In this blog post, Abhiraj thakur, a student of NALSAR University of Law, writes about the issues surrounding inter-country adoption. He throws light on the existing framework of international and local laws that regulate the practice and highlights the problems associated with it.

Adoption of a child has been the part of the human society for a long time. The presence of this practice lies in the fact that love and care are considered necessary in this world for any human or animal. For children whose parents have died or for some other reason cannot look after the child, it is considered beneficial for the child and for the society as a whole to give that child to some other willing people who can look after it and provide unconditional love and affection. With changing times, the practice of adoption has undergone a number of changes. In modern times, the practice of adoption has become much more complex. With every country having laws to regulate the practice, certain legal issues cropped up. Since the world has become small with the advent of technology and better modes of communication, inter-country adoptions has become a common phenomenon.

Put in simple words, inter-country adoption refers to the adoption of a child by a person belonging to a different country. Over the last two decades, the number of inter-country adoptions has almost tripled. The practice has gained a foothold in India as well. The practice is especially in vogue among film stars. Today, we see many film stars and other famous personalities adopting children from developing and under developed countries. With the presence of local as well as international laws dealing with adoption, the legal scenario of inter-country adoption becomes an extremely pertinent issue.

International Scenario

Legal Framework

The Hague Convention

The increasing trend of inter-country adoptions was for, the first time, observed by the United Nations in 1980s and efforts began to develop laws to regulate the practice. In 1993, a conference on private international law took place in Hague, Netherlands. Subsequently, the Hague Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption was adopted, which is popularly referred to as the Hague Convention of 1993. It came into force in 1995.

UN Convention on Rights of Child

Adopted in 1989, the convention, among other things, talks about Inter-country adoption. Article 21(c) of the convention creates an obligation on the member states to look for possibilities of enacting certain laws and safeguards with respect to inter-country adoption. Also Article 21(b) of the convention talks about adopting proper measures to ensure safe inter-country adoption.

Major Issues with International Laws

The international framework is often considered far more stringent as compared to several local laws of adoption. Some uniform requirements are laid down, which is mandatory for member countries to adopt. Some problematic issues are:

State of Residence

The prospective parents need to confirm their state of residence. The process of confirmation varies from country to country which leads to the possibility of arbitrariness in the procedure involved. For example, in the United States, for an adopted to get visa, he/she needs to meet the eligibility criteria of Naturalization and Immigration service of the state.

Time taking Process

As per a UN report, international adoption usually takes more than 15 months to finalize. The state agencies, while working to validate the status of the child as ‘adoptable’, often suffer from unwarranted laxity in the process.

Indian Scenario

Internal adoptions in India are governed by the Hindu Adoptions and Maintenance Act of 1956 and the guardianship and Wards Act of 1890. With respect to legislations governing inter-country adoptions, there is no specific statute as of now in the country even though it is a well known practice and a long line of jurisprudence flow dealing with the issue. India being signatory to both the conventions are obligated to make certain safeguards for inter-country adoption in the country.

Judicial Approach to Inter-country Adoption

In the decade of 1980s, India witnessed an unprecedented rise in cases of inter-country adoption. The lack of any specific statute laying down guidelines or procedures dealing with inter-country adoption made it an area of much contention between the parties involved. The judiciary has played a commendable role in providing safeguards in inter-country adoption.

The Supreme Court, for the first time, elaborately dealt with inter-country adoption in the case of Laxmikant Pandey v Union of India.[1] The case was the result of a petition filed by a Delhi-based lawyer Laxmikant Pandey, who submitted that various agencies and social organizations involved in rescuing children and giving them in adoption to foreign parents often indulge in unscrupulous malpractices which is contrary to the very objective of adoption i.e., betterment of children. The Supreme Court, taking cognizance of the petition, raised its concern on non-availability of any comprehensive law dealing with inter-country adoption in the country.

Guidelines laid down:

Sponsorship of Adoption

For limiting the role of individuals in providing children to be adopted, the court laid down that every application by a foreigner for the adoption of an Indian child needs to be sponsored by child welfare agency that is recognised and licensed by the government of India. Many cases of child trafficking are reported in India every year where individuals sell of children to foreign entities. An efficient implementation of this guideline would ensure that no individual is able to sell a child out to a foreigner.

Application to juvenile court

Further, the most striking guideline was that no application for inter-country adoption of a child can directly be entertained by agencies involved in adoption. The prospective parents need to file an application in the juvenile court of valid jurisdiction and for the adoption, the application further needs to be validated by the court.

Age of the adopted Child

Upholding the principle of the betterment of the child, the court further made a recommendatory cap on the age of the children to be given in adoption. The considered it preferable that the child being given for inter-country adoption is below 3 years of age. Keeping in mind the change of environment and social settings that a child might encounter in a new country, it becomes easier for the child to adapt if adoption is done in early ages of upbringing.

Consonance with the local laws

Supreme Court tried to deal with the problem of non-availability of the specific statute by extending the provision of local laws to inter-country adoption. The Guardianship and the Wards Act of 1890 was extended to cover relevant procedures with regards to inter-country adoption. Also an initiative from legislature in this regard was called from the legislature.

Another case is of Re Jay Kevin Salerno[2] where the Bombay High Court said that the international blend of laws that cover inter-country adoption needs to be interpreted as harmoniously as possible so as to ensure that substantive goals of adoption are realised.

Present Challenges in Inter-country adoption

Legal Challenges

Trafficking and Abuse

As per a UN report, about 5 million children are sold off every year to be used as slaves in different parts of the world.[3] A line of conventions, though criminalize trafficking and provide stringent counter measures, but the practice has still not been eradicated altogether. During the 2004 tsunami, there were reports of large scale selling of abandoned children.[4]

Institutions to deal with the issue

As of today, the issue of inter-country adoption is covered under the wide arena of child rights and so, international agencies like the UNICEF[5] are not able to devote enough attention to the issue. The Hague convention recommended of the setting up an organization to exclusively deal with inter-country adoption but the plan forever remained on paper. For a country like India, we can learn from various countries of the world which have efficiently set up institutions for this purpose. Lithuania, in 1998, set up the Public Adoptions Authority (PAA)[6] that looks after all the adoption-related issues in the country including inter-country adoption.

Social and Ethical Challenges

Conflict with Religion

A problem with effective legal framework for inter-country adoption is that the practice of adoption is a contentious issue among many religions. In Confucian law, for instance until recently, adopted children had no rights to inherit property and the practice of adoption was severely restricted in Japan and South Korea. Under Sharia law, adoption is considered as violation of the Quran. Verse fifth of the thirty-third Surah in Quran states that adopted children cannot be named after the adoptive father. This verse is interpreted as prohibition of adoption by God himself.

A problem with effective legal framework for inter-country adoption is that the practice of adoption is a contentious issue among many religions. In Confucian law, for instance until recently, adopted children had no rights to inherit property and the practice of adoption was severely restricted in Japan and South Korea. Under Sharia law, adoption is considered as violation of the Quran. Verse fifth of the thirty-third Surah in Quran states that adopted children cannot be named after the adoptive father. This verse is interpreted as prohibition of adoption by God himself.

Interracial Adoptions

Even in the era of globalization, race relations form an important area of dispute when it comes to adoption. Often, the question is raised whether the trans-racial adoption of children from a black community by different Caucasian and Anglo-Saxon races is in the best interests of children. The countries like New Zealand and Australia have historically raised concerns regarding entry of other races in their country.[7]

[1] 1984 AIR 469, 1984 SCR (2) 795

[2] AIR 1988 Bom 139

[3] United National Bureau of Child rights report, 2012 Pg 74-75.

[4] United Nations 2nd periodic report of state parties, The Indian Ocean, 2004.

[5] United National Children’s Emergency Fund

[6] United Nations 1st periodic report on State parties, Lithuania, 1992.

[7] Department of Economic and Social Affairs, United Nations report 2006.

In this blog post, Abhiraj Thakur, a student of NALSAR University of Law, Hyderabad highlights the major differences in the procedure of plea bargaining in India in comparison to that in USA. He also explains how the Indian model of plea bargaining, though a derivative of the US model, has evolved over the course of time to avoid the shortcomings that the US model suffers from.

Plea bargaining refers to the concessions that a defendant receives when he pleads guilty to the crimes he has been charged with. It’s a voluntary transaction that must take place with the consent of both the parties concerned. Broadly, there are two kinds of plea bargaining, charge bargaining and sentence bargaining. In charge bargaining, the defendant pleads guilty to a less serious offence or to one of many charges, in exchange for the dropping of the other charges. Sentence bargaining, which is the kind that is followed in India, is the form wherein the accused pleads guilty in exchange for a concession on the sentence.[1]

While plea bargaining has been the subject matter of a lot of discussion in various Indian courts since the 1970s itself, it was formally incorporated into the Code of Criminal Procedure (CrPC) in 2005 as Chapter XXIX through the Criminal Law (Amendment) Act, 2005. Drawing on the recommendations of the Malimath Committee Report, while it is premised on the American model, it is significantly different.

Plea Bargaining Under CRPC

These recommendations were incorporated in the CrPC through the Criminal Law (Amendment) Act 2005. Sections 265A to 265L under chapter XXI now deal with plea bargaining which is significantly different from the scheme followed by American Law. As per the CrPC, the onus to invoke the provisions of plea bargaining is on the accused.[2] Only those accused of offences whose punishment is less than seven years imprisonment and/or fine, and which do not fall under the category of socio-economic offences or crimes against women and children can apply under the given provision.[3] Further, only first time offenders can avail this provision.[4] The procedure is fairly straightforward. Once the application is made, it is submitted to the judge along with an affidavit[5] who will examine the accused in camera to ascertain the voluntariness of the application.[6] Once the judge is satisfied with the voluntariness of the accused’s plea, he gives the accused, the public prosecutor and the victim (and the Investigating officer if the case was made through a police report) time to come to a mutually satisfactory resolution.[7] Guidelines are given for arriving at a mutually satisfactory conclusion, which must be presented before the court. The sentence may be reduced to half or to a fourth of the sentence that had been provided for as per the statute.[8] The judge will then serve the reduced sentence upon the accused, pronouncing his judgement in open court.[9] The accused may also have to give some amount as compensation or cover the victim’s legal expenses.[10] The accuser’s statements will not be admissible anywhere else[11] and there is no provision for an appeal except by special leave petition under article 136 and by writ petitions under article 226 and 226 of the constitution.[12]

The provision as contemplated by the CrPC are significantly at odds with the model that was proposed by the Law Commission, which had suggested the constitution of a “competent authority” who would act as a plea judge for offences that were punishable with imprisonment for seven years or less. In case of other offences, two retired judges of the High Court who would be appointed by the Chief Justice of the High Court in consultation with two of his senior most colleagues, are to decide on merits whether such plea should be allowed for that particular offence. Such a scheme does not leave any scope for any wrongdoings or underhand dealings and provides for greater judicial discretion. The prosecutor and the victim would be involved only to the extent of putting forth their version of the story in front of the requisite authority. Hence, this proposal was not based on the traditional understanding of plea bargaining but only sought to formally acknowledge the practice of showing judicial leniency to those who pleaded guilty.[13]

American Model Vs Indian Model

Plea Bargaining was upheld as constitutional in United States in the case of Brady v. United States.[14] Plea bargaining is heavily entrenched in the American criminal administration. There are three kinds of pleadings that are accepted by the US courts: the accused can plead guilty, not guilty or nolo contendere. Plea bargaining is based on the plea of nolo contendere which, as per Fox v. Schedit and State Exrel Clark v. Adam, is a quasi-confession. It is not an inherent right afforded to the accused, but once given by the court it cannot be conditional or retracted in any manner.[15] Essentially, in relation to punishment, it carries the same implications as a guilty plea, but subsequently, it is not admissible to establish guilt in the subsequent cases.

The Indian version of pleas bargaining leans heavily on the American provisions. However, there are a few significant differences between the Indian and the American scheme of plea bargaining:

• Firstly, in U.S.A, there is no restriction or limitation on the kind of offences for which plea bargaining can be sought. Plea bargaining may be applied for even in offences that carry a sentence of death penalty or life imprisonment. Further, Indian law implies that the victim has an active say in the bargaining proceedings, and may refuse or veto an unsatisfactory resolution. These differences are significant in the sense that they help the Indian model avoid certain pitfalls that plea bargaining is identified with.
• Secondly, in America, an application for plea bargaining is filed only after negotiations between the accused and the prosecutor is over. However in India, the onus is on the defendant to file an application for plea bargaining. This is a safeguard for the accused and helps in preventing cases of coercion and underhand dealings.
• Further, there is a provision for the court to ascertain the voluntariness of the application. This too is an important safeguard, taking into account the socio-economic groups that are an intrinsic part of Indian society. It means that the judge can reject a plea bargaining application if he is of the view that there is prima facie no case against the accused, or if he feels that that the accused is getting away with a punishment that is less than what should be due, to the extent that it defeats the purpose of criminal justice or a disparity in the socio-economic status is being exploited to arrive at the bargain.

 There was much debate before the incorporation of plea bargaining, since the courts were vehemently opposed to it. In Muralidhar Meghraj Loya v. State of Maharastra[16], Justice Krishna Iyer observed,

Call plea bargaining‘, plea negotiation‘, trading out‘ and compromise in criminal cases‘ and the trial magistrate drowned by a docket burden nods assent to the sub rosa anteroom settlement. The businessman culprit, confronted by a sure prospect of the agony and ignominy of tenancy of a prison cell, trades out ‘of the situation, the bargain being a plea of guilt, coupled with a promise of no jail’. These advance arrangements please everyone except the distant victim, the silent society.

However, a closer inspection reveals the background of this observation. Justice Iyer’s apprehensions have been mitigated to a great deal with the model that was implemented finally. The offence in question was in relation to food adulteration which had widespread health ramifications. However, with the provisions of the CrPC, socio-economic offences are omitted from the purview of the plea bargaining so if any offence has a broad spectrum effect, the option of plea bargaining will not be available. Secondly, plea bargaining does not always imply that the accused will not be jailed. He will still be punished, and his reduced sentence cannot be lesser than half or one fourth as the case may be.[17]

The rationale behind the introduction of plea bargaining in India was its efficacy in disposing off cases quickly and hence substantially reducing in the backlog problem. The courts have long maintained that justice delayed is justice denied. However, the Indian courts are plagued with a systemic case of backlogs. Plea bargaining certainly seems like an expeditious and efficient device to solve this problem; however it is yet to become popular. Although the legislature has been extremely cautious in its approach towards it and has succeeded in circumventing some of the issues that are associated with plea bargaining, there is still some scope for improvement to make it not only administratively efficient, but also procedurally fair and just.

[1] K.V.K. Santhy, Plea Bargaining In US And Indian Criminal Law Confessions For Concessions, NALSAR LAW REVIEW, Vol 7:No.1, 2013. Available at:

http://www.commonlii.org/in/journals/NALSARLawRw/2013/7.pdf

[2] Section 265B

[3] Section 265A (1) (b)

[4] Section 265B (2)

[5] Section 265B (4)

[6] Section 265B (4)

[7] Section 265B (4) (a)

[8] Section 265E (4) and (5)

[9] Section 265F

[10] Section 265E (2)

[11] Section 265K

[12] Section 265G

[13]SonamKathuria, The Bargain has been Struck: A Case for Plea Bargaining in India, NLS Student Bar Review, Vol 19(2), 2007.

http://www.manupatra.co.in/newsline/articles/Upload/3BEB7B04-1EE3-48EB-8716-279FA2B9AF8A.pdf

Law Commission Report

[14] 397 U.S. 742

[15] Supra note 4.

[16]AIR 1976 S.C. 1929.

[17] Supra note 24.

In this blog post, Abhiraj Thakur, a student of NALSAR University of Law, writes about a pertinent but highly underrated topic in India, i.e., celebrity rights. Celebrities in our country have often raised their voice against the non-consensual commercialization popularity. It is important for celebrities to know what remedies are available to them for the protection and restoration of their privacy.

“He works hard all his life to become known, and then wears glasses to avoid being recognized”

The above phrase by Fred Allen adequately puts forward the dilemma faced by a person when his words and deeds begin to be celebrated by the society. He now struggles to live his life out of the sight of people, he is followed everywhere both by his lovers and his haters. He yearns for his privacy. His name is exploited by other entities for commercial gains and his life is now a mess.

Celebrity rights in our country are an issue which has not received the attention it deserves. With tremendous growth of electronic media in the country over past two decades, it has become very possible to bring the private life of an individual into the public domain. There has been a significant increase in the instances where the privacy rights of celebrities have been abused and infringed by the general public. What is the remedy available if such a situation arises?

A broad classification rights, celebrities are entitled to

Personality Rights

Personality encompasses a range of qualities and characteristics around which an image of a person is created in the society. These may include voice, hairstyle, acting etc. One of the theories supporting such ‘personality rights’ is the theory that the celebrity has the ‘moral right’ to reap the fruits of his labour since a ‘commercially marketable image’ must be viewed as the celebrity’s own product, created through conscious and sustained effort in a chosen field of endeavour.[1] There have been numerous cases of unauthorised exploitation of personality of the celebrity thereby infringing their personality rights. An instance being, when Amitabh Bachchan issued notice to a tobacco company for faking his voice to promote their product.[2]

How to protect Personality Rights?

In India as of now, there is no legislation or judicial precedent expressly dealing with protection of personality rights of a celebrity. However in USA and UK, these rights are well recognised and have been brought under the framework of civil law with remedies available in the form of redressal against defamation and passing-off.

In India, a claim under defamation can stand only when an injury is caused in terms of reputation, profession etc. Under the existing framework, it is uncertain whether ‘commercial loss’ by wrongful appropriation of one’s persona will come under defamation. When an injury is caused to the business, goodwill or reputation of a person when his goods are passed-off by another in name of him, an action can lie in passing-off. In India the question as to whether the personality of a can person be ‘passed-off’ is an area of ambiguity.

Publicity Rights

The basic idea behind this right is that a person, who has put in capital and labour in building repute and stature associated with his name, has the exclusive right of commercially exploiting it.[3] It also has the implication of creating a negative right of unauthorized use of one’s name and fame. There has been an increase in the instances of unauthorised recording of live performances with the advent of camera phones and other modern devices. These recordings are then sold in black market and thus the people who have no right reap the economic benefits from the name and fame of a celebrity. This is popularly known as bootlegging.

The Indian courts have dealt with the issue in a few cases. One such landmark case is of the case of Sourav Ganguly v. Tata Tea ltd. Indian cricketer Sourav Ganguly performed fantastically in the 1999 Indian tour of England, scoring century at the Lords Stadium. After his return to India was extremely disturbed to know that Tata Tea Ltd., one of the companies he endorsed was promoting the 1kg tea packet by giving an opportunity to the customers to congratulate Sourav through a postcard that was there inside every packet. Ganguly being disturbed by such behaviour on part of company filed a case wherein the court ruled in his favour. The court held that his fame and popularity is his intellectual property and same cannot be commercially exploited.

How to protect publicity rights?

Intellectual property (IP) laws as of now provide the best recourse available to a celebrity to protect his/her publicity rights. In USA and UK, the IP laws adequately cover the publicity rights unlike India where the current set of IP laws is inadequate with regard to publicity rights. Many a times, a film star’s character name is used to promote products by companies in an unauthorised manner. Names are often used in merchandising which at times becomes problematic for celebrities. This is how publicity rights can be protected:

By Trademarks

Trademarks are widely used today to protect movie names, characters etc. from unauthorised commercial exploitation in the form of merchandising. Commercial use can only be done through licensing or assignment and not otherwise.

By Copyright

Movie and character names are often protected through copyrights. Though the Indian Copyright Act of 1957 does not accord protection to name and image of a celebrity, but they can protect their works like paintings and other artistic works.

Privacy Rights

Celebrities, though famous, are in no way a public spectacle and have every right to retain their privacy in every circumstance. People most of the time become curious about the lives of the celebrities they like. This curiosity may extend their personal relationships or to the clothes they wear. In this process, the public often infringe the privacy rights of celebrities.

Paparazzi – a menace to aloofness

Paparazzi are photographers usually not associated with any press or media house who often take pictures of celebrities while going through their daily routines. In many cases, the celebrities are often caught up in bizarre situations and these photographers then sell these pictures to media houses at high prices, thus exploiting the privacy of an individual solely for monetary profits. They are often a source of humiliation and embarrassment to celebrities.

In USA, the issue of Privacy of celebrities has received widespread attention in the case of Barber v. Times Inc. Paparazzi took photographs of Dorothy Barber while giving birth to a baby boy. Ms Barber was awarded $3000 as damages on account of ‘invasion of her right to privacy’.

How to protect Privacy rights in India?

A long line of jurisprudence flows on issue of Right to Privacy in India. The Supreme Court dealt with many cases that ultimately led to development of right to privacy as a fundamental right guaranteed through the Constitution of India. In the case of M.P Sharma v Satish Chandra, the Supreme court referring to Munn v Illinois held that though our Constitution does not expressly refer to right to privacy, yet it can be traced from “Right To life” enshrined in Article 21 of the constitution and this right is available to all the citizens unless prohibited by constitutional prohibitions. Thus, any celebrity in India can avail right to privacy when he believes his right is infringed by the acts of other people.

Why is protection of Celebrity rights important?

• Providing certain safeguards to citizens who, through their hard work and endeavours, have become successful in life and can act as an inspiration to the entire society. These provisions can help the people reap benefits of the hard work put in by them in form of authorised licensing and assigning, to derive commercial profits.
• It ensures that the benefits of having fame are also inherited through such laws as these laws help the immediate family members and coming generations of celebrities to derive benefits.
• In this age of technological advancement, such laws can prevent situations of “Technological Unemployment” that arise when the work done by a celebrity is sold in an unauthorised manner by making video tapes and selling them in black market.

In this age marked by the spread of knowledge, education, resources and opportunities, when people often through their capabilities acquire fame and the society starts revering them, it becomes important that this fame does not become a problem of life. Thus, there needs to be enough measures available to such people to protect their privacy and gain rightful benefits of their hard work. While many countries of the world are trying to integrate such rights in their respective framework of law, the lack of any specific legislation in our legal framework is alarming. The skyrocketing endorsement industry provides vast opportunities of exploitation to a large section of the society and so it becomes very important that the law keeps pace with the commercial practices.

[1]http://www.mondaq.com/india/x/22487/Face+Value+Personality+Rights+and+Celebrity+Endorsements

[2] Ibid

[3]Datta A, Celebrity Rights: A legal overview, http:// www.goforthelaw.com/articles/formlawstu/article31. htm

In this blog post, Abhiraj Thakur, a student at NALSAR University of Law, Hyderabad, critically analyses the different judicial interpretations of Section 295A of the Indian Penal Code. 

‘He who has denied the providence of Almighty Christ must be punished’[1]

Since antiquity, religion as acted as one of the most powerful binding force of masses and naturally the people who have dared to open their mouths against it have faced serious consequences. Colloquially blasphemy is regarded as contempt of god or hurting religious feelings of a person or group of persons. Many countries of the world have blasphemy laws to regulate the practice as it creates mass public disturbance and often religious violence.

Section 295A occupies a distinct space in the Indian Penal Code and has long been regarded as India’s answer to blasphemy laws prevalent in other criminal statutes. It has been recurrently used in recent times and has generated a wide-ranging spectrum of reactions from the public and the civil society, though such laws should seemingly assume a lesser role in a nation that aims to separate State and religion.

Despite a number of difficulties associated with interpreting Section 295A, the law could be much clearer than it currently is. In order to attract the mischief of the provision of Section 295A, the following ingredients are to be satisfied, viz. a person,

1. by written words,
2. with deliberate and malicious intention,
3. of outraging the religious feelings,
4. of any class of citizens of India,
5. Insults or attempts to insult the religion or the religious beliefs of that class.

In other words, (1) the intention has to be deliberate and malicious both and (2) for outraging the religious feelings (3) of a class of citizens of India (4) in order to insult or attempt to insult the religion or religious belief of that class i.e. in India (5) by written words.[2]

Judiciary and Blasphemy

Prior to Section 295A, a similar section was already present in colonial India’s law books. The government used to rely solely upon the Section 153A of the IPC. The earliest incident that made judiciary ponder over blasphemy law provisions in the IPC happened during a period of unrest in Punjab in the 1920’s.

A person named Rajpal published an anonymous pamphlet called ‘Rangeela Rasool’ (Colourful prophet). The pamphlet made derogatory and scurrilous remarks about the personal life of Prophet Muhammad and soon led to widespread unrest amongst Indian Muslims after gaining sufficient attention.[3]  Since then judiciary has dealt at length with Section 295A, the much controversial issues surrounding freedom of speech and expression and blasphemy laws can be understood in light of the interpretation of the section by various courts in the country.

When to Punish?

Keeping the worthy intentions of the Assembly in mind, the problems with the statute become all the more apparent. A particularly liberal stream of thought holds that the presence of sections such as 295A in the Indian Penal Code only mirrors the anxiety of the Indian Government to maintain accord and harmony in a multi-religious and multicultural country. However, the lines between maintaining security and creating a draconic law with incommensurate criminal punishment are quite thin.

The constitutionality of Section 295A was questioned in the case of Ramji Lal Mody, where a five-member bench ultimately upheld the provision.[4]

The justification for that decision was that the statute only punishes aggravated forms of insult to religion perpetrated with deliberate and malicious intention. However, the words ‘deliberate and malicious’ were inserted to ensure that the section would be ‘both comprehensive and at the same time of not too wide an application’.[5] This ambiguity of application is a result of judicial interpretation of the section and it has been unfortunate that it has led to a great number of instances where artists and writers have been prosecuted in the name of blasphemy.

Faults in Standard for Applying Exceptions

Exception 1

The principle that legitimate scholarly research and most cases of genuine artistic expression are exempt from this provision has long been held by many as the Sine qua non that allows 295A to be compatible with the importance of freedom of expression in a democracy.[6] Somewhat bizarrely, the Supreme Court has applied such tests in cases that don’t actually warrant it. In Sri Baragur Ramachandrappa v State of Karnataka,[7] a case that involved the ban of a Kannada novel that fictionalised the life of the 12^th century Saint Basaveshwara. The author had suggested that Saint Basaveshwara’s nephew was born out of wedlock.

The followers of Basaveshwara ultimately moved the State to ban the book, which duly obliged. Later, the Supreme Court upheld the decision after carefully going over substantial research done by Kannada scholars and local beliefs. It concluded that the author had deliberately tried to spin and introduce a particularly ‘sordid and puerile story’.[8] What the Court had done in effect was to imply that even a writer of fiction had to somehow straddle precepts of scholarly research when writing a humanistic work, a piece of reasoning that is unconvincing and illogical and one that the Court would do well to move away from in the future.[9]

Exception 2

Consequently, the Courts have delved into creating another system of check for 295A, which has been closely borrowed from 153A, one that negates the ‘truth’ test as mentioned above. In State of Maharashtra v Sangharaj Damodar Rupawate,[10] a case about the controversy which surrounded James Laine’s book, Shivaji: A Hindu King in Islamic India.

The incident led to widespread protests in Maharashtra. The Supreme Court used the occurrences as grounds for declaring that the book was responsible for creating feelings of enmity between classes. More interestingly, however, they also held that if any piece of work led to such incidents, even the fact that it contains historical truth is not an acceptable defence.[11]

Causal Connection and Punishment

In Ramji Lal Modi, it was contended that to ensure that the law is a reasonable restriction upon free speech, there should be a proximate connection between the impugned speech and the possibility of public disorder that may or may not arise from it. It is a commonly accepted precept in criminal law to identify the conditions under which the result may be attributed to the accused.[12] The Supreme Court, however, rejected this proposition. 3 years later, however, the Supreme Court in Superintendent, Central Prison, Fatehgarh v Ram Manohar Lohia, held that for a case to stand under 295A, there must be a proximate relation between the proscribed speech and public disorder, and not a ‘far-fetched, remote or fanciful connection’.[13]

Later, the development of further legal precedent in this regard has led to the creation of a very high threshold for the state to fulfil.

[1] Blackstone’s Commentary on Common Law

[2] Sujato Bhadra v State of West Bengal, (2005 CriLJ 368), Para 5.1

[3] Neeti Nair, Beyond the “communal” 1920s: the problem of intention, legislative pragmatism, and the making of Section 295A of the Indian Penal Code’, The Indian Economic and Social History Review, Vol. 50, No. 3, September 2013, 317-340

[4] Ramji Lal Modi v State of UP, (1957) 1 SCR 860

[5] Select Committee Report, The Gazette of India, 17 September 1927, p. 252

[6] Nair (2013 : 331)

[7] (2007) SCC 11

[8] Baragur Chandrappa v State of Karnataka, (2007) 5 SCC 11 Para 22

[9] Bhatia (2016: 143)

[10] State of Maharashtra v Sangharaj Damodar Rupawate, (2010) 7 SCC 398

[11] Rupawate, Para 25

[12] Ratanlal and Dhirajlal’s Indian Penal Code, 28^th ed., Justice Y.V Chandrachud and V.R Manohar ed. (New Delhi: Wadhwa and Company Law Publishers, 1997

[13] (1960) 2 S.C.R. 821

In this blog post, Abhiraj Thakur, a student of NALSAR University of Law Hyderabad gives a brief idea about procedure to be followed by trusts for opening bank accounts and a few precautions that need to be taken to ensure efficient banking with trusts in India.

What is a Trust?

In simple words, a trust is a relationship whereby property is held by one party for the benefit of another. The person who decides to give his property to another in trust is called a settlor and to whom the property is transferred trustee. So a trust is made by a settlor, who exchanges property to a trustee. The trustee is subsequently obligated to holds that property for the specific purpose of the beneficiaries. A proprietor of the property has a heap of rights over it. Thus when the property is exchanged by him, that heap of rights is exchanged as well, isolating the property’s lawful possession and control from its evenhanded possession and advantages. Trusts are framed for different reasons, sometimes for assessment shirking reasons or to control the property. It has its advantages in circumstances when the settlor goes missing, or at a later purpose of time becomes a maniac, debilitated, or passes on. Trusts are frequently created in wills, defining how money and property will be handled by children or other beneficiaries.

The bundle of rights that are transferred includes ‘legal title’ to the trust property; a trustee is obligated by law to act for the good of the beneficiaries. The trustee may be compensated and have expenses reimbursed, but otherwise, must turn over all profits from the trust properties. Trustees who violate this fiduciary duty are said to indulge in ‘self-dealing’. Under the laws governing trusts in most of the countries, self-dealing is punishable. Courts have reversed self-dealing actions, ordered profits to be returned, and imposed other sanctions on the culprits.

Who can be a Trustee?

The trustee might be an individual, an organization or an open body. There might be a solitary trustee or numerous co-trustees. The trust is represented by the terms under which it was made. In many cases, this requires a legally binding trust assertion or deed.

Opening of a Bank Accounts for Trusts

The formation and operation of trusts in India are governed by the Indian Trusts Act of 1882. As per Section 3 of Indian Contract Act, 1882 “A trust is a commitment attached to the responsibility for, and emerging out of a trust in and acknowledged by the proprietor, or proclaimed and acknowledged by him, for the advantage of another, or of another and the proprietor.”

Step 1: Verification by State Public Trust

Bank opens trust accounts for good parties. A trust can be public or private. All public trusts are required to be registered with the Charity Commissioner of the respective state under Public Trust Act. A charity commissioner has various duties to perform before the bank opens the account for a trust. Before registering an open trust, the Charity Commissioner makes important inquiries with regards to the trust, its trustees, the method of progression of trusteeship and so on. After appropriate inquiries, it makes sections in the register, which are definitive and are official for all concerned. Banks open trust accounts after taking all possible precautionary measures.

Documents Needed

While opening account for a trust, the bank obtains the following documents from the trust:

1. A duplicate of the constitution of the trust
2. The trust deed, if available
3. Testament of enrolment and an affirmed duplicate of the passage of the general population trust’s register
4. Open Trust Register Number.
5. A rundown of the present trustees and the power designating them as trustees.
6. The vital determination went by the trustees for opening the record with the bank.
7. Attested duplicate of the determination marked by every one of the trustees on the behaviour of the record. For Trusts which have no constitution, instruments of trust or plan is required.

While opening records of such trusts, the bank receives after reports

• A testament of enrolment issued by the workplace of the Deputy/Assistant Charity Commissioner (Where it is so conceivable, under the relative law).
• A guaranteed duplicate of the most recent passage in the general population trusts registers (Public Trust Registration), which demonstrates the name of the trust, the Public Trust enrolment No. of the Trust, at which it is enlisted and name/s of the trustee/s.
• A presentation and a repayment from are gotten every one of the trustees.
• A determination went by the trustees identifying with the opening of the record

Step 2: Operational Precautions after the opening of Account

Trust accounts must be opened and led entirely as per the terms of the trust deed. Every one of the trustees is required to act jointly with the persons so approved by the enrolled trust deed. Trustees have no forces to delegate their power to one or more unless the force of appointment is approved by the trust deed or is as per the bearings of the court on an application made by the trustees.

Trustees have no inferred power to acquire or vow trust property unless such a provision is incorporated in the trust deed.

Death of a trustee

On the demise of one of the trustees, the trust property goes to alternate trustees according to the procurement of the trust deed. On the off chance that the perished person was the sole trustee, his agent has no privilege to recoup the trust cash. The agent, be that as it may, has the privilege to designate another trustee, gave the expired trustee has, in his will, particularly approved such an arrangement.

Opening of Bank Accounts of Religious and Charitable Trusts

In India, trusts are regularly set up for social causes and affirmed by the Income Tax Department. The get the exemption from an installment of duty and the benefactors to such trusts can deduct the measure of gift to the trust from their assessable wage. The lawful structure in India identifies exercises including “help to the poor, training, restorative alleviation, safeguarding landmarks and environment and the headway of some other object of overall population utility” as beneficial purposes. Organizations shaped under Section 8 of the Companies Act, 2013 for advancing philanthropy get advantages under law including exclusion from different procedural procurements of the Companies Act, either completely or to some extent, and are additionally qualified for various other exceptions that the Central Government may accord through its requests.

Step 1: Verification by Regional Charity Commissioner

In order to manage open religious and altruistic trusts, some States Acts have been passed. These beneficent trusts are enlisted with the Charity Commissioner or the Assistant Charity Commissioner of the concerned district. A Certificate of enlistment is issued to this trust by the powers. For the most part, these trusts don’t have an appropriately composed trust deed. Bank opens a record of religious and beneficent trusts on benefits and on being fulfilled with regard to the respectability of the trustees and their status.

Documents needed

While opening an account, the bank obtains the following documents in addition to the form for opening the account which has to be duly signed by the trustees.

• A resolution specifying the name of the bank, passed in a proper meeting held by all the trustees.
• Indemnity signed by all the trustees, indemnifying the bank for having allowed operations on the trust account.

Step 2: Operational Precautions to be after opening the Account

• Banks don’t allow operations in the record by one individual.
• A reasonable number of individuals are required for opening and working of the record. If the quantity of trustees is larger, then the number of individuals working the record must be large. Bank occasionally acquires affirmation of parity in the record, marked by every one of the trustees.

Wherever conceivable, request or heading from the Charity Commissioner is acquired, allowing the bank to permit operations on the trust account in the way affirmed by the trustees.

These are the procedures and few precautions that are taken to ensure efficient banking with trusts in India. The relationship that is formed through trust is that of fiduciary nature; that is based on utmost faith and goodwill of the parties. These banking procedures try to ensure fairness in monetary transactions of trusts. However, at times, we may come across cases of fraud and cheating which tells us there are a few loopholes to be plugged.

In this blog post, Abhiraj Thakur, a student at NALSAR University of Law, Hyderabad, writes about some of the major issues that surround the laws governing civil nuclear liability in India.

 
Over the course of history, Man has depended on various sources for energy. In ancient times, he used fire woods from forests to warm and protect himself and with the discovery of fossil fuels came a revolution in energy generation. Today, most of our power needs are fulfilled by fossil fuels derived from mines and ocean beds across the world. The problem with them being of non-renewable nature, the world is constantly looking for new energy sources.

Nuclear power is one such alternative to conventional sources of energy. Working on the mechanism of nuclear fusion nuclear reactors apart of being used for development of weapons is being widely used all over the world to generate power.
Nuclear fusion can be simply described as when two atoms are combined or fused together, it subsequently releases energy, this energy can be harnessed and utilised for a wide variety of purposes.

With minimal greenhouse emissions and greater power generation capacity than the fossil fuels, nuclear energy is gaining a foothold in many countries of the world. However, the issue of power generation through nuclear technology has for a long time been marred with controversies, the biggest of them being the deadly nature of the radiations that can emerge in case of accidents or other mishaps. The legal issues that surround this fact are of liability in case of such accidents. Today, many countries along with India have various laws to determine civil nuclear liability. There have been such instances in the past and so the issue holds much importance.

Legal Framework in India

The issue of civil liability in case of nuclear disasters hovered for a long time in policy circles of India but for the first time actively came up in 2006 when India put forward its plan to have civil nuclear agreement with The United States. The agreement was finally achieved in 2008 popularly referred to as the Indo-US Civil Nuclear Agreement. One of the terms of the agreement mandated for civil liability law with regard to nuclear incidents in India. As a result, about 2 years later the infamous The Civil Liability for Nuclear Damage Act of 2010 (hereafter referred to as ‘The Act’) was passed by the Parliament. The Act by far is the most comprehensive legislation that inter alia deals with compensation for the victims of such disasters.

Nature of Liability under the Act

The Doctrine of Strict Liability stands at the heart of the Act. Taking cognizance of the earlier incidents of man-made disasters such as the Bhopal gas tragedy, the parliament deemed strict liability to be better for the substantive purpose of the Act i.e. enable victims to get compensation. The Act imposes strict liability upon the operator of the plant[1], only in cases of ‘Act of God’ or force majeure events the government can be obligated to bear the costs.[2]

Since its very inception, the Act has been subject to much controversy over the problems that arise due to the provisions for liability enumerated under the act. Some of the pertinent issues that seek attention are:

Monetary Capping on compensation: The act fixes the liability to a certain monetary limit. In the case of operators, the limit is Rupees 15 billion and for the Government the cap is fixed to 300 million dollars of Special Drawing Rights of the IMF[3] which as per the current rates comes out to be roughly 420 million US Dollars. The biggest problem with such capping is the situations when the damage exceeds the limit. The Act does not expressly provide for any provision with respect to damages over the limit which makes the implementation arbitrary in cases of serious nuclear losses.

Limited Private Players: Another issue that surrounds the liability is the operation of such nuclear plants. In India, these plants are state owned and operated through NPCIL[4] and so ultimately the responsibility for such disasters will be borne by common Tax-payers. The operator also being a state entity in India makes the monetary burden of compensation fall on the common man. Opening the area to private players has its own advantages and disadvantages that need to be explored.

Neglect of the Additional Costs: The incidents in the past such as the Fukushima and Chernobyl have shown that apart from granting compensation there are many additional costs which the party at fault needs to bear. These costs include the cost of cleaning up and safe disposal of the nuclear waste. These activities demand a lot of money along with high level of caution and care. The Act does not provide any provision for these additional costs which can prove problematic.

Liability of Suppliers

By the virtue of Section 17 of the Act an operator has the right to recourse against the supplier. Such a right finds its basis in the contract between the operator and his supplier, who is an employee. If the nuclear accident can be attributed to the fault of the supplier due to below standard services and other defects etc. the supplier can be held liable under the contract law. The suppliers claim the act to be unfair to them, few contentions are:

Uncapped Indemnities: These contracts between the operator and supplier are fixed at the value of the contract, or at a certain proportion of the contract value. As per the contract law such contracts are of indemnity and so in the case of any mishap, the supplier would need to indemnify the operator if the accident happened due to his fault. These indemnities are unfixed under the Act and so make the position of the suppliers vulnerable.

 No Scope for bargain: As the extent of indemnifying is unfixed for the supplier, the suppliers in the initial years tried to negotiate with the operator on the amount of money and often try to reach an agreement. The government of India considered such activity to be unfair and outside the purview of the Act and so was enacted Civil Liability for Nuclear Damage Rules of 2011. The Suppliers widely protested this step as being repressive.

Liability under Tort Law

The section which when harmoniously interpreted can allow compensation under the tort law is section 46. It talks about that nothing in the Act or any other law in force in the country can prevent a person from bringing proceedings against the operator which can be brought under any law apart from this act. Prima facie, the section seems to permit claims under tort law. However few issues that need to be dealt to make the law more efficient are:

Ambiguity of Economic Loss: The question that raises doubts on the very intention of the act is that whether claims in tort law for economic loss can be sustained under this section. The statute is silent on the matter and the question still remains to be solved.

Claim against supplier: Section 46 only talks about claims against operator and so the liability of the suppliers under tort law remains an area of concern. The suppliers seem to be effectively insulated from liability under tort by the section. The contention has been subject to much debate in the parliament. An amendment was tried to bring suppliers as well under the ambit of the section but it failed. The question now comes fundamentally to the intention of the statute, the courts have not dealt with the validity of Section 46 and so any comment on it is futile.

Some Other Issues

Foreign Jurisdiction: India takes supplies from many foreign countries when it comes to nuclear energy. These suppliers are foreign entities to Indian Law, so a burning question that arises is regarding the claims against these foreign suppliers. Can Indian victims move to foreign courts to claim compensation under the Act?[5] The view taken by the Ministry of External affairs seems to be in negative. The issue of jurisdiction arises in such cases. Many people have time and again called for an extra-territorial application of the Act.

Position in International Law: The Convention for Supplementary Compensation for Nuclear Damage called CSCND was adopted by UN that deals with jurisdiction issues in cases of nuclear damage. Article 13 of the convention states that any proceedings concerning claim for compensation from nuclear damage can be instituted only in the courts which have jurisdiction over the area of incident. Thus, it seems that a foreign court would not entertain claims of Indian victims.

Thus, we see though India is at par with other nuclear capable countries when it comes to having a comprehensive law dealing with damages for nuclear disasters but there are many loopholes to be plucked. The law in our country must present a more effective mechanism when it comes to dealing with issues enumerated above. The Act currently in force makes few sections of the society much more vulnerable to compensate than the other, which must not happen. Along with solving the ambiguities present an attempt must be made to have a fine balance of the aspirations of suppliers, the state and the civil society.

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[1] Section 4 of the Act

[2] Section 5 of the Act

[3] International Monetary Fund

[4] Nuclear Power Corporation of India

[5] http://www.mea.gov.in/press releases.htm?dtl/24766/Frequently_Asked_Questions_and_Answers_on_Civil_Liability_for_Nuclear_Damage_Act_2010_and_related_issues, Last Accessed 24th May 2016