In this blogpost, Sonal Srivastava, Student, Amity Law School, Lucknow, writes about the provisions relating to prevention of oppression and mismanagement of a company.

Chapter XVI of the Companies Act, 2013 deals with the provisions relating to prevention of oppression and mismanagement of a company. Oppression and mismanagement of a company mean that the affairs of the company are being conducted in a manner that is oppressive and biased towards the minority shareholders or any member or members of the company. To prevent the same, there are provisions for the prevention and mismanagement of a company.

Application to tribunal for relief in cases of oppression, etc

According to section 241, any member of the company who complains that the affairs of the company are being conducted in a manner that is prejudicial to public interest or in a manner prejudicial or oppressive to him or any material change that is being brought about by, or in the interests of, any creditors, including debenture holders or any  class shareholders of the company etc. that would materially affect the management of the company and would make its affairs prejudicial to public interests or any of its member or class of members, may make an application to the tribunal in accordance with the provisions of section 244 of the Act.

The central government may also make an application to the tribunal for its orders where it thinks that the affairs of the company are prejudicial to public interest.

Powers of Tribunal

Under section 242 of the Act, the Tribunal has the power to order for the regulation of the conduct of affairs of the company in future, the purchase of shares, restriction on the transfer of the share, termination, setting aside or modification of any agreement, setting aside of any transfer, delivery of goods, payment, execution or other act relating to property, removal of managing director, manager, or any of the directors of the company, recovery of undue gains made by any managing director, manager or director during the period of his appointment as such, imposition of costs as may be deemed fit.

A certified copy of the order shall be filed with the registrar within 30 days of the order by the tribunal.

Any contravention of the provisions of this chapter shall lead company towards the imposing of fine which shall not be less than 10 lakh rupees and which may extend to 25 lakh rupees and every officer of the company who is in default shall be punished with an imprisonment of six months and with fine which shall not be less than twenty-five thousand rupees and which may extend to one lakh rupees.

Consequences of termination or modification of certain agreement

If an order of the tribunal set asides, modifies or terminates any ongoing agreement then as per the provisions of section 243 of the Act, such an action shall not give rise to any claims against any director or any person of the company for compensation for damages, etc. Any director, managing director, etc who has been terminated from the post as per the orders of the tribunal shall not hold the office of the same before the expiry of a period of five years from the order of the tribunal.

Right to apply under section 241

According to section 244 of the Act, the following people can apply for the orders from the tribunal-

1. In the case of a company having share capital of not less than one hundred members of the company or not less than one-tenth of the total number of its members, whichever is less, or any member or members holding not less than one- tenth of the issued share capital of the company, subject to the condition that the applicant or applicants has or have paid all calls, and other sums due on his or their shares.
2. In the case of a company not having a share capital, not less than one- fifth of the total number of its members.

Section 245 of the act talks about class action suits, wherein the class of members having a similar cause of action can file an application before the tribunal to seek necessary orders.

Conclusion

The prevention and oppression of mismanagement of a company is required so that there is no prejudice towards the public interest and there is no biasness towards the minority shareholders. Thereby the Act incorporates the wide provisions for the same so that there is smooth functioning of the companies, as well as the interest of all the shareholders, is put to forth.

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In this blogpost, Vernita Jain, Student, National Law Institute University, Bhopal, writes about what is a trade secret, relation between trade secrets and TRIPS, Laws which protect trade secrets and what are the remedies available in India.

What is a trade secret?

Information or the fact can be considered a trade secret when such information cannot be used in common in the industry to obtain an advantage over its competitors. The information that is said to be a trade secret should not be readily ascertainable. Over the years, the importance of trade secret in the sphere of intellectual property has increased to a level beyond protection through patents. Treaties like North Atlantic Free Trade Agreement (NAFTA) and Agreement on Trade-Related Aspects of Intellectual Property (TRIPs; Art. 39) governs the law relating to the protection of trade secret.

It is universally important that the information that is to be guarded as a trade secret must be kept ‘secret’. The extent to which such fact or the information is known to the outside world, how much of such information is known to the employees and the risk of having such information in the hands of the competitors are the most important factors to determine the trade secret.

However, it is only the effects of breach of confidence in the legal contracts or breach of trust that are protected. There is no particular law with which  trade secrets can’t be protected, as they are secrets but they can surely be protected by various others laws such as criminal law, the laws governing employee/employer relations and fiduciary obligations, unfair competition law and contract law. If a producer or a company reveals information to a third party that is a trade secret, it is very important that the party should have made an agreement that includes of what constitutes a trade secret and who owns that proprietary material.

Trade Secrets and TRIPS

At the GATT negotiations, it was declared that if anyone uses information that is ‘confidential’ for another party, such a person would be held liable for Unfair Practice. With the view of fulfilling the above objective, S. 39 of the TRIPS says that information that is to be treated as a trade secret can be protected under Article 10bis of the Paris Convention.

It is the duty of all the members of the company to protect undisclosed information from commercial exploitation[1], and if a company provides information or data to the Government for further approvals or regulatory, such data needs to be protected from leakage or theft by third parties.[2]

Trade Secrets Protection in India

Trade secrets are protected in India either through contract law or through the equitable doctrine of breach of confidentiality. It is common to insert clauses that protect the confidentiality of the secrets of the company in the agreement with the employees not only during their employment period but also after they are terminated.

Protection of Trade Secrets

Due to the absence of law for the protection of trade secrets, the Indian court relies on the common law remedies for the protection. Reliance is placed by Indian courts on the Saltman Engineering case,[3]

In other words, “In India, the law of contract has to be relied upon for the protection of the secrets.”[4] However, “in India, the law that is used is the law of tort of ‘breach of confidence’.”

New Delhi Court provides a list of what can be said to be a trade secret. It says that a trade secret “can be a formula, technical know-how or a peculiar mode or method of business adopted by an employer which is unknown to others.”[5]  However, routine affairs of the employer which are commonly in the knowledge of his employees and his competitors cannot be called trade secrets.  The acts that constitutes as a breach of confidence that is used by the Indian courts are:

(1)  The fact or the information must have quality of confidence in it;

(2)  There must be an obligation of confidence relating to such fact or information;

(3)  There must be an unauthorized use of that information to the detriment of the party communicating it.

Moreover, the Indian Courts have applied these principles in three sets of circumstances out of which proceedings may arise:

(a) Where such fact of information that is secret has come in the possession of an employee in the normal course of his work, who passes that deliberately or carelessly, passes that fact or the information to an unauthorized person;

(b) Where such an employee who is claimed to be in possession of such trade secrets has been invited to provide such information by such an unauthorized person.

(c) Where, in the case of a license, the licensee has committed a breach of any condition that was expressly or impliedly given in the.

Law of contract

In many cases, the Indian courts have held that “although an employer cannot restrain his employee from offering competition after he is terminated from the company, but, the employer has the right to reasonably protect his trade secrets against exploitation.”[6] Moreover, in cases where the contract for such trade secret is absent, injunctions have been issued by the courts based on the rules of equity.

Remedies available

In India, the only remedies available for the protection of trade secrets are civil or equitable remedies for a breach of confidence cause of action.  They include:

• an award of injunction “preventing the third party from disclosing the trade secrets,” and “confidential and proprietary information,” and,
• In the case of “for any losses suffered due to disclosure of trade secrets.” The court may order any damages or compensation to be given to the plaintiff. The court may also order the party at fault to “deliver up” such materials.

If an injunction is granted, the fact or the information is considered confidential only for a limited period till which the injunction is given.  If the fact or the information is claimed to be confidential, but only for a specific time, then interim injunction will be granted only for a period which will depend on the circumstances and nature of the confidential information.

In Gujarat Bottling Co. Ltd.[7] case:

Such interlocutory injunction is granted when the ligation is pending. The court in order to grant interlocutory injunction has to apply the following tests:

• Whether there is a prima facie case,
• Whether the balance of convenience is in favor of the plaintiff, and
• Whether the rejection of the injunction would result in an irreparable injury to the plaintiff.

The object of such relief is for the protection of plaintiff against his injury for which he could not be adequately compensated if the uncertainty were resolved in his favor at the trial. Damage in such cases can be determined based on the “market value of the confidential information based on a notional sale between a willing seller and a willing purchaser.”

Conclusion

Sui Generis’ system of protection

In order to ensure the protection of trade secrets, India should also follow the `Sui Generis’ system that ensures the protection that has been provided under Art.10bis of the Paris Convention and Article 39(2) and 39(3) of TRIPS. The result of this would be that this would go a long way in developing a way of respecting trade secrets and undisclosed information as proprietary assets.

National Innovation Act of 2008 was drafted by the Department of Science and Technology, as part of the Ministry of Science and Technology, [8] that would “consolidate and codify the law for the protection of trade secrets, innovation and Confidential Information”.

[1] S. 39(2) TRIPS.

[2] S.39(3) TRIPS.

[3] Saltman Engineering Co. Ltd. v. Campbell Engineering Co. Ltd., 1948 (65) R.P.C. 203.

[4] Sonia Baldia, Offshoring to India: Are Your Trade Secrets and Confidential Information Adequately Protected?, Mayer Brown Bus. & Tech. Sourcing Rev., Mar. 1, 2008, at 10,.

[5] Ambiance India Pvt. Ltd. v. Shri Naveen Jain, 122 (2005) D.L.T. 421, para. 6.; see also American Express Bank, Ltd. v. Priya Puri, (2006) 3 L.L.N. 217.

[6] Zafar Mahfood Rahmani & Faizanur Rahman, Intellection of Trade Secret and Innovation Laws in India, 16(4) J. Intell. Prop. Rts. 341, 347 (July 2011),

[7] Gujarat Bottling Co. Ltd. v. Coca Cola Co., (1995) 5 S.C.C. 545, para. 43.

[8] National Innovation Act of 2008 (Bill).

In this blogpost, Komal Rastogi, Student, Nirma University, Ahamadabad, writes about the advantages and disadvantages of the Real Estate (Regulatory And Development) Bill, 2016.

“India faces a severe housing shortage and on the other hand, buyers are put off by sky-high Real Estate prices and the unscrupulous practices of many developers.”[1] The Real Estate was largely the concern of State institutions till the 1980s because private promoters were very few. “With the liberalization of the economy, conscious encouragement was given to the growth of the private sector in construction, with a great deal of success, and the sector today is estimated to contribute substantially to the country’s GDP.”[2] Presently, the condition of Real Estate and the housing sector is at its worst because it is highly unregulated and opaque as it lacks transparency.

 Notwithstanding government’s effort, people, are still homeless. Private parties took advantage of this scenario and have been ruling the real estate business since then, which eventually much to people’s disappointment led to high rates of the estate, no proper information about the builders, etc.[3] The other problem which the buyers encounter is regarding the lack of remedies available to them. They are compelled to knock on each possible door for some relief. So far, the buyers were coerced to consent to single sided contract terms as created by their builders because they did not have any other options.[4] To overcome this unscrupulous condition, the need for a Bill concerning real estate was felt and thus, for the first time; the Real Estate (Regulatory and Development) Bill was introduced in Rajya Sabha in the year 2013.[5] This Bill was referred to a ’21- Member Committee’.

Real Estate is a term which comprises not only of land and buildings on it but also of the natural resources of the land which is inclusive of its flora, fauna, crops and minerals.[6] It comprises of three main categories: 1) Residential 2) Commercial and 3) Industrial. The Residential Real Estate includes housing, condominiums, townhomes and undeveloped land.[7] The Commercial, on the other hand, includes offices, warehouses, etc., and the Industrial Real Estate includes factories, mines and farms.[8]

“An official of Ministry of Urban Development said that the industry figures revealed that the Residential realty market alone sees an annual investment of Rs 3.50 lakh crore and about 10 lakh new home buyers every year.”[9] “There are 17,000 real estate projects that are in progress in 26 major urban agglomerations in the country which would come under the domain of the proposed Bill.”[10]

The core aim of the Real Estate (Regulation and Development) Bill, 2013 was to protect the interest of the buyers and to promote fair play in Real Estate markets.[11] This Bill had been introduced mainly to reach the objective of Government of India to provide “Housing for All by 2022.”[12] The measures in the Bill were propounded with the aim to boost the domestic as well as foreign investment in the sector.[13]

The Real Estate Bill 2013, first and foremost ensured the formation of Real Estate Regulatory Authority (RERA). This body was created for the registration of Real Estate agents and their subsequent projects.[14] This Bill outlines the duties of developers, buyers and agents in the Residential Real Estate sector.  It also stipulates:

• Uniform regulatory environment in this sector,[15]
• Genuine contract between buyers and promoters of Residential Real Estate projects[16]
• Developers are barred from booking or offering the projects of Residential Real Estate for sale without registering them in RERA,[17]
• The information of promoter should be uploaded with the details of above mentioned point in the website of RERA,[18]
• 50% or less of the money paid by the buyer should be maintained in a separate bank for the construction of the project,[19]
• The framework must have written agreement with completion certificate and payments.[20]
• A Tribunal of Real Estate was to be devised so that the decisions of RERA could be appealed.[21]
• Setting up of the Central Advisory Council.[22]
• The regulatory authority had the power to set rules and regulations[23]

The main purpose of the Bill is to restore the confidence of the people in the Real Estate zone by introducing transparency and accountability in the housing markets.[24] It will help in accessing the financial and capital markets in the long term goals. “The Bill will promote orderly growth through consequent efficient project execution, professionalism and standardization.”[25] Along with guaranteeing speedy trials of disputes and growth to the sector, “it also ensured to curb corruption and use of black money in the real estate market, the Bill will include some provisions which will help in tracking down innumerable sources of black money which currently costs the government Billions of rupees in lost taxable income.”[26]

Drawbacks of the Real Estate (Regulatory And Development) Bill, 2013

Following are the setbacks of the said Bill:

1. It does not enumerate any difference between the Residential Real Estate and Commercial Real Estate.[27]
2. Some projects in the Real Estate with certain investors or stakeholders do not come under the category of this Bill.[28] They are:

• “Government agencies/authorities at Centre, State and Municipal level;[29]
• Financing agencies like Bank/Financial Institutions[30]
• Brokers, Underwriters and Bulk Purchasers”[31]

3. It also does not provide any tool for transferring the booking during the construction time[32]
4. It fails to provide any additional securities for the retail purchasers[33]

Amendments to the bill of Real Estate, 2013

1. Establishment of Real Estate Regulatory Authority: Formation of the body called Real Estate Regulatory Authority in States as well as Union Territories to regulate Real Estate projects[34]
2. Discrimination: There will be no discrimination based on caste, religion, creed, sex, or gender. The government may bring a non-discriminatory clause to allow anyone to buy a property in complex even a transgender.[35]
3. Applicability of the Bill: The Bill introduced in 2013 was applicable only to the Residential Real Estate. Now, it is proposed to cover both Residential as well as Commercial Real Estate.[36] “Getamber Anand, National President of the Confederation of Real Estate Developers’ Associations of India (CREDAI), said while builders welcome the changes, the Bill should not be retrospective in nature as it would lead to a lot of confusion and delays.”[37] He also said that Commercial Real Estate should be kept out of the ambit of the regulator.
4. Registration: Previously, the developers had to register the Residential projects if the project was greater than 1000 sq. m. and had more than 10 apartments.[38] But according to the recommendation, “projects on at least 500 sq. m. of the area or with 8 flats also have to be registered to the regulatory authority.”[39] It includes registration of Real Estate projects and agents along with the disclosure of all registered projects as well as the details of the project, layout plan, etc., the authority.[40]
5. Refund of Money in Case of Misleading Advertisements: Incorrect information, the false statement contained in the notice, the advertisement may lead to reimbursement of the money to the buyer.[41]
6. Compulsory Deposit of at least 70% of the Total Cost of the Estate: The amended Bill makes it compulsory for the buyers to deposit 70% or more of the total cost of the estate which includes land and construction cost. Earlier, only 50% or less was the required to be deposited.[42] This 70% of the money should be deposited in another bank account and should be only for the above-mentioned
7. Builders are Restricted from Taking More than 10% Advance Without a Written Agreement: “A builder will not be able to take more than 10% advance money from buyers without a written agreement. Right now, a lot of dealings happen by paying huge advances and the agreement part is delayed by many.”[43]
8. Structural Defects: It is suggested that builders will be liable for structural defects with imprisonment of five years which is more than the earlier prescribed punishment of two years. [44] “In such cases, the jail term is that of one year or five per cent of the apartment cost or both. Other pro-developer measures include single window clearance and digitisation of land records.”[45]
9. Sale of Property as per Prices Linked with Carpet Area[46]: Carpet area is the area which includes usable spaces like kitchen and toilets, and it should be clearly defined to impart clarity which earlier was not the case.[47]
10. Resident association: “Formation of resident association has been made compulsory within 3 months of the allotment of the majority of the units in the project so that buyers get to utilize facilities such as common hall, club house, reading room,”[48]
11. Payment of Interest: Builders have to pay interest if there is any delay or default in the home at the same rate as they charge the home buyers.[49]
12. Consumer Courts: the aggrieved customers can now approach to any consumer court at the district level also instead of the regulatory body given in the Real Estate Bill of 2013.[50] This Bill also established a fast track dispute resolution mechanism which would solve the disputes within sixty days through appellant tribunal against ninety days earlier proposed.
13. Notification for the Act: now the “State has to make rules within six months of notification of the proposed Act instead of one year, and the allottees shall take the possession of house within two months of issuance of occupancy certificate.”[51]
14. Additional Benches of the appellate tribunal: For the speedy adjudication of grievances, an additional bench of the appellate tribunal can be made in a state.[52]
15. Punishment: For promoters, three years of punishment and for agents one year of punishment has been prescribed for the violation of the orders of the appellate tribunal.
16. Punitive Provisions: “Punitive provisions including de-registration of the project and penalties in case of contravention of provisions of the Bill or the orders of the Authority or Tribunal.”[53]
17. The Bill looks to set up administrative bodies at the Central and state level for responsible and transparent business practices.[54]

The news of the Bill changing to an Act will be a sign of relief to the home buyers who have suffered from huge losses, delays in delivery of their projects by developers, and discrepancy in the fulfillment of promises made to them at the time of booking. The changes that have been inserted in the Bill have been widely accepted by the industrial players.

Specialists say that the improvement is sure and subsequently is a step closer towards setting up of a land regulation in India. Om Ahuja, the CEO, Residential Services of JLL India stated that “If the Real Estate Regulatory Bill comes in 2015, it will be the biggest thing for the sector as it will provide protection to home buyers and it will also result in some non-credible players exiting the sector because of the checks and balances that will come in place”[55]

Benefit to the builders

Builders have also been provided with advantages in this Bill 2015. The prime advantage given to the builders by legislation is that they can also impose a penalty on the allottees for not paying the dues on time.[56] In the case of any conflicts with buyers, builders also have the opportunity to approach to the regulator.[57]

Although the Bill has some benefits for builders, it is the builders only who have to pay high amount imposition of the Bill on them. “The Bill provides for a penalty, up to 10 percent of the total project cost or even imprisonment, if builders do not honor their commitment or fail to register themselves with the regulator.”[58]

Conclusion

The Real Estate (Regulatory and Development) Bill, 2013 was introduced in Rajya Sabha and was referred to Standing Committee on Urban Development for examination by the Speaker of Lok Sabha.[59] The Bill has been amended by the government numerous times. The amendments revolving around both Residential Real Estate and Commercial Real Estate must necessarily be taken into consideration and punishment to the developers, etc. should be deliberated upon. In 2015, the Union Cabinet gave the permission to amend the Real Estate (Regulation and Development) Bill. Finally, after the effect of umpteen minds, the Bill had been approved by the Prime Minister, Narendra Modi, was passed by the Rajya Sabha on 10^th March and subsequently by Lok Sabha on 15^th March, 2016.[60]

REFERENCES

• Online websites:
• http://www.thehindubusinessline.com/opinion/all-you-wanted-to-know-about-real-estate-regulation-Bill/article7496085.ece
• http://www.credai.org/sites/default/files/Amendments%20to%20%E2%80%9CThe%20Real%20Estate%20%28Regulation%20and%20Development%29%20Bill-2013%20-PIB_2.pdf
• http://www.investopedia.com/terms/r/realestate.asp
• http://www.prsindia.org/uploads/media/Real%20Estate/SCR-Real%20Estate%20Bill.pdf
• https://www.linkedin.com/pulse/realestate-regulation-development-Bill-2013-walls-and-acres
• http://www.indiapropertyboom.com/2013/06/real-estate-regulation-Bill-in-india.html
• http://www.prsindia.org/Billtrack/the-real-estate-regulation-and-development-Billi-2013-2861
• https://www.youtube.com/watch?v=679at0K8DgU
• http://www.legalservicesindia.com/article/article/the-real-estate-(regulation-and-development)-Bill-the-first-step-towards-real-estate-reform-1536-1.html
• http://www.bestcurrentaffairs.com/real-estate-Bill-2015/
• http://timesofindia.indiatimes.com/india/Hope-for-homebuyers-as-Rajya-Sabha-passes-real-estate-Bill/listshow/51354546.cms
• http://pib.nic.in/newsite/PrintRelease.aspx?relid=118039
• http://economictimes.indiatimes.com/wealth/real-estate/cabinet-clears-20-major-amendments-to-real-estate-Bill/articleshow/50111009.cms
• http://www.jagoinvestor.com/2013/06/real-estate-regulations-Bill-will-it-bring-prices-down.html
• http://indianexpress.com/article/india/india-news-india/cabinet-nod-for-real-estate-Bill/
• http://www.hindustantimes.com/india/all-you-need-to-know-about-real-estate-Bill-listed-for-rs-passage-today/story-bvr7LwbdLpH7bLc02B97zN.html
• http://www.prsindia.org/uploads/media/Real%20Estate/SCR-Real%20Estate%20Bill.pdf
• http://indianexpress.com/article/business/business-others/real-estate-Bill-takes-final-shape/
• http://bankersadda.me/real-estate-regulation-and-develop
• http://www.oneindia.com/india/real-estate-Bill-developers-buyers-home-nda-modi-govt-explained-1737236.htmlment-Bill/

[1] Retrieved on http://www.thehindubusinessline.com/opinion/all-you-wanted-to-know-about-real-estate-regulation-Bill/article7496085.ece

[2]Retrieved on http://www.credai.org/sites/default/files/Amendments%20to%20%E2%80%9CThe%20Real%20Estate%20%28Regulation%20and%20Development%29%20Bill-2013%20-PIB_2.pdf

[3] Ibid

[4] Ibid

[5] Ibid

[6] Retrieved on http://www.investopedia.com/terms/r/realestate.asp

[7] Ibid

[8] Ibid

[9] Retrieved on http://indianexpress.com/article/india/india-news-india/cabinet-nod-for-real-estate-Bill/

[10] Ibid

[11] Retrieved on http://www.prsindia.org/uploads/media/Real%20Estate/SCR-Real%20Estate%20Bill.pdf

[12] Ibid

[13]Retrieved on https://www.linkedin.com/pulse/realestate-regulation-development-Bill-2013-walls-and-acres

[14] Ibid

[15] Retrieved on http://www.indiapropertyboom.com/2013/06/real-estate-regulation-Bill-in-india.html

[16] Retrieved on http://www.prsindia.org/Billtrack/the-real-estate-regulation-and-development-Billi-2013-2861/

[17] Ibid

[18] Ibid

[19] Ibid

[20]Retrieved on https://www.youtube.com/watch?v=679at0K8DgU

[21] Ibid

[22] Ibid

[23] Supra 2

[24] Supra 2

[25] Supra 2

[26]Retrieved on http://www.oneindia.com/india/real-estate-Bill-developers-buyers-home-nda-modi-govt-explained-1737236.html

[27] Retrieved on http://www.legalservicesindia.com/article/article/the-real-estate-(regulation-and-development)-Bill-the-first-step-towards-real-estate-reform-1536-1.html

[28] Ibid

[29] Ibid

[30] Ibid

[31] Ibid

[32] Ibid

[33] Ibid

[34] Retrieved on http://www.bestcurrentaffairs.com/real-estate-Bill-2015/

[35] Retrieved on http://timesofindia.indiatimes.com/india/Hope-for-homebuyers-as-Rajya-Sabha-passes-real-estate-Bill/listshow/51354546.cms

[36] Retrieved on http://pib.nic.in/newsite/PrintRelease.aspx?relid=118039

[37] Ibid

[38] Supra 13

[39]Retrieved on http://economictimes.indiatimes.com/wealth/real-estate/cabinet-clears-20-major-amendments-to-real-estate-Bill/articleshow/50111009.cms

[40] Supra 2

[41] Supra 2

[42] Supra 26

[43] Retrieved on http://www.jagoinvestor.com/2013/06/real-estate-regulations-Bill-will-it-bring-prices-down.html

[44] Supra 26

[45] Supra 6

[46] Supra 27

[47] Supra 27

[48] Supra 27

[49] Supra 27

[50] Supra 27

[51] Supra 2

[52] Supra 2

[53] Supra 28

[54] Retrieved on http://bankersadda.me/real-estate-regulation-and-development-Bill/

[55] Retrieved on http://indianexpress.com/article/business/business-others/real-estate-Bill-takes-final-shape/

[56] Retrieved on http://www.hindustantimes.com/india/all-you-need-to-know-about-real-estate-bill-listed-for-rs-passage-today/story-bvr7LwbdLpH7bLc02B97zN.html.

[57] Ibid

[58] Ibid

[59] Retrieved on http://www.prsindia.org/uploads/media/Real%20Estate/SCR-Real%20Estate%20Bill.pdf.

[60] Retrieved on http://economictimes.indiatimes.com/topic/real-estate-regulatory-bill

In this blogpost, Sudhi Ranjan Bagri, Student, National Law Institute University, Bhopal, writes about who is entitled to claim maintenance under the Welfare Of Parents And Senior Citizens Act, 2007 and duties of the State relating to the act.

Aging is a natural process, and the person starts suffering from some physical inability, sometimes starts losing his mental ability and many such problems have to be faced by the people who are old. Thus, they need someone to take care of them and support them financially if they aren’t in a position to earn.

Therefore, Ministry Of Law And Justice drafted a legislature titled ‘The Maintenance and Welfare of Parents and Senior Citizens Act’ (hereinafter referred to as the Act), and it was published on December 31, 2007, after receiving the assent of President on December 29, 2007. As mentioned in Section 1 of the Act,  it shall come into force in a State on such date as the State Government may appoint. The Act mentions that the person would be considered as a ‘senior citizen’ if he is a citizen of India and has attained the age of 60 years or above.[1]

Who is entitled to claim maintenance under this Act (Section 4)

 Section 4 of the Act mentions that a senior citizen including a parent who is unable to maintain himself from his own earning or property owned by him can claim maintenance.

The Act further states that, if the person claiming the maintenance is a parent or grandparent, then he can do so against one or more of his children not being a minor. However if the claimant is a childless senior citizen, then he can do so against his relative. Here ‘relative’ would mean any legal heir of the childless senior citizen who is not a minor and is in possession of or would inherit his property after his death.[2]

Extent of the liability

 In determining the extent of the obligation, it has been stated that the obligation of the children or relative, as the case may be, to maintain a senior citizen or parent (either father or mother or both) extends to the needs of such citizen or parent so that the claimant may lead a normal life.

This Act, however, doesn’t seek to make it an absolute obligation on the relatives of a senior citizen. The Act states that a relative from whom such maintenance is being claimed must have sufficient means to maintain such claimant. Further, the Act also attaches a proviso to it, which states that such person should either have the possession of the property of such senior citizen, or he would inherit the property of such senior citizen. On fulfilling the above-mentioned conditions only, the relative can be asked to maintain the senior citizen.

The Act, contains another proviso, which talks about the proportionate payment by all relatives if there are more than one and all are entitled to inherit the property of a senior citizen, the maintenance shall be payable by such relative in the proportion in which they would inherit his property.

Application for maintenance

 An application for claiming maintenance as mentioned under section 4, before a Tribunal as constituted under Section 7 of the Act, may be made[3] –

• by a senior citizen or a parent, as the case may be; or
• if he is incapable, by any other person or organisation authorised by him; or
• the Tribunal may take cognizance on its own (suo motu).

The Tribunal then will issue the notice to the child or relative or other concerned parties. The Tribunal is also empowered to make such interim orders regarding monthly allowances for maintaining the parent or senior citizen, and can ask the child or relative to pay the maintenance amount during the pendency of the original application, as it thinks fit.[4] Also such order has to be made by Tribunal within 90 days from the date of service of the notice.[5] However in exceptional circumstances, the Tribunal may extend such time for a further period of 30 days.

Order for maintenance

The Tribunal may pass an order directing children or relatives to make a monthly allowance at such monthly rate for the maintenance of such senior citizen or parent, as it thinks fit, to such parent or senior citizen. However, before passing such order the Tribunal has to take care of these points:

1. that the children or relatives, as the case may be, have neglected or refused to maintain that parent or the senior citizen concerned.
2. that the parent or senior citizen, as the case may be, is unable to maintain himself; and
3. that the Tribunal is satisfied with such neglect or refusal by the children or relatives.[6]

The maximum maintenance allowance which may be ordered by such Tribunal should be prescribed by the State Government, but the amount in no case can exceed ten thousand rupees per month.[7]

The Tribunal has further been given the power to review its order under Section 10 of the Act. It states that where it is proved that there was any misrepresentation or mistake of fact or a change in the circumstances of any person has to take place, who has been receiving a monthly allowance, then in those situations, the Tribunal is empowered to make such alteration, as it thinks fit, in the allowance for the maintenance.[8] The exercise of this power, however, is upon the discretion of the Tribunal, as is indicated by the use of the word ‘may’ in Section 10 of the Act.

The Tribunal is also empowered to vary or cancel the earlier orders regarding monthly allowances, if the Tribunal considers it fit to do so, in consequences of any decision passed by any competent Civil Courts.[9]

Protection of life and property of Senior citizens

 In the situations where a senior citizen after the commencement of this Act, has transferred his property( movable or immovable), by way of gift or any such transfer, but the condition that the transferee shall provide him basic amenities and physical needs, is attached with the transfer, and thereafter such transferee refuses or fails to fulfill such condition, such transfer of property shall be deemed to have been made by fraud, coercion or undue influence and the Tribunal can declare such transfer as void.[10]

Before this Act came into existence, the only remedy available to  senior citizens in such a cases was to approach the court to ask for the maintenance from the children to whom he had transferred the property but then also such property would be the exclusive property of the transferee and the senior citizen had no right on such property. But by applying the provisions of this Act, a senior citizen can reclaim his property from the transferee.[11]

Duties of State Government

The importance of the interference by the State Government, for proper implementation, can be understood by looking at Section 1 itself. It states that the Act would come into force on such date as the State Government decides.  The Act mentions various duties which the State Government has to fulfill. Following are some of the duties:

Establishment of old-age homes

The Act makes it compulsory for the State Government to establish and maintain at least one old-age home in each district to accommodate a minimum of one hundred fifty senior citizens who are indigent.[12]

Providing medical support

 The State Government shall ensure that[13] –

• the hospitals which are controlled by the Government or hospitals which receive whole or part of their funds from the Government, shall provide beds for all senior citizens as far as possible;
• separate queues be arranged for senior citizens, so that they don’t have to wait long in the queue;
• facility for treatment of chronic, terminal and degenerative diseases is expanded for senior citizens;
• research activities for chronic elderly diseases and ageing is expanded;
• there are earmarked facilities for geriatric patients in every district hospital duly headed by a medical officer with experience in geriatric care.

Measures for publicity, awareness, etc. for welfare of senior citizens

The State Government shall take all measures to ensure that[14] –

• the provisions of this Act are given wide publicity through public media including the television, radio and the print, at regular intervals;
• the police officers and the members of the judicial service, along with the Central and State Government Officers, are given periodic sensitization and awareness training on the issues relating to this Act;
• effective co-ordination between the services provided by the concerned Ministries or Departments dealing with law, home affairs, health and welfare, to address the issues relating to the welfare of the senior citizens and periodical review of the same is conducted.

Power of State Government to make rules

 The Act confers wide powers to the State Government to make rules for carrying out the purposes of this Act.[15]

Every rule made under this Act shall be laid, as soon as it is made, before each House of State Legislature, where it consists of two Houses or where such legislature consists of one House, before that House.[16]

[1] Clause (h) of Section 2

[2] Clause (g) of Section 2

[3] Section 5

[4] Section 5(2)

[5] Section 5(4)

[6] Section 9

[7] Ibid

[8] Section 10

[9] Ibid

[10] Section 23

[11] See https://en.wikipedia.org/wiki/Maintenance_and_Welfare_of_Parents_and_Senior_Citizens_Act,_2007

[12] Section 19

[13] Section 20

[14] Section 21

[15] Section 32(1)

[16] Section 32(3)

In this blogpost, Sonal Srivastava, Student, Amity Law School, Lucknow, writes about the SARFEASI Act, 2002, what is the procedure for enforcement of security interest and what is the procedure after the notice is issued.

SARFEASI Act or Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 as it goes was enacted to regulate securitization and reconstruction of financial assets and enforcement of security interest and for matters connected thereto. The main purpose for the enforcement of the act was to enable the bank and financial institutions to realize long-term assets, manage problems of liquidity, asset liability mismatch and improve recovery by exercising powers to take possession of securities, sell them and reduce non- performing assets for adopting measures for recovery and reconstruction. So let us have a look at various recovery provisions under the Act.

Enforcement of Security Interest

• Notwithstanding anything contained in section 69 and 69 A of Transfer of Property act, 1882, any security interest created in favour of any secured creditor may be enforced even without the intervention of the court or the tribunal.
• A notice under section 13(2) of the SARFEASI ACT, 2002 has to be served upon the borrower as soon as his account turns to be NPA (Non- performing asset) known as Demand Notice.
• After serving a notice in writing under section 13(2), then the borrower shall discharge in full his liabilities to the secured creditor within 60 days from the date of notice in case he has made default in payment to the secured creditor.
• In case, the borrower does not dispense of wit his liability then the secured creditor has right to take necessary measures as mentioned in section 13(4).
• Where a demand notice has been served, and any objection is raised by the borrower, then the secured creditor should reply to the objection within 15 days else he cannot proceed further in reference to this notice.
• In case the borrower fails to discharge his liability within sixty days of serving of notice, then the secured creditor can move on with any of the following measures as laid down in section 13(4) of the Act-

1. Take possession of the secured assets
2. Take management of the business of the borrower.
3. Appoint any person, to manage the secured assets, the possession of which has been taken over by the secured creditor.

• The Chief Metropolitan Magistrate or District Magistrate’s assistance can be taken by the secured creditor in taking possession of secured debt. [Section 14].
• On takeover of management of the business of a borrower by a securitization company by a secured creditor under section 13(4) (b)the secured creditor shall publish a notice in any two leading newspapers, one to be in the vernacular[section 15].
• On being aggrieved by any of the measures of the secured creditor under section 13(4), the aggrieved party can move to the Debts Recovery Tribunal within 45 days from the date on which such measures had been taken

Procedure after Issue of Notice

Rule 4 of the Security Interest (Enforcement) Rules, 2002 states-

When the borrower fails to acknowledge the amount even after the serving of notice, then the bank or any other financial institution shall move to take any steps under section 13(4), for taking possession of the movable property, namely-

Where the secured asset is in possession of the borrower [movable property], the possession shall be taken in the presence of two witnesses after a Panchnama is drawn and signed by the witnesses as nearly as possible. After taking the possession, the Authorized Officer shall make or cause to be made an inventory of the property as nearly as possible, and a copy of such inventory shall be given to the borrower.

The authorized person shall keep the property whose possession has been taken either in his own custody or in the custody of any person authorized and who shall take care of the property as diligently as a man of ordinary prudence would under the similar circumstances.

In case the secured asset is-

1. Debt, then the authorized officer shall direct the borrower not to recover that Instead he shall ask the debtor to pay the debt to the secured creditor.
2. A share in a body corporate, then in such case the authorized officer shall direct the borrower to transfer the same to the secured creditor and shall also direct the body corporate from not transferring the share in favour of any other person.
3. Other movable property not in possession of the borrower, then the authorized officer shall direct such other person to transfer the property to secured creditor by serving demand notice

In Transcore v. Union of India[1], the issues were-

• Whether the banks or financial institutions having elected to seek their remedy in terms of DRT Act, 1993 can still invoke the SARFEASI Act for realizing the secured assets without withdrawing or abandoning the OA filed before the DRT under the DRT Act.
• Whether recourse to take possession of the secured assets of the borrower in terms of section 13(4) of the SARFEASI Act comprehends the power to take actual possession of the immovable property.

The Supreme Court held that withdrawal of application pending before DRT is not a pre- condition for taking action under SARFEASI Act.  It is for the bank or Financial Institution to exercise its discretion as to cases in which it may apply for leave and in cases where they may not apply for leave to withdraw.

The authorized officer is like a court receiver under Order XL Rule 1 CPC, 1908. He can take either symbolic possession and in appropriate cases, he can take actual possession also. There is no dichotomy between symbolic possession and physical possession.

Conclusion

Thus, SARFEASI Act was enacted with a view to recovering bad debts easily and to an extent, it has solved the purpose also. The recovery actions under SARFEASI Act need to be dealt with utmost carefulness and sincerity by the banks, and the rules and procedures are to be strictly followed else a small mistake in regard to the manner of issuance of notice, etc can be a strong defense for the other party.

[1] (2007) 135 Company Cases

In this blogpost, Vernita Jain, Student, National Law Institute University, Bhopal, writes about whether using keywords is trademark infringement or not and the initial interest confusion doctrine.

The era of internet has lead to the coming up of keyword advertising. Generally defined as a “form of advertising on the Internet in which a business pays to have an advertisement [for] a website appear on [a consumer’s] computer screen when [the consumer] uses a particular word or phrase to search for information on the internet,” they [lay a very important role in advertising and marketing of various businesses.

But the problem arises when a person or a company purchases a keyword in order to advertise his product and such a word is a trademark of a third party. In such a case, a consumer is likely to get confused with such keyword, as in if a person is searching a word which is a trademark of a particular third party and is lead towards the advertisement of the keyword purchaser, is that considered to be a trademark infringement?

The problem that is posed by the trademark owner is that this practice of buying keywords results in confusion among the consumers. As a consequence, many of the trademark owners have filed hundreds of cases on their competitors buying such keywords. They claim that the Lanham Act of USA prohibits any use in commerce of a registered mark or imitation thereof that “is likely to cause confusion, or to cause mistake, or to deceive.”[1] Therefore, such a practice is the practice of trademark infringement.

Initial interest confusion

The doctrine of initial interest confusion says that the confusion occurs prior to purchase. A consumer might be confused at the starting point of his search as a result of the misuse of the trademark by the keyword purchaser.

Thus, the factor that plays a most important role in determining that whether there is an infringement or not is the concept of ‘Initial Interest Confusion.’

In the case of Brookfield Communications v. West Coast Entertainment[2],

The court while giving importance to the protection of the trademark owner  noted that “the use of another’s trademark in a manner calculated ‘to capture initial consumer attention, even though no actual sale is finally completed as a result of the confusion, may be still an infringement.’’

Factors that courts typically consider in determining whether there is a likelihood of confusion include:

1. The amount of similarity between the goods and services and trademark;
2. The strength of the plaintiff’s mark;
3. Evidence of confusion caused to consumers;
4. The intention of the defendant in using its mark;
5. The amount of reasonable care that is exercised by the consumer.[3]

The courts have been uncertain on this concept. In many cases, the court has held that such a practice of keyword advertising is normal competition if it does not result in customer confusion.

However, in many cases, the courts of USA, have ruled that if a person or a party uses a trademark of another in the form of a keyword, such act is not considered as a trademark infringement. In order to make a person liable under the Lanham Act for purchasing that keyword and infringing the trademark, the trademark owner has to establish that

1. Is the trademark being “used” in commerce? 

In order to make a person liable for the trademark infringement under the Lanham Act, it is necessary to prove that the person accused of the infringement must be using such mark or the keyword. However, it is well settled by a number of cases that the use of a ‘keyword’ as a trademark does qualify as a “use in commerce” under the Lanham Act.

2. What is the consumer searching for?

It has been decided by various courts that if a person types the name of a particular brand or product, then it is to be inferred that he is searching for that particular product or that particular brand. Therefore, in these cases, it has to be assumed that the customer was searching that particular product of particular brand only.

3. Is the trademark used in the text or body of the advertisement?

It has been decided in the case of Rosetta Stone Ltd. v. Google, Inc,

that the when the trademarks as ‘keywords’ were used in the title or body of an ad or “sponsored link” that appears on a Google search results page there is a likelihood that such would cause consumer confusion.

Keeping the above three factors in mind, it is important that such an attention should be paid to the visual advertisement of the keyword purchaser  on the search engine result’s page, because while browsing the product information the consumer might be confused by the advertisement on the same screen.

 Therefore, if a person uses the trademark as a keyword in the body of the advertisement and tries to confuse the customers, it can result in trademark infringement.

The application of the law on keyword advertising

This doctrine of ‘Initial Interest Confusion’ has not been embraced by all the courts. In the cases of keyword advertising, there are less number of cases where the courts have dealt with the issue of confusion- let alone initial interest confusion.

 Due to the lack of cases on this point of law, many of the courts have decided cases those should have involved initial interest confusion on any other issue that has resulted in some unsettled question regarding this doctrine. Some courts have adopted the aspect of Initial Interest confusion, but some have not considered the online aspect at all.

Conclusion

 Keyword advertising has proved to be a potentially valuable method of online advertising as it has the ability to catch the interested and potential purchasers. However, the law that is applicable to this aspect is not settled and if someone purchases a keyword that is a trademark of a third party it has the risk of infringement.

But it is possible to use a trademark as a keyword without any liability of infringement if the keyword purchaser (a) has given truthful advertisements, (b) undertook preventive steps to avoid confusion between trademark and keyword (c) have avoided a false association between the goods or services advertised and the mark owner.

[1] S. 32 of the Lanham Act.

[2] Brookfield Communications v. West Coast Entm’t Corp., 174 F.3d 1036,  1062 (9th Cir. 1999).

[3]http://www.lgtrademark.com/wpcontent/themes/nextclient/media/Whether_Trademarks_Used_in_Keyword_Searches_Constitutes_Infringement.pdf.

In this blogpost, Toshali Pattnaik, Student, National Law University, Assam, writes about on what grounds is transgender and individual discriminated, what is the impact of discrimination, what are its results and what is the scenario in India

Introduction

The seminal accomplishment of the feminist movements in distinguishing sex and gender drew attention to how gender is socially constructed. In general parlance, the society perceives gender as a binary. Consequently, gender issues mostly address two sections of the society: men and women. In this process, the existence of the third gender is not recognized, or to be more precise, forgotten. Transgender is an inclusive term incorporating all those individuals who challenge the society’s terminology of gender being a binary category. They have broken away from societal expectations to conform to the binary. The term ‘transgender’ was popularized by Virginia Prince and has been defined as ‘an umbrella term that refers to all identities or practices that cross over, cut across, move between or otherwise queer socially constructed sex/gender boundaries’, by Susan Stryker in her influential essay in the late twentieth century.[1]

With the advent of globalization, the influx of modern liberal ideas created the foundations for an inquisitive mind. Awareness of the social construction of gender identities provided a rich insight into how it is read within the heterosexual matrix of meanings[2]. Some people began challenging this binary category of gender and opened the gates for the emergence of a new category called ‘transgender.’ However, there exists a wide range of diversity in this category where it becomes difficult to differentiate individuals into male and female dualities.

Discrimination against Transgender Individuals

As gender is conventionally perceived as a binary, transgender people are victimized and discriminated when they do not discipline themselves into the seemingly timeless and unchanging traditions of gender identities constructed by the society. The antagonistic attitudes, emotional disgust and indignation felt towards the transgender people encapsulate the struggle they undergo for earning recognition in the society. They encounter hate crime and transbashing, rooting from prejudices and discomfort felt towards accepting their gender identities which challenges our belief system. The society miscasts them as sexual deviants owing to their non-conformity with the gender binary. They encounter incredible barriers as job applicants and are fired, denied promotion or harassed when they reveal their transgender identity. Large scale unemployment leads to marginalization, poverty and homelessness, enhancing their vulnerability towards physical violence, sexual abuse and exploitation. Those who become desperate to find a route out of this forlorn circumstance, become primary targets of the trafficking host. Though sex trafficking of the transgendered people is the most visibly egregious part of the problem, it is just the tip of an iceberg of the massive exploitation and discrimination that the transgendered individuals undergo.

Most of the transgender people undergo economic deprivation and status frustration. This victimization alienates them from the main stream society. The need to be free from this vicious cycle is so intense that they get drawn into the illegitimate opportunity structures.  In the process of seeking prospects in the unexplored land, they create fertile grounds to be exploited.

Further, the transgendered individuals face discrimination in school, housing facilities, public places such as the restrooms, prisons, jails and a numerous other domains which makes the list endless. The denial of medical amenities creates reluctance in their attitudes to access the health care mechanisms and make them lose faith in the entire system. Browsing ‘Discriminations against Transgender’ fills the desktop screen with latest news highlighting the social stigma the transgendered undergo. Even when a transgender is discriminated against, their voices do not always reach the legal system running the country. The only thing they seek is recognition to live their life peacefully. However, societal prejudices and belief system does not permit the same. The scene fades to oblivion at key moments, selectively revealing the demise of the transgendered.

The tale of Amanda Milan and Gwen Amber Rose Araujo speaks volumes about the struggle that a transgender individual undergoes for mere survival in the prejudiced society.

Impact of the Discrimination

As every action has an equal and opposite reaction, similarly, the discrimination imparted by the society on the transgendered has profound impact on the society itself. Society has witnessed perpetration of violence and crimes by transgendered individuals, which stems from the aggravating resentment cultivated by negative societal reactions towards their perceived sexual orientation. The abrasive attitude towards the transgendered individuals in turn plummets the level of self esteem and self worth in them, leading to an increase in high risk behaviors, such as sex work.[3] The passengers travelling in Indian Railways face the threat of extortion by the transgender people. Apart from these negative impacts, the aggravating repugnance that society exhibits towards the transgender community has driven them towards making an undying collaborative effort to secure social change by opening the gates for third gender rights. The escalating awareness about human rights has provided a tremendous boost to the revolutionary attempts of the transgender activists. The scene has sought to capture the view of many scholars, nationalizing and internationalizing the cry for human rights of the transgendered individuals.

Results and discussions

Human Rights are inalienable fundamental rights derived from natural law. As natural law is independent of human will and is considered to be superior to all other laws, human rights are conferred upon every individual without any discrimination. They are individual entitlements accepted universally. The first article of Universal Declaration of Human Rights (UDHR) establishes the foundation of human rights. Whenever an individual is subject to torture, cruelty, inhuman or degrading treatment or punishment, then according to Article-5 of UDHR and Article-7 of International Covenant on Civil and Political Rights, there occurs human rights violation.  Further, paragraph 21 of the United Nations Convention against Torture and Other Cruel, Inhuman, Degrading Treatment or Punishment clearly states that ‘States must ensure the protection of all individuals regardless of their sexual orientation or transgender identity by prohibiting and preventing all acts of violence and abuse against these individuals.’[4] These international legislations for protection of human rights are followed in various nations all over the world, to secure transgender rights. Transgender individuals express an innate sense of gender other than their birth sex.[5] Because of their non-conformity with the gender norms, they become targets of hate crimes and exploitation. The term ‘transgender’ includes, but is not limited to, transsexuality, heterosexual transvestism, gay drag, butch lesbianism, and such non-European identities as the Native American berdache or the Indian Hijra.[6] Hindu Mythology speaks luminously about the transgendered individuals. The Vedas and the Puranic scriptures recognize their distinct gender identity. The concept of ‘psychological sex’ enshrined in the Jain texts provides evidence that the religion identifies transgender individuals. They even occupied a significant role in the royal courts in Medieval India. However, under the British Raj, they were labeled as ‘innately criminal’ under the Criminal Tribes Act, 1871.[7] Ever since then, they have been victimized and exploited by the prejudiced society.

The transgender community suffers from neglect, humiliation and trauma all over the world. In India, transgender earn their daily bread by begging, performing religious ceremonies and most painfully through sexual work.[8] They face social ostracism and are even disowned by their own families on revealing their transgender identity. The social stigma, poor treatment, and denial of medical amenities create reluctance in their attitudes to access educational facilities and health care mechanisms. State mechanisms of Police who are considered to be the protectors of rights are unfortunately becoming predators of their rights.[9]Thus, the tale of human rights violation of the transgender recapitulates the throes of revolutionary social change that they desire to bring about.

Indian Scenario

The abrasive attitude of the society towards the transgender springs from the fact that they lack equality before law. The Indian Penal Code defines ‘gender’ in Section 8, ‘man’ and ‘woman’ in section 10 and ‘person’ in section 11. The absence of the term ‘third gender’ in the penal law of India is what arouses concern in the transgender community. However, they can be included under Section 12 of the Indian Penal Code, 1860 which provides a wide scope to the definition of ‘public’. Yet, interpretation of this provision to include the term ‘transgender’ would provide the marginalized community some respite.

Further, Section 377 of IPC criminalized private consensual sex between adult of the same sex which violated Articles 14, 15, 19 and 21 of the Constitution of India. Under this provision they were discriminated and threatened by Police. Even NGOs working with sexual minorities were harassed.  This piqued a cry for justice for the transgender. Only after the Delhi High Court judgment in Naz Foundation v. Government of National Capital Territory of Delhi[10]decriminalizing Section 377 with respect to gays, the transgender community took a sigh of relief. However, the Supreme Court turned the clock back with the gay sex bam on 11^th December, 2013 unequivocally stating that the 2009 Delhi High Court verdict that decriminalized homosexuality was not constitutionally sustainable as only Parliament could change a law, not the courts.  This left the gay activists and the transgender community in despair.

However, the inclusion of ‘other gender’ in passports, voter’s identity cards and other identification documents has provided the transgendered an opportunity to step forward. They were even incorporated in the 2011 census. Further, the Union legislature has made both the perpetrator and survivor of the acid attacks gender neutral.[11]

According to the UNDP Indian Annual Report for 2010[12], attempts to bring the less privileged communities to the forefront has ensured sustained advocacy for the transgender community which has resulted in greater recognition of their specific needs in planning and legal procedures. It is now possible for them to access free legal aid from the government. They have even contributed to the 12^th Five Year Planning Process with the help of UNDP.

This changing scenario is ameliorating the lives of the transgender people. However, the path breaking judgment of the Supreme Court in the case of National Legal Services Authority v. Union of India [13]recognized ‘Third Gender’ and directed the Centre and State Governments to treat them as Socially and Educationally Backward Classes of Citizens and extend to them the privilege of reservation, medical amenities, educational facilities etc. This gave a cause for celebration to the less heard community. Further in the case of Shivani Bhat v. State of NCT of Delhi & Ors.[14] And K.Prithika Yashini v. The Chairman of Tamil Nadu Uniformed Services Recruitment Board[15], the human rights of the transgendered community was recognized, thus declaring victory of the transgendered in their battle for recognition.

Conclusion

The transgender community has endured injustice, prejudices, hatred, humiliation, indignation, violence, abuse and different forms of exploitation at the hands of the society. This discrimination had remained hidden within the massive population dynamics of the nation as they lacked equality before law. Previously, the veil of ignorance and prejudice made the identification of their struggle for survival formidable.  However, due to the active role of the media and the transactivists, news related to the human rights violation of the transgender has served as a wakeup call to many incognizant souls in deep slumber. Social acceptance is the best way to secure the transgender rights. However, judicial activism, political considerations and social sensitization of transgender rights is the call of the hour. Today, events like International Transgender Day of Visibility, Transmarch, Pride parade etc are being observed worldwide to bring about cognizance and flexibility among the general masses. The Transgender Day of Remembrance, celebrated on 20^th November every year, is an event observed in the memory of those transgender individuals who had pledged their life to improving the conditions of the queer group. However, endeavors from the society are equally required to restore the status and rights that the transgender community once enjoyed.  This is possible only if we change our current belief system and develop a tractable attitude.

India is a democratic republic. The Indian Government is of the people, for the people and by the people. Thus protection of human rights of the citizens of India is the soul of democracy. Moreover, judiciary is the guardian of the Constitution of India. As the Constitution grants right to equality before law (Article 14), prohibition of discrimination on the grounds of religion, race, caste, sex or birth place (Article 15), freedom of speech and expression (Article 19) and right to life and personal liberty (Article 21), it is of upmost importance that the judiciary, through judicial interpretation of the existing law, secure the human rights of the transgender community.

Transphobia is a threat to humanity. The battle between transrespect and transphobia has now become a war. It is solely upon us to decide which side wins. The transgender community has already witnessed immense exploitation because of their non-conformity with the socially constructed gender binary. Not accepting them even after hearing their cry for help and understanding the insurmountable odds that they undergo, would be a shame on humanity. Mere recognition of their community in the society is all they desire to lead a peaceful life. So let us come together and end their struggle against violence and exploitation.

This blogpost was originally published on http://racolblegal.com/struggle-for-recognition-a-cry-for-human-rights-of-the-transgendered/

[1]Paisley Currah, Richard M. Juang & Shannon Minter, Transgender Rights 4 (1^st ed. 2006).

[2]Sally Hines, Transgender Identities: Towards a Social Analysis Of Gender Diversity 214 (2010).

[3]Indrani Sen Gupta, Human Rights of Minority and Women’s: Transgender Human Rights viii (2005).

[4]United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, CAT/C/GC/2 (January 24, 2008).

[5]Indrani Sen Gupta, Human Rights of Minority and Women’s: Transgender Human Rights vii (2005).

[6]Paisley Currah, Richard M. Juang & Shannon Minter, Transgender Rights 4 (1^st ed. 2006).

[7]Shivani Bhat v. State of NCT of Delhi, Date of Decision 5-10-2015.

[8]K. Jaishankar & N. Ronel, Proceedings of the Second International Conference of the South Asian Society of Criminology and Victimology (SASCV) 276 (2013).

[9]Id. at 276.

[10]Naz Foundation v. Government of National Capital Territory of Delhi (2009) 160 DLT 277.

[11]K. Jaishankar & N. Ronel, Proceedings of the Second International Conference of the South Asian Society of Criminology and Victimology (SASCV) 278 (2013).

[12]UNDP in India: Results from 2010, www.in.undp.org, retrived on 2.49PM on 19^th January, 2016.

[13]National Legal Services Authority v. Union of India AIR 2014 SC 1864.

[14]Shivani Bhat v. State of NCT of Delhi, Date of Decision 5-10-2015.

[15]K.Prithika Yashini v. The Chairman of Tamil Nadu Uniformed Services Recruitment Board, W.P.No.15046 of 2015, Date of Decision- 3.11.2015