s families. The studies indicate that between 10 and 14% of married woman who is the most susceptible targets who attempt to flee.

Alternative Remedies Available.

It is sad that in India there is a lack of provisions regarding marital rape. However, a woman can save herself from physical torture or sexual harassment. As per definition is given in Section 375 of the IPC husband cannot be legally punished for having forceful sex with his wife but to save the wife the law provides alternative remedies. The PWDAV 2005, provides that, any act causing harm or injury to the health, safety, and life of the aggrieved person or tend to do so and also causing physical abuse, sexual abuse, verbal and emotional abuse, will constitute Domestic Violence.

The term ‘sexual abuse’ includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of a woman.

Under this, a woman can get a protection order, Right to reside in a shared household or residence order. This also means that husband has to make separate arrangments for her wife upon her complaint on her husband.Under this Act, the Magistrate can pass an order directing the accused to pay compensation and damages to the victim. Section 498-A of the dealing with cruelty can also be used by the women to protect themselves against “perverse sexual conduct” by the husband.

Legal Action when the husband forces his wife for unnatural sex.

A wife can file a case against her husband for an unnatural sexual offense under Section 377 of IPC. As this section prohibits sexual intercourse against the order of nature irrespective of the sexual orientation or gender identity of the individuals, thus even if such acts are done by heterosexual couples, they can be punished under section 377, even if the victim consented to the act, the offender under this section will be punished.

Legal Position of Marital Rape outside India.

International women’s and children’s organization had criticized the narrow definition of the rape provided in Section 375 of IPC, they insisted that oral sex, sodomy, and penetration by foreign objects must be included within the meaning of Rape. Even International Law now says that rape may be accepted as the “ sexual penetration”, not just penile penetration, but it includes threatening, forceful, coercive use of force against the victim, or the penetration by any object, however slight.

In England, earlier as a general rule, a man could not have been held to be guilty as a principal of rape upon his wife, because sexual intercourse is a part of the contract of marriage. However, the marital rape exemption was abolished in its entirety in 1991. The House of Lords held in R. v. R. that the rule that a husband could not be guilty of raping his wife if he forced her to have sexual intercourse against her will was an old concept, which no longer represented the position of a wife in present-day society as it is too much different from that time. The corresponding amendment to the statutory law was made through Section 147 of the Criminal Justice and Public Order Act, 1994. This judgment was also affirmed by the European Court of Human Rights in the decision of SW v. UK.

Marital rape explicitly in the definition of violence against women under Article 2 of the Declaration of the Elimination of Violence against women. In 18 American States, 3 Australian States, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Soviet, Poland, and  Czechoslovakia, marital rape is illegal. The importance of consent for every individual decision cannot be overemphasized. However, it is legal in many countries including Afganistan, Algeria, Bangladesh, Botswana, Brunie, and China.

Organizations working for empowering women against marital rape.

1. American Bar Association on Domestic and Sexual Violence- This organization provides access to justice for a survivor of Domestic Violence and sexual assault. They engage a group of people who are related to the legal profession.
2. Equality Now- This organization works with grassroots organization and activists. They seek tp protect and promote the Human Rights of Girls and women all across the world.
3. SNEHA- NGO’s such as SNEHA works for the betterment of women and children. SNEHA’s Prevention of Violence against Women and Children program responds to and prevents gender-based violence in the urban areas. SNEHA provides counseling services at free of cost. They assist in filing F.I.R. They help to connect with specialized services like psychiatrists, clinical psychiatrists, shelters, homes, as per the need.
4. National Centre On Domestic and Sexual Violence is a training organization, which works to influence national policy and provides customized training and consultation to professionals working in this fields.
5. Sayfty-: an Indian woman is raped every 20 minutes, and approximately one in ten rapes are committed against women under the age of 18. Because laws against rape in India do not provide women with nearly enough protection, the organization Sayfty emerged to equip women with tools that help keep them safe from acts of sexual violence and educate women in matters of self-defense. While the idea is that women would be free from the threat of physical violence without having to live in fear, organizations like Sayfty help to empower Indian women by equipping them with knowledge and tools that will help to keep them safe.

Judicial Decision given by Supreme Court on Marital Rape.

Attempts were made in order to criminalize marital rape in India but on the different ground declined the plea. Justice Verma Committee, after the Delhi Rape case 2012, heeded the demand to criminalize marital rape. The Indian Government, however, chose to turn away from it as it has the potential to destroy the institution of marriage.

The Supreme Court, in the State of Maharashtra vs. Madhukar Narayan Mandikar, has referred to the right of privacy over one’s body. What is sad here is to observe how the court has conveniently put wife out and has yet not given her privacy over her own body whereas women who have been subjected to rape by a stranger have that right as rape is criminalized but not marital rape, a great irony on Indian Judicial System. In this case, it was decided that a prostitute had the right to refuse sexual intercourse if she was unwilling.

In Tilak Raj v State of Himachal Pradesh, Justice T.S Thakur, and Gopala Gowda made the observation that the consent of sexual intercourse was not obtained under any misconception of marriage, as in the cross-examination it was observed that they were in a relationship and acquitted the accused.

Conclusion.

Indian society is patriarchal one, with a large preference placed on sons over daughters, it is the duty of the wife to keep their husband happily, in doing so she cannot deny sex. It is a great irony that a woman can protect her right to life and liberty but not her body. It is a fact that women who are raped by their husbands are more likely to experience multiple assaults and they also suffer long-term physical and emotional problems. In this context, marital rape is even more traumatic for a woman because she has to stay with her assailant every day. In this context, we can say that women are not safe even in their own home.

In 2012, it was ruled that if a woman denied her husband sex it was a form of abuse. The ruling was later upheld by the Supreme Court as well, saying that being denied sex is a valid reason for divorce, by denying sex, she is also denying him happiness. In 2015, a woman came forward about having being raped by her husband. The woman approached the Supreme Court, but her petition was dismissed, the court held that the new law could not be changed on the basis of one’s person experience. India needs strict laws regarding marital rape to protect the rights of a married woman, providing her right to file a case against her husband for marital rape.

In this article, Sucharita Ghosh discusses How NBFC can take foreign loans or foreign investments?

INTRODUCTION

Over the years after the liberalization of the Indian economy in 1991, India witnessed a significant interest of foreign investors in the Indian NBFC sectors. In 2015-16, foreign direct investment in India grew by 29 percent year on year to USD 40 billion.

Before discussing the guidelines for taking foreign loans by NBFC, we need to get a brief idea about NBFC.

WHAT IS NBFC?

A Non-Banking Financial Company (NBFC) is a company engaged in the business of loans and advances, acquisition of shares, stock, bonds hire-purchase, insurance business or chit business but does not include any institution whose principal business includes agriculture, industrial activity or the sale, purchase or construction of immovable property.

Example: Bajaj Finance, LIC housing Finance, Indiabulls, Aditya Birla Finance etc are the most popular non-banking financial companies in India.

BANK VS NBFCs

Though bank and non-banking financial companies both are financial institutions and both performs similar kind of functions but there seems to be some basic differences between the two.

• NBFC cannot accept demand deposits like banks.
• It does not form part of the payment and settlement system and cannot issue cheques drawn on itself.
• Deposit insurance facility of Deposit insurance and credit guarantee corporation is not available in NBFC.
• The liabilities or deposits of the banks are widely accepted as a means of payment in the settlement of debt but the liabilities of NBFCs are not accepted as means of payment for settlement of debt.

WHY TAKE FOREIGN LOANS

In India, the interest rates are high in comparison to the rest of the world. Thus taking loans from other countries which have lower interest rates are very beneficial for an Indian company. An NBFC also prefer foreign investment over Indian investment because foreign investors may be able to invest much more money compared to an Indian resource.

On the other hand foreign investors are also attracted to Indian companies in various stages of growth for various reasons like this country has growing customer base and foreign capital can witness more growth in an emerging economy like India as compared to saturated western markets which offer limited growth opportunities.

LAW GOVERNING THE FOREIGN LOANS AND FOREIGN INVESTMENTS IN NBFC

All the provisions regarding foreign exchange in and are regulated by the FEMA,2000 and the working and operations of NBFCs are regulated by the Reserve Bank of India within the framework of the RBI Regulation Act 1934 and the directions issued by it.FDI in NBFCs has been allowed up to 100% since 1997 subject to the minimum capitalization norms as issued by the Government.

The Foreign Exchange Management Act,1999 and Foreign Exchange Management (Borrowing and Lending in Foreign Exchange) Regulation,2000 and the RBI regulations governs the provisions relating to foreign loans.

FOREIGN LOANS AND NBFC

Loans from foreign institutions are called external commercial borrowings or ECB. The foreign loans could be taken from foreign banks or foreign financial institutions.

One can also take ECB in the form of bonds, preference shares and debenture. A loan from a foreign shareholder who owns at least 25% of the shares of the borrower company will also come under the ambit of ECB.

However, not every sector of business can avail foreign loans. The RBI allows ECBs to be obtained only some specific sectors after fulfilling all the necessary requirements. To obtain foreign loans in a Non-banking financial company it only requires to comply with the procedural requirements. There is no need of approval of RBI while availing the loans.

MODES OF BRINGING FOREIGN INVESTMENTS

A non banking financial company can bring their foreign investment not only in liquid currency but also in some other ways like exchange of shares, conversion of loans to share, exchange of some skill sets etc.

MATURITY PERIOD AND INTEREST

In Foreign Exchange Management Regulation there are certain rules and restriction mentioned about the external commercial borrowing. There is specific rules one need to follow about the maturity period and the amount of interest to be paid.

The cost of an ECB includes the interest charged by the bank, other fees and expenses paid in foreign loans. It must be within the limit which is measured with respect to a reference rate called the LIBOR or London Interbank Offered Rate.

For a loan whose average maturity period is 3-5 years, its interest would be 3.5% over six months the LIBOR and for the loan which will be matured after more than 5 years its interest ceiling would be plus 5% over the six month LIBOR.

PROCEDURE OF TAKING FOREIGN LOANS

 For taking the foreign loans under the automatic route the NBFCs are required to submit Form 83 to the Authorized Dealer bank to obtain the LRN number. The LRN number or Loan Registration Number must be certified by a company secretary or chartered accountant.

Then the AD bank must forward a copy of the form 83 to the department of statistics and Information Management of RBI. The loan can be only be taken after the allotment of the LRN number.

CONVERSION OF LOANS INTO EQUITY

When a non-banking financial company is unable to repay its loans, it can convert some or all of its debts into equity after taking the consent of the lender. Provided that, when a company wants to convert the loan into equity it must ensure that the shares are issued under the FEMA pricing guidelines.

CONSEQUENCES OF VIOLATION OF ECB REGULATIONS

According to the section 15 of the Foreign Exchange Management Act, if anyone contravenes the provisions of the ECB regulation he will get punishment up to thrice of the amount involved. Moreover, the corporate entities who violated the ECB policy are under investigation by RBI can only avail foreign loans under the approval route. When the violation is a continuous one in nature, an additional penalty of INR 5000 will be payable per day.

When the violation is unintended, it can be rectified by compounding with RBI, which may help in getting much lower penalty.

Extant FDI Policy for NBFC

As per the extant FDI policy, foreign investment in NBFC sector is permitted under the automatic route. An automatic route is one where no Foreign Investment Promotion Board or RBI approval is needed before making the proposed investment. In automatic route up to 100% foreign investment is permitted without the approval of foreign investment promotion board.

Under section 10 of FEMA all foreign transactions are required to routed only through entities licensed by the RBI.

Till very recently  As per the extant FDI policy, foreign investment was permitted under automatic route only in the following 18 prescribed non-banking financial service activities. These are

• Merchant Banking
• Underwriting
• Portfolio Management Services
• Stock Broking
• Asset Management
• Venture Capital
• Custodian Services
• Factoring
• Leasing & Finance
• Housing Finance
• Credit Card Business
• Micro Credit
• Rural Credit

Non-fund based activities

• Investment Advisory Services
• Financial Consultancy
• Forex Broking
• Credit Rating Agencies
• Money Changing Business

Foreign investment in non-banking sectors are permitted under the automatic route in these specified activities subject to compliance with the minimum capitalization norms. Once an NBFC is established with the requisite capital under the Foreign Exchange Management Regulation, subsequent diversification either through the existing company or through downstream NBFCs could be undertaken without any further authorization.

These investments were  subject to the following minimum capitalization norms:

• US $0.5 million for foreign capital up to 51% to be brought upfront.
• US  $5 million for foreign capital more than 51% and up to 75% to be brought upfront.
• 50 million for foreign capital more than 75% out of which $7.5 million to be brought upfront and the balance in 24 months.
• The NBFCs having foreign investment more than 75% and up to 100%, and with a minimum capitalization of $50 million, can set up step down subsidiaries for specific NBFC activities, without any restriction on the number of operating subsidiaries and without bringing in additional capital.
• Joint Venture operating NBFCs that have 75% or less than 75% foreign investment can also set up subsidiaries for undertaking other NBFC activities, subject to the subsidiaries also complying with the applicable minimum capitalization norm mentioned above.
• Non- Fund based activities: US $0.5 million to be brought upfront for all permitted non fund based NBFCs irrespective of the level of foreign investment.

But it is subject to certain conditions. It would not be permissible for such a company to set up any subsidiary for any other activity, nor it can be participate in any equity of an NBFC holding company.

All of the above capitalization norms also apply to each downstream subsidiary engaging in NBFC activities, except where its parent entity already has more than 75% foreign investment.

Further, if the activity being carried out was ‘non-fund based’ then irrespective of the level of foreign investment, capitalization was capped at USD 500,000.

NEW FDI POLICY AND THE RECENT CHANGES

The government has bought various guidelines and changes for investment in the NBFC Sector.

On 10th August 2016, the Government of India, in order to boost up the economic activities in financial sectors, has approved some changes pertaining to the FDI requirements in the Non Banking Financial Companies.

The Reserve Bank of India on 9 September 2016 released a notification amending the Foreign Exchange Management (Transfer and Issue of Securities to Persons Resident Outside India) Regulations, 2000, as a measure to make the foreign investments in the ‘non-banking financial services’ sector easier. This Notification operationalizes the policy which was announced on 10 August 2016. The two key relaxations which have been introduced by this Notification are:

• 100% FDI through the automatic route is now permitted in “Other Financial Services” beyond the 18 specified activities. Provided the activities are regulated by financial sector regulators such as RBI, SEBI, Pension Fund Regulatory Authority of India (IRDA) etc.
• any form of additional capitalization norms linked to foreign ownership under the FDI Policy has been removed, and thereby the capitalization norms has been aligned with those prescribed by the relevant regulators regulating these activities.the  minimum capitalization norms as required under the FDI policy have been eliminated as most of the regulators have already fixed minimum capitalization norms. The foreign investment in NBFCs which are not regulated by any financial sector regulators i.e Unregulated NBFCs will require prior government approval.

These recent changes of doing away with the minimum capitalization norms is a boon since it will spur economic growth by increasing FDI in the NBFC sector. Increasing FDI  will be beneficial for the business due to the relatively easier and faster sanction of loans with favorable interest rates. This is certainly a welcome move, and is expected to provide a much-needed boost to this sector.

In this article, Sucharita Ghosh discusses the nature of agreement to enter into while hiring a singer.

INTRODUCTION

Since last month a young entrepreneur of India, Arjun Jain and his startup , white fox India is all over the news for successfully bringing Justin Bieber in India by spending USD 4 million.

Nowadays it becomes a trend to hire singers, comedians and other musicians in the events whether it be college fest or a private event. College, universities and other event organizers  are spending huge amount of money to bring celebrity singers to perform live. As they are paying a lumpsum amount of money they also want to ensure that the event must be successful without any hindrance and the singer perform without causing any misconduct. To ensure this beforehand  the event organizers are preferring to enter into an agreement with the singer.

So in this article, I am going to discuss about how to make an agreement to hire a singer?

WHY AN AGREEMENT WHILE HIRING A SINGER IS NEEDED

Well, you may think why it is necessary to enter into a legal agreement to hire a singer???

Here, I am describing some situations :

1. You are a event organizer and hiring a famous singer for a party, the singer confirmed his appearance and you already started selling the tickets and made banners with the name of the artist to attract audience. But after almost all tickets are sold, just 2 days before the event the singer is informing you that he has another events to cover, so won’t be able to  come.
2. If you are a singer, and got a wonderful offer to perform  your own composed song  in an event .But unfortunately neither you received any credit, nor you have received any payment. So, what action can be taken?
3. How would you feel if you spent thousand bucks for bringing a top pop singer in an event and without informing anyone the artist did not arrive???

In this above situations what remedies would be available? Would any legal action can be taken against the singer?

Well, the solution to handle these kind of situations is to enter into an agreement with the singer before hiring him/her. In all of the above situation the artist or the organization both can get fair remedy if a proper agreement is there. So a prior agreement would be beneficial for both the organizer and the performer.

In this article I will be discussing some legal points what one needs to include in a contract to hire a singer.

PURPOSE OF HIRING

A singer can be hired for various purposes like

• By the organizers of specific events
• By a band
• By  clubs , pub , bar for live singing
• By recording studio
• Hiring for backup singers
• By film producers
• For performing in a specific event like wedding, party, religious ceremony, any opening or closing ceremony of some event
• Or any agency can hire singers for specific time period to send  him/her for performing in the events

Here I am writing about an agreement which you need to make for hiring a singer for events.

WORK FOR HIRE AGREEMENT

While hiring a singer or musician one need to enter into a contract for service agreement (also known as “work for hire” agreement).

A contract of service agreement is an agreement between  employer and independent client where an independent contractor, such as a self-employed person or a vendor, is engaged for a fee to carry out an assignment or project. It is a strictly business to business contract between two party on a buyer and supplier basis. Here the organizer is the buyer and the performer is the supplier of service. There is no question of any employment relationship.It is a kind of freelance agreement.

IMPORTANT CLAUSES OF AN AGREEMENT TO HIRE A SINGER

There are various points which are important for an agreement to hire a singer. Following are  some points that must be included in a contract of service:

1. PARTIES DESCRIPTION/ BACKGROUND
2. DESCRIPTION OF SERVICE
3. TERMS OF AGREEMENT
4. PAYMENT
5. RECORDING, REPRODUCTION OR TRANSMISSION OF PERFORMANCE:
6. CANCELLATION POLICY
7. MUSICIAN REPRESENTATION AND WARRANTIES
8. INDEPENDENT CONTRACTOR
9. AMENITIES
10.  PROMOTION
11.  GOVERNING LAW AND DISPUTE RESOLUTION
12.  CONFIDENTIALITY
13.  MERCHANDISE
14.  MISCONDUCT OF ARTIST
15.  FORCE MAJEURE
16.  SEVERABILITY
17.  NOTICE
18.  REPRESENTATIVE’S AUTHORITY TO CONTRACT

For hiring a singer to perform in events, one need to make an agreement which includes the following points.

PARTIES DESCRIPTION/BACKGROUND

In the beginning of the agreement the description of the parties between whom the contract is going to be made, should be mentioned with necessary details.

A beginning  clause of the agreement may look like this:

“ This agreement, made this _______ day of _____________, 20__, is for the services of singing between the undersigned singer(s) (includes accompanying musicians as described below, hereinafter referred to as “ARTIST”) and the buyer who is to conduct an the event listed below (hereinafter referred to as “BUYER”). ”

DESCRIPTION OF SERVICE

In this clause ,the full description of the service need to be mentioned. Here one can mention the date, timing, details about the other musicians along with the singer,location of the performance etc.  

“The BUYER desires to hire ARTIST(s) as an independent contractor for singing purpose.
generally described below (the “Performance”) on the following days and ARTIST(s) agrees to
provide such Performance at said Concert.
__________ day of _____________, 20__, Time:________ Duration: _____
__________ day of _____________, 20__, Time:________ Duration: _____
__________ day of _____________, 20__, Time:________ Duration: _____

Location of Concert: The physical location of the Concert is:_______________________________________________________________”

TERM OF AGREEMENT

In this clause from when the contract will be enforced can be mentioned.

“This agreement will take effect immediately upon execution , and will remain in effect until the services set forth herein have been completed.”

PAYMENT

All the details about the payment need to be predetermined. The payment can be made on the basis of hours of performance, venue of performance. One can mention the mode of payment in the agreement.

“The BUYER agrees to pay ARTIST(s) or his/her agent an aggregate of  INR___________  by check immediately after the Performance(s). Check shall be made payable to the MANAGER and upon proper endorsement of said check by MANAGER, BUYER agrees to cash the check for the MANAGER. The MANAGER shall distribute the amount to ARTIST(s) as agreed.”

RECORDING, REPRODUCTION OR TRANSMISSION OF PERFORMANCE

In this clause the restriction on recording the performance must me mentioned. In some events the organizers of the event can restrict everyone from recording the event except written permission. It can be written like this:

“BUYER will use means available to prevent the recording, reproduction or transmission of the Performance without the written permission of BUYER, ARTIST(s) or ARTIST’s representative.”

CANCELLATION POLICY

A cancellation policy is very important part of an agreement which tells about when it is possible to cancel the agreement and what actions can be taken if the singer violate the terms of the cancellation policy  suddenly didn’t arrive.

A prior notice must be given to terminate the agreement. The clause can be framed as

“A prior notice  shall be given before 14 days of the performance to terminate the agreement. Cancellation of the performance after selling out the tickets shall attract fine from the ARTIST(s). The ARTIST(s) shall reimburse all the losses along with price of the tickets including fine of rupees 50 thousand for harming the reputation of the BUYER and also indemnify all the lawsuit file against the BUYER.  If the BUYER cancel the event before less than 10 days of the performance the BUYER shall be liable to pay full amount of payment to the ARTIST(s).”

MUSICIAN REPRESENTATION AND WARRANTIES

In most of the entertainment rights deals, the artist makes the bulk of the representations and warranties.The buyer will require the artist to represent that the material which is original and Non-Infringing i.e  the buyer’s use of the material will not infringe the copyrights or other property rights of any person or company, nor be invasive of privacy, or defamatory toward any person. By this clause the artists also takes the warranty to fulfill the clauses what are there in the agreement, independently and without the consent of others, and violation of which can be resulted into legal action. when there’s a breach of warranties, the breaching party is required to Indemnify the non-breaching party.

The clause can be written as:

“ The ARTIST(s) represents and warrants that he/she has obtained all rights, clearances, licenses, or other permissions necessary for the production of the Work, and that the Work does not infringe on the rights of any other person or entity, including any copyright or other intellectual property rights.

ARTIST(s) represent and warrant that they are knowledgeable about the copyright laws of India  as applicable to the Performance. ARTIST(s) shall not perform any copyrighted materials of others during Performance without full compliance with such applicable copyright laws. In the event that ARTIST(s) breaches this representation, warranty and covenant, ARTIST(s) hereby agree to INDEMNIFY AND HOLD HARMLESS BUYER and its employees, guests and agents from and against all liability, loss, damages, claims, and expenses (including attorney’s fees) arising out of said breach.

The ARTIST(s) represents and warrants that he/she has the legal ability and standing to execute this Agreement without the consent of any other person or entity.

He/she represents and warrants that it has not granted, nor will it attempt to grant in the future, any other person or entity any rights or interest in the Work or in the copyright in the Work.”

INDEPENDENT CONTRACTOR

By this clause the singer takes the acknowledgement that he/she is not an employee of the buyer, so no right of employer-employee will be applicable.  singers are independent contractor and they can control and conduct the performance as they want.

“ARTIST(s) acknowledges that he or she is an independent contractor and not an employee of BUYER. ARTIST(s) shall have sole control and direction in the conduct of the Performance.”

AMENITIES

Under this clause all the amenities are mentioned what is going to be provided by the buyer to the singer(s) at the time of performance. Here the organizer can mention what are the facilities to be given to the singer. Amenities clause can contains the following:

1. “ Stage: At its sole expense,the BUYER shall furnish the stage, and stage lighting, sound, and power for the Performance, and BUYER shall provide all stagehands required to assist the setup for and takedown after the Performance.
2. Dressing Rooms: BUYER shall provide ARTIST(s) with 3 private dressing room, which will be clean, calm, and quiet ,well-lit and air-conditioned.
3. Parking: BUYER shall provide parking spaces for vehicles in a location of close proximity to and with direct access to the backstage area where Performance will take place on the date(s) of Performance. This parking space will be reserved for ARTIST(s) for a period of four (4) hours prior to the Performance and ending four(4) hours following the Performance.
4. Security: BUYER shall provide security for the backstage and stage areas before, during , and after the Performance. BUYER shall provide security personnel to protect ARTIST(s) and property as deemed appropriate.
5. Passes BUYER shall provide identification passes to the ARTIST(s)  and ARTISTs’ assistants for the backstage and stage where Performance is to be held.
6. Complimentary Tickets Unless otherwise agreed, Purchaser will allow 2 guests per ARTIST(s), with a maximum of 30 tickets.”

PROMOTION

Promotion is an important part of an event. In this clause all the term relating to promotion can be mentioned. This clause says that organizer can hold to right to promote the singer’s appearance and use the artist’s name, photos and other promotional materials of such artist to make the event popular and attract audience.

The clause may be drafted like this

“ BUYER shall be entitled to advertise and promote the appearance of ARTIST(s) in the event. ARTIST(s) acknowledges that BUYER will rely on the terms in all such promotions and advertising and in the brochures to be printed. ARTIST(s) hereby acknowledges and agrees that BUYER may use ARTIST(s) name, photograph, likeness, facsimile signature and any other promotional materials in all such promotions, advertising or other activities used to increase attendance in the event.”

GOVERNING LAW AND DISPUTE RESOLUTION

This tells about under which law the clauses of the agreement is enforceable and if any legal dispute arises where and how it needs to be settled.

“This agreement shall be governed by the laws enforced in India . Any dispute arising out of this agreement shall be referred to the arbitration according to the law governing in India and shall take place in the same city of the event and a sole arbitrator will be chosen by both the parties in writing and the decision of such arbitrator shall be binding on the BUYER and the singer.”

CONFIDENTIALITY

Like other agreement in a contract for sale agreement with the artist the buyer must mention the confidentiality clause in an agreement where it will be mentioned that no confidential information can be disclosed by the singer . the clause may be framed as follows:

“The ARTIST(s) shall keep all the confidential information absolutely confidential, and prevent its release to the public,as a term of this agreement. The ARTIST(s) shall agree not to disclose , report, use for any purpose, any of the confidential information disclosed to the ARTIST(s)  by the BUYER as a result of providing the services,or which he/she has obtained or accessed.”

MERCHANDISE

Merchandise rights are the right to sell the goods featuring the name, likeness, album names, logos of the performer. The buyer can or cannot grant the right of merchandise and that must be clearly mentioned in the contract.A sample merchandise clause can be written as :

“The ARTIST shall have the right to sell Artist-related t-shirts, stickers, posters and recorded a material (“Merchandise”) immediately before and after, and during, the performance.  In that event the BUYER will receive 30% (thirty percent) of the gross sales of any merchandise (except recorded material) sold in the event.”

MISCONDUCT OF THE ARTIST

In this clause it is discussed that who will be responsible if the singer caused any misconduct.If the artist caused any misconduct or misappropriate behaviour during the performance the buyer will not be responsible for the same. As there is no employer-employee relationship between two parties no question of vicarious liability will arise.

The clause can be read as

“If any misconduct caused by the ARTIST(s) the BUYER shall not be liable for the same. The ARTIST(s) shall be solely responsible for his/her behaviour and legal action can be taken against him/her.”

FORCE MAJEURE

A Force Majeure clause is a contract provision that allows a party to suspend or terminate the performance of its obligations when certain circumstances beyond their control arise, making performance inadvisable, commercially impracticable, illegal, or impossible.Sometimes there could  arise  a situation when for some genuine reasons the singer couldn’t perform or the manager couldn’t organize the event.If a singer unable to perform or for any reason the organization who is hiring the singer need to cancel the event, there must be specific grounds mentioned in the agreement when the cancellation should be done. This clause is used to cancel the performance in an emergency.this clause may go on as:

“Neither ARTIST(s) nor the BUYER shall be liable for failure to appear or perform its obligations under this agreement in the event that such failure is caused by or due to the acts or regulations of public authorities, labor difficulties, civil tumult, inclement weather, strike, epidemic, interruption or delay of transportation service, or any other legitimate condition or occurrence beyond their respective control.”

SEVERABILITY

This clause states that if any part of this agreement becomes unenforceable , the whole agreement won’t be invalid, the remainder will remain in force.it can be written as:

If any part or parts of this Agreement shall be held unenforceable for any reason, the remainder of this Agreement shall continue in full force and effect. If any provision of this Agreement is deemed invalid or unenforceable by any court of competent jurisdiction, and if limiting such provision would make the provision valid, then such provision shall be deemed to be construed as so limited.

NOTICE

In this clause the manner of sending the notice is specified.  Such a clause may be read like:

“Any notice required or otherwise given pursuant to this Agreement shall be in writing and mailed certified return receipt requested, postage prepaid, or delivered by overnight delivery service, to the office address of the BUYER/ ARTIST as the case may be.”

REPRESENTATIVE’S AUTHORITY TO CONTRACT

This clause specifies that who signs on behalf of the singer  has the authority to do so and that her/his signature binds the singer to the terms in the contract.

The clause can read as:

“ By signing this document, the representative and/or agent of the ARTIST hereby represent that such person is duly authorized and that the ARTIST agrees to be bound by the provisions of this Agreement. It is expressly understood and agreed that in acting hereunder solely in the capacity of representative or agent of the ARTIST,the said person is not a party to this contract and shall not be liable or responsible in any way for the omissions of ARTIST , nor for any failure by ARTIST to adequately perform or comply with any term or condition hereof.”

After mentioning all the clauses, the agreement must be signed by both the parties.

These are the main important clauses which are to be mentioned in the contract for hiring a singer.

Reference:

https://www.documatica-forms.com/Samples/SERVAG_Sample.pdf

http://musicoffice.com/LegalLibrary/PDF/Booking_SpecialEvent_Festival.pdf

https://vlaa.org/wp-content/uploads/2015/05/Sample-Performance-Agreement.pdf

https://www.docracy.com/8209/musician-work-for-hire-agreement

http://www.mom.gov.sg/employment-practices/contract-of-service

In this article, Sachin Vats of Rajiv Gandhi National University of Law discusses laws relating to plagiarism in India.

Laws Relating to Plagiarism

We all know that the stealing of money or any tangible items comes under the purview of crime and are easy to identify but the stealing of ideas, words, expressions, illustrations, tables, figures, thoughts are very much too difficult to identify. This type of stealing are regarded as Plagiarism.

Introduction

• The incorporation of someone else’s work into our own work, with or without their consent and presenting it as our own without full acknowledgement is known as “PLAGIARISM”. It may be intentional or unintentional. It is one of the most severe violation of the Academic writing.
• The English word “Plagiarism” has been derived from the Latin word “Plagiare” means  “to kidnap or abduct”.
• To plagiarize means stealing and passing off the ideas or words of another as one’s own. It is a literary theft and can be taken as fraud because it contains both elements i.e., stealing someone else’s work and lying about it afterward.

Different Forms of Plagiarism:-

1. The Potluck Paper :- The writer use different sources and compile them up to create a new article. Actually only few sentences and paragraphs are changed.
2. The Photocopy :- Some significant portion are taken exactly without making any alteration.
3. The Self-Stealer : – It is not considered as wrong or offence in India as the author has right to reproduce his own works as he or she wishes to make changes.
4. The Ghost Writer : –  It is the exact copy of the work of another. All the words are copied accrediting to their own name.

Do Plagiarism amount to Fraud or Cheating?

• The copying of another’s ideas without giving credit to the actual owner of the idea is said to be plagiarism. Plagiarism in normal sense considered as unethical issue but not a CRIME.
• As someone else’s work or ideas are misrepresented as one’s own work, so it amounts to “Fraud”.
• When the act has been done dishonestly it shows the ingredients of “Cheating”.
• When a substantial portion of the copyrighted work is copied without the permission and knowledge then it amounts to criminal proceedings.It will amount to both the copyright infringement and the violation of “special right” of the author to be credited.

Do Paraphrasing amounts to Plagiarism?

• When Paraphrasing is done, the source of the work must be cited to avoid Plagiarism. Paraphrasing is restating another person’s work in our own way, so the credit must be given to the real owner of the work.
• We all know that the works created by other people is rightfully their intellectual property and if we use that work we are bound to acknowledge it. The point that is important here is that the original sources used in a work must be quoted in order to give due credit to the source from where it is taken.
• Plagiarism shows the stealing of another person’s intellectual property which includes ideas, inventions, original work of authorship, words, slogans, design, proprietary information, etc.
• Students must observe academic codes of ethics to avoid all forms of plagiarism. Merely incorporating the ideas which another writer has expressed without accrediting to that writer constitutes plagiarism.

Bill Gate has also expressed his views on Plagiarism as an “Intellectual Property Theft”. The theft of Intellectual Property with the use of computers and internet is on the rise in contemporary time.

• It is done in three ways :-

1. Stealng with the Web.
2. Sealing within the Web.
3. Stealing from the Web

Plagiarism and Copyright Infringement

• Plagiarism invites the charges of copyright infringement in most of the cases. But there is a difference between plagiarism and copyright infringement. In plagiarism the use of author’s work is done without giving attribution to him whereas the use of author’s work without the permission where the work is protected by copyright, it is known as copyright infringement. Plagiarism is an act related with moral wrong apart from inviting legal action as the the original author has the moral right to be called the author of the work.

• Plagiarism may occur even without the copyright infringement. Copyright infringement will occur only if the work that is copied is protected by copyright but the use of a work without crediting its author would be plagiarism.

Laws concerned with Plagiarism

• The right not to be plagiarised is not recognised by any of the statute in India, but the section 57 of the Indian Copyright Act, 1957 gives authors the right to claim authorship of their works among other things.

• The section 57 of the Indian Copyright Act,1957 grants to the authors the “special right” to be attributed for their work. It is a moral right and perpetual in nature. The statute recognises the right to attribution analogous to the rights not to be plagiarised.

• Section 63 of the Indian Copyright Act, 1957 is considers infringement as the criminal offence and awards the same punishment for both i.e., the violation of section 57 and the copyright infringement.

• The convicted infringers are awarded imprisonment that ranges between six months to three years under section 63 of the Act. They have also compensate in monetary terms for the act of infringing.

• Section 63 (A) of the same act stipulates an enhanced penalty for second and subsequent convictions.

Civil Wrongs and Criminal Offences

Plagiarism is actually considered as an unethical conduct of a person and not a crime by itself.

• The violation of an author’s right to be credited and copyright infringement  are both civil wrongs and criminal charges can also be filed against the violator.

• In case of a civil suit, the remedies that can be awarded are : injunctions to restrain further infringement, damages, the delivery of accounts of profit and both infringing copies of the work used to make them. Certain administrative actions may also be taken.

• A convicted infringer is liable to be imprisoned between six months and three years, and to be fined between fifty thousand and two lakh rupees under section 63 of the Act. The punishment is enhanced for subsequent convictions.

• Sometimes College and University rules for student conduct takes Plagiarism as an academic offense and not a legal offense. But this is not the actual case. Plagiarism is not only an academic offence but also a legal one.

Who will be Liable For Plagiarism?

• One who is claiming the copyright of the work is liable for Plagiarism. Generally, the Publisher has an exemption clause in the agreement with the Author and says the views are of  the Author only, in that case the Author is Liable and the Publisher can claim immunity. In other cases both can be prosecuted.
• Plagiarism generally constitutes false claim of authorship regardless of the material protected by copyright. Hence, the Author is responsible for it when it is concerned with academic credit. The Publisher is held liable in the case of Copyright infringement. Generally, the claims of Plagiarism leads to the claim of Copyright Infringement.

Some Misconceptions that Arise

• If the language used in any of the article is completely different from the original article then it does not infringe the copyright of the original writer but depending upon the circumstances, the later article may violate the moral right of the author of the original article to be credited for his work.

• The exclusive rights to reproduce, adapt,translate and publish their work or to allow others to do so are collectively called “Copyright”. “Self-Plagiarism” is not considered as offence or wrong in under the Indian Copyright Act,1957 as the author who is the owner of the copyright has all the rights for reproduction of the work or to make adaptation to the work.

Indian Judiciary and Plagiarism

• The dramatic allegation of plagiarism was made on the Divisional Bench of the Delhi High Court by the Spicy IP blog on December 1, 2015. The Delhi High Court plagiarised thirty three paragraphs of its judgment in Roche V. Cipla case from a law review article written by Swetashree Majumdar and Eashan Ghosh in the Queen Mary Journal of Intellectual Property. The Delhi High Court acknowledged the truth of the plagiarism report in an order passed on th 8th December, 2015 and apologised to the authors. The responsibility of the plagiarism was laid down to an intern who was told to write a precise facts of the case.

“What will happen to the Education System of our Country if the torchbearers who have academic responsibility on their shoulder are indulge in the activities of plagiarism ????”

Deteriorating Condition of Education System due to plagiarism

• After a lot of cases arising about plagiarism, the regulator of the higher education i.e., UGC (University Grants Commission) is serious about it and provided guidelines to be followed by the Universities to check plagiarism in academic activities. Puducherry University has taken strict measures against plagiarism and dismissed a faculty member guilty of plagiarism. All these incidents are very unfortunate and disappointing for our current educational standard. Plagiarism is considered as an academic sin by the Universities all over the world.
• India does not have any particular statutory body to deal with academic plagiarism and the cases related with plagiarism are often dealt on Ad-Hoc basis depending upon the different situation and nature of the case.In the era of professionalism, one of the important topic that needs attention is “Professional Ethics”. If the world starts to copy one another then the individualism will lose its importance and it will lead to retardation in growth.

Measures Taken or Need to be taken

• The Government of India is planning to make strict law to prevent plagiarism in academics. The law will consist provisions from warning to deregistration of students and dismissal of the teacher concerned.

• The people working for the socio-economic and cultural development of the society facilitates us with enormous inventions and creations which are making our life better and easier. The need of the hour is to encourage the inventors and the creators. Their work must be rewarded by suitable legal protection through strict laws otherwise the people working behind the scene for the development will be at a loss.

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In this article, Sakshi Garg discusses the legal steps to follow for getting your lost mobile phone back.

How to get your lost mobile phone

In the modern 21^st century where we have travelled such a long journey from those monkeys to two-legged men. In some way this technology has made us lazy and addicted to it. Earlier there were only letters which were used as mean of communication and it took so much time to reach the person then phones reduced the time taken for communicating the people. First instance is we are so addicted to our phones that we keep every secret or every important thing in our phone and this increases the chance of misuse of that data by any one when we mistakenly lose our phone. There is no need to be worried if we have lost our mobile phone because we can track our phone.

if someone stole your mobile phone or any other case  what you need to do is

1. Usually we have smartphones, so people use tracking apps in their phones then you can simply track it with the help of that application. So a person can easily download these apps from Google Play Store or Apple Store. Settings for the same application have to be changed accordingly to track the location of the phone.
2. If you don’t have any tracking application downloaded then you can use services provided by Google to locate your phone where you can locate your phone if your phone is registered to the Google account and has internet access then with the help of Android Device Manager you can call on your phone and wipe all the data away. But this comes in handy when you don’t have ADM turned on in your phone. For this you have to change the settings of the phone to allow ADM. And with the help of ADM one can only erase the data with remote control.
3. You can simply use the Google Maps location history to find your phone where all you need to do is that your device must have connected to Google account and has internet access then with change in some settings in your device you can locate it easily.
4. There are so many phone manufacturing companies which provide facility to track your device when it’s lost so you can easily locate it with its help, such as Samsung provides the facility of  Find my Samsung. With the help of these facilities you can easily track your device5) You can also track your phone with the help of IMEI number of your phone. IMEI number is different for every phone but it is not easy to track the phone with IMEI number. One can only track the phone with IMEI number if police assists in the case for this grieved person needs to file a complaint in police station.

First thing first, file a FIR

When we misplace our phone then the fear of its misuse is the biggest stress for every person. The best option for us is to opt for filing a FIR because that is ver easy and the procedure to file a FIR is very easy and ensures the possibility of exemption from any liability arising from the misuse of that phone. To file the FIR the person needs to go to any nearby police station where he last time had his phone with him and tell the police officer, the details of his phone like colour and model of the phone, IMEI number of the phone. If there were any witnesses present at the place where you lost your phone you can mention their names too. Or that person can file the complaint online to where he needs to register IMEI number of his phone online at the Stolen Mobile Database.

While registering your IMEI number online you need to provide your e-mail and active mobile number then you will get an SMS with a code you need to fill that code and some details then you can register your IMEI number. This registration will not lodge a complaint itself but save the phone from resale, or can be used to generate a copy of FIR.

After filing the first information report you should not forget to take the copy of FIR so that you can track the position of the FIR filed by you. Moreover, mobile companies always ask for a copy of FIR filed by you before tracking the location of your phone, in case we need a replacement Sim card of the previous number. You can apply for the replacement Sim Card in the office of your mobile service provider it is very easy process. With the application for replacement Sim card, you need to apply for call barring on your phone. This procedure, sometime take time so you need to do it as soon as possible. You can know the IMEI number of your phone by looking at the back of phone near to the battery area or you can easily find it on the bill of the phone. As per an advisory issued by

As per an advisory issued by center to the states and union territories on 5 Feb 2014, registration of FIR for a stolen mobile phone is compulsory under Section 154 of CrPC.

Here is the sample letter to write to the Police Officer Incharge to file FIR to find your lost phone.

From
abc… (Applicant Name)
xyz …(your contact address)
120012…(your contact mobile number/Phone number)
[email protected]…(your e-mail id.

Date.______

To,
The Police Officer In charge
Address ( Local Police station)

Respected Sir,

Sub. : Loss of my  _____________(mention your lost phone and Number)

While travelling from _______(place) to __________(place) by bus/ train/ walk I have lost my phone __________ bearing No.____________ along with (name other documents if any) some where.  (If you have any idea or chance of loss at an approximate area, you can mention the same in your application). Sir, to avoid any misuse of my above ___________ I seek your help and request you to kindly register my F.I.R in the subject matter.

For your ready reference I enclose herewith
(a) details of phone, IMEI number of phone ____________
(b) copy of ______________ as I.D proof.

Hope you will do the needful favourably at the earliest.

Thanks and regards
Yours Sincerely

____________(your signature)
____________(your Name)

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