In this blog post, Disha Pareek, a student of Rajiv Gandhi National University of Law, Punjab, writes about Medical negligence and the concerned laws. The post is an analytical study on medical negligence in the context of Torts, Criminal Law, and Consumer Protection Act, 1986 and lastly, the post gives suggestions regarding the same.

It is very difficult to define negligence categorically since there is no consensus upon this; however, it is a highly debatable topic in the jurisprudence of Tort. As per Moni v. State of Kerala [1] “In the case of medical man, negligence means failure to act by the standards of reasonably competent medical men at the time. There may be one or more perfectly proper standards, and if he conforms to one of these proper standards, then he is not negligent.”   Therefore, it involves three constituents of negligence:

(1) A legal duty of the party complained of to exercise due care towards the party complaining the former’s conduct within the scope of his duty;

(2) Breach of the said duty; and

 (3) Consequential damage that follows

Lately, Indian society has developed an awareness regarding their rights and public awareness about medical negligence is growing. The reason is that the degrading standards of professional competence, facilities, and the appropriateness of their therapeutic and diagnostic methods. In earlier times, people were afraid of suing doctors or hospitals, but with the passage of time, the law has played a major role in generating awareness among people regarding their rights.

The situation can be traced from certain cases[2] which dealt with seeking of redressal by the patients for damages suffered by them due to the negligence of doctors and also cases involving a breach of confidentiality arising from doctor-patient relationship. In the case of medical negligence, the doctor will be held liable for certain medical malpractices.

Nature of medical negligence

In the Tort of Negligence, professionals such as lawyers, architects and doctors are included in the category of persons who profess some special type of skill or are skilled persons. Therefore, the person performing should possess the requisite skill to do the work. Similarly, the patients, as soon as they step into the premises of the hospital, they equate the doctor to God and believe that he possess the requisite medical expertise.[3] Here, the standard to be applied to adjudge the case at hand would be that of an ordinary competent person exercising ordinary skill in the profession.

Position in UK

According to Bolam’s test, a doctor, who acts by a practice accepted as proper by a responsible body of medical men,[4] is not negligent mainly because there is a body of opinion that takes a contrary view. [5] But the test came under a rough weather and was faced with a lot of criticism, and therefore, countries like Australia rejected it altogether.

As of the present, after the Bolitho case[6], recognition of a two-step procedure took place so as to determine the question of alleged medical negligence:

• Whether the doctor acted by a practice accepted as proper by an ordinarily competent doctor.
• If yes, whether the practice survived Bolitho judicial scrutiny as being responsible or logical.[7]

The two-step analysis as followed in the Bolitho case was reiterated and confirmed in many cases, like French v. Thames Valley Strategic H.A.[8] Unlike the Bolam Test, this test is uncontroversial.[9]

Position in India 

Legal framework in India

The legal framework in India that affects the medical profession and its working, and which prevents malpractices holds an important place.

• Fundamental Rights
  • Article 21
  • Article 32
• Directive Principle of State Policy
  • Article 41
  • Article 42
  • Article 47
• Indian Penal Code (IPC)
  • Section 52
  • Section 80
  • Section 81
  • Section 88
  • Section 90
  • Section 92
  • Section 304-A
  • Section 337

In the context of Indian law, medical negligence comes under 3 categories; Criminal negligence, civil negligence and negligence under Consumer Protection Act. Different provisions regarding the remedy in the form of punishment and compensation are there in 3 laws. The following is an analytical comparison of the laws mentioned above about medical negligence.

Criminal law and medical negligence

Indian criminal Law has placed the medical professional on a different footing as compared to an ordinary human. Section 304A[10] of the Indian Penal Code of 1860 states that “whoever causes the death of a person by a rash or negligent act not amounting to culpable homicide shall be punished with imprisonment for a term of two years, or with a fine or with both.”

Thus, when a person engaged in the commission of an offence within the meaning of IPC and causes death by rashness or negligence, but without either intending to cause death, or thinking it likely that he shall cause that, he should be liable for the punishment of the offence which he was engaged in committing added to the ordinary punishment of involuntary culpable homicide.[11]

Criminal liability can also be imposed upon a doctor under particular situations wherein the patient dies during the time of administering anaesthesia in an operation; the death must also be due to malicious intention or gross negligence.[12] Many a time the doctor will also be responsible vicariously, meaning thereby if his employee/servant rashly causes the death of a patient. In that case, the employee as well the doctor will be liable due to the principle of ‘Vicarious Liability’ under Tort law.

Despite the rights of a patient mentioned above, there are a few exceptions as well.[13] Sections 80 and 88 of the Indian Penal Code contain defences for doctors accused of criminal liability. Under Section 80[14] (Accident in doing a lawful act) ‘nothing is an offense that is done by accident or misfortune and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution.’ According to Section 88,[15] ‘a person cannot be accused of an offense if she/ he performs an act in good faith for the other’s benefit, does not intend to cause harm even if there is a risk, and the patient has explicitly or implicitly given consent.’

Consumer Protection Act and criminal negligence

Since 1990’s there is a huge speculation and debate on whether medical services are explicitly or categorically included in the definition of “Services” as enshrined under Section 2(1)(o) of the Consumer Protection Act (CPA). Deficiency of service[16] means any fault, imperfection, shortcoming, or inadequacy in the quality, nature, or manner of performance that is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise about any service.

The question that comes to mind is that where can a complaint be filed; the answer is that, a complaint can be filed in[17]-:

1) The District Forum if the value of services and compensation claimed is less than 20 lakh rupees,

2) Before the State Commission, if the value of the goods or services and the compensation claimed does not exceed more than 1 crore rupees, or

 3) In the National Commission, if the value of the goods or services and the compensation exceeds more than 1 crore rupees.

The good positive aspect about this is that there is a minimal fee for filing a complaint before the District Consumer Redressal Forums.

n 1995, the Supreme Court decision in Indian Medical Association v. VP Shantha[18] brought the medical profession within the ambit of ‘service’ defined in the Consumer Protection Act, 1986. This defined the relationship between patients and medical professionals by giving contractual patients the power to sue doctors if they sustained injuries in the course of treatment in ‘procedure free’ consumer protection courts for compensation.

Civil law and medical negligence

The position regarding negligence under civil law is very important as it encompasses many elements within itself. Under the torts law or civil law, this principle is applicable even if medical professionals provide free services.[19] It can be asserted that where Consumer Protection Act ends, tort law begins.

In cases where the services offered by the doctor or the hospital do not fall within the meaning of ‘services’ as defined under CPA, patients can take recourse to tort law under negligence and claim compensation. Here, the onus (burden) of proof is on the patient, and he has to prove that because of doctor’s or the hospital’s negligent act, he suffered injury thereby.

Such cases of negligence may include transfusion of blood of incorrect blood groups, leaving a mop in patient’s abdomen after the operation, removal of organs without consent and administering wrong medicine resulting in injury.[20] Persons who offer medical advice and treatment implicitly state that they have the skill and knowledge to do so, that they have the skill to decide whether to take a case, to decide the treatment, and to administer that treatment. This is known as an “implied undertaking” on the part of a medical professional.

 In the case of the State of Haryana v. Smt Santra,[21] the Supreme Court held that every doctor “has a duty to act with a reasonable degree of care and skill.” However, since no human is perfect and even the most renowned specialist can commit a mistake in diagnosing a disease, a doctor can be held liable for negligence only if one can prove that she/ he is guilty of a failure that no doctor with ordinary skills would be guilty of if acting with reasonable care.[22] An error of judgement constitutes negligence only if a reasonably competent professional with the standard skills that the defendant professes to have, and acting with ordinary care, would not have made the same error.[23]

Certain conditions must be satisfied before liability can be considered. The person who is accused must have committed an act of omission or commission; this act must have been in breach of the person’s duty, and this must have caused harm to the injured person. The complainant must prove the allegation against the doctor by citing the best evidence available in medical science and by presenting an expert opinion.[24] The question of degree has always been relevant for distinguishing negligence under the civil and criminal law. In Kurban Hussein v. the State of Maharashtra,[25] in the case concerning Section 304 (A) of I.P.C., 1860, it was stated that-

“To impose criminal liability under Section 304-A, it is necessary that the death should have been the direct result of rash and negligent act of the accused, without other person’s intervention.”[26]

Landmark judgements

The judgment that clicks our mind whenever we think about medical negligence is none other than the high-profile case in which the highest compensation till date was granted, in the case of Kunal Saha v. AMRI (Advanced Medical Research Institute)[27] which is popularly known as Anuradha Saha case,. The case was filed back in 1998 with the alleged medical negligence by 3 doctors of AMRI hospital; Dr. Sukumar Mukherjee, Dr. Baidyanath Haldar, and Dr. Balram Prasad as well as AMRI hospital.

The facts of the case, simply speaking, are that there was a drug allergy from which Mrs. Saha was suffering. When the duo approached the concerned hospitals, the three doctors prescribed such medicine which further aggravated the condition of the woman which led to her death. The Apex Court (Supreme Court) gave the final verdict of the case in the year 2013 and also compensated the victim with 6.08 crore. This particular case expanded the scope of medical negligence in India and took it to a whole new level.

In the case of V. Krishna Rao v. Nikhil Super Speciality Hospital 2010, Krishna Rao, an officer in malaria department filed a complaint against the hospital for negligent conduct in treating his wife. His wife was wrongly treated for typhoid fever instead of malaria fever, due to the wrong medication provided by the hospital. Finally, the verdict was given, and Rao was awarded a compensation of Rs 2 lakhs.  In this case, the principle of res ipsa loquitor (legal principle for a ‘thing speak for itself’) was applied, and the compensation was given to the plaintiff.

In a popular case, Achutrao Haribhau khodwa and Ors v. the State of Maharashtra,[28] the Supreme Court noticed that in the very nature of the medical profession, skills differ from doctor to doctor, and there is more than 1 admissible course of operation. Therefore, negligence cannot be attributed to a doctor so long as he is performing his duty with due care, caution, and attention. Merely because the doctor chooses one course of action over other, he won’t be liable.

Conclusion and Suggestion

There are a few criticisms staring in the face of the Indian laws on medical negligence. The foremost is the principle of ‘Burden of Proof’. The burden of proof is on the plaintiff. So, if a patient alleges malpractice in medical, the law will require a higher standard of evidence to support it. Here, for an ordinary human or a patient, it becomes very difficult to determine the exact damage and the causal relation between the injury and the fault of the doctor.

Resultantly, the patient is not able to prove doctor’s fault beyond a reasonable doubt, since, the field of medicine is unexpected and unpredictable and anytime anything can happen in a human body and so, it reverts to the plaintiff. Therefore, it is high time that the laws dictating upon the medical negligence get changed so as to suit patients first. And the patients should be sensitized regarding their rights against medical malpractices by civil societies through a proper education channel.

To quote Mahatma Gandhi, “It is health that is a person’s real wealth and not pieces of gold and silver”. So as a moral obligation All the concerned authorities whether it is the hospital, Government, Medical Council or any other institution working towards betterment of healthcare facilities should work together and take steps to provide:

• Quality healthcare
• Adequate healthcare
• Accessibility of basic health care

Footnotes:

[1] SA. No. 832 of 2000(G)

[2] Available at, https://indiankanoon.org/doc/34613760/

[3] D.K. Sharma, Hospital Administration and Human Resource Management, Ed 6, PHI Learning Pvt. Ltd 2003.

[4] Warren Jones, Law & Ethics, British Dental Journal, 11 March 2000

[5] Sideway v Board of Governors of the Bethlem Royal Hospital [1985] 1 All Whitehouse v Jordan (1981) 1 WLR 246 and Maynard v West Midland Regional Health Authority (1984) 1 WLR 634.

[6] Bolitho v. City and Hackney Health Authority, [1996] 4 ALL ER 771.

[7] Mulheron, Rachael. “TRUMPING BOLAM: A CRITICAL LEGAL ANALYSIS OF BOLITHO’S “GLOSS.”” The Cambridge Law Journal 69.03 (2010): 609-638.

[8] [2005] EWHC 459 (Q.B.), at [9]-[10].

[9] Kingsberry v. Greater Manchester Strategic H.A. [2005] EWHC 2253.

[10] Section 304-A, Indian Penal Code, 1860

[11] Shiva Ram v. The State, AIR 1965 ALL 196

[12] Available at http://lawcommissionofindia.nic.in/reports/rep196.pdf

[13] O.P. Verma, “Doctors Heave a Sigh of Relief” Deccan Herald, Sunday, August 15, 2004

[14] Section 80, Indian Penal Code, 1860

[15] K K S R Murthy, ‘Medical Negligence and the Law’ Indian Journal of Medical Ethics, Vol 4, No 3, (2007)

[16] Section 2(1), Consumer Protection Act, 1986

[17] Available at http://www.delhistatecommission.nic.in/filing_procedure.htm

[18] Indian Medical Association v. V P Shantha AIR 1996 SC 550: (1995) 6 SCC 651

[19] Smreeti Prakash, ‘A Comparative Analysis of various Indian legal system regarding medical negligence.’

[20] Talha Abdul Rahman, “Medical Negligence and Doctor’s Liability”, Indian Journal of Medical Ethics, April-June, 2005

[21] AIR 2000 SC 3335

[22] Observations of Lord President Clyde in Hunter v. Hanley (1955) SLT 213

[23] Whitehouse v. Jordan, (1981) 1 ALL ER 267 the House of Lords

[24] Dr. Lakshman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole, AIR 1969 (SC) 128.

[25] (1965) 2 SCR 622

[26] Sir Lawrence Jenkins in Emperor v. Omkar Rampratap, 4 BOM LR 679

[27] (2006) CPJ 142 NC.

[28] (1996) 2 SCC 634.

In this blog post, Pranav Rudresh, Student of Lloyd Law College, Greater Noida and the Diploma in Entrepreneurship Administration and Business Laws by NUJS, discusses the advantages and the disadvantages of the Government’s decision to move 100% of FDI  in the defence sector.

FDI or Foreign Direct Investment is an investment which is made by any company (entitled to a nation) into a particular economy/country. It is a method of direct investment into any economy. It is a fundamental component in global integration. It is one of the major forms of cross-border investment. A company or enterprise, or a resident in a given country, can operate its enterprise in another country through investment. FDI is amongst the key issue of foreign policies of almost all countries. The enterprises based in developed economies can invest directly and open its branches in another country (underdeveloped or developing), it can use the adopted country’s resource for its work and in return give money to the workers. This not only helps in the development of the economy but also gives the workers a fair idea of how an enterprise operates. It provides long lasting interests to the enterprise as well.The investing company can make its overseas investment in some ways—either by setting up a subsidiary or associate (with the same name of the company) in the foreign country and by a partnership of shares of an overseas company, or through a merger or joint venture. In India, FDI was first brought up after the economic crisis of 1991. Former PM Manmohan Singh and the then PM Shri PV Narasimha Rao are credited for bringing FDI in India which relaxed the economy and generated more than one crore jobs. In 2015, India became the largest destination for FDI surpassing China.

An example of foreign direct investment can be an Indian company taking a majority stake in a company in China. Another example would be a Canadian company setting up a joint venture to develop a mineral deposit in Chile.
For a developing nation like India where over-population and poverty together are a major issue, FDI is an important sector through which the government can bring employment to all sectors on a large scale. Recently, the Modi-led government enacted 100% FDI in defence as well as the civil aviation department (the FDI has been eased in other departments as well such as food, medicine, etc.). It is to be noted that the addition of FDI into the Defence and Civil Aviation Sector has been approved by all channels and is stated to be the “Need of the Hour” by the Central Minister Shri Venkaiyah Naidu.

The Advantages and Disadvantages of 100% FDI in the Defence Sector

While this move may prove to be a big boost for our economy, there are some disadvantages against this decision. Firstly, let’s take a look at what are the positives of the 100% FDI in the defence sector:

• FDI is better than debt.
• FDI will push growth and development.
• FDI will permit India to be a manufacturer rather than being one of the largest importers of arms.
• FDI will bring international level technology to India.
• FDI will open up the economy widely.

Like the two sides of a coin, despite being beneficial, the liberalization of FDI also includes some negative points.

• FDI might kill the domestic sector.
• Indian investors may not comply with foreign defence manufacturers.
• Most nations would know about the defence manufacturing limit of India.

How will 100% FDI in the Defence Sector Benefit India?

A good FDI can significantly pave the way for an increase in farmers’ income, employment to youth and an impetus for the growth of the small and medium industry. This would help start micro, small and medium industries which would pave the way for jobs for our youth. FDI can lead to the creation of a congenial atmosphere that attracts investment. For a developing country like India, it is better to accumulate debts and later pay them at higher interest rates because of the currencies in the world being highly unstable.

At present, India is amongst the largest importers of machinery in the defence sector. Compared to the developed countries, India lacks in its defence equipment production capability. A greater inflow of FDI in the Defence sector provides a chance of substantive economic advantages. The increased flow of funds from a foreign source and greater FDI leads to more employment opportunities for the local population. It also means that taxes and other revenues will flow back to the local economy. Most industry associations and foreign firms have demanded that the FDI cap is increased to 100 percent since they believe that the Government of India will insist on Indian control over any defence manufacturing company. India’s main aim of technology enhancement, as foreign vendors, will not transfer critical technologies without ownership and management control of the Indian
venture. Better than taking loans from world based organizations, an increase in FDI levels will be preferred to overcome the drawbacks currently faced by a FDI cap of the earlier percentage. The FDI cap thus needs to be at a higher rate so as to make a significant difference to the Indian Defence Industry.

How wl 100% FDI in the Defence Sector not Benefit India?

A 100% inflow of FDI in the Defence sector will  kill the domestic sector, as well as the Indian protection Manufacturing Sector-related organizations, such as DRDO, are going to suffer major setbacks. While the transfer of technology from foreign sources may increase, the advantages of having homemade products will decrease by mass. It is a clear fact that Indian companies won’t be able to compete with the international manufacturers as they may have production co-operation issues. This will even prove to be worse for DRDO, which has not been able to give its 100% since establishment due to the lack of local resources.

One of the major setbacks that India will face with 100% FDI in the defence sector will be that the economies that will invest in production in India will know the defence product manufacturing limit of India. If India aims to be a superpower, it cannot be possible just with the production of what the other developed nation are or have been producing. The technological setback thus makes the FDI a matter of concern.

Conclusion

For a country sitting with hostile neighbors, its biggest priority of the government is to ensure its safety. Any economy cannot be self-sufficient, and it is not possible to battle against problems like terrorism by just risking lives. Technology thus becomes an important tool in covering such hazards. The hard reality is that our defense sector needs a good overhaul, and our government needs to allocate sufficient budgets for production of defense material. The military expenditure of a developed nation like the USA is around 600 billion dollars compared to a mere 65 billion dollar expenditure by India when it comes to maintenance of army and defense equipment. Thus, to achieve the defence capability dreams that India has, higher FDI may be a pure and important source that needs to be brought up. It must be however kept in mind that it doesn’t harm the local industries.

In this blog-post, Disha Pareek, a student of RGNUL, Punjab writes about the Civil Code of Goa and how the Indian Parliament should take inspiration from this code and enact a Uniform Civil Code for the rest of India.

Goa, a Portuguese colony, has a separate Civil Code, which is based on Portuguese Civil Code of 1867. Goa is an exceptional state. The, rest of India is governed by separate personal laws, for example, the Hindus, Muslims, Parsis, and Christians have their independent laws, but there is only one Code for Goans (residents of Goa) irrespective of their religion, ethnicity or any other consideration. The Goa Civil Code encompasses Family Law, Tort, Property law, domicile, access and possession.

Major provisions of Goa Civil Code in comparison with the laws for the rest of India

Goa being the only state in India which still continues to be governed by Portuguese law, it can be said that it is the most prestigious living legacy left by the Portuguese colony.

As per the Civil Code of Goa, citizenship can be acquired either by taking birth in Goa or also if one’s father or grandfather is born there and lastly, it can be acquired through marriage.

It’s high time that Indian law on property (applicable to the rest of India) should be reformed, taking cue from the Civil Code of Goa. This is because Indian property laws lack uniformity; it becomes a herculean task for the judiciary to decide matters that come to it. There is a huge difference between both the codes. The Goa Civil Code preaches absolute equality and promotes a sense of uniformity which is lacking in the property codes for the rest of India.[1] The provisions of the Goa Civil Code came into force in the year 1961 through its application to all sections of Goa uniformly and later were kept as an enactment of the Parliament.

Despite covering almost all aspects related to property, the Goa Civil Code has been silent on areas like transfer of property, contracts, registration, easement rights and so on and so forth.

1. The first and most prominent provision is the concept of absolute equality. The civil laws currently in force in Goa which pertain to different provisions like marriage, separation, protection of children and succession are non-discriminatory about caste, ethnicity or gender. This is the lacunae in Common law which can be discriminatory in nature.
2. A marriage under the Civil law of Goa is governed by a system called Communion of Assets, whereby, as soon as a person gets married, his spouse gets half of the undivided right in each other’s assets.
3. In Goa, marriages take place through four methods, one of which is by Community Property Law, which is considered a legal method and the other three are considered conventional.Through Community Property Law (which is for the benefit of women), each spouse automatically acquires joint ownership of both the assets owned by them as also those due to them by inheritance.  And therefore these assets may not be disposed of in any way by one spouse without the express will or consent of the other.  In this way, the basic difference appears in the property law of the rest of the India is that under it, a woman does not have any such right.
4. In addition to this, there is mandatory registration of marriage by virtue of which a woman in Goa is capable of establishing her rights from the very beginning. This is another significant advantage that women living under the Common Law system do not have. And in the event of legal separation, a woman is entitled to 50 percent of her husband’s income, and is not dependent on his charity or alimony. This way, it is a very advanced legal document
5. The parents are not authorized to disinherit their children completely, but can do it only partially.
6. Goa’s Civil Code is worth considering for promulgation all over India as it provides for common ownership of property and equal treatment to men and women. It can help in avoiding frequent breaking of marriages.
7. The inheritance laws in the state of Goa are particularly interesting. As both husband and wife own the property together, in the case of the death of one spouse, the other spouse gets half the property. And if the couple has one son and one daughter, half of the remaining property must be shared equally between the two.

Benefit of Civil Code over Common Law for women

There are clear benefits of a Uniform Code in a state like that of Goa; firstly, as opposed to Muslim personal law, there is a right to an equal share in the inheritance of property. There are restrictions even in Hindu law as the Hindu Succession Act (Amendment) 2005 does not work retrospectively.

A woman, after she gets separated by a divorce, lives a miserable life under different personal laws, but there is an entirely different scenario in the Code of Goa, wherein the wife can legitimately demand half of the share of the matrimonial property. If a woman has these many rights regarding property, she does not become dependent and even when she is left alone, she can look after her children and parents. The Code of Goa is made in such a way that it helps all the communities along with both genders, and there is peaceful co-existence of all religious and cultural groups.

Is Goa’s Civil Code uniform?

The Portuguese Civil Code dates back to 1867; there is a need to amend the present Code of Goa, because the Civil Code, which is operating in Goa, had been repealed in Portugal itself in 1966. Now there is a certain amount of doubt on the uniformity of the Code in Goa. Many people and groups in Goa are not satisfied with the draconian code and there is a popular demand to amend the code by national consensus and popular vote by all the communities and by the real stakeholders.

As per a reality check by United Nations Population Fund (UNPF)[2], the code of Goa promotes bigamy. The provision of the code also promotes inequality as a man can legally marry a  second time if he does not have a baby with his first wife till he is of age 25 or a male child is not born till 30 years of age.

On one side, it has been opined that the Code of Goa should inspire the Uniform Civil Code for the whole of India, but the harsh reality is that even this is not a comprehensive law in itself. The code cannot completely justify itself.

A lesson for India

India has now, for a very long time, been debating on the issue of the implementing the Uniform Civil Code under Article 44 of the Constitution, which will have a common set of laws for all and one without any form of discrimination. This particular issue has divided the country politically, culturally, socially and morally as well. The other laws of the country are same anyway; the real controversy revolves around different religious laws on marriage, inheritance, succession and maintenance.

We Indians are a bunch of hypocrites, on one hand, we talk about an egalitarian society which shall be bound by our very own Constitution but on the other, we resist having a Uniform Code for everyone. Even after the assertions of the Apex court to have a Uniform Civil Code, apprehensions lie in the hearts of all. Among this chaos, there is only one state which has been successful in bringing all religions under a single umbrella.

The future ahead

Rather than completely overhauling the current archaic laws in India, the need of the hour is to bring small changes. Some innate lacunas in the religious codes should be reformed and they must suit the needs of present times.

The problem not only lies in the draconian laws but also in the lack of will of the government to enact such laws because the political parties fear losing their vote banks amongst the masses. But, the need has been realized by different activists, and there have been women’s rights movements in several parts of the country demanding the enactment of a Uniform Civil Code specifically because the current laws do not provide the appropriate property rights that a woman should get.

Footnotes:

[1] Mmascgoa.tripod.com (2015) GOA’S CIVIL CODE

Available at: http://mmascgoa.tripod.com/id12.html (Accessed 11 July 2016)

[2] Free Press Journal, (2013). BIGAMY ALLOWED IN GOA, SAYS A UN STUDY

Available at http://www.freepressjournal.in/india/bigamy-allowed-in-goa-says-a-un-study/254150

In this blog post, Srishti Khindaria, a student of Amity Law School, Delhi, Guru Gobind Singh Indraprastha University, analyses how live-in relationships have slowly crept into Indian societies and traces its roots back through the various annals of history. Such relationships which have usually been considered a western phenomenon are now fairly common, especially in metros and have also gained legal backing in light of certain Supreme Court Judgments in their favor. We also take a look at an emerging trend in parts of Southern India where live-in relationships are seen amongst the elderly.

In Indian society, where marriage is considered an eternal and sacramental union, live-in relationships are becoming more and more prevalent in the present times. With Urban India becoming more broad and open minded and an obvious Western influence that is gradually increasing along a greater number of students moving out of their homes at an early age to pursue further education, live-in relationships are increasing day-by-day, especially in metropolitan areas.

Such relationships are considered to be convenient, “forward-looking” and free of legal hassles by the younger generation, but in reality, they do sometimes turn to be extremely tricky. It is true, that if a man and women are deeply in love, they might not need a socio-legal-religious sanction, but this is too ideal or utopian a concept. The state of things, as they exist is quite different; such couples might have fights, differences of opinion, change of career paths or break-ups; they may also have children together and earlier the status of such children or the property such couples owned together during their period of cohabitation was unascertained. Such relationships are also viewed as morally and socially improper.[1]

“Live-in relationships” is a relatively new term in the Indian domain, but its context can be traced back to ancient times. The Vedas, mention eight types of vivaahs or marriages, one of which is the Gandharva Vivaah; in which the man and woman mutually consent to marriage. Such a marriage involved neither the families of the couple nor a particular ritual or any practice to solemnize the marriage. It was a mere word of mouth commitment. Although the couple was united using Gandharva Vivaah, their responsibility and commitment were seen to be identical to any of the other types of marriages as ordained in the traditional texts. There was also the concept of “mail tray karars” where two people of the opposite sex would enter into a written agreement to live together and look after each other.

In earlier times, the “unmarried couple status” did exist, but it was not so popular. With the number of such relationships steadily increasing, it has compelled the Supreme Court to take up the matter seriously. Recent developments in society have provided for grounds to discuss the effects and pertinence of such relationships and the impact they shall have on our society. In Hinduism marriage is defined as an “indissoluble union of flesh with flesh, bone with bone and to be continued even in the next world.” Thus, legal sanctions to the institution of live-in relationships—which evidently lack the aspects of a “traditional Hindu marriage”—helps gives some recognition to such unions, and possibly pave the way for concrete legislations too.

Emphasizing that law should evolve according to changing times, the Supreme Court held that live-in relationships have now become an acceptable norm in society and are not considered taboo or a prohibited relationship anymore.

The Supreme Court has over the years given recognition to live-in relationships and recently held that if a man and woman have “lived like a husband and wife” for a long duration, then the judiciary would presume that they were married and that the woman would be eligible—after the death of her partner—to inherit his property.

Some Legal Provisions Regarding Live-in Relationships

Protection of Women from Domestic Violence Act, 2005

The Protection of Women from Domestic Violence Act, 2005, offers some traces of assistance to the rights of women in such relationships. The 2005 Act, covers under its ambit “relationships similar to marriage” or live-in relationships. The definition of “domestic relationships” as defined under section 2(f) is as follows—

 “Relationship between two persons who live or have, at any point of time, lived together in a shared household when they are related by consanguinity, marriage, or through a relationship like marriage, adoption or are family members living together as a joint family.”

Hence, the words of the act are self- explanatory and within its meaning include the concept of a live-in relationship.

The Maharashtra Government Proposal, 2008

In October 2008, the Maharashtra Government approved a proposal suggesting that a woman involved in a live-in relationship for a “reasonable period”—such period to be determined by the facts and circumstances of each case—should receive the status of a wife.

Recommendation of the National Commission for Women, 2008

A recommendation was made by the National Commission for Women in 2008 to the Ministry of Women and Child Development to (or “intending to”) bring in harmony the laws dealing with protection of women from domestic violence and also to put the status of live-in couples at par with that of legally married couples.

The recommendations of the committee included that the definition of “wife” as under Section 125 of Code of Criminal Procedure must be enlarged to include women in live-in relationships too.

Justice Malimath Committee or Committee on Reforms of Criminal Justice Report

A committee set up under Justice V. S. Malimath observed that if a man and a woman are living together as husband and wife for a reasonably long period, the man shall be deemed to have married the woman.”

The Justice V.S. Malimath Committee further went on to suggest that the word “wife” as enshrined under CrPC be amended to include “a woman living with the man as his wife” so that even a woman in a live-in relationship would be entitled to alimony.

Status of Children of Couples in Live-In Relationships

As of now, there are no specific laws that recognize the status of couples in live-in relationships. Therefore, the law as to the status of children born to couples in live-in relationships is also extremely uncertain.

Under the Hindu Marriage Act, 1955, every child whether born out of the void, voidable or legal marriage, gets the status of legitimacy; however there is still no specific law that gives any proper status of legitimacy to children born out of the union of a live-in relationship. The future of such children becomes highly uncertain and insecure in case the partners terminate their relationship. There is an eminent need to provide a safeguard for the rights of such children. Provisions must be made to safeguard their future and to ensure that they inherit property from both their parents

In the absence of any such legislation, the Supreme Court ruled that a child born out of a live-in relationship may be allowed to inherit the property of his/her parents but in a case of Hindu hereditary ancestral property, they may not have any claim.[2]

Live-In Relationships amongst the Elderly: An Emerging Trend

Thodu Needa, is an agency, to help widowed or single elderly men and women find a suitable companion for themselves during their old age. The agency was set up by M Rajeswari, a retired school teacher, in Andhra Pradesh.

Since it began operations in December 2010, Rajeswari through Thodu Needa has helped pave the way for nearly 200 couples of over 50 years of age finding a match.

What is extremely interesting about such couples though is that 95 percent of them, including Rajeswari and Rao, have rather than formal weddings opted for live-in relationships.

In a joint report by Help Age International and United Nations Population Fund (UNFPA) released in 2012, it was stated that by 2050, India and China would house about 80 percent of the world’s elderly population[3]. Currently, about 12% of India’s population is over the age of 60. The lifespan of an average individual has also increased with a significant advancement in the standards of healthcare. And after the loss of spouse and retirement, a large number of the elderly are finding themselves with too much time at hand and not too many people to turn to, especially with their kids moving out and starting families of their own. Therefore, such relationships provide the elderly with some relief.

Concluding Remarks

Live-in relationships—especially among the urban, educated, middle class—can be seen as a “declaration of independence,” it is also viewed as a manner of keeping away from the constraints of marriage and can be seen as a “willful rejection of the institution of marriage.” Thus, it is essential to recognize the rights of such couples while making sure it does not hinder or undermine the institution of marriage.

Further, the myth that live-in relationships lead to bad marriages needs to be debunked; in fact, cohabitation acts as a “firewall”  and couples who have lived together before getting married could help in lowering divorce rates, as suggested by current research studies. [4]

International studies, by the Office for National Statistics (ONS), said that cohabitation could be seen as promoting, rather than competing with marriage. However, over-dependence on statistics could be deceiving in a multi-cultural land like India.

The steps taken by the judiciary are pragmatic in approach and a welcome step towards social acceptance of live-in relationships. Live-in relationships do provide individual freedom, but laws are essential to cut back its disadvantages, due to the insecurities it carries with it.

Footnotes:

[1] http://www.legalservicesindia.com/article/article/live-in-relationship-in-a-marriage-centric-india-1618-1.html

[2] Bharata Matha & Ors. vs. R. Vijaya Renganathan; AIR 2010 SC 2685

[3] http://indianexpress.com/article/lifestyle/feelings/no-strings-attached-why-elderly-indians-are-getting-into-live-in-relationships/

[4] http://archive.indianexpress.com/news/livein-relationships-behind-falling-divorce-rates-study/851231/

In this blog post, Srishti Khindaria, a student of Amity Law School, Delhi, Guru Gobind Singh Indraprastha University, analyses the provisions of Section 390 of the Indian Penal Code, 1860 and tries to establish a difference between the terms robbery, theft, and extortion which are commonly used interchangeably in everyday parlance. There is also a mention of the difference between robbery and dacoity.

The terms robbery, theft, and even extortion seem very similar and even used interchangeably at times in everyday usage. However, in the legal sense and within the ambit on the Indian Penal Code, 1860 these terms are distinct and have been very clearly defined as distinct crimes. The demarcation between these is given under section 390 of the Penal Code. But before analyzing that section, first, theft and extortion need to be understood separately.

What is Theft?

Theft has been defined under Section 378 of the Indian Penal Code, 1860.

It says that whoever intends to take dishonestly any moveable property out of the possession of any person without that person’s consent and moves it, he is said to have committed a theft.

For example: If A, is employed by Z and entrusted by Z with the care of Z’s cash, dishonestly runs away with that cash, without Z’s consent. A has committed theft.

In the case of Pyare Lal Bhargava v. State Of Rajasthan[1], a government employee took a file from the government office and presented it to a certain Mr. A and brought it back in two days later. It was held that permanently taking away the property was not necessarily required, even temporary movement with a dishonest or malicious intention is enough and will amount to theft.

The essentials of theft are:

• There must be a dishonest intention to take the property. If the intention of the offender is not to cause a wrongful loss/gain then even if the property is taken away without consent the act would not amount to theft.
• The property must be moveable, i.e., it must not be attached to the earth.[2] As soon as the property is severed from earth, it is capable of becoming the subject of theft.  For example: A cuts down a tree on Z’s ground, with the intention of dis­honestly taking the tree out of Z’s possession without Z’s con­sent. Here, as soon as A has severed the tree to such taking, he has committed theft.[3]
• The property must be taken out of the possession of another. A thing which is in possession of nobody cannot be the subject of theft.
• The property must be taken away without consent.
• Physical movement of the property is a must; however it is not necessary that it is moved directly. For example: If the accused cuts the string that ties the necklace owing to which the necklace falls, it would be held that he has caused sufficient movement of the property as required for it to amount to theft.

Punishment for Theft

The punishment for theft is given under Section 379 of the Indian Penal Code, 1860. By this section, any person who commits theft shall be punished with imprisonment of up to three 3 years or with fine or with both.

What is Extortion?

Extortion has been defined under Section 383 of the Indian Penal Code, 1860.

According to the code, any person who intentionally puts another in fear of injury and thereby dishonestly induces him/her to deliver any property or any valuable security or anything signed or sealed which can be converted into a valuable security is said to have committed extortion.

For example: If A threatens B that he will keep B’s child in wrongful confinement and kill him unless B delivers to him Rupees 1 lakh. A has committed extortion.

The essentials of extortion are:

1. The person committing the offense intentionally puts the victim in fear of injury. The fear of injury must be to such an extent that it is capable of unsettling the mind of the victim and making him give his property, as in the above-stated example.

2. The person committing the offense must dishonestly induce the victim so to put in fear to part with his (the victim’s) property.

In R. S. Nayak v. A. R. Antulay[4], A.R. Antulay, a chief minister, promised the sugar cooperatives whose cases were pending before the government for consideration that their cases would be looked into if they donated money. It was held that fear of injury or threat must be used for extortion, and since in this case, there was no fear of injury or threat it would not amount to extortion.

Punishment for Extortion

Punishment for extortion, which is similar to that of theft, has been given under Section 384 of The Indian Penal Code, 1860. By this section any person who commits extortion shall be punished with imprisonment of up to three 3 years or with fine or with both.

Robbery

Robbery is defined by the Black’s Law Dictionary as the felonious act of taking the personal property in the possession of another from his person or immediate presence against his will accomplished using force and fear, with an intention of permanently depriving the true owner of the thing in question.

According to Section 390 of the Indian Penal Code, 1860 “in all robbery there is either theft or extortion.”

When Theft is Robbery

Theft is robbery when in order to commit theft or while committing theft, or while carrying away or attempting to carry away property obtained by theft, the offender voluntarily causes or attempts to cause to any person death, subject him/her to wrongful restraint or cause hurt or induce fear of instant death, instant wrongful restraint or causing instant hurt.

Thus, theft becomes robbery when the following conditions are satisfied;

• When the offender voluntarily causes or attempts to cause:
  • Death, wrongful restraint or hurt or
  • Fear of instant death, instant wrongful restraint or instant hurt.
• And the above act(s) is done
  • While committing the theft
  •  To commit the theft
  • While carrying away the property obtained by theft or
  • While attempting to carry away property obtained by theft.

For example: A holds Z down and fraudulently takes Z’s money and jewels from Z’s clothes without Z’s consent. Here A has committed theft, and by committing of that theft, has voluntarily caused wrongful restraint to Z. A has therefore committed rob­bery.[5]

When Extortion is Robbery

Extortion becomes robbery when the offender at the time of committing the offence of extortion is in the presence of the person put in fear and commits extortion by putting that person in fear of instant death, instant wrongful restraint or instant hurt to that person or some other person and by doing so induces the person, so put in fear to then and there deliver the thing that has been extorted.

Thus, extortion becomes robbery when the following conditions are satisfied;

1. When a person commits extortion by putting another in the fear of instant death, wrongful restraint or hurt
2. Then the offender induces the person under such fear to deliver the property at that very instant; then and there.
3. The offender is in the near presence of such a person put in fear at the time of extortion.

For Example: A meets Z and Z’s child on the high road. A takes the child and threatens to fling it down a precipice unless Z delivers his purse. Z, in consequence, delivers his purse. Here A has extorted the purse from Z, by causing Z to be in fear of instant hurt to the child who is present. A has therefore robbed Z. [6]

However, if A obtains property from Z by saying, “Your child is in the hands of my gang, and will be put to death unless you send us ten thousand rupees.” This is extortion, and punishable as such; but it would not be robbery unless Z is put in fear of the instant death of his child.

Punishment for Robbery

The punishment for robbery is given under Section 392 of the Indian Penal Code, 1860. By this section, any person who commits robbery shall be punished with rigorous imprisonment which may be extended up to ten years and shall also be liable to pay a fine.

If the robbery is committed on the highway between sunset and sunrise, then the period of imprisonment may be extended up to 14 years.

Further, under Section 393 the punishment for an attempt to commit robbery is enshrined. According to this section, anyone who attempts to commit robbery shall be punished with rigorous imprisonment for up to seven years and also be liable for a fine.

When Robbery becomes Dacoity

When five or more people commit or attempt to commit a robbery, it is known as dacoity. It is an aggravated form of robbery. The main difference between robbery and dacoity is the number of participants in the crime. Dacoity is defined under Section 391 of the Indian Penal Code, 1860.

Every member of the gang is punished in dacoity whether or not he takes the active part in it. And the punishment for dacoity is given under Section 395 according to which the offenders will be punished with rigorous imprisonment of up to 10 years and a fine.

Footnotes:

[1] 1963 AIR 1094

[2] Explanation 1 of Section 378, Indian Penal Code, 1860

[3] Illustration (a) to Section 378, Indian Penal Code, 1860

[4] 1984 AIR 684

[5] Illustration (a) to Section 390, Indian Penal Code, 1860

[6] Illustration (c) to Section 390, Indian Penal Code, 1860

 This blog post written by Saanvi Singla, a student of University Institute of Legal Studies, Panjab University provides a basic understanding of Ponzi schemes and the legal infrastructure that prevents such schemes.

What is a Ponzi Scheme?

A Ponzi scheme is a type of scam designed to cheat the investors out of their hard-earned money. It has been named after Charles Ponzi, who created such a scheme at the start of the 20th century, though the concept was quite well-known before it was called a Ponzi scheme.

The scheme is constructed to convince the public to invest their money in a fraudulent scheme, investment or plan. Once the person who is committing the scam feels that enough money has been collected, he disappears—taking with him all the money.

 Five Key Elements of a Ponzi Scheme

There five key elements which have been found in almost all Ponzi Schemes include:

• The Benefit: A promise is made that the investment will give an above normal rate of return. The rate of return is usually specified. The promised rate of return has to be high enough so that the investor is interested enough but it should not be so high that the investor grows skeptic.
• The Setup: A comparably plausible explanation is given as to how the investment can achieve such abnormal rates of return. One of the most often used explanations is that the investor is exceptionally skilled, and he/she has some inside information. Another possible explanation can be that the organizer has access to an investment opportunity which is not available to the general public.
• Initial Credibility: The person running the scheme needs to earn the trust of the investor so that the investor trusts him enough to invest more in his scheme.
• Initial Investors Paid Off: For the first few months, the investor has to be paid the promised rate of return to make the scheme believable.
• Communicated Successes: They have to communicate about their success. Other investors need to hear about the payoffs so that their numbers grow at an exponential rate. At the very least, more money than what is being paid back to the investors during the initial months needs to come into the account.

How Do Ponzi Schemes Work?

Ponzi Schemes are quite basic and simple in nature but can prove to be extraordinarily powerful. The steps which are followed are as follows:

1. Convince people to place their money into the investment.
2. Until a specified time return the money to the investors with the promised interest rate or return.
3. Showing the phenomenal success of the investment, convince more investors to invest their money into the system for higher returns. Typically a vast majority of the earlier investors will return. Why won’t they? The system has been giving them excellent returns.
4. Keep on repeating steps 1 through 3 for a couple of times. During step 2 at one of the cycles, break the pattern. Instead of returning the invested money to the investors and paying the promised return, escape with the said money and start a new life.

How Big Can Ponzi Schemes Get?

Ponzi schemes can turn into billions of dollars scam. In 2008 during the global meltdown, we saw the fall of agreeably the largest Ponzi scheme in history – Bernard L. Madoff Investment Securities LLC. The scheme had all the necessary ingredients of a classic Ponzi scheme, including the founder, Bernard L. Madoff, had a great deal of credibility in the market as he had been in the investment business since 1960. Madoff was also the chairperson of the board of directors of NASDAQ, a major American stock exchange, for some time. The estimated loss from this Ponzi scheme is believed to be in between 34 and 50 billion U.S. dollars.[1]

Warning Signs of a Ponzi Scheme

There are various signs through which a Ponzi scheme can be identified. Some of them include:

• The rate of return is suspiciously high (maybe as high as 10% per month or 120% per year) – but this is not always the case. It can also be the usual rate of return.
• The person who tries to recruit you into the scheme usually is someone you think is trustworthy, like a neighbor or friend or sometimes even a relative.[2]
• Investment values tend to go up and down all the time, especially those who offer potentially high returns. Be suspicious of an investment that continues to give regular, positive returns despite the overall market conditions.
• Ponzi schemes are not registered with any government regulatory body. Registration is very important because it provides investors with all the important information about the company’s management, products, services, and finances.
• Avoid investing in plans you do not understand, or for which you cannot get complete information.
• Do not accept any excuses as to why you cannot review information about the investment in writing.
• Be suspicious if you do not receive any payment or have difficulty in cashing out your investment. Keep in mind that Ponzi scheme promoters would encourage participants to “roll over” the investments and sometimes promise to return offering at a rate which is even higher than the promised return rate.[3]

Laws related to Ponzi Scheme

The words ‘Ponzi Scheme’ have clearly not been mentioned in any act or guideline in India. Mostly it has been referenced to indirectly. The Reserve Bank of India (RBI) does not mention or own up about the problem of a Ponzi scheme. According to them, it does not come under their purview. Due to this reason, they have not issued any guidelines for the same.

Securities Laws (Amendment) Act, 2014 is the only legislation which has been made to deal with the problem of Ponzi schemes. This act can into the picture due to the Saradha scam. It is legislation which provides the Securities and Exchange Board of India (SEBI) with the power to pursue fraudulent investment schemes with a special emphasis on Ponzi schemes.

How to Save Yourself from a Ponzi Scheme

There are many ways through which a person can save himself/herself from a Ponzi scheme. Some of the ways have been mentioned below.

1. Use Your Common Sense. If it sounds too good to be true, it probably is. An investment opportunity can easily be made to look like a sure thing, but investors should always think logically rather than emotionally. Recognized and true companies in most investments schemes will not offer an assured return. Guarantees of high percentages like 15 to 20 percent annually are impractical because markets fluctuate. If an investment manager suggests you’ll get these types of returns, then you should be skeptical.
2. Choose Wisely. Choose your investment manager with the same caution with which you chooses your attorney or accountant. Experience and skill should be the main consideration points rather than personality or charisma. Most Ponzi schemes are organized by excellent sales persons with a remarkable personal resume but, apparently, with a lack of professional ethics. Look into the professional accreditation and whether any complaint has been filed against the firm or individuals involved.
3. Ask Questions. Don’t be afraid or shy to ask your investment manager tough or tricky questions, such as “What exactly am I investing in?” or “Who is your auditor?” Genuine investment firms use very well-established and reputed auditing firms. Dishonest firms deliberately choose small, mysterious firms that can easily be influenced.
4. Demand Detailed Reports. Most executioners of Ponzi schemes send periodic reports to investors with very limited amount information. This is a major red flag. Honest and true investment firms provide very detailed professionally prepared reports on a very regular basis which can range from a monthly or a quarterly or an annual report or all three. Reports should include clear details of all the changes that have taken place regarding your assets—whether you’ve earned or lost money—and most of them will tell you where your assets have been invested. Ponzi schemes thrive because their victims trust them enough to ignore the lack of proper documentation.
5. Be Patient. The promise of significant wealth gain via a successful investment is very appealing, but investing should be an intellectual process, rather than an emotional one. Be a little skeptical. Think more about what all can go wrong than what all can go right. Deal with established and reputed investment managers only. Ask tough questions about where your money is going to be invested. Demand regular and detailed reporting. Before making any significant investment, consult your accountant or attorney or a specialist in that particular field and take a decision wisely.[4]

Conclusion

In this article, we understand what a Ponzi scheme is and how dangerous it can prove to be for the common man. We identify all the laws that are present in our country to extinguish these schemes. After getting a proper understanding of the topic, we can conclude that India needs to consider the problem of Ponzi schemes much more seriously and should make proper laws for the same. After the Saradha scam, the government should have learned their lesson and should now move towards the goal of preventing such occurrences in the future.

 [divider]

Footnotes:

[1] http://economics.about.com/od/financialmarkets/f/ponzi_scheme.htm

[2] https://www.moneysmart.gov.au/scams/investment-scams/ponzi-schemes

[3] https://www.sec.gov/answers/ponzi.htm

[4] http://stonebridgebp.com/library/fraud-forensics/protect-yourself-dont-be-a-victim-of-a-ponzi-scheme

In this blog post, Disha Pareek, a student of Rajiv Gandhi National University of Law, Punjab, writes about the powers of the Central Board of Film Certification (CBFC). The post discusses the related Act and the role of Indian judiciary and the future of CBFC.

It is nothing but an irony that the Central Board of Film Certification (CBFC), which is a statutory body (one created by an Act of Parliament or state Legislature) under Ministry of Information and Broadcasting, a body that certifies a film, is known by the name of Censor Board in general parlance. Now, there is a great difference between ‘certification’ and ‘censorship’.

The former is a process by which a film’s content is classified with reference to certain parameters, such as the age of the viewer, its sexual orientation, and violent content, moral or ethical implications and so on. It is more like an additional piece of information informing an audience to the content of a film in advance. However, even after the change in its name from Central Board of Film Censorship to Certification in the year 1986, it still indulges in censorship in the classical sense.

Tracing the origin

All movies are regulated so that they are suited for the purpose of public exhibition under the provisions of the Cinematograph Act, 1952. When the first Indian film (Raja Harishchandra) was produced in 1913, the Indian Cinematograph Act had not been enacted. It came into force only in the year 1920 and was placed under police chiefs in 5 cities. But, later in the year 1952, a board was reconstituted and got united.[1]  Cinematograph (Certification) Rules were revised in the year 1983 and since then, the Central Board of Film Censors came to be known as the Central Board of Film Certification or CBFC.[2]

The Cinematograph Act, 1952

• The board, known as CBFC, is constituted by the Central Government in accordance with Section 3 of the said Act, consisting of a chairman and 10-25 other members as appointed by the Central Government.
• Under section 5-A, certification is done for films for which an application is given for the examination of the movie for its exhibition.[3]

These 4 certificates are given to the movies (any one)-

Powers of CBFC: A reality check (use or abuse)

The fight against the arbitrariness of CBFC can be traced back to year 1970, in the case of K. A. Abbas v. Union of India[5], a case concerning many unreasonable cuts in a movie “A Tale of 4 Cities” depicting the reality of India and difference in lives of rich and the poor. The producer approached the Supreme Court but could not succeed in his case.

The recent controversy of the much talked-about movie Udta Punjab, which deals with drug menace and its impact in Punjab, is somewhat similar, in the sense that Central Board of Film Certification (CBFC) asked for 94 unreasonable cuts in the movie. The movie got impetus regarding the constant fight between filmmakers and the board and became popular in the public domain. It’s been more than 40 years since the controversy of the movie Tale of 4 Cities erupted, but the position in India is still the same.

The question arises; is there Fundamental Right of Freedom of Speech and Expression available in a censored democracy like ours?

Although, Motion Pictures cannot be considered as medium of Free Speech and Expression but many court decisions shows that it has somewhat become so. Just because there is a threat of law and order problem attached with a movie, it cannot be banned or censored. India, being a country promoting unity in diversity, is moving ahead and leaving behind the orthodoxy and stereotypical thoughts. It must be the duty of law makers or the government to tackle such problems because censoring something would not help.

Pahlaj Nihalani: The man of scissors

Mr. Nihalani has been the butt of controversies since the day he stepped in as the Chief of the CBFC. He has even been compared with a grandmother and the dictator of North Korea. Even the appointment of Nihalani to this post is said to be through political lobbying.

• Then-CBFC chief Leela Sampson along with 9 other members resigned after there was interference, coercion and corruption involved. Mr Nihalani was appointed thereafter.
• After a few months of his appointment, the board was left red-faced when it came out with a list of banned words including the word “Bombay” and was mocked by social media.[6]
• Nihalani also targeted and criticised Sharmila Tagore for clearing the movie Omkara which was released in 2006.
• Gone are the days, when intimate scenes were considered obscene. But even after so many years, nothing stopped Mr Nihalani from trimming down a kissing scene from a James Bond movie, as a part of ‘Sanskar’.
• Movies are the most stirring medium for depicting a social cause, and it can leave a strong message for society to ponder upon. For instance, the issue of reservation, women empowerment, corruption and even rights of LGBT.

But, to everybody’s dismay, Raj Amit Kumar’s movie on LGBT “Unfreedom” was stopped from releasing.

Role of judiciary

Indian Judiciary has been playing a crucial role in this regard.

• The Supreme Court in Rangarajan v. P. Jagjivan Ram[7] overruled the decision of Madras High Court revoking a U certificate issued to a Tamil film called ‘Ore Oru Gramathile’
• A panel had been constituted under the chairmanship of judicial expert Mukul Mudgal, in February 2013 to review the functioning of the CBFC (Censor Board of Film Certification). Leela Samson (then CBFC Chief), Sharmila Tagore and Javed Akhtar were some of the important members of that committee.[8]
• A big win to not only the filmmakers of Udta Punjab, but the entire film industry was in June 2016 when the Bombay High Court (now referred as Mumbai HC) gave a prominent judgement and set precedents for the Indian Judiciary to follow. As against nearly 100 cuts prescribed by CBFC, it cleared ‘Udta Punjab’ with just one cut and set a precedent. The court opined that “CBFC is a body to certify films and not censor it.”
• The Honourable Bombay High Court has been fighting for this cause for a long time. Also in the case of release of the movie “Deshdrohi” by Kamaal Khan, which depicted the violence in state of Maharashtra; the court cleared the screening of the movie.[9]
• The Supreme Court of India, which is in a pivotal position, also did not meddle in the decisions of the High Court of Bombay (Mumbai) both at the time of screening of Deshdrohi[10] and Udta Punjab.
• Since there is no separate censorship for television, a case came to the Supreme Court against the judgment passed by Mumbai High Court in the case of Ramesh v. Union of India[11] petition demanding restrain for the screening of serial ‘Tamas’ as violative of Section 5 B of the 1952 Act.
• It is important to note that in the case of Union of India v K.M. Shankarappa, the Supreme Court disapproved of the Government retaining powers by enacting Section 6(1) of the 1952 Act and declared it ultra vires to the Constitution.

Conclusion

The future prospects would firstly include the government’s decision of setting up of ‘revamp committee’ headed by Shyam Benegal, an acclaimed filmmaker to look at future prospectives for the CBFC and make recommendations for proper overhauling of the system.

Apart from it, censoring movies in the name of maintaining public peace, respecting emotions of people and similar reasons are not valid, the viewers should have the right to watch the movie and form opinion on a subjective basis. The head of any organisation can bring many changes in it, so it is crucial that the chief of the CBFC should not be appointed on a political motivation and lobbying.

Freedom to Speech and Expression should also be seen in the light of an expansive interpretation and not in a narrow sense. They should also be provided with independence and autonomy so that they do not become puppets in the hands of government. The permanent solution would be an overhaul of the present archaic laws of 1952, which do not suit the present.  An emphasis can be put to the decisions of High Courts and the Supreme Court in this regard.

Footnotes:

[1] Preetha Kadhir, Film Censorship: How does it work, The Hindu, February 4, 2013.

[2] Someshwar Bhownik, CBFC members have little knowledge of History of Cinema, Deccan Herald, 7 July, 2016

[3] Section 5-A of Cinematograph Act, 1952

[4] Available at “cbfcindia.gov.in/html/uniquepage.aspx?unique_page_id=6”

[5] 1971 AIR 481

[6] Who muted Bombay, Opindia, February 2, 2015, available at,  “http://www.opindia.com/2015/02/who-muted-bombay-leela-samson-or-pahlaj-nihalani/”

[7] S. Rangarajan v. P. Jagjivan Ram, (1989) 2 S.C.C. 574, 592

[8] Available at “www.thehindu.com/news/national/mudgal-panel-submits-report-on-governing-cinema/article5218032.ece”

[9] Fears of MNS backlash prompted ‘Deshdrohi’ ban, EXPRESSINDIA.COM, Nov. 13, 2008, http://www.expressindia.com/latest-news/Fears-of-MNS-backlash-prompted-Deshdrohi-ban/385263/

[10] SC rejects Maharashtra plea, clears Deshdrohi, THE INDIAN EXPRESS, Jan. 24, 2009, available at http://www.indianexpress.com/news/sc-rejects-maharashtra-plea-clears-deshdrohi/414640/.

[11] 1988 AIR 775

In this blog post, Sunidhi, a student of the Rajiv Gandhi National University of Law, Patiala writes about the trademark class that applies to blogs, apps, and internet services. The blog post explains how the trademark can be registered with the Trademark Registrar.

Trademark means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include the shape of goods, their packaging, and the combination of colors.[1] In simple words, trademark means a mark, can be a symbol, logo, sign, word, graphic, design or a combination of these to distinguish a producer and his/her goods and services from that of another producer.

A Trademark assures the consumer of the authenticity and quality of the goods and services of a particular producer having a particular trademark. It protects the producer from the unauthorized use of its brand name by others. The trademarks can be renewed after expiry for a lifetime, but copyrights and patents cannot be renewed for a lifetime.

Trademark classification

The Schedule 4 to The Trade Marks Rules, 2001 classifies goods as well as services in 45 classes. The goods and services have also been classified into different classes. Class 1 to Class 34 deals with trademarks related to goods and Class 35 to Class 45 deals with service related trademarks. One trademark may be (in some cases it is necessary) classified into several other sub-classes.

The fee is correlated with each category, whether for initial application or renewal. A separate registration fee has to be paid for each class of goods or services to be registered. For example, if you wish to register a rope and yarn you have to pay two fees, levied for class 22 and class 23, respectively. You have to ensure that you choose right class for registration otherwise you will again have to start the registration process from beginning.

Class 41

The trademark class that applies to a blog, Android application or internet service for entertainment and education purposes is Class 41. Class 41 deals with education; providing of training; entertainment; sporting and cultural activities. This class contains mainly services rendered by persons or institutions in the development of the mental faculties of persons or animals, as well as services intended to entertain or to engage the attention of others.[2] Examples of items included in Class 41 are AKRON Racers (conducting athletic competitions), CEO Perspectives (executive workshops), MERCK Academy (educational services), etc.

This class particularly includes:

• The services including all kinds of education of humans or training of animals;
• The services meant for the entertainment, fun, amusement, relaxation or leisure of humans;
• The display of visual art or literary work to the audience for educational purposes or cultural purposes.

Blogs, apps or internet services fall into this category as they are either for educational or entertainment purposes. The ambit of this class is not restricted to institutions alone, but it also includes individuals. The use of the above-stated services provided by an individual or an institution will justify classification under this head because it will either develop the mental faculties of the user or will entertain the user.

Other services included in Class 41 are academics (education), movie theatre presentations, electronic desktop publishing, educational information, arranging and conducting of conferences, coaching, club services (educational or entertainment), providing online electronic publications/ music/videos, not downloadable, physical education, physical training, recording studio services, calligraphy services, news reporters services, publication of texts, other than publicity texts, publication of books, publication of electronic books and journals online, writing of texts other than publicity texts, etc.

Specimens for Class 41

The specimen of the service must indicate the use of a trademark in such a way that would be recognized by the customer as distinguishing the applicant’s services and express its source. When the mark is used in advertising services, the specimen must indicate a connection between the mark and the service. A specimen without any referring an association between the two is not valid. When the applicant is offering a service, he has no tangible product to attach the mark. Therefore, scanned copies of advertising and marketing materials (such as newspaper, etc.), letterheads and business cards indicating the trademark, a screen shot of the full web page if the mark is being prominently displayed on the homepage (for internet services), etc. will serve the purpose of a valid specimen.

Registration

The applicant, before applying for registration should check for the esistence of identical or similar trademarks. The documents required to be attached with trademark registration application are trademark logo, name and address of the applicant, trademark class, date of use of the trademark (if it used before registration), description of good or service to be trademarked and a power of attorney on Rs 100/- stamp paper. After collecting all required documents, an application for registration is drafted by the agent or attorney hired.

• Once it is found that no similar or identical trademarks are registered, the applicant can file the trademark registration application with the Registrar (in a prescribed manner).
• Within one or two days of registration, a trademark application allotment number is given to track the registration.
• Then the trademark is verified with the Vienna Codification.
• After verification with Vienna code, the trademark for which registration is sought is sent to a particular Trademark Officer, who will review the trademark application. He has the power to allow or object the trademark application.
• If the trademark has been objected by the officer, then the applicant has the right to appear before him and address his objection. If the applicant is not satisfied with his decision, then he can appeal to Intellectual Property Appellate Board.
• If the application is allowed by the officer, then it is published in the Trademark Journal, and if no one objects within 90 days of publication, then it will be registered within a few months.
• In case anyone objects the publication then he/she will be heard by the Trademark Hearing Officer. In the case of dissatisfaction, Intellectual Property Appellate Board can be approached.

Once all the objections are resolved, Trademark Certificate is issued, and the trademark is registered, granting the owner the exclusive use of the mark. Now, ® can be placed next to the trademark logo.

Footnotes:

[1] Section 2(zb), The Trademarks Act, 1999.

[2] Available at http://www.nolo.com/legal-encyclopedia/trademark-class-41-education-entertainment-services.html, last accessed on July 14, 2016, at 6:22 p.m.

In this blog post, Saanvi Singla, , a student of University Institute of Legal Studies, Panjab University gives a brief overview of Non-Banking Financial Companies (NBFCs), a fast emerging form of financial company, and she also lays down the types of NBFCs which are operating in India.

What is an NBFC?

A Non-Banking Financial Company (NBFC) is a company certified under the Companies Act, 1956 which is engaged in the various businesses such as loans and advances, acquisition of shares/stocks/bonds/debentures/securities issued by Government of India or any local authority or any other type of marketable security of the same nature, insurance business, leasing, chit fund business, hire or/and purchase, but it does not include any institution whose main business is that of agricultural activity, industrial activity, sale or purchase of any goods (other than securities) or providing any services and construction/purchase/sale of immovable property. A non-banking company which has the prime business of receiving deposits under any such scheme, arrangement in the lump sum form or installments by the way of contributions or in any such manner, is known as Non-Banking Financial Company[1].

Types of NBFCs

The NBFCs that are operating in India fall in one of the following broad categories.

1. Asset Finance Company (AFC)

An Asset Finance Company is a financial institution which deals in financing physical assets supporting productive/economic aspect of the field, such as automobiles, tractors, Generator sets, earth lathe machines, moving and material handling equipment, moving on own power and industrial machines used for general purpose. Principal business for this function is defined as the aggregate of financing real/physical assets supporting economic activity and income arising from that place is not less than 60% of its total assets and total income respectively.

2. Investment Companies

An Investment Company is a company that deals with acquisition of stocks, shares, debentures, bonds, debentures or securities as well as a company engaged in loans and advances business as an NBFC. It rules out an institution whose main business is of agricultural or industrial nature; or sale, purchase or construction of an immovable property[2].

3. Loan Company

Loan Company is a company which carries on its main business by providing finance in the form of loans or advances or otherwise for any activity that is different from its own. These types of companies are usually small partnerships which obtain funds in the form of deposits from the general public and give loans to individuals such as wholesale and retail traders, small-scale industries and people who are self-employed. These companies collect fixed deposits from the general public by offering high rates of interest and give loans to other people at a relatively higher rate.

4. Infrastructure Finance Company (IFC)

A company can be deemed as an Infrastructure Finance Company if it has net owned funds of at least Rs. 300 crore and has expanded 75% of its total assets in infrastructure loans. It has to have a credit rating of A or above and has a CRAR of 15%[3].

5. Infrastructure Debt Fund: Non-Banking Financial Company (IDF-NBFC)

A Debt Fund means an investment pool in which main holdings are fixed income investments. The Infrastructure Debt Funds are used to imbue funds into the infrastructure sector. The significance of these funds remains in the fact that the infrastructure funding is not only disparate but also severe in comparison to other types of funding because of its enormous requirements, lengthy gestation period and long term requirements. In India, an IDF can be set up in the form of a trust or a company. If the IDF is opened up as a trust, it will be a mutual fund and will be regulated by SEBI. Such funds will be called IDF-MF. If the IDF is opened up as a company, it would be considered as an NBFC and will be regulated by the RBI. They will be known as IDF-NBFC[4].

6. Non-Banking Financial Company-Factors (NBFC-Factors)

NBFC-Factor is a non-deposit taking institution that engages in the prime business of factoring. The financial assets in such a business should comprise of at least 50% of its total assets and its income derived from the factoring business which is not supposed to be less than 50% of its gross income.

7. Gold Loan NBFCs in India

Over the last few years, gold loan NBFCs have witnessed an increase in the Indian financial market, owing primarily to the recent period of increase in the price of gold and ensuing increase in the demand for gold loan by all sections of the society, especially the poor and the middle class to make both the ends meet. Though there are a lot of NBFCs offering gold loans in India nowadays, about 95% of the gold loan business is being handled by three main Kerala-based companies, viz, Muthoot Finance, Manapuram Finance, and Muthoot Fincorp. Expansion of gold loan NBFCs depends on various factors such as Asset Under Management (AUM), the number of branches, the number of customers, etc. The growth of gold loan NBFCs has occurred due to increase in the size of their balance sheet and their physical presence that necessitate increasing their reliance on public funds including bank finance and non-convertible debentures.

8. Residuary Non-Banking Companies (RNBCs)

Residuary Non-Banking Company is a type of NBFC which has the main business of receiving of deposits, under any scheme, arrangement or in any other style and not being an investment, Asset Financing, Loan Company. These companies are required to sustain investments as per the directions of RBI, in addition to liquid assets.

Difference between NBFC and Bank

NBFC lends and makes investments and hence their activities are similar to that of banks; however there are a few differences which have been given below:

• NBFC cannot accept demand deposits whereas banks can.
• NBFCs do not form any part of the payment and settlement system and do not have the power to issue cheques drawn on it whereas the banks are part of both the systems.
• Deposit insurance facility of Deposit Insurance and Credit Guarantee Corporation is not available to the depositors of any NBFC, unlike in case of a bank.[5]
• NBFC are not allowed to issue Demand Drafts like banks.
• NBFC cannot indulge primarily in agricultural or industrial activity.
• NBFC cannot be involved in the construction of an immovable property
• While banks are incorporated under Banking Companies Act, the NBFCs are incorporated under the Company Act, 1956.[6]

Laws applicable to NBFCs

RBI governs NBFCs in India. The main section that governs NBFCs under RBI Act is Section 45-I(a). A company incorporated under the Companies Act, 1956 and wants to start a business as a non-banking financial institution as defined in Section 45 I(a) of the RBI Act, 1934 should satisfy the following conditions:

1. That the company is supposed to be registered under Section 3 of the Companies Act, 1956
2. That the company should have a minimum Net Owned Fund of ₹ 2 Crore. (The minimum Net Owned Fund (NOF) required for specially designed NBFCs like CICs NBFC-Factors, NBFC-MFIs is  separately mentioned)

The Bank has issued detailed directions for the smooth functioning of the NBFCs, vide Non-Banking Financial (Deposit Accepting or Holding) Companies Prudential Norms (Reserve Bank) Directions, 2007, Non-Systemically Important Non-Banking Financial (Non-Deposit Accepting or Holding) Companies Prudential Norms (Reserve Bank) Directions, 2015 and Systemically Important Non-Banking Financial (Non-Deposit Accepting or Holding) Companies Prudential Norms (Reserve Bank) Directions, 2015. Applicability of regulations varies based on the acceptance of the deposits or systemic importance of the NBFC.

Conclusion

NBFCs have turned out to be fast emerging forms of financial companies. They have proved to be an important part of the Indian financial system. It is an assorted group of institutions (other than commercial and co-operative banks) performing commercial arbitration in various ways, such as accepting deposits hire purchase, leasing, making loans and advances, etc. They raise funds from the general public, directly or indirectly, and then lend it to the ultimate spender. They advance loans to small-scale industries, wholesale and retail traders and self-employed persons of a very diverse nature. Thus, they have extended and varied the range of products and services that are being offered by the financial sector. Gradually, they are being acknowledged as complementary to the banking sector due to their simplified procedures, customer-oriented services, adaptability, timeliness in meeting the credit needs of specified sectors, attractive rates of return on deposits, etc[7].

Footnotes:

[1] https://www.rbi.org.in/Scripts/FAQView.aspx?Id=92

[2] http://articles.economictimes.indiatimes.com/2011-01-27/news/28430787_1_equity-shares-framework-investment-companies

[3] http://www.gktoday.in/blog/types-of-non-banking-financial-companies-nfbc/

[4] http://www.gktoday.in/infrastructure-debt-fund-2/

[5] http://www.kcctutorials.com/difference-bank-nbfc/

[6] http://www.differencebetween.com/difference-between-nbfc-and-vs-bank/

[7]. http://www.archive.india.gov.in/business/business_financing/non_banking.php