All you need to know about mental harassment at workplace

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December 5, 2021

This article is written by Shivani Jain pursuing Certificate Course in Advanced Criminal Litigation & Trial Advocacy from Lawsikho.

Table of Contents

Introduction

In laymen’s sense, harassment denotes a form of discrimination that comprises of any unwanted and unwelcome physical or verbal behaviour, which can easily offend or humiliate a person. These kinds of acts are characteristically identified through their unlikelihood in terms of moral and social reasonableness and are capable of disturbing both the mental and physical well-being of that person.

Further, in legal parlance, these are the behaviours that seem to be upsetting, threatening, or disturbing and are advanced from discriminatory grounds. Not only do these acts have the effect of impairing or nullifying an individual from taking benefit of his/her rights, but can be termed as bullying, if done in a repetitive manner. That means the concepts like the continuity of repetitiveness and an alarming, disturbing, or threatening nature, differentiate an act of harassment from astonishment or mere insult.

Common types of harassment

The common types of harassment are as follows:

Mental harassment;
Physical harassment;
Discriminatory harassment;
Sexual harassment;
Harassment based on caste, race, gender or religion;
Emotional or psychological harassment;
Cyberbullying or online harassment.

In this article, we will deal with the notion relating to mental harassment at the workplace.

What can be termed as mental harassment?

The term Mental Harassment is nowhere defined under the Indian Laws. However, it shall be noted that the Division Bench of the Hon’ble Andhra Pradesh High court in L. Nagaraju vs. Syndicate Bank and Ors, went on to explain the term Mental Harassment and quoted the “Indian Journal of Community Medicine” (official publication of preventive and social medicine) in the article “A cross-sectional study in Coastal South India which defined “workplace harassment”, hence:

“Harassment is any improper and unwelcome conduct that might reasonably be expected or be perceived to cause offence or humiliation to another person. Harassment may take the form of words, gestures or actions which tend to annoy, alarm, abuse, demean, intimidate, belittle, humiliate or embarrass another or which create an intimidating, hostile or offensive work environment.”

Further, the Division Bench of the Hon’ble Andhra Pradesh High court went on to add that, “Finally, we may thus state or define workplace harassment as follows: Workplace harassment is any type of unwelcome action towards an employee by the employer or anybody on his behalf that leads to difficulty in performing assigned tasks or causes the employee to feel he or she is working in a hostile environment. The harassment may be based on factors such as race, gender, culture, age, sexual orientation, or religious preference.”

In a general sense, to constitute an act as workplace harassment, several facets must be present. The facets that are required to be present in an act can be summarised as:

First, the conduct needs to be unwelcome or unwanted and offensive to the employee;
Second, the said employee must have raised his/ her voice as an objection to the behaviour;
Third, the employee must allow the offending individual or individuals to revise their workplace behaviour;
Lastly, the said conduct or the act committed must be of such a nature that draws an impact on the employee’s ability to carry out his/ her duties in an efficient, efficacious, and responsible manner.

Legal analysis of mental harassment at workplace

Some rights are both inalienable and undeniable from a human being and are guaranteed to them by birth. These rights are known as Human Rights. The term Human Rights is defined under the Human Rights Act 1993, which means the rights related to life, liberty, equality, and dignity of an individual.

Further, it shall be noted that in India, the concept of Human Rights is guaranteed by both the Constitution of India and various International Covenants. Therefore, the Right to Live with Dignity is a Human Right and any harassment will result in a breach of it.

Furthermore, the different legislations that deal with different forms of Harassment can be summarised as:

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

The said was the first legislation enacted specifically to protect women from workplace sexual harassment. The word sexual harassment is defined under the provisions of Section 2 of the Act. It gives an inclusive meaning by stating that sexual harassment consists of any one or more of the below mentioned unwelcome acts or behaviour:

Physical contact and advances;
A demand or request for any sexual favour;
Making sexually coloured remarks;
Showing pornography;
Any other unwelcome physical, verbal, or non-verbal conduct of a sexual nature.

Further, the law mandates certain rules and practices which every workplace ought to follow to prevent sexual harassment. Also, there are mechanisms which are needed to be created by every organisation for redressal of complaints.

Indian Penal Code, 1860

It shall be relevant to state that the term “Mental Harassment” has not been explicitly defined anywhere under the Indian Penal Code 1860, however, the notion of harassment can be interpreted in terms of cruelty or torture. The relevant sections are as follows:

Obscene Acts and Songs under Section 294;
Assault or Criminal Force to Woman with an Intent to Outrage her Modesty under Section 354;
Sexual Harassment and Punishment for Sexual Harassment under section 354A;
Word, Gesture, or Act Intended to Insult the Modesty of a Woman under section 509;

Information Technology Act, 2000

The Information Technology Act 2000 aims to give legal recognition to all online transactions and also regulates various online acts and offences committed:

Punishment for Publishing or Transmitting any Obscene Material in Electronic Form under section 67;
Punishment for Publishing or Transmitting of any Material containing Sexually Explicit Act, etc, in an Electronic Form under section 67A;

Landmark judicial precedent for harassment at workplace

The landmark judgment for any Harassment is Vishaka & Ors. vs. State of Rajasthan, AIR 1997 SC 3011.

The said case is decided by the Hon’ble Supreme Court and operates as the landmark judgment in the matter relating to sexual harassment. The term Sexual Harassment means any uninvited/ unwanted act relating to sexual favour or gestures from one person or gender towards the other person or gender, which is capable of making that person feel offended, insulted, and humiliated, or even disturbs the mental peace.

Further, a significant part of society becomes the regular victim of sexual harassment in some or the other way. Therefore, the Hon’ble Supreme Court has observed that the fundamental rights provided under Article 14 [2], 19 [3] (1) (g), and 21 [4] of the Constitution of India clearly state that, every profession, trade, or occupation must provide a safe and secure working environment to its employees. Also, it shall be noted that the right to live with dignity is the basic requirement of every employee so there must be the availability of a safe and secure working environment at the workplace.

The Hon’ble Supreme Court further held that freedom from sexual harassment at the workplace is the fundamental right of every employee. In the same case, it also put forward several important guidelines for the employers to adhere them and avoid the cases of sexual harassment of women at the workplace.

Further, the court also suggested that it is mandatory to have proper techniques and mechanisms for the implementation and execution of cases, where there is sexual harassment at the workplace involved.

Furthermore, the main objective of the Supreme Court behind the passing of judgment was to ensure gender equality among people working in an organisation and also to confirm that there must be no discrimination towards women employees at their workplace.

Legislations applicable on private sector employees

Although the employment of an employee, working in a private sector, is solely based on the terms and conditions defined and signed by him/ her under the Employment Contract or Service Level Agreement. However, there are various Labour Laws that are applicable to the Private Sector as well. The labour legislation applicable are as follows:

Payments of Bonus Act;
Equal Remuneration Act;
Payment of Gratuity Act;
Employees Provident Fund & Miscellaneous Provisions Act;
Employees State Insurance Act;
Maternity Benefit Act.

Also, it shall be noted that every private sector is governed and regulated by the Shop and Establishment Act of that State. For example, any private company that is working for profit and is operating in any part of Uttar Pradesh, then, the same comes under the ambit of the UP Dookan and Vanijya Adhistan Adhiniyam 1962, or we can say the UP Shop and Establishment Act 1962.

Essential rights of private-sector employees

Here is a list of essential and basic rights provided under various legislations and regulations to an employee working in the private sector.

Detailed employment contract

In the Private Sector, an Employment Contract signed between the company and employee acts as the crucial basis for settlement, so the same must be comprehensive and detailed in nature. That means all the details such as the Compensation, Retirement, Place of Working, Resignation, Work Designation, Promotion, Transfer, Rights and Obligations, Non-disclosure of Confidential Information, Trade Secrets, Provident Fund, and Timely Payment. Also, it shall be noted that the said contract must also include a mechanism for effective dispute resolution.

6-months compulsory maternity benefit

The provisions of the Maternity Benefit Act 1961, provide benefits for both the prenatal and post-natal phase of a female employee working in an establishment.

It shall be noted that after the amendment in 2017, the duration of maternity leave for a pregnant female employee has been further increased to 26 weeks, from 12 weeks. The said leave also includes 8 weeks of postnatal paid leaves.

Further, if a female employee goes through complicated pregnancy, premature birth, delivery, or medical termination, then, in that case, he/she is entitled to 1 month of paid leave. Furthermore, in the case of the Tubectomy Procedure, the female employee will be eligible for further 2 weeks of additional paid leave.

However, if in case an employer violates the provisions of the maternity benefit law and the rules made thereunder, then, in that case, he/she is liable for punishment. The term violation denotes discharging or terminating a pregnant female employee for being absent because of pregnancy, delivery, or her post-natal illness. Conversely, an employer can revoke the Maternity Benefit, only in the case where a female employee has changed her job during the period of given benefit.

Payment of employee provident fund

In India, the employee provident fund is a retirement benefits scheme governed by the Employees Provident Fund and Miscellaneous Provisions Act and managed by a national level organisation named Employee Provident Fund Organisation.

The said scheme will be applicable to that organisation that employs more than 20 employees. Consequently, they need to apply for registration with EPFO.

An employer and employee need to deposit a total of 12% and 10% of the monthly basic salary in the Employee Provident Fund.

However, there are cases wherein an employer escapes himself or herself from paying Employees Provident Fund. The same is done by commencing a lot of shell companies and subsidiary companies on the names of different people, and distributing the appointed employees of the main company in them so that the count of 20 employees is not reached.

Also, if in case an employer does not pay his/her share or deducts the whole 12 % share from the employee’s salary only, then, in that case, he/she can be taken to the Provident Fund Appellate Tribunal for redressal.

Payment of gratuity

The labour legislation, Payment of Gratuity Act, 1972 confers a statutory right to an employee, who is working in an organisation for more than 5 years. It is again a retirement benefit, in which an employee is given a lump sum payment by the employer as a gesture of gratitude for his/her service. Further, the amount of gratuity payable will increase with the increment in the number of years of service.

However, on the other hand, if in case an employee is dismissed/terminated for proven lawless or disorderly conduct, then, his/ her statutory right stands forfeited.

On-time and fair salary

The main objective of providing services in any organisation, whether public or private, is to get fair and appropriate remuneration in return. Further, the legislation, such as the Payment of Wages Act, Equal Remuneration Act, and Article 39 (d) of the Constitution of India, mandates every employer to provide fair and timely salaries to his/ her employees.

However, if in case an employee is not receiving the remuneration as per the signed employment agreement, then, in that case, he/ she can approach the Labour Commissioner or can even file a civil suit for the arrears in salary.

Also, it is relevant to state that an employee cannot be given wages or salaries less than the legally prescribed minimum wages, as per labour law.

Appropriate working hours and overtime payment

The provisions of the Factories Act and the Shop and Establishment Acts (State-wise) govern the issues such as adequate working hours and overtime payment. The Shop and Establishment Act will be applicable to the Private Sector Employees and Factories Act will apply to Workmen.

Right to get leaves

Every employee who is providing services has the right to get paid public holidays and other annual leaves, such as casual leave, privilege leave, sick leave, and other leaves. Further, for every 240 working days, an employee is qualified to get 12 days as annual leave. Furthermore, in the case of a worker, an adult worker may get one earned leave every 20 days, whereas, the said tenure is reduced to 15 days for a young worker.

Moreover, during the notice period as well, an employee is eligible to take leaves for emergencies, provided that his/ her employment agreement does not bar the same.

Prevention of sexual harassment at the workplace

The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 is the legislation that protects women from sexual harassment at the workplace. The provisions of the Indian Penal Code suggest punishment for sexual harassment, which is of up to three years imprisonment with or without a fine.

Moreover, it is mandatory for every organisation having more than 10 employees, to constitute an internal complaint committee for the aid and benefit of the victims of sexual harassment.

Also, the law mandates that a grievance redressal mechanism and policy must be in place in such organisations. The said policies must outline what all acts can constitute sexual harassment, redressal mechanism, penalties, etc.

The said committee must comprise a senior woman as a member, one non-governmental member, and two other employees as members.

Effects of mental harassment at the workplace on employees

The effects of mental harassment at the workplace on employees can be summarised as:

Becoming less active or successful;
Becoming less confident in their work;
Develop the feeling of scare, stress, anxiety, hatred or depression;
Getting their personal life affected, such as studies and relationships;
Wanting to stay away or skip from work;
Feeling like they cannot trust their manager;
Detaching themselves from the people they work with;
Losing confidence and happiness about their work and themselves;
Suffering from physical signs of stress, such as headaches, backaches, and constant sleep problems.

Legal recourse to be followed

The question of legal recourse to be followed only depends on the type of mental harassment an employee is subjected to in his/ her office. Some of them are mentioned below.

Termination of work

If in case an employee has been wrongfully or baselessly terminated from his/ her services that, too, without any valid reason or appropriate ground, then, in that case, he/ she can approach the court and get an order of reinstatement, together with the permission to get wages from the backdate.

Aggressive behaviour

If in case an employee has been subjected to violence as a result of mental harassment or feels that his peace has been affected, then, he/ she must file a Complaint or register an FIR (First Information Report) and file a criminal case against the respective employer followed by sentencing.

Late wages or no wages

If in case an employer causes Mental Harassment in form of no wages, late wages, or even inadequate wages in comparison to others, then the employee can approach the Labour Court under the provisions of Industrial Disputes Act 1947 or the Payment of Wages Act, 1936.

Also, it should be noted that an employer cannot make any deduction in the salary without prior intimation to the employees.

Discrimination against a person with disability

Mental harassment is a huge umbrella term and even includes discrimination against people with disabilities. The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 protects and safeguards people with disabilities from discrimination and racism.

Baseless discharge or termination of pregnant women

Nowadays, there are a lot of employers who prefer to terminate and discharge their pregnant female employees instead of providing them maternity leave and benefits. The main reason behind the same is to escape the liability of paying salary for that period when that pregnant woman is not working.

However, the Indian Labour Laws, specifically the Maternity Benefits Act 1961, supports pregnant women and empower them to file a civil case before the labour court against the unethical discharge or baseless dismissal on account of such absence.

Further, if an employer denies the maternity benefit to his female employee, then, in that case, the labour court can hold him liable for 3 months imprisonment, or a fine of Rs 5000, or both, based on the provisions of maternity leave in India.

Non-payment of overtime of hours

Based on the provisions of the Factories Act for Factories and Shop and Establishment Act (State-wise) for Private Organisations, if an employer is asking his/ her employees to work more than the hours prescribed in the Employment Agreement, then, in that case, he/ she requires to pay overtime salaries to an employee. Further, it shall be noted that an overtime salary is calculated as twice the salary for an hour. That means for every extra hour the employer needs to pay the double amount to the employee.

Sexual harassment

One of the most common forms of harassment is sexual harassment at the workplace, which is especially faced by female employees. Legal provisions such as the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 and Indian Penal Code, provide remedies to victims, punishments to the accused, and obligations on the organization to maintain a safe, healthy, and secured environment for the employees.

Documents required by an employee for sending legal notice and filing a civil suit

There are a lot of documents, mails, policies, based on the facts of the case that an employee must keep handy for his/ her future reference, but the primary documents that are required by an employee for sending legal notice and filing a civil suit against the employer are as follows:

Employment Contract;
Appointment Letter;
Documents giving details about the Perks and Additional Benefits;
Copy of Bank Statements regarding the Salary Paid.

Tips to maintain a healthy corporate environment

To make your organisation and office premise harassment-free, the management must ensure that the below-mentioned acts either do not occur or are reduced significantly at the workplace:

Preferential treatment to one employee over others;
Progress or efforts of an employee is unseen;
Constantly questioning the decisions by employee;
Targeting or micromanaging an employee;
Termination threats by senior;
Terminates an employee on raising voice against wrong;
Socially alienating an employee;
Discrimination based on disabilities;
No guidance but unnecessary criticisms from seniors;
Presented unreasonable obstacles;
No motivation only deterrent;
Non-approachable management;
Weak grievance redressal mechanisms for employees;
Delayed salary payments;
Non-payment for overtime hours;
Baseless discharge of pregnant female employee.

Conclusion

In a nutshell, every employer must divert their focus towards workplace bullying and mental harassment to employees, and implement stricter rules to curb it. Also, he/ she must take appropriate action against those people who commit such acts to their juniors. The reason behind this is that workplace bullying is a significant cause of mental and physical health problems suffered by an employee, especially females.

Further, there are various Indian legislations, together with human rights that safeguard and protect an employee against harassment of all sorts and mandate employers to maintain a healthy corporate environment for them.

Also, an employee can approach the appropriate court for sorting his/ her legal remedies against the employer, as suffering harassment just for the sake of not losing a job is not a solution to the problem.

References

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Self-determination of minorities in light of globalization

By

Oishika Banerji

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December 4, 2021

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This article has been written by Deeksha.D.R.This article has been edited by Prashant Baviskar (Associate, Lawsikho) and Ruchika Mohapatra (Associate, Lawsikho).

Table of Contents

Introduction

Self-determination refers to a process through which people are given the right to freely choose their own State and Government. It allows the people to choose their own economy, social and cultural developments. In International Law, it is identified as a process belonging to the people and not to the Government.

Self-determination is a political concept that evolved from the concept of nationalism. Nationalization is a process whereby the Government takes over control of an industry or a company. The term self – determination was first coined by the late United States President Woodrow Wilson during World War I. It became a peace aim after the end of World War I. The previous Austro-Hungarian and Ottoman empires, as well as Russia’s former Baltic provinces, were fragmented into a number of new states as a result of the War.

Self-determination is now a major purpose of the United Nations, as well as its ancestor, the League of Nations. The right of all peoples to self-determination is entrenched in Article 1 of the United Nations Charter. The notion was included in the Atlantic Charter of 1941 as well as the Dumbarton Oaks proposals, which eventually became the United Nations Charter. It says that, “All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”

A state’s right to self-determination is defined as its ability to freely determine its political, economic, social, and cultural systems. Second, the right to self-determination is defined as a people’s right to form a state or to freely select the form of their relationship with an existing state. The charter supports both interpretations (Article 1, paragraph 2; and Article 55, paragraph 1). The charter stipulates that administering authorities shall take steps to ensure political advancement and the establishment of self-governing independent regions (Article 73, paragraphs a and b; and Article 76, paragraph b).

Evolution of self – determination

Self – determination began in the nineteenth century during the French Revolution when the two values of popular sovereignty and nationalist resentment were combined. President Woodrow Wilson coined the term in 1918. He campaigned for a similar method to be used to the remnants of the European Concert at the end of World War I.

It was later used as the basis for the Versailles Peace Treaty, which was signed in 1919. He preferred the term “self-governance” to “self-determination” because “self-governance” suggested that people had the right to elect their own democratic government. Despite the fact that it was formulated to help minorities, its use did not imply that the principle of self-determination was recognised as a legal need, and it was not included in the League of Nations covenant. Despite the criticism, however, the principle prevailed.

The idea of self-determination had already been established worldwide when the United Nations was founded, and it was then placed in the UN Charter, which did not appear to be a logical decision at the time, since it was still considered to be controversial. Finally, under Soviet pressure, it was formally recognised and adopted in the United Nations Charter. With the passage of the two International Covenants on Human Rights in 1966, this right increasingly developed and was acknowledged as a right under international law, it also began to include the concept of human rights.

Globalization, rights of minorities and self determination

Minority-related difficulties, “indigenous peoples,” regional diversity, self-declared “nationalities,” and, in general, all phenomena associated with being allocated to a certain group, have proliferated during the globalisation period that began with the conclusion of the cold war. The creation of blocs and the commitment to international ideologies of countries with significant internal variety resulted from the ideological divide of the Cold War.

This phenomenon emphasised social inequalities, or “class” tensions, rather than ethnic, religious, or other divisions. This was why rival Powers accepted undemocratic political leaders from a variety of religious backgrounds, even those who were not totally dedicated to Western principles, as long as they supported the established blocs. Internal minorities were frequently suppressed mercilessly by such states, with no response or protection from big powers or blocs.

The influence of the past alliances quickly decreased when the power blocs that controlled the latter part of the twentieth century disintegrated. Individual expectations were broadened and anchored more securely to their “primordial ties” as a result of the globalisation of communications, a key aspect of the internationalization process, as well as the globalisation of markets and consumer networks.

So-called globalisation is inextricably tied to the rise of worldwide communications and consumption, as well as self-definition and self-affirmation at the local level. The “globalisation of norms” has risen to the fore at the international level, with one key problem being the acceptable and unacceptable levels of human rights exercise.

The globalisation of communications and the removal of all types of barriers have resulted in a considerable expansion of rights, if not as a physical reality, then at least as ambitions on the part of a large portion of humanity.

The “identity question” has resurfaced with an intensity that has been difficult to grasp in the last decade. Local groups have embarked on a process of “construction of identity” as they have become increasingly diverse – minorities who had been out of sight and voice for decades or even centuries, indigenous peoples who were widely believed to have vanished, and groups of extremely varied and curious origins.

Many of these are communities that have maintained a historically continuous connection to their past and customs, which have been kept secret for many years due to constraints on the expression of cultural identity. Most nation-states have allowed low-level cultural manifestations in limited areas and among specific minorities or indigenous peoples in the twentieth century. Minority, indigenous, aboriginal, and local communities with an unbroken link to the past have taken the chance provided by globalisation to make their voices heard.

Much of the conversation around identity revolves around “ethnogenesis” or “identity reconstruction.” Tradition or its relics are reinterpreted in light of modern globalisation conceptions, offering the people living in these communities a fresh sense of belonging and a unique perspective on global processes. After a long period of stillness, a culture has been “reinvented” in a number of instances. These cannot generally be described as peaceful processes , since they frequently involve intolerance, social disintegration, and even political violence. Furthermore, new forms of racism and xenophobia frequently feed off such affirmations of identity, leading to “fundamentalist,” “irredentist,” and other movements whose main goal is to destroy a given ethnic or intercultural society when carried to extremes. However, in many societies or centralised states, the majority group fails to “acknowledge” the existence of cultural, social, and political diversity within society, resulting in a “spiral of intolerance.”People turn to terrorism, and the basic causes of the dispute are lost in the chaos.

In the last few decades, we’ve seen this in a number of international confrontations. As a result, the United Nations Working Group on Minorities has placed a strong emphasis on the development of “early warning systems,” which include preventative measures to promote tolerance and harmony and thus avoid conflicts, as well as the promotion of “peaceful conflict resolution,” which involves finding ways to broker agreements between States and various groups that, for various reasons, arrogate rights to themselves and demand recognition of their uniqueness. Regardless of how complicated the situation is, simply ignoring it is the worst policy of all.

Overall, the issue of self-determination and minorities is inextricably linked to peace and the need to find constructive solutions in a globalised world, one in which the search for local and minority identities and origins is an integral part of the globalisation process.

Theory of self – determination

Self determination justifies a people’s secession from their existing mother state only as a last resort in situations where the people are oppressed or the mother state’s government does not legitimately represent the people’s interests,Throughout the development of international law in the twentieth century, this theory has remained constant. In addition to the United Nations Charter, the 1960 Declaration on the Granting of Independence to Colonial Countries and the 1970 Friendly Relations Declaration both addressed the issue of self-determination.

However, only within the decolonization paradigm did both declarations envision self-determination leading to secession as a last resort: here, both conditions for a right to self-determination were met insofar as colonised peoples were oppressed and their colonial governments failed to adequately represent their interests. Both declarations reaffirmed the importance of existing nations’ territorial integrity, and so accepted the notion that self-determination could only result in the geographical rupture of existing states in extreme cases of tyranny or colonisation.

It might be claimed that international law evolved to incorporate self-determination in a binary form, implying rights to internal or external self-determination depending on the conditions. People who are not classified as colonised or oppressed can exercise their right to self-determination through internal mechanisms such as free association and autonomy. Oppressed or colonial peoples, on the other hand, have the right to external self-determination, which they might exercise by seceding from their mother state.

This view of self-determination was confirmed in a 1998 Canadian Supreme Court opinion regarding Quebec’s proposed secession from Canada, in which the Court stated that while all peoples have the right to various forms of internal self-determination, only some peoples, such as those who have been subjected to conquest, colonisation, and possibly oppression, have the right to external self-determination through remedial secession.

Today, it is possible to infer that international law bestows the right to self-determination on all peoples, but that the right to external self-determination, exercised by remedial secession, only applies to colonised and severely persecuted peoples under extreme circumstances.

Documents of self – determination

The United Nations Charter, 1945

Article 1(2) of the United Nations Charter, as well as Article 55, both address self-determination. There was no reference to self-determination in the Dumbarton Oaks proposals, which served as the foundation for the United Nations Charter. “It was not until the San Francisco discussions that the Soviet Union suggested a modification that added the phrases ‘based on respect for the concept of equal rights and self-determination of peoples in the language of Article 1(2) and Article 55,” writes Heather A. Wilson.

Article 1(2), which is part of Chapter I, and deals with the UN’s principles and purposes, mentions the concept of self-determination while stating one of the body’s four goals. Furthermore, the self-determination of peoples is emphasised in Article 55 as a basis on which ‘peaceful and amicable relations among nations’ are envisioned to be founded.

While the scope and definition of the rights are disputed, its evolution as a rule of law in international public law is almost unquestionable. Foreign domination and other forms of alien governance and subjugation originally referred to colonialism have evolved beyond that to include current forms of alien governance. The UN Charter’s conception of the right to self-determination is far from being directed to create a binding legal norm, but rather constitutes the mere expression of a political principle.

UN General Assembly (GA) Resolution 1514 (The Declaration on Granting Independence to Colonial Countries and People)

“All people have the right to self-determination; by virtue of that right, they freely determine their political status and freely pursue their economic, social, and cultural development,” according to the Declaration on the Granting of Independence to Colonial Countries and Peoples, adopted by the GA in 1960 with 89 votes in favour, none against, and nine abstentions.

The connection of self-determination to the political status of peoples (which was understood as a political ideal with a weak legal context until 1960) can be seen as a significant step toward its eventual inclusion in the International Covenant on Civil and Political Rights (ICCPR). Similarly, the inclusion of the right to self-determination in Article 1 (common to ICCPR) of the International Covenant on Economic, Social, and Cultural Rights (ICESCR) six years later can be interpreted as a sign of the inclusion of the right to self-determination in Article 1 (common to ICCPR) of the International Covenant on Economic, Social, and Cultural Rights (ICESCR).

Similarly, Joshua Castellino points out that Resolution 1514 links self-determination to better living conditions and greater freedom, implying that this norm was already recognised to some extent as one that fostered improved living standards and freedom. It’s possible to argue that Castellino’s point suggests that by defining self-determination in terms of human rights, Resolution 1514 indirectly invented the notion of self-determination. Furthermore, Castellino emphasises the Resolution’s understanding of self-determination, adding that “one of the main effects of the Declaration is that it incorporated self-determination as a fundamental human right, putting it within the ambit of the Universal Declaration of Human Rights 1948.”

Other United Nations Resolutions

Innumerable Resolutions, both from the Security Council (SC) and the General Assembly (GA), address the right to self-determination and the rules of international law that govern it. The Declaration on Friendly Relations and the Declaration on the Independence of Colonial Peoples are two of the most important Resolutions approved by the United Nations, although they are not the only noteworthy Resolutions.

The Declaration on the Inadmissibility of Intervention in States’ Domestic Affairs and the Protection of Their Independence and Sovereignty (GA Resolution 2131(XX), 1965) is relevant in this situation. Other GA Resolutions on non-interference in states’ internal affairs, such as the Declaration on the Inadmissibility of Intervention and Interference in States’ Internal Affairs (Resolution 36/103, 1981), do not necessarily have the same strong legal status as the Friendly Relations Declaration and Resolution 1514 if any legal status at all. There are also other resolutions forbidding unilateral economic actions against developing countries as a form of political and economic coercion.

Another key General Assembly (GA) Resolution related to self-determination and the subjects addressed above is the Declaration on the Right to Development, GA Resolution 41/128 of December 1986. In the realm of human rights law and within the UN system, this proclamation is very noteworthy.

While this collective right has been and continues to be a high priority on the UN agenda, it is still not a recognised right in international law. The notion of self-determination, which encompasses economic self-determination and the unrestricted use of one’s natural resources, underpins the right to development.

It is also tied to the United Nations Charter, namely Article 55, the Friendly Relations Declaration, as well as other laws and ideals that promote international collaboration. Third-world campaigners and governments have almost entirely raised and evoked these issues.

Conclusion

Self-determination has had a great importance because it is mainly based on two arguments: first, that this right protects the community, which is important in shaping both the self of individuals and the ability to exercise their freedom; and second, that it is a safe guard to resist the threats of structures of power, exploitation and domination perpetrated by powerful peoples or majorities within the same State. In terms of international law, it involves two rights, namely, internal and external self-determination. According to international law, not all people are entitled to both rights. In order to maintain the stability of States, only those peoples who are oppressed by a larger number of people within the State they belong to can claim external self-determination. But assuming a broad notion of self-determination in which people do not need to be oppressed to be entitled to both internal and external self-determination. This assumption is not arbitrary, it is a fact that nowadays even peoples belonging to traditional democracies are claiming the right to secession that international law only recognizes for colonial peoples.

References

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Everything you need to know about trademark and its types

By

Shoronya Banerjee

-

December 4, 2021

0

Intellectual-Property-Rights-in-India-1280x720 (1) — Image Source https://rb.gy/fczwju

This article is written by Aishwarya Parameshwaran, pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho. The article has been edited by Aatima Bhatia (Associate, LawSikho) and Ruchika Mohapatra (Associate, LawSikho).

Table of Contents

Introduction

Whenever we think of a product, we automatically picture the brand name and its provider. We even remember the iconic jingles, logos and the colour combination of the packaging of the product. These signs, symbols, logos, jingles that give an identity to a product are referred to as its trademark.

Trademark is an intellectual property that has gained remarkable importance. Today, owners and manufacturers of a product are very well aware of the importance of a trademark and the rights which are conferred on the owner upon registration of such trademark. In India, there are several types of trademarks under which the owner of the trademark can seek legal rights and protection upon registration. In this article we are going to understand the basics of trademarks, what are the different types of trademarks and the importance of the different types of trademarks.

What is a trademark?

It is a mark that efficiently helps us to identify a product by distinguishing it from other goods and services belonging to the same class. It helps to identify the product when there is competition in the market. As per Section 2(zb) of the Trademark Act, 1999 a trademark means a mark capable of graphical representation and which is capable of distinguishing goods and services owned by one person from those of others in the market and includes the shape of goods, the combination of colours and their packaging. The primary function of the trademark is to stand out from the other brands belonging to the same class of goods and services and hence a mark that is distinctive is the best kind of trademark.

A trademark gives protection for a symbol, word, phrase, design, logo or combination of all of them. It gives an identity to a product that represents a source of goods or services. A trademark in India is protected under the Trademark Act, 1999 and common law. As per the trademark Act, it is not mandatory to register your trademark. However, a trademark once registered shall provide legal rights and protection to its owner for 10 years, and such a period shall be extended upon renewal. The benefits of a trademark include ease to market, creating a distinct identity and being a source identifier.

Types of trademarks

Product mark

It is a mark used for products or goods but not on services. Product mark is used to identify the provider, the reputation and the origin of the product. Applications for a trademark filed under class 1-34 The Fourth Schedule To Trade Marks Rules, 2002 are generally termed as product marks.

Service mark

It is similar to a product mark, but it is specifically used to identify a service and not a product. Applications for a trademark filed under class 35-45 The Fourth Schedule To Trade Marks Rules, 2002 can be termed as a service mark.

Word mark

Typically, a trademark is filed under a wordmark or a device mark. In a wordmark, only a word or text is used to denote a trademark, without any stylization or additional artistic elements. This type of registration gives the broadest legal protection to a trademark because it allows the owner to use such a wordmark in all styles, forms and representations. A few examples of registered work marks are LITTLE HEARTS, COCA-COLA

Device mark

A device mark usually has an artistic element such as symbols, or an artistic or pictorial depiction in addition to the element of the wordmark. It generally comprises a wordmark along with multiple artistic elements. Such elements present in a device mark can be a combination of trademarkable and non- trademarkable features. Such a type of mark grants protection over the composite mark which is being registered but not the individual elements. Interestingly, a device mark when registered in colour is limited in protection to the colour combination in which it gets registered. However, a registered device mark that is black and white in colour gives broader protection wherein the owner can claim protection for colours for such a device registration.

Certificate trademarks

These marks are typically used by the owner in order to certify the origin, material, quality, mode of manufacture or performance of services and other characteristics of goods or services to which they are applied. Some examples of certified marks include the ISI Mark which is issued by the Bureau of Indian Standards (BIS), AGMARK which is issued by the Director of Marketing and Inspection of the Government of India.

Collective trademarks

This trademark is different from the ones we have studied above. This type of mark is typically used by an organisation or association of members in order to distinguish the goods or services of the members from those who are non-members. A very common example of this type of trademark is the CA mark which can only be used by registered members of the Institute of Chartered Accountants.

Series trademarks

When an owner owns several trademarks in relation to the same or similar goods, wherein all trademarks seem to possess a material resemblance to each other and are different in respect of non-distinctive character, such trademarks may be registered as series trademarks.

Unconventional trademarks

Above were the trademarks that are generally registered. Now let’s understand some of the unconventional trademarks.

Colour trademark

Since the definition of a trademark under the Trademark Act, 1999 includes the words ‘combination of colours’ they are protected as a trademark. However, such a combination of colours to get registered as a colour mark must be unique, distinctive and must identify the product and its source. A simple combination of red and yellow to indicate orange will not be considered distinctive. The colour to get registered under this type of trademark must be extremely distinct and must be recognisable by its consumers.

Sound trademarks

Graphical representation is an essential element in trademark registration and this applies to sound marks as well. To register a sound under the trademark, it must be in such a form that it is distinctive and identifiable by the consumer. Certain categories of sounds are specifically excluded from being registered as a sound mark as per the TM Manual. They are as follows:

Songs used as chimes,
Simple pieces of music consisting 1 or 2 notes,
Nursery rhymes of children,
Music that is strongly associated with a particular region,
Popular music.

Shape trademarks

As per the definition of Trademark under the Trademark Act, 1999 the term ‘shapes of goods’ are used. So, under the Trademark Act, 1999 protection is granted to shape marks as well. However, a limitation is provided under Section 9(3) of the Act, wherein it expressly excludes registration of a trademark which consists only of:

Shapes that result from the nature of the goods itself.
Shapes which are necessary to obtain a technical result.
Shapes which add substantial value to the goods.

Additionally, when such an application is made, it should be in relation to the goods and not in relation to the container of the goods.

Smell trademarks

A few trademarks registered under this type have been granted registration internationally. However, in India, for a mark to qualify as a trademark, it must be capable of being graphically represented. Such a representation should be recognised and identifiable by the public. Additionally, a smell that is functional cannot be granted registration.

Apart from the same, a smell that is either functional or descriptive also cannot be granted registration. For example, a perfume with an added nail polish remover to mask the chemical odour can qualify as a functional smell. A smell that is the natural result of a combination of the ingredients can also not be protected as a trademark. If an application for a trademark under this type is able to pass these tests and prove its distinctiveness, then it can be registered as a trademark.

Importance of types of trademarks

Before making an application for a trademark, it is important to understand the difference between each type of trademark. Firstly, a mark should not be generic, it must be unique and distinctive in order to seek legal protection under the Trademark Act, 1999. If your trademark seems to be a little similar to the ones existing in the market then, you may consider modifying your mark so that it qualifies to get registered.

The distinctiveness of a trademark is extremely important because it gives identity to the product. Prior to the regulation of the laws with respect to trademarks, there was a lot of ambiguity and confusion in the market. It was difficult to attain brand loyalty from the public since they were not able to immediately identify the provider of the goods or services.

Conclusion

It is important to understand the kind of protection each type of trademark grants to the owner before he gets it registered. The reason is that all of them have specific elements and essentials involved. Trademark is an important tool that an owner can use to monetize his trademark as well as his product. Trademark also acts as a shield that protects the rights of the registered trademark owner from the other competitors in the market. And lastly, a trademark acts as a weapon wherein the owner can use the rights granted to him and take legal action against those who infringe his trademark. Therefore, one must pay utmost importance to a trademark and its types before its registration.

References

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

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Judicial approach to mortgage by depositing of title deeds

By

Rachit Garg

-

December 4, 2021

0

Mortgage-Laws — Image Source: https://rb.gy/p3r8qq

This article is written by Surya Prabhat Pali from National Law University and Judicial Academy, Assam (NLUJAA) and the article is edited by Khushi Sharma (Trainee Associate, Blog iPleaders).

Table of Contents

Introduction

Mortgage was a well-established mode for taking a loan since ancient times. In the Roman legal system, it was known as fiducia cum creditore, in which the property was transferred from the debtor to his creditor. Similarly, in ancient Hindu law, the word Adhi was used to denote pledge of movable property or mortgage of immovable property. However, it was only in the Transfer of Property Act, 1882(hereinafter referred to as “the Act”) that this mode was codified in India under Section 58 and the Judiciary since then had constructively and more actively tackled this concept. Under the said Section, a Mortgage is further classified into different kinds and this is based on the “nature of interest” which is transferred to secure the loan. The classifications include simple mortgage, usufructuary mortgage, conditional mortgage, English mortgage, mortgage by deposit of title deeds and anomalous mortgages. The article at hand will be specifically dealing with ‘Mortgage by deposit of title-deeds’ which is provided for under Section 58(f) of the Act and understand the Judiciary’s approach on this kind mortgage by examining the various case laws and the stances taken by the Courts.

The concept of Mortgage by deposit of title deeds is unique and seemingly simple as compared to the other kinds. Here, the debtor just delivers to the creditor the documents i.e., the title-deeds of immovable property with intent to create a security thereon. There isn’t any other legal procedure required such as a mortgage-deed and is based on equity, hence also known as an equitable mortgage. In this case, a legal charge is created over the title-deeds deposited, therefore the nature of interest transferred here is the right to take away the mortgagor’s property if he does not pay back the money borrowed.

This article will study how the Judiciary has approached this concept i.e., the way in which it dealt with its fundamentals as laid down under Section 58(f) of the Act by starting from the origin of the doctrine to its existing position in contemporary law.

Historical aspect and earlu view of the courts

It is widely accepted that Lord Thurlow in Russel v. Russel had first laid down the doctrine of an equitable mortgage by the deposit of title deeds. Before this decision, a party with whom deeds were deposited was only entitled to hold the title deeds so as to enforce payment by embarrassing the debtor but did not allow for any charge upon the estate. This was in a way the contention of the opposing party. The facts of the case are as such, A pledges his leasehold property with B. A afterwards becomes bankrupt. As a result, B files for the sale of the pledged estate but this is opposed, contending that there cannot be any charge on the property without any writing. This being brought before the Court, the jury finds that the property has been deposited as security and on consideration of equity, the Lordships ordered for the sale of the estate and for B to be paid his money. This, hence, laid the foundation for a mortgage by deposit of title deeds.

This was further dealt with in Featherstone v. Fenwick and Hartford v. Carpenter. Lord Thurlow held that this kind of mortgage allows to put into effect the lien i.e., allowing the security deposited to be effectuated. It is of the opinion that the courts did nothing but stretch the concept of mortgage further in order to meet the commercial necessities of the time and solidify the intention of the mortgagor and mortgagee. Soon, this concept became an accepted and integral part of mortgages with refinements made from time to time. As it was seen in Shaw v. Foster, Lord Cairns while stating the creation of charge due to equity, also stresses on the importance of an accompanied (if any) written document in order to ascertain the nature of the charge.

India has essentially followed the English view on this concept, just like with many other. With the Privy Council judgment in 1864 considered mortgage by deposit of title deeds to be equivalent to simple mortgages and this is still the case as recognised by the Transfer of Property Act, 1882 under Section 96.

The judicial approach on the terms “document of title” and “title deeds”

This section intends to study how the meaning of these terms evolved overtime with the help of the Judiciary.

In India till 1933, any deeds or documents related to the property deposited bona fide would be considered as evidence of title and it was not necessary that all the deeds should be deposited. In Miss Elizabeth May Toomey v. Bhupendra Nath Bose, the learned Judge remarks “There is no technical rule that in an equitable mortgage all the title deeds should be deposited. It is merely a matter of intention.” This was further affirmed in Surendramohan Ray Chaudhuri v. Mahendranath Banerji while also adding that if the only document submitted shows no title of the mortgagor while the same is in existence then it cannot be said that a mortgage by deposit of title deeds is created as this goes against the whole essence of equity that this concept is based on, while also allowing for a wide scope of fraud. It is also not necessary for the documents showing the title of the mortgagor to necessarily show connection to the original title-holder which he/she acquired from. This case also considered Probate to be a substantial document showing title.

While all these cases did stress on the title of the mortgagor, it was wide in the sense that any kind of title of the mortgagor could be provided for security. A classic example of such could be seen in Roberts v. Croft case, where the mortgagor made several equitable mortgages with deposit of various title deeds that were evidence to his title, all were held to be valid mortgages but that the first mortgagee had priority over others and the others had a duty to look into the validity. This was accepted in India and seemed as a natural consequence for the requirement of only part deposit of title deeds. This however creates a lot of problems as the person can take multiple loans by giving security of only one property.

It was in 1933 that a landmark shift took place in this regard. V.E.R.M.A.R. Chettyar Firm vs. Ma Joo Teen and Ors. is one of the most important cases that dealt with this question, what did the terms “documents of title” and “title-deeds” denote? In this case, the Learned Judge, Chief Justice Page felt that in order to find the answer, one must go back to history and understand the origin of this kind of mortgage. Here, he examines the Russel v. Russel case and identifies the ground for which the deposit of title-deeds is made to obtain a loan, in order to secure the repayment of the money. With this reasoning, the learned Judge answers the question that the terms “documents of title” and “title-deeds” denote such a document or documents as show a prima facie or apparent title to the property in the depositor. Further adding that the documents must not only relate to the mortgagor’s title but must disclose any apparent title in the mortgagor to the property.

The judicial approach on “deposit” and “delivers”

“Where a person in any of the following towns…. delivers to a creditor…”

While deposit is the end, delivery is the means to achieve that end. Delivery is the process by which the deposit is done. This delivery of documents can be either physical delivery or constructive delivery. To understand the reason for the allowance of a constructive delivery, one must bear in mind the whole reason for the existence of mortgage by deposit of title deeds, its creation to meet convenience and practicality of the commercial zones.

The doctrine of constructive delivery was first laid down in Whitbread, Ex Parte when the issue was contended that the deeds which were first delivered as security for 1000 euros, the same deeds that were already with the creditor were used to take a subsequent loan of 100 euros. The contention was that there existed no delivery in the subsequent loan. The learned Judge here did not focus on the mere form of the delivery but the express intention of the parties to consider those deeds as security for the 100 euros advanced. This broadened the scope of the term delivery under Section 58. This principle was further widened in K.J Nathan v. S.V. Maruthy Reddy and Ors., in which they were of the opinion that constructive delivery can be applied whenever the creditor is already in possession of the title deeds and it is something the Court must consider. The rationale behind this judgment is that the whole reason mortgage of deposit by title deeds was propounded is for convenience and therefore if the formality of physical delivery of documents is strictly abided to, then the delivery and redelivery of the documents back and forth from creditor to debtor

It is to be noted that delivery and deposit constitutes the “act” and the importance of this can be stated in the words of CJ Page, “Bearing in mind that, in determining whether or not a transaction amounts to a mortgage by deposit of title-deeds, the Court has regard rather to the acts than to the words of the parties, and pays more attention to what they do than what they say” This could be seen in the case In re Beetham Ex Parte Broderick, where A has made a written statement that the reversionary property that he would get would be put as security, however A’s brother attains the property and with the oral consent of A, assigns it as security. There was no deposit of the title deeds or was there any printed source. Hence, the Queen’s Bench held it to be an invalid equitable mortgage saying that nothing was done about the position of the deeds. The judgment here may have taken a completely different course if there was a delivery of the said documents.

One other aspect to keep in mind is where the delivery of the documents of title deed takes place. Section 58(f) sets restrictions on the areas of its applicability, they are the towns of Calcutta, Madras, Bombay and any other town that the State Government may notify in the Official Gazette.

When these places are mentioned, it does not refer to the place of the documents of title but the areas in which the delivery can be made. It was seen in Surajmull Shroff vs. Gopeeram Bhotica and Ors., the deposit of title deeds was not considered to be mortgage by deposit of title deeds as the delivery of these deeds took place outside Calcutta.

However, with constructive delivery also being recognised, the creditor may be in possession of the deeds and be outside the notified towns but when he/she arrives at one of the notified towns, then the debtor may convey the intention to create a mortgage by deposit of title deeds and that would be considered valid.

The existing legal position of mortgage by deposit of title deeds

When one surveys the vast array of contemporary cases on this concept, one can see the majority of cases dealing with contentions regarding areas in which the delivery of documents took place, registrations, bankruptcy cases and so on. The case laws as recently as that of August 2018, are still essential in align with the judgment given in Russel v. Russel in 1783. For example, in Motwani Builders and Ors. vs. Registrar, Karnataka Appellate Tribunal and Ors., the learned Judge has reaffirmed that the essence of the transaction is to make the title deeds, security for the debt in question, therefore in the event of default, the mortgagee may take possession of the property, this is essentially the effectuality of lien that Lord Thurlow has spoken about.

The most important case of the recent time has been the State of Haryana and Ors. vs. Navir Singh and Ors., which is the Special Leave Petition that has been repeatedly referred to by the contemporary judgments. This case sought to answer whether a charge created by a mortgage by the deposit of title deeds can be entered into the revenue records. The Respondents of the case resisted saying that there must be a form of registration or stamp duty for such an entry to take place and had cited Section 17(1)(c) of the Indian Registration Act, 1908, which called for the compulsory registration of the instrument of deposit of title-deed. However, the Court here says that an “instrument” is not required in the first place for a mortgage by deposit of title deeds. In the case in hand, the original deeds have just been deposited with the bank and therefore the charge of mortgage can be entered into the revenue record and for that, instrument of mortgage is not necessary. Also, Mortgage by deposit of title deeds does not require registration. But the Court also stressed that in case the creditor and debtor reduce the contract into writing and this document would form an integral part of the transaction, then the same shall trigger Section 17 of the Indian Registration Act, 1908. This has presently done a great deal of help in clarifying the confusion regarding the requirement of registration in mortgage by deposit of title deeds. The cases following such as Hari Shankar Singh vs. State of U.P. and Ors remarked that no registration was required and termed the arguments of the counsel for the petitioner in this respect is misconceived, when they put forward the contention of registration.

The stance regarding the delivery of documents of title also remains the same. It was seen in Shwetha Gupta vs. Narasimha Murthy and Ors., the Trial Court observed that there was no mortgage because of the non-registration of the mortgage. In the appeal it was contended that a registration was not required because it was a mortgage by deposit of title deeds. But the appeal was dismissed, on the grounds that there was no sufficient evidence that the delivery of the documents took place in one of the notified towns as required by Section 58(f). The majority of the present cases, it has been seen, had its parties as Banks. They mainly dealt with the bankruptcy of one of the parties which allowed the banks to claim the title deeds deposited by the mortgage by deposit of title deeds, as it was seen in Regional Office, Syndicate Bank, Jaipur vs. The Joint Director Directorate of Enforcement, Jaipur.

With regards to the intention, the case Syndicate Bank vs. Estate Officer and Manager, A.P.I.I.C. Ltd. and Ors. reaffirms that intention cannot be presumed from the mere possession of title deeds without the evidence on how the possession existed with the creditor in the first also added that even if there existed debt coupled with the possession, a mortgage cannot be presumed till the intention of those documents deposited was for that specific debt. This is now the settled law, however when the doctrine of equitable mortgage by deposit of title deeds was propounded in the 1700s, a lot of conflict took place in the English courts.

Conclusion

It can be seen that the Judiciary had done a great deal in the construction of mortgage by deposit of title deeds. Since the concept was first propounded, a lot of refinements have been made by the Courts in order to tackle the complex cases that have come before it. As simple as the concept may sound, judgments have still laid down specific criteria in order to avoid ambiguity and confusion as it was seen with the terms of “documents of title” or “title deeds”. The concept however has not seen drastic changes by the Judiciary as it is after all based upon the principle of equity leaving not much scope for much alteration. It still remains to be the time-efficient and practical way to mortgage one’s property. While the reason for such has been cited multiple times in this paper i.e., providing for the needs of the mercantile class, the researcher is of the opinion that this doctrine would have much wider implications if the territorial restrictions are done away with. The Judiciary cannot do much about, as it was seen in many cases, the Court has strictly abided by the legislative pronouncement of restricting the delivery and has done rightly so, it is up to the Legislature to bring forward such change. The rationale behind such opinion is that almost all of India is bustling with commercial activity and with the pronouncements given by various judgments, a strict procedure and clear interpretation, as we presently achieved, the fear of frauds taking place can be and are allayed. This doctrine then would prove to be a strong catalyst.

References

Featherstone v. Fenwick
Hari Shankar Singh v. State of U.P. and Ors
Hartford v. Carpenter
In re Beetham Ex Parte Broderick
K.J Nathan v. S.V. Maruthy Reddy and Ors
Miss Elizabeth May Toomey v. Bhupendra Nath Bose
Motwani Builders and Ors. vs. Registrar, Karnataka Appellate Tribunal and Ors.
Muramlal v. Dev Karan
Roberts v. Croft
Russel v. Russel
Shaw v. Foster
Shwetha Gupta v. Narasimha Murthy and Ors.
State of Haryana and Ors. v. Navir Singh and Ors
Surajmull Shroff v. Gopeeram Bhotica and Ors.
Surendramohan Ray Chaudhuri v. Mahendranath Banerji
Syndicate Bank v. Estate Officer and Manager, A.P.I.I.C. Ltd. and Ors.
Regional Office, Syndicate Bank, Jaipur v. The Joint Director Directorate of Enforcement, Jaipur
Varden Seth v. Luckpathy
V.E.R.M.A.R. Chettyar Firm vs. Ma Joo Teen and Ors.
Whitbread, Ex Parte

BIBLIOGRAPHY

BOOKS

SINHA R.K., THE TRANSFER OF PROPERTY ACT (Central Law Agency, 15th ed.2014).

MULLA D.F., THE TRANSFER OF PROPERTY ACT (Dr. Poonam Pradhan Saxena, 11th ed. 2013)

ARTICLES

BARBER, ROSS, “‘FIDUCIA’ AND ‘HYPOTHEC.’” Irish Jurist, SUMMER (1978)

ROLLINSON W. D., ENGLISH DOCTRINE OF EQUITABLE MORTGAGES BY DEPOSIT OF TITLE DEEDS OR OTHER MUNIMENTS OF TITLE, 6 Notre Dame L. Rev. 341

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:https://t.me/joinchat/L9vr7LmS9pJjYTQ9

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Effect of amendment to Section 93 of Motor Vehicle Act

By

Rachit Garg

-

December 4, 2021

0

This article is written by Udisha Tyagi and the article is edited by Khushi Sharma (Trainee Associate, Blog iPleaders).

Table of Contents

Abstract

This article talks about the amendment done in section 93 of the Motor Vehicle Act, 1988 by the Motor Vehicle Amendment Act, 2019. This amendment makes it compulsory for an aggregator to get a license from a competent authority before carrying out a business. This article discusses the meaning of aggregator as per the amended section and how this will affect the cab aggregator business. Businesses like ola and uber are conducting their businesses in India without a proper law regulating them, the Motor Vehicle Amendment Act is a huge step in this direction.

This has dual importance, it will not let the aggregator exploit riders and will help aggregators to protect their interests. The central government, in order to properly enforce Section 93 of the motor vehicle amended act, 2019 has issued guidelines for cab aggregators to follow, this article discusses and breaks down these guidelines as to how they will affect aggregators and riders.

Introduction

With the increase in the use of technology and more accessible internet services, demand for online cab services is increasing. Due to the availability of high-speed internet and convenience associated with online cab services, consumers are opting for online cab services. More and more use of such cab aggregator services will lead to exploitation of customers if not regulated properly, amendment in section 93 of Motor Vehicle Act, 2000 was long overdue to include cab “aggregatorsalong with “agents” and “canvasser”.

The Motor Vehicle (Amendment) Act,2019 has included the term “aggregator” along with “agent” and “canvasser”.According to section 93 of the Motor Vehicle Act, 1988, a person should not act as an agent or canvasser without obtaining a license from competent authority according to conditions laid by the state government. The term aggregator is defined in section 1A of the principal act as “a digital intermediary or marketplace for a passenger to connect with a driver for the purpose of transportation”.

Recognition of cab aggregators as intermediaries

The motor vehicle amendment act, 2019 defines cab aggregators as digital intermediaries and makes cab aggregators like ola, uber, Meru to be governed by IT Act, 2000. Before this, no act was directly applicable to cab aggregators. Now, cab aggregators will have to comply with all provisions of the IT Act,2000. Now, the cab aggregators will have to pay a penalty under sec 72 for breach of confidentiality and privacy.

Cab aggregators and Section 72 of IT Act, 2000

According to Section 72 of the Information Technology Act, if a person has access to any electronic record, book, register, correspondence, information, document or other material, under this act, or rules and regulations made thereunder and publishes them without consent of the concerned person he shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to one lakh rupees, or with both.

This amendment will help to protect the customers’ right to privacy. There have been many instances where cab aggregators published users’ personal information without their consent. According to a report of The Indian Express, a Chennai-based customer claimed that Ola leaked personal details of customers including name, mobile number, address. According to him, Ola leaked the private information of 100 customers via SMS.

In 2017, Bengaluru’s CBI arrested a software engineer working in Ola for misusing aadhar data available on its website. He illegally developed a page using aadhar information of customers.

Motor Vehicle Aggregators Guidelines, 2020

Section 36 of the Motor Vehicle (Amendment) Act,2019 amends section 93 of the motor vehicle act, 1988. The amended provision provides that in order to issue a license to an aggregator, the state government should follow guidelines as laid down by the central government. In pursuant of this provision, the central government has laid down motor vehicle aggregators guidelines for issuing licenses to cab aggregators and for regulation of business done by these cab aggregators.

These guidelines provide conditions for becoming an aggregator, it is important to get a license from the state government to become an aggregator and these guidelines enumerate conditions to be complied with in order to get a license. It contains provisions for promoting electric vehicles and the vehicles running on bio-fuel. It lays down compliances with regard to drivers, vehicles and ensures their safety. It also focuses on the efficient use of fuel by formulating guidelines for carpooling. It promotes the usage of public transport. For the convenience of riders, guidelines for the regulation of fares have been laid down. In what conditions the license will be suspended or cancelled.

Eligibility of an aggregator

The applicant must be a:

Company registered under companies act 1988 or 2013; or
A cooperative society under the cooperative societies act, 1912 was formed by association of drivers or motor vehicle owners or any such other organization; or
Or limited liability partnership under Limited Liability Partnership Act, 2008.

There should be a registered office of the applicant in India.
The applicant must follow all the provisions laid down under this act, the IT act, 2000 (including the intermediary guidelines).
The applicant should not pose as an aggregator or hire any driver unless he has obtained the license from the state government.

Licensing requirements

The driver of such a vehicle should pass a driving test and should attend an induction training session. This induction session is 5 days, 30 hours session for making the driver understand the efficient use of the app, understand the provisions of the motor vehicle act, on-road safety, careful driving, vehicle’s maintenance, maintaining proper health and hygiene, efficient use of fuel, getting to know the routes where the driver will be operating, the terms of the contract between the aggregator and the driver and gender sensitization. It is the duty of the aggregator to make sure that the driver attends the induction session if he has been hired before the implementation of these guidelines.

The cab aggregator should start business 6 months from the date of issuing of such license, if not so then the license will be cancelled.

Guidelines issued by the government of India, WHO, or any concerned authority regarding any pandemic should be complied with by the aggregators.

Compliances regarding vehicles

The vehicle should be registered, valid permit for commercial vehicles, valid fitness certificate, valid third party insurance, valid pollution under control certificate, compliance with emission norms and city-specific fuel norms, updated payment of taxes, and e-challans. The driver should carry digital copies of all these documents with him. There should be a child lock, fire extinguisher, and a “TAXI” sign on the vehicle.

Regarding app and website

The app should be available in both Hindi and English, and in states where the official language is not Hindi, it should be available in one more language. The safety of the app should be checked and certified by a recognized cybersecurity firm. The information in the app should be stored in a server in India for a period of a minimum of 3 months and a maximum of 24 months. No data should be shared without the consent of the customer. The facility of sharing the live location of the rider. A picture of the driver should be available on the app. Availability of all information on website and app regarding the vehicle. Stringent rules against the use of drugs by drivers, timely and effective redressal of riders’ grievances.

For the security of riders

There should be a proper GPS system in the vehicle for navigation, the driver should follow the route assigned on the app, there should be a proper grievance redressal mechanism for protecting the rights and interests of female drivers, and regular checking of vehicles by such aggregator.

For regulation of fares

The base fare charged to the riders should be the taxi fare fixed by WPI for that particular year, the aggregator is allowed to charge its customer 50% below the base fare, the driver of such vehicle should be given 80% of the total fare of the ride, in states where base fare has not been fixed by the state government it should be Rs. 25/30.

Regarding cancellation of rides

If the driver cancels the ride without any valid reason, after accepting it, then such driver will be penalized 10% of the total fare not exceeding Rs. 100.

If the rider cancels the ride without any valid reason then such rider will be penalized 10% of the total fare not exceeding Rs. 100.

For ride pooling

Aggregators can provide car pooling facilities for riders travelling on same route if their KYC and details are available, female riders should be given option of ride pooling with female passengers,

Conclusion

As per the Motor Vehicle Amendment Act, 2019 now section 93 of the Motor Vehicle Act included “aggregators” along with “agents” and “canvassers”. Now, these cab aggregators will require licenses to function, these aggregators are given a proper definition. They are defined as digital intermediaries, hence, they will have to comply with the provisions of the Information Technology Act, 2000 and guidelines issued under it. Section 72 will be applicable to the cab aggregators like Ola and Uber, now they will be penalized for a breach of confidentiality and privacy. This is in the interest of riders as recently a lot of cases of data leak were reported. In order to apply section 93 effectively, the central government has laid guidelines for such cab aggregators called “Motor Vehicle Aggregator Guidelines 2020”. They direct cab aggregators and drivers of such vehicles to comply with these guidelines.

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Administrative Law : all you need to know

By

Diva Rai

-

December 4, 2021

0

shutterstock_709235152-adm-law-1024x683-1024x683 — Image source - https://bit.ly/3rCqxIa

This article is written by Harmanjot Kaur Kang and the article is edited by Khushi Sharma (Trainee Associate, Blog iPleaders).

Table of Contents

Introduction

Every Indian parent has the dream job of carving their child into an IAS and IPS officer. However, there is a little knowledge about the powers and functions of these authorities. In this article, we would discuss the difference between the constitutional law and the administrative law. How the two are related to each other and what can be the scope of taking Administrative Law as optional in the UPSC exam.

Droit Administratif: Historical evolution

Meaning

It is the French Administrative Legal System which means a body of rules, which determines the organisation, powers and duties of the public administration and regulates the relation of the administration with the citizens of the country.

Droit Administrative does not represent the rules and principles enacted by the Parliament. Whereas, in case of India, we see that the system is the representation of the rules and principles enacted by the Parliament or Legislature.

It contains the rules developed by the administrative courts which regulates the relationship between public servants and citizens, public servants and government and public servant and public servant.

Historical Background of Droit Admininstratiff

Napolean Bonaparte was the founder of the Droit Administratiff. It was he who established the Counsel d’Etat (Council of State) and passed on the ordinance. It has the following effects:

Deprived law courts of their jurisdiction and the administrative matters.
Another ordinance that such matters could be determined only by Counsell d’Etat.

How the Droit Administratiff evolved?

During Louis XIV, the French Government was highly centralized and the executive authorities were arbitrary. Civil courts could not control them. So, Droit Administratiff came into existence before 20^th century. Napolean Bonaparte overthrew the whole system and established court system.

Two Types of courts

Civil and Criminal Courts (Azize & Court of desassation)

Administrative Courts (Counsell D’Etat Court of the perfect)

Rules and Principles of Droit Administration

Rules of Droit Administratiff

Rules relating to the administrative officials’ administrative officials and authorities. These are related to the appointment and dismissal, status, salaries, duties etc. of the administrative officials.

Rules dealing with the operation of public services to meet needs of the citizens

These services may be operated either wholly by public officials or under the supervision of other agencies to provide the public utility services.

Rules dealing with the administrative adjudication

This deals with the concept that if there is any adjudication done to a private citizen by the administrative authority, it could be decided by the administrative courts. Here, Court D’Estat is the highest administrative authority.

Principles of Droit Administrative

Principle 1

The power of the administration to act suo motto (on its own) and to impose its decisions directly on the subjects, to make them obey it as a duty.

Principle 2

The power of the administration to take decisions and execute them ‘suo motto’. It may be exercised only within the ambit of law. It prevents the arbitrariness of the individual liberties against any arbitrariness.

Principle 3

The existence of a specialised administrative jurisdiction.

Criticism of the droit admininstratiff

There are special privileges for the government officials and other persons.
All the person irrespective of the status should be subject to the ordinary court only.
Everyone should be governed by the laws passed by the ordinary legislative organ of the state which is completely missing in the administrative courts.
It violates the modern provisions of the Rule of Law and Article 14 i.e. Equality in the eyes of law.

Modern Day concept

Position in USA

Delegate legislation is not allowed theoretically in the constitution of USA because of two reasons:

Separation of Power

Since the system of governance is based on the delegation based on the Presidential system of governance, there is a rigid form of separation of power. There is no reference of any text given in the constitution of USA which shows that it delegates its powers from the legislature to the executive.

Delegatus non-potest delegare

Once the power is delegated, it cannot be delegated again. The Congress was itself a delegatee, then how can the obligatory powers be delegated further?

Position in England

In England, the Parliament is supreme and there is no limitation by the constitution on the parliament. Also, Parliament in England has wide powers of the delegated powers and the legislation. There is the delegation of the executive powers in the hands of the subordinate authorities.

Position in India

In India, there are two constitutional limits of the legislation of the delegation. The power of delegation is subject to certain limitations that the legislation cannot delegate the essential functions determining the legislative policies.

There are certain permissible limits of the delegation of the power in the hands of the executive. In simpler terms, this means that the delegatee cannot have more powers than the delegator. In such a case, it would lead to a ultra-vires power.

Meaning, Nature and Scope

Administrative law is the study of law that governs the activities of the administrative agencies of the government which comprises:

Legislative: Legislature rule making
Executive: Implementation of law
Adjudication: Adjudication or giving judgments

Some Notable Points

Administrative Law is the branch of public law.
It deals with the relationship of individuals with the government.
It determines the organisation and power structure of the administration or the quasi-judicial authorities.

Definitions of Administrative Law

According to the Indian Institute of Law:

Administrative law deals with the part and the functions of the administrative authorities.
The procedure to be followed by these authorities in the exercise of such powers.
The remedies available to the aggrieved person when authorities abuse of the powers

According to Ivor Jennings

“Administrative law is the law relating to the administration. It determines the organisation, powers and duties of the administrative authorities.”

According to Wade

“Administrative law is the law relating to the control of the governmental powers.”

According to him the primary object of the administrative law is to limit the powers of Government and to prevent citizens against their abuse.

According to KC Davis

“Administrative law is the law concerning the powers and procedure of the administrative agencies, including especially the law governing the judicial review of the administrative actions.”

What administrative law deals with?

Administrative law deals with the following problems:

Who are the administrative authorities?
What is the nature of the powers and nature exercised by the administrative authorities?
What are the limitations if any imposed on these powers?
How the administration is kept restricted to its limits?
What is the procedure followed by the administrative authorities?
What remedies are available to person that are adversely affected by the administration?

Nature and Scope of Administrative Law

The administrative law has a growing importance and the interest and it is most outstanding phenomenon in the welfare state today. Knowledge of the administrative law is as important for the officials as responsible for carrying on administration as for the students of law.

Not a codified Law: Administrative law is not codified like the IPC or law of the contracts. It is based on the constitution.

Judge made law: It is essentially a judge made law and it is a branch of public law which deals with the constitution and delegation of power.

Deals with the organisation: Administrative Law deals with organisation and powers of the administrative and quasi-administrative authorities.

Concerned with the official actions: Administrative Law is primarily concerned with the official action and the procedure by which official action is reached. Example: Rule Making, Rule Application, Monitoring actions or pure administration.

Control Mechanism: It includes control mechanism (judicial review) by which the administrative authorities are kept within bounds and made effective.

Authorities: Administrative law is derived from the authorities from the constitutional and statutory law.

Rights: Administrative Law relates to the individual rights as well as public needs and ensures transparency, open and honest governance which is more people friendly.

Means or the End: The study of the administrative law is not an end in itself, but it is a means.

Emergence and development: Administrative law emerges and develops wherever and whenever any person becomes the victim of the arbitrary exercise of the public power. Administrative law I not the branch of the philosophy of law, but of sociology of law.

Branches which govern: It is the body of law which governs the activities of the administrative authorities of the government. Government agency action includes rule making, rule adjudication, enforcement of specific regulations and the related agenda.

Sources of Administrative Law

Constitution of India

The constitution of India is the supreme governing body. We observe that there are various areas such as the fundamental rights, writs, directive principles of state policy, executive, legislative and judiciary, position of members of union public commission, tribunals etc., which form the basis of rule-making.

Acts and Statutes

We see that there are various laws such as Companies Law, Contracts Act, Administrative Tribunal Act, Ombudsman Act, Lokpal and Lokayukta Act which acts as a source of legislation.

Ordinances

When the parliament is not in session, the executive branch under Article 123 and 213 is given the permission to make the ordinances.

Rules

It is defined under the General Clause Act, 1897. It is the rule made in exercise of power conferred by any enactment. It may be applicable to a particular individual or general public.

Regulations and circulars

It signifies the decisions, orders and Acts of the government are made known to public. In the sphere of the administrative rule making, it means or it is related to the situation where power is given to fix the date for the enforcement of an Act. This can also be related to the exemptions from the rate fixing and prices.

Orders

It covers various types of legislative and quasi-judicial decisions. It may be specific or general. Specific orders refer to the administrative actions. General administrative rule making forms a part of such rule making source.

Directions

It is an expression of the administrative rule making under the authority of law or the rule made thereunder. These may be mandatory or recommendatory.

By-Laws

Rules made by semi-governmental authorities established under the Acts of the legislature.

Schemes and Notifications

It refers to the situation where the law authorizes the administrative agencies to lay down a framework within which the detailed administrative action is to proceed.

Judicial Decisions

The landmark judgements such as Puttaswamy case related to privacy, Maneka Gandhi vs Union of India related to right to travel abroad, Vishakha vs State of Rajasthan related to the prevention of sexual harassment of women at workplace, MC Mehta vs Union of India related to the control of the environmental pollution, PUCL vs UOI related to the rights of workers who are working in mines form the basis of the establishment of the ‘tests’ which may be used to clarify the scope of the provisions of the law and its interpretation. This includes the ‘Right to Food’ as well.

Conditional legislation and Administrative Directions

The legislature makes the laws but laws the executive bring it into operation when the condition demanding such operation are obtained. The executive has to decide whether the required conditions have been satisfied or not for the law to be in operation and if the required condition have been notified bringing the law into operation. This is called conditional legislation.

Relationship between Administrative Law and Constitutional Law

The relationship between the administrative law is not clearly marked out but the fact remains that the two are overlapping in several aspects. There exists a relationship which is fundamental in with if one were to represent the two branches of law in a Venn diagram, then both would have a common area known as the watershed area in the administrative law.

So, we see that constitutional law and the administrative law are parts of the public law. Keith said that it is impossible to distinguish administrative law and all the attempts to do so are artificial. Administrative law and constitutional law overlap at certain place and the area is termed as watershed in the administrative law.

In India, in the watershed one can include the whole control mechanism provided in the constitution for the control of the administrative authorities. These include Article 32, Article 136 , Article 226, Article 300, Article 227, Article 311.

It may also include some administrative agencies to regulate a particular field i.e., Article 263 which creates the inter-state council. Similarly, we have Article 280, Article 262, Article 315 and Article 324.

Similarities between the constitutional law and administrative law

Both are species of public law. This in other words means that both deals with the government and individuals and the relations among them and the institution of the government.
Both deals with the distribution and the exercise of the governmental powers and functions. Where the constitutional law ends, the administrative law begins.
Both are concerned with imposing boundaries and the accountability on those that exercise the governmental powers.
Their application is founded on the constitutional study of the administrative law involves copious reference of the constitutional law.
Both of them are concerned with the human rights issues.
Both of them rely on the statutes and case laws for their principles and operations.
The principles of both are enforced by the same institutions i.e., courts, law enforcement agents etc.

Dissimilarities of the Administrative and Constitutional Law

Constitutional Law	Administrative Law
According to Holland, constitutional law describes various organs at rest.	Administrative Law describes various organs of the government in motion.
According to Ivor Jennings, Constitutional law deals with fundamentals.	Administrative law deals with details.
Constitutional law is majoritarian.	Administrative law is anti-authoritarian.
Constitutional law deals with general principles related to the organs and organisation and powers of various organs.	Administrative law deals with functions, organisation, powers, and duties of the administrative authorities.
This deals with rights.	It lays emphasis on the public needs.
It is the supreme law of land.	It is subordinate to Constitutional law.

Reasons for the growth of Administrative Law

In India, since the Mauryan and Gupta age, there has been the administration of the legislation, rule adjudication and the related provisions. There were many reasons which accounts for the ridden growth of the administrative law. The following are the reasons for the growth of administrative law:

Concept of Welfare State

We can see the evolution of welfare state concept. The concept was developed during the 10^th and 20^th century. According to this concept, the State administration is to achieve maximum welfare of the masses.

Inadequate Judicial System

Judiciary was slow, costly, unexpected, complex and formalistic in nature. Overburdening of judicial system due to which speedy disposal was not possible, and also resulted in strikes and lockouts in disputes between employers and employees.

To solve above problems, need for tackling arose and as a result, industrial tribunals and labour tribunals and labour courts were established. These tribunals are not courts but executive authorities having judicial powers.

Inadequate Legislative

The legislature has no time to legislate upon the day-to-day ever-changing needs of the society. Detailed procedure made by the legislature were found to be defective and inadequate. All these resulted in the delegation of some of the legislative powers to the administrative authorities.

Scope of Experimentation

As the administrative law is not codified law, so there is enough scope of modification. As per the modification it as per the requirement of the state’s machinery. Hence, it is more flexible and the rights legislating the procedure need not be followed again and again.

Increasing demand from people

There was an increase in the demand for the from the people because merely defining the rights of the citizens was not sufficient but state needs to solve problems as well.

To take preventive measures

Administrative authorities can take preventive measures like licensing, rate fixing etc. They can also take effective measures for the enforcement of preventive measures like enforcement of suspension, revocation or cancellation of license, destruction of contaminated articles.

Increasing population

Increase in the population creates a burden upon the legislative processes to implement various laws for various needs of the growing population.

Case Laws

DS Nakara vs Union of India (1983)

Supreme Court held that in the case of a pension providing scheme to the government servants retiring before a particular date, there was discriminatory policy based on a fixed ‘cut-off’ date. It was held that such a decision would be arbitrary, discriminatory and ultra-vires.

Air India vs Nargesh Meerza (1981)

A regulatory provision which was framed by the Air India provided with the terms and conditions which held that in case the Air-Hostess would be pregnant, she would be terminated from the service. It was thereafter held that in such a case, there would be a violation of the Article 14, 15 and 21 of the air-hostess. It was held that such a law would be violative of the constitution and hence is arbitrary in nature.

DTC vs Mazdoor Congress (1991)

A resignation conferring the power on the authority to terminate the service of a permanent employee by giving him a three months’ notice would be ultra vires and held to be void.

Labh Chandra vs State of Bihar

In this case the prerequisites for the Jain Temple were as follows:

Attained the age of 21 years
Made a contribution of at least Rs. 500 or more
Living in the State for the past 10 years

It was held by the Hon’ble High Court that the rules providing the management of the Jain Temple were arbitrary and discriminatory in nature. Hence, it was held that it was a violation of Article 14 of the constitution.

Narendra Kumar vs State of Uttar Pradesh

In this case the ordinance making power was challenged. It was held that instead of making multiple ordinances when the Parliament is not in sessions, it would be better if one would spare some time and make an Act or Legislation which would have the binding nature for all. This was done so that there could not be the misuse of the power in the hands executive officers.

Conclusion

Thus, we can observe that in most cases such preventive measures prove to be more effective than punishing person for the breach of any provision of law. Additionally, we see that today there is an evolution of the concept of welfare state and the responsibilities are continuously increasing every passing day. Thus, there should be adequate steps taken in order to do away with the changing trends and appoint people with the technical expertise in their respective fields. Today, we observe the evolution of administrative tribunals which are defined under the Article 323A and 323B of the Indian Constitution. We see here that the doctrine of the delegation of the power can be observed here as well constantly evolving with the passage of time. The role of judicial activism and judicial review are taking new shapes with every passing decade.

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Commercial surrogacy and its impact on a surrogate

By

Diva Rai

-

December 4, 2021

0

freestocks-ux53SGpRAHU-unsplash-800x445 — Image source - https://bit.ly/3G7XDnc

This article is written by Udisha Tyagi and the article is edited by Khushi Sharma (Trainee Associate, Blog iPleaders).

Table of Contents

Introduction

According to Indian culture, a woman’s life is incomplete without a child. And infertility has been a grave problem since time immemorial. Infertility is of two types: biological and social. In biological infertility, a woman is biologically incompetent to reproduce i.e., there is some problem in her reproductive parts. On the other hand, social infertility is one in which certain classes are barred by society from reproducing. Surrogacy is a technique formulated to help such infertile couples.

Surrogacy is a process in which a surrogate mother bears a child for other parents and gives off the child after its birth. Surrogacy is of two types traditional and gestational. In traditional surrogacy surrogate mother is the biological mother of the child as she donates her egg. On the other hand, gestational surrogacy is one in which the surrogate mother is not the biological mother of the child.

Gestational surrogacy is preferred over traditional surrogacy as in traditional surrogacy there is a genetic relation between the child and the surrogate, due to this relation it’s hard for a surrogate to part with this child, this takes a toll on the surrogate’s emotional and mental health and may even lead to legal complexities by declining to give away the child. On the other hand in gestational surrogacy, there is no genetic relationship between the surrogate and the child. Today most of the clinics provide only gestational surrogacy. Although traditional surrogacy is cheaper as it saves us from expensive IVF processes, it has some major setbacks.

In past decades we have seen rapid advancements in the field of surrogacy but this concept is not new to us as the concept of surrogacy is mentioned in our epics and puranas. With the evolution of medical science we can see tremendous hike in surrogacy cases in India, the fact worth noting is the concept of surrogacy is not new to India. It has been a part of Indian civilization since the dawn of time.

What is commercial surrogacy?

The trend of commercial surrogacy marked its start in 1997, when a woman carried a baby through the process of gestational surrogacy and used her remuneration for the medical treatment of her husband. Since then there has been a boom in commercial surrogacies in the last decade, according to current stats about 2,000 children are born via surrogacy every year. There are many factors contributing to this boom. Some of the major factors are world class medical services which are provided at low cost in India, easy availability of healthy surrogates and legal environment for surrogacy.

There is no price tag which can be given to parenthood but IVF is an economically straining process all over the world. India is a much sought after country for surrogacy services as it provides cheap and best medical services required for IVF. Due to these services it has become easier for couples to become parents. Apart from being cost effective there is easy availability of healthy surrogates in India. There are clinics set up by the government which can arrange a meeting with a surrogate. In India the process of IVF is less complicated as it’s legal in India. There are registered IVF clinics to assist parents and make this process easier.

These factors have attracted international clients to the Indian surrogacy market leading to a boom in ‘medical tourism’. Since 2003, the Indian government has adopted various measures to make our country a ‘global health destination’, including infrastructural advancements, special incentives for hospitals that treat foreign patients and the introduction of a medical visa scheme. Apart from this, Indian surrogates charge way less than foreign surrogates as they belong to economically crippled strata of society. According to a report, an Indian surrogate charges around US$2,500 to UD$7,000 whereas foreign surrogates charge around US$ 14,000 to US$ 30,000.

Legalization of commercial surrogacy in light of Baby Manji case and Jan Balaz case

Commercial surrogacy was legalized in India by Indian government in 2002, after which India became the ‘rent-on-womb’ capital of the world. This attracted many couples from foreign and has led to an increase in ‘medical tourism’ in India.

The Baby Manji case of 2008 portrayed the difficulties that can arise over parental status and citizenship in international surrogacy cases. Baby Manji’s genetic father Yamada was caught in harrowing limbo when neither the Indian nor the Japanese government regarded it as their responsibility to issue his baby daughter with required travel documents to leave India and enter Japan. The Japanese government refused to issue a passport because Japanese law doesn’t recognize surrogacy and regards surrogate mothers as the child’s legal mother. Japanese advised that if he wanted to bring Manji home then he had to get an Indian passport.

According to 2005 guidelines, cases in which couples were not able to establish genetic relationship with the child may adopt the child. The adoption would enable the couple to apply for an Indian exit visa, as well as possibly for entry into the country of residence or origin where surrogacy is not allowed. Indian adoption laws are religion specific and it’s quite difficult for non-Hindu parents to apply for adoption. Due to these rules Yamada was unable to adopt his biological daughter.

For Indian passport to be made, a birth certificate is required. The main problem regarding making a birth certificate was what will be the child’s mother’s name. Will it be the name of the surrogate or the egg donor or Yamada’s ex-wife? Hence the registrar refused to make the birth certificate. Yamada then hired a lawyer to challenge this decision of the registrar claiming the birth certificate to be made. After this only a provisional birth certificate was issued. By the time a birth certificate was made, Yamada’s Indian visa was due to expire.

Manji’s grandmother also filed a custody petition for Manji’s temporary custody. The Jaipur passport office set up special rules and provided a ‘certificate of identity’ to Manji. This was the first time when Indian authorities issued such a travel document, which was intended for stateless or for those who cannot acquire a passport from their country, to a child born through surrogacy. After this the Japanese embassy too issued Manji a one year visa on humanitarian grounds, Manji arrived in Japan with her grandmother, in November 2008, nearly 3 months after her birth and after indefinite efforts of her parents.

Apart from this, the case of Jan Balaz v. Union of India shows the current disconformity of national laws and the uncertainty and inconvenience it creates for the parties involved. The result is delay in getting required documents and the need to develop concrete solutions to overcome these hardships

The case is concerned with two German residents Jan Balaz and his wife Susanne Anna Lohle, who opted for a surrogacy arrangement in a fertility clinic in Anand district, Gujarat. For surrogacy, they used Balaz sperm and eggs from an anonymous donor. The twins which were born out of this surrogacy were caught between wars of citizenship and adoption laws of Germany and India, which left them stateless also, they were not able to leave India as per their parent’s will. They had to spend 2 years of their initial life in India which was not even their plan.

The uncertainties in this case began when the Anand municipal registrar listed the names of the commissioning parents on children’s birth certificates even though Mrs. Lohle was not genetically related to the children and the birth register maintained by the hospital recorded the surrogate as the mother of the twins. The German government did not accept the birth certificate as reflecting the legal parentage, as surrogacy is not legal in Germany.

The German government considered the surrogate as their mother and Balaz as the father of twins. The commissioning parents were unable to pass their German citizenship to their children. Likewise India was also unable to provide citizenship to the twins. The acquisition of citizenship by birth under the Indian Citizenship Act, 1955 requires either one or both of the parents of the child to be citizens of India at the time of birth. The twins did not have any Indian parents despite being born by a Indian surrogate, because they were commissioned by a foreign couple. India has no law which declares the woman who gives birth to a child to be his/her legal mother.

Despite all this the High Court of Gujarat directed that the birth certificate be corrected so as to record the name of the surrogate as the mother of the children. The Indian government regarded the twins as citizens of India. On this basis, Indian passports were issued for the twins. At the same time, the Indian government was indulged in behind-the-scenes negotiations with the German government to resolve this problem. After a few months of negotiation the German government was willing to adopt a solution via an inter country adoption process.

More than two years after the birth of the children, both governments found solutions to this problem of citizenship and implemented it. India issued certificates of identity to the twins and the German government on its part granted visas to the twins.

These cases exposed the perils of engaging in international surrogacy where the countries involved have strikingly different legal rules regarding surrogacy. These serve as a lesson for commissioning parents to take legal advice beforehand to abstain from getting wired in complex legalities of international surrogacy.

Mental, emotional, social and financial effect of surrogacy on surrogate

Being a surrogate is very much mentally, emotionally and psychologically demanding. It is very much important for a surrogate to have a constant support system, whether it being a spouse or family. When people think of gestational surrogacy, they take into consideration the physical commitment – the medical checkups, the process of IVF and, of course, the toll of pregnancy and birth pains.

But, as most gestational surrogates can testify, the psychological commitment is just as important. We can also say that it is actually even more important in order to ensure a favorable experience for everyone involved.

Surrogacy is a very intimate journey, and the surrogate mother’s feelings and intentions must be taken into account every step of the way.

Ongoing psychological support from the spouse and family can help her navigate some of the complicated emotions. She has already contracted that the commissioning parents are the genetic and legal parents of the child, but it’s common for a gestational carrier to develop a relation of love and attachment throughout the process – to the baby.

While carrying the baby in womb for nine months, emotional attachment is expected, a responsible agency should give the surrogate full informed consent, psychological and emotional support, independent legal counsel and fair remuneration to help guide her and make the process smoother for all once the baby is born.

Given below are some of the difficulties that a surrogate has to go through during her pregnancy:

Feelings towards pregnancy

Coercion to have no feeling to baby:

The surrogate mothers are being forced not to develop a feeling towards the baby and are brainwashed that they are not the real mother of the baby, this takes an emotional toll on the surrogate’s health. The surrogate carries the child for nine months in her womb, it is not possible for her not to cultivate feelings for this child.

Fear and worry about being baby abnormal/baby health:

Fear and concern about the baby’s abnormality was one of the emotionally straining experiences of uterus donors. Surrogates are often worried what will happen to their child if he/she is born with some abnormality. There are many cases where it can be seen that many parents have abandoned a child born out of surrogacy if they were born with any abnormality.

Relationship with family, relatives and the commissioning parents of fetus fear that it may affect her marital life

The fear of husband’s reactions in a marital relationship is a very emotionally straining experience in the uterus donor’s life. Sometimes husbands of surrogates do not approve of this process of carrying another man’s child but due to financial reasons the surrogate has to indulge in this process, this may affect the surrogate’s relationship with his husband.

The complications of pregnancy

If any complications occur in surrogacy, it might have a permanent negative impact on surrogate’s health. Like normal pregnancy, surrogate pregnancies come with medical setbacks of carrying a child and giving birth. These can include vomiting, weight gain, swelling, back pain. Some more serious side effects are conditions that can develop during the pregnancy like gestational diabetes, hypertension and pose a threat to your reproductive organs.

As with any pregnancy, there is also the risk of a miscarriage in surrogacy. To reduce these risks, it’s important to have good medical assistance, take the proper medication, get the right amount of rest and follow instructions precisely.

With gestational surrogacy, there comes some medical risks related to the process of IVF. Because you do have to take medicine for IVF with surrogacy, including injecting yourself with fertility medications at home, you can expect anything from slight needle bruising to temporary allergic reactions. As you take medicine to regulate your menstrual cycle and increase your chances of becoming pregnant, you may also go through headaches or mood swings.

There are few risks associated with the embryo transfer process. You may experience slight cramping or bleeding from the procedure. As always, it’s important to stay in touch with your doctor; in rare cases, you may develop an infection that can be treated with antibiotics.

The monetary problems of surrogacy

Most of the surrogate mothers are known to be from economically weaker and financially crippled sections of society. These surrogates are more susceptible to be exploited due to their financial needs. Indian surrogates are only paid one-fifth of what is paid to the foreign surrogates. According to a report Indian surrogates are paid about USD 7,000 for a child whereas foreign surrogates are paid about 30,000 USD.

As commercial surrogacy occurs in a variety of socially and economically different locations, social and financial pressures that may be faced by women can take different forms.

Ban of commercial surrogacy under ‘Surrogacy Regulation Bill, 2019’

According to the Surrogacy Regulation Bill, 2019 commercial surrogacy will be completely banned in India. Now the question is whether this ban will solve our problems or not.

Due to lack of regulating laws there will be more exploitation of surrogates as this will lead to black marketing of surrogates. Women should be allowed to indulge in commercial surrogacy and it should be their decision to participate in commercial surrogacy or not. The Constitution of India has given the right to life under Article 21 which also provides reproductive autonomy to women. Freedom to procreate is as much a tenet of liberalism as the concomitant freedom of contract. Only a woman should have a say in her reproductive decisions. From this we can infer that the need of the hour is regulation of surrogacy laws and not a total ban on commercial surrogacy.

Due to this ban, even more exploitation can be seen as the requirements of altruistic surrogacy are very specific and they prove to be very discriminatory for couples who do not have a ‘close relative’ to be a surrogate.

References

[1] Paula Gerber and Katie O’Byrne, Surrogacy, law and human rights (Routlege press, 2015).

[2] Baby Manji Yamada v. Union of India (2008) 13 SCC 518.

[3] AIR 2010 GUJ 21.

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Serious Fraud Investigation Office (SFIO) : investigation report and its evidentiary value

By

Shoronya Banerjee

-

December 4, 2021

0

This article is written by Aabir Shoaib, pursuing a Diploma in General Corporate Practice: Transactions, Governance, and Disputes from Lawsikho. The article has been edited by Tanmaya Sharma (Associate, LawSikho) and Ruchika Mohapatra (Associate, LawSikho).

Table of Contents

Introduction

After the liberalisation of the economy, financial scams and corporate frauds increased dramatically, and it was time for governments to take action to prevent such frauds from wasting government and public funds. To combat corporate fraud, it became important to re-evaluate and apply rigorous measures. The rising number of white-collar crimes necessitated harsh fines, exemplary punishments, and strong law enforcement. The Satyam scandal, Sahara scam, 2G spectrum scam, and many others are examples of corporate scams that are still pending in various courts around the country or are being investigated by multiple organizations. The Indian government established a Committee on Corporate Governance, which is chaired by Shri Naresh Chandra, former Cabinet Secretary which was designated as the Naresh Chandra Committee, and suggested the establishment of a Corporate Serious Fraud Office which took the form of serious fraud investigation office as we know it today.

The Serious Fraud Investigation Office (SFIO) is an Indian statutory corporate fraud investigation authority. Originally, it was established by a resolution passed by the Government of India on 2 July 2003, and it conducted investigations within the existing legal framework established by Sections 235 to 247 of the former Companies Act, 1956. Eventually, Section 211 of the Companies Act of 2013 provided legislative status to the Serious Fraud Investigation Office (SFIO). It is overseen largely by members from the Indian Administrative Service, Indian Police Service, Indian Corporate Law Service, Indian Revenue Service, and other central government agencies under the jurisdiction of the Ministry of Corporate Affairs, Government of India. The SFIO is a fraud investigation agency established under the Companies Act of 2013 which has the principal occupation of investigating severe, sophisticated frauds committed by persons and/or entities. It is a regulatory agency particularly tasked with resolving and prosecuting white-collar crimes. SFIO has its headquarters in New Delhi along with offices in Chennai, Hyderabad, Kolkata, and Mumbai.

SFIO under the Companies Act, 2013

The SFIO’s professionals are in charge of discovering and resolving crimes in collaboration with the Income Tax Department and the Central Bureau of Investigation. The Office was established in the backdrop of stock market scams that occurred from the 1990s to the 2000s, costing public and government money and resulting in the closure of numerous small and new enterprises. Non-banking financial companies also played a negligent role, which the SFIO helped to correct. To tackle such white-collar crimes, the Naresh Chandra Committee on Corporate Governance proposed that the Vajpayee government establish the SFIO.

SFIO is a multidisciplinary agency with professionals in forensic audits, technology and information technology, law and corporate law, taxation, capital markets, accounting, and other fields. The Director of the Office holds a position similar to that of a Joint Secretary to the Government of India. Even if there is no obvious fraud, the SFIO investigates if the Board is fair and whether minority shareholders are oppressed. It is important to note that SFIO cannot initiate a case on its own and only acts upon the orders given by the Central Government. The SFIO also has the authority to arrest people who are connected to or have participated in the fraud, albeit these powers are limited to the Director, Additional Director, and Assistant Director. The Satyam Scam and the Deccan Chronicle Holding Ltd (DCHL) are two of the most prominent cases handled by SFIO.

Section 210 (1) of the Companies Act, 2013 states that if the Central Government believes it is necessary to investigate a company’s affairs either on receipt of a report from the Registrar or inspector under Section 208 or on intimation of a special resolution passed by a company that the company’s affairs should be investigated or in the public interest it “may” order an investigation.

The word “may” signifies that the Central Government has the discretion to order an investigation. Section 210 (2), on the other hand, is a compulsory provision that specifies that when a Court/Tribunal orders an investigation into the operations of a firm, the Central Government “shall” order one. Section 212 specifies the method for the SFIO’s investigation. Section 212(1) states that, without prejudice to the provisions of Section 210, if the Central Government “is of the opinion” that it is essential for the SFIO to probe the activities of a company on the premises specified in Section 212(1), the Central Government may, by order, delegate the probe to the SFIO.

In the case of Church of South India v. Union of India, the Madras High Court recently concluded that the phrase ‘is of the opinion’ under Section 212 puts a jurisdictional duty on the Central Government to express an opinion on the requirement of an investigation by the SFIO. Any order issued by the Central Government without the formation of an “opinion” under Section 212 shall lack merit.”

Investigation report and its evidentiary value

Under Section 212(3), if the Central Government has directed the SFIO to investigate the affairs of a corporation, the SFIO must undertake the inquiry and submit its findings within the time frame provided in the Central Government order. The SFIO, on the other hand, has no time constraint under the 2013 Act for completing the investigation and submitting the investigation report. This brings up the question of whether the SFIO’s mandate would be terminated if the investigation report is not submitted within the timeframe set in the Central Government decree. The Supreme Court successfully answered this question in the matter of SFIO v. Rahul Modi and subsequently ruled that because Section 212 does not provide a time limit for submitting the investigation report and the authority of SFIO to investigate does not expire once the period specified in the Central Government order has expired. It was determined that the time period mentioned in the order is merely advisory and not necessary. The authority to investigate shall not be terminated when the time limit provided by the Central Government has expired.

According to the Companies Act, 2013, the SFIO shall submit an “interim” report if necessary, or a report “on completion of the investigation” to the Central Government. Section 212(14) provides that upon receipt and after reviewing the investigation report, the Central Government may instruct the SFIO to start prosecution against the corporation and its executives or employees, provided that there is sufficient reason to sustain a charge. In the case of N. Sampath Ganesh v. Union of India, the Bombay High Court held that prosecution can be commenced based on an interim report or an inquiry report as long as it is sufficient to sustain a charge.

The investigation report filed with the Special Court for framing charges must be assumed to be a report filed by a police officer under Section 173 of the Criminal Procedure Code (“CrPC”) which is often referred to as the “charge-sheet”. It is worth noting that in K. Veeraswami v. Union of India, the Supreme Court decided that a final investigation report prepared by an investigating officer under Section 173 of the CrPC is nothing more than the investigating officer’s opinion and shall not be considered legal evidence.

Conclusion

The SFIO is a fraud investigation organisation and has the primary responsibility of investigating serious, sophisticated frauds perpetrated by individuals and/or businesses, and also acts as a regulatory agency entrusted with resolving and prosecuting white-collar crimes in partnership with the Income Tax Department and the Central Bureau of Investigation. SFIO is headed by a Director as Head of Department in the rank of Joint Secretary to the Government of India. The Director is assisted by Additional Directors, Joint Directors, Deputy Directors, Senior Assistant Directors, Assistant Directors, Prosecutors, and other secretarial staff. It also has the authority to arrest people who are connected to or involved in the fraud but only the Director, Additional Director, and Assistant Director have this authority.

Investigation into the affairs of a company is assigned to SFIO, where the Government is of the opinion that it is necessary to investigate the affairs of a company (a) on receipt of a report of the Registrar or inspector under section 208 of the Companies Act, 2013; (b) on intimation of a special resolution passed by a company that its affairs are required to be investigated; (c) in the public interest, or (d) on request from any department of the Central Government or a State Government.

To combat corporate fraud, it became important to re-evaluate and apply rigorous measures. It is important to note that SFIO cannot initiate a case on its own and only acts upon the orders given by the Central Government. For effective enforcement of Section 212, there is an urgent need to scale up the resources and manpower available to the SFIO.

References

1. SFIO, Serious Fraud Investigation Office – Definition, Latest News, and Why SFIO, Serious Fraud Investigation Office is Important? (cleartax.in)

2. Serious Fraud Investigation Office – Keeping a close watch on frauds in India Inc – India Corporate Law (cyrilamarchandblogs.com)

3. Serious Fraud Investigation Office – IndiaFilings

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Jigya Yadav thru her father v. C.B.S.E. (2021) : case analysis

By

Sneha Mahawar

-

December 4, 2021

0

This article is written by Vanya Verma from O.P. Jindal Global University. This article analyses the case of Jigya Yadav vs CBSE & Ors. where the Petitioner had approached the Supreme Court to change the name of her parents that had been wrongly recorded with the CBSE.

Case	Jigya Yadav vs CBSE & Ors
Citation	W.P.(C) No. 3774/2010 & CM 7565/2010
Court	Supreme Court of India
Date of Judgement	June 03, 2021
Parties	Petitioner: Ms. Jigya Yadav (Minor) Through (Guardian/ Father) Mr. Hari SinghRespondent: Central Board of Secondary Education & Ors. (CBSE)
Bench	Justice A.M. Khanwilkar, Justice B.R. Gavai and Justice Krishna Murari

Table of Contents

Introduction

In the case of Jigya Yadav vs CBSE & Ors (2021), a minor had filed a writ case through her father, alleging that one of the CBSE examination bye-laws is arbitrary and thus not constitutionally valid. The Supreme Court declared on June 3, 2021, that an individual’s core existence is not exemplified by her outer characteristics but by her inner self-identification, and also concerning the relevance of the acquired identity in the form of the name. It was held that an individual’s identity is one of the most highly guarded aspects of India’s constitutional framework.

The Bench also held that identity is an amalgamation of various internal and external factors, including acquired characteristics, and that a person’s name can be considered one of the most important indicators of identity. As a result, it was decided that an individual must have entire authority over their name and that the law must allow them to retain and exercise such right freely “at all times.” It was thought that such control would eventually encompass an individual’s desire to be known by a different name for a good cause.

The Right to Freedom of Speech and Expression is guaranteed under Article 19(1)(a) of the Constitution, according to the Court. To put it another way, the Supreme Court decided that expression of identity is a protected aspect of Freedom of Expression under the Constitution.

Facts of the case

Jigya is a minor who has brought a writ suit against CBSE to the High Court through her father, Hari Singh. She claimed that there has been an error in the recording of the name of her parents and so she should be permitted to change it.
Her attorney claims that one of the C.B.S.E. Examination bye-laws prohibits any correction in the name of either the candidate or their parents. Jigya’s parents’ names were wrongly recorded as Hari Singh Yadav and Mamta Yadav instead of Hari Singh and Mamta Yadav. They presented Jigya’s birth certificate, which listed their names as the latter rather than the former. It has been argued before the Court that denying the Petitioner the opportunity to amend an unintended error will result in a breach of the Petitioner’s fundamental Right to Education, as well as her freedom to travel for higher study.
CBSE asserted that they rely on information provided by schools and that they may only make changes to the information that fits school records.
The evidence presented before the Court demonstrated that the Petitioner’s parents chose to furnish the school with the names listed in the CBSE documents deliberately and systematically. The Court rejected the plea, holding that the writ cannot challenge the bye-laws’ constitutional validity because the Petitioner’s parents are themselves at fault.
Jigya Yadav assailed the decision of the High Court of Delhi, in W.P. (C) No. 3774/2010, dated 20.12.2010 wherein the High Court rejected the prayer for direction to the Board to carry out the correction of her parents’ name in the mark sheets issued by it. The Petitioner then preferred an appeal before the Supreme Court of India.

Important provisions

Article 14 of the Constitution- It provides that no one has the right to be denied equality or equal protection under the law. It also states that no one can be discriminated against because of their gender, caste, religion, or other factors.
Article 19(1)(g) of the Constitution- It guarantees that every individual has the right to engage in any vocation, trade, or enterprise in any region of the country.
Article 21 of the Constitution- It declares that no individual’s Right to Life and Personal Liberty, which is guaranteed by the Constitution to every citizen of our country, should be violated unless the procedure established by law is followed.
Article 226 of the Constitution- It discusses the authority that the high courts have in terms of issuing writs. It states that every high court will have the authority to issue orders, writs, or directions to any individual, authority, or even government in appropriate cases within the territories where they exercise their jurisdiction, for either the enforcement of any right granted by Part III of the Constitution or any other law.
Bye-law 69.1 of the C.B.S.E. Examination bye-laws– This Bye-law states that once a name or surname has been registered in the Board’s certificate, no changes can be made. However, a student’s or guardian’s name or surname (mother/father/guardian) can be modified only to the extent of correcting spelling errors or factual typographical errors and only to the extent that it is consistent with the records submitted by the school.

Issues

Whether the CBSE Examination bye-laws have any legal standing?
Whether examination bylaws impose appropriate restrictions on the exercise of rights under Article 19 of the Constitution, such as failing the test of rationality by narrowing the scope of permissible corrections/changes excessively?
Whether the Board is required to make adjustments or revisions to the certifications it has issued as a result of public record corrections or updates?

Arguments on behalf of the Petitioner and Respondent

It had been argued before the Court that denying the Petitioner the opportunity to amend an unintended error will result in a breach of the Petitioner’s fundamental right to education, as well as her freedom to travel for higher study.
The counsel for the Respondent argued that C.B.S.E. is an autonomous and independent body that does not fall within the definition of State and thus, will not comply with the writ jurisdiction. He further stated that it is an autonomous society that is registered under the Societies Registration Act, 1860, is self-funded, and is governed by its own set of rules and regulations.
In response to the Respondent, the counsel for the Petitioner stated that C.B.S.E. will fall under the jurisdiction of the State under Article 12. The counsel stated that there have been numerous instances in which the question of whether or not a body is regarded as a state has been debated. The counsel cited two such cases, Ajay Hasia and Ors. v. Khalid Mujib Sehravardi and Ors., (1980) and Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and Ors. (2002) and stated that if a body performs a public function or if the State or even the Central Government exercises deep and pervasive control over that body, it falls under the ambit of the State under Article12.
The Petitioners have questioned the legality of bye-law 69.1 in their appeal. They claim that the challenged bye-law gives them no remedy for correcting their parents’ names. They’ve also labelled these bye-laws as arbitrary because they don’t take into account the troubles that they cause pupils. The Petitioner’s attorney claims that even if an inadvertent error has been committed, the Petitioner should be allowed to amend it rather than being forced to repeat the mistake.
The counsel for the Petitioner further claimed that C.B.S.E. is abusing its authority and restricting it for the sake of efficiency, thereby creating injustice to the Petitioner. In order to demonstrate that this is unjust, the counsel referenced the following cases: Indian Aluminium Company v. Kerala State Electricity Board (1975), J.K. Aggarwal v. Haryana Seeds Development Corporation Ltd. & Ors. (1990) and Dhruva Parate v. CBSE & Anr (2009). The Petitioner’s lawyer argued that these measures would impair the Petitioner’s Right to Education, her profession, and her option to travel for higher study and that they would be a violation of her fundamental rights.
The Respondent’s counsel stated that C.B.S.E. does not have the authority or resources to independently check the details of every candidate and that they must rely on the records provided by the schools.

Judgement of the High Court of Delhi

In the case of Anandi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti M Mahotsav Smarak Trust and Ors. v. V.R. Rudani and Ors. (1989), along with the case of U.P. State Co-operative Land Development Bank Ltd. V. Chandra Bhan Dubey and Ors. (1998), the Court stated that as per Article 226, the expression “any person or authority” mentioned in the Article will not only be confined to the statutory authorities and instrumentalities of the State but will also cover all those bodies which perform a public duty.
The case was referred to as Binny Ltd. & Anr. v. V. Sadasivan & Ors. (2005) by the Court. The Supreme Court ruled that even private bodies responsible for performing public-sector functions are subject to writ jurisdiction under Article 226. The writ will be regarded as maintainable against C.B.S.E. since writs can be filed against private bodies that perform public functions or perform public responsibilities.
The Court ruled that any executive agency acting within its discretionary authority cannot limit its own powers.
The Court determined that the evidence presented to them showed that the Petitioner’s parents did not make an unintentional error when entering their names in the school records, as they consistently filled their names as Hari Singh Yadav and Mamta Yadav and not Hari Singh and Mamta in all school documents, including admission forms.
The Court concluded in its final judgement that the Petitioner’s parents knowingly and subsequently chose to enter in their names in the school records as Hari Singh Yadav and Mamta Yadav. The Court, further, stated that the current petition cannot address the legitimacy of the bye-laws because the Petitioner’s parents are at fault and have made the same mistake on several occasions Even if the regulations had allowed it, the Court concluded that the change of names should not have been allowed because they elected to complete those names on their own volition and account. It was done by invoking the case of Mrutunjoy Pani & Anr. v. Narmada Bala Sasmal & Anr. (1961). The Court observed that the practice of submitting petitions to dispute the legality of statutes, rules, and bye-laws on the grounds that they are arbitrary and unconstitutional has grown increasingly common, even when the Petitioners’ conduct is not blameless.

Judgement of the Supreme Court

The Supreme Court, depreciating the reasoning used by the High Court in granting the petitions, found that the challenged judgements expressly state that the request for amendments could not be granted under the Byelaws. As a result, it was determined that there was no demonstration or investigation to determine the existence of any legal claim in students’ favour. Even if the Supreme Court assumes that the High Court issued instructions only on the basis of fundamental rights, it was held that there was no discussion or investigation done in this regard.
It was further held that, in view of the High Court’s violation of fundamental rights, there is no attempt to analyse the Bye-law’s viability. The Court decided that, in the absence of an adverse ruling on the legitimacy of the applicable rules, the fundamental principle of the rule of law requires that they be given their intended effect. Even if a constitutional court believes that the situation merits an unusual remedy, it may do so using Article 226’s broad powers, but only after a thorough examination of the facts and after showing the case’s extraordinary character.
It was decided that while CBSE certificates are not strictly intended to be used as identification documents, they are used for corroborative purposes in all academic and career-related transactions as foundational documents. The date of birth on a matriculation certificate, in particular, is considered primary evidence of a citizen’s date of birth. As a result, it was decided that when it comes to the information contained in a CBSE certificate, the Board must give students the flexibility to change it if they follow certain criteria that are reasonable in nature.
Further, it was held that since all other State authorities could allow it for the preservation of consistency and accuracy while also enabling citizens to exercise their rights freely, there was no reason for CBSE to deny students that freedom. It was held primarily in the interest of CBSE’s own credibility that their records be seen as accurate and up-to-date records of a student, worthy of being relied upon for official purposes.
As a result, the Supreme Court concluded that the provision permitting name change ‘post-publication of examination results’ is overly restrictive and imposes undue limits on the exercise of Article 19 rights. The Supreme Court, on the other hand, found that the provision for changing one’s name is clearly distinguishable from those for correcting one’s name or date of birth and that its decision will have no bearing on them save for the limitation period condition.
Furthermore, it was held that a request for a ‘change’ of particulars in a CBSE certificate presupposes that the particulars intended to be reflected in the CBSE certificate are inconsistent with school records. A request like this could be made in two scenarios. The first is based on public documents such as birth certificates, Aadhaar cards, and election cards, and to include changes in the CBSE certificate in accordance with them. The second scenario is when the request for change is made as a result of a later-acquired name by choice. It was decided that the candidate’s name change did not need to be supported by public documentation.
Returning to the first category, the Supreme Court determined that there is a legal presumption in connection to public materials, as defined by the Indian Evidence Act, 1872. As a result, it was decided that CBSE could not ignore such public documents. Taking such papers into account, CBSE was found to be in a position to consider the request for a revision in the certificate it had given. However, it was decided that in the latter situation, where the change is to be made on the basis of a newly acquired name without any supporting school records or public documents, the request may be granted if a prior permission/declaration by a court of law and publication in the Official Gazette is taken, as well as the surrender/return of the original certificate.

The appeals were disposed of by the Supreme Court with the aforementioned terms and instructions.

Directions given by the Supreme Court

The CBSE is responsible for processing requests for corrections or changes to certificates issued by it in the situations under review.
Other pending applications and future requests for such requests will be treated in accordance with the Court’s decision in this matter, as appropriate, until the relevant bye-laws are amended.
In addition, the CBSE will take urgent efforts to revise its relevant Bye-laws to include the aforesaid process for recording corrections or changes, as the case may be, in the certificates it has previously issued or will issue.

Analysis of the case

Does one have the legal right to change the name

A person’s name is an essential part of their identity. Identity is made up of a variety of internal and external factors, including acquired qualities, and a person’s name is one of the most important indicators of identity. As a result, an individual must have entire authority over their name, and the law must allow individuals to preserve and exercise that right freely at all times. Such control would invariably include an individual’s aspiration to be known by a different name for a just cause.

Any change in an individual’s identity must go through a series of phases, and it cannot be considered complete until all of those steps have been completed. At any point in time, a human may self-identify with any title or epithet. However, unless and until the State and its agencies record the change of identity, it will not be considered formally or legally complete. After all, in the social realm, individuals are identified not only by how they define themselves but also by how their official documents identify them. Because official documents introduce a person by their name and other pertinent information in every public transaction involving that person.

However, given the nature provided under Article 19, the right to have a changed name recorded in official (public) records cannot be an absolute right, and as a matter of public policy and larger public interest, certain reasonable restrictions are required to ensure consistency and avoid confusion and deception.

Do bye-laws infringe a person’s fundamental right to change their identity

The concerned Bye-law is based on the presumption that there would never be a justifiable reason for a student to change their name after the results have been published. Only typographical or factual errors are expected in the certificates, which can be addressed using the provision for corrections.

There may be a variety of circumstances in which a name change is a genuine requirement, and the Board must allow a reasonable chance to make such adjustments while keeping the ultimate goal of maintaining the educational standard in mind.

In addition, the balance of convenience would favour students because they stand to lose more money as a result of certificate mistakes than the Board, which is more concerned with raising administrative costs.

While the Board’s obligation to take additional administrative burdens is undeniably onerous, the risk of a student losing employment chances as a result of an incorrect certificate is unparalleled.

A board charged with maintaining educational standards cannot claim authority over the identities of pupils enrolled with it. The Right to Control One’s Identity must be retained by the individual, subject to reasonable limitations.

What types of requests are acceptable

Where the incumbent wants ‘correction’ in the certificate issued by the CBSE:

There is no reason for the CBSE to refuse such a request or to impose any conditions other than a fair time limit, taking into account the time period for which the CBSE is required to store its records under current regulations.
While doing so, it can absolutely require the incumbent to comply with other requirements, such as filing a signed affidavit making the requisite statement and indemnifying the CBSE from any lawsuit brought against it by a third party as a result of the correction.
The CBSE would be justified in demanding the surrender/return of the original certificate (or duplicate original certificate, as the case may be) issued by it in order to replace it with a new certificate issued after necessary corrections have been made, with a caption/annotation indicating the changes made and the date of such correction.

It may keep the original entries as it is, with the exception of correction of names made in the exercise of the Right to be Forgotten.
The new certificate may additionally include a disclaimer stating the CBSE is not responsible for the authenticity of the school documents submitted by the incumbent in support of the request to rectify the record in the original CBSE certificate.
The CBSE can also demand that the incumbent pay appropriate statutory costs in lieu of administrative charges for issuing a new certificate.
At the same time, the CBSE cannot make it a condition to petition for corrections in accordance with school records only before the results are published. A condition like this would be irrational and overbearing.
If the application for recording correction is based on school records obtained at the time of the CBSE’s publication of results and issuance of the certificate, the CBSE may set a reasonable time limit within which the application for recording correction in the certificate issued by it may be considered.
However, if the request for recording change is based on updated school records after the CBSE has published the results and issued the certificate, the applicant is eligible to seek for recording change within the CBSE’s reasonable limitation time. In this case, the candidates cannot argue that they were unaware of the change in the school records because such a change would almost certainly occur at their request.
If a student files such an application for school-record correction, they are expected to apply to the CBSE as soon as the school records are corrected, which should be done within a reasonable period.

Indeed, the CBSE would have the option of rejecting the application if the period for preserving official documents under the current regulations had elapsed and no record of the applicant in question could be traced or recreated.

In the case of later amendments to school records, this could happen for a variety of reasons, including the candidate’s decision to change his or her name. To put it another way, a request to CBSE to record a change in the certificate issued to bring it in accordance with the incumbent’s school records does not have to be made prior to the CBSE’s publication of examination results.

Conclusion

The Supreme Court ordered the CBSE to “process the applications for correction or alteration, as the case may be, in the certificate issued by it in the respective cases under consideration.” The CBSE’s bye-laws were also amended to “incorporate the specified procedure for recording correction or alteration, as the case may be, in the certificates previously issued or to be issued by it”.

References

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Is taking voice sample from an accused without his consent unconstitutional

By

Abanti Bose

-

December 4, 2021

0

voice-sample-min-1 — Image Source: https://rb.gy/xkl1ef

This article is written by Moumita Mondal, pursuing Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from Lawsikho.com. The article has been edited by Prashant Baviskar (Associate, LawSikho) and Ruchika Mohapatra (Associate, LawSikho).

Table of Contents

Introduction

The word “voice” refers to the sound produced by human beings through their mouth in speech or song. In general, music professionals use the term “voice sample” to refer to the collection of an artist’s recorded sound for the purpose of composing a song. In law, “voice sample” means the recording of the voice which is only used for the purpose of criminal investigations and legal or constitutional issues. Here, the voice sample of the accused can only be obtained by the Investigating Agency or Police when the Magistrate directs to do so. But, there are a plethora of issues that can arise while taking the voice sample from the accused as it could infringe the right to privacy.

Through this article, the author seeks to discuss the meaning of a voice sample, as well as other aspects of the right to privacy where a voice sample cannot be taken, and the constitutional basis on which the Magistrate allows the Investigating Agency to take a voice sample from an accused person without his consent.

What is a voice sample in law?

Voice sample refers to the recorded tone of the person. It is mainly based on the accent of the person. Voiceprint identification is a technique through which the voice features of the speaker are recognized. Voiceprint identification is generally used in criminal investigations to solve complicated matters or matters which are pending before the court. It is a technique through which the court can speed up the proceedings of adjudging the guilt or innocence of the accused.

The 87th report of the Law Commission of India had mentioned the instance which took place in England in the year 1967 at the Winchester Magistrates Court in which the voice sample was taken from the accused to identify the malicious telephonic calls made by him. So, with the help of the voiceprint identification, it was confirmed that the calls were actually made by the accused person and thus, he was found guilty by the court.

Is obtaining a voice sample from the accused without his consent constitutional?

Constitutional basis

Article 20(3) of the Constitution of India says that no person should be forced to become a witness against himself. In the recent case of Raj Kumar Singh Chouhan vs State of Rajasthan, the learned counsel on behalf of the accused contended that the voice sample cannot be taken against the choice of the accused otherwise it would result in self-incrimination under Article 20(3) of the Constitution of India. The learned counsel for the accused has also referred to the judgment given in Vikramjeet Singh vs.State of Rajasthan. Thus, while relying on the judgment passed by the Supreme Court in Ritesh Sinha v State of Uttar Pradesh & Anr., the Hon’ble court rejected the plea of the accused.

In the following judgments, High Courts have validated that the voice sample could be collected from the accused person without taking their permission.

Significant case laws

In R.K. Akhande vs. Special Police Establishment, the Madhya Pradesh High Court held that necessitating the accused person to give the voice sample does not mean that he is giving evidence against himself.
In Kamal Pal and Another v. State of Punjab, the Punjab and Haryana High Court held that the accused who is judicially directed to give the voice sample for the purpose of inquiry or comparison purposes do not infringe the right to privacy.

Case analysis of Ritesh Sinha vs. State of Uttar Pradesh

Facts of the case

The FIR was lodged by the in-charge of the Electronic Cell of the Sadar Bazar Police Station which is situated in the Saharanpur district of the State of Uttar Pradesh. The FIR stated that Dhoom Singh was connected with Ritesh Sinha, and was involved in collecting money from different people on the pretext of giving them jobs in the Police. The police confiscated the mobile phone while arresting Dhoom Singh. The Investigating Officer needed the voice sample of Ritesh Sinha to confirm whether the taped conversation on the mobile phone was between Ritesh Sinha and Dhoom Singh. So, an application was filed before the Chief Judicial Magistrate for directing Ritesh Sinha to give his recording for a voice sample. The summon was sent to him which directed him to give his recording for a voice sample. Ritesh Sinha was aggrieved by the decision of the Court and thus, he filed an appeal before the High Court under Section 482 of the Code of Criminal Procedure, 1973. But, the High Court had rejected the appeal filed by him. Thereafter, he filed an appeal through a Special Leave Application before the Supreme Court.

Brief of the case

The appeal was filed by Ritesh Sinha which had challenged the order of obtaining a voice sample from him. The appeal was dividedly dealt with by the Supreme Court composed of two-bench, Justice Prakash Desai and Justice Aftab Alam. While dealing with the appeal, the two principal questions were raised before the Court. The first issue was whether Article 20(3) protects the accused person compelling him to give a voice sample for investigation or not. The second issue was whether the Magistrate could direct the accused person to give the voice sample without the absence of provisions. Before answering both the issues, Justice Prakash Desai contended that if the phrase “voice sample” is added as other tests in Explanation (a) to Section 53 of Code of Criminal Procedure, 1973 through the application of ejusdem generis, then the Magistrate is authorized to direct the accused person to give the voice sample for inquiry in the Criminal matters whereas Justice Aftab Alam contended that the accused person can be forced to give the voice sample if such law is passed by the legislature.

For the first issue, the Court had relied on the issue which was raised in State of Bombay vs. Kathi Kalu Ogad. The issue raised in the case of Kathi Kalu Ogad was whether the taking of specimen handwriting of the accused to determine his guilt would amount to infringement of right against self-incrimination under Article 20(3) of the Constitution. The answer to this issue was given by Chief Justice B.P. Sinha opined that Article 20(3) of the Constitution of India is only applicable when an accused person is compelled to incriminate himself. He added that self Incrimination includes the evidence given by the accused person when he is under compulsion to do so and such evidence is based on the personal knowledge of the other person but it does not depend on the knowledge of the accused person. He contended that the violation of Article 20(3) occurs if the force is applied to the accused person who incriminates against himself. He opined that a specimen of signature or fingerprint is obtained to confirm that the inference made by the Court is true. He added that these pieces of evidence are neither in the category of oral or documentary evidence and thus, they are regarded as the third category which is beyond the evidence.

The court stated that the judicial interpretation can be given in such cases where there are shortcomings in the letter of the law. For the second issue, the Court had referred to Section 53, 53-A, and Section 311 which were added when the Code of Criminal Procedure was amended. These amendments were referred to for ascertaining the power of the Magistrate to give direction to the accused person in the cases where the accused has to undergo medical examination for the alleged offences committed by him or where the specimen of handwriting or signature is required for inquiry or procedure under the Cr.P.C. But, this amendment does not include any provision which could empower the Magistrate to order any person or accused person to supply the voice sample for the inquiry. No laws relating to this issue were made by the Legislature and so, the confusion in the mind of Justice Aftab Alam arose while determining whether the Legislature was in favour of debarring or deletion of this provision so as not to enable the courts to give the judicial interpretation. To clear the confusion, the Court had referred to the 87th report of the Law Commission of India. The Court had also referred to the judgment given in State of Uttar Pradesh v. Ram Babu Mishra, which held that in the absence of any specific provision, the Magistrate could not direct the accused person to give his specimen signatures and writing samples. The Court suggested that suitable legislation may be made on the analogy of Section 5 of the Identification of Prisoners Act, to provide for the investiture of Magistrates with the power to issue directions to any person, including an accused person, to give specimen signature and writings.

The decision of the Court

Before coming to the decision, the question was raised before the court that the order of the court to take the voice sample would infringe the right to privacy under Article 20(3) of the Constitution of India. The Court had relied on the judgment given in Modern Dental College and Research Centre and others vs. State of Madhya Pradesh and others, Gobind vs. Madhya Pradesh and another, K.S. Puttuswamy and others vs. Union of India and others state that the fundamental right to privacy cannot be infringed when the accused is compelled under the direction of the Magistrate to give the voice sample for inquiry in a criminal matter. The Court decided that the Magistrate is empowered to direct the accused person to give his voice sample for criminal investigation until the subsequent provisions are embedded by the Legislature and thus, such power has been given to the Magistrate under Article 142 of the Constitution of India. Therefore, the appeal of Ritesh Sinha was rejected by the Court.

Can investigative agencies be allowed to take voice samples of the accused?

In Union of India THR. National Investigating Agency vs. Roopesh @ Praveen, the Investigating Agency had approached the Supreme Court through Special Leave Petition against the order given by the Kerala High Court which refused the Investigating Agency to collect the voice sample for purpose of identifying whether the voice of the accused person matches with the voice in the video recording taken during the investigation. The accused had approached the Kerala High Court against the NIA and opined that there is no statutory provision that allows the court to direct the accused to deliver his voice sample to the investigating agency for authentication.

The Kerala High Court consisting of Justice AM Shaffique and Justice P Somarajan accepted the contention of the accused as correct while relying on finding in Ritesh Sinha v. The State of Uttar Pradesh &Anr. Thus, the Kerala High Court held that the accused cannot be directed to give a voice sample to the Investigating Agency. However, the High Court also observed that the issue of whether the Investing Agency could take the voice sample from the accused person or not is still not determined by the Supreme Court.

While dealing with the present case, the Supreme Court had referred to Ritesh Sinha’s case. In Ritesh Sinha’s case, Justice Prakash Desai opined that the Magistrate could direct the accused to give a voice sample whereas Justice Aftab Alam opined that it is not correct to include the voice sample in the meaning of measurement under the Explanation of Section 53 of the Code of Criminal Procedure, 1973.

The Supreme Court held that the voice sample of the accused could be given to the Investigating Agency for the purpose of the inquiry. Thus, the decision was passed in favour of the Investigating Agency.

Voice sample and right to privacy

Article 21 of the Constitution of India protects the privacy of the people. The term, “Privacy” has been defined in the Black’s Law dictionary which means the right to be free from any public attention. The right to privacy prevents the third party from accessing the information related to the personal lives of people. A person cannot be forced by any other person to disclose his details regarding his personal life. In People’s Union of Civil Liberties v. Union of India, the Supreme court held that the telephonic conversation is related to the private life of the man, and tapping the conversation without the consent of any person would infringe Article 21 of the Constitution of India.

A voice sample is an effective tool that determines the authenticity of the recording when it is compared with the voice of the accused person. The privacy of the person is violated when the other person takes the recording of his voice or conversation without taking his consent. Thus, the Supreme Court had observed that the court cannot compel the accused person by directing him to give his voice sample which would infringe his right to privacy.

While relying on Ritesh Sinha v. State of Uttar Pradesh & Anr, the Supreme Court had declared that the fundamental right to privacy must not rise above the public interest, and thus, it is not absolute. The Supreme Court had also relied on the landmark judgment of Selvi v. State of Karnataka in which the connection between the right to privacy and Article 20(3) of the Constitution was drawn. In this case, the court had declared that the narco-analysis and lie detector test cannot be conducted without the permission of the accused person otherwise it would infringe the right of the accused person. The court held that the choice is left to the person who chooses to speak or remain silent and cannot be restrained by anyone especially in a situation where he faces criminal charges and punishment. In Puttaswamy’s case, the Supreme Court had already declared that privacy allows the person to think and act freely. Earlier, the Supreme Court in Suchita Srivastava (2009) and NALSA (2014) held that the right to make a personal choice of one’s life is regarded as the important aspect of the right to privacy. Therefore, the court cannot force a person to give a voice sample which would infringe the fundamental right to privacy under Article 20(3) of the Constitution.

Conclusion

A voice sample is a method through which the recording of the voice is taken from the accused of the purpose of comparing the other recording speech or conversation. The legislation had not made any laws relating to a voice sample. The court had tried its best to pronounce its judgment which would deliver justice to the society without ignoring the intent of the legislation. Such an instance can be seen in Ritesh Sinha v. State of Uttar Pradesh & Anr in which the Supreme Court declared that the accused person has to give a voice sample for investigation in criminal matters and thus, it does not violate Article 20(3) of the Constitution of India.

Right to privacy refers to the choice of the person to safeguard his details about his private life. The mobile phone, laptop, or any other form containing the personal details of the person cannot be disclosed to the third party without seeking his permission. And, so the Supreme Court had already stated that the court cannot issue an order against the person or accused person to give his voice sample without his will otherwise it would resultantly violate his right to privacy.

References

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