In this article, Aditi Nandanwar from HNLU Raipur discusses Legal rights of elders in India.

Are We Treating Our Elders Legally Right?

India is the only country in the world where we touch the feet of our elders as a mark of respect. We live in a country where we compare our elders to God and have a special place for them in our traditions, culture, and scriptures. Unfortunately, India is also one of those countries which have very few laws regarding the rights of senior citizens.

Recently, Kanubhai Gandhi, Mahatma Gandhi’s grandson, and his wife moved into an old age home in Delhi. This caught up fast in media when our Prime Minister along with one of the union ministers and a Delhi state minister went to pay a visit to them. Now that it has caught a lot of attention everywhere, the question arises as to, are the laws meant for our senior citizens enough to help them lead a peaceful life after retirement?

Provisions in the Constitution safeguarding the rights of elders.

The framers of our constitution were well aware of the plight of our country’s elderly people. They knew that it is quite difficult to meet ends when one hits their 60s. They would face problems like those of housing, taxes, healthcare facilities, and psychological help for aging and social support. Hence, they gave ample provisions to the lawmakers of our country to make laws for them. A few of the provisions in the constitution are:

Article 38. State to secure a social order for the promotion of welfare of the people –

1. The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.

2. The State shall, in particular, strive to minimize the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.

Right to work, to education and to public assistance in certain cases–

The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.

Article 42 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 for maternity relief

Article 47 Duty of the State to raise the level of nutrition and the standard of living and to improve public health

The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health

All of the above provisions of the constitution give the right to the elderly to live a peaceful, dignified life. All the above articles provide provisions to get social, economic and political support from the government as their legal right. However, these articles come under the Directive Principles, which means that though these articles give directions to the State to ensure a minimum standard of living to our elderly; these are not enforceable in courts.

Legal Provisions

There are laws given under the Criminal Procedure Code (Cr. P. c.), personal laws and policies focused on the rights of elderly people. Some of which are discussed below:

Hindu Personal Laws

Hindu Adoption and Maintenance Act, 1956

The Hindi Adoption and Maintenance Act, 1956 empowers our elderly people with legal rights to claim maintenance from their children. Laws and rights under this Act can however be accessed by only Hindus. These laws do not apply to non-Hindu citizens of the country.

Section 20 of the HAMA, 1956, deals with the maintenance of children and aged parents. Under this section, it is clearly mentioned that it is the responsibility of a person to maintain their old and aged parent if they are not able to maintain themselves.

Section 23 of this Act deals with the amount of maintenance that is to be paid to the old and aged parents. According to this section, the court has the discretion to decide the amount or alter the amount already agreed upon to be paid to the aged parents, if it feels that the original amount offered might not be sufficient for their survival.

Under the modern codified Hindu laws, it is not only the son who has the responsibility to maintain the aged parents; such obligation also lies upon the daughter to maintain them. Maintenance can be claimed by both the natural and adoptive parents. However, step-parents, having their own children cannot claim maintenance under this Act.

Muslim Personal Laws

Muslims are also legally entitled to maintain their parents, provided, they have the means to do so.

According to Mulla, a son is entitled to maintain his mother even under “strained” circumstances, if she is poor, even if not “infirm”. The son is also bound to maintain his father if he is earning nothing.

There exists no concept of adoption under the Muslim laws. Hence, there exist no provisions for the maintenance of adoptive parents under Muslim law.

Christian and Parsi Laws

The Christians and Parsis have no personal laws providing for maintenance for the parents. Parents who wish to seek maintenance have to apply under provisions of the Criminal Procedure Code (National Human Rights Commission (NHRC)).

The Code of Criminal Procedure (Cr.P.C.)

Section 125 under the Cr.P.C. 1973 deals with the maintenance of old parents. Under this section, old parents, irrespective of their religion can seek maintenance.

The provision for maintenance of parents under the code was introduced for the first time in Section 125(1) of the Code of Criminal Procedure in 1973. As per the code if any person having sufficient means neglects or refuses to maintain his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his father or mother, at a monthly rate as the magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct (National Human Rights Commission (NHRC)).

The Maintenance and Welfare of Parents Act, 2007

This act aims at providing maintenance to senior citizens in the country. It is an Act to provide for more effective provisions for the maintenance and welfare of parents and senior citizens guaranteed and recognised under the Constitution and for matters connected therewith or incidental thereto (Maintenance and Welfare of Parents Act, 2007). It is a ‘go-to’ statute for providing maintenance as it applies to the whole of India except the state of Jammu and Kashmir.

This Act defines a senior citizen as a person who is above 60 years of age and is a citizen of India. Under section 5(1) of this Act, any senior citizen who is also a parent is entitled to get maintenance; where “parent”, according to section 2  means “father or mother whether biological, adoptive or step father or step mother, as the case may be, whether or not the father or the mother is a senior citizen”.

The Act also provides provisions for maintenance of child-less senior citizens. Such citizens may be maintained by their legal heir or the person to whom the property maybe transferred after the death of such citizen.

If the senior citizen or parent is incapable, any other person or a voluntary organization authorised by the senior citizen or parent can apply for maintenance on their behalf. This provision is very helpful as most of the senior citizens or parents do not have the time and energy to go around courts and tribunals (Singh, 2008).

Section 24 of the Act provides a punishment for those who, taking care of any senior citizen, leave the senior citizen with an intention of wholly abandoning them to place where no one can find them. Thus, this Act is very useful in protecting the dignity of our senior citizens.

Government Policies

National Policy for Older People, 1999

This policy was launched by the Ministry of Social Justice and Empowerment in the year 1999 to help the senior citizens of the society. Some of the features of this scheme were old age pension scheme, tax exemption, subsidy in healthcare, geriatrics care, mental health services, counseling facilities, land grants, setting up of welfare funds etc. (Rajput Avinash).

Keeping in view the changing demographic pattern, socio-economic needs of the senior citizens, social value system and advancement in the field of science and technology over the last decade, the National Policy on Older Persons, 1999 has been reviewed and the new National Policy for Senior Citizens was finalization (Ministry of Social Justice and Empowerment). India’s population grew rapidly in the subsequent years and the need of forming more provisions was sought. Three new policies were launched by different ministries. The policies and a few of their main features are:

Scheme of Integrated Programme for Older Persons (IPOP)

This scheme was launched by the Ministry of Social Justice and Empowerment in 1992 and was revised in 2008. Under this scheme, funds were provided to the state government, local bodies, NGOs etc. to run and maintain old age homes, day care centres, mobile Medicare units, help lines and counselling centres, day care units for persons with Alzheimer’s disease and dementia etc.

Indira Gandhi National Age Pension Scheme (IGNOAPS)

This scheme was introduced by the Ministry of Rural development. This scheme provided central assistance towards pension by providing Rs 200 per month to persons above 60 years of age and Rs 500 to persons above 80 years of age who belong to households below poverty line (Ministry of Social Justice and Empowerment).

National Programme for the Health Care for the Elderly (NPHCE)

This scheme was launched by the Ministry of Health and Family welfare in the year 2010-11. The major features of this scheme were community based primary healthcare approach, strengthening of health care services, dedicated facilities at 100 districts hospitals etc.

All these policies were aimed at working at the lower levels of the society and ensure that the poorest of poor senior citizens were provided the basic amenities to live their life peacefully.

We also need to change our approach of viewing our senior citizens as a burden on us. We need to come up with policies and statutes which will not only help them in living a peaceful and dignified life but also help us utilise their experience and knowledge on certain aspects. We should also come up with schemes that provide certain compensation in medicines. Medicines now days have become too costly and as we grow old our body weakens and we need medical assistance. Medicine for certain diseases is very costly and is not affordable by even young people. Such medicines should be made available at a subsidised rate to senior citizens.

There are 103.6 million elderly people (60+) living in India today (Government of India, Ministry of Statistics and Programme Implimentation, 2016). And according to a recent survey conducted by the NGO HelpAge-India in 2014, 50% of elderly people are being abused in their homes. Most of these people don’t know their rights and even if they do, they wouldn’t report such incidences as they do not want to spoil their family name.

India has the largest population of young people in the world according to the United Nations. This is an asset for India now. But, once these young people grow old, India might also become a country with the largest number of old people in the world. And to handle such large population of old people with all their demands and pensions, it is better if we start working towards better policies and statutes from right now and create a better standard of living for our senior citizens and let them know that they still are considered next to Gods as in our traditions.

References

• Government of India, Ministry of Statistics and Programme Implimentation. (2016). Elderly in India. New Delhi: Government of India.
• HelpAge-India (2014). Main Findings: Report on Elderly Abuse in India. New Delhi: HelpAge-India. Available at: https://www.helpageindia.org/pdf/highlight-archives.pdf. Accessed on 27 August 2016.
• Ministry of Social Justice and Empowerment. (n.d.). Review of National Policy for Senior Citizens. New Delhi: Press Information Bureau, Government of India.
• National Human Rights Commission (NHRC). (n.d.). Elderly People: Know Your Rights. New Delhi: NHRC.
• Rajput Avinash. Constitutional and Legal Protection in India for Senior Citizens. Available at: http://www.academia.edu/3585186/CONSTITUTIONAL_AND_LEGAL_PROTECTION_IN_INDIA_FOR_SENIOR_CITIZENS; Accessed on 26 August 2016
• Singh, R. K. (2008). Rights of Senior Citizens: Need of the Hour. Legal Services India. Available at: http://www.legalserviceindia.com/article/l170-Rights-Of-Senior-Citizen.html; Accessed on 27 August 2016

In this article, Vidushi Pandey discusses ways to improve the Juvenile Justice System of India.

The current scenario of the Juvenile Justice system in India

Article 14 of the Constitution of India provides to all its citizens with the right to equality whether the juveniles, adults or others. Juveniles are the one upon whom the development of the country lies. The rates of crimes by the Juveniles in a developing country like India is increasing day by day.

The term Juvenile has been originated from the Latin word ‘Juvenis’ that means ‘young’. A child who has not completed 18 years of age is called Juveniles. They are the real assets of our country or one’s nation.

In India, the cases related to juvenile, its trails and sentencing are governed and proclaimed by the Juvenile Justice Act, 2000.

After the commencement of this Act there were still many controversies regarding the validity of the law and whether it gives justice or not.  Then Juvenile Justice (Care and Protection of Children) Act, 2015 was passed by the Parliament of India as an amendment to the previous Act. Its objective was to supersede the Indian Juvenile delinquency law, and act of 2000, so that juveniles in conflict with the law in the age group of 16-18, involved in the heinous offence, could be lived as adults and convicted under particular sentences.

There is a great need to improve the juvenile justice system of the country in order to get a good system

Work of Juvenile Justice Board

1. As referred in section 4 of the Act, a special training program must be prepared and the officers of the Board including the Principal Magistrate should be given training of child psychology and child welfare.
2. Ambiance of the place where the Board holds inquiry should be child friendly. Wearing of black coats, using raised platforms or dais etc should be avoided. Practice of making the juvenile stand in front of the Board should be stopped. The child must be made comfortable and feel free from fear of any person. Sittings can be held by the Board in the observation homes.
3. Basic infrastructure like computer, typewriter, stenographer, furniture and buildings should also be provided to the Board for smooth discharge of duties.
4. There should be a proper maintenance of files and case records.
5. Video linking of the homes should be provided for children to facilitate inspection and supervision by the Board to keep a check on anything done against the best interest of the child.
6. At least one of the two social workers in a Board should be a person with a minimum qualification of law degree.
7. The Board should be provided with a list of experts in the field of psychology, counseling, clinical psychiatrist, NGOs, panelists of advocates and fit institutions and fit persons, observation homes, special homes and voluntary organizations who are dedicated to the field of child welfare. The services of such persons may be utilized. The officers manning the juvenile courts/Boards need to be sensitized to the development need of the juvenile in which case, flexible enough to respond to new discoveries in social sciences research and willing to invest in the experiment with promising new interventions for offenders.
8. For giving good services to the juvenile and the parents of the child, they should be treated psychologically in consultation with a psychiatric. For the same, a psychologist and one social worker, who has awareness of the relevant law, must be appointed in the Juvenile Justice Board.
9. Co-operation of NGOs and other social organizations may also be sought for by the JJ Board in addition to special juvenile police unit and probation officer. Probation officer should be given the sufficient training as to that how they have to prepare the social investigation report which will help the JJB. Lady probation officer is appointed instead of government probation officer for the preparation of social investigation report.
10. One government welfare official should be appointed by the government to work as a liaison officer between the NGO and Juvenile Justice Board child welfare committee. In this regard, the State Government Welfare Department may organize seminar, sensitization and orientation program inviting all the probable officials, police personnel who are responsible for better delivery of justice to the children.

To know more about introduction and overview of the Juvenile Justice Care and Protection Act, 2015, please watch the video below:

Treatment of Juvenile

1. Juvenile should be brought before Juvenile Justice Board within 24 hours.
2. The age of the juvenile should be determined with reference to the date of commission of the offence. A detailed scientific investigation for determination of the age is not required.
3. The Board should ensure that privacy rights of the juvenile are not violated and section 21 of Juvenile Justice Act is strictly complied with in letter and spirit.
4. The juvenile has the same Constitutional safeguards like other adult offenders. The statement of the juvenile under section 313 Cr PC should be recorded and if he/she wants to adduce evidence then that should also be allowed.
5. In no case the juvenile shall be sent to prison in default of payment of fine or default of furnishing security.
6. Whenever a juvenile is produced before a magistrate not empowered to exercise the powers of the board under the Juvenile Justice Act such magistrate should without any delay record such opinion as regards the juvenile and forward the records and the juvenile to the Board and the board shall hold the enquiry as if the juvenile had originally been brought before it.
7. Judges in the juvenile courts should be trained to recognize the educational, social and treatment needs of the children in crisis.
8. Without there being proper infrastructure or its proper implementation remains incomplete. This part should also be simultaneously dealt with by all concerned government or nongovernmental agencies.

9. There is religion based adoption system in India. It needs to be under uniform law not based on religion and a comprehensive inter-country adoption law is also required.
10. For proper implementation and giving relief to the juveniles determination of age is a relevant factor. In India because of many reasons many children do not have birth certificates and so, the implementation of the registration of Birth and death of the children should be made in a full-fledged way.

Procedure of Inquiry

1. Principal Magistrate should not be entrusted with any other work of the criminal court except the JJB as the Board is required to complete the enquiry within 4 months.
2. Due to the variations in state rules from state to state, there is an ambiguity regarding proper implementation of provisions of the Act. Therefore, common rules should be followed throughout India in all JJ Boards.
3. Stay in special home or observation home to be ordered only in exceptional cases and for strong reasons which are to be recorded.
4. The board should conduct independent and private inquiries with the juvenile to ascertain whether he/she was abused, sexually or otherwise by anyone or is suffering from any disease and if it so the juvenile be sent to government hospital for checking and treatment.
5. The Board should also ensure that the police officer who apprehends a juvenile should inform the parent or guardian of the juvenile regarding such apprehension.
6. The Board shall not adjudicate the proceedings without calling for the report of probationer officer.
7. Summary procedure prescribed should be adopted during enquiry.
8. Child should never be asked to state as to whether the child admits the offence or not.

9. Monthly group meeting should be organized of all departments which are engaged in the welfare of the child i.e. District Judge, members of J.J.Board, welfare officer and superintendent of the observation home etc for discussing the program for welfare and betterment of children.
10. Juvenile Justice Board should conduct awareness programmes about offences against children in every school situated in their jurisdiction through legal aid campaign.
11. The Board may also be complainant and lodge the case in any regular court when it is found that provisions of section 21,23,25,26 have been violated and offence is committed against the juvenile by any person who has been given actual control or control of the juvenile.

Rehabilitation/Shelter Home/Observation Home

1. There should be separate homes for juveniles and the destitute should not be mixed with the juveniles. Homes should not be constructed like jails. The homes for children should be video linked to facilitate inspection and supervision by the Board so as to keep a check on anything done against the best interest of the child. Also, surprise visits should be made at the special homes, juvenile homes and observation homes. Senior citizens should be involved as community resource person to look after the well being of the children in various homes with their expertise in different fields.
2. Schooling of the children in the homes up to the age of 14 should be made compulsory.

They should be given the best of the facilities and opportunities like any Boarding school (hostel) making a course of moral science and civics compulsory for those who are in homes.

For the welfare of juvenile, juveniles must be allowed to go on leave and released on licen the e during examination so that he can continue with his studies. Sponsorships should be provided for education of juveniles in good institutions. Personality enhancement courses should be organized.

3. For better welfare of juvenile games, sports and other functional programmes may be organized in observation home and institution and encourage the juvenile to participate in these programme so they connect themselves with society. During festival seasons some cultural programmes should be organized in the homes for the inmates with the assistance of voluntarily organizations.
4. Adoption used in section 41 should be defined to avoid conflict.
5. The property right of the juvenile on adoption be incorporated in the Act in clear terms.

Police

1. The state governments should be directed to establish a special juvenile police unit in every district and the unit must be specially instructed and trained in child psychology and child welfare. The public prosecutors handling the cases should be sensitised and given training with the juvenile police.
2. As soon as a juvenile ‘in conflict with law’ is apprehended by the police he/she should be placed under the charge of the special juvenile police unit or the designated police officer.
3. A time limit should be fixed for investigation. Juvenile police officers who investigate the case, must submit the final form within 60 days or 90 days depending upon the nature of the offence from the date of complaint.
4. A social worker may be associated in the investigation made by the police officer. In the child cell at least one lady police officer should be posted/appointed.
5. The police department also plays a very important role in ensuring child protection. But, practically police officials are not aware about provisions of the JJ Act. Hence, awareness programmes should be conducted at the police station level wherein Principal Magistrate and members of Juvenile Justice Board, members of child welfare committees and NGOs should also be involved.

Few other provisions of the Juvenile Justice Act which requires improvement

1. The High Court should take initiative to create and establish more and exclusive Juvenile

Justice Boards in order to dispose Juvenile cases within specified period as intended in J. J. Act, of 2000.

2. The Juvenile Justice Board should be made functional on all working days and the proceedings be held on all working days.
3. The Act should be amended to enable the JJB to directly entertain complaints of child for offence against them instead of being through police so that the child can give his complaint without any fear.
4. The JJ Act, 2000 does not make any difference between a male and a female child. Such scheme of the JJ Act however fails to take a note of the fact that the female juvenile being highly vulnerable is likely to be more comfortably and conveniently exploited and even abused adversely. Such a female juvenile needs special protection even at an observation home or at a place of safety, notwithstanding the fact that voluntary social organizations may come forward to provide a place of safety. An inbuilt safety mechanism is required to be provided to such a female juvenile in the Act itself.
5. Provision should be made to divert at least 25% of the fine amount collected by the criminal courts at each place towards creation of a juvenile welfare and rehabilitation fund, at the disposal of the J J Board of the particular place/area to be utilized by it in day to day rehabilitation need of the juvenile or child concerned.
6. Section 16(1) of the Act should be amended and expression “life imprisonment”, be substituted by expression “any imprisonment”. This shall be in consonance with the Legislative intent in section l6 (2) of the Act.
7. The Act is silent as to whether a juvenile involved in a TADA/POTA/NDPS Act case can be bailed out under section l2. To avoid any confusion and give immediate relief to the juveniles the Act should specifically provide for bail even in cases of above said categories.
8. The Juvenile Justice Act is silent about doing justice to the victims who have been victimized in the hands of juveniles. Necessary provisions/amendments should be made in this regard.
9. ‘Protective custody’ should be defined in Juvenile Justice Act to avoid any confusion.
10. The Act should make it clear as to when enquiry commences. Section 14 being silent about it may create confusion.
11. Voluntary social organisation with necessary government supervision and assistance should be allowed to run after care programmes to build a meaningful and constructive after care programme in order to rehabilitate the inmates by helping them to secure jobs in various government and private undertakings.
12. Until special police units are constituted investigation of cases of juveniles should be done by the specially trained police officers for which a training should be imparted to them.
13. Orientation courses, seminars, and awareness programmes should be organized by government on juvenile justice on regular intervals to enable the functionaries imbibe the message discussed and conveyed to them.
14. It is not enough to make good legislation unless it is honestly, strictly and scrupulously enforced without fear and favour. The Juvenile Justice Act has been enacted for the purpose of providing care and protection to the child. So the functionaries of the JJS should enforce the Act honestly, strictly and without any fear and favour.

15. The primary purpose of JJS being protection of the child, it is required to adopt measures for keeping the child integrated with the family and within the mainstream of the society. The Advisory Board should be established at the central, state, district and city level for integration of the children with the family. The Advisory Boards should be provided infrastructure and facility so that desired qualitative output can rendered by them.

16. The community participation should be maximised.
17. NGOs working on the street and with children should be increasingly involved. For children without family, every efforts should be made to find out an alternative family placement, failing which institutionalization may be resorted to.
18. The pattern of the SOS children’s villages which stood recommended as far back as 1920 by the Indian Jail Committee 1919-20 should be followed by the homes established or recognized for placing children. Community services for education, vocational training and recreation along with other children in the society may be used by these homes to ensure that the institutionalized juveniles are not marginalised and that the standard of programmes for the institutionalized children is at par with those for other children.
19. The community based programmes should be under close supervision to ensure fulfillment of obligation by the child and the person in whose care juvenile is placed under the placement order. For this purpose the number of probation officers/social workers and case workers be also increased to the standardized ratio between such workers and children.
20. The National Commission for Protection of Child Rights (NCPCR) was set up in March 2007 under the Commission for Protection of Child Rights Act, 2005, an act passed by Parliament in December 2005. The Commission’s Mandate is to ensure that all Laws, Policies, Programmes, and Administrative Mechanisms are in consonance with the Child Rights perspective as enshrined in the Constitution of India and also the UN Convention on the Rights of the Child. The Commission should focus and evolve programmes for all categories of children co-ordinating various programmes, undertaking follow-up of its recommendation with various other bodies and departments to create a database for policy formulation and review.
21. The states should establish a clear relationship between JJA and other legislations that affect the life of the children covered under its scope.
22. There is need to evolve alternative ways of dealing with children. Merely renaming the existing structures as by done the JJA serves no purpose. The state should start experimental projects with alternative ways for dealing with children and after successful evaluation they should be made part of the enforceable law.
23. Probation and other community based programmes, apart from being cost effective should be preferred for their potential for ensuring better care and rehabilitation of juveniles.

In this article, Sachin Vats put forth the advantages of having a degree of Company Secretary along with a degree in law.

“SATYAM VADA DHARMAM CHARA”— Speak the TRUTH and abide by the LAW.

The Sanskrit verse written on the website of The Institute of Company Secretaries of India itself describes the importance of law in the field of company secretaryship.

Should a Law student pursue Company Secretary (CS) Course?

We decide our career option on three different grounds. Those are name, fame and money. The name lives with us through our lifetime, fame remains even after the disposal of name and money depends upon the lifestyle we adopt.

• Every student’s mind is full of aspirations and to fulfill those aspirations everyone has his own career plan. The career in law is full of opportunities but opportunities bring with itself the competition.
• Corporate and Business laws are the two areas which are opted for getting better opportunities and placement. In order to have an edge over others if we keep ourselves updated and add certificates to our profile then a lot of opportunities will be before us to decide upon.

Relevance of Company Secretary course for a law student

• Law as a career has become very dynamic in today’s world. The field is full with an ocean of opportunities. There are a lot of amendments happening in the existing. The Companies Act, 1956 got overhauled in 2013. So, a lawyer must have the knowledge of the diverse areas.
• A law student purses Company Secretaryship course in order to have better understanding of corporate compliances. Company Secretaryship course is a widely known course and thought of as it provides additional knowledge to differentiate oneself and makes one employable in the era of cut-throat competition with a handsome salary and other hidden perks.
• Company Secretaryship course is one of the oldest course related with Corporate Law. The course is well structured by the Institute of Company Secretaries of India and conducts all the examination concerned with it. The students of law have an added advantage to pursue a course whose study materials are similar to that of the law.
• A professional course will surely add a professional designation to the name of an individual which makes a person more employable and fit for the race. The syllabus of the three staged course is synonymous to the course of Business and Corporate law. Even if one who pursues company secretaryship course to add a degree to his CV then also it will benefit him.

Stages of Company Secretaryship

According to the Companies Act, 2013 the responsibility of a company secretary has increased manifold. Now, it is the first time that the duties of a company secretary have been defined under section 205 of the Companies Act, 2013.

• There are three different stages in the company secretaryship course described as Foundational, Executive and Professional. The market demand of this course has increased. After becoming a certified company secretary, a student has an enormous scope of employment in different fields.

Career opportunities after having a degree of CS along with a law degree

• They will be employable under a consultant firm, banks, private companies, financial institutions, department of company affairs or other regulatory bodies. It makes the person independent to practice his own business affairs.
• The companies act, 2013 confers a special status to a company secretary, as key-managerial personnel and bracketed him along with Managing Director (MD) or Chief Executive Officer (CEO) or Manager, Whole-time Director(s) or Chief Financial Officer (CFO).

How to manage your time while pursuing CS along with a degree in law

• Candidates come across some problems during the preparation of two professional courses at the same time. They face the problem of time management. But, the problem can be easily sorted out with the help of our attitude and devotion towards our work.
• Charles Bruxton has said, “You will never find time for anything. If you want time, you must make it.” If we put all our effort with full interest then nothing can stop us in our way to success. The student of law should have the knowledge of all the fields as they have to deal with the diversities of social problem in life.
• We cannot confine ourselves to only one aspect as it will not fulfill the purpose of our interdisciplinary approach taken for the understanding of the subjects. The course constitutes three levels which may become taxing at times to manage it along with the regular law school schedule, however, considering the macroscopic effect, the course prepares and endeavors to fulfill those minute crevices which may not have been filled by the Law School Syllabi.

• Swami Vivekananda has rightly said that Education is the manifestation of the perfection already in man. Another problem is the subject background or stream problem. It does not matter a lot that which background or stream one opted during the senior secondary education.
• It’s a known fact that everybody has to study one subject for the first time. The only thing that is required for studying is to manifest it which has already a place inside us. It does not matter a lot if we belong to science, arts or commerce background.
• Yes, it is a matter of fact that the students of commerce background get an edge over others as the subjects like accounting and auditing are not new for them. But, in course of time just after the foundational stage everyone comes to the same platform.

Advantages of having a CS degree along with a degree in law

• The course of the Company Secretaryship improves the chances of a law student to get placed and more than that it opens the gate of several career opportunities. If the companies who are statutorily obliged to employ a company secretary then they will obviously prefer to recruit such a person with dual degree than one with a single degree.
• Qualifications matter a lot in getting better opportunities throughout the career. Someone has rightly said that it’s a beautiful thing when a career and passion come together. If one is really interested in Corporate and Business law then there is nothing harmful in pursuing the Company Secretaryship along with Law.
• But, it is not advisable to pursue a course without interest because it needs hard work and time to pursue two professional at the same time. So, working hard for something we do not care is stress and working hard for something we love is PASSION.

Reference

• The companies act, 2013
• CS brochure of the ICSI.
• http://startup.nujs.edu/blog/should-a-law-student-study-company-secretary-cs-course/

In thi article, Yashaswi Gupta discusses the Right to Education in India.

‘EDUCATION’- As the word defines education means to acquire knowledge, skills, values and beliefs in different aspects of our life. It is a process of learning and gaining knowledge.

Education is a fundamental human right and it helps to promote individual freedom and empowerment and propagates important development benefits.

The education system of India. A historical trace

Like in ancient times India had the Gurukul system. In Gurukul system, anyone who wants to study can go to the guru (teacher) house or his ashram and request to be taught. If the student is accepted by the guru, he would then stay at the guru’s place and would gain knowledge. The guru taught everything the student wanted to learn, from Sanskrit to Mathematics and to Metaphysics. All learning was closely related to nature and to a different feature of life and was not only confined to retain some information.

And after that, the school system came in India. In which the school was divided into different sections that is from primary junior to senior. According to the age of the child and understanding level, the child is directed to that section. Here, they gain knowledge practically as well as theoretically. According to their interest in different fields, they select different subjects and take a different opportunity and proceed towards different fields whether it is consist of engineering, doctor, lawyer, teacher etc.

To know more about the right to education in brief, please refer to the video below:

The Indian government started the RIGHT TO free and compulsory EDUCATION (RTE) Act, 2009 for making education compulsory and fundamental right of every child.

The Constitutional provision safeguarding the Right to education

The 86^th amendment of the constitution in India in 2002 got inserted Article 21-A which is, free and compulsory education for all the children between 6 to 14 years old. This article made education a fundamental right for every child.

The right to education (RTE) act, 2009 under article 21-A, means that every child has the right to study in the school in a proper way such that it must satisfy essential rules and regulations.

Article 21-A and RTE act came into force on 1 April 2010. The RTE act basically supports and encourages “free and compulsory” education. Here, free education means that none of the child is allowed to pay any fee or any kind of charges for completing and getting education except for the child whose parents are there who are capable of paying fees and affording all other kinds of expenses for their child related to studies. And compulsory education means that it is the duty of the government and concerning local authorities to check for proper attendance of the students, to ensure proper admission and also to take care for the fulfillment of fundamental education of every child.

Salient features of Right to free and compulsory education act, 2009

The RIGHT TO EDUCATION (RTE) ACT, consist of the following measures-

• Every child has the fundamental right to free and compulsory education.
• The RTE act makes rules for the non-admitted students to be admitted at a proper age to the specified class.
• It specifies different responsibilities to the local authorities and government to ensure to provide free and compulsory education.
• It also lays down rules regarding Pupil Teacher Ratios (PTRs).
• It also ensures that the employment of every teacher whether in urban or in rural areas is in a balanced way, and should maintain a proper ratio.
• It also lay down rules for maintaining the infrastructure of the schools, proper working hours for the teachers etc.
• It also suggests employing trained and well-educated teachers.

The Right to Education act also forbids some of the issues like,

• Any type of mental harassment over any student or physical assault.
• Capitation fees, which means that the amount of fee taken by the institution which is more than the prescribed fee.
• It also prohibits the working of the school without its identification.

The RTE act wants to form an education system in which every child should be allowed to get education freely and he or she should be free from any kind of fear regarding harassment, unequal treatment etc. This act wants to establish the system in which full knowledge regarding subject and moral values should be provided and none of the child could be remained deprived of their fundamental and the most basic rights.

Some steps that should be taken by the Government and local authorities and also by the parents for increasing awareness regarding education are-

• In RTE “compulsory education” creates an important responsibility for the government as well as for the local authority to ensure admission of every child of the age 6-14 years.
• It is the responsibility of the parents to maintain proper attendance of their child.
• Fulfilling elementary education of each and every child falling under the age of 6-14 years.
• The government should try to maintain proper training facilities of the teachers.
• It should ensure a good elementary education that should be according to the norms.
• It is the responsibility of the local authorities that the child belonging to the weaker section of the society and anyone who is disabled should not be discriminated from the other students.

There are certain responsibilities of the school and the teachers too. These are,

• The teacher appointed should perform the norms the under sub-section (1) of section 23.
• A teacher should be regular and punctual towards his duty.
• It is the responsibility of the school to maintain proper discipline, to make compulsory the elementary education and try to take care that every child is being treated well or not and gaining proper knowledge.

Let’s now focus on the literacy rate of India.

Government have taken many major steps and initiatives for increasing the literacy rate in India. If we see the data of the year 2001, the National Literacy Mission which was held in 2001 have given the data which shows that in India 64.84% of the persons were literate in which 75.26% were males and 53.67% were females. At that time the highest literacy rate was in the state of Kerala in which 90.86% persons were literate among them 94.24% were males and 87.72% were females. The lowest literacy rates were in Bihar in which only 47% of the persons were literate among which 59.68 were males and 33.12% were females.

For the year 2011 the literacy rates were 74.04%. In which 82.14% were males and 65.465 were females.
So, we can see that there is an increase in the literacy rate. If we compare since independence then from the year 1951 to the year 2011 the rates are as follows-

1951-        Total literacy rate: 18.33%

                Male literacy rate:   27.16%

                Female literacy rate: 8.86%

1961-       Total literacy rate: 28.30%

               Male literacy rate: 40.40%

               Female literacy rate: 15.35%

1971-        Total literacy rate: 34.45%

                Male literacy rate: 45.96%

                Female literacy rate: 21.97%

1981-       Total literacy rate: 43.57%

               Male literacy rate: 56.38%

              Female literacy rate: 29.76%

1991-      Total literacy rate: 52.21%

              Male literacy rate: 64.13%

              Female literacy rate: 39.29%

2001-      Total literacy rate: 64.83%

              Male literacy rate: 75.26%

              Female literacy rate: 63.67%

2011-      Total literacy rate: 74.04%

              Male literacy rate: 82.14%

              Female literacy rate: 65.46%

As compared since independence we can see that there is an increase in the literacy rate. But the increasing level is slow. So the government has made different rules and regulations, different types of norms, acts, articles etc to increase awareness among the people.

Education is the most fundamental right of us and we should try to encourage the people from urban areas and persons who are not able to get the sufficient information regarding rules and regulations so that the acts and articles made by the government can be useful and fruitful.

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

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

Suggested Readings.

Substantive Rights That Flow From Article 21

Legal Education in India: What lies ahead?

In this article, Shalini Chauhan from Central University of South Bihar discusses the provisions SC and the ST (Prevention of Atrocities) Act, 1989.

“Just as modern mass production requires the standardization of commodities so the social process requires standardization of man, and this standardization is called equality”[1].

Abstract of the research undertaken

Hindu society is divided into many castes and more than 400 castes are termed as scheduled castes and scheduled tribe and are regarded as untouchables. The caste system was a result of work and not of birth. The preamble of the constitution of India talks about equality but despite that there is no equality among the citizens of India, but the so-called citizens of India treat the lower caste people more ruthlessly than the animals. A speech given by Dr. Ambedkar in the Indian constituent assembly gives a clear picture of the Indian society. There are various fundamental rights granted by the constitution of India to abolish this caste based discrimination, but the tyranny is that even the Constitution of India failed to grant equality to the lower caste. After the failure of the Constitution came the Untouchability (Offences) Act 1955 but the lacunae and loopholes impelled the government to project a major overhaul of this legal instrument. From 1976 onwards the Act was refurbished as the Protection of Civil Rights Act. Despite various measures adopted to improve the socio economic conditions of the SCs and STs they are still the vulnerable class and are subjected to various humiliation, offences, indignities and harassment. The normal provisions of the existing laws of Indian Penal Code and Protection of Civil Rights Act 1955 were found to be inadequate to check these atrocities.

Recognizing these loopholes the Parliament, passed `Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act 1989 and Rules 1995.

INTRODUCTION

The Preamble of the Constitution of India itself talks about the equal status of the citizens of India. The constitution speaks about sovereign, socialist, secular, democratic republic, it also grants equality, but the tyranny of this society even now there is no equality. Dr. Ambedkar dreamt of a social and economic equality. The Constitution of India was made keeping all this consequences in mind. The part III of the Constitution which talks about the fundamental rights tried to abolish this caste system but failed. Article 14 which talks about right to equality before law, according to this article every person is equal in the eyes of law, it emphasized on prohibition of discrimination on grounds of color, race, religion, caste, gender, place of birth, etc. Article 17 abolishes the practice of untouchability in 1950. According to the provision of this article “enforcement of any disability arising out of untouchability” is a punishable offence in accordance with law. As per Article 46 states “The State shall promote with special care the educational and economic interests of the weaker section of the people and in particular of the Schedule Castes and Schedule Tribes, and shall protect them from social injustice and all forms of exploitation”.

ORIGIN AND DEVELOPMENT OF THE ACT

When all the provisions of the Constitution failed to implement the equality among the Indian society and also failed to remove the practice of untouchability, at that time a new law was needed and then came the Untouchability (Offences) Act 1955 but the lacunae and loopholes of this act impelled the government to project a major overhaul of this legal instrument. From 1976 onwards the Act was refurbished as the Protection of Civil Rights Act. Despite the various measures adopted by government to remove this gap between lower and upper caste and to protect the dalits from humiliation, disrespect, offences, indignities and harassment they still remained a vulnerable category. After being educated with their rights when they try to assert them and also when they speak against the practice of untouchability against them the vested interest cow them down and terrorize them

The normal provisions of the existing laws like the Protection of Civil Rights Act 1955 and Indian Penal Code have been found inadequate to check these atrocities continuing the gross indignities and offences against Schedule Caste and Schedule Tribes. Recognizing these existing problems the Parliament passed “Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act, 1989 and Rules, 1995.

MEANING OF ATROCITY

The word atrocity was unknown before the enactment of atrocities act in 1989. In legal parlance, the act understands the term to mean any offence that is punishable under section 3(1) and section 3(2).

Even though of this section, the meaning of atrocity in specific terms are,

1. Atrocity is an “expression commonly used to refer to crimes against the SCs and STs in India”.
2. It “denotes the quality of being shockingly cruel and inhumane, whereas the term crime relates to an act punishable by law”[2].
3. It implies “any offence under the Indian Penal Code committed against SCs and STs by non SC and ST persons. Caste consideration as a motive is not necessary to make such an offence of atrocity”[3].

OBJECTIVE OF THE ACT

The objective and purpose of this more punitive piece of legislation was sharply outlined when the Bill was introduced in Lok Sabha:

“Despite various measures to improve the socio economic conditions of the SCs and STs, they remain vulnerable… They have, in several brutal incidents, been deprived of their life and property… Because of the awareness created, through spread of education, e.t.c, when they assert their rights and resist the practice of untouchability against them or demand statutory minimum wages or refuse to do any bonded and forced labor, the vested interests try to cow them down and terrorize them. When the SCs and STs try to preserve their self-respect or honor of their women, they become irritants for the dominant and the mighty…

Under the circumstances, the existing laws like the Protection of Civil Rights Act 1955 and the normal provisions of the Indian Penal Code have been found to be inadequate to check and deter crimes against them committed by non-SCs and non-STs… It is considered necessary that not only the term ‘atrocity’ should be defined, but also stringent measures should be introduced to provide for higher punishment for committing such atrocities. It is also proposed to enjoin on the States and Union Territories to take specific preventive and punitive measures to protect SCs and STs from being victimized and, where atrocities are committed, to provide adequate relief and assistance to rehabilitate them.[4]”

Therefore the objective of the act is very clear which emphasize the intention of the Indian state to provide justice to the Dalit class and also abolish this ill practice of untouchability.

SALIENT FEATURES OF THE ACT

The rations of Atrocities Act and Rules is generally a division into three different categories, which covers a list of problems or issues related to atrocities against SC/ST people and their position in society.

• The first category contains provisions related to criminal law. This category in generally establishes criminal liability for a number of specifically defined crimes, and also extends the scope of certain categories of penalizations given in the Indian Penal Code (IPC).
• The second category contains provisions for relief and compensation for victims of atrocities.
• The third category contains provisions that set up special authorities for the exertion and monitoring of the Act.

The salient features of the Act are,

1. Creation of new types of offences not in the Indian Penal Code (IPC) or in the Protection of Civil Rights Act 1955 (PCRA).
2. Commission of offences only by specified persons i.e. barbarity can be committed only by non-SCs and non-STs on members of the SC or ST communities. Crimes among SCs and STs or between STs and SCs do not come under the purview of this Act. Kanubhai M. Parmar v. State of Gujarat, that if the offence is committed by persons belonging to Scheduled Caste against Scheduled Caste member, they cannot be prosecuted and punished under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989
3. Defines various types of atrocities against SCs/STs. Section 3(1) i to xv and 3(2) i to vii.
4. Prescribes strict punishment for such atrocities (Section 3(1)i to xv and 3(2)i to vii).
5. Enhanced the quality of punishment for some offences (Section 3(2) i to vii, 5).
6. Enhanced minimum punishment for public servants (Section 3(2) vii).
7. Penalty for delinquency of duties by a public servant (Section 4).
8. Attachment and forfeiture of property (Section 7).
9. Externment of potential offenders (Section 10(1), 10(3), 10(3)).
10. Creation of Special Courts(Section 14). In Mangal Prasad v. Additional Session Judge the court held that the Court below has been appointed as a special Judge within the meaning of Section 2(d) of the Act but unless the accused is sent to him by the Magistrate, he cannot take any cognizance of the offence under Section 14 of the said Act and he also cannot act as a Magistrate in exercising his power or in taking the cognizance of the Act like a Magistrate or to send that complaint petition to the concerned police station under Section 156 (3), Criminal Procedure
11. Appointment of Special Public Prosecutors (Section 15).
12. Empowers the government to impose collective fines (Section 16).
13. Erasure of arms licenses in the areas labeled where an atrocity may take place or has taken place (Rule 3iii) and clasp all illegal fire arms (Rule 3iv).
14. Grant arms licenses to SCs and STs (Rule 3v).
15. Denial of anticipatory bail (Section 18).
16. Denial of probation to convict (Section 19).
17. Provides reimbursement, relief, and rehabilitation for victims of atrocities or their legal heirs (Section 17(3), 21(2)iii, Rule 11, 12(4)).
18. Identification of atrocity prone areas(Section 17(1), 21(2)vii, Rule 3(1)).
19. Setting up hindrance to avoid committing of atrocities on the SCs amongst others (Rule 3i to 3xi).
20. Setting up a mandatory, periodic monitoring system at different levels (Section 21(2)v):

• District level (Rule 3xi, 4(2), 4(4), 17).
• State level (8xi, 14, 16, 18).
• National level (Section 21(2), 21(3), 21(4)).

Along with the rules, it provides a framework for monitoring the state response to the atrocities against Scheduled Castes and Scheduled Tribes. According to the Act and Rules, there are to be monthly reports (from the District Magistrates), quarterly review meetings at the district level by the District Monitoring and Vigilance Committee (DVMC) and half yearly reviews by a 25-member State Monitoring and Vigilance Committee (SVMC) the chaired by the Chief Minister. The pursuance of every Special Public Prosecutor (SPP) will also have to be reviewed by the Director of Public Prosecutions (DPP) every quarter. Annual reports have to be sent to the central government by 31 March every year.

THE SC AND THE SC (PREVENTION OF ATROCITIES ACT, 1989) ACT IN BRIEF

SHORT TITLE, EXTENT, AND COMMENCEMENT

Section 1 Prevention of Atrocities Act,1989 deals with the title, extent, and commencement of the Act. The area where it will have its operation is the whole of India except the State of Jammu and Kashmir which occupies a special constitutional position. Therefore this act is applicable will be followed by whole of India but not in the State of Jammu and Kashmir as because they have different laws prevailing there.

DEFINITIONS

Section 3 of this act deals with definitions of atrocity, code, schedule caste and schedule tribe, special court, special public prosecutor, and also says that any amendments made in this act will be enforceable in the area where it is entitled to execution.

PUNISHMENT CLAUSE

Section 4 of the Act deals with punishments for offences of atrocities. If an offence is committed by an upper caste member upon a lower caste member, such person shall be liable for punishment under section 4 of the act. This section contains substantive penal clauses. Section 3 (1) (i) to (xv) and section 3 (2) (i) to (viii) describes various offences of heinousness and also provide different punishment and remedies.

USE OF FORCE AGAINST DALITS

Sections 3 (1) (i) to 3 (1) (iii) specifies the offences of atrocities by use of force. If a member of upper class use force against the member of a Scheduled Caste or a Scheduled Tribe like forcing him to drinking him or eat any inedible or filthy substance or does any acts with intent to cause injury, insult or annoyance to any member of a Scheduled Caste or a Scheduled Tribe by dumping excreta, waste matter, corpse or any other offensive substance in his premises or neighborhood or forcibly removes clothes from the person of a member of a Scheduled Caste or a Scheduled Tribe or parades him naked or with painted face or body or commits any similar act which is derogatory to human dignity, shall be liable for minimum mandatory punishment of six months which may be extend to five years and with fine.

It must be made specifically clear that in order to constitute an offence of atrocity under Section 3 of the Scheduled Castes and Schedule Tribe Act 1989 the offence must be committed by:

1. A person who is not a under the purview of schedule caste and schedule tribe
2. In respect of a member of a Scheduled Caste or a Scheduled Tribes; and
3. The offence must be committed in public view.

WRONGFUL POSSESSION

The Act provides that if any non-Scheduled Caste and non-Scheduled tribes wrongfully occupies or cultivates any land owned by, or allotted to, or notified by any competent authority to be allotted to a member of a Scheduled Caste or a Scheduled Tribe or gets the land allotted to him transferred, shall be liable for minimum mandatory punishment of six months which may extend to five years and shall liable for fine.

In Kashiben Chhaganbhai Koli v. State of Gujarat, 42 a member of Scheduled Caste was dispossessing from his land by upper caste member. The arraigned agreed to sell his land to complainant and handed over possession to him. The accused thereafter forcibly entered upon land and damaged crops. Eye-witness supported the claim cases of the complainant and the accused was convicted under section 3(1) (v) as well as for cheating and damaging crops.

BEGGAR OR BONDED LABOUR

If the aristocrats compels or persuades a member of a plebians or Dalits to do ‘begar’ or other similar forms of forced or bonded labour other than any compulsory service for public purposes imposed by Government shall be liable for minimum mandatory punishment of six years which may extend to five years and shall liable for fine. “Begar” means involuntary work without payment. The word begar constitutes of the elements:-

(a) it is to compel a person to work against his will.

(b) he is not paid any remuneration for work.

“Other similar forms of forced and bonded labour”, it means to compel a person to work against his will.

Besides this Act, the constitution of India[5] also provides a similar provision. The Constitution of India provides that traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable on accordance with law. Article 23 of the constitution is distinct from the section 3(1)(iv) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 because section 3(1)(iv) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act1989 applicable to Scheduled Castes and Scheduled Tribes only but Article 23 of the Indian constitution provides fundamental right to all the citizens of India.

FORCE TO VOTE

If non-scheduled castes and non-scheduled tribes forces or intimidates a member of a Scheduled Caste or a Scheduled Tribe not to vote or to vote to a particular candidate or to vote in a manner other than that provided by law, shall be liable for minimum mandatory punishment of six years which may extend to five years and shall liable for fine.

CAUSING HUMILIATION IN PUBLIC PLACE

If creams of the society or the upper class intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view, shall be liable for minimum mandatory punishment of six years which may extend to five years and shall be liable for fine.

In order to constitute the accusation of an offence of atrocity under Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, there must be an allegation that the accused has insulted intentionally or intimidated the complainant and such insult or intimidation was done with the intention to humiliate the complainant.

The most common way to commit cruelty against Scheduled Caste is to call them by their caste with the sole intention of injuring their sentiment and feeling. It is rightly observed by Hon’ble Court in Kaliya Peru Mal v. State of Madras  that the specific averments made in the complaint showed that the accused abused the complainant by her caste name, in filthy language, thereby causing insult and intimidation to her. The court held that all this amounted to an offence under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

In State of Kerala v. U.P. Hassan50, the accused called the complainant by term “Pulaya Nadi”. The word ‘Pulayadimon’ in Malayalam indicates meaning ‘adulterer’ or ‘son of a prostitute’. The court held that this term did not have any caste implication and since accused had no motive to insult the complaint by his caste name, no offence under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was committed by the accused.

The facts of Shayam Singh alias Dhannu and Another v. State of M.P.51 is almost similar to the facts narrated as above. The accused allegedly called the complainant by caste name (Chamar in this case). The court held that there was no offence because taking the name of caste of any citizen of this country itself is not the offence till it is not taken with the intention to humiliate that person because of his community.

ASSAULT WITH INTENT OF OUTRAGING MODESTY OF WOMEN

At any time the upper class, assaults or uses force to any woman belonging to a Scheduled Caste or a Scheduled Tribe with intent to dishonor or abuse her modesty, shall be liable for minimum mandatory punishment of six months which may extend to five years and shall liable for fine.

An Offence under Section 3(1)(xi) of Act is an aggravated form of offence under Section 354, IPC. Section 3(1)(xi) of the Act which deals with attack or use of force on any woman belonging to dalit class with intent to or dishonour or outrage her modesty is an annoyed form of the offence under Section 354, IPC. The only difference between Section 3(1)(xi) and Section 354 is essentially the caste or the tribe to which the victim belongs. If she belongs to Scheduled Caste or Scheduled Tribe, Section 3(1) (xi) is made applicable. The other difference is that in Section 3(1)(xi) dishonor of such victim is also made an offence.

In Karan Singh v. State of Haryana, complainant and her companion were molested as they were women. The court held that as such women were not molested because of the fact that they belonged to Scheduled Caste, hence, accused could not be prosecuted for atrocities on Scheduled Caste woman under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989.

Ashok Bapurao Thorat v. State of Maharashtra & Anr., In urgent case, allegation against the accused that he had sexual intercourse with complainant belonging to the scheduled caste. The contents of FIR showing that the complainant was consenting party and there was love affair between them. The court held that complainant was not subjected to consummation because she was scheduled caste woman. The accused is not liable for punishment under section 3(1)(xi).

In Mahendra kumar v State of Madhya Pradesh ,the prosecutxic Parmila Bai lodged a written report on 30-3-1992, in the police Station that on 28-3-1992, in night at about 9o’clock, the appellant Mahendra Kumar made an assault and tried to outrage her modesty near the house of Kotiwarin, while she was returning to her house with her aunt Agasiya Bai after watching moving on television. On the basis of the report of the protsecutrix, an FIR was registered for an offence punishable under section 3(i)(xi) of the act and section 354 of the IPC against the appellant by police station, Arjunda. The allegations against the appellant are that he caught the hand of the prosecutrix and told her also ‘ Chalo Waha Le Jayenge’, on which the prosecutrix called her aunt. Her aunt also hurled abuses on the appellant and he ran away. Thereafter, the prosecutrix came to her house and narrated the incident to her mother.

ANALYSIS OF THE ACT

OFFENCES AND PENALTIES

Section 3(1) identifies 15 different acts like forcible feeding of invidious substances, threatening to vote, contaminating of water ordinarily used etc. as punishable offence with a minimum sentence of 6 months imprisonment which may extend to five years and fine.

Section 3 (2) identifies serious offences like fabricating false evidence and causing execution of an innocent SC/ST etc., where the punishments are seven years or life imprisonment or death. The offences can be committed only by persons who neither are SCs nor STs. It was unsuccessfully contested that, Section 3 is violating the equality clause of the constitution as it makes a hostile discrimination against the caste Hindus. Section 3 was upheld interpreting it in the light of the Preamble[6], causing the disappearance of evidence or screening of offender of these offences shall be punishable with the punishment provided for that offence.

Any public servant who is not an SC or ST, willfully neglecting duties under this Act shall be punishable with a minimum sentence of six months extending to one year. If the public servant is an SC or an ST and he plots with the slayers by willful neglect, he/she cannot be punished. Removal of persons likely to commit offences for a maximum period of two years under this Act may be done by experiment orders of special court. Section7 provides for forfeiture of property used by the captive in favor of the state. The property can be attached during the trial and later on conviction surrendered.

Provisions of anticipatory bail under S.438 of Criminal Procedure Code 1973 shall not relate to any case involving the arrest of any person under this Act as laid down in Section18. The constitutional validity of this section was challenged vis a vis Article 21. It was held that S.18 was a procedure established by law and therefore not violative of Article 21. Mumbai High Court has granted anticipatory bail on the ground that there was no prima facie case under the Act made out in the complaint. Section 360 of the Code and Probation of Offenders Act 1958 shall not apply to cases where the guilty person under this Act is above eighteen years old.47PAA shall override other laws & customs & usages.Customs etc. justifying or enabling practices declared offences cannot be pleaded as defenses.

IMPLEMENTATION

Prevention of Atrocities Act ensures proper implementation by requiring the State Government to notify a court of Session to be a special court and to appoint a special public prosecutor for every special court. State Govt. has powers to impose & realize collective fines from residents of any locality for committing offences under this Act.  Preventive action and effective implementation of PAA are duties on the State Govt.  Section 23 of PAA empowers the Central Govt. to make rules for carrying out the purposes of the Act. Central rules under this Act were notified in 1995-Scheduled Castes & the Scheduled Tribes( Prevention of Atrocities) Rules, 1995

Preventive and precautionary measures are to be taken by the State government is listed out in Rule 3. Under this rule the government is under a duty to identify the area where it has reason to believe that atrocity may take place or there is an apprehension of reoccurrence of an offence under the Act; set up awareness centers and organize workshops; encourage NGOs; deploy special police force in the identified area etc.  Rule 4 requires the government to effectively supervise the prosecution by preparing a district wise panel of eminent senior advocates (at least seven years practice) for conducting the cases under this Act in the special courts and pay them fees on a scale higher than the other panel advocates of the state. Rule 5 is about information to police on commission of offence under this Act. Rule 6 requires the district Magistrate etc. to conduct spot inspection on any information of atrocity within his jurisdiction. Investigating officers shall be appointed after taking into account his past experience, sense of ability etc. provides Rule 7. Rule 8 requests the state to set up a SCs & STs Protection Cell to be responsible for reviewing the identified area & maintaining tranquility there, enquiring as to refusal to lodge complaint, negligence by public servant, etc. Under Rule 9, State shall nominate a Nodal Officer who shall coordinate the functioning of the officers appointed to implement this Act. Rule16 requires constitution of state-level vigilance & monitoring committee with chief minister as head & Rule17   requires such a committee at the district level.

REHABILITATION

Section 21(2) seeks to ensure social & economic rehabilitation of the victims of the atrocities. It lays down measures to provide legal aid to victims & traveling & maintenance expenses to witnesses & victims during investigation & trial Rule11 lays down that every victim of atrocity  or of him/her dependents & witnesses shall be paid to & fro rail fare by second class in express/mail passenger train or actual bus or train fare from his/her place of residence to place of investigation The minor, women, old, disabled victims/witnesses shall be entitled to be accompanied by an attendant of his/her choice. There is provision to pay daily maintenance allowances not less than minimum wages and diet expenses. These allowances are to be paid immediately or within three days. In case of offences under Section 3, the victim shall be reimbursed the medical expenses including blood transfusion, meals etc.

R.12 calls upon the District Magistrate to make arrangements for providing immediate relief in cash or in kind or both to the victims of atrocity, their family members & dependents, including food, water, clothing, shelter, medical and transport facilities & other essential items necessary for human beings. The norms & scale of relief is provided in the schedule to the Rules. The relief provided in respect of death, or injury to, or damage to property shall be in addition to any other right to claim compensation in respect thereof under any other law for the time being in force. Rule 13 feels necessity for the state government to take care in appointing persons with proper inclination and understanding of the problems of SCs and STs and further ensure that SCs and STs are adequately represented in the administration and police force.  Rule 14 lays down a specific duty of the state to make necessary provisions in its annual budget for providing relief and rehabilitation facilities to the victims of atrocities.

AMENDMENT IN SC AND THE ST (PREVENTION OF ATROCITIES) ACT, 1989

The Prevention of Atrocities (POA) Act, 1989 was altered to include new offences and to guarantee speedy justice to sufferer. The amendments to the act were originally issued as an authorization by the previous UPA government in March 2014. The NDA government has now got the changes passed in both the houses of parliament. After the amendments, certain changes became necessary to the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995. The previous rules are now modified and were notified on 14^th April, 2016.

MAJOR AMENDMENTS IN THE ACT

Atrocity against the SCs and STs have been on the rise. A total of 39408 crimes against SCs were reported in the year 2013 while the number of crimes against SCs has gone up to 47064 in 2014. There has been an appeal to amend the existing act and to include more offences and to ensure relief & speedy justice to the victims.

The following major changes have been made now via the amendment.

• Rationalization of the phasing of relief amount payment to victims for various offences of atrocities. The rules also specify relief amount for various offences of atrocities.
• Not linking remittance of any part of relief amount with the requirement of medical examination for non-invasive kind of offences against women like sexual harassment, gestures or acts intended to insult the modesty, to disrobe, voyeurism, stalking etc.
• Provision of relief for offences of rape and gang rape.
• Rise in the existing sum of relief amount depending upon the nature of the offence, while linking it with the Consumer Price Index for Industrial Workers

NEW OFFENCES OF ATROCITY

 The following new offences have been added to the list of atrocities

• Tonsuring of head, mustache, or similar acts which are derogatory to the dignity of members of SCs & STs
• Garlanding with Chappals
• Denying access to irrigation facilities or forest rights
• Dispose or carry human or animal carcasses, or to dig graves, using or permitting manual scavenging
• Dedicating an SC/ST woman as Devadasi
• Abusing in caste name, perpetrating witchcraft atrocities
• Imposing social or economic boycott
• Preventing SC/ST candidates from filing of nomination to contest elections
• Hurting an SC/ST woman by removing her garments
• Forcing a member of SC/ST to leave house , village or residence
• Defiling objects sacred to members SCs/STs
• Touching or using words, acts or gestures of a sexual nature against members of SCs/STs

EXCLUSIVE SPECIAL COURT FOR SPEEDY JUSTICE

The amendments to the act also authorize establishment of exclusive Special Courts and appointment of Exclusive Special Public Prosecutors to try the offences under this act. This is made to enable speedy justice and immediate disposal of cases.

The Special Courts have been mandated to take direct cognizance of offence and as far as possible, completion of trial of the case within two months, from the date of filing of the charge sheet.

The State Governments have been asked to prepare a panel of senior advocates who have been in practice for not less than seven years for each District, for conducting the cases filed under this act. The State Governments have also been asked to review the performance of these advocates at least twice in a calendar year. They are also asked to review various reports received, investigation made and preventive steps taken by the District Magistrate, Sub-Divisional Magistrate and Superintendent of Police, relief and rehabilitation facilities provided to the victims etc.

ENHANCEMENT IN RELIEF AMOUNT

The standard for relief amount has also been justified including enhancement of the relief amount for certain offences.  Relief amount in case of certain offences are

• Rs 85,000 to the victim in case of offences like avoiding from voting, filing nomination, Forcing, obstructing a holder of office of Panchayat or Municipality from performing duties etc.
• Rs 5,00,000 to the victim in case of rape and Rs 8,25,000 in case of gang rape
• Rs 8,25,000 in case of murder
• Rs 1,00,000 in case of deception or threatening a social or economic boycott
• Rs 1,00,000 in case of preventing a SC/ST entering any place of worship which is open to the public etc

A new chapter on the ‘Rights of Victims and Witnesses’ has also been added to the act. The term ‘willful negligence’ of public servants at all levels, starting from the registration of complaint, and covering aspects of dereliction of duty under this Act has been clearly defined.

Presumption to the offences has been added to the act, i.e., If the accused was acquainted with the victim or his family, the court will presume that the accused was aware of the caste or tribal identity of the victim unless proved otherwise.

GAP BETWEEN VARIOUS LEGISLATION AND PRACTISE

In the end the question is that why do higher caste persons continue to practice untouchability, and discrimination? What are the major reasons for the non- implementation of Constitutional legislations enacted to protect the interests of Dalits? Why do Non dalits resort to physical and other violence whenever the dalits try to gain a lawful access to Human Rights and equal participation in social, political, religious, cultural and economic sphere of community life? The reasons for the widespread practice of untouchability, atrocities, other violent reaction by the higher caste as well as non-implementation of the various provisions of the constitution as well as legislations are to be found in continuing belief and faith of the high caste Hindus in the sanctity of institution of caste system and untouchability. On the one hand Dalits are being still excluded from the day to day communitarian interactional relationship based on the caste hierarchy and on the other hand some sectarian interests are forcing them, directly or indirectly to remain within the fold of the Hindu Society to present this society as a “homogenised Hindu Whole” and thereby ensuring their majority status.

Secondly, as argued by Ambedkar, most of the Dalits—being illiterate, ignorant and god-fearing—themselves believe in caste system and practice caste discrimination among themselves, probably not to the extent the upper caste do. They, therefore, remain divided and are unable to take a collective action against caste oppression.

Third, although the SCs/Dalits alone account for over 16% of total Indian population, they constitute too small a number in each village to muster enough courage for taking the support of law and going to the police and the judiciary to punish the caste Hindus violating their rights

Fourth, most of the Dalits are landless and depend on the very castes that violate their rights and dignity to earn their living. So, though there are laws to their support, they would not dare using them to protect their source of living.

Fifth, seeking justice through the special laws is not an easy task, since it demands adherence to number of procedures on the part of the victims, accused, police, the special public prosecutor and others concerned at every stage of the case, which is often turn out to be very costly, tiresome and time-consuming, particularly for the victims. Invariably, it is during this time the accused indulges in number of mischievous activities including bribing the police, tampering the evidences, pursuing the victims for an out of court settlement of the case and threatening the victims and their witnesses etc. And if they have to pursue the case despite all these, it would be at cost of their means of sustenance, dignity, peaceful living, and sometimes their life itself

Sixth, overwhelming caste loyalties and sentiments often influence the decisions of the police and judiciary. The explanation of Ambedkar regarding why most cases of caste discrimination and violence end in acquittal is true even in the present context. When the law enforcement agency, the police and the judiciary, does not seem to be free from caste prejudice—since they are very much part of the same caste-ridden society— expecting law to ensure justice to victims of caste crimes is rather an impractical solution to this perennial social problem.

CASES UNDER THIS THIS ACT IN RECENT YEARS

May 14, 2016: A caste Hindu hacked to death a Dalit woman after her brother married and eloped with his daughter, in Tirunelveli.
May 2, 2016: A 30-year-old Dalit woman was allegedly raped and brutally murdered in Thiruvananthapuram.
March 13, 2016: A 22-yr-old Dalit boy was killed in Tirupur (TN) allegedly for marrying a woman from the politically and socially dominant Thevar community, Kausalya.
November 2015: Around 100 children left a school in Kolar in Karnataka, refusing to eat the food dished out by a Dalit cook.
October 21, 2015: Dalit house in Haryana Ballabhgarh set afire, 2 kids burnt to death.
October 5, 2015: A 90-year-old Dalit man died after he was brutally attacked with an axe and set on fire for trying to enter a temple at Hamirpur in UP.

October 4, 2015: A Dalit student was thrashed by his teacher in Jodhpur for touching the mid-day meal plates.
March 2015: 17-year-old Dalit girl in Rajasthan’s Bikaner district was raped and murdered by her PT teacher in college.

CONCLUSION

The prevention of atrocities act 1989 emerged as a boon for the so called untouchables. It gave them respect and a status in the society The present time is an historic moment, not only for Dalits, but for all those committed to protect basic human rights and principles of justice, equality, liberty, fraternity.  India, a rising star and increasingly important player on the world stage, must not be allowed to ignore the injustice and oppression within its own borders any longer.  Together, we must unite, nationally and internationally, to force the Indian government to rise above an entrenched caste-mentality and to properly enforce its laws, implement its policies, and fulfill its responsibility to protect the basic human rights of all of its citizens. Among the Dalit community and its supporters & sympathizers, Dr.Ambedkar’s statement resounds louder today than ever.

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

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

References.

[1]. Erich Seligmann Fromm, German pshycologist.

[2]. Parliamentary Committee on the Welfare of SCs and STs, 4^th report 2004  to 2005, New Delhi, 2005,para1.1

[3]. Clarification by Home Ministry of Home Affairs, noted in NHRC, Report on Prevention of Atrocities against SCs, New Delhi,2002, p.28

[4]. National Commission for SCs, First Report 2004-05, New Delhi, 2006, pp.222-3

[5]. Article 23(1), The Constitution of India.

[6]. Jai Singh v Union of India, AIR 1993 Raj 177

In this article, Kirti Kothari from Institute of Law, Nirma University, discusses few important provisions under the Goa Civil Code.

Personal laws in India

India has been belaboring about its recent and extraordinary developments in the field of Science, Technology, Medicine, Astronomy and the list continues. At the same time, we have failed to acknowledge the fact that a major section of our Indian society is deprived of its basic rights and are being discriminated in various spheres of life.

In India, there exists discrimination within the laws itself. One such sphere where women are highly discriminated and have suffered since decades is the existence of PERSONAL LAWS for different religions in our country. As India is a land having many religions each having its own beliefs and faith they are guided by their own set of rules in matters related to family affairs that are marriage, divorce, adoption, succession etc.

Discrimination within the personal laws

One major flaw which exists in almost all personal laws is that they tend to be biased towards men and give women a subordinate position in the society. There are certain provisions in these personal laws which tend to discriminate women in matters related to marriage, succession, inheritance. An example is, a Hindu woman has no right to adopt a child on her own without the permission of her spouse and such similar disturbing provisions are there in personal laws of every religion.

The idea of Uniform Civil Code

• To solve all such problems there has been a plethora of debate on the implementation of the UNIFORM CIVIL CODE in the country which means that all the personal laws in the country will be replaced by a single set of laws common for all the religions in the matters of marriage, divorce, adoption, and inheritance.
• The principle of the uniform civil code is laid down in the article 44 of the constitution under the directive principles of the state policy. The framers of the Indian constitution have been in the support of the implementation of the uniform civil code as well as the honorable Supreme court of India has also stated the dire need for the implementation of the uniform civil code in several landmark judgments.
• However religious personnel have been continuously rejecting the implementation of the uniform civil code taking the defense of the Article 25 of the constitution of India.
• According to the views negating the proposition of implementation of the UCC, the matters of marriage, divorce, adoption and succession reflects the religious beliefs and sentiments.
• However the above-stated view have failed to accomplish the fact that it has clearly being stated sub-clause 2 of Article 25 that all the SECULAR activities are outside the purview of the protection under the article and it has been clearly stated by the honorable supreme court that the matters related to marriage, succession etc are clearly secular activities related to religion.

On one hand where women in the whole country is suffering due to the flaws which occur in the personal laws, the courts are flooded with cases related to cruelty and discrimination towards women.

GOA, the smallest Indian state has a common code for all the citizens residing in the state irrespective of their religion commonly known as the GOA CIVIL CODE.

• When Goa became a part of India in the year 1961 by the Goa Daman and Diu administration act 1962 the parliament authorized the Portugal civil code of 1867 in Goa which shall be amended as per the necessary requirements and shall be repealed by competent legislature. There have been several amendments in the Goa civil code after its implementation.
• In 1981 the government of India appointed a personal law committee to determine if personal laws could be implemented in the state but it failed to do so. The most recent development in the Goa civil code has been the passing of the Goa succession act in the year 2012 by the parliament.
• The Goa civil code provides a model for rest of the country of how equal rights can be provided to both men and women without hurting the sentiments of any religion or any particular section of the society.
• It also put forward an example before various communities to stop discriminating women in the name of religion. Some very unique features of Goa civil code are as follows.

• A unique feature of the Goa civil code is that it is in consonance with the article 44 of the constitution that is the directive principles for the state policy which is in fact a major achievement for the state.
• There are certain provisions in which the Goa civil code is far better than the existing personal law but in this article we will only deal with the provisions related to marriage and point out that how the Goa civil code is better and how it ensures gender equality which is one of the major concerns for the country.

Provisions of marriage under Goa civil code

• Under the Goa civil code marriage is  a contract between two persons of different sex that is man and woman with the purpose of living together and constitute a legitimate family together
• Any form of polygamy or bigamy is strictly prohibited under the Goa civil code except for certain special cases. Monogamy is the prescribed form of marriage.
• Men cannot marry before they attain the age of 21 and the same is 18 in the case of women.
• Consent is required from both men and women before and at the time of marriage.
• All the marriages should be lawfully registered under the court of law and any marriage if not registered shall be considered as null and void before the court of law.
• Under the Goa civil code there are four methods of marriage. Three of them are the conventional methods of marriage and the fourth one is the communion of assets
• Under the law of communion of assets as soon as the person gets married his spouse automatically gets half of the assets thus each having undivided rights over others assets.
• There should be consent of both husband and wife in the case they file a divorce case in the court of law and proper grounds must be presented before the court for the divorce
• There are certain restrictions due to which a certain category of persons are not allowed to marry under certain circumstances.

Reasons for supporting marriage under the Goa civil code over personal laws

• As marriage is a contract between men and women which is recorded under the court of law there are hardly any chances of men denying the marriage and abandoning the women which are seen on several instances in cases of marriage under the personal laws. It provides security to women.
• One of the most striking features of the Goa civil code s that the property is divided equally among both men and women and women is the legal heir of the property which provides a sense of financial security to women.
• As Goa permits only monogamy, problems such as triple talaq and polygamy which is a major problem of other personal laws are solved automatically.
• As even after the divorce the property is divided equally among both men and women the women are often saved from the harsh and difficult life as it has been seen in divorce under several personal laws

In a whole to sum up it has been seen and observed that the provisions under the Goa civil code are far more better than the other personal laws and women has a greater sense of security and are often at equal par with the men. However like every other system of laws the Goa civil code is also not without any loopholes. There are lacunae in the code and there is a scope of improvement as well.

Lacunae in the Goa civil code

• One of the major problems in implementing the Goa civil code is that as it is derived from the Portuguese Law it is difficult to understand and convert the same into the English language. Very few efforts have been taken to solve this issue which creates an inconvenience for the lawyers and the whole judiciary to interpret the law.
• It is often claimed that the Goa civil code is in itself uniform in nature, however, this does not hold to be true. There are certain provisions in the code itself which promotes bigamy for Hindus in certain special cases as well as there are certain provisions which tend to discriminate women.
• Even after the implementation after the uniform civil code there have been certain cases in the court of law in which the women are discriminated in the name of religion and personal laws.

Conclusion

Uniform civil code is the need of the hour. It has been suggested by the judiciary as well as the legislature on several instances for the implementation of the uniform civil code. As far as the Goa civil code is considered we can definitely take it as a model to implement it in the rest of the country. There is no system in which there are no loopholes but that does not mean that we reject the system as a whole. There is always a scope for betterment and improvement and the same applies to the Goa civil code as well.

References:

• http://www.goaholidayhomes.com/information/uniform-civil-code-in-goa.html
• http://www.telegraphindia.com/1151104/jsp/opinion/story_51223.jsp#.V4KEprh97IU
• http://www.livelaw.in/uniform-civil-code-unique-goa-experience/
• https://thelogicalindian.com/story-feed/exclusive/everything-you-need-to-know-about-uniform-civil-code/
• Aditi Pratap Sampat,Uniqueness Of The Goan Family Laws, Ipleader
• Gauri Kulkarni, Uniform Civil Code, Legalserviceindia.comhttp://mmascgoa.tripod.com/id12.html

Suggested Readings.

Civil Code Of Goa Vs Personal Laws In India

The Need For Uniform Civil Code In India

In this article, Shital Dharak Mandhana who is currently pursuing M.A. IN BUSINESS LAWS, from NUJS, Kolkata, discusses laws related to Migrant Labourers in India.

Laws related to Migrant Labourers in India

A large number of studies have found that migration earnings are used mainly for ‘consumption; i.e. food, clothing, house repairs, social events and religious pilgrimages. But this underplays their importance in improving family nutrition and reducing the need to borrow for essentials. Furthermore, new evidence shows that migration earnings are being invested in agriculture, small enterprise, education, health and housing all of which contribute to improving household well-being. On the negative side, male migration from nuclear families can lead to loneliness and increased work burdens for women.

Poor migrants are often employed in risky jobs- industrial accidents, exposure to hazardous chemicals, long working hours and unhygienic conditions are the norm. Especially hazards are dying, other chemical industries, stone crushing, brick making, steel utensil production and loading. Migrants are susceptible to infectious diseases because of the very poor, crowded and unhygienic living conditions (migrants are identified as high-risk group by the National Aids Control Organisation). They often face exclusionary processes that prevent them from acquiring new skills and moving up the job ladder.

Hence, there is a need for laws relating to migrant laborers. Let us take a look a look at, “Laws related to migrant labourers in India

The law related to migrant labourers in India is “Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979” which was passed by both the houses of Parliament and President of India gave his assent on 11/06/1979.

This Act makes provision for availing with the onsite services of interstate workers by the contractors/establishments to overcome only the temporary shortage of required skilled workers in a state. The purpose of this act is not to encourage interstate migration of workers against the interests of local workers as the principal employers would have to incur more cost in deploying interstate workers. (Wikipedia)

Meaning of inter-state migrant labourers under the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979

According to section 2(1) (e) of Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979, “inter-State migrant workman” means any person who is recruited by or through a contractor in one State under an agreement or other arrangement for employment in an establishment in another State, whether with or without the knowledge of the principal employer in relation to such establishment. (Act)

Historical Overview: (Laws related to Migrant labourers)

The story of inclusion of Inter- State Migrant Legislation in the statutory book is a tale of dispensing social justice to the migrant workmen. There are two crucial factors responsible for influencing the problem of migrant labours.

1. Firstly, at the international level, when the demand outstripped the ability of Arab State to supply labour because of massive investment program by the oil producing Arab countries and resulting increase in demand for workers from Asia, namely, Pakistan, India, Sri Lanka, Bangladesh, Thailand, Philippine, Korea and Indonesia.
2. Secondly, South Asian workers accepted job and wages that Arab workers refused to take. However, these factors of migrant labour are not directly or intimately concerned with the problem under investigation, because such problems have altogether a different perception at the international arena for which sufficient studies have been conducted by International Labour Organization.
3. Thirdly, the inter-state migrant workers accept jobs and wages in other states other than their home states because of extreme poverty and income inequality.

The National commission opined that the necessity of abolition of contract labour has long been felt because of the benefits of the labour legislation not reaching to such class of workers owing to the enlargement of the definition of workers in the Factories Act, 1948, The Mines Act, 1952, The Plantation Labour Act, 1951, The Employees’ State Insurance Act, 1948. Obviously, since the submission of the Commission report, the policy- makers have been taking various steps to give piece- meal relief to contract labour. The judiciary also discouraged the practice of employment of contract labour since such workers were not getting wages according to law and lack of conducive working conditions.

Applicability of this Act

This act applies to,

• every establishment in which five or more Inter-State migrant workmen (whether or not in addition to other workmen) are employed or who were employed on any day of the preceding twelve months

• every contractor who employs or who employed five or more Inter-State migrant workmen (whether or not in addition to other workmen) on any day of the preceding twelve months. [section 1(4)]

Duties of Contractors employing inter-state migrant workers

It shall be the duty of every contractor employing inter-state migrant workers:

To furnish such particulars in the prescribed form to the prescribed authority in State from which the inter-state migrant worker is recruited, within 15 days from the date of employment, and where any change occurs in any particulars so furnished, such change shall be notified to the specified authorities of both the State.

To issue to every such worker, a passbook affixed with a passport size photograph of the worker and indicating in Hindi and English and also in the vernacular language of the worker:

• The name and place of the establishment wherein the workman is employed;
• The period of employment; the proposed rates and modes of payment of wages;
• The proposed rates and modes of payment of wages;
• The displacement allowance payable;
• The return fare payable to the workman on the expiry of the period of his employment and in such contingencies as may be prescribed and in such other contingencies as may be specified in the contract of employment;
• Deductions made; and
• Such other particulars as may be prescribed;
• To furnish to the State from which the inter-state migrant worker is recruited and also in which he ceases to be employed, a return in prescribed form, a declaration that all the wages and other dues payable to the worker and the fare for the return journey back to his State have been paid.

The Contractor shall maintain the pass-book up-to-date and cause it to be retained with the inter-state migrant worker concerned.

Wages and other conditions of service of inter-state migrant workers: (section 13, 14, 15, 16)

The wage rates, holiday, hours of work and other conditions of service shall be:

• In case the inter-state migrant worker works in an establishment, with same or similar kind of work being performed, be same as those applicable to such other workmen.
• In any other case, as prescribed by appropriate Government.

Provisions under the stated sections

• The wages payable to the inter-state migrant worker shall be paid in cash.
• The contractor shall, at the time of recruitment of inter-state migrant worker, pay displacement allowance equal to 50% of monthly wages or Rs. 75, whichever is higher and this amount shall not be refundable and shall be in addition to the wages and other amounts payable to the inter-state migrant worker.
• The inter-state migrant worker shall be paid an amount not less than the fare from his place of residence in his State to the place of work in other State by the contractor as Journey allowance for both outward and return journeys and shall also be entitled to the payment of wages during the period of such journeys as if he were on duty.

It shall be the duty of every contractor employing inter-state migrant worker,

• To ensure regular payment of wages to such worker
• To ensure equal pay for equal work irrespective of sex;
• To ensure suitable conditions of work to such workers having regard to the fact that they are required to work in a State different from their own State;
• To provide and maintain suitable residential accommodation to such workers during the period of their employment;
• To provide the prescribed medical facilities to the workers, free of charge;
• To provide such protective clothing to the workers as may be prescribed; and
• In the case of fatal accident or serious bodily injury to any such worker to report to the specified authorities of both the States and also the next-of-kin of the worker.
• Despite the contribution made by migrants to the National Economy, most remain on the margins of society, contributing cheap labour but unable to influence their pay or working and living conditions, and without political voice, especially where they migrate to other states.
• Migrants are preferred over local labour by employers because they are cheaper and work harder. As migrants become one of the most important sources of labour across the country, services and support for migrant workers need to be seen as an essential investment for India’s development trajectory.

What if a migrant worker has taken a loan from the contractor or the principal employer? (Section 19)

The loan taken by the inter-state migrant worker shall remain outstanding only till the time he remains in employment of the contractor or the principal employer. On the completion of such term, it shall be deemed to have been extinguished and not suit or other proceedings shall lie in any Court or before, any authority for the recovery of such debt or any part thereof.

Condition of Migrant laborers in Kerala: (Case Study: Kerala)

Inter-state migrant workers migrate to Kerala from West Bengal, Bihar, Assam, Orissa and north-eastern states of India. The major reasons to migrate were less daily wages, poverty, indebtedness, and joblessness at origin state. These migrant workers have their basic occupation as agriculture but they are employed in the construction sector in destination place, making them unskilled and unprofessional on site. They receive higher compared to their native state but quite less when compared to the daily workers in Kerala. This helps the employers of Kerala in making huge profit. The migrant labourers also send money to their natives leaving very less in their own hands making them difficult to survive.

Unorganized Workers Social Security Act, 2008

According to section 2(n) of the “Unorganised Workers Social Security Act, 2008, “Wage worker” means a person employed for remuneration in the unorganised sector, directly by an employer or through any contractor, irrespective of place of work, whether exclusively for one employer or for one or more employers, whether in cash or in kind, whether as a home based worker, or as a temporary or casual worker, or as a migrant worker, or workers employed by households including domestic workers, with a monthly wage of an amount as may be notified by the Central Government or State Government, as the case may be.

Now let us see the meaning of the term “Unorganized Workers”.

According to section 2(m) of Unorganized Workers Social Security Act, 2008”, “unorganized worker” means a home-based worker, self-employed worker or a wage worker in the unorganized sector and includes a worker in the organized sector who is not covered by any of the Acts mentioned in Schedule II to this Act.

Since definition of unorganized workers includes wage workers and wage workers include migrant workers, hence this act also applies to the migrant workers.

Section 3 of this enactment talks about the social security benefits for the unorganized workers. The scheme framed is as under:

1. The Central Government shall formulate and notify, from time to time, suitable welfare schemes for unorganized workers on matters relating to-
2. Life and disability cover
3. Health and maternity benefits
4. Old age protection and
5. Any other benefit as may be determined by the Central Government
6. The schemes included in the Schedule 1 to this Act shall be deemed to be the welfare schemes under sub-section (1).
7. The Central Government may, by notification, amend the Schedules annexed to this Act.

8. The State Government may formulate and notify, from time to time, suitable welfare schemes for unorganized workers, including schemes relating to-

   1. Provident fund
   2. Employment injury benefit
   3. Housing
   4. Educational schemes for children
   5. Skill upgradation of workers
   6. Funeral assistance
   7. Old age homes.

The schemes which are included in Schedule 1 of the act for the purpose of the benefit of unorganized workers are,

Indira Gandhi National Old Age Pension Scheme (IGNOAPS): (scheme)

Eligibility: All individuals above the age of 60 who live below the poverty line are eligible to apply for IGNOAPS

Pension amount: The beneficiaries aged 60-79 years receive a monthly pension of Rs. 300 (Rs. 200 by central government and Rs. 100 by state government). Those 80 years and above receive a monthly pension amount of Rs.500.

Computerisation of database: A system should be devised so as to credit the amount of pension payable to each beneficiary directly into his account either in a Post Office or in a scheduled commercial bank. In compliance of the said directions and also in order to increase the transparency and accountability in the implementation, it had been decided to computerize the database of the beneficiaries under various schemes of NSAP (National Social Assistance Scheme).

Janani Suraksha Yojana (JSY): (scheme)

Applicability: JSY is an Indian Government scheme proposed by the Government of India. It was launched on 12^th April, 2005 by the then Prime Minister of India.

Feature of the Scheme: JSY aims to decrease the neonatal and maternal deaths happening in the country by promoting institutional delivery of babies. This is a safe motherhood intervention under the National Rural Health Mission (NRHM). It is a 100% centrally sponsored scheme it integrates cash assistance with delivery and post-delivery care. The success of the scheme would be determined by the increase in institutional delivery among the poor families.

Janashree Bima Yojana (JBY): (scheme)

Applicability: JBY was launched on 10^th August 2000. This scheme has replaced Social Security Group Insurance Scheme (SSGIS) and Rural Group Life Insurance Scheme (RGLIS).

Eligibility: Persons between aged 18 years and 59 years and who are the members of the identified 45 occupational groups are eligible to be covered under the Scheme.

Benefits of the Scheme: JBY provides life insurance protection to people who are below the poverty line or marginally above the poverty line. The monetary benefits to be received are:

Benefits:

 The premium for the scheme is Rs. 200/- per member, 50 % premium under the scheme is met out of Social Security Fund set up in the year 1988-89 which is maintained by LIC. The balance 50% premium is borne by the member and/ or Nodal Agency.

Aam Admi Bima Yojana (AABY): (scheme)

Applicability: AAM ADMI BIMA YOJANA, a Social Security Scheme for rural landless household was launched on 2nd October, 2007 at the hands of the then Hon’ble Finance Minister at Shimla.

Eligibility: The head of the family or one earning member in the family of such a household is covered under the scheme. The premium of Rs.200/- per person per annum is shared equally by the Central Government and the State Government. The member to be covered should be aged between 18 and 59 years.

Benefits under the Scheme:

A separate fund called “Aam Admi Bima Yojana Premium Fund” has been set up by Central Govt. to pay the Govt. contribution. Fund is maintained by LIC. A free add-on benefit in the form of scholarship to children is also available under the Scheme.

Rashtriya Swasthya Bima Yojana (RSBY): (Scheme)

Applicability: RSBY has been launched by Ministry of Labour and Employment, Government of India to provide health insurance coverage for Below Poverty Line (BPL) families.

Eligibility: Unorganized sector workers belonging to BPL category and their family members (a family unit of five) shall be the beneficiaries under the scheme.

Benefits under the Scheme: The State Governments are advised to incorporate the following minimum benefits in the package/scheme:

• The unorganised sector worker and his family (unit of five) will be covered.
• Total sum insured would be Rs. 30,000/- per family per annum on a family floater basis.
• Hospitalization expenses, taking care of most common illnesses with as few exclusions as possible
• All pre-existing diseases to be covered
• Transportation costs (actual with maximum limit of Rs. 100 per visit) within an overall limit of Rs. 1000.

National Scheme for Welfare of Fishermen and Training and Extension: (scheme)

Applicability: The National Scheme on Welfare of Fishermen has ensured that there are a lot of welfare activities being carried out for the service of the fishermen community. This particular scheme was started in 1991-92 by combining two different schemes of Janta Accident Policy and National Welfare Fund for Fishermen.

Eligibility: Assistance under the scheme is provided to all fishermen and fishing villages.

Objective of the Scheme:

1. To provide basic amenities like housing, drinking water, community hall etc. for fishers.
2. To facilitate better living standards for fishers and their families
3. To uplift social and economic securities for active fishers and their dependents and
4. To update knowledge and improving skills of fishers in regard to modern fishing technology.

Handloom Weavers’ Comprehensive Welfare Scheme:

Two schemes are covered under HWCWS.

1) Mahatma Gandhi Bunkar Bima Yojana (MGBBY) and

2) Health Insurance Scheme (HIS)

MGBBY: (Scheme)

Applicability: The Government of India introduced Bunkar Bima Yojana and this scheme shall be administered by LIC.

Eligibility: All weavers, whether male or female, between the age group of 18 and 59 years are eligible to be covered under the scheme, including minorities, women weavers and weavers belonging to NER. The basic objective of the “Mahatma Gandhi Bunkar Bima Yojana‟ is to provide enhanced insurance cover to the handloom weavers in the case of natural as well as accidental death and in cases of total or partial disability

Benefits:

 Premium:

The annual premium of Rs. 470/- per member will be shared as under:

 HIS: (Scheme)

Applicability: The Government of India introduced the Health Insurance Scheme for Handloom Weavers in 2005-06. The weaver should be earning at least 50% of his income from handloom weaving.

Eligibility: The scheme is to cover not only the weaver but his wife and two children, to cover all pre-existing diseases as well as new diseases. The weaver should be earning at least 50% of his income from handloom weaving. The scheme will cover the weaver’s family of four i.e. self, spouse and two children. The scheme is to cover people between age group of 1 day to 80 years.

Benefits:

Exclusions: Corrective cosmetic surgery or treatment, HIV, AIDS, Sterility, Venereal diseases, Intentional self-injury, use of intoxicating drug or alcohol, war, riot, strike, terrorism acts & nuclear risks.

Conclusion (Laws relating to Migrant Labourers in India)

The socio-legal study of Inter -State Migrant Workmen Legislation reveals that though the industrialization has contributed towards the progressive movement of the society, yet it has its inbuilt problems. This law has been enacted as a war against poverty ridden migrant workmen when they leave their home-state and go to the migrant state in search of some job which may bring lucrative wages. Besides wages, the law also provides certain safeguards to the migrant workmen, namely, security of job, non-exploitation at the hand of the employers/contractors, conducive working conditions, etc, at the hands of the employers/contractors, conducive working conditions.

This was all on laws related to migrant labourers in India. What are your views on laws related to migrant labourers in India? Comment below and let us know.

In this article, Charmi Chhadva who is currently pursuing M.A. IN BUSINESS LAWS, from NUJS, Kolkata, discusses Salient features of the Real Estate (Regulation and development) Bill, 2016

Real estate is one of the evolving sectors in India. It is one important instrument of investment. The prices of real estate has been on a rise since past ten years and it has been necessary for the Parliament to look into this matter to stop the current practice of selling on the basis of ambiguous super built-up area for a real estate project. Such practices of selling real estate projects are illegal in nature. As per the current scenario, if a project is delayed, then the developer does not suffer in any way. And after the inclusion of the newly amended bill, the law ensures that any delay in project completion will make the developer liable to pay the same interest as the EMI being paid by the consumer to the bank back to the consumer. Any default by the developer shall imply maximum jail term for three years with or without a fine.

Real Estate (Regulation and Development) Bill, 2016

The Real Estate (Regulation and Development) Bill, 2016 is an act of the Parliament of India to protect home-buyers as well as commercial real estate investors. The law vests authority on the real estate regulator to govern such transactions.  The bill was passed by the Rajya Sabha on 10 March 2016 and by the Lok Sabha on 15 March 2016 and it has received the presidential assent on 25 March 2016. The Act is seen as a significant move towards ensuring consumer protection and normalising business practices and transactions in the real estate sector. This Bill has been passed to protect the consumers and investors who invest huge amounts in the real estate sector and to bring about better protection and transparency with safety of such investors. The law bars developers from advertising as well as bars them to sell homes until they obtain all approvals from local authorities.

Also they will have to be registered with regulators that will be set up in every state alongside appellate tribunals for dispute resolution. The law holds the promoters accountable for not registering their projects with the Real Estate Regulatory Authority (Regulatory Authority) and even for providing insufficient information about their project. The real estate broker are also accountable under the law.

All the ongoing projects which are over 17,000 currently will have to register with the authority. The buyer can contact the developer in writing within one year of taking possession to demand after sales service if any deficiency in the project is noticed.

Urban Development Minister Venkaiah Naidu said in the Rajya Sabha that “The consumer should be king here too”.

Some of the important amendments in the Bill are as under,

Real Estate Regulatory Authority

The purchasers under the real estate projects from a developer would have a specialised forum called the “Real Estate Regulatory Authority” which will be active within one year from the date of coming into force of the Act. Until the Regulatory Authority is functional, the appropriate Government (i.e., the Central or State Government) shall designate any other regulatory authority or any officer preferably the Secretary of the department dealing with Housing, as the Regulatory Authority.

Registration

1. The promoter has to register their project (residential as well as commercial) with the Regulatory Authority before booking, selling or offering apartments for sale in such projects. In case a project is to be promoted in phases, then each phase shall be considered as a standalone project, and the promoter shall obtain registration for each phase.
2. Further, projects which have not received a completion certificate and are on-going, the promoter of such project shall make an application to the Regulatory Authority for registration of their project within a period of three months of the commencement of the Act.

The following types of projects shall not be required to be registered before the Regulatory Authority:

1. • Where the area of land proposed does not exceed 500 square meters or the number of apartments to be constructed in the project does not exceed eight apartments. However, the appropriate Government (Central and State Government), if it considers appropriate may also reduce the threshold limit if it thinks fit;
   • The projects for which the completion certificate has been received prior to the commencement of the Act;
   • Projects for the purpose of renovation or repair or re-development which does not involve marketing, advertising, selling and new allotment of any apartment plot or building.

The application for registration must disclose the following information

1. 1. Details of the promoter which should include the registered address, type of enterprise;
   2. A brief detail of the projects by the promoter, in the past five years, whether already completed or under development mentioning the current status of the projects and any delay in its completion with details of cases pending and type of land and payments pending;
   3. An authenticated copy of the approval and commencement certificate received from the competent authority and when in phases, an authenticated copy of the approval and commencement certificate of each of such phases;
   4. The sanctioned plan, layout plan and specifications of the project, plan of development works to be executed in the proposed project and the proposed facilities to be provided thereof and the locational details of the project;
   5. Proforma of the allotment letter, agreement for sale and conveyance deed proposed to be signed with the allottees;
   6. Number, type and carpet area of the apartments and the number and areas of garages for sale in the project;
   7. The names and addresses of the promoter’s real estate agents, if any, and contractors, architects, structural engineers affiliated with the project; and,

A declaration by the promoter supported by an affidavit stating that:

1. 1. • He has a legal title to the land, free from all encumbrances, and in case there is an encumbrance, then details of such encumbrances on the land including any right, title, interest or name of any party in or over such land along with the details;
      • the time period within which he undertakes to complete the project or the phase; and
      • 70% of the amounts realised for the real estate project from the allottees, from time to time, shall be deposited in a separate account to be maintained in a scheduled bank to cover the cost of construction and the land cost and shall be used only for that purpose.

Carpet Area

The developers can sell units only on carpet area. This excludes the area covered by the external walls, areas under services shafts, exclusive balcony or verandah area and exclusive open terrace area, but includes the area covered by the internal partition walls of the apartment.

70% of realisation from allottees in a separate bank account

1. Most important feature of the Bill is that according to the Act, the promoter shall deposit 70% of the amount realised from the allottees, from time to time, in a separate account to be maintained in a scheduled bank. This is intended to cover the cost of construction and the land cost and thus the amount deposited shall be only used for the concerned project and for no other purpose.
2. The promoter can be entitled to withdraw the amounts from the separate account, to cover the cost of the project, in proportion to the percentage of completion of the project.
3. The promoter must also get his accounts audited within six months after the end of every financial year. Such an audit is a must to verify the accounts of the promoter that the amounts have been used correctly and without any default by the promoter.

Post registration procedure

1. After the promoter has applied for registration, the Regulatory Authority shall within a period of 30 (thirty) days, either grant or reject the registration.
2. Upon granting a registration, the promoter will be provided with a registration number which shall include a login Id and password for accessing the website of the Regulatory Authority and to create his web page and to fill in the details of the project.
3. If the Regulatory Authority fails to reject the application within period of 30 (thirty) days from the date of the application, then the project shall be deemed to have been registered.
4. The registration, if granted, will be valid until the period of completion of the project as committed by the promoter to the Regulatory Authority. This period shall be extended by the Regulatory Authority for a period not exceeding one year, only due to specific reasons as mentioned in the Act and along with the payment of such fee as may be specified by the Regulatory Authority.

Revocation or lapse of registration

1. The Regulatory Authority may revoke the registration granted on receipt of a complaint or suo moto or if there has been a recommendation of the competent authority in case of any default by the promoter or when the promoter violates any terms of the approvals in the project or when the promoter is involved in any kind of unfair trade practice.

In the event the registration is revoked by the Regulatory Authority or it lapses:

1. • the promoter would be stopped from accessing the website for the project and will be specified in the list of defaulters on the website;
   • the remaining development works shall be carried out by another competent authority or in any other manner as may be determined by the Regulatory Authority;
   • the Regulatory Authority shall direct the scheduled bank where the project activities are carried out, to freeze the account and take such further necessary actions.

Advertisement/prospectus

1. The advertisement or prospectus by the promoter must mention the website address of the Regulatory Authority, where anyone can find all details of the registered project along with the registration number and other such important details which are important for the people to know before investing in such a project;
2. Where any person has relied on such advertisement or prospectus and makes an advance or a deposit, and then if such a person sustains any loss or damage if such information on the advertisement or prospectus is incorrect, false statement, he shall be compensated by the promoter in the manner as provided under the Act. The person can also withdraw the entire amount from the project as per his wishes.

Limit on receipt of advance payment

The promoter cannot accept more than 10% percent as the advance payment or an application fee, from a person without first entering into a written agreement of sale and register the said agreement of sale, under any law for the time being in force.

Addition and alteration in the plan

1. The promoter cannot make any addition or alteration in the approved or sanctioned plans, its designs, specifications and amenities of the apartment, plot or building without the previous consent of the allottee.
2. The promoter also cannot make any other addition or alteration in the approved or sanctioned plans, its designs and specifications of the apartment, plot or building and common areas within the project without the previous written consent of at least two-thirds of the allottees, other than the promoter, who have agreed to take apartments in such a apartment, plot or building.

Structural defect

In case any structural defect which is brought to the notice of the promoter within a period of five years by the allottee from the date of handing over the possession of the unit, the promoter shall rectify such defect without any further charge, within thirty days. If the promoter fails to rectify such defect within such time, the aggrieved allottee shall be entitled to receive appropriate compensation in the manner as provided in the Act.

Restriction on transfer and assignment

The promoter cannot transfer or assign his rights and liabilities in respect of a project to a third party without obtaining prior written consent from two-thirds of the allottees, except the promoter, and without the prior written approval of the Regulatory Authority.

Delay in handing over possession

In case of any delay in handing over the possession of the unit by the promoter to the allottee, the promoter shall be liable to return the amount received by him from the allottee with interest and compensation at the rate as provided under the Act. This relief will be available without prejudice to any other remedy available to the allottee and when the allottee does not intend to remove himself from the project, he shall be paid interest by the promoter for every month of delay, till the handing over of the possession, at a prescribed rate.

Adjudicating Officer

The Regulatory Authority shall appoint (in consultation with the appropriate Government) one or more judicial officers for adjudging the compensation to be paid by the promoter in default, who is or has been a District Judge, to be an adjudicating officer for holding an inquiry in this regard.

The Real Estate Appellate Tribunal

1. The Bill proposes to establish a Real Estate Appellate Tribunal (Appellate Tribunal) within one year from the date of commencement of the Act.
2. Any person aggrieved by the decision made by the Regulatory Authority or by an adjudicating officer, may make an appeal before the Appellate Tribunal within a period of 60 (sixty) days from the date of receipt of a copy of the order or any such direction.
3. The Appellate Tribunal shall dispose the appeal within a period of 60 (sixty) days from the date of receipt of appeal.
4. The Appellate Tribunal shall have same powers as a civil court and shall be deemed to be a civil court. An appeal against the order of the Appellate Tribunal may be filed before the jurisdictional High Court within a period of 60 (sixty) days from the date of communication of the decision or order of the Appellate Tribunal.

Other relevant provisions

1. The rate of interest payable by the allottee and the promoter in the event of their respective defaults shall be the same.
2. After the promoter executes an agreement for sale for any apartment, plot or building, no mortgage or charge can be created by the promoter on such apartment, plot or building.
3. The promoter may cancel the allotment only in terms of the agreement for sale. However, the allottee may approach the Regulatory Authority for relief, if he is aggrieved by such cancellation and such cancellation is not in accordance with the terms of the agreement for sale.
4. The promoter shall also obtain insurance as notified by the appropriate Government, including but not limited to the title of the land and building and construction of the project. The promoter shall also be liable to pay the premium and charges in respect of the insurance.
5. The promoter shall execute a registered conveyance deed in favour of the allottee or the association of allottees in respect of the undivided proportionate title in the common areas, and hand over of the possession within the time limit as provided in the law. In the absence of any such law, the conveyance deed shall be carried out by the promoter within a period of three months from date of issue of the occupancy certificate.
6. The promoter shall compensate the allottees in case of any loss caused to him due to defective title of the land in the manner as provided under the Act and such a claim shall not be barred by any limitation provided in any other law for the time being in force.
7. The physical possession of the apartment, plot or building shall be made within a period of two months of the occupancy certificate by the allottee.

Offences and Penalties

1. Stringent penal provisions have been prescribed under the Act against the promoter in case of any non-compliance with the rules and/or provisions of the Act or orders or directions of the Regulatory Authority or the Appellate Tribunal which are the following:

• If the promoter does not register its project with the Regulatory Authority within such period of time as provided in the Act then the promoter shall be liable to a penalty which may be up to 10% of the estimated cost of the project as determined by the Regulatory Authority;
• And if the promoter does not comply with the aforesaid order of the Regulatory Authority then the promoter shall be liable to a imprisonment which may be up to three years and a further penalty of up to 10% of the estimated cost, or both; and
• In case the promoter provides any false information while making an application to the Regulatory Authority or contravenes any other provision of the Act then the promoter shall be liable with a penalty which may be up to 5% of the estimated cost of the project.

1. These penal provisions have also been prescribed for any contravention or violation committed by the real estate agent or the allottee.

2. If any allottee fails to comply with, or contravenes any of the orders, or directions of the Regularity Authority, there may be a penalty for the period during which such default continues, which may cumulatively extend up to 5% of the cost of the plot, apartment or building.

Further, if any allottee fails to comply with, or contravenes any of the orders or directions of the Appellate Tribunal, he may be liable for an imprisonment up to one year or with fine for every day during which such default continues, which may cumulatively extend up to 10% of the cost of the plot, apartment or building, as the case may be, or with both.

The Bill prevails

The provisions of this Act/Bill shall prevail in case there is any inconsistency between the provisions contained in this Act/Bill and in any other law (including a state law) for the time being in force

Conclusion

This is the best move by the Parliament to ensure transparency and accountability for the home-buyers and the investors in the real estate sector and it shall serve justice to all such home-buyers and investors and now the Government needs to establish the Regulatory Authority (or any other authority, in the interim) within the timeline prescribed under the Act to start implementing the provisions of the Act and make the Act functional.

This was all about Real Estate (Regulation and Development) Bill, 2016. What are your views on the Real Estate (Regulation and Development) Bill, 2016? Comment below and let us know.

In this article, Nidhi Shetty who is currently pursuing M.A. IN BUSINESS LAWS, from NUJS, Kolkata, discusses Protection of movie titles through Intellectual Property laws.

Introduction to Intellectual Property Laws

• Right from pre-historic era, man has made his way through the fight of survival. This fight eventually turned into a ‘competition’ to survive amongst the other survivals. Evolution of humankind bought various developments and innovations. It became a need for every person to secure their innovations in order protect their credit.
• Thus, Intellectual Property became a key element to maintain the competitiveness in the market. It became an integral and core part of almost all business process as for every business growth, protection of their business idea, mark, design, procedure or any other intellectual property related to their business is necessary. It ensures that their intellectual property is secure from any infringement from a third party. Intellectual property rights gained substantial importance with the onset of the knowledge and era of information technology.
• Eventually, Intellectual Property on its own and the various rights attached to it have become extremely important commodities and thus are being protected. India is a signatory to the Agreement on Trade-Related Intellectual Property Rights (“TRIPS”) The Indian Constitution has no mention of Intellectual Property.

However, it deals with just the word ‘property’ in following Articles:

1. Article 19: Freedom to acquire, hold and dispose off property
2. Article 31: Protection from deprivation of property
3. Article 32: Property could be possessed or acquired for public purpose only by law and only on payment of compensation.

Intellectual Property Rights is a collective term and it can be protected under different acts, depending on its type. IPRs is an umbrella term. IPRs consists of the following,

• Patents
• Trademarks
• Copyright
• Geographical Indications
• Design or Industrial Designs

Protection of movie titles through Intellectual Property laws

An Introduction to Media and Films

Communication is the name we give” [1], to the countless ways that humans have of keeping in touch- not just words and music, pictures and print, nods and becks, postures and plumages; to every move that catches someone’s eye and every sound that resonates upon another’s ear. The need for communication is as basic as the hunger for drink and food. Media is a source of such communication. Films are considered a major mass medium because of their mass appeal and influence on society. ‘Film is a term that encompasses motion pictures as individual projects, as well as the field in general. [2]

Importance of Registration under Intellectual Property Laws:

1. Developments and inventions of new products its techniques and processes, names of the brands, the matter and the content, etc. are a process or set of related processes that requires significant system resources or time, or requires exclusive access to large amount of data. They usually require large investments.
2. Thus, an individuals or entities expectation of creating them have the want that they become the sole and exclusive owners and have exclusive rights over their invention or creation, such that it does not bestow rights over any other person. Intellectual Property rights majorly provides such exclusivity to the creators. For some forms of Intellectual Property like copyright and trademark, the right begins the very moment the work is made or created in these types of intellectual property, registration may not compulsory or mandatory but registration provides the creator or the author certain and advantages and benefits like proof of the ownership in prima facie.
3. It makes it easier for the creator to enforce their Intellectual Property right in the court of law. In the event, where the Intellectual Property is not registered, the creator will have to prove his case in the court that the Intellectual Property belongs to the creator when the intellectual property is infringed by any third party (infringer).
4. Under The Trademark’s Act, 1999 a Trademark can be claimed only by a registered proprietor of that particular trademark and only he can sue the infringer for infringement. Therefore, it can be concluded that Intellectual Property Rights are made to protect and help the true registered creator or owners to get the benefits of the returns of their knowledge and investments by preventing any other person from infringing or using the creation without the registered owner’s permission.

Protection of Film Titles under Intellectual Property Laws

• Title or a name of any work creates an identity for that particular work. On the onset of every film the makers of that film strive to choose an exclusive and distinctive title or a name for their movies. This helps the film makers to associate the audience to their film. It becomes utmost important for the film makers to protect their movie titles to protect the distinctiveness.
• “Under Indian Copyright Act, protection is conferred on literary works, dramatic works, musical works, artistic works, cinematograph films and sound recording but not to titles alone. Thus copying of a title alone and not the plot of the movie, the characters, songs etc does not fall under the ambit of copyright protection.
• It is common, rather it is imperative, to give title to literary or entertainment works. The literary work produced by the author or the work of entertainment produced by a producer needs a name. It is only then that such work would be identified. The term ‘literary title’ is used to encompass the titles of books, periodicals, newspapers, plays, motion pictures, television series, songs, phonograph records, cartoon features and the like.”[3]
• Initially, neither copyright nor trademark law may protect titles of a film. Copyrights secure the originality of creativity by protecting its original expression. Therefore, to qualify to be protected under copyright law, a work must have some amount of “authorship”.
• On the other hand, trademark act intends to distinguish and identify the origin of a product. A mark has to be distinctive to qualify under trademark. It means that a mark cannot be generic or descriptive. Therefore the need of registration of movie titles rose.
• In India, a film title is registered with any authorized associations such as the Association of Motion Pictures and Television Programme Producers (AMPTTP), the Film and Television Producers’ Guild of India (Guild) and Indian Motion Picture Producers’ Association (IMPPA).
• The aforementioned associations work constantly with the motive of encouraging and motivating the film productions and eventually protecting the monetary and commercial interest of the movies that are produced in India.
• These associations regulate the Indian Film Industry. The procedure to register a particular film title involves the association substantiating with the remaining associations to find out whether a film with the same or deceptively similar title has been registered with any another association.
• It is very important for a film maker to be creative and innovative in choosing a title of their film as a unique and catchy title can instantly make the viewers and the audience relate to the film making the first and lasting impression on such audience.

Titles of cinematographic films in India shall be registered under Class 41 of NICE Classification of the Trademarks Act 1999. Film titles can be further divided into two heads, that is, titles of series of movies, like for instance ‘Once upon a time in Mumbai ’ and ‘Once upon a time in Mumbai Dobaara’ and title of a single movie. In case of a movie with single title, it is necessary to establish that the title has acquired secondary meaning amongst the mass at large. The test of secondary meaning for literary titles is basically to determine whether in the memories of a large significant number of viewers, the title in question is set with a single source of the literary work.

Limitations on registration of film titles

Registration of every Cinematography film title has a set of limitations involved under the Trademark Act, 1999.

The Trademark Law protects the title of a film under two instances[4]:

1. The title of the series of literary work where the title of the series of the film enjoys standard trademark protection to indicate that each edition comes from the same source as the others and can, therefore, be registered as a trademark. Therefore, in India, the producers seeks or apply for registration of film titles under Schedule 4, class 41 of Trademarks Act, 1999 that incorporates number of services including entertainment.
2. The title of single literary work where in order to be entitled to the protection of trademark, the title need to have acquired secondary meaning to qualify as registrable trademark. The fundamental assumption behind this is that the question of likelihood of confusion of source, affiliation, sponsorship or connection in the minds of potential buyers/users would arise and can be contended only if the disputed title has acquired the secondary meaning and is capable of associating itself with the particular work or source. Even if the work has not been released, a sufficient amount of pre-release publicity of the title may cause a title to acquire recognition, sufficient for protection under the proviso clause stated under clause (1) of Section 9 of Trademark Act, 1999 which specifically gives trademark registration to well-known mark or mark which acquired distinctive character as a result of the use made of it.

Case study of important judicial pronouncements

Krishika Lulla and Ors. vs. Shyam Vithalrao Devkutta and Ors[5]

The Honourable Supreme Court held in the above-mentioned case that copyrights do not subsist in the titles of literary works, including movies. Protection for the same can be granted only by trademarks. The facts of the said case is that the respondents claimed to have written a synopsis with the title ‘Desi Boys’ and the same was forwarded via email to two other persons. On release of the movie ‘Desi Boyz’, the respondents filed a suit against the appellants for the infringement of the copyright. The issue in hand before Court of law was whether the respondents had a copyright ownership in the title of the said movie. The Court stated that as per Section 13 of the Copyright Act, 1957[6], titles cannot be considered as ‘works’ for the purpose of copyrights.

Sholay Media and Entertainment Pvt Ltd. v. Parag M. Sanghavi[7]

The High Court of Delhi granted trademark protection and issued an ex parte injunction for title of the famous film ‘Sholay’ released in 1975. This led to the change of title of ‘Ram Gopal Verma ki Sholay’ to ‘Ram Gopal Verma ki Aag’.

It was stated by the Court that since the title ‘Sholay’ had acquired the status of honor amongst other movies, the defendants were made to refrain from using trademarks that were same or deceptively similar to that of the plaintiffs.

Biswaroop Roy Choudhary v. Karan Johar[8]

An interim injunction was sought by the plaintiff from the Delhi High Court to use title of film which plaintiff had registered with Registrar of Trademarks to restrain the defendant from using the tile “Kabhi Alvida Naa Kehna” for the defendant’s movie. The Court, however,  was of the view that although the defendant had not registered the title with the Registrar of Trademarks contrary of what was done by the plaintiff, the defendant was the actual user of the mark, and had also completed the production of the film which was ready for release. Thus, the Delhi High Court further stated that the actual use of the trademark was always a relevant factor which would deter the Court from granting injunctory relief. Hence, the Court resulted in denial of interim relief to the plaintiff were that Kabhi Alvida Naa Kehna was a phrase in common parlance and therefore could not be used with exclusivity and furthermore there was delay in approaching the Court.

Kanungo Media (P) Ltd v RGV Film Factory[9]

The above-mentioned case is an appraisable attempt by the judiciary to establish a position that even a single title of the film can acquire trademark protection under the Trademark Act, 1999. The court stated that “title of the film fall into two categories firstly, titles of series of film and secondly titles of single copyrighted works. Protection is certain as regards titles of series of film, and such titles enjoy standard trademark protection. However, the court found that in order to extend this protection to the title of a single copyrighted work, it must be proven that such title has acquired a wide reputation among the public and the industry that is, has acquired secondary meaning. Therefore, in order to obtain an injunction, the onus is on the plaintiff to establish that its film title has acquired secondary meaning. And had also concluded that the law with respect to the protection of move title under trademark in India is similar to the law of trademark in United States”.

Movie Title Protection beyond India

United States of America: in the year 1922, Motion Picture Association of America (MPAA) became the first association to be formed. This organization was formed to represent the interests of the film industry, home video and television industries of America both within the country and internationally through MPAA. The Association works with the purpose of promoting and encouraging the film making and production. It also helps in protection of commercial interest of the movies that are to be produced. It aids protection of the films from any copyright theft. The Trademark protection is also available under MPAA related to movie title. However, it is subjected to certain limitations. The limitations are as follows:

“Registration of titles as trademarks with the United States Patent and Trademark Office requires that the work designated by the title is not a single film, television show, or book. If it is being used on a television series, book series or other continuing work, registration is possible and recommended. The USPTO refuses registration of a proposed mark related to the title of a single book and/or movie including marks being: a surname; geographically descriptive of the origin of the goods/ services; disparaging or offensive; a foreign term that translates to a descriptive or generic term; an individual’s name or likeness”[10]

A portion of the title of any single creative work is registrable only if the applicant can show that the portion of the title meets the following criteria[11]:

1. It creates a separate commercial impression apart from the complete title;
2. It is used on series of works; and
3. It is promoted or recognized as a mark for the series.

Thus, the law of trademark under USPTO marks the refusal to register titles of a single work regardless of whether it is a television program, a movie or a book.

In the case of Paramount Pictures Corporation v. Pete Gilchrist[12], the Courts in the United States of America have given trademark protection to literary title of single works. However, it will happen only upon a showing of secondary meaning, even in the case where the work’s title may not be merely descriptive of the contents of the work. The Court found that the Respondent registered the disputed domain names primarily with the intention of taking advantage of the Complainant’s trademark rights. It determined that the use of complainant’s trademark is confusingly similar does not constitute a legitimate non – commercial or fair use of the domain names. Therefore the restrained the respondent from using the disputed domain name.

Warner Brothers Entertainment v. The Global Asylum, Inc[13]:

The plaintiff who owned several trademarks that included the word “Hobbit,” filed a trademark infringement suit against the defendant to seek a temporary injunction order against the distribution of defendant’s film “Age of Hobbits”.

The court established four-factor test for injunctive relief that is:

1. likelihood of success on the merits,
2. likelihood of irreparable harm to them if the injunction were not granted,
3. a balance of hardships favoring plaintiffs and
4. that an injunction would benefit the public.

The plaintiff satisfied all the four-factor test and the court held that plaintiff had an interest that had to be protected in the mark “HOBBIT” and that the defendant’s use of the mark was likely to cause consumer confusion. The court rejected the defendant’s contention and granted an injunction on the basis of public interest.

Conclusion

• Copyright laws can protect the expression of an idea but a simple mere idea cannot come under the ambit of the Copyright Act. Titles of books, songs, movies and other copyrightable works although appear to be protectable under copyright is given their nature of works; yet are not due to the lack of requisite creativity[14].
• Also, copyrights laws are made to protect the honesty and nobility of creative works of ownership and authorship, and movie or book titles do not warrant such a protection. It is only now that this principle has gained a place jurisprudence under the Indian Law. Any cinematographic film or any such work is remembered by the audience and the viewers by its title and name for a very long period.
• The viewers are ought to associate the concept and the idea behind the work by associating it with the  film title and therefore it is becoming an obvious first step of all the film makers to first register the title of the film with association in order to protect and preserve the monetary and other commercial interest in the film.
• Such registration simply protects the work and rights of the owner and it also aids the owner with such copyrights, an exclusive and sole right over the title of such work. Moreover, registering the title of film helps to restrain the unfair and unauthorized use or adoption by another.
• In case of any infringement, registration of titles help the owner to knock the doors of the judiciary for relief that are justified and righteous. Such suits can also help the registered owner to get compensation for any kind of loss occurred or a royalty(if applied) can be collected by the infringer. “India recognizes trademark rights to the title of the movie even in case of single literary work under the Trademark protection in India. The title that acquires secondary meaning and the use of the same by another may cause overlapping of the source and likely to create confusion in the mind of the consumer.”[15]

That was all on  Protection of movie titles through Intellectual Property laws. What are your views on  Protection of movie titles through Intellectual Property laws? Please comment below and let us know.

References

[1]Äshley Montagu and Floyd Matson, The Human Connection (McGraw Hill, 1979).

[2]Media Law, Dr. S.R. Myneni

[3]McCarthy on Trademarks and Unfair Competition, Third Edition (1995) Vol. I

[4]http://www.mondaq.com/india/x/295382/Trademark/MOVIE+TITLE+PROTECTION+UNDER+LAW+OF+TRADEMARK

[5] ILC-2015-SC-CRL-Oct-9

[6] Section 13- Works in which copyright subsists.- (1) Subject to the provisions of this section and the other provisions of this Act, copyright shall subsist throughout India in the following classes of works.

[7] CS (OS). 1892/2006

[8] 2006(33)PTC381(Del)

[9] 2007(34)PTC591(Del)

[10] http://www.uspto.gov/trademarks/basics/BasicFacts.pdf

[11] http://www.uspto.gov/trademarks/resources/exam/ examguide4-06.jsp

[12] Administrative Panel Decision Case No. D2007-0128

[13] CV 12-9547 PSG (CWx) decided on 12 December, 2012

[14] http://www.mondaq.com/india/x/463448/Copyright/Movie+Titles+Entitled+To+IP+Protection

[15]http://www.mondaq.com/india/x/295382/Trademark/MOVIE+TITLE+PROTECTION+UNDER+LAW+OF+TRADEMARK