The name C.B.I or the Central Bureau of Investigation itself is enough to generate a lot of curiosity, followed by the disclosure of mind boggling events & situations. Welcome to the world, where you feel like a detective too. The moment a matter is assigned to C.B.I. it’s understood some deep unearthening is about to happen and you are on your toes – for what’s next?

The C.B.I deals with  matters of grave concerns such as – bribery, money laundering, murders, cases causing loss to the government exchequer, possession of allegedly misappropriated assets, arresting of accused for possession of Cannabis (ganja), alleged violation of the guidelines of the RBI in the exchange of the old currency notes and so forth.  Yes! this is the same agency which works hand in hand with the Interpol!

This article simplifies how do they function to bring criminals before the Court of Law and then behind the bars!

Where does CBI begin their investigation? 

They begin anytime anywhere they smell suspicion. If you hit their radar, they will make your world go upside down. You can never read their mind which runs at a 5G speed, by just looking at them. Yes! Certainly, it’s an agency in which India takes pride – saving our integrity.

# Step 1 – let the game begin!

The C.B.I can start its investigation either by a direction of the Court – as recent as the Narada sting operation involving the MP’s and high profile individuals in West Bengal, to look into the matter or by a formal complaint made to it. Hence, the below mentioned procedure is what follows:

A written complaint is made to the concerned Department of C.B.I – say one of it being the Bank Securities and Fraud Cell (BS & FC) which deals with bank frauds which is handling the famous case of the liquor baron Vijay Mallya.

#Step II – Complaint, F.I.R.  & The Inspector of Police

This complaint is treated as a First Information Report i.e. F.I.R which is registered as a particular case number and is entrusted to an Inspector of Police for investigation.

#Step III – Court of Law

C.B.I. hands over the submission of the F.I.R.to the Metropolitan Magistrate, here the Court may also be specially assigned to deal with C.B.I matters only, for perusal and records.

After seeing the F.I.R, the Metropolitan Magistrate orders for report from the I.O. i.e. Investigating Officer in final form.

#Step IV – Search Warrant

The I.O. may file an application for issuance of search warrant, requiring immediate action to save the documents and articles from being transferred, tampered with, or destroyed.

It’s very interesting for a person having a legal background to watch when these searches are being conducted – be it with an individual or a company. The level of stress can be guaranteed to be highest surrounded by the investigative officers and you just can’t move!  Be sure to lose your sleep, food and sanity. Sorry!(actually am not) but can’t help laughing about it. You pay for your deeds.

#Step V- Charge sheet, the turning point

Such application is allowed on merits by the Court of Law when the I.O. submits his search warrant report and it becomes apparent that the accused/respondent has been involved in a criminal conspiracy and files the charge sheet under section.461/420 /34B amongst many other sections of the Indian Penal Code.  The Court takes cognizance of the offences and summons the appearance of the accused / respondent.

It’s interesting to note that the people who are named in the F.I.R may be dropped during the filing of the Charge sheet or may be added in the list. Yes! That’s the reason that the investigation part is so important & leads to a whole new picture and findings behind the complaint filed. Accordingly, the summons are issued to the alleged accused. These summonses are formal call out to the accused to appear before the Court in person on the date and time assigned.

#Step VI – Bail

The alleged accused may seek bail.  It’s interesting to note here that when a bail is seeked by the lawyer of the alleged accused, the alleged accused surrenders before the Court & it’s the discretion of the judiciary to grant the same. The public prosecutor opposes the same and seeks for jail custody or police custody depending upon the gravity of the case. If the same is allowed, the accused is released on a very high amount of bonds &securities. The question might arise why a bail is granted? The bail is allowed following the principles of natural justice where an alleged accused, is not to be treated as accused until proved guilty. The accused might also move the High Court seeking quashing of the case registered against them.

#Step VII – Interesting provisions of law

Once the bail is granted, under the provision of section 205 and 305 of the Code of Criminal Procedure, may dispense of the personal attendance of the accused and can enforce the same as and when required. The accused can also file a petition under sec.317 of the Code of Criminal Procedure, to condone the absence of the accused.

#Step VIII – C.B.I submits documents which form the core of its Case!

This step is for the C.B.I to submit documents to the respondent. The accused/respondent can take a thorough look into it and raise its objections – which can be from seeking copy of documents which may be illegible, not found or wrongly mentioned of.

It’s worthy to mention that this agency is really active and in no soon time will hand over all you might have asked for to delay the procedure. Sadly, playing smart with them is of no use.

#Step IX – Framing of Charges – watch out

This step is the framing of the charges, after which the trial of the accused begins. The accused pleads not guilty – in most of the cases (which we know of how true it might be) & follows the procedure.

#Step X – Evidence

This is where Evidence is called out for be it in form of witnesses or documents or in this fast pace world through technology – which is rigged by examination and cross – examination by the advocates and the public prosecutor. Here the aim is to make the evidences spill the beans and get caught in their own trap. Hence, words spoken matters! Yes you guessed it right, here is where the holy book comes into play and is taken oath of! I wonder what this age would be called apart from –kalyuga! Rightly termed – isn’t it?

#Step XI –Arguments

Step X is followed by arguments on the basis of all documents & evidences. It’s the twisted procedure which you might end up saying a foul play of words or at times very funny.

#Step XII – Judgment

Is that of judgment? After the tedious above mentioned procedure, the court pronounces it verdict. This verdict can be challenged by the aggrieved party before the higher forum and goes till the Apex Court.

However, this is a general view to the procedure followed in a C.B.I. case. Let’s not forget, that there can be a lot of twist and turns in the mid- way, changing the course of action.

In this article, Yashwant Naik makes a comparative study of the practice of International law between India and Europe.

The Indian Constitution ensures high regard to international law. Article 51 of the Indian Constitution serves only as a directive of State Policy

“to endeavour a) to promote international peace and security; b) to maintain just and honourable relations between nations; c) to foster respect for International law and treaty obligations in the dealing of organised people with one another; and d) to encourage settlement of international disputes by arbitration.”

• Although the Directive Principles of State Policy in this regard may not be enforceable under the Constitution, its principle is fundamental in the making of laws. The non-enforceability of Article 51 does not hinder the government from implementing or executing the provisions of the international treaty. Also, the Judiciary through it judgments can interpret the provisions of the international treaties or conventions into the municipal laws of the country.
• It is noteworthy to cite the ruling in A.D. M Jabalpur v. Shukla. In that case, Justice H.R. Khanna held that,

“if there was a conflict between the provisions of an international treaty and the municipal law, it is the latter that will prevail. But if two constructions of the municipal law were possible the court should give that construction which might bring harmony between municipal law and international law or treaty.” In contrast to the situation in India, it is interesting to compare and analyse the application of International law in the European Union.

In contrast to the situation in India, it is interesting to compare and analyse the application of International law in the European Union.

The European International law is a combination of a complex relationship between Public International Law, European Union (EU) Law and Domestic Law. The emergence of EU political dynamics, the external policies, laws and policies of international organisations etc. have created an EU ‘international law practice’. This has affected the means and methods for the enforcement and implementation of international law. The International instruments have become a part of EU Community order, and non-compliance on the part of Member States can incur state liability. EU Community order is the medium through which International treaties, agreements, flow to the Member States.

Under such circumstances, the European lawyers have to focus on a wider context, which is quite a great task and objective. Also, it is very interesting to know how the Austrian, French, Italian, Spanish, Portuguese, Polish, Hungarian and German jurists talk about the case laws of the International Court of Justice. They all address the same subject with their European and national preconceptions in mind. Thus the law on each level is not separate but interconnected with the others.

• It is also interesting to understand the interpretation and application of international agreements in the Member States. In this case, it is not only a matter of international law or national law of the respective Member State but also an issue of European Community law.
• For instance, in Liechtenstein, the legal effects of the international agreements depict the general relationship between national and international law in Liechtenstein’s legal system.
• Similarly, courts in Switzerland apply treaties automatically upon their entry into force on the international level.
• In Austria, general rules of international law are directly incorporated into Austrian federal law. The Supreme Court of Austria accepts and applies the direct effect of treaty provisions that grant rights to individuals unconditionally.
• For the German Basic law, it means the generally recognized principles of international law.
• The Polish Constitution recognizes International law as binding the State.
• The Italian law aligns with the generally recognized principles of International law. Other constitutions have similar provisions in connection with the decisions of international treaties.
• The Portugal basic law, the Greek constitution, the Finnish basic law, and the French constitution provide that treaties and or decisions of international organizations and acts promulgating these treaties or decisions have primacy over domestic law.
• In contrast to the above, the Hungarian Constitution accepts the generally recognized principles of international law, and harmonizes the country’s domestic law with the obligations assumed under international law. However, in practice Hungarian courts and other authorities appear unwilling to apply international law in cases before them. Thus, in Hungary international treaties are placed below the Constitution.
• Likewise, the Spanish Constitution states that drawing up a treaty containing a provision contradictory to the Constitution requires a preliminary amendment of the Constitution. In this sense, the position of Hungary and Spain is more or less similar to that in India.

Undoubtedly, in most of the Member States there is absolute priority of the general principles of International law over Domestic law, this is not the situation in case of India. Thus, the EU duly acknowledges its commitment towards international law realising that its Member States have a tremendous opportunity to work together to strengthen the global legal order, also to find answers to the common questions related to the accountability and the legitimacy of international law. In this sense, India can learn a lot from Europe.

This article is written by Bharti Garg, a qualified lawyer.

If we talk about the Dictionary definition of the word ‘disability’, i.e. the absence of competent physical, intelligent, or moral power, means, fitness and the like, it would be wide enough to take within its sweep the entire humankind (on this planet at least), as goes the saying that ‘no one can be perfect’, obversely meaning that each one of us possesses one or the other variant of ‘disability’. However, when confining it for legal purposes, the state recognizes some long-term physical, mental and intellectual impairments which presumably put a person at a more disadvantageous position than others in following the personal, economic and social pursuits, for instance, disabilities related to speech, sight, movement, mental retardation and mental illness. Because of their uncommon disabilities and equally rare qualities, such people are more appropriately addressed as differently-abled or specially-abled persons. The Article 14 of our Constitution promises equality of all and Article 21 guarantees the dignity of every individual to be secured, and it is for the realisation of the essence of these rights that the differently-abled persons are conferred with additional protection by the law. Similarly, Article 46 directs the state to ensure promotion with special care of the economic and educational interest of the weaker sections.

Although there have now been quite comprehensive legislations in the field, nevertheless, the access of these people to public services is still hugely hampered, their employment rate languishes at a low ebb, and the women and children are subject to blood curdling sexual crimes. What also unhinges one’s conscience is the inability of the society to give such people a sense of belonging and to appreciate their wherewithal and independence. Even worse is to know that they are neglected by their own families.

The legal recognition to this concern was first given in 1995 by the enactment of ‘The Rights of Persons with Disabilities Act’ which has recently been repealed to be supplanted by ‘The Rights of Persons with Disabilities Act, 2016’. The purpose is to align the domestic laws more intimately with The United Nations Convention on the Rights of Persons with Disabilities which was ratified by India on the 1st of October 2007. Keeping in tandem with the new medical and social understanding of the meaning of disability, the Act provides a remarkable overhauling of the legal status by increasing the number of disabilities from 7 to 21 including autism, Parkinson, dwarfism, acid attack victim, Speech and Language Disability and Specific Learning Disability.

In the education sector, the appropriate government has been mandated to conduct the survey of school going children every five years to identify and address the special requirements of children with disabilities. The teachers must also be trained to be able to communicate effectively with these children. Moreover, those in the age group of 6 to 18 years with the benchmark disabilities now have the right to free education. Persons with Benchmark Disabilities refer to those who are certified as having atleast 40% of the disability. An additional reservation of minimum 5% to persons with benchmark disabilities has also been promised in respect of Government institutions of higher education and higher education institutions receiving Government aid. It is worth mentioning here that the Government of India recently launched “Atlas for Visually Impaired (India)” in English Braille, and is also going to release the first of its kind Indian sign language dictionary soon.

We all know that the employment rate among persons with disabilities is less than half of that among their non-disabled counterparts. Even the ones who are employed face other kind of challenges like difficult access to facilities, distrust of the employers and colleagues and differential pays. To grapple with such barriers at least in the government sector, the provision of reservation and its increase from 3% to 4% under the new Act is progressive, though it may not have yet completely translated into reality. The grim unemployment rate in many public sector companies despite these statutory reservations, especially among the disabled women and mentally disabled persons, still mars the tall claims of inclusive development. We often fail to appreciate that such people have an unparalleled grit and display stouter commitment to their jobs. So far as the statutory intervention in the private sector is concerned, Section 35 is quite plauditory for it obliges the government to provide incentives to the private sector employers so as to ensure that atleast 5% of their workforce comprises of persons with benchmark disabilities. Further, Section 20 of the Act reaffirms that no government establishment shall discriminate against any person with disability in the employment matters. However, the proviso thereto enables the government, regard being had to the ‘type of work’, to notify establishments which would be exempted from the non-discrimination clause.

Certain provisions of the Act also pertain to the domain of sports to bolster effective participation in sporting activities of persons with disabilities and to expand the resources and infrastructure for their training.The awe-inspiring feats of Devendra Jhajharia, Mariyappan Thangavelu, Deepa Malik, Varun Singh Bhati and the Indian T20 Blind Cricket World Cup Team lately held the entire nation in awe. India is one country whose sports culture has already not had many admirers, but when it comes to the sports virtuosity of differently abled, their achievements are more often glossed over. To assure that the thunder of these victories isn’t stolen again, it becomes important to honour these provisions with strict observance and to build a larger societal familiarity and admiration of these players, so as to establish parity in real sense.

A litany of security and protective measures have further been adumbrated under the Act, like finessing schemes for providing livelihood to women, an unbridled access to sanitation and safe drinking water, disability pension, retrofitting different modes of public transportation to enable smoother access, creation of National and State Fund to provide financial support, and many more. To make their participation in electoral process meaningful, the statute also enjoins the Election Commission of India and State Election Commissions to ensure that their access to polling stations becomes more congenial.

A definite Avant-garde leap is the provision of Section 92 which along with being gender sensitised, also enhances punishment for certain offences committed against persons with disabilities, notwithstanding any other Central or State Act. It says that “whoever-
1. intentionally insults or intimidates with intent to humiliate a person with disability in any place within public view;
2. assaults or uses force to any person with disability with intent to dishonour him or outrage the modesty of a woman with disability;
3. having the actual charge or control over a person with disability voluntarily or knowingly denies food or fluids to him or her;
4. being in a position to dominate the will of a child or woman with disability and uses that position to exploit her sexually;
5. voluntarily injures, damages or interferes with the use of any limb or sense or any supporting device of a person with disability:
6. performs, conducts or directs any medical procedure to be performed on a woman with disability which leads to or is likely to lead to termination of pregnancy without her express consent except in cases where medical procedure for termination of pregnancy is done in severe cases of disability and with the opinion of a registered medical practitioner and also with the consent of the guardian of the woman with disability,
shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine.”

Moreover, special courts have also been proposed by the Act so as to expeditiously try cases involving violation of the rights of, and commission of offences against, the persons with disabilities.

A reference here can also be made to another legislative (and more humane) development in the area of mental health, i.e. The Mental Health Care Act, 2017, which repealed the 1987 Act by the same name and received the assent of the President on 7th April 2017. It seeks to propel the security and dignity of people afflicted with mental health problems and even decriminalises suicide.

Undoubtedly, the 2016 legislation can act as a substantial facilitator of personal, intellectual and economic growth of the persons concerned in the near future, nonetheless, there are certain provisions which have found disfavour with the disability rights activists. One of them is Section 3(3) which provides that no person with disability shall be discriminated on the ground of disability, unless it is shown that the impugned act or omission is appropriate to achieve a legitimate aim. Apparently, this provision has loose ends, and in the absence of any specific guidelines, leaves an indeterminate scope for the authorities to dilute the object of the statute. In fact, the said impugned act will have to strictly satisfy the test of reasonable classification, if it is to be saved from being read down.

Equally notable is the fact that none of the statutes gives enough attention to the role of families of such people. Their worries begin from homes as many of them are constantly dissuaded by their kith and kin from leading normal lives, made to feel dependant and sometimes even sidelined with apathy. Unless the families are fastened with more responsibilities, we will fail to grasp the nettle.

Thirdly, the statute seems to give no express notice to the problem of wage discrimination against the affected individuals. Apart from that, the stress on unfettered access to physical facilities must, as of necessity, include an inexpensive access to court and legal remedies as well, especially for two reasons, viz. the unavoidable costs of their treatment and their less than average earnings, which expose their grievances to greater repression.
All told, overall these headways do show a major attitudinal shift on the part of the law making bodies to push the envelope of social reforms in one of the areas often overlooked.
But as for our society, we must ruefully admit that the same is still a far cry. The Apex Court recently echoed a similar apprehension in the case of Jeeja Ghosh v. Union of India by holding that the persons suffering from mental or physical disability experience a nonpareil form of discrimination. They’re not looked down by people, but are not accepted in the mainstream either, even when people sympathize with them. The general feeling is that these ‘invalid people’ are incapable of doing anything in life. They are taken as a burden by the society and people may even want to willingly bear the burden. But what they don’t understand is the feelings of these people. Disabled people no longer see their physical or mental limitation as a source of shame or as something to overcome in order to inspire others. They don’t want to depend on others but to brave their disabilities and want a proper environment to grow.

Judicial approach in disposing cases involving disability rights has been more than laudable. One significant case is that of Suchitra Srivastava v. Chandigarh Administration, where the Supreme Court recognized the legal capacity of a woman affected with mental retardation, who became pregnant due to a rape by an in-house staff, to decide for herself whether to bear the child or not. It held that “her reproductive choice should be respected in spite of other factors such as the lack of understanding of the sexual act as well as apprehensions about her capacity to carry the pregnancy to its full term and the assumption of maternal responsibilities thereafter.”

Then in Ranjit Kumar Rajak v. State Bank of IndIa, the main question that fell for consideration before the Bombay High Court was “whether a person who is fully qualified for a post because of his past or present medical condition which otherwise did not interfere with his fitness to dispense the duties of his post, be denied employment because of the financial burden that would be cast on the employer.” In an emphatic ruling, court imported for the first time the concept of ‘reasonable accommodation at the work place’ as ensconced in the UN Convention, and noted that while it will have to have a nexus with the financial burden on the institution which will have to bear the burden and further the extent to which reasonable accommodation can be provided for, but it would go a long way in ensuring that such people have an easy access to and adaption in the labor market. Therefore, subject to the financial limit of the undertaking, a duty was casted upon the state to bear such financial costs of differently abled employees.

We may appreciate that there exist certain avenues where the exclusive talents of such people could be significantly harnessed. A case in point is the newly opened College of Fragrance for the Visually Impaired in Mumbai which trains them and hone their smell identification abilities so that they could be employed in fragrance or perfume industries. This is a remarkable initiative since these people are scientifically proven to have better olfactory organs. This also evinces that it might just take more adequate researches and receptive minds to enable us to discern their other similarly wondrous calibres which could be utilized for augmenting productivity in other specific industrial sectors.

No doubt we have had the fortune to know about and learn from people like Stephen Hawking, a wizard scientist; Sudha Chandran, an acclaimed international dancer; Arunima Sinha, a record-breaking mountaineer: Shekhar Naik, the young captain of Indian Blind Cricket Team, and many more, but the list can be extended to an unceasing length, only if we stop putting them through the crucibles of our superficial understanding of an ideal physical body. They have been known for ‘disabling the disabilities’, and to require them to seek our validity and approval is only illustrative of our cocksureness.

Therefore, it is a gross impiety to undermine their quality of existence either by ridiculing them, exaggerating their vulnerability or even by pitying them. We have become so inured to harbor such emotions that we fail to see through their most facile and legit expectations from us, i.e. to desist from undesirable intruding into their lives and accept them for what they are, to not identify them with their disabilities but as imperfect human beings the way we all are, to not judge the standard of their aptitude by their disabilities but their abilities, and to display the same strength of belief as them when they say that they are ‘normal’. On the other hand, if we continue to absorb ourselves with such misgivings, then we would appear like unqualified preachers, when all they need is our bonhomie. I would like to conclude with a strong hope that both the government and society work hand in glove with each other so that the fulfillment of the constitutional goals is met not out of mere legal duress but by voluntary embracement.

In this article. Shivkrit rai discusses Road ahead for Reservation: A Survey of Reforms.

INTRODUCTION

The Constitution of India was made by the authority derived from the people. Its inception marked the accessibility to the Fundamental Rights, provided in Part III of the Constitution. While the Fundamental Rights existed as the rights for each and every citizen of the country, there existed some rights which were made to protect only the underprivileged class of the society. This essay would particularly be focusing on the debates revolving reservations, which can be seen as a by-product of the right to equality.

The idea of compensatory discrimination (reservation) got its legal authority after the making of the Indian Constitution. Its purpose; to serve the socially and economically depressed section of the society. The Constitution, in its Part III strives to provide equality to all the citizens. However, it also mentions that those who are placed unequally would be treated differently. Decades of debate and discussion has raised many questions regarding the validity of reservation in contemporary India. The idea of reservation has evolved and changed over these few decades. There has been a shift in the way backwardness was measured, from political grounds to social grounds to current day popular opinion of the economic grounds. In order to analyze this shift, one needs to understand the idea of backwardness and merit and how it changed over the years.

THE ORIGINS AND A HISTORICAL PERSPECTIVE

Reservation designed in any form would result in resentment from the upper caste. The criteria were initially designed to uplift those who are “socially backward” and “depressed classes”. Backwardness was therefore looked at as a “social aspect”. In India reservation was given to these classes as a helping hand. It was to make sure that these classes are not at a disadvantage as compared to the upper castes, who were well educated and wealthy. The need of the hour was to reorder social relationship and close the educational and economic gap between the communities. A fair representation would thus enhance the representative character of the state.[1]

The idea of fair representation should be looked at from a historical perspective. When the sub-continent in the nineteenth century was divided in two main forms of governance there were the British governed areas and the princely states. The princely states were progressive, and promoted education and the learning of English. These states focused on promoting opportunities for the minority and the deprived sections of the society. During the Macaulay era, the introduction of English as the official language became a primary criterion to hold government jobs. This resulted in restricting the government jobs to the English-speaking population. [2]

The upper class and the upper middle class had the access to English learning and thus they reaped the benefit. The masses remained ignorant and backward. This resulted in the widening of the class divide with respect to the government administration jobs. Thus, the initial introduction of reservation was seen in the state of Mysore in 1918. It took place, with respect to government jobs for certain castes and communities, which had little share in the administration. [3]

This idea further evolved on the lines of political representation. The question of reservations was also discussed in the round table conferences and provisions were made in the Communal Award of 1935. This resulted in the forming of the Poona Pact which had provisions for the people belonging from the depressed class to have seats in the general electorate in the provincial legislature. The pact laid down the guidelines that were to be used for electing members from the backward communities, in the form of Electorate College. The objective of this form of reservation was to ensure that, the depressed classes were being duly represented.

POST INDEPENDENCE AND THE MAKING OF THE CONSTITUTION

After the formation of the constitution, the approach towards reservation took a paradigm shift. The backwardness and merit were now based for the purpose of employment and education and not just for political representation. During this time, there was widespread caste and class divide between different communities and groups. Reservation in the public services and educational institution was created with a view to give representation to those members of the societies who were denied opportunities in the past.

Reservation was again questioned. Naturally it antagonized those sections of the society who were privileged. Article 16 was challenged in the case of State of Madras v. Champakam Dorairajan[4]. The Supreme Court held that the communal government order of the Madras government fixing the proportion of students of each community that could be admitted to state educational institutions was ultra vires under Article 29(2) and was not saved by the provisions of Article 16. There was considerable protest in the southern states as the result of which the Constitution was amended for the first time, and Clause 15(4) added: Article 15(4) stated that nothing in this article or in Clause (2) of Article 29 shall prevent the state from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes and scheduled tribes[5].

Here again the criteria used to measure backwardness and merit was based on grounds that socially depressed classes should be given equal opportunity. Caste was thus taken as the only criteria for measuring backwardness. No universal formula to measure backwardness was thus found. The courts reviewed if proper criteria for measuring backwardness could be determined. The courts for the first time struck down the caste based reservation in the case of M.R. Balaji v. State of Mysore[6]. In this case reservation was challenged on the grounds that the lists of backward classes were prepared only on the basis of caste and that this was unconstitutional. The Supreme Court in this case held that the caste of a group of persons could not be a sole or even a predominant factor, though it could be used as a relevant test for ascertaining whether a particular class was a backward class or not.

The court stated that backwardness should be measured on social and educational grounds. The reason for this, was poverty.  One’s occupation and place of habitation could be the other relevant factors in determining social backwardness. The court invalidated the test of backwardness which was based predominantly if not solely on castes. Furthermore, the criteria of measuring backwardness started becoming more specific. The Supreme Court in the case R.Chitrakela v. State of Mysore sub-classified SEBC’s. It interpreted the M.R.Balaji case differently. It laid down two principles, firstly, SEBC’s should be made based on economic conditions and secondly it should look into the occupation. Here the caste was taken as relevant criteria for ascertaining backwardness, but was not seen as a “sole determining criterion”.

The following years saw the evolution of reservation criteria of the socially and educationally backward classes. It was argued that the reservation that was taken into account on caste basis would violate article 15(1), however, caste would be considered as a group or class of the society and in the Indian context, the whole class was socially and educationally backward. Therefore, section 15(4) allowed the caste based reservation on the grounds that the whole caste has been socially and educationally deprived.

Compensatory discrimination has been contested, on the grounds that those who make use of the reservation policy are the “creamy layer” and are economically, socially and educationally well off. These advance sections are able to use reservation from generation to generation even though they have climbed the social ladder. This has further created a sub group of elites within their communities, making it the “development of the upper end and stagnation of the bottom”[7]. Here it is to be noted that the individual may move up, however the whole caste remains at the same position. The utilitarian application of the greatest benefit of the greatest number is valid here. Only the new climber, as an individual is benefitted and the whole caste remains unaltered. Reservation is provided on the basis of caste and even if the individual is moved up on the educational and social ladder, his social identity as a caste remains the same. Thus, contesting reservations on grounds that a few may exploit it, ignores the majoritarian need of the members of the backward communities.

FROM SOCIALLY BACKWARD TO ECONOMIC CRITERIA

After the implementation of the recommendation of the Mandal Commission report in the 1990, and the decision of the Supreme Court in the case of Indra Sawhney v. Union of India[8], the idea of backward class and merit became clearer and unambiguous. The Supreme Court defined how article 16(4) mentions classes and not castes. A caste could not be taken as backward class of citizens under article 16(4). The class-caste nexus was taken into account. The classification of the caste in a class was made on the basis that it was not properly represented in the services of the state. Educational and economic backwardness was also taken into account. Social backwardness was now seen as an outcome of educational and economic backwardness. Furthermore, this was the first time “economic criteria” were given so much significance.

The implementation of economic criteria got the creamy layer exclusion principle. The Bench in Indra Sawhney v. Union of India stated that if a “few members of the backward class are educationally and economically advanced, they would be disconnected from the backward class group as the connecting thread between the two classes snap, and they would be misfits for the class.” However, this principle was rejected as it was observed that it would be difficult to come up with a reasonable drawing line. The court further stated that economic basis should not be the only criteria and social advancement should be taken into account.

Economic policies were contrary to the legal framework and overlooked certain facts. It was stated that the focus of reservation is on class poverty and not individual poverty and despite individual exception it may be easy to identify social backwardness with response to caste. It was also stated that reason reservations were provided was to give an equal opportunity to participation in the state administration for socially backward classes and putting an economic criterion would be irrelevant.

CONCLUSION

Thus, the economic criteria even though popularly suggested by many authorities was not taken into consideration. The bar on reservation was put on fifty percent. Reservation in the current day context is as relevant as it was fifty years ago. While certain urban areas may not discriminate people on the basis of caste and social class, the practice of class based discrimination is widely practiced in many parts of India. Making economic criteria as a part of reservation policy would be an important policy measure to ensure that those who benefitted from reservation do not exploit it.

A recent case of reservation could be noticed in the Jat community. The Haryana Assembly passed the Haryana Backward Classes Bill, 2016 to provide reservations of Jats and four other communities in education and government job. This was contested by various authorities. The arguments forwarded were, that even though the Jat community may fall under the criteria of socially backward classes, they were “economically well off and landed classes” in Haryana. The Justice K.C. Gupta Commission report was analyzed by the government. The government was satisfied by the report issued by the committee that concluded that the communities in question were “socially and educationally backward” and satisfied the guidelines mentioned in the Indra Sawhney case, which made it imperative for the state to provide with a ten percent reservation in relaxation of the general rule of fifty percent reservation as a maximum limit, mentioned in the case[9]. This issue has been widely debated as the communities in the bill were not economically backward.

The prevention of ‘creamy layer’ from reservation entitlements will ensure a channeling of reservation benefits to the classes/groups who need it. There exists a need to have a periodical examination of the reservation policy for the backward communities. With decades of affirmative action taken by the state, the benefits of reservation for the advancement of the backward communities need to be evaluated repeatedly. Another issue that needs to be addressed is the “duration for the implementation” of the reservations. It cannot be reversed as long as class based discrimination persists in the society. When the representation criteria per class is met and each and every class has sufficient[10] proportion of representation, reservation for those groups could be struck down.

Suggested  Readings.

Reservation benefits to OBCs, STs, and SCs who have migrated to other states

References

[1] Suri, K.C. “CASTE RESERVATIONS IN INDIA: POLICY AND POLITICS.” The Indian Journal of Political Science55, no. 1 (1994): 37-54. http://www.jstor.org/stable/41855679.

[2]Bhagwan Das. “Moments in a History of Reservations.” Economic and Political Weekly 35, no. 43/44 (2000): 3831-834. http://www.jstor.org/stable/4409890.

[3] ibid

[4] AIR 1951 SC 226

[5] Bhagwan Das. “Moments in a History of Reservations.” Economic and Political Weekly 35, no. 43/44 (2000): 3831-834. http://www.jstor.org/stable/4409890.

[6] 1963 AIR 649; See Also: p. 94, Constitutional Law, V.N.Shukla.

[7] Suri, K.C. “CASTE RESERVATIONS IN INDIA: POLICY AND POLITICS.” The Indian Journal of Political Science55, no. 1 (1994): 37-54. http://www.jstor.org/stable/41855679.

[8] Indra Sawhney v. Union of India, AIR 1993 SC 477

[9] Haryana Assembly passes Jat quota Bill, March 29^th 2016, The Hindu.

[10] Suri, K.C. “CASTE RESERVATIONS IN INDIA: POLICY AND POLITICS.” The Indian Journal of Political Science55, no. 1 (1994): 37-54. http://www.jstor.org/stable/41855679.

In this article, Shivendra Pandey from NLU-O discusses Anti-Bullying laws prevalent in India.

This article is an endeavor to bring forth an overview of the state of Anti-bullying laws in India. These laws have been enacted to eliminate bullying in any form in different spheres like bullying at workplace, schools, cyberspace. That is why they are referred as “anti-bullying laws”. These are the key area of focus in this article. So far there are only some State laws which deal with bullying, however, there have been a persistent call for framing national law on bullying.

First, it is necessary to understand the term bullying. The Bar Association of India of India gave its definition as,

“Bullying means systematically and chronically inflicting physical hurt or psychological distress on one or more students or employees. It is further defined as unwanted and repeated written, verbal, or physical behaviour, including any threatening, insulting, or dehumanizing gesture, by a student or adult, that is severe or pervasive enough to create an intimidating, hostile, or offensive educational environment; cause discomfort or humiliation; or unreasonably interfere with the individual’s school performance or participation; and may involve but is not limited to: teasing, social exclusion, threat, intimidation, stalking, physical violence, theft, sexual, religious, or racial harassment, public humiliation, or destruction of property.”[1]

In India in the case of Vishaka v. State of Rajasthan[2], the Supreme first time dealt with issue of bullying and it laid down certain guidelines for the protection of woman employees from sexual harassment.[3] But it only dealt with bullying against men at workplaces. Further, there is a need to consider different types of bullying at workplaces. In the west bullying at workplace is recognized as violence in workplaces. Bullying can be in different subtle forms like invalid criticism, exclusion, false allegations, constant bantering, humiliation or unnecessary written warnings.

The most vulnerable to this plight are the subordinates in offices. This is a scenario in private as well as public sector. Most of the bullying is done by seniors, hierarchy plays a key role. To achieve targets supervisors have to force the employees to labor hard especially the young workers have to face most of the harassment due to higher expectations. Bullying and harassment at workplace lead to terrible effect on the health and well being and performance of the employees. In India, there is no special legislation against bullying at workplace.

Still, in India a worker can seek redressal under different provisions provided under the constitution of India, IPC, and C.P.C. The Indian Constitution under various articles provides labor rights. Though not in evident form but indirectly various articles protect the labour rights.[4] For instance, Article 14 of the Indian Constitution lays down the concept of Equality before law. In the case of Mewa Ram v. A.I.I. Medical Science[5] , the Supreme Court, held that

 “the doctrine of ‘equal pay for equal work’ is not an abstract doctrine. Equality must be among equals, unequal people cannot claim equality.”[6]

Indian constitution through various articles21, 23, 24, 38, 39, 39-A, 41, 42, 43, 43-A and 47 provides an idea of what conditions should be provided by the employers.[7] However, some of these articles do not have binding effect which at instances hinders justice. Part 4 of the constitution talks about the duty of the state to promote social welfare and to make effective provisions for securing the right to work, providing education and public assistance in cases of employment, etc., which is subject to limits of its economic capacity, to make special provisions for just and humane condition of work and for maternity relief, etc.[8]

In the case of Consumer Education and Research Centre v. Union of India[9]

“Right to life includes protection of the health and strength of the worker is a minimum requirement to enable a person to live with human dignity. The right to human dignity, development of personality, social protection, right to rest and leisure are fundamental human rights to a workman assured by the Charter of Human Rights, in the Preamble and Arts.38 and 39 of the Constitution.”

Honorable Supreme Court laid emphasis on the Human Dignity of employees and it should be respected. However, after such precedents, we have cases like Pradhan v. State of Uttaranchal and others[10] and then Madan Mohan Singh v. State of Gujarat and another[11] and a close reading of these cases bring forth that the courts would be slow in holding such humiliations at workplace constitute abetment to commit suicide.[12] This again pose a necessity to legislate laws which define terms like “humility”, “harassment” and “administrative powers of superiors and their ambit”.

Further, article 23 acts as an shield preventing any form of forced labour and article 24 prevents employment of children below 14 years at hazardous places. Though, all these provisions under the Indian constitution protect interests of labor.[13] However there is a dire need for a specific legislation as it would bring clarity on different legal aspects of bullying, ease the judicial process as well lead to better working environment.

Anti Cyber bullying laws in India

Cyber bullying is a practice that is causing hue and cry in the whole legal system but till date there are no special legislation to deal with cyberbullying in India. It is a new phenomenon which has arisen in this internet age. Cyberbullying can be defined as “The use of electronic communication to bully a person, typically by sending messages of an intimidating or threatening nature.”[14]. In India, there is no specific legislation which deals with cyber bullying but there are provisions like article 67 of IT Act which partially deal with such matters. Though, it was made to deal with matters related to e-commerce.

Cyber bullying can be in different forms, For example:

• Posting any kind of humiliating content of the victim.
• Hacking the victim’s account.
• Sending or posting vulgar messages online.
• Threatening to commit acts of violence.
• Stalking by means of calls, messages, etc..
• Threats of child pornography.

The Ryan Halligan Case of Vermont (2003) was the first case that dealt with the issue of cyberbullying in which the defendant was not held liable for cyberbullying the girl because of criminal law could not be applied in that matter. Recently, there have been several instances of cyber bullying of persons from LGBT group on facebook and other social media apps. Such acts make the victims depressed, isolated and sometimes even lead to suicidal tendencies.

According to a survey conducted by Microsoft about the global Youth found that surprisingly 53% of children have been bullied in India through different ways. This scenario is not just in India but in China, Australia, Europe and other countries. It is not just youths but people of all age groups face this problem and the biggest challenge is recognizing the bully on internet or cyberspace. The technological barriers act as a hindrance in dealing with such issues. Institutional infrastructure needs to be developed to deal with this set of bullying. In the present era of rampant growth of cyber bullying it is the biggest challenge for the legislators to deal with.

Anti-bullying laws in India for schools and colleges

In India there is no separate legislation to deal with bullying at school level. Bullying is prevalent at school level in India, especially in boarding schools. However in 2015 HRD ministry directed CBSE schools to form anti-ragging committees at school level also putting severe punishments to students indulging in bullying and the punishment may vary to rustication in rarest of rare cases. There should be notice boards warning students from involving in ragging or bullying.

The Raghavan committee report recommended that teachers and the principal shall be held liable if any act of bullying takes place in the school premises.[15] In the case of University of Kerala v. Council, Principal’s colleges, Kerala & others[16]

“Now the Question arises, why should the Indian penal laws not apply to a school? You may say that the school boys are only in late teens but do not forget that there are several crimes in various cities including murders which are committed by teenagers today”[17]

These words raise a serious question on the safety of the youths of the country.

Similarly, UGC has laid guidelines to all the colleges across the country to follow anti-ragging rules in their respective universities and the universities which do not abide by such rules would be bring to task and even UGC could forfeit their recognition.[18] The government of India enacted special regulation to curb bullying at higher education institutions – “UGC Regulations on Curbing the Menace of Ragging in Higher Education Institutions, 2009”. A student may also have criminal liability under different sections of the criminal procedure code of India.

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

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References

[1] “Anti-bullying laws in India” Bar Association of India, 2015, < https://www.indianbarassociation.org/wp-content/uploads/2015/11/Anti-bullying-laws-in-India.pdf> Accessed on 16 April,2017.

[2] AIR 1997 SC 3011.

[3] “Right to dignity at workplace: Need for a legislation” by Pattabhi Ramarao Kovuru, Maupatra articles, http://www.manupatra.com/roundup/374/Articles/Right%20to%20dignity%20at%20work%20place.pdf

Accessed on 16^th April,2017.

[4] Ibid.

[5] AIR 1989 SC 1256.

[6] Ibid.

[7] “protection of labour rights under indian constitution” Shrut Brahmbhatt <http://www.gnlu.ac.in/bc/PROTECTION%20OF%20LABOUR%20RIGHTS%20UNDER%20INDIAN%20CONSTITUTION_Shrut%20Brahmbhatt.pdf> Accessed on 17 April,2017.

[8] Ibid.

[9]  AIR SC (1995) 922 para [10].

[10]  SCC (2012) 9  734.

[11] ALD (Cri) (2010) 861 (2).

[12] “Right to dignity at workplace: Need for a legislation” by Pattabhi Ramarao Kovuru, Maupatra articles, http://www.manupatra.com/roundup/374/Articles/Right%20to%20dignity%20at%20work%20place.pdf

Accessed on 16^th April,2017.

[13]“Protection of labour rights under indian constitution” Shrut Brahmbhatt  http://www.gnlu.ac.in/bc/PROTECTION%20OF%20LABOUR%20RIGHTS%20UNDER%20INDIAN%20CONSTITUTION_Shrut%20Brahmbhatt.pdf  Accessed on 17 April,2017

[14] Oxford Dictionary.

[15] “Anti-bullying laws in India” Bar Association of India, 2015, < https://www.indianbarassociation.org/wp-content/uploads/2015/11/Anti-bullying-laws-in-India.pdf> Accessed on 16 April,2017.

[16] (2011) 14 SCC 357.

[17] Ibid.

[18]  Section 2 UGC Regulations on Curbing the Menace of Ragging in Higher Education Institutions, 2009.

In this article, Shrey Chakraborty of Symbiosis Law School, Hyderabad put forth Steps for effective Legal Research.

Introduction

This article deals with the stages of development of every legal research, its preparation, commonly faced constraints and when to stop a legal research. Most importantly, this article addresses the ways in which a legal research can be effectively conducted.

A Legal Research is generally defined as the process of determining a legal question. As per the Oxford Advanced Learner’s Dictionary, research is,

“a careful study of a subject, especially to find or discover new facts about it.”

The very objective of research which is ‘legal’ in nature is to find an authority that will aid the legal problem in question.[1] Thus, every research is driven by a question or a problem which gives rise to the need of researching on this problem. It is this same problem that determines the mode of conducting the research.[2]

Steps for conducting effective legal research

1. Identifying the legal proposition for conducting research upon.
2. Solving of Research Problem:
   1. Taking the help of primary resources (statutes) and secondary materials (commentaries, case laws, research paper and more)
3. Checking the authorities of the resources. For example making sure that any cited judgment is not overruled.
4. Analysis of resources collected.

It is these stages which makes a legal research, or any research for that matter, effective. The most important stage in this is the identification and formulation of a research problem which drives the entire research and molds it into a comprehensive form.

Legal research, just like any other research, origins with a research problem. As mentioned above, it is this same research problem, which would later be determining the methodology of the legal research. Thus, a research problem to any legal research is very essential and imperative. Without this, a legal research will always be incomplete and purposeless.

While trying to seek a befitting research question, we begin from a point of not knowing or by the drive of wanting to know more. This research question must be very basic, open-ended and straight-forward. As correctly remarked by Frances K. Stage & Karen Manning[3], “the research question as the foundation of the study, defines the research paradigm that forms the assumption of the study, identifies the literature from which the research emerges and to which it contributes, defines the methodology utilized and suggests techniques to be employed throughout the research.”

The next step is solving of the found Research Problem. This stage commences with the identification of methodology. The methodology refers to the procedure through which a researcher intends to gather information (primary and secondary), for the purpose of answering the research question.

It is suggested to the researchers to develop a research proposal which would clarify the research work which is to be undertaken. This is also known as developing a hypothesis. A hypothesis shapes the legal research effectively and ensures that the researcher doesn’t get lost in the endeavor of finding answer to the research problem. Thus, a hypothesis provides a roadmap as to where the researcher should look into for carrying on his further research.

The process of collection of data can be done in 2 major ways i.e. Quantitative Research[4] (Doctrinal) and Qualitative Research[5] (Non-Doctrinal). For a researcher to determine as to which one of the modes of research he should conduct for the collection of data, there are certain factors which must be considered. These factors are:

• What kind of information do you intend to collect or use for your research?
• What do you intend to do with the information collected?
• What kind of results do you plan to get?
• What do you intend to do with the results?

Upon finding answers to these questions deftly, a researcher will be able to proceed with the collection of data in the most efficient and effective manner. By adhering to these legal research processes, the researcher benefits in the following ways:

• Legal writing becomes highly organized and structured.
• Saves a lot of time as it avoids the repetition of work.
• Helps in capturing newer ideas which the researcher may come across in the process of analysis and interpretation of data.
• Aids in encountering a writer’s block by providing a stepped approach.

Effective Steps for conducting legal research

Apart from adhering to a structured and stepped approach, there are also certain other ways in which a researcher can be effective while conducting a legal research. It is important to note that there exists no exhaustive list that could be used for the purpose of conducting a legal research effectively. However, these certain other ways or steps[6] can also be used by a researcher in which a researcher can attempt at conducting an effective legal research.

1. Firstly, the researcher should have the know-hows to use a legal research platform. With the advent of technology, the growth and efficiency of online legal databases have mushroomed a lot. Gone are the days, when the advocates would only rely on libraries to get hold of precedents. With the click of mouse, one can get a thousand page judgement skimmed and printed at comfort of home. Thus, it is very important for a researcher to be well-equipped with the available online legal databases. This requires knowledge and a good grasp over the methodologies to search. While some require some certain specific search terms, the other may not. For obtaining the data effectively, it is imperative for a researcher to narrow the search using the search terms.
2. Secondly, be clear on what results to expect during the process of collection of data. Albeit, it is not possible to anticipate all the results while collecting the data but the researcher must have some idea as to how the results could show up. In doing so, the researcher will end up sorting out the relevant results. This consequentially saves a lot of time for the researcher, making the research effective.
3. Thirdly, the researcher must be organized. It is essential that in the process of collection of data, whatever relevant data the researcher is able to get his hands on, must be used in an organized manner. The data must be incorporated in the legal research that it would appear to fall into places. If prima facie, the data seems abstract, then it means that the data has to be well organized.
4. Fourthly, the researcher has to be selective. In the endeavor of collection of data for legal research, a researcher is most likely to come across a plethora of sources. It is up to the researcher to sort the data that s/he wishes to incorporate. However, s/he must pick the data whose authorities are most relevant and reliable to the said legal research. For this purpose, the researcher should pose questions like:
5. What will this case bring to my argument?
6. How well does it support the proposition you are trying to make?
7. Lastly, the research ought not to be rushed. For this, the researcher should plan his or her research. In doing so, the researcher ends up with a time span which s/he has allotted for the completion of each chapter in the research. Often, it happens that the researcher faces roadblocks which consequentially exceeds the time limit which was set for each chapter. Given this risk, it becomes all the more necessary to plan the research beforehand and then move ahead with it.

When to stop researching? Focusing your legal proposition.

There may be circumstances when a researcher would have to put a halt to the research. Such a situation could arise in two situations. First[7] is when the researcher is not able to find anything. Second[8] is when the researcher has several findings.
When the researcher has ended up in a situation of nothingness and isn’t able to get hold of any relevant finding, the researcher should resort to following steps to effectively overcome such situations:

1. Look into another source of law.
2. Reconsider the issue.
3. Reconsider the legal theory which has been proposed.
4. In the second instance, a researcher should stop in the following situations:
5. When the researcher has found the answer.
6. When the researcher has found several authorities.
7. When there is a dearth of time.

A skillful must always look at these aspects and should be well aware as to when the research should be given a halt. This, in turn, saves a lot of time, making the legal research effective. The most important element or the key of conducting an effective legal research is patience. For a researcher to be able to conduct the legal research most effectively, it is imperative to be patient. For example, there may be times when the entire collection of data may seem fruitless and the researcher is not able to find a specific answer or a niche point. At such times, the true test of every researcher comes into play. When the researcher is finally able to find the answer to the research problem, it feels like finding a gem or a needle in the haystack. Finally, you realize that it was all worth it and how patience truly is a virtue.

Reference

[1] Legal Research: an overview, Legal Information Institute (LII), Cornell University Law School.

[2] Introduction to Legal Research, Dr. Sope Williams-Elegbe and Edefe Ojomo, Stellenbosch University, South Africa, and University of Lagos, Nigeria.

[3] Research in the College Context: Approaches and Methods, Frances K. Stage & Karen Manning (2003 Brunner-Routledge, New York) 8.

[4] ‘Qualitative Legal Research’  by Ian Dobinson and Francis Johns, Michael McConville and Wing Hong Chui, eds, Research Methods for Law (2007 Edinburgh University Press, Edinburgh) 18-19.

[5] ‘Qualitative Legal Research’ by Ian Dobinson and Francis Johns, Michael McConville and Wing Hong Chui, eds, Research Methods for Law (2007 Edinburgh University Press, Edinburgh) 19.

[6] The Seven Steps For Effective Legal Research, Melanie Davidson dated: 21^st January, 2015. Available at: http://blog.justis.com/the-seven-steps-for-effective-legal-research.

[7] The research process for effective legal research, Chapter 12 Page 143-144. Available at: http://www.cengage.com.

[8] Ibid.

In this article, Manasvi Singh discusses Alcohol laws in India.

Liquor laws in India

• Alcohol is something whose demand and sale does not fall but can rise only with time. There are various laws regarding liquor in India and there is no uniformity in these at all.
• The subject of alcohol is included in the state list under the seventh schedule of the constitution of India. Thus, the law which governs the sale and consumption of alcohol varies from state to state.
• License is needed to sell the alcohol and in some particular states, so are the consumers. Usually liquor stores, pubs, clubs, discos, bars, hotels and restaurants are licensed to sale alcohol.
• In addition to this, beaches and houseboats may hate the license to sell alcohol to tourists. The sellers are required to hold a license to sell alcohol, otherwise the selling of alcohol is illegal and prohibited.

Legal age for alcohol consumption

The permitted age for drinking alcohol varies from state to state. And even the consumption and purchasing age of alcohol are different in the states. This difference, in purchasing and consumption of alcohol, creates confusion results in difficulty in implementation of the law of consumption age of alcohol.

For example, in Maharashtra, the consumption age of alcohol is 25 and a major (i.e.18) can buy alcohol. In such a situation, it gets hard to make sure that the person, who is major and buying alcohol, is or is not going to consume the alcohol as well.

In Karnataka as per Karnataka Excise Department, 1967 legal age of drinking is 21 however as per The Karnataka Excise Act, 1965 Section 36 legal age to purchase alcohol is 18 years. In many states the act were silent about either about the valid drinking age or purchasing age. In such a situation, for the purpose of convenience it is assumed that the both the age is same.[1]

States in which liquor consuming age is 18

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

States in which liquor consuming age is 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 Rule 1945)
4. Chhattisgarh (The Chhattisgarh Excise Act, 1915 Section 23)
5. Dadra and Nagar Haveli (THE DADRA AND NAGAR HAVELI EXCISE REGULATION, 2012 Section 24)
6. Daman and Diu (The Goa, Daman and Diu Excise Duty Act & Rules 1964 section 19)
7. Goa (The Goa Excise Duty Act and Rules, 1964 Section 19)
8. Jammu and Kashmir (Jammu and Kashmir Excise Act, 1958 SECTION- 50 B  Jammu and Kashmir Liquor License and Sales Rules, 1984 RULE 11)
9. Jharkhand (The Bihar & Orissa Excise Act, 1915 Section 54)
10. Karnataka (Karnataka Excise Department, 1967)
11. Madhya Pradesh (The Madhya Pradesh Excise Act, 1915– SECTION 23)
12. Orissa (THE ODISHA EXCISE ACT, 2005 SECTION 61)
13. Tamil Nadu {Tamil Nadu Liquor (License and Permit) Rules, 1981Section 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 Provinces Excise Act, 1910 The Uttaranchal (The Uttar Pradesh Excise Act, 1910) Section 2}
18. West Bengal (Bengal Excise Act 1909 SECTION 51)

States in which liquor consuming age is 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 in which liquor consumption is illegal

These are the states which are known as ‘DRY STATES’. The sale and consumption of alcohol is banned in over 6 states of India which totally restrict the sale, consumption and even possession of the liquor.

1. Bihar {Bihar Excise (Amendment) Bill 2016 Section 19(4)}
2. Gujarat {Bombay Prohibition (Gujarat Amendment) Bill, 2009}
3. Lakshadweep {Bombay Prohibition (Gujarat Amendment) Bill, 2009}
4. Manipur (The Manipur Liquor Prohibition Act of1991)
5. Nagaland (Nagaland Liquor Total Prohibition Act, 1989)

Liquor consuming law in Maharashtra

Wine can be consumed at any age in Maharashtra, while for beer consumption the legal age is 21 and for other intoxicants or liquors the legal age is 25. Someone who lives or visits in Wardha District, one has to be 30 years of age to drink.

Recent development in liquor law in Bihar

Chief Minister Nitish Kumar has banned alcohol in Bihar since April 4, 2016. This Bona fide decision has been taken with the coming of new government in Bihar.

DRY DAYS

Dry Days are the days when alcohol is prohibited in India, regardless the states. There are some days specifically when the sale of alcohol is prohibited. Republic Day (26 January), Independence Day (15 August) and Gandhi Jayanti (2 October) are usually dry days throughout India as they are considered as the National Holidays so every state is bound to celebrate that day as a DRY DAY.[2] There are also other celebrations and festivals in the India which are considered as Dry Days.

Implementation of the Alcohol laws in India

Drunkenness is defined as the condition produced by a person who has taken alcohol in a quantity sufficient to cause him to lose control of his faculties to such an extent that he is unable to execute the occupation on which he is engaged at the material time.[3] The trend of consuming the alcohol does not limit itself to any particular class in the society; it is widespread among people of every class. Not only alcohol is injurious to health, but crime rate gets raised too. For example, drink and drive cases or killings in the influence of intoxication or even assaulting cases after consuming alcohol. Drink and drive cases are very common in most of the state of India.

However, the state government has made liquor laws to govern the sale and consumption of the alcohol and makes amendment time to time to do alternation when new laws are needed.

Conclusion

With the analysis of liquor laws in the various states of India, it can be concluded that the state governments are attempting to get the crime rate and the hazardous consequences in control. And as a result of this attempt, the permitted age for consuming alcohol differ in the various states. Through these laws, states make efforts to save the future of youth and next generation of the country.

The laws made with motive to lower the rate of consumption of alcohol are violated rigorously. People who are habitual drinkers tend to avoid the state liquor laws to drink liquor. For example, in Delhi the government imposed fine on consuming liquor in public and people, who consume alcohol, do so breaking rules and pay fines. In spite of not consuming alcohol, they break laws to consume alcohol.

It is very clear to all that in India, like any other law, liquor law has also been taken for granted. Any law regarding liquor which is meant to get alcohol consumption in control gets avoided instantly in India and people always find a way to break to law like in DRY STATES where liquor is prohibited, there are sellers available in states who sell liquor illegally and people buy it illegally. There are even more unlicensed sellers of liquor than licensed ones. The states where one has to possess a license to but alcohol, people who don’t possess them.

All the laws regarding liquor selling, purchasing and consuming are violated by people and the strength of such people is huge. It shows the condition of liquor laws implementation in India which is absolutely poor.[4] It is very essential for the nation to ensure that legal drinking age should be strictly followed and there should be diligent participation of the law enforcement agencies towards this. There is a need of laws with strict punishments to make sure the implementation of those laws as well.

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

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Reference

[1] Bhavneet Singh Vohra, Alcohol Laws In India, https://lawfarm.in/blogs/alcohol-laws-in-india

[2] Bhavneet Singh Vohra, Alcohol Laws In India, https://lawfarm.in/blogs/alcohol-laws-in-india

[3] Regulation and Legislation, https://www.alcoholwebindia.in/content/regulation-legislation

[4] Bhavneet Singh Vohra, Alcohol Laws In India, https://lawfarm.in/blogs/alcohol-laws-in-india

In this article, Priya Venkatesan from TNNLS discusses the provisions of the Andhra Pradesh Shops and Establishments Act.

Andhra Pradesh Shops and Establishments Act: Things You Must Know.

Tamil Nadu National Law School Establishment of a shop in Andhra Pradesh sounds easy, but is it the case? No, there are rules and laws to be followed in this as well. The laws which are to be followed have been enlisted in the Andhra Pradesh Shops and Establishment Act. This article provides an overview of the same. There are a few provisions discussed which make the Act stand out.

Establishment of a shop in Andhra Pradesh sounds easy, but is it the case? No, there are rules and laws to be followed in this as well. The laws which are to be followed have been enlisted in the Andhra Pradesh Shops and Establishment Act. This article provides an overview of the same. There are a few provisions discussed which make the Act stand out.

What the Andhra Pradesh Shops and Establishments Act is all about?

Andhra Pradesh Shops and Establishment Act 1988 succeeded the Andhra Pradesh Shops and Establishment Act 1966. It was, “enacted to consolidate and amend the law relating to the regulation of conditions of work and employment in shops, commercial establishments and other establishments and for matters connected therewith.”[1] The Act was re-enacted to cope with the changing times and make it all encompassing. The scope of it was hence widened in 1988.

• The Act is one among many similar state Acts which talk about the rules of employment in a shop or an establishment. It lays down the registration mandates of these places. A shop/ establishment in Andhra Pradesh (areas dealt under AP shops and establishments Act 1966) has to be registered under this Act.
• The Act, provides a threshold to working conditions of an employee, the standards below which is prohibited by the Act. It mandates a specific period of holidays to be given to the employees.
• There are provisions for safety measures for the employees working in shops and establishments. Provisions regarding penalties for noncompliance, which extend to the employer and any other persons engaging in noncompliance, are specified.  The Act, also talks about powers of a chief inspector and an inspector. The Act tries touching upon all the legally relevant areas which are to be governed by the state.

Why was the Act enacted?

The Act was established to ensure maintenance of certain basic standards with respect to the working conditions of an employee. The Act limits the powers of employers, thereby making it easy for employees to work in a healthy environment. The Act is also necessary to keep a record of registered shops and establishments so that the government has a fair idea about the number and presence of such businesses.

The significance of this Act, should not be undermined by taking it as just another mandate by the state. In an age, where everyone is looking for maximum profit out of minimum expenditure, exploitation by the employer is an inevitable evil. The Act comes in handy here, as its provisions reduce the scope for exploitation of the employees. The core idea behind the Act is prevention of the exercise of arbitrariness by employers.

Statement of objects and reasons of the Andhra Pradesh Shops and Establishments Act

• The structure of the Act is such that every aspect dealing with the functioning of shops and establishments has been discussed in a detailed way. It has 12 chapters in total, each dealing with a separate area. The focus initially is on the registration mandates of the establishments after which a whole chapter has been devoted to the functioning of shops.
• The Chapter on shops deals with basic mandates such as timings of shops, breaks and intervals in working hours and location mandates. The Act moves on to discuss Employment of Women, Children and Young Persons in its fifth chapter. It also deals with the holidays, safety mandates, wages, conditions for termination of services et al. Lastly, an entire chapter is devoted to the Penalties for offences. All in all, this Act is a compilation of all necessary regulations with regard to shops and establishments in Andhra Pradesh.

Few important provisions of the Andhra Pradesh Shops and Establishments Act.

Before discussing the provisions of the Act, a question which arises is, how exactly does the Act come as a relief to the employees?

• This can be answered by looking into the provisions specifically dealing with the working hours and holidays given to the employees. The Acts tries to achieve a working condition which is not very hectic and stressful.
• For example Section 9[2] talks about Daily and weekly hours of work in shops,  Section 30-33[3] deals with permitted absence and holidays of employees etc. Sections 23, 24 and 25[4] specifically deal with women employees, providing them with maternity leave to make their working conditions less harsh, thereby making this law a relief to the employees.

There are a few provisions, which should be appreciated for the focus they place on details. The chapter dealing with shops lays down mandates, prohibiting anyone to sell goods outside, in open, near an established shop, before and after the closing time of the shop. This provision has an intricacy.

Andhra Pradesh Shops and Establishments Act exempts newspapers, pans, flowers and vegetables, shops from such a provision.

Chapter 5, is an area completely dealing with the employment of Women, Children and Young Persons. Young Persons for the purpose of this Act, are people above 14 years of age but below 18 years of Age. Whereas, children are people below 14 years of age. Section 20 clearly prohibits a child to be employed in a shop or establishment in Andhra Pradesh. Further, Young Persons are allowed only from 6 a.m. to 7 p.m. at night. Similarly, women too have only specific working hours given in the Act. Mandating maternity leave without loss of pay is a provision, worth mentioning here. It provides young mothers time to take care of the infants without fearing loss of pay. Health and safety provisions of the Act keeps a check on cleanliness and ventilation of the working area. Employees are also to keep first aid provisions and check for other safety requirements.

While provisions for wages, insurance scheme and holidays are expected provisions in this Act, the inculcation of conditions for termination, suspension and terminal benefits is to be commended. There is always a scope of disputes and misunderstandings regarding wages. Chapter 9 takes care of the same. Such dispute resolving powers is given to an authority appointed by the government. This means, the decision would be a non-biased one, which would ensure fair play. Finally, the provisions end with providing penalties for offences committed and for noncompliance with this Act. The things which have not been given any specific chapters are given in the end in a separate chapter called miscellaneous.

Conclusion

The Act is not a very huge Act by itself, but it holds great importance in the lives of private employees. Working with Government will provide one with some basic standard, which the private sectors fail to provide. The existence of such an Act ensures such standards are named and maintained.  The matter which the Act deals with looks impressive and has a lot of significance to it. The manner the Act is framed is equally impressive. There is a balance between comfortable work environment and mandates to ensure that the work is done on time which is the best thing about this Act.

[1] Andhra Pradesh Shops and Establishments Act, (1988)

[2] Andhra Pradesh Shops and Establishments Act, S 9 (1988)

[3] Andhra Pradesh Shops and Establishments Act, S 30-33 (1988)

[4] Andhra Pradesh Shops and Establishments Act, S 23-25 (1988)

In this article, Panwar Aklovya from Institute of Law, Nirma University discusses laws prohibiting exploitation of labours in India.

BONDED LABOUR: A MENACE TO SOCIETY

Introduction to the research undertaken

Nowadays, India is facing many problems whether it is of poverty, corruption or inequality but all these problems give rise to one of the biggest human tragedy that is of bonded labor. The essay tries to propose various areas of bonded labor and the methods to cope up with this problem there are various examples that why this problem is deeply encapsulated in our system and why there is hierarchy from parents to the child involved in this system of bonded labor. The essay also tries to propose the sector in which this system is in exuberance and various laws dealing with it and introduce with the reasons and solutions of this problem.

INTRODUCTION

 ‘India’, a term which always makes people anxious to envisage about a society which has been at contrast from the antediluvian time, it is a type of society which deals with innumerable ironies. We, after calling ourselves Secular, remain in conflict with each other in the name of religion; on one hand, we talk about equality for all in status and opportunity while on the other side we are unable to handle the problems of untouchability, discrimination and unequal distribution of resources. We have humongous buildings, large cities but with this, we can’t ignore the underdeveloped and less privileged slums of New Delhi, Mumbai, Madras and many such places. We have fertile lands of Punjab in one corner of the country whereas; we also have barren fields of Bihar. At one instance, we talk about India being a developed nation and try to compare ourselves with nations like America, China, Russia and many others. On the other hand, we are unable to cope up with the problems of poverty and corruption.

At a time when India is wooing the foreign nations for its economic boost and always appears in headlines for that, a large majority of its immense population is suffering a life of poverty and misery. Thus, while India is paving its way towards modernity, it is leaving in its wake millions of illiterate, undernourished and poor without a future or even a real social existence. Such poverty and social injustice lead us to various human tragedies among those exuberant tragedies the one is of bonded labor.

Bonded labor system has been abolished in India and bonded laborers were freed from any obligation to render bonded labor and payment of debt with the commencement of the Bonded Labour System (Abolition) Act, 1976.[1] The first systematic survey of bonded labor was carried out by the Gandhi Peace Foundation and the National Labour Institute during May to December 1978 and placed the total number of bonded laborers at 2.62 million (Sarma, 1981). The estimate was based on a survey of 1000 villages in 10 states. In the survey, 61.5% of the bonded laborers were members of Scheduled Castes (SC) and 25.1% were members of Scheduled Tribes (ST). Among the employers, 89% were an agriculturist.[2]

As per the definition adopted by the Ministry of Labour and Employment in the light of Section 2(g) of the Bonded Labour System (Abolition) Act, 1976, the following are considered bonded laborers:

• Service without wages or less than prescribed minimum wages/lower than the market wage, for same or similar nature of work in the locality;
• Denial of choice of alternative avenues of employment;
• Denial of the right to move freely as a citizen in any part of the territory of India;
• Denial of the right to sell one’s labor or the product of one’s labor at market value;
• The existence of any, some or all these consequences is sufficient to prove the occurrence of bonded labor system.

In short, bonded laborer is one who renders his/her service on account of certain obligations flowing from loan/debt/advance and works at a rate much lower than existing wage rate.[3]

But bonded labor still exists in our country where the debtors have to work for the creditor. Under this system, the family members also have to suffer and have to work, there is no minimum wage set on which they have to work and no prescribed time limit all they have to do is to pay for their debt. If we search beyond and ponder on various aspects of our society, we can see that the origin of bonded labor system is a result of feudal and semi-feudal conditions.

CASTE BASED SLAVERY

It is an outcome of certain categories of indebtedness, like customary obligations, forced labor, beggar or indebtedness which have been prevailing for a long time involving certain economically exploited, helpless and weaker sections of society.[4] They agree to render service to the creditor in lieu of a debt. In the system of bonded labor, several generations have to work under slavery for repaying the debt which belongs to their ancestors. This mode of commerce system is vague in itself because it leads to worst level violation of human rights and a disgrace to the labor’s dignity. And the main problem is that we cannot go away from this culture of bonded labor easily because it is deeply encapsulated in our system.

There is a village in Uttar Pradesh called “Bandhua” which literally means “bonded”. Bonded labor is known by different names across the country. For instance, in farming sector in the states of Gujarat and Uttar Pradesh, it is known as Hali. Kaimuti, Janouti and Kamiah are terms used in the state of Bihar. In Orissa it is known as Gothi, in Andhra Pradesh, it is Gassi Gallu and in Tamil Nadu, it is Panal Pathiran. Bonded Labour Predominantly exists in the informal and unregulated sectors which employee around ninety percent of the Indian labor force.[5]

Nowadays, we can see bonded laborers everywhere whether it is rural or urban area. It is not only limited to agriculture and mining but now can be seen in cigarettes, matchbox, bricks, silk, bangles and ceramic factories as well in the system of joginis and devdasis. This is a kind of Modern form of Slavery. And in this form of slavery, individuals of every age and sex are suffering. If we try to ponder upon the causes of this problem there are many, such as poverty, inequality, caste based discrimination, lack of education, improper implementation of laws, etc. And these problems make a class which is called “poor” in our society. The problems exacerbated when these poor belongs to an outcast community like dalits , or to minority ethnic group such as “Adivasis” because there is a stigma attached to them that they are called “untouchables” and these people cannot be employed in certain job sectors such as selling of food and products used in worshipping. Due to which they have to face unemployment and are forced to be bonded laborers doing work mainly such as manual Scavenging, cleaning the houses of the socially and economically influential class people, picking up the garbage from the road and various other places, etc.

Now the paper would be highlighting some incidents of sector wise bonded labor.

AGRICULTURE

The National Commission on Rural Labour (NCRL), 1991, basing itself on the Study Group on Bonded Labour, chaired by B. N. Yugandhar.[6] According to this survey, it was found that agriculture sector was the main focus of bondage labor. It can be seen today as well, in Uttar Pradesh and Chattisgarh, the workers appear to be free tenants but in reality they are bonded labours because they borrow money from their landlords for buying seeds, fertilizers, and irrigation which they have to reimburse due to which they fall in debt and this leads them to be bonded labourers. Similarly, in Punjab, where agriculture is so refined, bonded laborers are known as Siri. They are not able to freely choose their employment and have to work for long hours in the fields of the creditor. In this system, people are mainly from lower social strata of society such as scheduled caste, scheduled tribe, dalits, etc. Because of this, the whole family have to suffer, wives of the siris become cattle shed workers and children have to involve with their parents in agriculture and are known as Pali.

Mirzapur District of Uttar Pradesh also recognised the same problem of bonded labours where Kol tribes are indebted to their landlords for more than one generation.

Another prevalent system of bonded labour in Chattisgarh is kamia-malik in which kamia the male servant, along with his family, has to work in the homes and farms of the “malik”, the master, until the debt is paid off.[7]

In all the above cases bonded labours is unending because there is a rise of bonded labour in a hierarchal and chronological manner from parents to children.

INFORMAL SECTOR

A number of bonded laborers in the informal sector is very high in professions from the brick kiln to biddi manufacturing factories. There is a boom of this modern form of slavery. The individuals work in the factories in very drastic and miserable conditions. There is no time limit prescribed and their wages are used by the “intermediates” and “Dalals” to fill their own pockets. These workers have to compromise with their health conditions because the milieu in which they work is polluted, unhealthy and unhygienic. With every breath they take they inhale pounds of ash, dust, smoke, glass pieces, etc. Coercive nature is used to discipline the workers and silence their grievances.

In the Gautambuddha district of the state of Uttar Pradesh, workers are mostly migrants from eastern Uttar Pradesh, Bihar and West Bengal, including women and children who are not paid for their work. The Brick kilns are usually heavily guarded and restrictions are also placed on the freedom of movement of the workers.[8]

Amongst all the above questions about bonded labor, the biggest question is how can we extirpate this system which is culturally encapsulated in our society?

The Indian government has tried a lot to lead this system of modern slavery to an end but every time the big pockets of corrupt leaders, the mischievous-minded mediators who have the habits of money making at the cost of others, the improper implementation of laws and the system filled with loopholes. All these things in tandem hinder the way towards any positive approach. We have enough laws in our constitution to deal with the problem. Some of the constitutional safeguards for bonded labor are discussed in the latter half of this paper.

CONSTITUTIONAL AND LEGAL SAFEGUARDS

The Constitution of India guarantees all its citizens – justice – social, economic and political; freedom of thought, expression, belief, faith, and worship; equality of status and of opportunity and fraternity, the dignity of individual and unity of the nation.

Article 23 of Constitution of India[9]

Prohibition of traffic in human beings and forced labor:

• Traffic in human beings and beggar and other similar forms of forced labor are prohibited and any contravention of this provision shall be an offense punishable in accordance with law.
• Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them.

Article 39 of Constitution of India[10]

Certain principles of policy to be followed by the States

Article 39(a) provides that the citizens, men and women equally, have the right to an adequate means of livelihood. Article 39 (d) provides that there is equal pay for equal work for both men and women and Article 39 (e) provides that the health and strength of workers, men, women and the tender age of children are not abused and that the citizens are not forced by economic necessity to enter avocations unsuited to their age or strength.

Article 42 of Constitution of India[11]

Provision for just and humane conditions of work and maternity relief: The State shall make provision for securing just and humane conditions of work and maternity relief.

Article 43 of Constitution of India[12]

Living wage etc. for workers: The State shall endeavour to secure, by suitable legislation or economic organization or in any other way, to all workers, agricultural, industrial or otherwise, work and living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities and, in particular the State shall endeavour to promote cottage industries on an individual or co-operative basis in rural areas.[13]

PROBLEM IN THE SYSTEM OR IN THE MINDSET

Now the main question is that after having such a huge bunch of legal safeguard why we are unable to demystify the solution for the problem. As per the Bonded Labour System (Abolition) Act, 1976, the Master, who keeps the laborer(s) in bondage is required to be prosecuted but in actual practice only a small number of Masters are prosecuted and this number also varies highly from district to district.[14] This is because the landlords are so wealthy that they have enough power to keep the mouths shut off those who are going against them and enough money to keep pockets full of those who are helping them in this illegal act.

So government should provide a proper implementation of the laws and rehabilitation to these bonded labors so that they do not have to depend upon the landlords.

• Present rehabilitation amount is Rupees 20,000 per rehabilitated bonded laborer, which is not sufficient for facilitating income generating activities to provide income on a sustainable basis at least at par with wages. Many officials with whom the discussions were held in this regards felt that the amount should at least be raised to Rupees 50,000 per rehabilitated bonded laborer.[15]
• Orientation/sensitisation workshops in consultation with the Ministry of Labour and Employment, Government of India should be organized at sub-division level to discuss the issues relating to identification, release, and rehabilitation of bonded laborers with the officials concerned with these issues at ground level and NGOs working for the cause of bonded laborers.[16]
• There is a strong need for making these labors economically independent which can only be possible when several developing agencies and NGOs provide them information about various poverty alleviation program as like MGNREGA and many other such programs.
• The government should do Massive awareness campaign in all the districts of the state especially in rural areas about the evils of bonded labor system. Such awareness campaigns should be organized at regular intervals, to encourage identification of released bonded labors and to aware the people about the problems and rights of bonded labors

The solution lies not only in the legal level but in the societal, mental and cultural level as well. Before blaming the outside factors and seeking government for the solutions we have to blame ourselves and find solutions from within.

CONCLUSION

From the very beginning of our life, we are surrounded by those people who only taught us about class and caste discrimination. We were hindered from playing with the children’s whom our society called backward class; we cannot eat food which is touched by the people of these classes.

 Due to which these peoples’ area of job seeking falls limited and they are forced to be bonded labor. This is why we need to change our mental viewpoint at first place we have to understand that class and caste is not universal, it is what we make, and it is what we decide, all these normative thinking have to be flush out from the psyche of the people which can only be possible by educating them because education plays a very important role in shaping the demeanour of a person through which there can be a possibility of equal distribution of opportunities and there should also be respect for the labours dignity.

These people should also be counseled about the factor and should provide confidence that they are meant not only for these types of works but they can also be a part of respectful professions whether it is teaching, engineering, etc. all they need is education. They can educate their children’s and can live a life worth living. They have to understand that they are not born for being slaves they can be kings as well and can live the way they want and can have employment wherever they want.

So the solution lies at the ground level after all this, then finally we can say that the persistence of bondage is a consequence of weak enforcement of labour laws and the laws of the land because India has a plethora of labour legislation regulating the conditions of work of contract and migrant labour, prohibiting child labour in hazardous industries, and for minimum wages. But these remain in large part unimplemented. More significantly, in case after case, there is a violation of the fundamental human rights of workers, which are enshrined in the Constitution.  A concerted effort to ensure implementation of the law, by the government in close cooperation with employers’ and workers’ organizations and civil society, is called for in this respect.[17]

References

[1] Bonded Labour Rehabilitation Scheme under Centrally Sponsored Bonded Labour System (Abolition) Act, 1976 in the state of Madhya Pradesh, Orissa, Rajasthan, Tamil Nadu and Uttar Pradesh, Planning Commission, Govt. of India available at http://planningcommission.nic.in/reports/sereport/ser/ser_bon0405.pdf, last accessed 24/02/2016, 22:09 IST.

[2] Ibid.

[3] Ibid.

[4]Know  Your Rights Series: Bonded Labour, National Human Rights Commission, India available at nhrc.nic.in/Documents/…/KYR%20Bonded%20Labour%20English.pdf, last accessed 24/02/2016, 22:09 IST

[5] Silvia Palomba and Sr. Namrata Joseph cfmss,11 Modern Slavery in India: Cases of bonded labour, Franciscans International  37-39 Rue de Vermont  1211 Geneva  Switzerland, (2012)

[6] supra note 1.

[7] Silvia Palomba, Sr. Namrata Joseph cfmss,17 Modern Slavery in India: Cases of bonded labour, Franciscans International 37-39 Rue de Vermont 1211 Geneva  Switzerland, (2012)

[8] Silvia Palomba, Sr. Namrata Joseph cfmss,19 Modern Slavery in India: Cases of bonded labour, Franciscans International 37-39 Rue de Vermont 1211 Geneva  Switzerland, (2012)

[9] Constitution of India art.23.

[10] Constitution of India art.39.

[11] Constitution of India art.42.

[12] Constitution of India art.43.

[13] supra note 4

[14] supra note 1

[15] supra note 1

[16] supra note 1

[17]Ravi S. Srivastava, Bonded Labour in India: its Incidence and Pattern,35 International Labour Office Geneva  (2005)

In this article, Avaish Kant from ILS Pune discusses the Gujarat Shops and Establishment Act, 1948.

Gujarat Shops and Establishment Act, 1948.

• The Gujarat Shops and Establishment Act 1948 earlier called the Bombay Shops and Establishment Act 1948, came into force on 11^th of Janusary 1949, on the basis of Mr. Shantilal Shah’s Committee’s Report.
• The main objective of the Act as given in the Preamble of the bare text is to “consolidate and amend the law relating to the regulation of conditions of work and employment in shops, commercial establishments, residential hotels, restaurants, eating houses, theatres, other places of public amusement or entertainment and other establishments.”

The act was previously called “The Bombay Shops and Establishments Act”, however the word “Bombay” was substituted with “Gujarat” by the Gujarat short title (Amendment) Act, 2011.  The act applies to the whole of the territory of Gujarat.

REGISTRATION OF ESTABLISHMENT

Before venturing into the territory of the provisions dealing with the registration of an establishment, we need to take a look into the definition of the term “Establishment” as defined in Section 2(8) –

“Establishment” means a shop, commercial establishment, residential hotel, restaurant, eating house, theatre or other place of public amusement or entertainment to which this Act applies and includes such other establishment as the state Government may, by notification in the Official Gazette, declare to be an establishment for the purposes of this Act”

In accordance to the act there are three categories of establishment namely;

• Establishments existing in local areas mentioned in Schedule I on the date on which this Act comes into force
• Establishments existing in local areas on the date on which this section comes into force.
• New establishments in local areas mentioned in Schedule I and other local areas in which this section has come into force

Section 7 of the act deals with the registration of establishment, Section 7(1) deals with the application format and content.

Section 7(1) lays down that every employer[1] of the establishment shall within 30 days of commencement of the act[2], commencement of the section[3] or commencement of the work of the establishment[4]  shall send to the Inspector of the local area concerned a statement, in a prescribed form, together with such fees as may be prescribed, containing–

1. The name of the employer and the manager, if any;
2. The postal address of the establishment;
3. The name, if any, of the establishment;
4. The category of the establishment, i.e., whether it is a shop, commercial establishment, residential hotel, restaurant, eating house, theatere or other place of public amusement or entertainment; and
5. Such other particulars as may be prescribed

On receipt of the statement and the fees, the Inspector shall, on being satisfied about the correctness of the statement, register the establishment in the register of establishments in such manner as may be prescribed and shall issue, in a prescribed form, a registration certificate to the employer.

Section 7(3) of the act states the procedure to be followed in case of any kind of doubt or difference of opinion between the employer and the Inspector relating to the category of the establishment

In the event of any doubt or difference of opinion between an employer and the Inspector as to the category to which an establishment should belong, the Inspector shall refer the matter to the matter to the prescribed authority which shall, after such inquiry as it thinks proper, decide the category of such establishment and its decision shall be final for the purposes of this Act.

APPLICATION FOR RENEWAL OF CERTIFICATE

The Section 7(6) of the act deals with the provision relating to the renewal of the certificate. It lays down that;

“An employer, holding a registration certificate shall, except in the circumstances mentioned in section 9 of the act[5], make an application for its renewal in the prescribed form to the Inspector not later than fifteen days before the date of its expiry. Such application shall be accompanied by such fee as may be prescribed.”

On the receipt of the application of renewal the inspector has to confirm the details mentioned in the application and if the details are found to be correct, the inspector shall renew the registration certificate in the prescribed form, and that certificate shall remain in force for the period for which it has been renewed unless it is cancelled earlier that is before the period expires

CHANGE IN PARTICULARS SUBMITTED

Section 8 of the act deals with the procedure of notifying any change in the particulars of the application submitted to the inspector. The section lays down that –

“It shall be the duty of an employer to notify to the Inspector, in prescribed form. (any change in any of the particulars contained in the statement submitted under section 7 within such period, after the change has taken place, as the State Government may prescribed in respect of any establishment or class of establishments]. The Inspector shall, on receiving such notice and the prescribed fees and on being satisfied about its correctness, make the change in the register of establishments in accordance with such notice and shall amend the registration certificate or issue a fresh registration certificate, if necessary”

DETAILED PROVISIONS ON SHOPS AND ESTABLISHMENTS

Apart from providing a set procedure for registration, renewal and closure, the Gujarat Shops and Establishment act also lays down provisions pertaining to the operations of such establishments.

• For this purpose the act has laid down timing for opening, closing, interval period for Shops and commercial establishments. The Act lays down that shops dealing wholly with milk, eggs, meat and other farm and dairy products should not open before 5 am, while shops other than those wholly dealing with farm and dairy products should not open before 7:30 am.
• The acts have also laid down closing timing of the shops; it says that no shops except the ones dealing with paan and beedi shall remain open after 8:30 pm, while paan-beedi shops are allowed to remain open till 11 in the night.

The Act also prohibits hawking before and after closing hours of shops. Commercial Establishments according to the act have the permission to remain open from 8:30 in the morning to 8:30 in the night.

PROVISIONS RELATIONG TO EMPLOYEES

In dealing further with Shops and other establishments, the act takes a cue from the Factories Act[6]  and has laid down provisions on Cleanliness of premises and Health and Safety of the employees.

In major establishment like Restaurants and hotels the act requires the establishment to furnish Identity Cards to its employees.

Section 25 of the act lays down that

“The employer shall furniture every employee in a residential hotel, restaurant or eating house an identity card which shall be produced by the employee on demand by an Inspector. Such card shall contain the following and such other particulars as may be prescribed, namely,

1. The name of the employer;
2. The name, if any, and the postal address, of the establishment;
3. The name and age of the employee;
4. The hours of work, the interval for rest and holiday of the employee;
5. The signature (with date) of the employer or manager”

Apart from the health, safety and employment provisions the act from Section 35 to Section 38C also deal with the provisions relating to Payment of Wages and Paid Leaves to the employees.

The following table lays down the summarised provisions of Leaves as given in the Act[7]

Gujarat Shops and Establishment Act, 1948

ENFORCEMENT & INSPECTIONS AND PENALTIES THERIN-

The Act also gives the power to the state for enforcement of the provisions and inspections of the Shops and establishments, wherein the State is empowered to appoint an inspector under this act, and that Inspector is given the power to occasionally inspect the shops and establishments to check if the employer is following the rules laid down by the act or not.

Offenders that are discovered after inspections are dealt with under this Act, which has also provided penalties for any kind of offence under this act.

FEW MISCELLANEOUS PROVISIONS

The Act also has laid down miscellaneous provisions under itself to bring in further clarity of how the law is to operate, and also to ensure smooth running of the Shops and establishments under this act. Following are some of the miscellaneous provisions under the act.

Section 62 provides for maintenance of registers and records and display of notices as per the prescribed rules. Section 63 provides for wages for overtime work in the different categories of establishments and the explanation to that section provides for a limit of hours of work for shops and commercial establishments, residential hotels, restaurants, eating-houses theatres or other places of public amusements or entertainments and also for any other establishment. Section 65 restricts double employment on a holiday or during leave as per the Act. Section 66 provides for the notice of termination of service. Section 69 preserves the rights and privileges under other laws, contract, custom, usage or any award, settlement, etc., if such rights and privileges are more favourable. Section 70 finally provides for the extensions of the Factories Act to all persons employed in and in connexion with a factory, notwithstanding the fact that the Factories Act did not apply to those non-workers.

OVERVIEW SUMMARY

The Gujarat Shops and Establishments act of 1948, takes a holistic approach while dealing with Shops and Establishments, it takes into consideration of every situation wherein the employer is placed, thus accordingly designing the provisions for him/her to smoothly run his/her establishment. It also takes into its view sight the conditions of the employees and it makes an attempt to safeguard their rights. Thus all in all the Gujarat Shops and Establishments act is a very balanced legislation that takes into consideration the rights and conditions of both the employer and the employee.

This was all on Gujarat Shops and Establishment Act, 1948. What are your views on Gujarat Shops and Establishment Act, 1948? Do comment below and let us know.

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REFERENCES

[1] According to Section 2(7) “Employer” means a person owning or having ultimate control over the affairs of an establishment

[2] Establishments existing in local areas mentioned in Schedule I on the date on which this Act comes into force

[3]  Establishments existing in local areas on the date on which this section comes into force.

[4]  New establishments in local areas mentioned in Schedule I and other local areas in which this section has come into force

[5] Section 9: Closing of establishment to be communicated to Inspector The employer shall, within ten days on his closing the establishment, notify to the Inspector in writing accordingly. The Inspector shall, on receiving the information and being satisfied about its correctness, remove such establishment from the register of establishments and cancel the registration certificate.

[6] Factories Act came into force on 23^rd September 1948, it has also laid down certain provisions on health and safety

[7] http://www.paycheck.in/main/labour-law-india/leave-and-holidays/paid-leave