The concept of deceptive pricing in the United States

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September 6, 2021

This article has been written by Sai Manoj Reddy. L, pursuing a Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from LawSikho.

Table of Contents

Introduction

We are all familiar with 50%, 60%, and sometimes 90% discounts while shopping online or offline. We also see ‘buy 1 get 2 free offers’ and other similar methods like striking off a higher price with a red line and showing a discounted price. All these are tactics used by the sellers to attract more consumers and make more sales. In India, we do not pay much attention to all these tactics and still buy the products and there is no legal framework for the regulation of these tactics in India. There is a concept called ‘deceptive pricing’ or ‘bargain advertising’ in the US which is illegal under the US Federal Rules. There are many types of deceptive pricing explained in the Federal Rules and also what constitutes deceptive pricing and what does not. The explanation is very elaborate as to where the Federal Rules draw a line and states certain criteria to be followed by the sellers when they are using some kind of marketing tactics.

In this article, we will see what deceptive pricing is with illustrations and some of the famous class action lawsuits on luxury clothing companies and some other companies where the courts have ordered millions of dollars as a settlement from their companies to all the affected consumers.

What is deceptive pricing?

Deceptive pricing is a method in which companies/traders/sellers use deceptive means for selling goods and services by naming the prices in a different manner such as “original price”, “former price”, or “regular price”. The sellers show such pricing quotes for many shopping seasons to mislead prospective customers and make them think that they’re paying less money or getting great discounts for products they purchase. The Federal Trade Commission of the USA strictly prohibits companies from using such deceptive pricing practices to lure consumers and create a bad environment in advertising and selling goods and services.

Legal provisions on deceptive pricing

Part 233 of the Federal Regulations of USA deals with “Guides Against Deceptive Pricing” where it is explained elaborately what amounts to deceptive pricing and what does not. Under this section there are four types of deceptive pricing explained which are as follows:

1. §233.1 Former price comparisons

This is one of the most commonly used forms of bargain advertising. In this method, the advertisers/sellers offer a reduction of price from the advertiser’s own former price for an article. The above section explains what falls under former price comparisons and what does not in the following manner:

“If the former price is the actual, bona fide price at which the article was offered to the public on a regular basis for a reasonably substantial period of time, it provides a legitimate basis for the advertising of a price comparison. Where the former price is genuine, the bargain being advertised is a true one. If, on the other hand, the former price being advertised is not bona fide but fictitious—for example, where an artificial, inflated price was established for the purpose of enabling the subsequent offer of a large reduction—the “bargain” being advertised is a false one; the purchaser is not receiving the unusual value he expects. In such a case, the “reduced” price is, in reality, probably just the seller’s regular price.”

2. §233.2 Retail price comparisons; comparable value comparisons

Another commonly used form of deceptive pricing is to offer goods and services at prices that are lower than those being charged by other competitors for the same merchandise in the advertiser’s/seller’s trade area (the area in which he/she does business). This may be done either on a temporary basis or a permanent basis, but in either of the cases, the higher price that has been advertised must be based upon a fact, and should not be fictitious or misleading.

There are certain criteria under this section that when a seller is advertising that he is selling the goods at a decreased price as compared to the other competitors then the price quoted should be a real price based on the survey of different stores selling at that higher price. Merely because some stores in suburbs are selling an article at a higher price does not make it the price for the entire trade area. If the seller can prove that the higher price that he is quoting is backed by actual surveys then it does not amount to deceptive pricing, if not then it falls under deceptive pricing.

3. §233.3 Advertising retail prices which have been established or suggested by manufacturers (or other non-retail distributors)

There is a concept called the manufacturer’s suggested price or list price in the US which is not the original price that has been set by the manufacturer. On many occasions, the consumers were made to believe by the sellers that this price is the original price at which the article is generally sold. The sellers then reduce the price from that manufacturer’s suggested price or list price to make consumers believe that they are getting great discounts but in reality, it is not the case. Normally the list or suggested retail prices do not in fact correspond to prices at which a substantial number of articles are sold, thus the advertisement of a reduction on such prices is nothing but misleading the consumers.

4. §233.4 Bargain offers based upon the purchase of other merchandise

Normally we see a lot of buy 1 get 2 free or half-price sales etc. which sounds really great to a consumer but in reality the sellers are not actually giving anything for free. This is a marketing gimmick to attract more consumers and make more sales. The above section explains this method of deceptive pricing as stated below:

“The forms which such offers may take are numerous and varied, yet all have essentially the same purpose and effect. Representatives of the language frequently employed in such offers are “Free,” “Buy One—Get One Free,” “2-For-1 Sale,” “Half Price Sale,” “1¢ Sale,” “50% Off,” etc. Literally, of course, the seller is not offering anything “free” (i.e., an unconditional gift), or 1⁄2 free, or for only 1¢, when he makes such an offer, since the purchaser is required to purchase an article in order to receive the “free” or “1¢” item. It is important, therefore, that where such a form of offer is used, care be taken not to mislead the consumer.

Accordingly, whenever a “free,” “2-for-1,” “half-price sale,” “1¢ sale,” “50% off” or similar type of offer is made, all the terms and conditions of the offer should be made clear at the outset.”

5. §233.5 Miscellaneous price comparisons

The practices mentioned in the above sections are the most frequently employed practices of deceptive pricing. However, there are many other variations and types of deceptive pricing and some of them are:

The sellers should not sell or advertise a retail price as a “wholesale” price.
The sellers should not advertise that they are selling goods at “factory prices” when they are actually not selling at the same price a person can get the article directly from the manufacturer.
The sellers should not offer seconds or imperfect articles at a reduced or discounted price without disclosing that the higher prices of similar articles refer to them being perfect without any defects.
Sellers should not put up a discounted sale if they are not going to increase the prices at a later date.

Along with the above-mentioned types of deceptive pricing, there are some more types of deceptive pricing which are not mentioned in the above statue-like:

6. Drip pricing

This practice is generally used by the travel and hospitality sectors where the sellers only show a part of the price to the consumers and made them think that is the final price, but in reality, the price shown is excluding all the taxes and other charges like booking fees, resort fees, etc., which will only be visible to the consumer at the final stage of payment. That is why this method is called drip pricing as the price shown on the advertising is dripped.

7. Strike through pricing

This method is also called cross-out pricing which is mostly seen in supermarkets and cloth stores where the prices are presented in such a way that the higher price will be crossed off and a lower price will be shown to the consumers to make them believe that there is a good discount on the articles. In reality, the crossed-off price is actually the suggested price of the manufacturer and not the retail price which is nothing but misleading the consumers.

How to tackle deceptive pricing?

A lot of times consumers overpay for certain products thinking that they are getting great discounts, but in reality, they are getting cheated by the deceptive pricing. When you notice that a particular seller is using a deceptive pricing tactic you have to start collecting the evidence to prove that there is deceptive pricing. Some of the evidence can be the advertisements, brochures, photos of prices in the stores, etc.

After that, you can ask for a refund from the seller by showing all the evidence to him and explaining the situation and if he refuses to refund, which is in most cases you can approach the Federal Trade Commission, USA to make a complaint or alternatively gather the similarly affected persons and file a class-action lawsuit against the seller or company.

Famous cases on deceptive pricing

Micheal Kors

Micheal Kors is a luxury clothing brand based in the USA. It was accused of creating an “illusion” of deep discounts by using tags containing made-up “manufacturer’s suggested retail prices,” or MSRP, and offers to sell the products at lower prices, termed “our price.”

A class-action lawsuit was filed against this deceptive pricing tactic in 2014 and the company has agreed to a settlement of $4.88 Million to pay all the affected consumers who fell for this deceptive pricing.

Ross stores

Ross Stores is one of the biggest discount clothing stores in the USA and it is headquartered in California. The main allegation against Ross Stores is “labeling the products that the company sells in its California stores with false and/or misleading comparative prices which purport to be charged by other merchants for the same products.”

A class-action lawsuit has been filed in 2018 and the company has agreed to settle for $4.88 million to pay all the affected consumers.

Neimen Marcus

Neiman Marcus is a luxury departmental store company headquartered in Dallas, Texas. It is alleged that the company has duped a lot of consumers by using price tags listing a price “Compared To” a fake higher price in an attempt to make consumers think that they were getting a bargain at the company’s Last Call outlet stores.

The company has agreed to settle the class-action lawsuit filed against it in 2018. The company has agreed to pay $2.9 million to all the affected consumers.

Kohl’s Departmental Stores

This is one of the largest departmental stores in the USA. It is accused of deceptive pricing where the products have featured two prices: one is a selling price and the other is a significantly higher price represented to be the product’s “regular” or “original” price. According to the complaint, Kohl’s led consumers to believe that they were receiving a substantial discount by simultaneously displaying the two prices.

The class-action lawsuit was filed in 2016 and the company has agreed to settle the suit by agreeing to pay $6.15 million to all the affected consumers.

Conclusion

Deceptive pricing is an unfair marketing tactic that has been used by many companies and retail sellers where the consumers are made to believe that they are getting great discounts. As we have seen above, there are many class-action lawsuits filed against these companies, and millions of dollars are being paid to the affected consumers. The courts in the USA are trying their level best to curtail such deceptive pricing practices. We see a lot of this in India as well but there is no regulation of such practices in India as of now. One of the main reasons is that our legal system is very slow and proving such big corporations are doing something wrong is almost impossible in our legal system. All we can do is hope that the Indian Government notices such practices and passes special legislation regulating them and constitutes a tribunal for speedy disposal of such cases.

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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The contradiction between female foeticide prevention and UP’s Population Control Bill

By

Rachit Garg

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September 6, 2021

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This article is written by Kavana Rao from Symbiosis Law School, Noida. This article gives us an insight into how the UP Population Bill contradicts the prevention of female foeticide.

Table of Contents

Introduction

Uttar Pradesh is the most heavily populated state in India with over 200 million people. With such continuing rampant increase in population, the population of entire India could surpass that of China’s and create a run for basic resources, employment and could also affect the economic stability and quality of life. To tackle the population problem in the state, in July, it released a new draft population policy. Research states that the new policy to control the population may lead to other undesired consequences like an increase in female foeticide, unsafe abortions leading to deterioration in women’s health, and sometimes even death in the process.

UP’s Population Control Bill

The UP’s Population Control Bill provides public servants who are under the control of the state government with many perks and incentives if they adopt the norms laid down by the government.

Chapter II lays down the incentives provided by the state government on adopting the norms and the disincentives prescribed when the couples are in contravention of the norms laid down under the Act.

Section 4 states that if the public servants under the control of the state government adopt the two-child norm by undergoing voluntary sterilization operation upon himself or the spouse shall be given the following incentives:

Two additional increments during the entire service. Subsidies and soft loans towards the purchase of a plot or house at a nominal rate of interest.
Rebates on the charges for utilities such as water, electricity, house tax, etc.
Maternity or paternity leave for 12 months with full salary and allowances.
3 % increase in the employer’s contribution fund under the national pension scheme.
Free health care facilities and insurance coverage to spouses and other such benefits and incentives.

Under Section 5 of the UP Population Bill, the state government provides incentives to those public servants who have only one child and undergo voluntary sterilization upon himself or herself or their spouse. In addition to the benefits provided in Section 4, the public servants are provided with free health care and insurance coverage for the single child till it attains the age of twenty. Further, preference shall be given to the single child in admission to all educational institutions, the single child will be provided with free education up to graduation level, and in case of a girl child, they are awarded scholarships for higher studies.

Under Section 6, the bill not only provides some incentives for the public servants but also to the general public. If the general public either adopts the two-child policy or has only one child, by getting a sterilization operation upon themselves or on their spouse. Most of the incentives are similar to the ones given to public servants.

Section 7 provides a special benefit to couples living under the Below Poverty Line if the couple has only one child and undergoes voluntary sterilization operation of themselves or their spouses. The family will be eligible for a one-time lump sum amount of rupees eighty thousand if the single child is a boy and one lakh rupees if it is a girl child.

Section 8 provides the disincentives to the couples in contravention of the two-child norm. If a couple procreates more than two children then they shall not be eligible for any of the incentives provided from Section 4 to Section 7. Further, there will be disincentives like:

Being debarred from the benefits of Government Sponsored Welfare Schemes;
Limit of ration cards up to four units; and
Other disincentives that may be prescribed.

The disincentives do not stop there, there are other disincentives like a bar on contesting elections, a bar on applying for jobs, a bar on promotion in government services, and a bar on receiving any kind of government subsidies. This does not apply to employees who already have more than two children but they have to take an undertaking that they shall not act in contravention to the two-child norms.

How the UP’s Population Bill contradicts the prevention of female foeticide problem

Research studies and previous data indicate that the new population control policy may have an undesirable effect with the increase in the female foeticide rates in the State. India has one of the highest rates of female foeticide in the world with the sex ratio falling from 927 to 919 for every 1000 males in a decade. The proposed policy could widen the gap further in states like Uttar Pradesh where the sex ratio is 902 females for every 1000 males. A study also predicts that the highest deficits in female births from 2017 to 2030 can occur in Uttar Pradesh with nearly two million missing female births, and the introduction of the policy will aggravate these numbers.

According to Alaku Basu, a sociologist, demographer, and professor of development sociology at Cornell University, the new population control policy fails to understand the impact of this Bill. It also fails to understand the link between the population and development.

Economists Abhishek Chakravarty and S. Anukriti, in their paper, entitled ‘Democracy and Demography: Societal Effects of Fertility Limits on Local Leaders’ have observed that population control measures could worsen the sex ratio at birth, due to the preference of Indian society for male children. They observe that the two-child laws may affect the sex ratio of second births for couples who have one child who is a girl at the announcement. For example, if parents desire at least one son, couples who have one daughter and no sons when the law is announced may be more likely to practice sex selection at second parity due to the two-child limit.

Taking examples of states like Rajasthan, Madhya Pradesh, Maharashtra Gujarat, and Assam which have already implemented the two-child policy in some form depicts that the states observed an unsafe rise in sex-selective abortions, men alienating their wives or divorcing them, and also giving up children for adoption with the selfish motive of contesting the elections. Whereas states like Kerala, Karnataka, and Tamil Nadu have observed a remarkable drop in the fertility rates without adversely affecting the sex ratio. Instead of implementing such adverse policies, these states concentrated on education and awareness.

How China’s single-child policy led to a drop in the sex ratio

“There is no behavior more unfilial than to have no male descendants”, this Confucian saying is similar to the mindset of the Indian society even till the present day. China had introduced the one-child policy in 1981 seeking to restrain the rising population growth. In their zeal to reduce the number of births, the officials resorted to abortions on a large scale. With the one-child policy and the obvious preference for a male child, families resorted to female infanticide. Many Chinese families believed that if they were allowed to have only one child, they would rather have a male child. This frantic push for a male child led to drowning, suffocation, poisoning, and the dissertation of the girl child.

In a paper published by the University of Denver, it was also observed that sex-selective abortion and various methods of female infanticide had resulted in an excess of males in China’s population when the one-child policy was introduced. It also observed that it was estimated that, over the next twenty years, there would be twelve to fifteen percent more males than females in the Chinese population.

The census in 1981 recorded 1981 births of 10,765,292 boys and 9,924,412 girls, representing an unusually high sex ratio of 108.5 male to 100 female. Comparing the actual number of female births to the world norm indicates a loss of 232,000 baby girls in 1981 alone.

All these were impacts of the one-child policy in China due to the cultural stigma of having a male child. This similar stigma is also present in India, and through this analogy, with the one-child policy implemented by China in the 1980s, we can interpret that there would be similar consequences of the UP Population Control Bill in India as well.

Solutions for population control

Educate and make the masses aware of the importance of population control and family planning and different methods of family planning through NGOs, organizations, and healthcare workers.
Distribute contraceptive pills, condoms, etc through health care centers and NGOs.
Ensure mandatory registration of pregnancies and births, deaths, and deliveries across the state.
Distribution of supplements like iron tablets, vitamins to the women free of cost at government hospitals and health care centers.
Form village level groups to encourage and disseminate advantages of small family norms, the value of girl child and also make efforts to educate the people of gender equality.
Educate men about the benefits of vasectomy (sterilization surgery in men) in population control and is a reversible surgery and less complicated unlike tubectomy (sterilization surgery in women) which are irreversible surgeries and more complicated.
Conduct vaccination and immunization drives and camps to protect the children from various health risks.

Conclusion

By taking reliance from various research papers, numbers, and real-life incidents, like that of China and few states in India, it can be concluded that the Uttar Pradesh Population Control Bill will have an adverse effect on the sex ratio of the state and subsequently of the country. It will lead to undesirable effects like female infanticide, deterioration in women’s health with the abortions for a male child, and also because of multiple deliveries. The state should try to adopt more reformative methods rather than the incentive method to control the population growth in the country. By creating awareness and imparting knowledge about the importance of population control and family planning, there will be a holistic development in the attitude of people and they will not practice family planning methods merely for the incentives and the rewards.

References

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Tips for writing good essays

By

Diganth Raj Sehgal

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September 6, 2021

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Looking for some practical essay tips to craft a piece that compels the reader? You don’t have to put too much effort into writing a perfect essay. All you need is to be logical and follow the right steps. To help you with that, we’ve put together five tips for writing a good essay.

Table of Contents

How to get better at writing Essays?

Create an Outline

This tip may sound unnecessary, but it is one of the crucial essay writing tips. Outlining your draft will give you a clear roadmap to a perfect essay. It will allow you to have a clear understanding of how to start and where to take your draft. Having an outline means you don’t have to end up clueless or directionless in the middle of the essay. Therefore, makes sure you create an outline that includes the following elements:

Hook to include in the intro.
Thesis statement.
Key arguments and evidence to support your arguments.
Concluding point.

Spending 10 to 15 minutes on brainstorming and creating an outline will save you a lot more time when writing. You will have all the important points in your mind that you have to include in the essay. It will also help you maintain cohesion in your writing. However, if you think you need assistance, you can contact a writing service and ask if you can do my essays. They will help you to get done with the entire process without having to deal with anxiety and stress.

Write the Body First

If you can’t think of a hook for your introduction and asking others: “help me write an essay”, it’s okay. But you don’t necessarily need anyone’s help in this case. Also, you don’t have to feel stuck and waste your precious time thinking about how to start. Many students find it hard to find the right words for their introduction. Hence, it is better to leave it for the end. Once you’re done writing the body of your essay, you will have better words to start your essay. Your thesis statement would already be in your outline. So, you don’t have to worry about how you will write the body. Your outline will handle that for you. Explaining your arguments and writing them down in a logical manner will give your more ideas for the hook of your essay. And, remember, hook plays a crucial role in your writing piece. It helps you keep your reader engaged from the very start. This is why writing your body first is one of the best tips for essay writing.

Define your Argument

The arguments that you listed in the outline need to be defined in the body. But, always remember to use a separate paragraph for each argument. And, start with the most important one. An ideal body paragraph should look something like this:

Topic sentence: The first sentence of your paragraph that indicates what is the paragraph about.
Argument: Explain in clear words what your argument/idea is.
Evidence: Use facts, stats, or any example to support your argument.
Explanation: You may opt to explain the idea a little further if your word count allows you to do so.
Concluding sentence: Don’t forget to connect your argument with the topic or thesis statement. You need to remind the reader why you’re arguing what you’re arguing.

This basic structure of the paragraph will help you develop your argument better and make sense to the reader. Also, this structure is definitely going you help you with the grades you’re aspiring for. So, if you have been wondering how to write essays better, this tip is something you must not ignore.

Cite your Sources

One of the other important tips on writing an essay is to cite your sources correctly. When you use evidence to back your argument, it is essential to attribute that evidence to a credible source. For instance, if you have supported your argument by giving reference to a research study findings, cite that source. Citing the source means you will have you mention the author and the year of that publication. For proper referencing, check out the guidelines of the referencing style you’re required to follow. There are many referencing styles such as APA, Harvard, Chicago, etc. You need to be sure which one you have to follow. Also, when you cite a source in your paper, make sure you include a full reference of it in the end. The list of full references at the end of the paper is also known as a bibliography that needs proper formatting. On the contrary, in personal essays or any other essays, you can also use a real-life example to support your argument. It depends on the topic you’re writing on. Let’s suppose your argument is: robots can never fully replace humans no matter how much artificial intelligence advances. You can either back it up with a fact about how humans can help other humans achieve emotional catharsis. Or, provide a real-life example of how you relieved anxiety in a stressful situation by talking with your therapist. Would you be able to achieve it by talking to a robot therapist? So, choose your evidence wisely as it will add credibility to your paper. As a result, you will have more chances of achieving high scores.

Proofread

Many students skip this last step before submitting their assignments. They are unaware of the fact that proofreading is one of the essential tips for writing if you’re aiming for good grades. Many times we tend to overlook our typos and grammatical error. While writing or typing, we don’t realize we have made any mistakes. Thereby, proofreading is essential if you want to submit an error-free assignment. So, once you’re done writing, read the entire draft line by line. After correcting the grammatical and spelling mistakes, reread it. This is time to check if your draft has coherence and cohesiveness. Simply put, make sure the paragraphs are well connected and the entire document is in the right flow. Lastly, check if your document is formatted correctly. The more attention you will pay while proofreading, the better your piece will be. Besides, if you want, you can share it with a friend, sibling, or parent for feedback. Sometimes, we cannot identify the mistakes others can in our work. Therefore, getting feedback will have you submit an essay that sounds perfect even to the readers.

All in all, make sure you are focused when you sit down to write. Spend a good amount of time on the initial research so that you can have better arguments to discuss. But, remember, no matter how strong your arguments are, your draft needs a proper structure.

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Laws regarding the presence of an accused during a criminal trial and appointment of power of attorney

By

Rachit Garg

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September 6, 2021

0

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This article is written by Anushka Singhal, from Symbiosis Law School, Noida. In this article, she discusses whether the presence of an accused is necessary for a criminal proceeding. She also tries to throw some light on the appointment of power of attorney by an accused.

Table of Contents

Introduction

The Indian legal system follows the principle of ‘innocent until proven guilty’. Guilt is not presumed in any case until the trial concludes. We often interchangeably use the words like accused, convict, and prisoner. There is a stark difference between these three words. An accused is a person on whom there is a suspicion of committing a wrong. When his wrong is proved in a court of justice, he becomes a convict, and when his imprisonment terms start he is called a prisoner. The rights of all these three persons vary. An accused has certain rights before, during, and after the trial. Right to be present during the trial is one of them. Let us discuss if the presence of an accused is necessary during a criminal trial and if he can appoint a power of attorney.

Provisions for the presence of an accused during a criminal trial in India

The substantive part of criminal law is dealt with by the Indian Penal Code,1860 while the procedural part is dealt with by the Code of Criminal Procedure,1973. Thus, the provisions regarding the presence of an accused during a criminal trial are laid down in the Code of Criminal Procedure. Going by the ideals of a ‘fair trial’ an accused should be present at the proceedings as it will give him a chance to clarify his point whenever the prosecution is taking the case to the wrong side. However, the Code of Criminal Procedure does not make the presence of an accused mandatory at a criminal proceeding. Section 317 of CrPC lays down that a trial can be held without the accused if the judge or the magistrate is satisfied in the following cases:

If the personal attendance of the accused is necessary for the interest of justice.
If the accused disturbs the court proceedings.
If there is a pleader of the accused, then he may be exempted from attending the proceedings.

The Section lays down that if the presence of the accused is extremely necessary for the case and the accused cannot be present on that particular day, the Court may adjourn the proceedings.

Section 273 of the Code lays down that all the evidence should be admitted in the Court in the presence of the accused and if the accused is excused from the attendance in the Court, then his pleader must be present at the proceedings. While Section 205 of the CrPC lays down that the magistrate may dispense with personal attendance of an accused. A magistrate can allow the accused to be represented by a pleader and the same magistrate can later call upon the pleader before the Court as and when he desires. Section 205 and Section 317 of the CrPC somehow overlap but there is a difference between the two. Let us attempt to lay down some differences between the two.

Difference between Section 205 and Section 317 of CrPC

The provisions of these two Sections are different and are not completely the same. Under Section 205 of the CrPC will be applicable when the proceedings have begun under the magistrate and charges are yet to be made. An absence granted under this Section would continue up to the end of the trial. In TGN Kumar v. State of Kerala and Ors.,(2011) the Hon’ble Supreme Court held that the powers granted to the magistrate under this Section are discretionary in nature. The Court has to examine whether the presence of the accused would serve any important function to the court or would his absence hamper the proceedings of the case.

On the other hand, Section 317 comes to play during the trial. It will be invoked when the charges have been framed while Section 205 is invoked even before that. Section 205 can only be exercised by a magistrate while Section 317 can be exercised both by the magistrate and the sessions judge. Thus, these two Sections are different when it comes to the procedural aspect and the similarity is in the purpose i.e. the acquittal of the accused.

Approaches for exemption from attending criminal proceedings

The courts adopt two approaches while granting an excuse to a person from attending criminal proceedings. The liberal and strict approach is generally adopted by the courts while granting an exemption. The magistrates can also put any number of conditions as they wish before granting an exemption. Courts can ask an accused to pay a certain sum of money for being exempted from presence in the court, they can ask him to serve an undertaking or impose any other condition.

Liberal or generous approach

Indian courts have generally adopted a generous approach in granting exemption to the accused. In the case of Halen Rubber Industries v. The State of Kerala,(1972) it was held that in all trivial and technical cases involving women, elderly, sickly, daily wage workers, factory workers, business people or industrialists should be excused from their attendance in the court. The Hon’ble Court held that one should exercise discretion liberally in such types of cases. The Court also takes into consideration the hardships caused due to travel to the court on an almost daily basis. Exemptions have been granted to the people working abroad and being accused in India. The courts do not grant exemption when they feel that the proceedings are being affected and the case demands the presence of the accused. Let us discuss all such situations with the help of case laws-

Puneet Dalmia v. CBI (2019)

In this case, the appellant was accused under the Prevention of Corruption Act, 1988. The appellant had to travel every Friday from Delhi to Hyderabad to attend the hearing of his case at the trial court. He sought an exemption from the magistrate under Section 205 of the CrPC which was rejected by the trial court. The application was opposed by the respondent CBI and the trial court rejected his application for exemption. The appellant appealed against the impugned orders to the Delhi High Court which further rejected his contention. The case went to the Supreme Court, the Court held that the appellant should be granted an exemption from coming to the court. It held that the presence of the accused should not be for the purpose of just seeing him in court. His advocate should be present each time but he can be granted an exemption owing to the hardships faced by him.

Sarath S v. State of Kerala (2019)

In this case, the applicant was employed in Sharjah and he came to India very little as he was not granted leave easily by his employer. A case was registered against him in India. He came to know of the case when the warrant reached his residence in India. As he could not come to India on such short notice, he filed an exemption application under Section 205 of the CrPC. The trial court rejected his application only on the grounds that as the warrant was issued already, nothing could be done. The case went on appeal to the High Court which held that pendency of warrant cannot be the ground for refusing the request under Section 205 Cr.P.C. if appropriate grounds are made out. The Court held that since the appellant was stationed outside India and could not come due to his employment, he can be exempted from appearing before the court.

Strict approach

A strict approach is applied in those cases where there are serious allegations against an accused. Rape cases, murder cases and other serious allegations under the Indian Penal Code would lead to the denial of an accused’s exemption application. A subjective approach is taken in deciding cases in which the strict rule will apply and in cases where a generous approach will be taken. For example, in the case of Ajay Kumar Biisnoi v. M/S Kei Industries, (2015) the Court laid down that the order of the magistrate in the exemption cases should be as such that it does not cause any prejudice to the complainant and any unnecessary hardship to the accused. Following are some of the cases in which the Hon’ble Courts adopted a strict approach-

Lily Begum v. Joy Chandra Nagbanshi (1993)

In this case, the accused was charged under Section 376, 417, and 506 of IPC. The petitioner went to the High Court and asked it to quash the proceedings against him. The High Court did not quash the proceedings but it asked the Trial Court to exempt him from coming to the Court under Section 205 of the CrPC. This exemption was challenged before the Supreme Court which held that an exemption cannot be filed in such cases of grave nature. It held that if such privilege is granted in cases of this type then people may lose their confidence in the justice system.

Power of attorney

According to Section (1-A) of the Powers of Attorney Act, 1882 a power of attorney “includes any instrument empowering a specified person to act for and in the name of the person executing it.” Power of attorney is based on the principle, ‘Qui facit per alium facit per se’ i.e. he who acts through others, acts through himself. Through a power of attorney, a person appoints another person to act in his name and is liable for all such acts committed by that person. The Powers of Attorney Act is a short Act with 5 Sections that lays down the provisions regarding definition, execution, payment, the deposit of instruments and power of attorney of a married woman.

Appointment of power of attorney by an accused

Section 2 of the Powers of Attorney Act which lays down the provisions for the execution under power of attorney cannot override any special law which states that a particular act has to be done by a particular person. A magistrate can exempt any accused from attending the criminal proceedings and allow only his counsel to appear on his behalf. Section 303 of the CrPC lays down that any accused has a right to be presented by a pleader of his own choice. A pleader is defined under Section 2(q) of the same Act which says that a pleader can be a person authorised under law or can be any other person appointed with the permission of the court.

Whether power of attorney can come under the ambit of such a ‘pleader’ is a question of fact in each case. The case of T.C. Mathai & Anr vs. The District & Sessions Judge (1999) is a good authority on the question of whether an accused can appoint a power of attorney or not. In this case, an agent of a couple settled abroad wanted to appear before the court on their behalf. His request was declined by the Court and the Court held that “An agent with a power of attorney to appear and conduct judicial proceedings, but who has not been so authorized by the High Court, has no right of audience on behalf of the principal, either in the appellate or original side of the High Court.”

Also, there have been questions on whether a lawyer can appear in the court in his personal capacity as a power of attorney and even the courts have allowed a non-legal person who is a power of attorney to be appointed as a pleader for an accused. Some cases have even denied the right of the audience to such power of attorneys. Let us discuss all such cases.

Brenda Barbara Francis v. Adrian Mirinda (2016)

In this case, an advocate approached the Kerala High Court in the capacity of a pleader and not as an advocate. In normal circumstances, the rules governing excused attendance and appointment of a pleader are governed by the CrPC, and also the courts are bound by the precedence of the T.C. Mathai case but in these circumstances, the Court held that the Advocates Act,1961 would come into play. There is an embargo for an advocate under Section 32 of the Advocates Act and therefore the advocate was not allowed to present as a power of attorney.

Harishankar Rastogi v. Girdhari Sharma and Anr. (1978)

In this case, the appellant requested the court to appoint a person who was not an advocate to handle his case and said that he did not want the help of the amicus curiae appointed by the court. The Hon’ble Court after going through the provisions of the Advocates Act and the Code of Criminal Procedure held that it is upon the discretion of the court to appoint such a person. The Court can even appoint such a person and later halfway through the case remove him. Thus when the pleader is a non-advocate and does not have the legal power of attorney it is the discretion of the court that comes into play.

Conclusion

We have ensured that an accused has certain rights. By providing the right of exemption we have ensured that we live up to the spirit of ‘innocent until proven guilty.’The Courts have tried to strike a balance between the rights of an accused and a victim by adopting two kinds of approaches while dealing with an application for exemption. The rules regarding power of attorney have been laid down and it appears that when it comes to legal proceedings, a power of attorney does not have many rights. The above cases illustrate the same and have even laid down that a power of attorney can also not be an audience.

References

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Competition law regime in Hongkong

By

Shoronya Banerjee

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September 6, 2021

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This article has been written by Nikhil Shinde, pursuing the Certificate Course in Competition Law, Practice And Enforcement from LawSikho.

Table of Contents

Introduction

In a free-market economy, businesses compete with each other to offer the best range of products at the best price. A competitive market leads to better prices, products, and choices for everyone.
The competition also drives efficiency and innovation and directs businesses to meet consumer demands by providing the right products at the right price and quality.
Competition Law in Hongkong called The Competition Ordinance (Ordinance) was passed by the Legislative Council in June 2012 and was set to commence full operation on 14 December 2015.
In the ordinance, there are three rules which prohibit restriction on competition. they are: –

The first conduct rule and the second conduct rule apply to all sectors of the Hong Kong economy.
At present, the Merger Rule only applies to mergers involving carrier licence holders within the meaning of the Telecommunications Ordinance (Cap 106).

Substantive provisions

1. The first conduct : agreements and concerted practices

The first conduct rule of the competition ordinance prohibits an undertaking (this includes any entity, including natural persons, engaged in economic activity).
From making or giving effect to an agreement.
Engaging in a concerted practice.
As a member of an association of undertakings.
Making or giving effect to a decision of the association.
If the object or effect of the agreement, concerted practice, or decision is to prevent, restrict or distort competition in Hong Kong.
Price fixing, market sharing, output restriction, and bid-rigging are categorised as serious anticompetitive conduct.

2. The second conduct : abuses of market power

The second conduct rule of the competition ordinance prohibits an undertaking that has a substantial degree of market power in a market from abusing that power by engaging in conduct that has as its object to effect the prevention, restriction, or distortion of competition in Hong Kong such as
predatory pricing,
tying,
bundling,
refusal to deal,
margin squeeze practices, and
exclusive dealing.

3. The merger rule : mergers and acquisitions in the telecommunications sector

The merger rule of the competition ordinance prohibits mergers and acquisitions that have, or are likely to have, the effect of substantially lessening competition in Hong Kong.
The merger rule only applies to mergers involving telecommunications carrier licensees.

4. Sanctions

The competition law regime in Hong Kong adopts a judicial enforcement model, where sanctions and remedies can only be imposed by the Competition Tribunal.
The Tribunal may impose a wide range of sanctions on undertakings (including individuals) found to have contravened the first or second conduct rule or for their involvement in such contraventions.
These include pecuniary penalties of up to 10% of the total turnover obtained in Hong Kong for each year of infringement, up to a maximum of three years.
Disqualification orders can also be imposed on directors for a period of up to 5 years.

5. Extraterritorial effect

The competition ordinance has extraterritorial reach, such that it applies to activities conducted outside Hong Kong if they have the object or effect of preventing, restricting, or distorting competition in Hong Kong.

Enforcement regime

1. Public and private enforcement

Under the competition ordinance, the competition commission and the communications authority have the power to investigate.
Adjudicative powers are conferred on the courts, principally the Competition Tribunal.
The competition commission is the principal competition authority responsible for enforcing the competition ordinance through enforcement proceedings before the Competition Tribunal.
It comprises 5 to 16 members appointed by the Chief Executive in Council. The Commission has the power to investigate, issue block exemption orders and decisions confirming individual exemption/exclusion status, issue implementation guidelines and accept commitments, and issue infringement notices.
The communications authority is the competition authority responsible for enforcing the competition ordinance in the telecommunications and broadcasting sectors. It has the same powers as the commission under the ordinance.
The Competition Tribunal is a specialised court within the court of the first instance with the power to impose sanctions and order redress in cases brought before it by the commission or the communications authority.
The Tribunal also hears appeals against both competition authorities’ decisions and hears follow-on private damages actions concerning contraventions of the conduct rules.
In Hong Kong, private litigants can only bring “follow-on” actions for damages suffered as a result of the conduct in breach of the competition ordinance after the conduct has been ruled as a contravention of the competition rules by the Competition Tribunal.

2. Leniency

The commission has adopted a leniency regime where undertakings and individuals, in exchange for their cooperation in a cartel investigation, can earn immunity from prosecution by the commission, and thus avoid the risk of pecuniary penalties.
The first leniency applicant to report a cartel before and after the commission opens an initial assessment or investigation is referred to as a “Type 1” and “Type 2” applicant respectively.
Type 1 applicants will be protected from potential follow-on actions.
Type 2 applicants will be required to admit to a contravention of the first conduct Rule when the victims of the cartel bring follow-on actions.
So far, the communications authority has not adopted a leniency policy.

3. Investigation powers

The commission and the communications authority have wide-ranging investigation powers, including :
the power to request the production of information and documents,
the power to require the attendance of relevant persons at hearings before it and after obtaining a warrant from a judge of the Court of First Instance,
the power to enter and search premises.

Recent enforcement trends

1. Public and private enforcement

Cartel and bid-rigging

Since the entry into force of the competition ordinance, the enforcement actions brought by the Competition Commission before the Competition Tribunal have focused predominantly on cartel and bid-rigging activities.
The Commission has also increasingly sought to take enforcement actions and impose individual liability against representatives of companies, and facilitators of anti-competitive activities in recent proceedings.

Alternative enforcement tools

The Commission has increasingly used non-judicial enforcement tools to resolve investigations that do not involve hard-core cartel conduct.
The Commission accepted to close two investigations in return for commitments made by the companies to address the antitrust concerns raised by the Commission.
For example, online travel agents have committed to removing “most favoured nation” clauses in their agreements with hotels in Hong Kong, the terminal operators who formed the Hong Kong Seaport Alliance have committed to keeping prices and services at pre-alliance levels.
The Commission also makes increasing use of processes under the competition ordinance alleviating the need for heavy court procedures, such as infringement notices or agreed to statements of facts.

2. Private enforcement

In Hong Kong, private claims for damages suffered as a result of the breach of the competition rules are only allowed if the Competition Tribunal has determined that there has been a contravention of the conduct rules. Competition law breaches can also be used as a defence in civil litigation.
For instance, Meyer, a wholesaler of diesel oil that was sued for non-payment of supplies by its supplier, alleged that its supplier was involved in a price-fixing cartel for the supply of industrial diesel oil as a reason for refusing to pay.

Summary of enforcement actions by the Competition Commission

Year	Type	Nature	Details
2017	Block Exemption	Liner Shipping	A block exemption order for vessel sharing agreements (VSAs) between liner shipping companies to be excluded from the application of the first conduct rule was granted for a duration of five years.
2018	Decision	Banking Code	Application for an individual exemption from the application of the first conduct rule made by fourteen banking institutions in respect of the code of banking practice was denied.
2019	Decision	Pharmaceutical	Application for an individual exemption from the application of the first conduct rule made by the Hong Kong Association of the pharmaceutical industry in relation to a proposed pharmaceutical sales survey was denied.
2017	Court Enforcement	IT Sector Bid-Rigging	Defendants entered into bid-rigging agreements in a tender for the IT project. Four out of five defendants were found to have contravened and were liable to pecuniary penalties ranging from HK$187,740 to HK$2,730,000.
2017	Court Enforcement	Housing Decorators Cartel	Housing decorators allocated customers and coordinated prices for public housing projects. All ten defendants were found to have contravened, with fines ranging from HK$132,000 to HK$740,000.
2018	Court Enforcement	Housing Decorators Cartel	Three out of five defendants have settled their case by disposal of proceedings by consent, sanctions yet to be decided.
2019	Court Enforcement	Housing Decorators Cartel	Six respondent companies and three individuals admitted liability. The six respondent companies were sanctioned with fines ranging from HK$330,000 to HK$598,000, while the two individuals were fined HK$200,000 and HK$600,000. The remaining individual was disqualified as a director for 22 months.
2020	Commitment	Online Booking MFN Clauses	Online travel agents committed to removing “most favoured nation” clauses in their agreements with hotels in Hong Kong.
2020	Commitment	Port Terminal Operators Alliance	The port terminal operators forming the Hong Kong Seaport Alliance committed to keeping prices and services at pre-alliance levels.
2020	Court Enforcement	IT Sector Price-Fixing	Two defendants exchanged future price-sensitive information and coordinated their return bids. Both defendants settled the case by summary procedure. Remedies include a fine of around HK$37,000, the requirement to implement a competition compliance policy, and the requirement to provide compulsory competition training to employees.
2020	Court Enforcement	Textbook Cartel	The Commission alleges that three companies and one individual engaged in price-fixing, market sharing, or bid-rigging in relation to sales of textbooks to students attending primary and secondary schools in Hong Kong. The proceedings are ongoing.
2020	Court Enforcement	Medical Gas Supplies	The Commission alleges that the defendant company, a supplier of medical gases to hospitals, holds a substantial degree of market power and abuses such power by ceasing or limiting supplies to a downstream competitor on the related market for maintenance of medical gas pipeline systems. The proceedings are ongoing.
2021		Tourist Attractions & Transportation Tickets Cartel	The Commission issues infringement notices and alleges that six hotel groups and a tour counter operator for facilitating a cartel arrangement between two competing travel service providers. The case is settled through commitments by the parties admitting the contravention of the First Conduct Rule, and committing to cease the anti-competitive conduct and to appoint an independent competition law compliance advisor.

Conclusion

Despite being in the midst of a global pandemic, the latest policies and judgments laid down by the commission and the tribunal in the past two years show that Hong Kong’s Competition law regime is potent and progressive. It is hoped that continuing development and enforcement action will promote a competitive business landscape in Hong Kong, as well as deter anti-competitive behaviour more effectively and efficiently to protect consumers from predatory business practices.

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Five important devoted legislations required in India today

By

Diva Rai

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September 6, 2021

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This article is written by Daksh Ghai, from Symbiosis Law School, Noida. The article provides a brief overview of a number of issues in India that need to be addressed through devoted legislation.

Table of Contents

Legislation governing refugee treatment

The rights of migrants and refugees in India are still unresolved since India is not a signatory to the 1951 United Nations Convention Relating to the Status of Refugees and it is not obligated to observe the convention’s principles. In India, there is no explicit statute that stipulates the rights of refugees. The Indian Constitution ensures that all people, not only Indian nationals, have access to certain fundamental rights. As a result, people fleeing their home countries and seeking refuge in India are protected by those fundamental rights, regardless of the Indian government is a party to any international treaty. The Constitution guarantees all people, including asylum seekers and refugees, the following essential rights:

Right to equality before the law (Article 14)

Within the territory of India, the State shall not deny any person equality before the law or equal protection under the law. This article stipulates that there should be no discrimination among people or classes of people unless the legislature has made a reasonable classification between the various classes thus discriminated, and the foundation of the discrimination must be related to the objective of classification.

Protection of life and liberty (Article 21)

The law has a duty to protect one’s life or personal liberty and it cannot be taken away from them unless they follow the proper legal procedure. The Supreme Court ruled in the cases of Louis De Raedt vs Union of India (1991) and State of Arunachal Pradesh vs Khudiram Chakma (1993) that foreigners are also entitled to protection under Article 21 of the Constitution. This provision’s scope and reach have been greatly increased. While Article 21 was interpreted narrowly until 1978 as a bare safeguard against executive action not supported by law, it has since been well-established by a series of judgments dating back to Maneka Gandhi vs the Union of India (1978).

Right to a fair trial

The Supreme Court in the case of Zahira Habibullah Sheikh and Ors. v. State of Gujarat and Ors (2006) has recognised that everyone has a right to be dealt with fairly. As stated in Article 22(2), every person who is arrested will have a right to appear before a magistrate within 24 hours of being arrested.

Expansion of judicial powers

The courts have played a critical role in ensuring the safety of refugees. Court rulings have remedied legislative loopholes and, in many situations, provided refugees with humanitarian security. Furthermore, Indian courts have made it possible for refugees and intervening non-governmental organisations to file complaints with them. In addition, the courts have interpreted constitutional principles, existing legislation, and, in the absence of municipal law, international law requirements to provide protection to refugees and asylum seekers. In a series of decisions like the case of Luis de Readt vs Union of India (1991) and State of Arunachal Pradesh vs Khudiram Chakma (1993), the Supreme Court held that article 21 of the Constitution, which protects the life and liberty of Indian citizens, is extended to all, including aliens and the state is bound to protect the life and liberty of every human being. In the case of National Human Rights Commission vs State of Arunachal Pradesh (1996) the Supreme Court restrained the forcible expulsion of Chakma refugees from the state. Indian courts have ruled that refugees are entitled to the constitutional protection of life and liberty.

Need for legislation on refugees

Indian law and practise provide refugees with a distorted and insufficient level of protection. In India, the law fails to recognise refugees as a separate group of people, by treating them as any other immigrant. As a result, it fails to recognise the unique circumstances under which a refugee leaves his or her home country. The lack of a particular law on refugee protection, rights, and entitlements has resulted in a huge number of refugees being denied basic protection and there is a need for new devoted legislation for the protection of the refugees.

Law on traditional cultural expressions

India is one of the world’s oldest cultures and one of the largest stores of language, music, art forms, designs, markings, and other forms of cultural expression, including a diverse spectrum of traditional cultural expressions(TCE). Industries that understand the potential of such resources frequently misappropriate and misuse such knowledge and resources. India is the only country to have implemented the requisite designation under Article 15(4) of the Berne Convention, which requires States to vest the work of an unknown author or group of writers in a national authority, subject to a WIPO declaration. Even though this field has significant economic and cultural relevance for the country, it presently lacks the attention of the government and any sort of legal framework.

India’s current legal and institutional frameworks

Due to a variety of groups and indigenous people residing in various parts of the country, India’s heritage is broad and diverse. There have been discussions about enacting separate legislation to protect traditional cultural expressions but there exists no legislation on this topic. The existing legislative framework in India for governing traditional cultural expressions are:

Constitution of India

In Part III of the Constitution, Article 29 of the Constitution relates to the protection of minorities’ interests. Any section of citizens residing in the territory of India or any part thereof who have a separate language, script, or culture of their own, shall have the right to retain it, according to Article 29(1) of the Indian Constitution. The provision does not relate to any religion in particular, but rather safeguards the rights of the minorities who speak a different language, script, or culture than the majority, even if they practise different religions. Furthermore, Article 51A(f) imposes a fundamental obligation on every Indian citizen to cherish and maintain the rich history of our composite culture. While the Indian Constitution grants minorities the right to safeguard and conserve their traditions, they cannot be properly protected without suitable legislation in place to ensure that their cultures and traditions are protected.

Geographical Indication

With the passage of the Geographical Indications of Goods (Registration & Protection) Act, 1999, India adopted a one-of-a-kind law for the protection and preservation of geographical indications. Its goal was to align India’s intellectual property legislation with the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, which required all signatories to provide legal mechanisms to assure the protection of geographical indications (GIs) and to avoid the public from being misled about the origins of such GIs; this does not exempt these items from the issues that afflict the realm of Intellectual Property Rights. The GI Act, on the other hand, contains numerous flaws that render it ineffective for TCEs:

Registered proprietor

According to Section 2 of the Act, the registered owner of a GI must be an association of persons or manufacturers or any organisation. This necessitates collective action, which necessitates supply chain reform and control. All parties along the supply chain need to work together for a GI to be implemented successfully. As a result, any opportunistic behaviour on the part of a single manufacturer, in terms of lowering quality to gain profit margins, would have an influence on GI’s collective reputation.

Ownership of Geographical Indications

Another flaw with GI is that most handicrafts and handloom products are owned by the traders who sell them. Traders are included in the definition of producers in most Asian countries’ GI legislation, allowing them to be recognised as owners of such GI items. In most conventional businesses, merchants tend to have more capital and market influence, thus they are frequently credited with ownership. As a result, the regular weavers of the fabric are left in hardship and distress, and the traders exploit them for meagre wages.

Copyright

The legal right of the owner of intellectual property is known as copyright. Simply put, copyright refers to the ability to duplicate. This means that only the original producers of items, as well as anybody they provide permission to, have the sole right to replicate the work. Publications, music, paintings, sculpture, films, computer programmes, databases, ads, maps, and technical drawings are all covered by copyright. Copyrights, on the other hand, are still unable to create a framework for traditional cultural expressions due to:

Authorship and ownership

Individuality, rather than collectivism, is at the heart of copyright protection. However, in the case of traditional cultural expressions, attribution of a specific statement to a single author or a group of authors is impossible. This is because traditional cultural expressions are made communally, which is incompatible with the characteristics required for a work to be protected by Indian copyright law.

Fixation

Traditional cultural expressions might be intangible, immaterial, or even in hybrid forms, according to WIPO’s definition. The Indian Copyright Act makes “fixation” a requirement for copyright protection of oral works. It is impossible to have traditional cultural expressions in any fixed form due to the wide range and dynamic nature of traditional cultural expressions, which include physical, intangible, and mixed forms of expression.

Duration

Given the nature of traditional cultural expressions, granting a restricted time would be insufficient for their protection, as mentioned above. The current copyright policy offers protection during the author’s lifetime as well as sixty years from the year of the author’s death. By inference, once the sixty-year period has expired, the work will fall into the category of “public domain,” making it more subject to exploitation as it is passed down from generation to generation. As a result, once the protection period expires, such traditional cultural expressions become easy prey for enterprising individuals who can use them without restriction or limitation.

Other developing countries’ initiatives to conserve traditional cultural expressions

Kenya

Kenya passed the ‘Protection of Traditional Knowledge and Cultural Expressions Act’ in 2016 as a result of Article 11 of their Constitution, which required them to pass laws to promote the country’s culture and cultural heritage. The Act establishes the foundational legal framework for the protection and promotion of traditional knowledge and cultural expressions. Community, cultural manifestations (both tangible and intangible expressions), cultural heritage (both tangible and intangible heritage), customary rules and practises, and other categories have been extensively defined in the legislation; disrespectful treatment, exploitation, and other terms and phrases that are essential to ensure that their cultural legacy, expressions, traditional knowledge, and genetic resources are properly protected. The Act establishes a tangible structure to ensure that rights are adequately protected and criminalises the misuse and exploitation of traditional knowledge and traditional cultural expressions.

Panama

In the year 2000, Panama created a one-of-a-kind law regarding TCEs. The ‘Special System for the Collective Intellectual Property Rights of Indigenous Peoples‘ was established to safeguard indigenous peoples’ collective intellectual property rights, traditional knowledge, and traditional artistic manifestations through a unique system for registering and promoting their rights, as well as ensuring social fairness.

Electronic data protection legislation

Maintaining databases is not as complex as ensuring their integrity, thus the most important thing is to come up with a great data protection technique. With the advancement of technical development, a shift in the standard of crimes occurred. In today’s world, most crimes are committed by professionals using the most convenient media available, namely computers and other devices. Criminals can gain access to protected information with just one click. The desire for knowledge is a driving force behind the rise of these crimes.

Data protection law in India

Data protection relates to concerns with the collection, custody, accuracy, and use of data submitted by internet users when using the internet. When users engage in e-commerce on any website, they expect their privacy rights to be protected. It is all part of the consumer’s confidence-building function that successful e-commerce enterprises must play. If the industry fails to ensure that the privacy of the data it collects is protected, it will be the responsibility of the government to implement legislation. The law relating to privacy is covered by Article 21 of our Constitution, and the Supreme Court of India declared in K.S. Puttaswamy vs. The Union of India (2018) held that the right to privacy is a fundamental right, however, it has been found that it is insufficient to provide proper data protection. Under the IT Act of 2000, our lawmakers attempted to address privacy issues relating to computer systems.

How is electronic personal data regulated currently?

Citizens’ personal data is currently governed by the Information Technology (IT) Rules, 2011, which are enforced under the IT Act, 2000. In the event of any negligence in upholding security standards while dealing with the data, the rules hold the companies using the data accountable for paying the individual. According to the Expert Committee’s assessment, while the IT rules were a new attempt at data security at the time they were enacted, the speed with which the digital economy has developed has shown the acts inadequacies like:

The regulations’ definition of sensitive personal data is restrictive.
In addition, the IT Act only applies to companies, not to the government.
Some restrictions can be overcome by a contract.

Data protection laws and regulations in other countries

United Kingdom

In 1984, the UK Parliament enacted the Data Protection Act (DPA), which was later repealed by the Data Protection Act, 1998. This Act was enacted to provide protection and privacy for individuals’ personal data in the United Kingdom. The Act applies to any information that can be used to identify a live person. This includes information such as names, birthdays, anniversaries, addresses, contact information, fax numbers, and e-mail addresses, among other things. It only applies to data stored or intended to be stored on computers or other equipment that operates automatically in response to instructions or is stored in a relevant file system. Persons and organisations that hold personal data are required by the Act to register with the Information Commissioner, who has been selected as the public official in charge of overseeing the Act. The Act imposed constraints on data collection. Personal data can only be gathered for one or more specific and lawful reasons, and it must not be handled in any way that is incompatible with those goals.

United States of America

Even though both the United States and the European Union are focused on improving citizen privacy protection, the United States takes a different approach to privacy than the European Union. The United States took a sectoral approach, relying on a combination of legislation, regulation, and self-regulation. In the United States, data is classified into numerous categories based on their utility and significance. Following that, different levels of protection are assigned to different types of data. Several acts were also passed in order to stabilise the country’s data protection regulations.

In 1974, Congress passed the Privacy Act which established guidelines for when it is reasonable, ethical, and justifiable for government agencies to compare data across databases. Another Electronic Communications Privacy Act (1986) was passed to limit electronic communications interception and ban access to stored data without the user’s or communication service’s consent. Furthermore, in October 1998, the US Congress passed the Children’s Online Privacy Protection Act, which required website operators to obtain parental consent before collecting personal information from children, and the Consumer Internet Privacy Protection Act, which required an internet service provider to obtain the subscriber’s permission before disclosing his personal information to third parties.

Devoted legislation for euthanasia

Euthanasia is defined as a physician’s act or omission that results in the death of a terminally ill patient, usually through the prescription of medicine, the administration of a deadly injection, or extubation. Involuntary euthanasia refers to the killing of a person who has not expressly asked for assistance in dying. This is usually given to patients who are in a permanent vegetative state (PVS) or a coma with little or no possibility of recovering consciousness. When all other life-saving procedures fail to provide a better life for a terminally ill patient or one who is in a vegetative state, euthanasia is considered the sole realistic alternative.

Active euthanasia

It is a situation in which a doctor has the authority to end a person’s life. This procedure is also known as ‘Positive Euthanasia’ or ‘Aggressive Euthanasia.’ The doctor may intervene directly and suggest a painless manner of ending a person’s life. Consent of the individual whose sufferings are continuous and everlasting remains the most important factor. This is a faster way to die by taking a lethal dose of a drug or injecting a lethal drug.

Passive euthanasia

It is the deliberate deprivation of necessary care, such as food or water, in order to cause an individual’s death. It is a deliberate stoppage that also entails the removal of artificial life support systems. It is a more pleasant procedure than the active method and is called a slow killer. It is only used when the person is no longer intellectually or physically alert. Medical tests and measures such as the Glasgow Coma Scales (GCS) are used to determine whether or not a person is mentally vegetative. This is a legal privilege granted to those on medical life support in several nations and states.

The judiciary’s role

The disagreement in the case of M.S. Dubal v. State of Maharashtra (1986) was about the negative and positive aspects of the rights granted to the people. The Bombay High Court concluded that Article 21 of the Constitution of India included the right not to live. The court held that those who attempt suicide due to mental problems require psychiatric care, not imprisonment in jail cells, where their condition is sure to worsen, leading to severe mental derangement. The judgement was furthered in the case of P. Rathinam v. Union of India (1994), which found in favour of the motion and allowed assisted suicide, added to the precedent.
The judgement was later contradicted and overruled in the case of Gian Kaur v. State of Punjab (1996), which found that Article 21 cannot encompass the right to die or be killed. The five-judge bench in Gian Kaur v. State of Punjab reinstated Section 309 of the Indian Penal Code, 1860, and the judgement stated that, under the ambit of Article 21 of the Indian Constitution, the part of right to live only includes the aspect of life and thereof, and nowhere does it include the aspect of the right to die. Passive euthanasia and assisted suicide were declared illegal as a result of this particular case.
The Supreme Court noted the importance of the idea of euthanasia in the case of Aruna Shaunbaug v. Union of India (2011), that the right to life can be understood as the right to a life of dignity and worth. This long-awaited decision, which was a difficult battle in and of itself, aided in raising public awareness about the issue, and the debate about the legality of passive euthanasia entered our culture, only for terminally ill patients and through the termination of medical life support.

Legalising euthanasia

An end to suffering

Allowing patients to end their suffering is essential in upholding the right to personal and bodily autonomy. Euthanasia provides a way to relieve the intolerably extreme pain and suffering of an individual. It relieves terminally ill people from a lingering death.

A dignified death

The essence of human life is to live a dignified life, and Article 21 of the Indian Constitution expressly states for living with dignity and It is also against the person’s will to be forced to live in an indecent manner.

Euthanasia and assisted suicide laws around the world

In April 2002, the Netherlands became the first country to legalise euthanasia and assisted suicide. The country had set tight standards and restrictions, such that, the patient must be in severe distress, their sickness must be terminal, and the demand must be made by the patient in full consciousness. In the same year, Belgium passed legislation legalising euthanasia. While the law does not specifically make reference to assisted suicide, doctors can assist patients in ending their life when they openly declare a desire to die due to intractable and terrible pain.

Legalizing and regulating prostitution

Prostitution is one of the oldest professions and has been in existence for ages, and its criminalization has not resulted in its eradication by any means. The laws governing prostitution in our country are proving to be detrimental to the interests of women rather than relieving them from the grip of traffickers, middlemen, local police, brothel owners. The only way to ensure that prostitutes have a better life is for the profession to be legalised and regulated. Though there is no denying that, given Indian society’s conservative mindset and moral benchmarks, such a progressive step is not easy for the legislature to take. However, in order to prevent unfavourable outcomes, the legislature must enact such legislation while maintaining that prostitution is not deeply immoral and cannot be prohibited. More significantly, legalising prostitution would protect sex workers’ rights and provide them with the opportunity to live the normal lives they deserve.

The present legal status of prostitution in India

The Immoral Traffic (Prevention) Act, a 1956 amendment to the basic statute known as the Immoral Traffic (Suppression) Act, governs prostitution in India. Prostitution is not illegal in and of itself; only organised forms of prostitution are prohibited. The Act does not punish a woman if she uses aspects of her body deliberately and individually. However, the Act forbids/criminalizes-

Customer solicitation
Prostitution within easy reach of a public area
Publication of call girls’ phone numbers
Organized prostitution, such as a brothel, pimps, prostitution rings, and so on
A sex worker who is under the age of 18
Women’s prostitution and trafficking

Need for legalisation and regulation of prostitution

HIV/AIDS has been a major source of worry among prostitutes. In 2017, it was estimated that 1.6% of Indian, female sex workers were living with HIV. They pick up the virus from affected consumers and are likely to spread it to other healthy customers. It is easy to foresee the destruction that unregulated prostitution can wreak. Awareness programmes educating prostitutes on the importance of protected sex and frequent health examinations can be conducted if the industry is legalised and controlled.
The trafficking of girls, where they are trafficked without their consent and forced to service the clients, would be curtailed by regulated prostitution. They are forced to stay in deplorable living conditions, and they are denied even basic and necessary rights such as the right to education, the right to freedom, the ability to establish associations, and the right to be free from exploitation. If a dedicated law on the regulation of prostitution is passed, access to these rights will be guaranteed to them.
Prostitutes are not covered by current labour laws. The government can, however, make rehabilitation facilities available. If the profession achieves legal recognition, labour laws may be extended to prostitutes employed by brothels.
Prostitutes rely heavily on the police to keep their businesses running smoothly. Police extort money from brothels and prostitutes in exchange for their freedom to work. Any prostitute who refuses the bribe is caught ‘red-handed’ and charged with public obscenity and other IPC offenses. These ladies are also subjected to financial exploitation as a result of the police’s actions. Such exploitation will come to a stop if prostitution is authorised and regulated.

Laws and regulations in other countries

In Austria, prostitution is legal. Prostitutes must register, submit to regular health tests, be at least 19 years old, and pay taxes.
Since 2003, prostitution has been regulated and lawful in New Zealand. There are even regulated brothels that operate under public health and employment rules, meaning that their employees are entitled to the same social benefits as employees in other sectors.

Conclusion

The laws described above are not exhaustive, they are far from it, and India’s population and diversity necessitate the introduction of many new and devoted laws, as well as the repeal of old ones and for any legislation to be effective, it must have a viable enforcement mechanism. In India, considering the socio-economic background of indigenous communities, the Government must ensure that the legislation is implemented as it is laid down. Hence, there should be a monitoring system to closely observe the effectiveness and implementation of the proposed sui generis legislation.

References

https://lawcommissionofindia.nic.in/reports/report241.pdf

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‘Due diligence’ : types and significance of a legal team for entrepreneurs

By

Diva Rai

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September 6, 2021

0

This article is written by Priyanshi Soni, a student of Symbiosis Law School, Noida. This article seeks to highlight the meaning, importance, and types of due diligence including its drawbacks in the business world. It also discusses the need for a legal team for entrepreneurs in due diligence.

Table of Contents

Introduction

Today’s business and corporate world is becoming more and more complex with the coming of new rules and investment strategies and many companies, including the big ones, struggle with diligently making decisions and even compromise on the integrity aspect with an intent to evade scrutiny and gain money through illegal means. Therefore, it is increasingly important for investors and buyers to insist on thorough due diligence before making the final move. It is very crucial for them to investigate the financial and overall health of the enterprise before making agreements so as to avoid future losses or complications. And, due diligence facilitates this aim. It helps in such scrutiny beforehand so that they come to know if such an investment will be worthwhile or not.

Due diligence

Meaning

Due diligence means an investigation or inspection or a risk assessment of an upcoming business transaction done i.e., before purchasing another property or company. This is kind of a background check done to ensure that all the facts are in place and the parties to the business transaction have the required information and in the business world. It specifically is a “strict legal investigation” done to ensure that investment will be beneficial and all the required facts are known to the parties. It empowers the maxim “caveat emptor” i.e. let the buyer beware while purchasing.

Due diligence is the process by which confidential, legal, or financial information, as well as other relevant information, is exchanged, examined, and appraised by the interested parties in a business transaction.

With due diligence, we can identify specific dangers and avoid costly mistakes. Depending on the circumstances, it could be a lengthy process that takes weeks or even months to accomplish.

There are certain areas of focus during ‘due diligence’ in the business ecosphere such as-

The effect of synergy: Synergy between the two companies makes decision-making easier.
Environment: The target company’s macroenvironment and its impact.
Existing and potential liabilities: If there are any pending lawsuits or regulatory difficulties.
Monetary aspect: looking at the financial data available to understand the whole thing better.

Technology: assessing the profitability of technology available in the targeted company.

Objectives of due diligence

The main objective remains the finding of problems and issues which might crop up in the business to give unexpected liabilities.

Collect material information from the target company;
To take a correct and judicious decision about an investment;
Conduct a swot analysis to identify strengths and weaknesses and further improve the bargaining position on the basis of the swot analysis;
To identify areas where representation and warranties are required;
To attain the desired comfort level in a transaction and bridge the gap between existing and the expected.

When is due diligence required

Mergers and acquisitions: In this, due diligence is done from the viewpoint of both seller and buyer. It has to be taken into concentration on what both of them focus on, i.e., their prime importance. Like, the seller focuses on the financial ability of the buyer, the experience of the buyer, etc and the buyer focuses on budget, litigation, patents, etc.
Partnership: For business alliances and connections, due diligence holds importance.
In joint enterprise and collaborations also.

Due diligence is conducted by the enterprises analyzing the risks in two ways or both together:

Hard due diligence – This deals with legalities, mathematics, and strategies mainly. Analyzing the assets, benefits, costs come under this.
Soft due diligence – Basically, this deals with the overall internal functioning and health of the organization including its human elements.

Types

There are 3 types of due diligence applicable to different purposes and enterprises but the object of due diligence remains the same.

Business due diligence – This type helps the companies and enterprises in assessing the business risks and investment possibilities, etc., which even assists the buyers in understanding the potential risks and gives clarity in planning for the integration.
Legal due diligence – Legal difficulties are assessed in depth. Legal risks associated with mergers and acquisitions are taken into consideration so as to avoid any future legal complications. This sort of due diligence covers both inter-corporate and intra-corporate transactions. This due diligence also results in several regulatory checklists, in addition to the pre-existing documents.
Financial due diligence – This evaluates the accounts, financial conditions, budgets, and decisions related to the same. Also, tax compliance and audits are also covered under this.

What do investors look for

What investors look for in the targeted company is its key areas of investment such as current and future financial details, budget, what are the growth prospects of the enterprise in the coming years, will it be beneficial to investors, the actual market size of the company, it’s potential to compete in the market, team structure with its level of competence, etc.

All interactions with investors, agreements with customers and suppliers, credit and loan/debt liabilities, partnership and joint venture agreements, and lawsuits, if applicable, must be supplemented.

It is of utmost importance that all the documents and data are ready and compiled if at all required during due diligence. If there is an existing claim or problem, be it legal or business-related, it can cause hurdles in dealings. And thus, even when the target company has some hidden facts and unresolved issues which it has not disclosed, then it can cause issues in the future. It is better if all the documents are presented and nothing is hidden. It is observed that investors tend to favor companies that are easy to communicate with. Keeping lines of communication open and being responsive to clarification requests with factual explanations will provide major benefits to the potential company.

It is also advisable that the company should have a detailed presentation of various departments and information related to finance etc. ready with it to show the investors. The information, as we discussed, should not be having any hidden or false information.

Furthermore, the company should maintain open channels of communication with its investors and act quickly on any issues that arise.

Significance of a legal team

Now we can clearly see that there is ample work required to be done to achieve this. Due diligence requires the rigorous collection of data, then its analysis, and a lot more. It is very important to have a proper legal team for maintaining due diligence, securities, and drafting before the investors which not only gives correct and crucial legal advice but also makes an impression before them regarding the systematic and punctual working of the company. Investors may also insist on document revisions, adjusting the bidding price, fine-tuning the shareholding structure, or changing investor rights and duties. This will be done quickly and without complications, if a systematic legal team exists.

After the basic information sharing and assimilation of facts, the investors can rectify the problems. But there will be few issues that will be beyond their control and a piece of legal advice will be required to rectify them. When all the issues are settled, only then the process of due diligence is said to be completed. Though there is no one way for this, firms who grasp the importance of this process and its components will undoubtedly have an advantage when it comes to recruiting investments.

There are few provisions under the Securities and Exchange Board of India (Regulations) 1996 (SEBI), Securities Contracts (Regulation) Act, 1956 (SCRA), Income-tax Act 1961, etc., which show that a competent legal team is very important from the start of signing till the end, wrapping it up. Section 24 of the SCRA of 1956, Section 27 of the SEBI 1992, Section 278(B) of the Income-tax Act of 1961 – all these provisions list the offenses which will make companies stand guilty.

The way to manage this in a judicious manner is that there should be an existence of a strong legal team and the entrepreneurs should keep on communicating with their legal team from the very start as such interactions will ensure that the data is clean and updated and no loophole remains.

Disadvantages of due diligence

The major disadvantages of the process of due diligence are that it can be lengthy, difficult, and tiring. While conducting the investigation, the buyer will, more so depending upon the transaction, ask questions and try to gather facts from different people and departments, such as lawyers, accountants, etc., and this will consume a lot of time and can also lead to incomplete records. This will become very tough for the buyer to understand the facts in less time.

Further, the seller will also be affected negatively as he will now have to focus more on solving the queries and assessing the same. This will consume his time and divert him from running the business.

Conclusion

For the company investors to manage and conduct due diligence, it is very crucial to maintain all the records with discipline and honesty. If they work hard towards this, then it would be a cakewalk in the future. We already saw how due diligence works and benefits if conducted properly. A legal team further adds more to the whole process. It is always suggested to divide the work among partners to keep a timely check on records. This will give positive outcomes and ensure that they have daily data at their fingertips.

To summarise, the following are the top ten key tasks that every entrepreneur should undertake rigorously, regardless of the stage of the company –

Make an index of all signed documents and official records.
Keep all records in one secure location.
Use colour coding and time stamping to label your files.
Hold regular and frequent board meetings.
Check each item on the pre-planned agenda one by one and ensure that the necessary paperwork is in place.
Entrepreneurs should be aware of their finances and keep track of them.
As discussed above, interaction with your legal advisor is equally important.
Even if you think that your data is not worth sharing, they also do not hide or fudge it from the investors. Also, be honest with your records, if not perfect, as you may be an early entrepreneur with less experience, but honesty plays a major role.

Due diligence is a valuable tool for risk management.

References

https://www.lawyersclubindia.com/articles/details.asp?mod_id=10988

https://www.entrepreneur.com/amphtml/270519

https://corporatefinanceinstitute.com/resources/knowledge/deals/due-diligence-overview/

https://corpbiz.io/due-diligence

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All you need to know about Dog Adoption and Rehoming Agreement

By

Oishika Banerji

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September 6, 2021

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This article has been written by Gaurav Chawla pursuing the Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from LawSikho.

Table of Contents

Introduction

“Adopting one dog will not change the world, but surely for that one dog, the world will change forever.” Hundreds of pets including dogs are abandoned and rescued in India every day. There are many wonderful people across the nation who work extra hours and put in efforts beyond their capacity; however, there is always an insufficiency of funds and communication across the animal activist circuit. Dog adoption is a process of acquiring a dog from a shelter or rescue who is abandoned by their previous owners as opposed to purchasing a dog from a pet store, breeder or other people. The cost incurred for an adopted dog is minimal as the dog might already have received its vaccinations and be neutered or spayed. Rehoming a dog means finding a new home for a dog that needs a new home. Rehoming is not abandonment; as a matter of fact, its kind, mature, and responsible. The purpose of this article is to create awareness primarily about dog adoption, an option that helps the homeless or abandoned dog get home. Secondly, to provide insight on dog adoption and rehoming agreement and lastly, to analyse the benefits and shortcomings of the open adoption agreement.

The objective of the article

The objective of this article is firstly to approach the concept with a positive viewpoint and to analyse the significance of dog adoption and rehoming agreement. Further to determine the clauses of dog adoption and rehoming agreement and its applicability in India. This article mainly emphasizes the legal perspective of dog adoption and rehoming agreements. The author’s view in this article is mainly to promote the concept of adoption and identify and analyse the dog adoption and rehoming agreement.

What is a Dog Adoption and Rehoming Agreement?

Dog Adoption and Rehoming Agreement is an agreement between the owner/rehoming family who has the lawful owner of the dog and the adopter/adopting family who wants the ownership of the dog. This agreement transfers the ownership of the dog from one party to another. Everyone who wants to adopt a dog should enter into a Dog Adoption and Rehoming Agreement, this not only makes you the lawful owner but also helps in avoiding any future disputes.

This agreement is formed under the cornerstone of good faith and therefore the parties to the agreement are expected to honour the contents of the agreement.

Important clauses and other features of Dog Adoption and Rehoming Agreement

For the purpose of making a watertight agreement, there are various clauses that are added to the agreement. Some of the important clauses that shall be present are the following: –

Introduction of parties

The introduction of both the parties should be done by specifying necessary details. It should include proper names and addresses of the parties. Sample-

This agreement documents the transfer of ownership of the dog named _______________________, from the Rehoming Family (_____________________________) to the Adopting Family (______________________________), located at this address (_____________________________ __________________________________________________).

Term clause

This clause includes the time period for which the dog shall stay with the adopter or adopting family. The term for these types of agreements is for total life of the dog or until the dog is returned to the owner or rehoming family. Sample-

The agreement shall remain in effect for the life of the dog, or until the return of the dog to the Rehoming Family.

Details of dog

This clause includes all the details provided by the owner or rehoming family. The details include Dog’s name, age, colour, sex, breed, whether the dog is microchipped, spayed or neutered, any health condition, total vaccinations are done and any other information.

Sample-

Name- Bruno Breed- Labrador

Age- 2 years Colour- Light Brown

Sex- Male Microchipped- Yes

Spayed or Neutered- Yes Health issues- No

Representation and Warranties

A representation is basically an assertion of existing fact, true on the date that it is made. It is generally given to induce the other party to enter into the contract. A warranty on the other hand, is similar to representation. It refers to the present or future i.e., a present or future promise of a particular fact. Various Representations and warranties are given by the parties which usually increases the liabilities of the parties. Sample-

Rehoming Family

I warrant that I am the lawful owner of the said dog, able to convey the ownership of said dog to another home.

Adopting Family

I agree that I will care for the said dog in a safe and humane manner, and as a family dog and companion. The dog will have adequate food, water, shelter, and medical care for the duration of his/her life.
I understand that the Rehoming Family makes no guarantees or warranties regarding the health, behaviour or temperament of this dog. The Rehoming Family shall not be held liable for the behaviour of the said dog or any damages it may cause.

Term’s clause

This clause defines the outline of the relationship between parties. It includes the duties, functions, obligations etc of parties. Some of them are-

Any damages or injuries caused by the actions of the said dog shall be borne by the adopting family.
The Rehoming Family shall not be held liable for the behaviour of this dog or any damages it may cause.
The adopting family agrees not to sell, dispose, or give away the said dog for any reason.
The adopting family hereby agrees to take care of said dog with utmost care and diligence by providing the dog with adequate shelter, veterinary care.
In the event there is a violation of the agreement, the rehoming family or the shelter shall have the right to sue pertaining to violations found in the local or state laws. In addition, the rehoming family or the shelter shall have the right to sue for damages from the breach of this agreement.

Adoption fee

It is the fees paid by the adopter or adopting family to adopt the animal. This fee is used by shelters or organisations for pet care, veterinary care, spaying or neutering cost, vaccinations cost, microchip cost and other expenses. Sample-

The adopter hereby agrees that an adoption fee of 50$ shall be paid to the owner at the time of adoption. The said adoption fee shall not be refundable.

Microchipping clause

This clause is added to make sure if the dog is microchipped or not and for transfer of ownership of the microchip to the new owner or adopter. Sample-

If the dog is microchipped, ______________________ (indicate Rehomer or Adopter) will contact the microchip registry service to transfer ownership.

Spaying/ Neutering

“Spaying” and “neutering” are surgical procedures for removal of an animal’s reproductive organ, either all of it or a considerably large part. It is used to prevent pets from reproducing. In a female animal, “spaying” consists of removing the ovaries or uterus and ovaries. The technical term is ovariectomy or ovariohysterectomy. For a male animal, “neutering” involves the removal of the testicles, and this is known as castration.

Veterinary care

Veterinary care is the medical assistance provided to animals to prevent, control, diagnose, and treat any disease, disorder or injury. This clause is added to have a detailed health report of the dog.

Pet custody disputes

A survey was conducted in 2011 in the UK which revealed that 20 percent of separating couples had sought legal advice and fought for custody of their pet. In law pets are considered as personal property and the pet custody disputes arising from a divorce fall within the financial proceedings in the family courts. The survey conducted in 2005 found that 87 percent of dog owners surveyed viewed their dog as a family member and 15 percent of them would pay over £10,000 to get custody of their dog on separation from their partner.

The courts or legislature of the USA and Israel have already tackled a number of cases related to pet custody and Switzerland has amended its Civil Code to specifically govern this issue. The three legal systems are distinguishable but the issues raised in relation to pet custody are similar. There are two distinct tests for resolving pet custody disputes in family courts – first, the application of pure property law principles arising from the status of pets as property and secondly, the application of a ‘best interests of the animal’ test. Under a property law test, the pet is normally given to the person who has the better claim to title of the property. The parties need to provide evidence of that claim to title. The second test, the ‘best interests of the animal’ test, is similar to ‘best interests of the child’ test a standard used in many countries to determine the residency of children in disputes between parents.

In Arrington v Arrington in 1981, a Texas trial court emphasised that pets are property and refused to apply a ‘best interest of the pet’ test. The judge suggested that pets benefit from their property status However, despite the court’s emphasis on the property status of the animal, it awarded custody to the wife and visitation rights to the husband. This was actually at odds with the judge’s view that pets have property status since visitation rights are not awarded in relation to personal property. The judge struggled with using a pure property law test to resolve the dispute and awarded visitation rights to the husband in recognition of the strong emotional bond that existed between him and the pet.

Juelfs v Gough in 2002 is an example of the best interests of the animal test. The Alaska Supreme Court upheld the award of custody of the dog to the husband. The dog was at risk of physical injury at the wife’s residence because of the other dogs living with her which were deemed a threat to the dog. Therefore, the interest of the dog in avoiding injury prevailed over the use of property law principles.

The Israeli case of Ploni v Plonit, 2004 concerned an unmarried couple who, during their relationship, rescued a street cat and an ailing dog. The woman left the couple’s home taking the cat and dog with her after they split up. The man petitioned the court for joint custody of pets or the two animals to be separated and each person to get one of the animals. The court adopted the ‘good of the animal’ test and heard a piece of evidence from an expert on animal behaviour to reach the conclusion that both of the animals remain with the woman. Are there any laws related to dog adoption or rehoming? If yes then please discuss them categorically. Add case laws too

Guidelines for adopting a dog

There are several questions you need to ask yourself and various guidelines to follow before adopting a dog. Some of them are-

Are you ready to adopt a dog?

While adopting a dog, you are making a lifetime commitment of care to the dog for his/her lifetime. So, you need to be ready before adopting a dog as dog care requires a considerable amount of time.

Choosing the right dog

Before choosing a dog, you should explore and review your personality and lifestyle along with challenges such as the amount of time you have and space restriction.

Make sure your family’s wallet can handle it

After adopting a dog, you need to spend money on regular and emergency vet care, high-quality food, bedding, a collar, treats, grooming, toys and the list goes on.

Visit the nearest shelter home

You need to visit the shelter home to find a dog that meets your requirements and try to be friendly or build a bond with the dog before finally adopting him.

Secure the health records

You need to ask the shelter to provide the medical records of the dog you selected. Also, ensure that the dog is properly vaccinated.

Follow proper adoption procedure

Most shelters follow a particular adoption procedure which involves an adoption form, adoption agreement and submission of various other certificates. These all will include details of the pet, various questions of pet care, as well as about the worst-case scenario – if you have to give up the dog in the future for any reason. You may also need to provide your valid identity documents and address proof.

Take your dog home

After required checks and counselling, the shelter will hand over the dog to you. It might take the dog some time to get familiar with the home environment.

Conclusion

The purpose of this article is to create awareness on dog adoption and provide insights on dog adoption and rehoming agreement. This article provides a summary of the clauses that are commonly found in dog adoption and rehoming agreement. Currently, there are no effective laws in India to regulate the adoption of dogs in India. The government of India should appoint a committee and analyse the concept, merits, demerits and come up with some laws related to the adoption of animals in India.

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Parameters followed by the Supreme Court in transfer petitions

By

Rachit Garg

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September 6, 2021

0

supreme-court-of-india-02 — Image source - https://bit.ly/2VnRC41

This article is written by Priyanshi Soni, from Symbiosis Law School, Noida. This article seeks to explain the parameters which are followed by the Supreme Court in transfer petitions and landmark cases related to the same.

Table of Contents

Introduction

In the pandemic times, a number of transfer petitions have been filed in the Supreme Court. A transfer petition is a petition filed in the court seeking transfer of the case from state agencies to a central body or from one High Court to another or from High Court to Supreme Court. This is done usually to ensure a fair trial, ensure justice, avoid delay or inconvenience, etc.

Transfer petition under CPC

In civil cases, the provision of power of the Supreme Court to transfer the petitions is dealt with under Section 25 of the Code of Civil Procedure, 1908. It states that the Supreme Court can transfer the petition from a High Court or other Civil Court in one State to a High Court or other civil court in any other State. This can be done on an application by a party and after the SC being heard by such parties, can transfer the petition to make it convenient in achieving justice for the party if the court feels so.

If the court dismisses such a petition then it can order the applicant to pay a maximum sum of two thousand rupees to the opposer of application.

Divorce transfer petition in Supreme Court

In a divorce petition filed in the Supreme Court, the husband files a divorce petition in the state where he resides and the wife usually moves to her home/parent state. So in such cases, the wife moves for the transfer of such a petition on the grounds that she cannot afford to travel to that place where the petition is normally filed or she cannot leave her child behind, or that she faces threats when she goes to defend the proceedings. But the court does not always take a sympathetic view towards her as the court cannot always make the husband suffer. The husband can take a defence that if the wife claims to have a minor child then grandparents can be asked to look after the child and so merely based on having a minor the transfer petition cannot be granted to her (Anandita Das v. Sirjit Dey (2006)).

In Priti Sharma v. Manjeet Sharm (2005), it was held that a wife cannot merely give a reason for the threat to her for the transfer petition, she has to give proper proof for the same. In the case of a wife seeking transfer because she was unemployed and unable to commute, the Court stated unequivocally that “merely because the petitioner is a lady does not mean she cannot travel,” and the transfer petition was dismissed.

Statutory & constitutional provisions dealing with criminal transfer petition

Section 406 in the Code Of Criminal Procedure, 1973 deals with the power given to the Supreme Court to transfer the cases/petitions and appeals pending in one High Court to another High Court or from a criminal court subordinate to one High Court to another Criminal Court of equal or superior jurisdiction subordinate to another High Court so that the justice is being achieved for the party.

Subsection 2 mentions that there has to be an application made by the attorney or the party and after that only the SC will act upon the same. And, similar to what CPC says, If the court dismisses such a petition then it can order the applicant to pay a maximum sum of two thousand rupees to the opposer of the application.

Irrespective of whatever is mentioned under CPC and CrPC, there are a few provisions mentioned in the Constitution of India which provide for direct transfer of a case from one court to another so as to do complete justice for the citizen and uphold the citizen’s right to justice as given under Article 21 of the Indian Constitution. These provisions are –

Article 32 – This is the Right to Constitutional Remedy whereby a person can move to the Supreme Court to enforce his/her rights. The SC issues writs to enforce any of the rights.
Article 136 – This deals with the special leave to appeal by the Supreme Court in which the SC can allow special leave to appeal any judgment or decree passed by any of the court or tribunal.
Article 142 – This Article allows the SC to do complete justice in any matter the Supreme Court derives overarching powers to perform the functions of Executive and legislative to bring about complete justice.
Article 139A – This Article provides for the transfer of case by SC and transfer of the case from one High Court to another on the ground that it deals with the general question of law.

Test of transfer propounded by the Supreme Court

In Maneka Sanjay Gandhi v. Rani Jethmalani (1979), Justice Iyer considered the “first imperative” and “central criterion” to be there during a fair trial as a measure to decide for a motion of transfer. He also observed that to exercise the power of transfer, the party cannot simply do so for its convenience or easy availability of legal service. There has to be a substantial reason from the view of public justice. Also, it has been noticed that many frivolous petitions have been filed in this regard. “The safety of the person of an accused or complainant is an essential condition for participation in a trial and where that is put in peril by commotion, tumult or threat on account of pathological conditions prevalent in a particular venue, the request for a transfer may not be dismissed summarily.”

Similarly, in Nahar Singh Yadav vs. Union of India (2011) as well, few parameters were laid down to be followed by the court while allowing transfer petitions. It was stated that no precise rule could be established to regulate whether or not power under Section 406 should be exercised. The order cannot be passed merely on the apprehension of an unfair trial, but only when there is reasonable proof and it is necessary to provide credibility to the trial especially when dealing with national/international ramifications.

The factors to be kept in mind before ordering this should be –

When it can be analyzed that the state machinery or prosecution is working hand in hand with the accused, and so there is a risk of a miscarriage of justice due to the prosecution’s irresponsible attitude.
If the danger might be caused to the complainant by the accused or he might influence the witnesses and the inconvenience caused to them all.
Also, the burden to be borne by the State Exchequer in making payment of official and non-official witnesses’ travel and other expenses.
If there is a communally heated atmosphere, providing some evidence of inability to undertake a fair and impartial trial due to the charges levelled and the nature of the crime committed by the accused.
Some concrete proofs showing that there will be a strong interference by some threatening people.

Cases where transfer petition was rejected

In many cases in recent years, the court rejected the transfer due to reasons such as unreasonable proof of apprehension of a trial getting disrupted, etc.

In R. Balakrishna Pillai vs. the State of Kerala (2000), it was contested that one of the Judges hearing the appeal had previously appeared as an advocate in a commission inquiring into an allegation of misconduct against the same petitioner in another matter but the petition for transfer was rejected as the Court said that the two matters are altogether different and also the advocates appear for various clients but that does not mean he will have any personal interest with the matter. This would also undermine the unbiased and stern nature of judges. Also, in a similar order given in Bhairu Ram vs. Central Bureau of Investigation (2010), the Court stated that mere inconvenience cannot be a solid ground for this but if it is shown that if the transfer petition is not granted then it might result in failure of justice, then it can be granted.

Similarly in Rajesh Talwar vs. CBI (2012), the Court again refused the transfer petition and also warned the petitioner to not make any unscrupulous remark to the court proceedings.

Cases where the transfer petition was granted

In L.S. Raju vs. State of Mysore (1952), the transfer petition was granted by the Supreme Court on the ground that the petitioner was convicted on the charge of attempt to murder the High Court Chief Justice and so he asked to transfer the case to another HC as he possibly will not have a fair trial as the HC is presided over by the complainant itself.
In Central Bureau of Investigation vs. R. Hopeson Ningshen (2010), due to the communal tension between the Meities and the Nagas and the actual possibility of fights and killing of several people, all the cases were transferred from Manipur to Delhi High Court. This was considered a legitimate reason for the transfer.
In R.S. Sodhi Advocate vs. State of U.P. and Ors. (1994), some serious and genuine allegations were made on police officers that they killed several persons during encounters, and so on this basis, the investigation case was transferred from the police to CBI.
In Mithilesh Kumar Singh vs. State of Rajasthan (2015), again, the investigation on the death of a female school due to ragging was passed to CBI as the college and police were coercing and the evidence was fabricated. The Court found it absolutely relevant as the case was sensitive.
In a very recent and widely discussed case Rhea Chakraborty vs. State of Bihar & Ors. (2020), the Supreme Court allowed CBI investigation into the case so as to do complete justice and make people confident about the transparent and true investigation.

Conclusion

At present time, many instances of political scandals and interference and the coming of whistle-blowers are increasing. These cases require justice to be safely delivered and even the courts have time and again held that the main basis of transferring the petitions has been the fair delivery of justice to people. In such cases, mere apprehension of the wrong or danger is not enough. Properly substantiated reasoning must be given or inferred. In many instances, a far-fetched connection with some political party or Judge or any small past encounter makes people go asking for the transfer of petitions. But the court has rejected such pleas many times, as we saw in the article. The court takes into account various things while deciding if it should grant the transfer or not. Thus, not concrete rules can be laid down for this, it all depends and varies from case to case and circumstances.

References

https://www.livelaw.in/columns/supreme-court-code-of-criminal-procedure-1908-transfer-petitions-176607?infinitescroll=1

http://www.legalservicesindia.com/article/2457/Transfer-Petition-in-Supreme-Court-of-India-All-about.html

https://www.scconline.com/blog/post/tag/transfer-petition/

https://www.aaptaxlaw.com/Legal-Formats/transfer-petition-under-section-406-of-crpc-format-to-file-in-supreme-court-of-india.html

https://www.livelaw.in/top-stories/language-problem-party-transfer-406-crpc-supreme-court-174015

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Framework for Model Panchayat Citizen’s Charter – why are they important

By

Sneha Mahawar

-

September 6, 2021

0

This article is written by Kavana Rao from Symbiosis Law School, Noida. This article will give an overview of the Model Panchayat Citizen’s Charter and its importance.

Table of Contents

Introduction

“The future of India lies in its villages” is a very frequently quoted line when rural and village development is talked about. This quote by Mahatma Gandhi cannot be more apt as villages are the cell of this living and breathing dynamic country. The Panchayat Citizens Charter is a step towards improving the lives in the rural regions and addressing their grievances in an orderly manner.

The concept of the Citizens’ Charter was first articulated and implemented in the United Kingdom by the Conservative Government of Johan Major in 1991 as a national program. It is not a legally enforceable document, they are mere guidelines to enhance service delivery to its citizens. There were 6 principles of the Citizens’ Charter movement which were framed. They were:

Quality- Improving service quality
Choice- Wherever possible
Standards- Specifically mention what to expect and how to go about if standards are not met
Value- For taxpayers’ money
Accountability- At the level of the individual and the organization.
Transparency- Transparency is the rules/ schemes/ procedures/grievances.

The concept of the Citizens’ charter was first adopted at a ‘Conference of various States and Union Territories’ which was held in May 1997. The major result of the conference was a decision to formulate a Citizens’ Charter by the central and state governments.

The Rights of Citizens for Time Bound Delivery of Goods and Services and Redressal of their Grievances Bill, 2011 ( Citizens Charter) was introduced in the Lok Sabha in December 2011, but it lapsed due to the dissolution of the Lok Sabha in 2014.

What is a Citizen’s Charter

The Citizens’ Charter is a voluntary and written document that spells out the service provider’s efforts taken to focus on their commitment towards fulfilling the needs of the citizens/ customers.

It safeguards the trust between the service provider and the citizens.
It consists of what the citizens can expect out of the service provider.
It also includes how citizens can get their problems addressed.

What is a Model Panchayat Citizen’s Charter

The Union Minister of Rural Development and Panchayati Raj released a Model Panchayat Citizens Charter recently. It is has been framed for the delivery of the services across the 29 sectors, in correspondence with the localized Sustainable Development Goals which is prepared by the Ministry of Panchayati Raj (MoPR) in collaboration with the National Institute of Rural Development and Panchayati Raj ( NIRDPR).

It is anticipated that the Panchayats utilizing this framework, and with the approval of Gram Sabha, would draw up a Citizens Charter, detailing the different categories of services rendered to the citizen by the Panchayat, the conditions for such service, and also the time limit for such service. It will help in bringing awareness among the citizens about their rights and also to make the Panchayats and their elected representatives directly accountable to the people.

The requirement for Citizen Charter in Panchayats in India

The Panchayat forms the first level of Government and nearly 60% of the Indian population resides in the rural areas. Hence, with such a large population residing in the rural regions, Panchayats are entrusted with the delivery of basic services laid down in Article 243G of the Constitution of India, primarily the areas of drinking water, nutrition, education, and health and sanitation.

Objectives

The primary objective of the “ Gram Panchayat Citizens Charter “ is to empower the citizens in relation to public services and improve service quality on the lines of Citizens’ expectations.
The creation of the Charter brings in professionalism in the functioning of the Panchayat and aids in reaching out to all the sections of the community without any discrimination and the standards adopted by the Panchayats are useful yardsticks for monitoring and evaluation of service delivery.
The Charter will provide services to the people in a timely manner, address their complaints and problems thus improving their lives.
The Charter, on one hand, will make citizens aware of their rights, and on another, it will make the Panchayats and their elected representatives more directly accountable to the people.

Process of preparation of Gram Panchayat Citizens’ Charter

The Citizen’s Charter is to be framed for each panchayat separately. During the course of preparing the charter, the Panchayats shall discuss the various services provided to the Citizens, the conditions that citizens shall have to fulfill for getting a service, and the time limit of each service. While preparing the Charter the Panchayat must seek the views of the Panchayat Secretary and the other officers of the concerned line departments. The Charter can consist of only those services that are delivered by the Panchayat on a regular basis. Alongside, the Panchayat should also decide the fee leviable for particular services.

The Gram Panchayat Citizen’s Charter must contain the following information.

I . Vision and mission of the Panchayat

The first key component of the Citizens’ charter is a clear statement of Panchayat’s “Vision and Mission”. The vision implies the ultimate direction in which the Panchayat seeks to move in. The Mission statement gives the specific objectives which drive the Panchayat in tune with the vision.

II. Service Standards/ Procedure for obtaining services

To obtain a service mentioned in the Charter, an eligible citizen must submit an application to the authorised official together with the required documentation and pay any applicable fees. The designated officer on receiving the receipt of the request, shall record the details in a register and assign a serial number and provide an acknowledgement to the applicant indicating the probable date by which the service will be rendered. The designated officer is obligated to render a service to the eligible applicant within the given time. On receiving the application he/she shall within the stipulated period either provide service or reject and in case the application is rejected, the reasons for not providing services shall be intimated in writing.

These are the required information needed to be provided under service standards.

Name of the service.
Details of the service (including beneficiaries and eligible persons).
The time frame required to deliver the service.
Name and contact details of the person in the Panchayat responsible for providing the service.

III. Grievance redressal

The Sarpanch and the Panchyat Secretary must be accessible to the citizens to listen to their grievances and make arrangements to address the complaint effectively. Timely redressal of the complaints not only reduces dissatisfaction but also helps Panchayat to improve its functioning. If the citizen feels that the Panchayat was not able to provide a service, then he can file an appeal before the designated higher authority about the same. The contact details of the higher authority must also be included in the Charter.

Importance

The Charter would ensure transparent and effective delivery of public services for sustainable development.
It would ensure improved citizen service experiences.
It would deepen inclusive and accountable Local Self Governments by incorporating diverse views while designing and delivering services.
Bringing awareness among the citizens of their rights on one hand, and to make the Panchayats and their elected representatives directly accountable to the people, on the other hand.
Provide services to the people in a time-bound manner redressing their grievances and improving their lives.

Conclusion

To conclude, in order to uplift the villages of India such frameworks are necessary. Villages not only need improvement in the areas of education, sanitation, and infrastructure but also their other concerns or complaints must also be looked into, therefore with the Model Panchayat Citizen Charter, not only ensures that the services are delivered on time but also ensures that their complaints and grievances are addressed in a timely manner.

References

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Introduction

What is deceptive pricing?

Legal provisions on deceptive pricing

1. §233.1 Former price comparisons

2. §233.2 Retail price comparisons; comparable value comparisons

3. §233.3 Advertising retail prices which have been established or suggested by manufacturers (or other non-retail distributors)

4. §233.4 Bargain offers based upon the purchase of other merchandise

5. §233.5 Miscellaneous price comparisons

6. Drip pricing

7. Strike through pricing

How to tackle deceptive pricing?

Famous cases on deceptive pricing

Micheal Kors

Ross stores

Neimen Marcus

Kohl’s Departmental Stores

Conclusion

References

Introduction

UP’s Population Control Bill

How the UP’s Population Bill contradicts the prevention of female foeticide problem

How China’s single-child policy led to a drop in the sex ratio

Solutions for population control

Conclusion

References

How to get better at writing Essays?

Create an Outline

Write the Body First

Define your Argument

Cite your Sources

Proofread

Introduction

Provisions for the presence of an accused during a criminal trial in India

Difference between Section 205 and Section 317 of CrPC

Approaches for exemption from attending criminal proceedings

Liberal or generous approach

Puneet Dalmia v. CBI (2019)

Sarath S v. State of Kerala (2019)

Strict approach

Lily Begum v. Joy Chandra Nagbanshi (1993)

Power of attorney

Appointment of power of attorney by an accused

Brenda Barbara Francis v. Adrian Mirinda (2016)

Harishankar Rastogi v. Girdhari Sharma and Anr. (1978)

Conclusion

References

Introduction

Substantive provisions

1. The first conduct : agreements and concerted practices

2. The second conduct : abuses of market power

3. The merger rule : mergers and acquisitions in the telecommunications sector

4. Sanctions

5. Extraterritorial effect

Enforcement regime

1. Public and private enforcement

2. Leniency

3. Investigation powers

Recent enforcement trends

1. Public and private enforcement

Cartel and bid-rigging

Alternative enforcement tools

2. Private enforcement

Summary of enforcement actions by the Competition Commission

Conclusion

Legislation governing refugee treatment

Right to equality before the law (Article 14)

Protection of life and liberty (Article 21)

Right to a fair trial

Expansion of judicial powers

Need for legislation on refugees

Law on traditional cultural expressions

India’s current legal and institutional frameworks

Constitution of India

Geographical Indication

Registered proprietor

Ownership of Geographical Indications

Copyright

Authorship and ownership

Fixation

Duration