In this blogpost, Sreeraj.K.V, Student, Government Law College, Kerala, writes an article about Analysis on the Right to Information Act, 2005. This article covers some of the areas like importance of the Act, process for filing an RTI under the Act, Exceptions in filing an RTI as well as various requirements for filing an RTI in India.

Right to Information Act, 2005 was one of the biggest achievements by the Legislature as a contribution to the common people of India and it gave a new phase to the law enforcement machinery that public can also take part in enforcing various legal rights for them. Until then there was only erstwhile freedom of information Act, 2002. And the Act was replaced by the enactment of the Right to Information Act, 2005. The Act states that any citizen may request a public authority (a body of Government or “instrumentality of State”) which is required to reply expeditiously or within 30 days. The Act also requires every Public sector company to computerise their records for wide dissemination so that citizens require only less time for receiving certain information formally.[1]

The importance of this Act in the present social scenario is that the working of various public and other companies was in such a way that common people were unaware of what actually is done in such public organisations.  Due to the increase of various needs of the people from such public enterprises and also lack of proper facilities for addressing such people, they faced many difficulties such as delay in completing various documentation works in favour of the people, lack of participation on the part of government officials in meeting the needs of the people etc. In such a scenario, Right to Information Act plays a vital role as it makes it mandatory that any queries filed under this Act by any person, must be replied as soon as possible or within a period of thirty days. But in fact the Act is applicable only to public enterprises and companies working under the concerned State Governments. The Act, as such does not have provisions to make private companies under its ambit, but private companies and NGO’s who receive over 95% of their infrastructure fund from the Government comes under the provisions of the Act.

While looking in detail, Chapter I of the Act deals with various definitions that are being covered under the Act. Definitions as to what is meant by ‘information’, ‘right to information’, ‘competent authority’ etc. and chapter II deals with the obligation of public authorities against the maintenance of proper books of records in their concerned areas of operation and also various procedures regarding the request for information under the Act. The Act also provides certain exceptions towards the disclosure of any information by any public organisation which may likely affect:

• The sovereignty and integrity of the nation.
• Information that has been expressly forbidden to be published in any court of law or tribunal or such disclosure which may result in contempt of court.
• Information which may likely causes breach of privilege of the Parliament or State legislature
• Information which includes commercial confidence, trade secrets or intellectual property which may likely to cause harm to a third party unless the competent authority is satisfied that there is no larger public interest in the matter.
• Information available to a person in his fiduciary relationship
• Information received from a foreign Government
• Information which may likely to cause harm to the life of any other person
• Information which would impede the process of investigation, apprehension or prosecution of any offenders.
• Cabinet records and other papers including deliberations of the council of Ministers, Secretaries and other officers. [2]

Now it’s clear regarding the functions and provisions of the Act. The Act provides an opportunity for the public to make a query regarding the functioning or operation of any public organisation except in the above-stated exceptions.

Process under the Act

The Act states that any person may submit a written request to a Public Information Officer (PIO) which is appointed by various authorities under the Act. It is his duty to provide various information to the citizens. The application should include person’s name, details for contact etc. in the application. It is then the PIO of the concerned organisation must reply to the application. In the absence of such officers, the applicant has an option to file the application under either of the Central or State Information Commission.

Act also specifies certain time limits for the reply towards the request:

1. If the RTI is filed to the PIO, then the reply has to be made within 30 days
2. If the RTI is filed to the APIO (Assistant Public Information Officer), then the reply should be within 35 days
3. If the PIO transfers the application to another public authority, then the time limit extends to 30 days from the day in which the application was transferred.
4. Any information regarding Human rights violation and corruption by any scheduled security agencies coming under schedule II of the Act must be provided within 45 days but with the prior approval of the Central Information Commission
5. The PIO is expected to provide information which may involve the right to life and liberty of any person. [3]

Information Technology has been developed in such a way that each and everything a person needs will be available in a single click. Same is applicable in the case of filing an RTI also. A person does not need to write in paper or go to the concerned authorities for filing the application. Department of Personnel and Training (DoPT) has started a project on filing the RTI application through online. The website provided by the Government for filing an online RTI application is https://rtionline.gov.in/ . Any person can file an RTI on any concerned matters simply by creating a user account of his own. It requires only Rs.10 for filing the application. Immediately after the filing of the application, the applicant will receive a unique registration number for using it for future references. Initially this facility was available only in Delhi but now a person from any State can file an e-RTI application whenever he/she feels it is important.

Essential requirements for filing an RTI  

• Applicant must be a citizen of India
• Application should contain particulars regarding the information
• The evidence of payment of application fee must be enclosed
• Full address of the applicant should be enclosed for sending the reply.[4]

Conclusion

The main object of this Act is to empower the rights of citizens to make certain queries on the functioning of the Government machineries, to promote transparency and efficiency in the operations of such Government organisations, to regulate corruption and also to make democracy to work in favour of our citizens. The Act prevents the Government from being manipulated in the sense that it makes a notion that the Government and its concerned wings are working for the public at large. It also makes a sense that no people must be unaware of their basic rights as the citizens of this country and the Act also makes it mandatory that the information which is given to the applicants must be true to the best of the knowledge of the concerned officials and any type of manipulations done against the provisions of the Act will lead to certain penal liabilities upon the person who violates it.

[1] Retrieved on : https://en.wikipedia.org/wiki/Right_to_Information_Act,_2005

[2] Retrieved on : http://righttoinformation.gov.in/rti-act.pdf

[3] Retrieved on: https://en.wikipedia.org/wiki/Right_to_Information_Act,_2005

[4] Retrieved on : http://www.rtifoundationofindia.com/how-file-rti-application-1086

In this blogpost, Komal Rastogi, Student, Nirma University, Ahmedabad, writes about the termination of parental rights, the reasons for termination and also about the foster care which protects the child after parents terminate their rights voluntarily or involuntarily.

Parents have both the rights and responsibilities of a child in a parent-child relationship. They both have the right to make a decision about the child’s welfare, education, health care and other important concerns. If the parents are not in a situation where they can handle a child, then the court terminate the rights of the parents. The other reason to terminate the parental rights is if they violate the law. Termination of a parent-child relationship can end the legal relation between parents and child. Once the child is legally free, he can be adopted with the objective of securing a more stable family and environment for a long term need of a child. There are two kinds of termination. It can be voluntary or involuntary. Voluntary termination means parents are agreed to Terminate, their rights as a parent. Voluntary termination of the parental rights occurs when the mother is not able to take care of a child. For example: if a mother is a teenager then maybe she feels overwhelmed to take care of a child. The method for terminating a child is either with the consent or with a surrender. The biological parents must clearly make the decision to surrender the child because both the decisions are not irrevocable.

Involuntary termination means may be the parents are not fit for the child, or maybe it is in the best interest of the child to terminate parental rights. Some of the grounds where courts feel that the parents are unfit for the child’s care.

• The child is abandoned by parents: proof has to be presented before the court that the abandonment is intentional. This could be done through written documentation or by the testimony of the witness.
• The child has been cruelly treated or neglected by either or by both the parents: if there is any cruelty against the child then the state is automatically involved. A petition can be filed to terminate the parental rights of either parent if the parent for one year or more willfully failed to communicate with or willfully failed to pay for the education, care, and support of the child when the parents were able to do so.
• Unfit parents: the parents can be unfit if the behavior of the parent is such that they cannot take care of the child’s mental, physical and emotional health.
• Failing to support the child financially: if the court orders to support a child and also orders to pay for the child but due to some reasons parents are not able to support then also court can send the child to foster home.
• Child’s best interest: some states considers child’s interest and also ensures the child’s health as an important issue in every proceeding while other considers age, the physical and mental wellbeing of a child.

Other reasons for involuntary termination of the parental rights are sexual abuse, long term drug or alcohol induced incapacity of a parent, mental illness or deficiency in parents, or the child is born due to rape, etc. Parents can also be terminated from their rights if either of them or both of them is convicted of the crime. If a parent has committed a crime of violence against anyone in the house then also the court can terminate the parental right of the child. Another reason is if a parent is imprisoned for a long term then also there will be a termination of the rights and the child can be sent to the foster care.

If there is more than one child then also the parents’ right over one child can be terminated even if the parents have never abused the child. The juvenile court would deal all the matters regarding the termination and the child’s custody to the foster care. In fact, an agency is charged with the welfare of children in case of termination.

Foster Care

Foster care is a non-institutional substitute care for a planned period, either temporary or extended for a child. After the termination of parent’s right over the child, if there is nobody responsible left, then the child is sent to fosters care. Before the child is placed in the foster care, the petition is to be filed under the federal Adoption and Safe Families Act (ASFA).  The state agencies are not required to file a petition under certain circumstances.

Firstly, the child has been in the foster care for more than 15 months out of 22 months.

There are three exceptions to this clause:

• If state allows placing a child in relatives house
• In fact, the documents of state may be another reason as to compel them not to file a petition.
• “The State has not provided the services, identified in the case plan, necessary to make the home safe for the child’s return within the time frame specified in the case plan.”[1]

Secondly, one of the parents committed murder or manslaughter his or her child.

Thirdly, if a parent has committed an assault which has resulted in the bodily injury to a child or any of the child.

Although the foster care is supposed to be temporary, many children suffer in foster care in need of stable homes because there is a shortage of adoptive and foster parents.[2] The situations where foster care is required are:

• When it is hard to find a place for a child for adoption because of the mental illness or physically handicapped or any other major
• There are situations where parents at that point of time are not able to support a child but after sometime they might be able to support them. Then it is called temporary foster care because of its finality is inappropriate.

To keep a child in foster care, there is a limit of the period as to how much time a child would be in foster care. This is due to the government subsidy which is tied to them. These support of financial incentives by the government can lead to quicker termination of the biological parents’ right. Many states have adopted the statutes which provide more protection to the child in such situations for the betterment of the child.

The Adoption and Safe Families Act makes it easier to terminate the parental rights. It also allows the court to waive the requirement when it feels that this is not in the child’s best interest. There must be a provision which provides incentive payments to states to increase the number of adoptions for waiting for children and new funding with broad discretion for states to promote and support adoptions.

[1] Retrieved on http://nationalparalegal.edu/public_documents/courseware_asp_files/domesticRelations/Parenthood/Termination.asp

[2] Ibid

In this blog post, Sreeraj.K.V, Student, Government Law College, Kerala writes an analysis of Domestic violence and dowry death in India. This article covers areas like provisions under Section 498 A of IPC, various provisions of Dowry Prohibition Act as well as Protection of women from domestic violence Act along with various cases dealing with the same issue.  

India is one of the countries which give much priority to marriage and family life. In India marrying a person and living a happy life is considered to be sacred in one’s life. But in fact, India is among those countries which have a large number of cases involving violence against married women as well as offences relating to dowry. Cases involving domestic violence and dowry are being registered at an increased pace when compared to the last decade. The main reason behind such a phenomenon is that there is no friendly atmosphere in many of the houses and the people are not in a good relationship . In many such situations, women will be the victim of various tortures and in humane activities against them. In India, we have Indian Penal Code as well as various other statutes such as Dowry Prohibition Act, Protection of Women from Domestic Violence Act, 2005 etc. for protecting the rights of women especially married women as well as preventing them from various offences which affects them both physically and mentally.

Section 498 A: IPC

Indian Penal Code, 1860 is the first and foremost substantive criminal law to impose certain amendment in itself regarding cruelties against women mainly married women. Section 498 A deals with certain definitions to the term cruelty which read as:

1. Any wilful conduct which is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman; or
2. Harassment of the women with a view of coercing her or any person related to her to meet any unlawful demand for any property or any valuable security or is on account of her failure by her or any person related to her to meet any demands.[1]

The provision of the Dowry prohibition Act mainly deals with issues relating to dowry and its related offences in general. Dowry means transfer of parental property at the time of marriage of their daughter. It is a system of providing a certain amount of financial assistance to the groom’s family either in the form of money, property, gold etc. Demanding and acceptance of dowry, even though banned in India, is still seen in many parts of the country as the people are not willing to stop the prevailing customary practice. For abolishing the act of providing and accepting dowry, which lead to various financial crises to many families in India, Government formulated Dowry Pprohibition Act on the year 1961 so that there will be an eye of law in regulating such actions involving delivery and acceptance dowry. The Act provides various provisions relating to the term ‘dowry’ as well as provisions relating to the punishment for the offence of dowry and the concerned officers who are entitled with the authority to look into such matters. The Act also provides certain powers to make rules and regulations regarding giving and accepting dowry. But the fact is that almost all the marriages are taking place in certain assurance given by the family of both the spouses mainly the bride.

Apart from this Act, we have Protection of Women from Domestic Violence Act, 2005. This Act deals with certain special provisions mainly for married women who are facing certain cruelties from husband as well as his relatives and other members of the family. The Act itself states that it provides protection of constitutional rights for the women who face violence within the family itself. Chapter I of the Act deals with certain definitions, whereas Chapter II, deals with the definition and related provisions of the term ‘domestic violence’. It states that any physical or mental harm, injury or harassment to women for any unlawful demands or dowry or any other property may be termed as domestic violence.  Chapter III deals with duties of various protection officers, security officers as well as magistrates in preventing them from any such offences. It also provides for the importance and needs of medical facilities for the aggrieved person. The Act also deals with certain provisions such as duties of Government in such issues, nature of compensation as well as liabilities of the accused person if found guilty. The Act also stipulates that husband and his family will be liable for the death of wife within seven years of marriage. Under such circumstances, the presumption is that the wife’s death was caused due to any kind of torture or violence from the part of husband and his family. A Recent example can be traced out from the case of death of Sunanda Pushkar where Shashi Tharoor was in a shadow of doubt as the death had occurred within seven years of marriage.

Supreme Court as well as High Court has looked into such cases involving domestic violence in such a serious way as it is clear from various judgments. In the case of D.Velusamy v. D. Patchaiammal[2], Supreme Court examined the provisions of the Domestic violence Act in such a way that the term ‘domestic relationship’ includes not only relationship of marriage but also a relationship ‘in the nature of marriage’ and if a man and woman lives together for certain period of time is pretend to be a relationship equal to that of relationship after marriage depending on the nature of relation maintained by them. The Court also stated that violence in such circumstances must be treated as domestic violence and nothing else.

There were certain other cases such as Sunil Kumar Sharma v. State (cbi)[3] where in Court stated that there is no relevant evidence to prove the guilty of the accused from the part of the prosecution. Hence the case was decided in the favour of the accused. Such cases stand as an exception to the issues of dowry death as even though the act has been committed, the prosecution fails to produce adequate evidence and hence the person will be held free.

Conclusion

There are exceptions to the cases involving dowry death as well as domestic violence due to the fact that some women will be having a criminal intention of making the husband and his family in trouble. For that, they file certain cases which involve the provision of the above stated Acts. In such situation, the investigating agency as well as the Court should make a critical analysis of the facts and issues of the case as the accused also have equal rights as the victims. In such a context, it must be stated that the families of both the husband and wife must be in good terms and free from any financial liabilities between them. Surveys state that India is the only country with the highest amount of offences relating to domestic violence as well as offences regarding dowry. This condition can be changed only when the people start thinking that no financial needs have to be satisfied during the time of marriage. Problems arising out in the family life must be cured instantly and effectively that there arises no further issues on the same matter in future. The government can implement certain amendment in certain statutes regarding dowry prohibition and domestic violence such that people changes their mind  and there arise a notion that dowry and domestic violence against` women itself is a social evil of the time.

[1] Retrieved on: https://indiankanoon.org/doc/538436/

[2] D.Velusamy v. D. Patchaiammal 2010 (4) KLT 384

Retrieved on : http://www.jhalsa.org/pdfs/Reading_Materials/RM_on_18_01_2015.pdf

[3] Sunil Kumar Sharma v. State(cbi) 139(2007) DLT 407

Retrieved on : https://indiankanoon.org/doc/1698806/

In this blogpost,  Ayushi Mishra,  Student, National Law University,  Jodhpur,  writes about,  Real Estate (Regulation and Development) Act, 2016. The article contains a comprehensive analysis of the Act, a concise critique and ways of  further strengthening the Act. 

Introduction

The Real Estate (Regulation and Development) Act, 2016 (‘Act’) came into force on May 1, 2016 with 69 out of 90 sections notified by Ministry of Housing and Urban Poverty Alleviation.[1] It will set in motion the process of making necessary operational rules and creation of institutional infrastructure for protecting the interests of consumers.[2]

The Act aims to regulate the real estate sector, bring clarity for both the buyers and sellers and reform the sector. It envisages establishment of a regulatory and appellate authority for settlement of grievances, registration of real estate projects and contains various pro-allottee/ pro-buyer provisions. Further, the Act aims to increase transparency and accountability in real estate sector by regulating the buying and selling of commercial and residential units or projects and timely completion of project by the promoters. It is expected to boost the confidence of the home-buyers and is touted by many as a step in the right direction and a major game-changer. The salient provisions of the Act have been discussed below.

Salient provisions of the Act

Establishment of Real Estate Regulatory Authority (‘RERA’) and Real Estate Appellate Tribunal (‘REAT’)

The central and state governments must establish RERA[3] which will consist of a Chairman and at least two whole time members to be appointed by state government.[4] RERA can hear complaints filed by aggrieved persons for contravention or violation of provisions of the Act by any promoter, allottee or real estate agent.[5]

RERA’s broad objectives and functions includes inter alia, ensuring transparency by registering and maintaining a database of real estate projects and publishing it on its website for public viewing, protection of interest of promoters, allottes and real estate agents, development of environmentally sustainable and affordable housing, rendering advice to the government and ensuring compliance with its Regulations and the Act in general.[6] It can further govern both commercial and real estate transactions.[7]

The persons aggrieved by the decision of RERA can approach REAT within 60days of former’s order.[8]  REAT must dispose off the appeal within 60 days[9] and will have all powers of a civil court.[10]

 Registration of real estate project with RERA

Every real estate project having a planning area of more than 500 square meters or more than eight proposed number of apartments must be registered with RERA.[11]  The promoter must deposit 70% of the amount realized from the allottees in an escrow account, maintained by a scheduled bank to cover the cost of construction and the land cost and the amount must be used for that purpose only.[12] The amount withdrawn should be in proportion to the percentage of completion of project.[13] This discourages the developers from notoriously diverting funds. It will also prevents delay in completion of project and handover to the consumers.[14]

Definition of carpet area

Carpet area has been defined[15] under the Act and developers can sell units only on carpet area which means the net usable floor area of an apartment. This excludes the area covered by the external walls, areas under services shafts, exclusive balcony or verandah area and exclusive open terrace area, but includes the area covered by the internal partition walls of the apartment.[16]

This will enable the buyers get the clear picture of the usable space.

Cap on the receiving of advance payment

A promoter cannot accept more than 10% of the cost of the plot, apartment or building as an advance payment or an application fee from a person without first entering into a written agreement of sale with such person and register the said agreement of sale, under any law for the time being in force.[17] This is an aim towards curbing embezzlement of funds by notorious builders.

Adherence to sanctioned plans

The promoter cannot make changes (additions or alterations) in sanctioned plans, layout designs or specifications as approved by RERA without the consent of person who has agreed to take one or more of the plot, apartment or building.[18]

For any other additions, alterations or assigning or transferring of majority rights and liabilities of the promoter, the consent of at least two-thirds of the allottees who have agreed to take apartments in such buildings and RERA should be taken, except the promoter himself.[19]

This will discourage the developers from increasing the cost of the project midway or acting against the interest of the consumers.

Compensation to the allottees

If the promoter fails to complete the project or is unable to give the possession of apartment, plot or building then

• in case the allottee wishes to withdraw from project then he should receive interest and compensation as given in the Act or
• in case the allottee does not wish to withdraw from project then he should be paid interest for every month of delay at specified rate, till the handling of the possession.[20]

Further, in case of a structural defect, defect in workmanship, quality or provision of services or other obligations of the promoter as per the sale agreement when brought to the notice of the promoter by the allottee within 5 years of handling of the possession should be rectified by the promoter within 30 days without any cost. Failure to do the same by the promoter entitles the allottee to compensation.[21]

This is a refreshing change from the previous position where the developers were not penalized or held responsible.

Penal provisions for promoters 

There is a penalty of 10% of estimated cost of project or an imprisonment of three years for a promoter[22] who advertises, markets, books, sells or invites people to purchase any plot, apartment or building without registration with RERA.[23]

However, there are several projects that are exempted from registration such as where the land proposed to be developed is less than 500 square meters, where the promoter receives completion certificate prior to the commencement of Act or where the renovation, repair or re-development does not involve marketing, advertising, selling or new allotment of any plot, apartment or building.[24]

There is a further penalty which may extend to 5% of the cost of project for providing false information to RERA while registration[25] under the Act.[26]

The miscellaneous penalty can extend up to 5% of estimated cost of the project.[27]

This will discourage developers from indulging in under-hand dealings and come down heavily on those who do the same.

Hurdles in implementation of the Act

Despite being a well-drafted piece of legislation due to various stages of negotiations that the Act has undergone in the past 9 years, there are many lacunae that it suffers from which has been discussed below:

The requirement of depositing 70% of project money in an escrow account is a likely source of confusion. The onus of informing about the transactions in on the builder which can be manipulated. Further, the requirement of certification by an engineer, an architect and a chartered accountant before withdrawing any amount is futile since they are all paid by builders and are likely to make reports in favor of the builders. Hence, there is an obvious conflict of interest. Further delays and disputes in withdrawal of amounts might lead to litigations jeopardizing the projects.[28] Hence, the Act fails to address the problem of black money investment in real estate business.[29] Further, the cost of land and construction of the project might be higher than 70% of total cost of the project. This may lead to borrowing of funds to raise the cost of the project with interest cost which will ultimately increase the cost of the project and burden the consumers.

It will be difficult for builders to sell units based on carpet area for buildings which are under construction and where some units have already been sold under super built up area. Therefore, an exemption to this effect may be inserted under section 4(h) of the Act to resolve the conflict.  Further the word ‘net usable floor area’ must be defined in the Act for greater clarity.

There is a provision on monetarily penalizing the promoter for delay in completion of projects.[30] However, in case such a delay is caused due to delayed governmental approvals then the promoter should not be penalized. Hence, such an exemption should be added under the relevant provision.

The time limit for the adjudication process by RERA and REAT might not work as expected. There were time limits for adjudication of real estate disputes on the consumer courts as well, however, no complaint was disposed off within the time frame of 90 days. Hence, the time limits under the Act are also unlikely to work.

The allottees can receive benefits under the Act only after one year[31] which is the time frame for the respective governments to establish RERA[32] and REAT.[33] There is also a time limit of six months for different states to make rules for carrying out provisions of the Act.[34] Looking at the political will and stability of governments in different states, the adherence to the timelines might be patchy with some governments establishing efficient bodies while some may not.[35]

Many departments and processes will have to streamlined along with up-gradation of land records and bringing parity between circle rate and market rate.[36] Since, most of documents in real estate sector are hand-written, it will be a herculean task to capture all that on an online database which will also demand a lot of time. Moreover, understanding the ownership pattern would be critical for ensuring transparency under the Act.

The Act may not be implemented efficiently due to dilly-dallying tactics in implementation of the provisions of the Act. This may be due to conflict of interest of the politicians who have a major stake personally in the real estate sector. Hence, political reluctance might be a major roadblock.

The laws relating to rights over land, land improvement and colonization of land are under the state list. Therefore, laws in the states of Haryana and Maharashtra differ from the Central Act and there might be conflict between the two laws.[37] Though the Maharashtra Housing (Regulation and Development) Act, 2012 has been repealed[38] specifically under the Act, the one for the state of Haryana has not been which will be continuous source of confusion in the state though the Central Act will supersede the state Act.

Conclusion

The Act is a positive change in terms of increasing transparency in the real-estate sector, increasing accountability of the promoters and developers and establishing efficient forums for grievance redress. This will consequently lead to lower litigation due to stringent rules and regulations in the highly corrupt sector. Time bound approvals and transparency will also lead to greater flow of investment both domestic and foreign leading to reduction in cost of borrowing in the real-estate sector.[39] Though it is a win-win situation for both the developers and the buyers and will help the sector grow in the long-run, the discrepancies in the Act needs to be urgently addressed. Further, the Act cannot be implemented effectively till the political reluctance in implementing the Act is removed which is a major roadblock. Hence, the Act needs legislative amendments by consulting the stakeholders involved as there is a huge scope of improvement coupled with removing any conflict of interest that the political class might have in the implementation of the Act.

[1] Notification dated April 26, 2016, available at http://mhupa.gov.in/writereaddata/Real_Estate_RegulationDevelopment_2016.pdf. (last accessed on May 18, 2016).

[2] Real estate Act comes into force on Sunday, THE HINDU:BUSINESS LINE, April 30, 2016, available at http://www.thehindubusinessline.com/news/real-estate/real-estate-act-comes-into-force-on-sunday/article8541172.ece.

[3] The Real Estate (Regulation and Development) Act, 2016, section 20, March 26, 2016.

[4] The Real Estate (Regulation and Development) Act, 2016, section 21, March 26, 2016.

[5] The Real Estate (Regulation and Development) Act, 2016, section 31, March 26, 2016.

[6] The Real Estate (Regulation and Development) Act, 2016, section 32 & 34, March 26, 2016.

[7] The Estate Regulator Bill: 10 things you should know about it, THE ECONOMIC TIMES, March 10, 2016, available at http://economictimes.indiatimes.com/wealth/real-estate/real-estate-regulator-bill-10-things-you-should-know-about-it/articleshow/51344872.cms.

[8] The Real Estate (Regulation and Development) Act, 2016, section 44(2), March 26, 2016.

[9] The Real Estate (Regulation and Development) Act, 2016, section 44(5), March 26, 2016.

[10] The Real Estate (Regulation and Development) Act, 2016, section 53(4), March 26, 2016.

[11] The Real Estate (Regulation and Development) Act, 2016, section 3(2), March 26, 2016.

[12] The Real Estate (Regulation and Development) Act, 2016, section 4(l) (D), March 26, 2016.

[13] The Real Estate (Regulation and Development) Act, 2016, Proviso, section 4(l) (D), March 26, 2016.

[14] Supra at 7.

[15] The Real Estate (Regulation and Development) Act, 2016, section 2(k), March 26, 2016.

[16] The Real Estate (Regulation and Development) Act, 2016, section 4(h), March 26, 2016; Sudip Mullick and Amit Wadhwani, Salient Features of the Real Estate (Regulation and Development) Bill, 2016, MONDAQ, available on http://www.mondaq.com/india/x/475724/real+estate/Salient+Features+Of+The+Real+Estate+Regulation+And+Development+Bill+2016.

[17] The Real Estate (Regulation and Development) Act, 2016, section 13(1), March 26, 2016.

[18] The Real Estate (Regulation and Development) Act, 2016, section 14(2)(i), March 26, 2016.

[19] The Real Estate (Regulation and Development) Act, 2016, section 14(2)(ii), March 26, 2016.

[20] The Real Estate (Regulation and Development) Act, 2016, section 18, March 26, 2016.

[21] The Real Estate (Regulation and Development) Act, 2016, section 14(3), March 26, 2016.

[22] The Real Estate (Regulation and Development) Act, 2016, section 59, March 26, 2016.

[23] The Real Estate (Regulation and Development) Act, 2016, section 3(1), March 26, 2016.

[24] The Real Estate (Regulation and Development) Act, 2016, section 3(2), March 26, 2016.

[25] The Real Estate (Regulation and Development) Act, 2016, section 4, March 26, 2016.

[26] The Real Estate (Regulation and Development) Act, 2016, section 60, March 26, 2016.

[27] The Real Estate (Regulation and Development) Act, 2016, section 61, March 26, 2016.

[28] Id.

[29] Vineet Sahay, The Real Estate (Regulation and Development) Bill- The first step towards real estate reform, June 23, 2013, available at http://www.legalservicesindia.com/article/article/the-real-estate-(regulation-and-development)-Bill-the-first-step-towards-real-estate-reform-1536-1.html.

[30] Supra at 20.

[31] Wait for one more year before you can seek shelter under Real Estate Act, THE INDIAN EXPRESS, April 29, 2016, available at http://indianexpress.com/article/india/india-news-india/wait-for-one-more-year-before-you-can-seek-shelter-under-real-estate-act-2775423/.

[32] The Real Estate (Regulation and Development) Act, 2016, section 20(1), March 26, 2016.

[33] The Real Estate (Regulation and Development) Act, 2016, section 43(1), March 26, 2016.

[34] The Real Estate (Regulation and Development) Act, 2016, section 84, March 26, 2016.

[35] Devangshu Datta, Will the new Real Estate Act be a game changer?, BUSINESS STANDARD, BUSINESS STANDARD, May 10, 2016, available at http://www.business-standard.com/article/markets/will-the-new-real-estate-act-be-a-game-changer-116051000541_1.html.

[36] Ashwini Kumar Sharma, What does Real Estate Act change for you?, LIVE MINT, May 6, 2016, available at http://www.livemint.com/Money/Kxt8ReSnyYfZiAnkCF8ToJ/What-does-real-estate-Act-change-for-you.html.

[37] Tejaswinee Roychowdhury, Critical analysis of the Real Estate Act, May 11, 2016, available at http://www.letscomply.com/knowledge-hub/2016/05/critical-analysis-real-estate-act/.

[38] The Real Estate (Regulation and Development) Act, 2016, section 92, March 26, 2016.

[39] Bhushan Shah and Labdhi Shah, Update: Real Estate (Regulation and Development) Bill, 2016, March 19, 2016, IndiaCorpLaw, available at http://indiacorplaw.blogspot.in/search/label/Real%20Estate. (last accessed on May 18, 2016).

In this blogpost, Pramit Bhattacharya, Student, Damodaram Sanjivayya National Law University, writes about the basics of Money Laundering. The post highlights the concept of Money Laundering and what are the stages followed to turn illegitimate money into legitimate money. The post also touches upon the PML Act in a concise manner.

Money Laundering is the process in which money made through criminal means is turned into supposedly legitimate money or as we say in common terms “white money.” So, in simple words, money laundering is transforming black money into white money through various means. In recent times, money laundering is being associated with financial crimes especially with the misuse of the financial system. Money obtained from crimes like extortion, tax evasion, insider trading, gambling, etc. is dirty money. The person who makes money from such activities needs to “clean” this money so that banks or any other institution accept that money without any misgivings.[1]

Some legal systems define money laundering as a mystifying source of money. It does not matter whether the money was made intentionally or by just using the loopholes in the financial system that couldn’t identify the source of the income. Other legal systems define money laundering to include money from such activities which would have been an offense in that particular legal system, even if the money was legally made in some other legal system.[2]

Many authorities try to give approximate estimates every year about the amount of laundered money within the economy worldwide. International Monetary Fund, in the year 1996 estimated that about two to five percent of the money in the global economy is laundered. The Financial Action Task Force[3] on Money Laundering stated that practically it is impossible to estimate the amount of laundered money in an economy, and hence FATF does not provide any figures in this respect.[4]

When any illegal activity is generating a lot of profit, the person or the group engaged in such activities need to control the profits, without drawing suspicion to themselves. Criminal do this by changing the form of the money, disguising the source of the money or transferring the money to a place where it is not likely to draw much attention.

The three stage process of money laundering[5]

The whole process of money laundering can be segmented into three levels [note that money laundering as a whole is a single process]. These stages are-

1. Placement Stage
2. Layering Stage
3. Integration Stage

1. Placement Stage

In the Placement stage, the cash or the funds are moved from its source. There are ways through which the original source of the funds can be disguised and camouflaged. This can be done by placing the money into circulation through shops, casinos, etc. The Placement stage can be achieved through various means such as-

• Bank Complicity– This situation arises when financial institutions or banks are owned by individuals who themselves are crooked and scheming. They may chalk out deals with drug dealers, human traffickers and other criminal syndicates, which makes the process of laundering very easy. The liberalization provided by the financial institution let them launder the money without much difficulty.
• Currency smuggling– Currency Smuggling means physically moving any financial instruments or currency out of the country through illegal means. Physical smuggling does not leave a trail to be followed to track the money.
• Asset Purchase– one of the oldest and classic money laundering method is to purchase some asset with the laundered money and change the form of the proceeds.[6]
• Currency Exchanges– in many economies exchange of currency is not stringent and can be done easily which provides room for movement of the money.
• The Blending of Funds– The best place to hide something is to keep it with similar things. This way financial institution may act as a medium of money laundering (not always intentionally) where funds are blended with one another, and it becomes difficult to distinguish between the sources of money.

2. Layering Stage

In this stage, the launderers try to remove the trail of their illegal money so that it becomes more difficult for the law enforcers to track down the source of money. The layering stage includes methods[7] such as-

• Hard Cash Converted into Monetary Instruments– Once the funds are placed in the financial system, the funds are used to buy some monetary instruments like bonds and securities.
• Material Assets bough with laundered money and sold subsequently– Assets are bought with the illegal funds and then they are sold within the local market which makes it difficult to track the source of money.

The Layering stage comes after the Placement stage. This stage is the most complex as it involves separating the illegal money from its source. This is a very sophisticated process as it involves destroying of any previous links of the funds with the original crime.[8]

3. The Integration Stage

In this stage, the money previously laundered is moved into the economy. This is dissimilar to layering, for in the integration process detection and identification of laundered funds are provided through informants. The methods used in this stage are-

• False Export/ Import Invoice– this method has proved to be very efficacious in integrating illicit funds into the economy. In this methods, import/export values are over marked in the books and then justify the funds.
• False Loans and Front Companies– In countries where corporate secrecy laws apply, the criminal groups or individuals open up their companies and use the laundered money to fund such companies, thus turning the funds into a legal form.
• Property Dealings– One of the common practices to launder money is the sale of property to integrate the laundered money back. Many launderers open up shell companies and buy property through the laundered money and later selling them. The sale proceeds are then shown as a legitimate source of income.
• Foreign Bank Complicity– Many launderers take the help of foreign banks to turn their black money into white money. The willing assistance of the foreign banks is protected against sanctioning.[9]

Types of money laundering processes–[10]

1. Structuring – This process is also known as smurfing. In this method, the laundered money is broken up into small quantities and then turned into deposits so as to avoid suspicion of laundering. These small sums of money are also used to buy financial instruments such as bearer bonds and money orders, etc.
2. Cash Intensive Business- In this methods, a business which receives a lot of cash for its transactions deposit the cash in a particular account and then deposit the laundered money in the same account, thus infusing the legitimate and the illegitimate money. Later all of it is claimed as legitimate money.
3. Trade Based Laundering – In this method, transactions are overvalued or undervalued in the books to disguise the original source of money.
4. Round Tripping- in this method, money is often deposited in offshore accounts where minimum records are maintained, and then shipped backed as FDI.
5. Bank Capture- In this method, a controlling interest in a bank or a financial institution is bought by the launderers who then move the money through the banks without much inspections.
6. Tax Amnesties- Those that legalize unreported assets in tax havens and cash.[11]

Anti-Money Laundering Law in India

In India, the Prevention of Money Laundering Act, 2002, regulates money laundering. The PMLA was enacted in the year 2003 and came into force along with accompanying Rules in July 2005. Section 3 of the PMLA states that whosoever directly or discursively who attempts, or assists, or is a party to turn criminally obtained money into untainted source will be guilty of the offense of money laundering. The Act also states the duty upon the financial institutions and banks to verify and maintain records of all its clients and also of all transactions. They might be asked to furnish such information to the Financial Intelligence Unit- India (FIU- IND) and the banks and financial companies will be bound to furnish such information. The Director of FIU- IND can also penalize banks and financial institutions if they fail to comply with the provision of the PML Act.[12]

PMLA also authorizes listed officers to carry out an investigation in cases of money laundering. They are also empowered to attach the property which has been obtained through laundered money.

PMLA envisages designation of one or more courts of sessions as Special Court or Special Courts to try the offenses punishable under PMLA and offenses with which the accused may, under the Code of Criminal Procedure 1973, be charged at the same trial. PMLA also empowers the Central Government to team up with Government of any other country to prevent any offense under PMLA or the equivalent law of the other country.[13]

Development of PML Act

The Act was amended in 2012, and the PML (Amended) Act, 2012 was introduced. With the amendment, the definition of money laundering was broadened. Now the definition brings under its purview possession, acquisition, concealment of laundered money as a criminal offense. Earlier, money-laundering crimes with the exception of serious ones like terrorism were taken up only when the money involved was Rs. 30 lakh or above. With the amendment, the threshold was removed. Now, all money laundering offenses, whether big or small, will be taken up for investigation.

The PMLA was earlier amended in the year 2005 and 2009 also. The 2012 amendment received assent in January 2013 and came into effect from February 2013. The government stated that it was necessary to amend the Act, as in the year 2010, India became a part of the Financial Action Task Force, and FATF only suggested some changes to be made in the law.

Concluding remarks

Money laundering is a threat to the economy, as well as the financial system of a country. A great deal can still be done to fight the problem of money laundering, and many economies have already set up stringent anti-money laundering laws. It is very evident that money launders are very imaginative and creative. They keep coming up with new ways to turn illegitimate money into legitimate money. Therefore, the structure should be flexible enough to detect and stop new schemes.

[1] What is Money Laundering?, Duhaime, Christine available athttp://www.antimoneylaunderinglaw.com/

[2] The Anti-Money Laundering & Counter Terrorism Financing Act 2006 (Australia), the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (New Zealand), and the Anti-Money Laundering and Counter-Terrorist Financing (Financial Institutions) Ordinance (Cap 615) available at https://www.comlaw.gov.au/Details/C2006A00169/

[3] An intergovernmental body set up in 1989 to tackle money laundering across the globe.

[4] About the FATF, Money Laundering FAQ, available at http://www.fatf-gafi.org/pages/faq/moneylaundering/

[5] About Business Crime Solutions Inc., Money laundering: A Three Stage Process available at https://www.moneylaundering.ca/public/law/3_stages_ML.php/

[6] Money Laundering in the EU, Methods and Stages of Money Laundering available at http://people.exeter.ac.uk/watupman/undergrad/ron/methods%20and%20stages.htm/

[7] Supra 5

[8] What is Money Laundering, International Compliance Association available athttp://www.int-comp.org/what-is-money-laundering/

[9] Supra 6

[10] http://www.lawctopus.com/academike/money-laundering/#_edn10

[11] Tax amnesties turn HMRC into ‘biggest money-laundering operation in history, Ian Cowie available at http://blogs.telegraph.co.uk/finance/

[12] Overview(Prevention of Money Laundering), Department Of Revenue, Ministry Of Finance available at http://dor.gov.in/overview_pml/

[13] Prevention of Money-Laundering Act, 2002, Press Information Bureau, Govt. of India  available at http://pib.nic.in/newsite/erelease.aspx?relid=9941/

In this blogpost, Komal Rastogi, Student, Nirma University, Ahmedabad, writes about the legal rights of a surrogate mother, its criticisms and the government initiatives on the rights of a surrogate mother.

Nature has bestowed women with one of the most aesthetic capacity of procreating a life within herself. The birth of a child is regarded as the most beautiful thing that happened to a parent. There are certain ill-fated women who cannot bear a child due to certain physiological conditions such as a blockage in the fallopian tube, or due to the weak uterus. But now, with the advancement in the field of medicine, one of the most magnificent gift to the human kind is in the form of surrogacy.

Surrogacy is a well-accepted method of reproduction in which a woman agrees to become pregnant for the gestation purpose and give birth to a child for a contracted party. Gestational surrogacy is a kind of surrogacy in which embryo is transferred by in-veto fertilization. Since 2002, commercial surrogacy is legal in India. Surrogacy in India is only meant for couples. Gay surrogating is banned. Before 2015, foreigners were allowed to have a surrogate mother only after showing their medical visa and on the fulfilment of criteria of legally married for two years. But now, foreigners are also barred from hiring a surrogate mother from India.

There is no legislation governing surrogacy agreement in India.[1] Due to lack of legal framework, the interest of the surrogate mothers is not respected which ultimately leads to their exploitation Ranjana Kumari, Director of Centre for Social Research (CSR) stated that “Due to the commercialization of surrogacy, the plight of the surrogate mother and the unborn child is often ignored. There is a need for a concrete legal framework to monitor and regulate the existing surrogacy system to safeguard the interests of surrogate mother and the child.”[2]

It is an acknowledged fact that whatever human beings have invented, they have misused it more than using it for the betterment of mankind. Surrogacy is no exception to this. The commercialization of surrogacy has elevated the fears of the black market and baby selling; turning disadvantaged women into baby producers.

Commercial surrogacy degrades the quality of pregnancy to a service and converts an infant to a product. Similar to dealing with any other commercial products, people often lay down conditions to have a baby as if they are purchasing goods.

Women who are taking the assignments of a surrogate mother usually come from a lower class or a lower middle-class background especially those who are in need of money. Due to the lack of provisions and laws in India, surrogate mothers are exploited, and most of the benefits are taken by commercial agencies and middlemen. There is no transparency in the whole system of surrogacy. The amount of money which a surrogate mother get is very diminutive.

The condition of a surrogate mother is very miserable. The illiterate women of the rural background are forced by their spouse to be a surrogate to gain money. These women do not have their rights to take decisions of their body and life.

In the case of Manji Yamda v. The Union of India, in a petition for divorce the court also had to deal with the question of granting of custody of the child, the child being the one born out of the process of surrogacy. This is another reason why it is important to have proper laws for the surrogate mother.

In fact, the Indian mother did not want to go the child after surrogacy as they are personally attached to the child. These agreements of the surrogate mother have become a sales commodity and a means of livelihood for some people. There are many more problems relating to the surrogacy. There are situations where the contracting party lays down conditions for the surrogate mother, for example, they have to stay in a hostel for eight months on the pretext of taking antenatal care. This is a pity situation for them because they have to stay away from their families with the perpetual fear of their families well being

Problems also arise in regard to the rights of the child. There are no rights of a child. Handing over the child after delivery may hamper breastfeeding. Children born out of surrogacy do not get the opportunity to meet his or her surrogate mother

Initiatives were taken by Government

The Law Commission of India has submitted the 228th report on “need for legislation to regulate Assisted Reproductive Technology Clinics as well as rights and obligations of parties to surrogacy.”[3] The report submitted have following observations:

Firstly, selective sex surrogacy should be banned. Secondly, the right to privacy of the surrogate mother and the donor should be protected.

Thirdly, in the case of the abortion of a surrogate mother, the matter should be governed by the Medical Termination of Pregnancy Act 1971 only.

Fourthly, there should be life insurance policy for the surrogate mother who is contracting for surrogacy.

Fifthly, “legislation itself should recognize a surrogate child to be the legitimate child of the commissioning parent(s) without there being any need for adoption or even declaration of guardian.”[4]

Sixthly, the surrogacy agreement should provide financial support to the child in case of the death or divorce of contracting couple.

Seventhly, the arrangement for the surrogacy will continue to have a contract but with the consent of surrogate mother along with the agreement from her husband and family members to bear a child.

Eighthly, “one of the intended parents should be a donor as well because the bond of love and affection with a child primarily emanates from the biological relationship. Also, the chances of various kinds of child abuse, which have been noticed in cases of adoptions, will be reduced.”[5]

Moreover, there are many bills which have been made since 2005 named as Assisted Reproductive Technology Bill. The recent bill for the legal rights of the surrogate mother is the year 2014.

The bill provides certain rights to the surrogate mothers as they are not aware of their rights and contractual obligations which are provided to them.

The bill proposed that it should be made mandatory for the couple to accept a child from surrogate mother irrespective of any abnormality or gender of the child.

The contractual agreement should make it compulsory for couples to submit a certificate indicating that child born through surrogacy is linked with them genetically.

The other provision mentioned in the bill is that the age of the surrogate mother should not be less than 23 years, and anyone can be a surrogate mother either a single parent, widow, divorced or married women.

The bill also included various other provisions to regulate the Assisted Reproductive Technology Clinics in India. “No assisted reproductive technology clinic shall offer to provide a couple with a child of a pre-determined sex.”[6]

Conclusion

Although the cases which go to courts are dealt by judges in the way of providing guidelines such as foreigners are barred from hiring a surrogate mother in India or gay people are not allowed to have a child through surrogacy. But there is no specific law that can govern the legal rights of a surrogate mother. It has been observed that there are certain bills which are made for the rights of the surrogate mother, but the bill has always been put on hold. There are almost 4-5 bills of Assisted Reproductive Technology which are pending in the Lok Sabha, and none of them has been looked into properly. Hence, it is an urgent need for the country to have explicit laws on the legal rights of the surrogate mother.

[1] Retrieved on http://surrogacycentreindia.com/legal-considerations.html

[2] Retrieved on http://www.thehindu.com/news/national/not-enough-safeguards-for-surrogate-mother-child-says-study/article4924014.ece

[3] Retrieved on http://surrogacylawsindia.com/legality.php?id=%207andmenu_id=71

[4] Ibid

[5] Ibid

[6] Retrieved on http://www.gktoday.in/blog/draft-art-regulation-bill-2014/

In this blogpost, Mr.Sreeraj.K.V, Student, Government Law College, Ernakulam, Kerala writes an article on the topic Public interest litigation in India. This article covers areas like definition and scope of Public Interest Litigation, its objectives as well as procedures, merits and demerits and various major cases dealing with the issues relating to the topic.

The definition regarding the term ‘public interest litigation’ is that it is the litigation for the public interest. In India, Article 32 of the Constitution contains provisions regarding the involvement of public in the judiciary.  A Public Interest Litigation (PIL) may be introduced in a court suo moto, rather than the aggrieved party or any other third party. In such a suit, the right to file the suit is given to the member or by the Court through judicial activism. The member of the public may be a non-governmental organisation (NGO), an institution or an individual.[1]

Even though Public Interest Litigation (PIL) is not defined in any statute or any Act, it has been interpreted by the judges to consider the intend of the public at large. There are certain objectives of PIL which, according to Justice V.R. Krishna Iyer, “is a process of obtaining justice for the people, of voicing people’s grievances through the legal process. The aim of PIL is to give to the common people of this country access to the Courts to obtain legal redress”[2] According to the Supreme Court’s guidelines regarding the filing of Public Interest Litigation, it complies of the following letter petitions such as:

1. Bonded labour matters
2. Neglected children
3. Non-payment of minimum wages to workers and their exploitation
4. Petitions from jails complaining of harassments, release on personal bond, speedy trial as a fundamental right
5. Petition against police for refusing to register a case, harassment at police station
6. Petition on harassment of women, rape, kidnapping or murder
7. Petitions on harassment of scheduled caste, scheduled tribe and other economically backward classes.
8. Petitions pertaining to environmental pollution, disturbance of ecological balance, maintenance of heritage and culture, forest and wildlife etc.
9. Petitions from riot victims
10. Family pensions.[3]

Procedures to file a PIL in the Court

Any citizen can approach the court for public case (upon the interest of public) by filing a petition:

• In Supreme Court under Article 32 of the Constitution
• In High Court under Article 226 of the Constitution
• In the Court of Magistrate under Section 133 crPC.

At present, a court can treat a letter as a writ petition and take action upon it. In such cases, the court has to be satisfied that the writ petition complies the following:

1. Where the letter is addressed by the aggrieved person
2. A public spirited individual
3. A social action group for the enforcement of legal or Constitutional rights to any person who, upon poverty or disability, are not able to approach the court for redress.[4]

There are certain merits as well as demerits of the Public Interest Litigation (PIL). They are:

Merits

• Vigilant citizens can find an inexpensive remedy because there is only a nominal rate of court fees.
• Litigants can focus attention on and achieve results pertaining to larger public issues especially in the field of human rights, consumer welfare and the environment.

Demerits

• Many people started handling PIL as a tool for harassment because frivolous cases can be filed without heavy court fee as compared to private litigations.
• Due to the flexibility of character of the PIL, the opposite party gets an opportunity to ascertain the precise allegation and respond to specific issues.
• The judiciary has been criticised due to the overstepping of its jurisdiction and that it is unable to implement its orders effectively.
• PIL is being misused by the public agitating for private grievances in the grab of public interest by seeking publicity rather than supporting the public cause.[5]

Justice Krishna Iyer in the case of Fertilizer corporation Kamgar union v. Union of India[6] enumerated the following principles on Public Interest Litigation such as:

• The exercise of State power to eradicate corruption may result in unrelated interference ‘s of individuals right.
• Social justice want’s liberal judicial review administrative action
• Restrictive rules of standing are an antithesis to an effective system of administration.
• Activism is essential for participative public justice.

There are many famous personalities who dedicated their life in serving the people and the society. One among them were M.C. Mehta, a lawyer by profession, acted in such a way that by looking to the number of PIL filed by him, it will be clear that many landmark judgments in various fields mainly environment was obtained by him. Some of them include:

1. Child labour case
2. Oleum gas leakage case
3. Delhi vehicular pollution case
4. Gamma rays case
5. Ganga pollution case etc.[7]

There are a lot of other cases which involved public participation or Public Interest Litigation as one of the main causes for the case and its judgment. In the case of Sheela Barse v. State of Maharashtra[8], the case dealt with a historical judgment on the issue of custodial violence against women. The Court held that there must be separate police lockups for women convicts to protect them from further trauma and brutality. In the case of M.C. Mehta v. Union of India[9], it lead to the landmark judgment which lashed out at the civic authorities allowing untreated sewage from Kanpur tanneries making its way into the Ganges.  In the case of Paramanand Katara v. Union of India[10] , Supreme Court held that in the field of Public Interest Litigation, which was filed by a human rights activist for general public interest that it is a paramount obligation of every member of medical profession to give medical aid to injured person as soon as possible without waiting for any procedural formalities.[11]

Conclusion 

Public Interest Litigants, all over the country, has not taken very kind towards various court decisions. It is a welcome move from the part of the judiciary that no one in the country even PIL activists must be responsible and accountable. Now a day, PIL are increasing in number as there are a number of incidents which curtails or hurts the feeling of people as well as their rights as the citizens of the country. For instance, mass petitions were filed in many rape cases as well as murder cases in our country due to the lack of interest from the part of investigating agencies and even from the part of Government. The Supreme court has also set up  legal aid in favour of the millions of people in India, and it also plays an inevitable role in the field of PIL in expanding its scope so that it turns to be a counter balance to the lethargy as well as inefficiency of the executive.[12] Hence, the machinery governing Public Interest Litigation is undergoing a serious reconstruction or rethinking for possible developments in this field so that the people deserved will be awarded justice as well as the people who abuses it will be punished accordingly.

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

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

[1] Retrieved on: https://en.wikipedia.org/wiki/Public_interest_litigation_in_India

[2] Retrieved on: http://www.vakilno1.com/legal-advice/know-public-interest-litigation-pil.html

[3] Retrieved on: http://supremecourtofindia.nic.in/circular/guidelines/pilguidelines.pdf

[4] Retrieved on: http://www.vakilno1.com/legal-advice/know-public-interest-litigation-pil.html

[5] Retrieved on: http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=a4a599a3-ee92-41da-aa0b-                                                                   b4201b77a8bd&txtsearch=Subject:%20Jurisprudence

[6] Fertilizer corporation Kamgar union v. Union of India 1981 AIR 344

Retrieved on: https://indiankanoon.org/doc/1171702/

[7] Retrieved on: http://blog.ipleaders.in/public-interest-litigation/

[8] Sheela Barse v. State of Maharashtra JT 1988 (3) 15

Retrieved on: https://indiankanoon.org/doc/6004/

[9] M.C. Mehta v. Union of India 1988 AIR 1115

Retrieved on: http://www.thequint.com/india/2015/08/29/5-public-interest-litigation-cases-that-changed-our-  lives-forever

[10] Paramanand Katara v. Union of India AIR 1989, SC 2039

[11] Retrieved on: http://www.ngosindia.com/resources/pil.php

[12] Retrieved on: http://www.ngosindia.com/resources/pil.php

In this blogpost, Abhiraj Thakur, Student, NALSAR University of Law, writes about the conditions when due to the wrongs committed by the servants of the state, constitutional rights of a person are violated. How far can the state be accorded liability under the tort law? How has this concept grown over the past centuries.

What are Constitutional Torts?

Tort[1] is a civil wrong which results in unliquidated damages(Damages that are not predetermined) if one person violates the legal right of the other. But if the individual is violating other’s legal right is rather a government servant then the torts arising will be categorized as a constitutional tort[2]. The constitutional torts are solely based on the concept of vicarious[3] liability of the state for which the maxim stands as “quifacit per alium facit per se” i.e.  He who acts through another does the act himself. The concept of vicarious liability postulates that if an employee commits a tort in the course of employment, then his master or employer will be vicariously liable despite the fact that he himself did not commit the tort.

So, the inherent principle of constitutional tort can be built as to whenever a tort is committed by a government servant in discharge of a non-sovereign function the state is vicariously liable for the said tort.

Historical Approach to State Liability

In medieval Europe, the primary duty of the king was to ensure protection of people and their property and maintain a peaceful ambiance having equitable laws. In the discharge of this duty, the king was not immune to pay compensation to public in general. The instances of king paying compensation for stolen property to aggrieved party when the officials cannot recover the said stolen property make the scenario quite evident. But in English legal system the similar liability of king was completely absent as they regarded the notion that “the king can do no harm” but due to the fact that immunity enjoyed by British crown did not particularly extend to the East India company neither of the acts dealing with State liability provided any immunity to the Company or Secretary of the state of India[4].

State liability during British period was accorded with a different definition by different Acts. Initially, it found a place in the Government of India Act 1858 which said that the secretary of state can sue and be sued for liabilities and disregarded to extend the immunity which the Crown enjoyed. Further, the concept evolved, and most refined and precise form was traced in Section 176(1) of Government of India Act 1935[5] which also forms the basis for Article 300 which provides state liability in the present scenario.

Liability of State

The doctrine of state liability was first highlighted in P. & O. Steam Navigation Co. vs. Secretary of State[6] which involved the accident of plaintiff due to the negligence of government servants. In the historical case, Sir Barnes Peacock C. J. held that the immunity which British crown enjoyed cannot be extended to East India Company and hence the state was liable to pay the compensation. This case is also significant because apart from state liability it also showcased the distinction between sovereign and nonsovereign function of state. During the post-independence period, Devaki Nandan Prasad v. State of Bihar[7] was the breakthrough case which adjudged the novel concept of Compensatory Jurisdiction and constitutional tort. In this judgment the court apart from granting the petition also provided a sum of Rs.25000 as exemplary cost.

Can civil liability arise as a consequence of the violation of constitutional right?

Though the concept of state liability was incorporated way back during British rule, the main concern was that whether a civil liability can arise as a consequence of the violation of constitutional right. So, the first case which dealt with this issue was Rudul shah v. State of Bihar[8]. In this case, the petitioner Rudul Shah suffered an unlawful detention for about 14 years. It was in this case that the court held that it would be mere lip-service as to protection of fundamental rights if the petitioner is not awarded the optimal compensation for the gross violation of Right to life and liberty. After the aforementioned case the concept of constitutional tort was highlighted in a number of cases one such being Bhim Singh v. State of Jammu and Kashmir[9]. In this case, the court held that if a person complains that his/her legal right has been invaded the court has jurisdiction to provide the aggrieved party with monetary compensation.

In Nilabati behera v. State of Orissa[10] the court gave an important proposition that sovereign immunity from tortious acts of state officials is different from state’s liability for contravention of the fundamental right. Hence, the defense of sovereign immunity finds no place in the claim for constitutional remedies under Article 32[11] and 226[12] vis-à-vis the compensation for contravention of constitutional rights.

How far can the liability extend?

• Is it available to foreign Nationals Also?

The most celebrated judgment in regards to civil liability in consequence of the violation of the fundamental right which inter alia discussed the contours of this liability was of Chairman, Railway board v. Chandrima das[13]. In this case, a Bangladeshi woman on her way to the holy shrine in Ajmer was raped by railway officials in Kolkata. Later, a petition under Article 226 was filed by Chandrima Das a practicing advocate of Calcutta high court against railway board to seek compensation for Hanufa Khatun. It was contended that Hanufa Khatun being a foreign national is not entitled to compensation as no constitutional right were violated.

The court after considering various issues put forward by Petitioner and respondent granted a compensation of Rs. 10 lakhs. Firstly, on the grounds of Domestic jurisprudence based on constitutional provisions and the grounds of Human rights Jurisprudence based on Universal Declaration of Human Rights, 1948. Supreme Courts also contended that rape qualifies to be a gross violation of fundamental right to life and personal liberty which is available to a person in general. Hence, Court awarded a compensation claiming that the foreign tourist and visitors owe a behavior of high dignity which an obligation is resting on each citizen of the country.

The court rightly observed that allowing a complete immunity in nature of sovereign functions may result in misuse of the said powers.

Law is not static but dynamic, In the modern world having a complex society the encounters between the people and state have become frequent in number and relevant in nature. Hence these encounters often result in legal mishaps demanding redressal. Also, most of these cases fall under the ambit of tort law because of the fact that to seek redressal through civil court tort law is the one branch which appears most feasible owing to fact of its vastness. So, it’s evident that tort law being still in its evolving stage owes a great importance and state liability being its part can be a genuine tool for redressal against the violations committed by the state officials.  

[1] TORT: DEFINITION OF TORT IN OXFORD DICTIONARY (BRITISH & WORLD ENGLISH), http://www.oxforddictionaries.com/definition/english/tort

^[2]  DOCTRINE OF CONSTITUTIONAL TORT: EVOLUTION AND EVALUATION, http://www.legalservicesindia.com/articles/dct.htm.

[3] VICARIOUS: DEFINITION OF VICARIOUS IN OXFORD DICTIONARY (BRITISH & WORLD ENGLISH), http://www.oxforddictionaries.com/definition/english/vicarious

[4] HISTORICAL PERSPECTIVE OF LIABILITY OF STATE IN INDIA, http://shodhganga.inflibnet.ac.in/bitstream/10603/37607/8/08_chapter%202.pdf

[5] “The Federation may sue or be sued by the name of the Federation of India and a Provincial Government may sue or be sued by the name of the Province, and without prejudice to the subsequent provisions of this chapter, may subject to any provisions which may be made by Act of the Federal or Provincial Legislature by this Act, sue or be sued in relation to their respective affairs in the like cases as the Secretary of State in Council might have the power to sue or be sued if this Act had not been passed.”

[6]Peninsular and Oriental Steam Navigation Company v. Secretary of State for India 1869 ILR 28 Bom 314

[7] Devaki Nandan Prasad v. State of Bihar AIR 1983 SC 1134

[8] Rudul Shah v. State of Bihar AIR 1983 SC 1086

[9] Bhim Singh v. State of Jammu and Kashmir AIR 1986 SC 494

[10] Nilabati Behra v. State of Orissa AIR 1993 SC 1960

[11] Art. 32, The Constitution of India.

[12] Art. 226, The Constitution of India.

[13]  Chairman, Railway board v. Chandrima das AIR 2000 SC 988