In this blogpost, Sristy Ghosh, Student of the University of Calcutta and  the Diploma in Entrepreneurship Administration and Business Laws by NUJS, writes about duties of directors and shareholders in a one person company. 

Introduction

Directors are authorized and responsible for the carrying out of business. They are also to manage the various affairs of a Company.

A new revolutionary concept of a One Person Company was introduced in the revised Companies Act of2013. It gives an individual entrepreneur all the benefits of a Company. According to the Companies Act of 2013 and various other corporate laws in force, the duties and liabilities of a Director depend entirely on the nature of its business.

A One Person Company shall have a minimum of one Director, and it is a type of a Private Company. So, we can say that the duties of a Director in a One Person Company are similar to that of a Private Company. The sole shareholder can be the Director of the Company.

Duties of the Director in a One Person Company

In discharging the duties of his eminent position, a director must act fairly and take care of the various business activities as his own, and in the case of a One Person Company, it his indeed his own. Directors are regarded agents of the Company, and he or she exercises the power that is conferred on them in Memorandum of Association. He usually discharges the following duties as per the Companies Act, 2013:

• The duties and liabilities which encourage and promote the sincerest investment of the best efforts of directors in the efficient and prudent corporate management, in providing elegant and swift resolutions to various business related issues including those which are raised “ red flags”, and in taking fully mature and wise decisions to avert unnecessary risks to the company.
• Fiduciary duties which ensure and secure that the directors of companies always keep the interests of the company and its stakeholders, ahead and above their own personal interests.

As per section 166 of the Companies act, a director must be acting in accordance with the Article of Association (AOA) of the Company. There lays down the following rules:

• A Director of a Company shall act in good faith, in order to promote the objects of the company, for the benefits of the company as a whole, and in the best interests of the stakeholders of the company.
• A director must exercise his duties with due and reasonable care, skill and diligence and shall exercise independent judgement.
• A director of a company shall not be involved in a situation in which he may have a direct or indirect interest that conflicts, or possibly may conflict, with the interests of the company.
• A director of the company shall not achieve or attempt to achieve any undue gain or advantage either to himself or to his relatives, partners, or associates and if such a director is found guilty of making any undue gain, he shall be liable to pay an amount equal to that gain to the company.
• A director of a company shall not assign his office and any assignment to anyone else, if it is made by him, then it will be made void.
• If a director of the company contravenes the provisions of this section, such a director would be punished with fine which shall not be less than one Lakh rupees and may not exceed five lakh rupees.

Duties of a shareholder in a One Person Company

A One Person Company has only one shareholder, however, joint holder of shares would not constitute double membership. Where more than one person is holding shares jointly as joint holders of those shares, then they will be treated as a single member, and they can form a one person company.

Since it has only an individual as a shareholder, the provisions related to shareholder meetings and methods of voting, the appointment of proxies, the appointment of chairman are not applicable to the One Person Company.

In the case of joint holding of shares, the duties of the shareholders are quite like partners in a Limited Liability Partnership. The duties of a shareholder when there is a joint holding of shares are:

• Since an OPC is a separate legal entity, an obligation whether arising out of a contract or otherwise is completely depending on the shareholders of the Company.
• Every shareholder, when there is the joint holding of shares will act as an agent for the other as in a Limited Liability Partnership or Partnership.
• Liability of shareholders shall be limited except in the case of unauthorized acts, fraud, and negligence.

As a One person Company is centering around one single person (at most two in the case of a joint holder of shares), the owner, director and shareholder is usually the same person. Therefore all the duties that need to be discharged, whether by a Director or a Shareholder needs to be done by one single person. That individual is the all in all of the Company and in him lays all the responsibilities of the Company. Some of the duties are listed down in the following points:

• Whether the Company is complying with the provisions of the Company Act, 2013,
• Whether the Company is following the charter of the Company (i.e. Memorandum of Association),
• Whether it has proper audit reports,
• Whether it is paying the taxes properly,
• Whether its employees are working properly, and sundry other duties lay on him.

Conclusion

A director of a company must avoid any situation in which he has, or can have, a direct or indirect interest that conflicts or may conflict with the interests of the company. This applies in particular to the exploitation of any property, information or opportunity. It does not apply to a conflict of interest arising in relation to a transaction or arrangement with the company or if the matter has been authorised by the directors[1].

[1] http://www.icaew.com/en/members/regulations-standards-and-guidance/members-in-business/financial-and-accounting-duties-of-directors

In this blogpost, Abhay Singh, Student of Amity University, Rajasthan and the Diploma in Entrepreneurship Administration and Business Laws by NUJS, writes about What is  an LLP, features and advantages of LLP, Tax liability of an LLP and the procedure of conversion of an LLP into a company.

A new trend that has been observed of late is that people are now switching to LLP (Limited Liability Partnership).

LLP emerged from Limited Liability Organisations i.e. Companies and Unlimited Liability i.e. Partnership/Proprietorship. With growing impact of service sector, there was a need to bring in existence hybrid of these two types i.e. Companies and Partnership/Proprietorship.

In Companies the liability of the owners are limited as compared to Partnership/Proprietorship which is easy to form. Hence, it led to the emergence of Limited Liability Partnership (LLP) which would provide benefit to both Companies and Partnership form of organisation. This was emerged with the need of bringing the midway out of these two already existing form of organisation.

Understanding of Limited Liability Partnership (LLP) as form of Organisation

It is a form of Organisation that enables the expertise of the business organisation to operate in a flexible and efficient manner with the benefit of limited liability and operation can be done i.e. internal structure can be managed as Partnership form of organisation. It is governed by Limited Liability Partnership Act,2008 which includes 81 Sections and 4 Schedules.

Features of LLP

• Separate Legal Entity- LLP has its own separate legal entity apart from its members, this basically mean LLP can enter into any agreement with its own name and can sue and be sued.
• Two Partners- For starting an LLP form of the organisation only 2 partners are needed. However no limit for a maximum number of partners.
• Capital- No minimum requirement for capital contribution.

Advantages of LLP

• No minimum capital contribution is required.
• Easy to form.
• Liabilities of the partners are limited.
• Having separate legal entity means LLP can sue and be sued in its own name.

Disadvantage of LLP

• It cannot raise funds from public as companies do.

Taxation of LLP in India

The government of India has notified that LLP would be taxed in the same manner as Partnership form of organisation i.e. tax will be charged on LLP and not on partners or members.

No tax would be levied on conversion of Partnership into LLP.

This was the basic introduction about what LLP is and how it has emerged over the country. Basically, introduction part deals with brief information about the LLP its merits and demerits so as to provide information regarding how it is different from Company form of organisation and Partnership form of organisation.

Conversion of Company into LLP

Under the Companies Act 2013 which came into effect on 1^st April 2014 there are many compliances which were cost effective for small enterprise so they decided to convert from Companies to Limited Liability Partnership (LLP).

A registered Company in India has to go through much complex formalities which lead to the adding up of overhead cost for managing affairs and mandatory boards meetings , maintenance of statutory records,  filling of form with Ministry of Corporate Affairs (MCA) etc.

Therefore, the need was felt by the small business enterprise to for LLP. As in Limited Liability Partnership (LLP) there is no such mandate which is to be fulfilled for the commencement of business.

In India LLP is governed by the Limited Liability partnership Act 2008 and is exclusively governed by the rules and regulations given in the LLP Act 2008 and LLP Rules 2009.

The bodies that are directly concerned with registration of LLP are :-

• Ministry of Corporate Affairs (MCA)
• Government Of India
• Its well-established web portal for registration of Limited Liability Partnership (LLP).

Decisions related to conversion of a company into LLP

For the conversion of a company into LLP, various factors are being considered such as ‘Cost’ ‘Compliance’ and other requirements which these organisation needs to follow.

Before conversion of a Private Limited Company into Limited Liability Partnership (LLP) Cost Benefit Analysis is being made so as look out how much cost is to be incurred and how much cost will be saved if conversion is made from company to LLP.

Benefits under Income Tax

• There is no provision of Division Distribution Tax in LLP.
• Since LLP don’t give credit to MAT (Minimum Alternate Tax), therefore there is a saving of MAT tax.
• Saving of Income Tax as remuneration and interest payable to partners as salary.

Few doubts were still left which lead to the roadblock to the conversion of the company into LLP as the loopholes were there in the Finance Act, 2009 but with Finance Bill , 2010 these loopholes were overcome and these amendments took effect from the assessment year 2011-2012.

Liability on account of capital gains tax on transfer of assets and liability in a company on conversion into LLP

Finance Act, 2010 has inserted new clause in section 47 which includes following conditions are to be satisfied not consider it as transfer they are:-

• Turnover limit– It shall not exceed sixty lakhs.
• Shareholders– All the shareholders should be partners in the same proportion as they were in the company.
• Capital contribution– Capital contribution of the shareholders must be in the same ratio.
• Assets and Liabilities- All assets and liabilities of the company become assets and liabilities of LLP.
• Accumulated Profit- No accumulated profit is to be paid for a period of 3 years from the date of conversion.

If the all the above conditions are being fulfilled then, conversion shall not attract capital gain tax from the company and nor its successor LLP.

 Cost of conversion

• Unabsorbed depreciation and accumulated loss not carried over if all the conditions under section 47A(4)are not satisfied.
• Stamp Duty on the transfer of immovable assets.
• The cost of transfer of brand name, patent
• For the purpose of conversion cost of LLP (Limited Liability Partnership)

Conclusion

Hence, conversion of the company into LLP can be made with the formalities being mentioned above and the conditions which are to be fulfilled. Conversion into LLP is one of the most costs effective form of organisation i.e. it doesn’t require huge cost for setup though it cost effective too. As in the case of a company much compliance are there but in the case of LLP not very much compliances are there. It basically emerged for the small business man who had problems in handling company form of organisations.

In this blogpost, Saurodeep Dutta, Student of University of Calcutta and the Diploma in Entrepreneurship Administration and Business Laws by NUJS, writes about the legal requirements of opening a hostel in India.

Introduction

 A hostel has always been regarded as smaller, slightly cheaper alternative to a hotel, and as such, in many places, a hostel is used by students and professionals when based in a place that is not their home, a second home. This is referred to as loosely, a ‘student hostel’ which contrasts with a backpacker hostel, aimed primarily at backpackers and other tourists, referred to as the ”backpacker hostels” At the same time, the business of a hostel is also a profitable one for the discerning entrepreneur, providing multiple kinds of clientele, with a running overhead cost that is significantly lesser than the overhead cost of simple hotels, while also being a social service; providing a cheaper alternative for hospitality seeker during this time of economic turmoil. Hostels have also been known to help the local economy. Despite being easier to set up and run than an average hotel, a hostel still requires a significant amount of work, time and investment before it is ready to be open for business.

Preliminary

The first thing that a person interested in opening a hostel must engage himself in is planning. Planning is crucial to setting up a good, working hostel, which not only is comfortable and provides satiety to the people living in the hostel, but also provide a good amount of profit to the owner of the hostel.

The prospective hostel owner must attempt to plan where the location of his hostel must be, the investment that is required in order to set it up, the permissions that must be taken to set up the hostel, and the other relevant logistics that are required before setting up the hostel itself.

Location

The location of a hostel is of prime importance for any prospective hostel-owner. A hostel must ideally be located near a system of mass transit, such as an airport or a train station. It may also be located near any place where a high footfall of traveller traffic may be reasonably expected, such as some historical site or temple. The location and positioning may not be the be all and end all of a particular hostel, but it may reasonably be expected to be a huge parameter determining the success of a particular hostel. No traveller will choose to walk an extra mile from a place where they alight, or where their destination is. The prospective entrepreneur must absolutely ensure that the location must be suitable enough to guarantee traveller traffic, and according to OrangeMango.com “choice of location is the biggest factor that could make or break your business.” A location that is centrally close to the both mass transits points, as well as close to potential places of tourist interest will be the best suited.

Investment

Investment in the areas of infrastructure is of paramount importance for any discerning entrepreneur in this field, and a significant amount of capital is required to be raised for the property (either bought or rented), the living quarters of the guests, including beds, bathrooms, the kitchen, amenities, a front office for handling the arrival/departure of guests, a lounge for the guests to enjoy their time in, manpower, and other requirements. Although a hostel for backpackers doesn’t quite require the amount of capital, manpower and other infrastructure that a hotel requires, a hostel in a competitive environment must have elements which would make the hostel stand out amongst peers. A good example of this is The Smyle Inn, located in Delhi, which offers the following services to make itself stand out amongst peers[1] :-

• Complimentary Breakfast
• Free Wi-Fi and free use of computers for the guests.
• Maps and information of Delhi
• Booking services for systems of mass transit
• Airport/Railway station drop off and pick-up facilities
• Mobile SIM cards at reasonable prices.

Arranging for these services provides an extra impetus for the business itself, making it distinguishable from other hostels which are starting to become an area of competition in the Indian market.

All of these require investment, and it may be a good idea to have a significant amount of starting capital raised through various means to fulfil the requirement for a hostel to not only be a temporary home for travellers as well as being a comfortable one.

Legal

One of the most important parts of setting up, however, is the legal permits that are required before the hostel may be set up. Hostels require various types of permits as may be prescribed by the local law, and require registration. These include a number of permits, including

1. a trade license for carrying on the business of the hostel,
2. a No-objection certificate from the local municipal corporation, the municipality, or the local panchayat, as the appropriate body may be.
3. The local police station must also be informed of the hostel being brought up, and its location as well.

A trade license has become important in various parts of the country for the reason that in many places, they are thought to be a commercial establishment. The Bruhat Bangalore Mahanagara Palike (BBMP), through a resolution in 2013, made registration, and a trade license compulsory in order to operate a hostel.[2] Similar rules apply to most other areas.

Further, in order for the hostel to come up, the nearest self-governing body such as the municipal corporation, municipality or panchayat must be informed. Interested applicant may apply to the relevant corporation, and after due examination of all papers and the premises, a No-objection certificate may be provided.

The police station also requires a formal notice to be sent to it, detailing the location, name and other details of the proposed hostel, before it may legally be open. These are required as in many places; the police station is required to provide a station-specific list of hostels, prompted by a huge increase in the number of hostels that have recently opened in places of tourist interest.

Further, another requirement is that hostels be registered under the Sarai Act,1867. Any hostel not registered under the Sarai Act are liable to be closed down upon opening for business. All hostel owners are required to file the trade licenses that they have received from the concerned public body as proof of their work, along with some other permits and requirements registered below, and they will be registered accordingly.

Further, there are a number of miscellaneous permits that must be obtained. All hostels must have obtained a fire safety clearance, that may be obtained from the local fire department, clearance for the emergency services department, and a No-Objection certificate from the Pollution Control Board  and for the electricity supply, they must also have received clearance from the electricity board. These may be obtained via application to either the fire department, emergency services department, the or the electricity board or corporation that is nearest to the hostel in question. In many cases, an affidavit requiring the hostel owner to state that they have taken adequate measure for water, sanitation, lighting and security are also required. Upon production of these details, a hostel owner will be registered under the Sarai Act,1867, thereby making the hostel’s establishment a legal establishment under the Act.

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[1] http://www.hostelsclub.com/en/magazine/change-life-opening-a-hostel-in-india

[2]http://www.thehindu.com/news/cities/bangalore/trade-licence-a-must-for-pg-hostels/article5405758.ece

In this blogpost,  Kavinesh RM, Student of Lloyd Law College, Greater Noida and the Diploma in Entrepreneurship Administration and Business Laws by NUJS, writes about the basics of income tax, tax liabilities on partnership and LLP, what is the tax implication on conversion of partnership into LLP and the liability of partners at the time of liquidation.

Introduction

The Limited Liability Partnership is a partnership where some of the partners or each and every partner have limited liabilities according to their agreed contributions in Limited Liability Partnership. Even in a company, a shareholder is liable for the debts of the company only to the extent where the share capital he or she contributed be used to pay credits. So a company and an LLP is similar to each other. But the LLP is a separate legal entity, and it is liable to the full extent of its assets.

Tax laws are subject to frequent modifications introduced through the Finance act or by concerned regulatory bodies such as Central Board of Direct Taxes (CBDT) for Income Tax, Central Board of Excise and Customs (CBEC) for excise, service tax and customs and State Governments in case of VAT.

Basics of Income Tax

“A tax that governments impose on financial income generated by all entities within their jurisdiction. By law, businesses and individuals must file an income tax return every year to determine whether they owe any taxes or are eligible for a tax refund. Income tax is a key source of funds that the government uses to fund its activities and serve the public”[2].

 Income tax is governed by Income tax act, 1961. Income tax is classified as five categories under Income Tax Act; they are as follows

• Income from salaries,
• Income from house property,
• Income from Business or Profession,
• Income from Capital gains,
• Income from other sources.

Tax on Partnership and LLP’s

Partnership and LLP’s are taxed on their income at the rate of 30%. The income of partners is distributed after that is tax-free  The Profit of LLP is credited to the accounts of the partners may be exempt to tax under Section 10(2A) in the hands of partners to avoid double taxation. But as per the section 40(b) of Income Tax Act, the only salary paid to a working partner is deductible, if certain conditions are met.

The conditions are ; if authorized by the partnership deed if it relates to a period after the date of the partnership deed. It must be also within the following limits.

Taxation of LLP’s is governed by the Income Tax Act, 1961 as amended by the Financial Act, 2009 which introduced provisions for the taxations of LLP ; (effective from assessment year, April 2010 to 31 March 2011). LLP’s shall be taxed in the same manner of partnership’s income of them shall be in the hands of the LLP, and remuneration to partners shall be exempt

The Finance act made the following changes to the Income Tax Act, 1961

• ‘firm’ shall have the meaning assigned to it in the Indian Partnership Act, 1932 (9 of 1932), and shall include a Limited Liability Partnership as defined in the Limited Liability Partnership Act, 2008 (6 of 2009)

• ‘partner’ shall have the meaning assigned to it in the Indian Partnership Act, 1932 and shall include
  1. any person who, being a minor, has been admitted to the benefits of partnership as defined in the Limited Liability Act, 2008 (6 of 2009)
  2. a partner of a Limited Liability Partnership as defined in the Limited Liability Partnership Act, 2008 (6 of 2009)

• Partnership shall have the meaning assigned to it in the Indian Partnership Act, 1932 (9 of 1932), and shall include a Limited Liability Partnership as defined in the Limited Liability Partnership Act 2008 (6 of 2009).[3]

Tax implication on converting Partnership into LLP

By considering the definition given by Income Tax Act, 1961 firm includes LLP. So there won’t be any change while converting LLP into firm or firm into LLP according to the income tax laws.

Right and obligation of the partners remains the same after conversion and if there is no transfer of assets or liability after conversion

The explanatory memorandum which is attached to the Finance (NO.2) Bill, 2009 clarifies as follows,

 “As an LLP and a general partnership is being treated as equivalent in the act, the conversion from a general partnership firm to an LLP will have no tax implication if the rights and obligations of the partners remain the same after conversion and if there is no transfer of any assets or liability after conversion. If there is a violation of these conditions, the provision of section 45 shall apply.”[4]

Hence, there won’t be any capital gain either in the hands of the partners or in the hands of the firm while conversion takes place. So it does not matter whether they convert into the firm or not, all the provisions of the Income Tax Act, 1961 shall continue to apply on LLP.

Tax Deduction at Source (TDS)

                 According to Income Tax Act 1961, Tax Deduction Source means to collect the tax indirectly by the Indian authorities which are managed by Central Board of Direct Taxes (CBDT) which comes under Indian Revenue Service (IRS). But normally the receipt of remuneration or interest or remuneration and interest is being taxed as business income in the hands of LLP partner. Hence, the expense incurred by the LLP partner for a business purpose like interest payments and business loss of propriety business, if any, can be set off against receipt of interest and remuneration. No TDS deduction is necessary from the LLP while making LLP payment of interest and remuneration payment to LLP partners.

Section 10(2A) exempts the share income from the LLP in the hands of the partner. The share of a partner in the total income of a LLP separately assessed as such shall, be an amount which bears to the total income of the LLP the same proportion as the amount of his share in the profits of the LLP in accordance with the LLP Agreement bears to such profits[5].

Disallowance of interest under section 40A(2)

         As per Section 40A(2)(b) in The Income- Tax Act, 1995[6], any expenditure incurred by an assessee in respect of which payment has been made to specified persons (relative, director of company, partner of firm, person having substantial interest in business of assessee etc.), is liable to be disallowed in computing business profit to the extent such expenditure is considered to be excessive or unreasonable, having regard to the fair market value of goods or services or facilities etc.

Thus, even if payment of remuneration or interest is allowable as per section 40(b) of Income Tax Act, it can be disallowed under section 40A (2) of Income Tax Act[7].

Liability of Partners in Liquidation

                 A new Section 167C has been inserted by the Finance Act, 2009 so as to provide the provisions regarding the liability of partners to pay tax in the case of liquidation of LLP. It provides that where any tax due and cannot be recovered from- 1. LLP in respect of any income of any previous year, or 2. Any other person in respect of any income of any previous year during which such other person was an LLP. In such case, every person who was a partner of the LLP at any time during the relevant previous year, shall be jointly and severally liable for the payment of such tax unless he proves that the non-recovery cannot be attributed to any gross neglect, misfeasance or breach of duty on his part in relation to the affairs of the LLP. Section 167C supersedes the Limited Liability Partnership Act, 2008.

Although this Section appears to be in conflict with the scheme of the Limited Liability Partnership Act, 2008, which does not make the partners personally liable for the liabilities of the LLP, it seems to be in line with existing provisions of Section 179 of the Income-tax Act, which cast a similar liability on the Directors of a private company in liquidation.[8]

Conclusion

Taxation scheme for LLP has been prescribed also for the partnership firm, all provision of Income Tax Act for the tax implication on conversion of Private company into LLP. By the way, this write up has clearly mentioned that there is no TDS deduction is necessary from the LLP which making LLP payment of interest and remuneration into LLP partners which are considered as one of the important themes of this paper, which gave a clear cut about the taxation of partners of LLP’s

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[2]IncomeTaxDefinitionInvestopedia http://www.investopedia.com/terms/i/incometax.asp#ixzz3zIiXfP9v

[3] Section 2(23) Income Tax Act 1961

[4] http://www.bareactsonline.com/pdfs/2010/THE%20FINANCE%20(No.%202)%20BILL,%202009.pdf

[5] http://www.llponline.in/tax_llp.php

[6] http://indiankanoon.org/doc/345925/

[7] http://cacscorporatelaw.blogspot.in/2011/03/taxation-of-llps-in-india_09.html

[8] http://www.icaiejournal.org/Journal/1873_2011_1.pdf

In this blogpost, Sreeraj.K.V, Student of Government Law College, Kerala writes an article on the topic prison administration: a critical analysis. This article covers the importance of prisons in a democratic country, aspects regarding prison administration in India and the Importance of various fundamental rights available for the prisoners in India.

“Crime is the outcome of a diseased mind and jail must have an environment of the hospital for treatment and care.”  – – Mahatma Gandhi

Prison

A prison is a place of accommodation for the people who have committed a crime and are undergoing trial for the commission of any offense mainly criminal in nature.According to section 3(1) of the prisoners Act, 1894,‘Prison’ means any place used under the general or

Special orders of State Government for the detention of prisoners, and includes all land and buildings appurtenant thereto.[1] Prisons in India, their administration is a state subject covered by item 4 of the state list in the seventh schedule of the Constitution of India. The management and administration of prisons purely come under the authority of state Government along with the Prisoners Act 1894 and also the Prison Manuals of the concerned State Government.

The Central Government provides various rules and guidelines to the State Government  regarding proper administration as well as ensuring safety and security in the prisons . Hon’ able Supreme Court of India , in its various judgments covering prison administration, has enumerated 3 broad principles for the proper administration of prisons in India. It includes:

• A person inside a prison does not become a non-person
• A person is entitled for the enjoyment of all kinds of human rights within the limitations of imprisonment
• There is no justification for the aggravating the suffering already inherent in the process of incarceration[2] .

Supreme Court has also looked into various matters inside prisons such as overcrowding, lack of proper medical care and other facilities for the prison inmates, lack of free legal aid available for them which is provided under the provisions of the Constitution of India.

Prison administration in India

We all know that crime rate in India is increasing at a rapid pace. But there are no adequate facilities in various prisons in our country to accommodate such person at least by providing facilities for a decent living inside the prisons. Even though there are certain rules and guidelines regarding prison system and administration, many of them are not enforced properly due to the prevailing condition of prisons in India. Various surveys state that around 80% of the prisoners are under trial prisoners, and the balance 20% includes people who are convicted of various offenses as well as women prisoners. The present condition of many of the prisons is that the prison authorities are unable to meet requirements of the prisoners.  In the light of such situation, it can be stated  that it leads to an infringement of the fundamental rights of prisoners to a great extent.

While going through judgments on various cases in connection with prison administration, we understand a common fact that in such cases, prisoners have undergone various ill treatments and negligence from the part of the prison authorities. One among such cases are Neena Rajan Pillai v. union of India[3], wherein Mr. Rajan Janardhan Mohandas pillai, who was one of the famous businessmen in Singapore, Died when he was undergoing judicial custody at the Cental Jail of Tihar. In this case, Court was of a view that there is a clear case of violation of fundamental rights for the deceased from the part of prison authority, and it lead to the death of the deceased. The court also stated that during such situations wherein urgent medical assistance is required for the prison inmates, necessary arrangements may be made without any delay or else it may lead to an infringement of  the right to life under Article 21 of the Constitution.

Various committees were formulated  by the Government in order to look after  the matters inside prisons such as All India Committee for jail reforms, The mulla Committee and The Krishna Iyer Committee, which looked into the reforms and rehabilitation of prisoners as well as for the proper administration in prisons.

Rights for prisoners

As India is a democratic country, each and every person is entitled to certain fundamental rights depending upon the nature of his living. As far as the prisoners are concerned, they are denied of certain rights available to other citizens in our country. But there are certain other rights exclusively for prisoners which include[4]:

• Right to speedy trial
• Right against solitary confinement, handcuffing and bar fetters and protection from torture
• Right to meet relatives, friends and consult legal practitioner of his choice
• Right to reasonable wages in prison
• Right to expression
• Right for reasonable health care

The Act

 Looking into the Prisoners Act,1894, Chapter 2 deals with the maintenance and officers of prison. It states that there must be a superintendent,medical officer, jailer and other such officers if there is a necessity. There must be an Inspector General in every prison to discharge various functions directed by the State.  Chapter  4 of the Act purely deals with admission and removal of prisoners. The Act states that after conviction, the person must undergo thorough checking by the prison officer along with a proper medical check up by the medical officer. Act lays down various provisions for the medical checkup of prisoners. They must be undergone through proper medical checkup, and if found sick, proper attention has to be taken by the authorities.

Chapter 5 of the Act deals with discipline of the prisoners . It states that male and female prisoners, convicted and under trail prisoners shall be kept separately. Prisoners who are convicted for a death sentence must be separated from all others. But due to the overcrowding of prisons, many of the guidelines are not abled to follow by the prison authorities[5].

Rehabilitation for prisoners

As our criminal Justice administration system purely focuses on a deterrent way of handling crimes as well as criminals. It focuses on such penal approach wherein the punishment for a crime must be a warning to the society and also it must provide some sort of reformative policies to the society. In such a context various  rehabilitative mechanism which can be adopted in the prisons helps the prisoners to make changes in the character and attitude and also be aware of the impact of the crime committed by them in the society.  Rehabilitation may be done in many ways such as:

• Conducting various awareness programs for the prisoners on a periodic basis
• Conduct various counseling classes for them so that their mental condition changes positively
• Conducting various entertainment programs inside the prison premises
• Conducting classes on social issues so that prisoners will be aware of what is happening outside the walls of prison
• Increasing the skills of prisoners by arranging various small scale ventures and events inside the prison
• Changing the atmosphere of the prisons into a friendly environment by avoiding various kinds of torture and third-degree measures.

Conclusion

Prison and prison administration plays an inevitable role in the criminal justice administration system in India. Various criminologists have stated that no one in this world born as criminal, but his economical and social backgrounds make him a criminal. In the light of such views, it has to be stated that the prisoners as well as the prison administration has to be changed in such a way that they should not feel isolated in this society, and there must be a hope in their mind that they also can change themselves and be a part of development in their society. Proper food, shelter, health care treatment and other such basic necessities must be fulfilled by the concerned prison authorities in order to make the prisoners a productive group of the society after their  period of incarceration.

[1] Section 3(1) prisoners Act 1894, retrieved on https://indiankanoon.org/doc/745425/

[2] Retrieved on  : http://www.lawyersclubindia.com/articles/Prison-Administration-in-India-6178.asp#.VxlCAvkrLIU

[3] Neena Rajan Pillai v. Union of India WP (c) 1894/1998. Retrieved on :https://indiankanoon.org/doc/1524596/

[4] Retrieved  on : http://www.legalserviceindia.com/articles/po.htm

[5] Retrieved on : http://lawyerslaw.org/the-prisons-act-1894/

In this blogpost, Harsha Asnani, student, NIRMA University, Ahmedabad writes about what amounts to cruelty against men. The author also writes about various judicial pronouncements and instances of such kind.

It has been described as really unfortunate by various scholars that the Indian law on cruelty which was enacted with the objective of protecting the interests of a particular group of people is now being misused to a very large extent by way of frivolous and fallacious complaints accompanied with evil motives. The law on cruelty in India recognises only women as its victims. Indian women have been indiscriminately using this loophole as a weapon for misusing this law.

However, with the passage of time, the Indian judicial minds have started discovering this loophole and have produced certain pronouncements that aim at curtailing this menace. In a very recent judgement in the matter of Vinita Saxena v. Pankaj Pandit,[1] the Apex Court was of the opinion that the concept of cruelty varies in terms of time, place and individual. It largely depends on the type of lifestyle that the parties to a case are accustomed to, their social and economic conditions and the degree of importance that they attach to cultural and human values.

Cruelty as a ground for divorce is often raised by husbands under various personal laws. Courts have often come across instances where the wife and her relatives have tried to take advantages of the wide ambit of dowry and protection from domestic violence laws to take advantage and threaten the husband and his relatives.

What are the grounds for cruelty

Since the meaning of cruelty is very subjective, therefore there is no straightjacket formula to decide the definition of cruelty. It may depend on and vary from case to case. What may be cruelty in one case may not be in another. Mental cruelty would include causing of mental pain, suffering or the agony of such a kind and magnitude which can result in the severing of the marital bond or due to which it cannot be expected by one party to live with the other. Since all such acts have a severe impact on the physical and mental well being of the husband, therefore they have been kept under the ambit of cruelty. A cursory glance at the Supreme Court judgements illustrates that the judges consider injurious approaches, accusations, complaints or taunts and not the harmful acts as cruelty. What is necessary to be established is that the one party in the marriage had misbehaved without looking into the consequences, and the other party could not endure it. Through various judicial pronouncements the court has following principles which constitute the grounds of cruelty against husbands in India:

Humiliating the husband in presence of family members or friends and lowering his reputation by use of derogatory remarks,[2]

Undertaking termination of pregnancy without the consent of husband,[3]

Making of false allegations against the husband,[4]

Making of unsubstantiated allegations against the husband for having illicit relations with another woman,[5]

False allegations of adultery,[6]

Tearing of garland on the day of marriage,[7]

Allegations against husband of having girlfriend, not proved,[8]

Wife leading an immoral life and having illicit relations with a person other than her husband,[9]

Denial for physical relationship without sufficient reasons,[10]

Refusal of contribution in the household work,[11]

Mental distress caused to husband due to filling of complaint by wife.

Other instances of such kind may include taunting her husband with regard to any of his physical incapablities, opting for second marriage before filing an application for dissolution of her first marriage, extra-marital affairs, deliberate acts that are not welcomed by the husband, insult, threats for committing suicide, disobedience, breaking mangal sutra before the husband and his relatives, any physical harm etc., desertion by wife with deliberate intentions of separation so as to bring a permanent end to cohabitation, threats to leave marital home, threats of commission of suicide, abusing the husband in presence of office staff members, lodging of FIR later proved as false reports, pressurising husband for leaving his parents home and insistence for  a separate residence, intentionally cooking food that the husband is not fond of, keeping the husband out of household premises, etc.

With regard to cruelty against husbands in term of mental distress, there is a unique term that has been devised which is popularly known as the psychological terrorism. In lieu with the same following are the instances which would cover constitute as cruelty against husband by wife:

Harassing the husband for constant demand of money for settlement of her paternal family members;

Constant sending of money to her paternal family members of which the husband has no knowledge or without his permission;

Continuing illicit relations with her pre-marital boyfriend or developing extra marital relations at her workplace or in neighbourhood;

Showcase of aggressive and uncontrollable behaviour;

Demonstration of inhuman treatment towards her in-laws or addressing them with filthy words or loud voice coupled with the intention to create scene of public humiliation, intimidating or terrorizing them;

Habitual dishonesty towards husband and in-laws in matters where the latter have the right to be informed about in order to uphold family’s good name;

Demand for transfer of proprietary rights in her name;

Attempts for alienating the husband from his parents and relatives persuading him to abandon his old and aged parents;

Visiting her parent’s home frequently without appropriate reasons along with the children born out their wedlock and thus denying the husband access from his offsprings;

Misrepresentation of facts and information of the crimes committed against her;

Defaming her in-laws in the neighbourhood by spreading false stories of harassment;

Dictating her husband and excessive involvement in his personal and professional life;

Concealment or suppression of material facts in relation to her medical conditions which if revealed may result in negating her marriage;

Wife’s parents being cynically manipulative, misrepresenting and frequently changing their stands and opinions in order to utilize every opportunity to embarrass her husband and relatives;

Opposition to every suggestion made by the husband for settling a dispute related to restitution of conjugal rights;

Misrepresentation of her financial condition for extracting more money;

Denial of normal courtesy and respect to husband by wife’s relatives.

Legislative protection given to husbands

Although the law on cruelty assumes husbands as the perpetrators of domestic violence and wives as its victims but due to growing misuse of this assumption, there are various protections given to the husbands. As a legal recourse, the husbands can file a counter case against their wives under following sections, if they are of the opinion that the case instituted by the later is based on frivolous grounds:

1. Giving false evidence u/s 191,
2. u/s 192 for fabrication of evidence,
3. u/s 196 for using false evidence knowing it to be false,
4. u/s 209 for dishonestly making false claims in court.
5. u/s 211 for false charge of offence made with intent to injure

The courts have been of the opinion that the marital laws should be such that their practical implementation results in a striking balance between interests of both the parties to marriage. Stringent punishments should be imposed to create deterrence effect on those who misuse it. Baseless allegations result in the wrongful confinement of innocent individuals. They have to spend their precious times in the jails with hardened criminals which in turn causes severe impacts on their personality and thinking. Useless allegations, irrespective of their magnitude and nature should be avoided.

Also, in the Indian regime, there is a widely accepted tradition of exchanging gifts at matrimonial occasions. As per the Hindu Marriage Act, such gifts given are termed as streedhan over which the wives have sole control, but its benefits can be accrued to both the husband and wife. Due to this, it becomes difficult to create a distinction as to whether a demand was made by husband and his relatives for dowry or the property was willfully given to the girl by her parents or relatives. If the marriage turns sour, it provides a scope to the wife for making wrongful allegations that the husband has made an illegal demand for dowry.

It is indisputable that women are subjected to cruelty but at the same time, it must be ensured that the law is not made wide enough which results in its misuse. Husband and his family members should not at once be posed to serious challenges but should be given due opportunity to respond to the allegations. Family members who are reputed and responsible citizens with no criminal record should be given due consideration as misuse of laws create irreparable damage and results in victimisation.

[1] (2006) 3 SCC 778.

[2] Krishna Banerjee v. Bhanu Bikash Banyopadhyay AIR 2001 Cal 154.

[3] Satya v. Siri Ram AIR 1983 P&H 252.

[4] S. Hanumantha Rao v. S. Ramani AIR 1999 SC1318.

[5] Surinder Moha Chopra v. Nirmala Chopra, AIR 2007 (DOC) 183 P&H (DB).

[6] Prem Kumar Pandey v. Savitri Pandey AIR 1999 All 43.

[7] J.Sudhakara Shenoy v. Vrinda Shenoy , AIR 2001 Karn 1

[8] Mrs. Deepalakshmi Saehia Zingade v. Sachi Rameshrao Zingade, AIR 2010 Bom 16

[9] Vimla Ladkani v. Dr Chandra Prakash Ladkani, AIR 1996 MP 86

[10] Anil Bharadwaj v Nimlesh Bharadwaj (AIR 1987 Del 111)

[11] Kalpana v. Surendranath (AIR 1985 All 253)