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A very long term of redemption in a mortgage deed : is it invalid

By
Abanti Bose
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0
Mortgaged property
Image Source - https://rb.gy/rsyxbz

This article is written by Tanisha Kohli, pursuing Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho.

Introduction

In a mortgage, one gives certain immovable property as security for a loan that one has taken. The one who has taken the loan is called a mortgagor, and he is the one who has mortgaged his property in favour of the mortgagee. The mortgagee is the one who has provided the loan, and in whose favour the property is mortgaged.

The mortgaging of the property can never be confused with the sale of the property from the mortgagor to the mortgagee. The mortgaged property is only to be understood as a security for the loan. Thus, there is the phrase “once a mortgage, always a mortgage”.

The aim of this article is to provide an overview of the right to redemption, the concept of clog on the equity of redemption, and answer the question of whether a long term redemption in a mortgage deed is valid or invalid. 

Right to redemption

The right to redeem is a statutory right contained in Section 60 of the Transfer of Property Act, 1882 (‘TPA’). Simply put, the right to redeem means that the mortgagor can take back the mortgaged property on payment of the principal loan amount and the interest. 

Section 60 of the TPA answers several questions for us:

  1. When does the right to redeem commence? – At any time after the principal money has become due. 
  2. How can the right to redeem be extinguished? – By an act of the parties or by decree of the Court.
  3. Who has the right to redeem? – The mortgagor, on payment of the mortgage money, at a proper time and place
  4. What is the content of the right to redeem? The right is to require the mortgagee to :

a. Deliver to the mortgagor:

  • The mortgage deed.
  • All documents relating to the mortgaged property which the mortgagee possesses or has power over.

b. If the mortgagee is in possession of the mortgaged property, then deliver to the mortgagor:

  •   Possession of the mortgaged property.

c. Retransfer the mortgaged property to the mortgagor or to a third person as directed by the mortgagor OR to execute + get registered (if the mortgage was registered) a written acknowledgement that any right which was transferred to the mortgagee, and was in derogation to the mortgagor’s interest, is extinguished.

  1. Exception to the right to redeem – A mortgagor who is interested in only a portion of the mortgaged property cannot redeem only that portion of it by paying a proportion of the mortgaged property. 
  2. Exception to the exception – A mortgagor who is interested in only a portion of the mortgaged property can redeem only that portion of it by paying a proportion of the mortgaged property when the mortgagee(s) has acquired the portion of the mortgaged property in which such mortgagor has an interest. 

What is a redemption clause?

A redemption clause answers the question as to when and how the mortgagor is entitled to redeem his property. The answer to when the right to redemption accrues may also be found in the termination clause of the mortgage deed.

What a redemption clause may look like:

Example 1:

“That the Mortgagor hereby in lieu of interest for the said loan amount, gives possession of the said house for a period of ….. years and thus transfers limited ownership of the property to the mortgagee.”

“That the mortgagor promises to pay back the mortgage loan to the mortgagee immediately after expiry of the mortgage and that the mortgagee promises to give back the possession of the house and title deeds to the mortgagor, immediately on receipt of the mortgaged money from the mortgagor.”

Example 2:

“And this deed further witnesseth that in consideration aforesaid, the mortgagor hereby mortgage his said scheduled property hereunder written as security for repayment of the said sum with interest and all other money due and payable hereunder with a condition that on the mortgagor repaying the said principal sum of Rs. with all interest and other amounts of money due to the mortgagee (hereinafter referred to as the mortgage amount) the mortgagor will redeem the said scheduled property from the mortgage security and shall if so required by the mortgagor execute a deed of release but at the costs of the mortgagor.

Example 3: 

“I or my heirs will not be entitled to redeem the property for a period of 85 years. After the expiry of 85 years, we shall redeem it within a period of six months. In case we do not redeem within a period of six months, then after the expiry of the stipulated period, I, my heirs, and legal representatives shall have no claim over the mortgaged property, and the mortgagee shall have no claim to get the mortgage money and the lagat (i.e. repairs) expenses that may be due at the time of default. In such a case this very deed will be deemed to be a sale deed. There will be no need of executing a fresh sale deed. The expenses spent in repairs and new constructions will be paid along with the mortgage money at the time of redemption according to the account produced by the mortgagee.”

Concept of clog on the equity of redemption

“…necessitous men are not, truly speaking, free men…” – Northington L.C. in Vernon v. Bethell [(1762) 28 ER 838], as quoted in Pomal Kanji Govindji v. Vrajlal Karsandas Purohit [AIR 1989 SC 436].

Clauses of the mortgage deed which take away or restrict the right to redeem are considered to be a clog on the equity of redemption. Even though the mortgagor has agreed to these clauses while making the mortgage, the Court can step in and hold the clause invalid on the ground that it is a clog on the equity of redemption. 

The principle of clog on the equity of redemption was clearly established by the observations of Lindley, M.R. in Santley v. Wilde, [1899] 2 CH 474. These observations were quoted in Pomal Kanji Govindji v. Vrajlal Karsandas Purohit [AIR 1989 SC 436] as follows:

“The principle is this: a mortgage is a conveyance of land or an assignment of chattels as a security for the payment of a debt or the discharge of some other obligation for which it is given. and the security is redeemable on the payment or discharge of such debt or obligation. Any provision inserted to prevent redemption on payment or performance of the debt or obligation for which the security was given is what is meant by a clog or fetter on the equity of redemption and is therefore void. It follows from this, that “once a mortgage always a mortgage.”

The reason why courts hold such clauses which limit or take away the right to redeem as void is because the parties to a mortgage deed may be on an unequal footing. The mortgagee is in a position to use the mortgagor’s need for money and take advantage of the difficulty that the mortgagor is in.

Examples of a clog on the equity of redemption:

  1. In mortgage deed, there is a clause that provides that if there is the default in repayment of the loan within a fixed date the mortgagee shall be deemed to be the purchaser of the mortgaged property. Such a clause would amount to a clog on the equity of redemption. 
  2. In a mortgage deed there is a clause that provides that on default in repayment of the loan within a fixed period, the mortgage shall be renewed for another period of 12 years. Such a clause would amount to a clog on the equity of redemption. 
  3. In a mortgage deed there is a clause for redemption after a long period of time, say 99 years or 100 years. Whether this long term condition would be a clog on the equity of redemption is dealt with in the next section of this article.

A very long term of redemption in a mortgage deed : is it invalid?

The answer can be yes or no. A very long term of redemption in the mortgage deed by itself does not mean that it is invalid. Its validity or invalidity will be judged keeping in mind a basic principle. The principle is that if the mortgage has been entered into by taking advantage of the difficulty the mortgagor is in, then the long term will be invalid. However, if the mortgagor and mortgage were on equal footing and the mortgagee was not in a position to dominate or take advantage of the mortgagor, then the long term is valid.

In Seth Ganga Dhar v. Shankar Lal [AIR 1958 SC 770] the Court noted that the power of the Court to relieve a mortgagor of a bargain which restricts his right to redeem must depend on whether the bargain, in the facts and circumstances of any particular case, was one imposed on the mortgagor by taking advantage of his difficult and impecunious position at the time when he borrowed the money. 

However, it is important to note that a very long term, taken with other relevant factors, would create a presumption that it is a clog on the equity of redemption. This was held by the Court in Pomal Kanji Govindji v. Vrajlal Karsandas Purohit [AIR 1989 SC 436]. The Court makes this presumption keeping in mind the context of inflation, and high increase in real estate prices, as well as population explosion and need for habitat. In other words, this means that the Court will draw a presumption that the long term is invalid. This presumption however can be displaced and is not to be understood as the conclusion of the Court. It only means that the burden of proof falls on the mortgagee to show that the term is valid. 

Whether the mortgage takes advantage of the mortgagor can be determined by several factors. In Pomal Kanji Govindji v. Vrajlal Karsandas Purohit [AIR 1989 SC 436] the Court observed that the following facts showed that there was a clog on equity:

  1. The mortgagor’s economic and financial position, 
  2. The clause providing that interest had to be paid not periodically but in a lump sum at the time of ultimate redemption,
  3. The clauses allowing demolition and reconstruction of the building in this inflationary age and debiting the mortgagor with an obligation to pay for the same as an obligation for redemption,
  4. Without pressure from the creditor, no one would like to mortgage the only house which is the only abode on the earth.

In Seth Ganga Dhar v. Shankar Lal [AIR 1958 SC 770] the Court held that the period of 85 years was not a clog on the equity of redemption as the facts showed the mortgagor and mortgagee to be on equal footing. However, there was another clause in the mortgage deed which provided that the mortgagor had to redeem the property within 6 months from the expiry of 85 years, and if he failed to redeem within 6 months, he would lose his right to redeem, and the mortgage deed would be considered as a sale deed in favour of the mortgagee. This clause was held to be a clog on the equity of redemption. 

Reading the mortgage deed : What all to look for?

The deed has to be read in its entirety to determine whether the long term of redemption is valid or not. It is not enough to come to a conclusion about the validity or invalidity of the term of redemption by merely looking at the redemption clause. 

Other clauses such as whether the interest is payable periodically or in a lump sum at the time of redemption, and the clause providing for the amount of money taken as a loan are also of importance. 

For instance, in Kunj Bihari Lal v. Pandit Prag Narayan [AIR 1922 Oudh 283], which was referred to Pomal Kanji Govindji v. Vrajlal Karsandas Purohit [AIR 1989 SC 436], in the mortgage deed had a condition that the mortgagor should pay the interest along with the principal amount at the time of redemption after 50 years. The Court held that the intention of this condition was to make it impossible to exercise the right of redemption.

In another case, Shivdev Singh v. Sucha Singh (2000) 4 SCC 326: AIR 2000 SC 1935, the facts were that the mortgagor, being financially hard-pressed, mortgaged his property for 99 years for a consideration of Rs 7,000. The mortgagee took possession of the property and was enjoying its usufruct. A suit for redemption was filed after around 26 years. The Court held that there was a clog on the equity of redemption on several facts and circumstances which showed that the mortgagee was in an advantageous position qua the mortgagor, including the fact that the appellants were also found to be deriving the usufructs of the mortgaged land for a period of over 26 years at the time of filing of the suit on payment of a meagre sum of Rs 7000 only to the mortgagor. 

The consequence of the invalidity of the long term

Normally, if the right to redeem starts after a particular term, then a suit for redemption can be filed once that term has ended. A suit for redemption is filed to enforce the right to redeem. Filing a suit for redemption before the expiry of the mortgage term will be considered a premature suit. For instance, in Ganga Dhar v. Shankar Lal, AIR 1958 SC 770 the Court held that the term of 85 years was not invalid, and thus, filing suit before the expiry of 85 years was premature. However, if the Court holds that the long term period is a clog on the equity of redemption and thus invalid, then a suit for redemption can be filed even before the expiry of the term. 

Conclusion

Thus, the answer to whether a long term redemption is invalid will vary in the facts and circumstances of the case. The key principle to keep in mind is that if the mortgagee took advantage of the mortgagor’s pecuniary difficulty at the time when the mortgagor borrowed the money, then the long term is invalid. 

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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Case analysis : Tulsi Narayan Garg vs The Madhya Pradesh Road Development Authority, Bhopal and Others

By
Abanti Bose
-
0

This article is written by Sharad Nayak, pursuing Certificate Course in Arbitration: Strategy, Procedure and Drafting from LawSikho.

Introduction

Case analysis is a basic skill that every lawyer is expected to know. By analysing a case one can learn and understand a lot of different aspects of it in a very less time. For analysing a case law one requires to examine a case law thoroughly. Case law can be analysed in several ways but here we are going to use a commonly known method called “IRAC” Analysis. The name of the case is- “M/s Tulsi Narayan Garg versus Madhya Pradesh Road Development Authority, Bhopal and Others” This was an appeal to the Supreme Court and its final judgement was given on 30 August, 2019.

Facts of the case

The first respondent (the M.P. Road Development Authority, Bhopal) awarded the appellant (a proprietorship firm registered as a Class ‘A’ contractor) a tender for construction and maintenance of roads in the rural region under Pradhan Mantri Gram Sadak Yojana. For the same purpose, The first respondent and the appellant also signed agreement no. 11 and agreement no. 12. According to these agreements, the work was required to be finished within 12 months i.e. till 21 October, 2009. Agreement number 11 and 12 were terminated by the first respondent, on 7/10/2013 and 27/10/ 2014 respectively, citing that the work was running slow.

At a later stage, the first respondent sent a notice to the appellant for determination of the liquidated damages. The appellant challenged the notice in the Madhya Pradesh High Court but the petition was disposed of there. Then a petition, against the termination of agreements number 11 and 12 and damages claimed by the first respondent, was filed by the appellant before the Madhya Pradesh Arbitral Tribunal.

While the petitions challenged by the appellant were pending before the Arbitral Tribunal for adjudication, a notice was issued by the first respondent to the appellant for recovering alleged damages. The second respondent (The G.M. of the first respondent) communicated to the third respondent (Collector of Sheopur, M.P.) to take action towards alleged liquidated damages under the provisions of the land revenue act. The appellant challenged all of this before the Madhya Pradesh High Court by stating that the respondents are not taking justifiable actions because the liquidated damages claimed by the respondents are under judicial consideration of the Arbitral Tribunal and are therefore prohibited from discussion in public. But the High Court dismissed these petitions and now the same has been brought to the Supreme Court by the appellant.

Issue of the case

  1. Can a party to an agreement by an arbiter in its own cause or cannot?

Rules

Clauses of the agreement, signed between the first respondent and the appellant, which are relevant for the present case are as follows:

  1. Dispute redressal system

“If any dispute or difference of any kind what-so-ever shall arise in connection with or arising out of this Contract or the execution of Works or maintenance of the Works thereunder, whether before its commencement or during the progress of Works or after the termination, abandonment or breach of the Contract, it shall, in the first instance, be referred for settlement to the competent authority, described along with their powers in the Contract Data, above the rank of the Engineer. The competent authority shall, within a period of 45 days after being requested in writing by the Contractor to do so, convey his decision to the Contractor. Such decision in respect of every matter so referred shall, subject to review as hereinafter provided, be final and binding upon the Contractor. In case the Work is already in progress, the Contractor shall proceed with the execution of the Works, including maintenance thereof, pending receipt of the decision of the competent authority as aforesaid, with all due diligence.”

  1. Arbitration

“Either party will have the right of appeal against the decision of the competent authority, nominated under Clause 24, to the Madhya Pradesh Arbitration Tribunal constituted under Madhya Pradesh Madhyastham Adhikaran Adhiniyam 1983 provided the amount of claim is more than Rs. 50,000/-.”

arbitration

  1. Liquidated damages

“44.1 The Contractor shall pay liquidated damages to the Employer at the rate per week or part thereof stated in the Contract Data for the period that the Completion Date is later than the Intended Completion Date. Liquidated damages at the same rate shall be withheld if the Contractor fails to achieve the milestones prescribed in the Contract Data. However, in case the Contractor achieves the next milestone the amount of the liquidated damages already withheld shall be restored to the Contractor by adjustment in the next payment certificate. The total amount of liquidated damages shall not exceed the amount defined in the Contract Data. The Employer may deduct liquidated damages from payments due to the Contractor. Payment of liquidated damages shall not affect the Contractor’s other liabilities.

  1. Payment upon termination

“53.1 If the contract is terminated because of a fundamental breach of contract by the contractor, the Engineer shall issue a certificate for the value of the work done and materials ordered less liquidated damages, if any, less advance payments received up to the date of the issue of the certificate and less the percentage to apply to the value of the work not completed as indicated in the Contract Data. If the total amount due to the Employer exceeds any payment due to the Contractor, the difference shall be recovered from the security deposit and performance security, if any amount is still left un-recovered it will be a debt payable to the Employer.”

Case analysis

The lawyer of the appellant pleaded that if the alleged liquidated damages are pending for adjudication before the Arbitral Tribunal, then the notice served by the first respondent for the recovery of the damages is not valid. But the lawyer of the respondents pleaded that if the show-cause notice has been served to the appellant and the General Manager of the first respondent adjudicated and quantified the liquidated damages, then there is no wrong in initiating the recovery proceedings.

The Supreme Court observed that if clauses 44.1 and 53.1 are read together then it can be concluded that if the contractor is required to pay the liquidated damages after the termination of the contract then clause 24 can be invoked. Also, clause 25 of the agreement permits the aggrieved party to approach the Arbitral Tribunal, which was constituted on the basis of Adhiniyam, 1983. Therefore the General Manager of the first respondent invoked clauses 24 and the appellant thereof approached the Arbitral Tribunal.

The alleged liquidated damages are the subject matter which has been challenged under section 7 of the Adhiniyam, 1983, by the appellant, before the Arbitral Tribunal, and the verdict for it is still pending, therefore initiating the recovery proceedings is a wrong act on the part of the respondents. Therefore, no party to an agreement can be an arbiter in its own cause. It is also a common principle of law. In support of this statement, paragraph 7 of the judgment of State of Karnataka vs Shree Rameshwara Rice Mills Thirthahalli 1987 was also quoted by the Supreme Court. This judgment was also quoted by the High Court of Madhya Pradesh in the case of B.B. Verma and another vs State of Madhya Pradesh and another 2008.

The case of B.B. Verma and another vs State of Madhya Pradesh and another 2008 was referred by the appellant while filing petitions in the Madhya Pradesh High Court and are a subject matter of the instant appeals also. In this case, Madhya Pradesh High Court observed that if the damages, claimed by an authority or any officer on its behalf, get disputed by a contractor, such damages cannot be considered to be due according to agreement hence cannot be recovered by invoking provisions of land revenue act, still pending adjudication before the Arbitral Tribunal.

A case similar to instant appeals, Virendra Sharma versus State of M.P. and Others (Civil Appeal No. 5169 of 2016) is pending adjudication under Arbitration.

The Supreme Court in its judgment said that the respondents were not justified in demanding liquidated damages, after the termination of the agreement, by invoking the provisions of the Land Revenue Act. The respondents should have waited for the pending adjudication before the Arbitral Tribunal because clause 25 was also there in the same agreement, which talks about the right of appeal in the Madhya Pradesh Arbitral Tribunal, of which the appellant has taken advantage.

It was repeated by the bench of 3 Judges, Hon’ble Mr. Justice Ajay Rastogi, Hon’ble Mr. Justice Nuthalapati Venkata Ramana and Hon’ble Ms. Justice Indira Banerjee, that no party to an agreement can be an arbiter in its own cause.

Hence, the Supreme Court of India allowed the appeals and also added that the proceedings of the Arbitral Tribunal shall not be influenced by this judgment.

Conclusion

The conclusion of the analysis is that we should not initiate the recovery proceedings by invoking the provisions of the Land Revenue Act. Accordingly, the recovery orders are set aside by the Supreme Court. So now, only after the verdict of the Arbitral Tribunal, the authority can take any action. The common principle of justice was reiterated by the court that no party to an agreement can be an arbiter in its own cause. This is legally sustainable by law. It will create impartial decisions. Both parties should be treated and heard equally.

Hence, It is very clear that if a contractor challenges a demand raised by a state authority, then initiating the recovery proceedings is not justifiable, if the verdict is yet to come.

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.

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

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Blog competition winner announcement (Week 2nd June 2021)

By
Diva Rai
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0
Image source - https://bit.ly/2WVMFfR

So today is the day! We are finally announcing the winners of our Blog Writing Competition for 2nd week of June 2021 (From 7th June 2021 to 13th June 2021). 

We’d like to say a big thanks to everyone for participating! It has been a great pleasure receiving your articles on a different legal topic, they were all amazing! 

And now we’d like to congratulate our top 5 contestants, who become the undoubted winners. They will receive Prize money of Rs 2000, LawSikho store credits worth Rs. 1000 and a Certificate of Merit from team LawSikho.

They will also get an opportunity to intern at iPleaders under the direct mentorship of Ramanuj Mukherjee, Abhyuday Agarwal, Harsh Jain, and Komal Shah. Their articles will get published on iPleaders blog (India’s largest legal blog). Click here to see other perks available to them.

Their entries (see below) received maximum marks based on the average marks given by the panel of editors, and have been crowned the winners!

S.no

Name

About Author

Article

1

Tripti Gupta

Student pursuing Certificate Course in Real Estate Laws 

from 

LawSikho

Everything a common man needs to know regarding succession of property across religions

2

Jannat

Intern

Key judicial decisions on divorce cases in India

3

Anushka Kashyap

Guest Post

President rule under Article 356 – a constitutional instrument to misuse power

 

4

Srishti Sinha

Intern

Election commission of India : role and duty in reality

5

Vishnu Ameya

Student pursuing Certificate Course in National Company Law Tribunal Litigation 

from 

LawSikho

Five NCLT judgements you must know about

Meet our next 5 contestants who made it to top 10 here. They will receive a Certificate of Excellence from team LawSikho.

They will also get an opportunity to intern at LawSikho under the direct mentorship of Ramanuj Mukherjee, Abhyuday Agarwal, Harsh Jain and Komal Shah. Their articles got published on iPleaders blog (India’s largest legal blog). Click here to see other perks available to them.

S.no

Name

About Author

Article

6

    Harmanpreet 

           Kaur

Intern

Legislation concerning male and female rape : ways they should differ

7

    Shubhanshi 

     Phogat

Guest Post

Role and effect of central government schemes in the welfare of tribal communities of India

8

      Risabh 

      Dasgupta

Student pursuing Diploma in M&A, Institutional Finance, and Investment Laws (PE and VC transactions) from 

LawSikho

Recipe for food safety due diligence of packaged food products in India

9

      Riya Ranjan

Intern

Relevancy and admissibility of admissions

10

Soha Goyal

Student pursuing Diploma in Intellectual Property, Media and Entertainment Laws 

from 

LawSikho

The infringement case of Ferrero Rocher trade dress

Click here to see all of the contest entries. Click here to see our previous week’s winners.

Our panel of judges, which included editors of iPleaders blog and LawSikho team, chose the winning entry based on how well it exemplified the entry requirements.

Certificates will be sent on the email address given by the contestant while submitting the article. The contestants have to claim their prize money by sending their account details as a reply to the mail in which they received their certificate within 1 month (30 days) of the date of declaration of results and not afterwards. 

For any other queries feel free to contact Vanshika (Senior Managing Editor, iPleaders) at [email protected]. 

LawSikho credits can be claimed within twelve months from the date of declaration of the results (after which, credits will expire).

Congratulations to all the participants!

Regards,

Team LawSikho

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An overview of the Corporate Manslaughter and Corporate Homicide Act, 2007

By
Diva Rai
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0

This article is written by Amrit Kaur, a student of Dr B.R. Ambedkar National Law University, RAI, Sonepat. The article gives an overview of the Corporate Manslaughter and Corporate Homicide Act 2007 and also throws some light on India’s stance on the same.

Introduction 

Section 1 of the Corporate Manslaughter and Corporate Homicide Act, 2007 (CMCHA) establishes corporate manslaughter as an offence. The Act came into force on 6th April 2008 in the United Kingdom. The offence was established to make sure that corporations and other organizations are held accountable for significant failures on their part which results in the death of their employees. The offence of gross negligence manslaughter was repealed by this Act as it was related to the corporations and other organisations only.

The failure of common law crime of gross negligence to deal with death from corporate negligence spurred the adoption of the Corporate Manslaughter and Corporate Homicide Act promptly. While the Act was designed to eliminate common law inadequacies, it has further noticeably broadened corporate criminal liability by ‘removing doctrinal barriers’.

Corporate manslaughter is wider in scope than the prior offence under the common law. It applies to only the most significant company failures. There is a high culpability threshold that requires proof that there is a serious violation of the applicable duty of care. It is no longer required to demonstrate, however, that a person who was the organization’s ‘control mind’ was personally responsible for the crime. Responsibility for the offence is evaluated by considering the faults of the entire organization.

Meaning of corporate manslaughter

The statutory offence of corporate manslaughter was brought up in the UK to ensure that effective laws are in place for prosecuting the organisations, where the appropriate management of health and safety has not been given the required attention, which therefore further gives fatal results. Introduction of this Act was the Government’s response to the First Joint Report by the Home Affairs and Work and Pensions Committee (2005/06 HC540). 

In simple words, an organisation is said to commit corporate manslaughter if the manner in which its operations are managed or organised, including a significant contribution by its ‘senior management’, causes death, and thus amounts to a gross breach of a relevant duty of care owed by the organisation towards the victim. 

According to Section 1(6) of the Corporate Manslaughter and Corporate Homicide Act, an organisation that is found to be guilty of corporate manslaughter or corporate homicide is liable for a fine. Also, because the defendant is a company entity, therefore the penalty upon it, is fine only. 

Main elements of the offence

  1. The defendant is a qualified organization;
  2. The organization owed to the victim a corresponding duty of care;
  3. Presence of a gross violation of the responsibility by the organization;
  4. The way in which the organization’s activities are conducted and managed by its seniors;
  5. Management was a key component in the violation; and
  6. The grave violation of the responsibility of the organization caused or contributed to the death.

Further, in the cases of corporate manslaughter, the prosecution needs to demonstrate that the violation of the duty of care has caused the death. The question in such cases is whether the violation contributed to death more than minimally. The court, in such cases, has the authority to issue auxiliary orders including remedial orders and publicity orders. The Sentence Council, with effect from 1 February 2016, further released comprehensive sentencing guidelines. As per the guidelines, the sentence level will depend on the organization’s size. However, the range of £180,000 to £20 million was stated. 

It is to be noted here that the Special Crime Unit, that is, the Special Crime and Counter-Terrorism Division is to be reported for situations that might lead to corporate manslaughter, with the exception of cases involving unincorporated partnerships.

The Corporate Manslaughter and Corporate Homicide Act, 2007 

It has been more than a decade since The Corporate Manslaughter and Corporate Homicide Act was introduced in the United Kingdom. While the Act has transformed the legal environment of corporate deaths in the United Kingdom (and indeed a highly justified disincentive to ‘lax health and safety standards’), the inherent uncertainties in the rules do not make it fully effective. This Act was important because it created for the first time in the UK a specific offence for corporate killing. This change was largely appreciated, although a large number of scholars and practitioners criticized the ineffectiveness of the Act and asked how successful it would be.

The Act has also been a disappointing compromise because there were fewer prosecutions than predicted, many times there was an unjustifiable inconsistency in sentencing, a continued lack of individual accountability and a prosecutor’s preoccupation with a limited range of defendants. The Act’s attempt to draw a clear line between organizational and individual culpability created issues.

The crime under the Act could be proven in particular only if the management failures are committed by the senior management of the corporation. If the failures are exclusively at the junior level, an organization is not responsible. The failures of the senior management must be a significant component of the violation. The failure at the senior management level, however, does not have to be a gross violation of the obligation in itself. This requirement has clarified the legislation at the outset. The problem of fulfilling the ‘legal identification test’ in the common law crime of manslaughter was substantially solved by removing the necessity to link the breach with one or more specific director(s) of the organisation. However, the equivocal notions of ‘senior management’ have been very questionable for the success of the prosecution of corporate homicide.

Meaning of senior management 

Senior management, under Section 1(4) of the Act, refers, in relation to an organization, to persons who have a major role in:

  1. the decision-making process of how to manage or organize the entire or a substantial portion of their activities.
  2. the actual management or coordination of the entire activity or the major portion thereof.

Although the word ‘senior management’ might seem to be clearly defined by the law, it remains, however, completely uncertain about the scope of ‘senior management’. The concept of this term has been described as a limited definition and somewhat ambiguous and has also been criticized by many academicians.

The efficacy of this ‘senior management’ test has not been extensively analyzed since only the ‘overwhelmingly micro-, small- or occasionally medium-sized organizations’ have been successfully convicted. Fortunately, in the case of R v. Cornish (Errol) (2015), the court provided some guidance about the test particularly in situations involving organizations with complicated organizational systems.

R v. Cornish (Errol) (2015)

This case is considered a landmark case under the Corporate Manslaughter and Corporate Homicide Act of 2007. Also, this case led to the first prosecution of the health service body since the implementation of the Act in 2008. In this case, Judge Coulson has explained the duty of the prosecution to satisfy the ‘senior management’ test. The court held that rather than determining the ‘controlling mind’, the prosecution would have to determine ‘the lowest level of the senior management team…that is guilty of this offence’, in other words, any management below the level designated would be irrelevant to the matter at hand. This can be viewed as a way to get around the problematic identification doctrine that existed in common law previous to the introduction of CMCHA. 

However, there is still a need for further clarification by the judiciary about this criteria, and it must be noted here that R v. Cornish was simply a judgement at the level of the Crown Court. It is also suggested that the ‘senior management’ test be subjected to further scrutiny, meanwhile, the case of R v. Cornish (Errol) may highlight the necessity for the test to be further developed/explored in situations involving major businesses. 

In many cases, there has been a failure on the part of the plaintiff to prove ‘gross’ breach on the part of the defendant which is thus, a relatively high bar, that is, conduct that can be described as something which is ‘so reprehensible’ or ‘so atrocious’ and thus deserves a criminal sanction. Both larger and complex organisations still have relative immunity under the Act as compared to smaller or medium corporations. The Act has furthermore reduced individual liability and reinforced the corporate veil. Moreover, there have only been just 25 successful corporate manslaughter convictions in the United Kingdom up to September 2017. 

Visualizing whether the legislation is fit for its purpose or not

Cynical analysts see the Act as effective only in making a symbolic message about corporate accountability, which later struggles to implement in practice. Though the Act appears to be generating a broad crime in terms of the bodies to which it will be applied and the duties of care which will help in triggering the liability, these are drastically limited by the technical qualifications fundamental to the all-important duty of care question and by the various and far-reaching exclusions designed to protect the corporations and organisations. The levels of complexity help to limit liability considerably more than what might appear at first glance, which causes substantial issues in practice.

There also appears to be a contradiction between a broad deregulation push on the one hand and a particular legislative push to prosecute some firms following workplace deaths in the shape of the CMCH Act on the other.

Given the number of deaths in the context of occupational health and safety, the Act never goes to significantly lessen the problem of corporate murdering, as was noted in the Regulatory Impact Assessment of the Act, which predicted just 10–15 convictions each year. If the goal was to hold larger more sophisticated companies responsible for workplace fatalities, the jury is still out, literally. Finally, if the goal of the law was to be symbolic, it begs the question of whether symbolism is based on the existence of the law rather than its use, if the latter, the law’s legitimacy must surely be questioned given that it was only used 21 times in nine years and 21 years after it was first proposed. Of course, the net consequence is that corporate homicide is an area of activity that does considerable harm but is essentially non-decriminalised or decriminalized. Thus, the legislation has not proved to be fit for the purpose for which it was established and all this calls for a reform in the current policy.

The silence of India’s legislation when it comes to corporate manslaughter 

In India, corporate manslaughter is not a particular legislative offence. The Indian Penal Code (IPC) 1860, on the other hand, covers offences of a similar type. 

A ‘person’ under the Indian Penal Code is defined as a company, association, or group of individuals, whether or not they are incorporated. As a result, whatever offence committed by a person and the resulting punishment, can likewise be applied to a corporation. 

The malicious intent of the ‘alter ego’ of the company/body corporate (that is, the person (or group of persons) that guides the company’s business) was imputed to the corporation in the case of Iridium India Telecom v. Motorola Inc and Others (2010), with the Supreme Court stating that, “a corporation is virtually in the same position as any individual and may be convicted of common law as well a statutory offence including those which require mens rea (that is, a criminal intention)”.

In India, the corporate killings take place mainly because:

  • Adulterated goods produced by corporations, which result in the death of consumers and workers.
  • Deaths due to environmental catastrophes caused by the corporations.
  • Harmful and dangerous working conditions at the workplace.

Various legislations have been made to deal with such situations. However, there is no legislation that exclusively deals with the crime of corporate manslaughter and hence there is a requirement for separate legislation and also a need to adopt the standard of punishments imposed under the 2007 Act of Corporate Manslaughter and Corporate Homicide as in the UK.

Regulatory provisions governing corporate manslaughter in India

As stated earlier, ‘corporate manslaughter’ is not expressly mentioned under Indian laws. Thus, for the time being, corporations may be held liable for criminal responsibility under the Indian Penal Code depending on the kind and substance of the offence. The relevant sections of the IPC under which a corporation can be punished for corporate manslaughter in India are as under:

Culpable homicide

Section 299 of the IPC deals with the same. 

Murder

Section 300 of the IPC deals with murder. 

Causing death by negligence

Section 304A of the IPC deals with the crime of causing the death of a person by negligence.

Negligent act likely to spread infection of disease dangerous to life

This crime is dealt with by Section 269 of the IPC. 

Malignant act likely to spread infection of disease dangerous to life

Section 270 of the IPC deals with the same.

Negligent conduct with respect to poisonous substance, fire or combustible matter, explosive substance, machinery

Section 286 of the IPC deals with the same.

Negligent conduct with respect to pulling down or repairing buildings

Section 288 of the IPC deals with this crime.

Conclusion

The Corporate Manslaughter and Corporate Homicide Act, 2007 was established in the UK with a motive to reform the gross negligence offence of the common law but the Act has itself proved to be inefficient and thus needs to be reformed. There have been various discrepancies in the Act which need to be looked upon. Meanwhile, India does not have any specific legislation for punishing corporate manslaughter and it uses various provisions of IPC to punish corporate killing which thus, calls for the need for specific legislation targeted at corporate manslaughter to be brought in for India.

References 

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Legal formalities for registering a restaurant on Zomato

By
Bushra Tungekar
-
0
Image source-https://rb.gy/mcb165

This article is written by Shyna Narula pursuing a Diploma in Business Laws for In-House Counsels from Lawsikho.

Introduction

–Never have a bad meal, Zomato

In 2008, Zomato was founded which is as of now one of the leading restaurant searches & discovery, restaurant table reservations and online food ordering. Deepinder Goyal and Pankaj Chaddah founded the company and it is headquartered in Gurugram. 

Zomato is amongst those few companies which have gone global after starting its operations in India. Zomato has been a successful venture from its beginning and has come a long way. Currently, Zomato features more than a million restaurants globally. 

It all started in 2008 when the founders noticed that people weren’t even aware of the restaurants that are functional in their locality/ neighbourhood. They eventually thought of an idea to list all the restaurants on the internet along with their menus. This led to them launching FoodieBay in 2008. This start-up was initially catered to Delhi- NCR region but after its gained popularity, it was implemented across the country. 

In 2010, FoodieBay was transformed into Zomato in a rebranding exercise. Since then, Zomato has been expanded tremendously globally. It has international operations and covers more than 10,000 locations across 24 countries. Zomato has a million customers from all over the world who keeps on exploring restaurants for delivery or dine in.

The number of restaurant listings on Zomato globally has grown from 1.2million in September 2018 to 1.5 million in September 2019. Almost half of the increase comes from India alone.

The benefits of Zomato restaurant registration

Zomato gives an opportunity to all the restaurants to have a platform where their menus, photos, reviews, speciality etc are provided. Zomato helps small businesses and low laid businesses (restaurants) to come into the eyes of the customers. It is also a source for restaurant reviews and table bookings. A wide range of coverage is provided which would rather be an issue if not marketed well.

Upon registration, all the restaurants are provided with various marketing benefits. According to the following graphs and Zomato annual reports, there has been a huge increase in the restaurant’s registration on Zomato. Thousands of new restaurants have registered themselves in the past year on Zomato in India itself. Zomato, the biggest chain in the food ordering and restaurant discovery business in India, has benefitted both restaurants and customers over the years.

Legal formalities for registering a restaurant on Zomato

The process for registering a restaurant under Zomato involves the following two ways, i.e.:

  1. Adding restaurant to the Zomato Restaurant listing
  2. Obtaining a Registration on Zomato for Business app

Add Restaurant on Zomato Restaurant listing

If just in case the restaurant doesn’t exist already on the Zomato site, one can add it themselves. By default, the sole fields that are supposed to be added for a listing are the restaurant’s name, the city in which it is located, and whether or not the applicant/sis/are the owner or manager of the said location.

If any restaurant isn’t found on Zomato Listing, the owner or the user can follow the given steps:

Step 1: To feature a particular restaurant under Zomato, visit the Add Restaurant Link and fill the registration form with the restaurant name and mention phone number & city etc.

Step 2: Thereafter click on Add Restaurant to add the restaurant to the Zomato Listing.

There are additional requisites and fields to be filled out, they are all optional. However, providing as many details as possible could obviously help current and future customers. A number of these optional details include the following:

  • Address/landmark
  • Map coordinates of the restaurant
  • Payment options
  • Cuisine served
  • Hours of operation
  • Services provided (Lunch, Dinner, Nightlife, etc.)
  • Seating availability (if available, specify whether it is indoor or outdoor)
  • Contact information 

As one submits the form, an executive from Zomato will collect all the documents PAN Card, Copy of FSSAI registration, Aadhar card, pictures of restaurant &etc. A proper verification later, the name of the restaurants are added to Zomato Website.

Register Restaurant with Zomato business app?

Step 1: To get Zomato restaurant registration for the Business app, visit the Zomato app link for business.

Step 2: Search your restaurant within the search bar provided on the site to verify whether the restaurant is listed on the Zomato app or not.

If the restaurant is listed within the Zomato listing then click on it to claim the listing.

In another case, (if a restaurant isn’t available on Zomato) then Add Restaurant to Zomato business listings by following the steps mentioned within the ‘How to Add Restaurant on Zomato’ section.

Step 3: Post adding and claiming the restaurant scroll down below and go to the Business page where a registration form will be available.

Step 4: Fill the form out by mentioning the restaurant name, the owner’s name, contact number, e-mail address and locality. Then click on Submit.

Step 5: After successful submission, an executive from Zomato will contact the restaurant to verify the details provided. On verifying the account, Zomato for a business account will be activated.

Zomato business app

  1. Before using Zomato for Business App, claim the listing.
  2. Download the app and log in by claiming the listing.
  3. Start managing the restaurant directly from any device.

The registered partner can achieve the following with the Business App.

  • Answer to reviews directly and also get real-time notifications.
  • Manage and update your listing’s information online directly through your device.
  • Promote your business with promos on Zomato.
  • Upload your special menu directly through the app.
  • Promote any events like musical events, food festivals etc. that are hosted in the restaurant.

Guidelines for restaurant

Restaurant name

Users of the app search for and identify the places in order to eat or order by using Restaurant names.

  • Names of the restaurant must be written on Zomato as they seem to appear on the board of the restaurant.
  • Restaurant establishment types and also taglines (unless the name of the restaurant is registered with its tagline) shouldn’t be mentioned along with the name of the restaurant on Zomato.
  • No restaurant abbreviations in the restaurant name are accepted on Zomato.

Restaurant address

The restaurant address is to guide the diners and delivery assistants to the restaurant.

  • The address of the Restaurant shall be in a very standardized format in order to be easily understood by the users and for consistency.
  • Adding more than one landmark shall be avoided, and there shall be no use of abbreviations.
  • Adding other restaurant names as landmarks can affect searching results for any other restaurant.

Restaurant features

A diner looks for a particular facility when deciding about where to dine or get delivery from. These are called attribute tags on Zomato.

  • The Pure Veg (no meat and egg) tag is used for restaurants that serve only vegetarian food
  • The smoking Area tag is marked only for restaurants that have a separate smoking area as well as a non-smoking section.
  • Happy Hours are exclusively for restaurants that serve alcohol and that offer special offers or discounted rates during a period in the day.
  • Wi-Fi Available is marked if the diners can use Wi-Fi services at the restaurant and not only by the management.

Business hours

The operational hours of a restaurant are added so that the customers can plan up their visits at a convenient time and in accordance with the restaurant timings.

Photos

A photostream of any restaurant gives diners/ customers an idea about what to expect from a restaurant in terms of ambience, service, and food.

  • Food shots are the images of food curated by the specific restaurant
  • No images with people in the frame shall be put up.
  • Ambience/food shots that are stock images, or taken from Google Images/other websites is put up, as that would be copyright infringement.
  • OnlyJPEG and PNG file formats for photo uploads are supported.
  • A single image can only contain a particular single photo. Photo collages shall be avoided.
  • The Images where logos and social media handles take up a significant portion of the image are not used to avoid the notion of promoting restaurants.

Menus

Diners/ customers rely more on the menus on Zomato when deciding where to eat or what to order, and also to know how much it might cost them.

  • Only the relevant portion of the restaurant’s menu should be kept on the page
  • Order for menu pages shall be maintained similar to the way a customer would read through a menu: [Appetizers/soups] — [Entrées] — [Main course] — [Desserts]
  • Putting up menus without prices should be avoided as it affects a user’s decision. The menu must definitely include the names of all the dishes and their prices along with it, as it helps users get an idea of how much they will spend at that particular restaurant.

Conclusion

New entrepreneurs running restaurants through Zomato can initiate their small business and make some profit as Zomato is a great platform for diners/ customers to find their restaurants. People who are especially trying to establish their businesses can try this method to enter the market. Zomato is that platform that is used by so many people around the globe. By adhering to Zomato’s registration policies and requisites, one can register their restaurants and let the people know about their ventures.  

References

  1. https://www.zomato.com/blog/h1-fy2020-report
  2. https://www.zomato.com/blog/annual-report-19
  3. https://www.zomato.com/blog/wp-content/uploads/2020/07/ZOMATO_AR_FY2020_Q1FY211.pdf?update=1
  4. https://fssaiindia.in/fssai-food-safety-license-registration-for/zomato/
  5. https://www.reviewtrackers.com/blog/zomato-restaurant-registration/

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Analyzing the human rights aspect of holding a mentally ill person in detention against their will

By
Bushra Tungekar
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0
Image source-https://rb.gy/yhxj95

This article is written by Ms Aporva Shekhar from KIIT School of law. This article is an analysis of the rights of mentally ill people and how involuntary treatment affects these rights.

Introduction 

To date, researchers are working on figuring out the secrets of the human brain in hopes to find lasting solutions to mental illnesses, but till then mentally incapacitated individuals require the protection of the modern welfare State to secure their interests. For the larger part of our history mental disabilities have been overlooked and afflicted individuals have fallen victim to abuse and torture. 

Even with significant strides in the field of policy formulation with respect to the protection of such individuals, the main focus of such policies has mostly been the custodial aspect. The first major development in shifting the paradigm was the adoption of the 2006 UNCRPD (United Nations Convention on the Rights of Persons with Disabilities) which focused more on the human rights aspect as opposed to social welfare which was the norm for past legislations. 

With the subsequent ratification of the abovementioned Convention in 2008 by India, all old legislations like the Mental Health Act, 1987 and the Persons with Disabilities Act, 1995 were revised and the Mental Health Care Bill was passed by the Lok Sabha in August 2016, which adhered to the standards of the abovementioned Convention.

Human rights of individuals with unsound mind 

Mental health is still a controversial topic in our society and individuals with unsound minds are often subjected to humiliation and social exclusion all their life. Such individuals that require more medical attention and care are mostly dependent on the State to secure their rights.

While there are several safeguards to prevent the violation of human rights, crimes against the rights of mentally incapacitated individuals usually go unreported and unheard which makes securing their rights even more of a challenge. Attainment of human rights for mentally incapacitated people is dependent not only on reforms in the public health system but also on several other factors.

The relationship between human rights and mental health

Public health policies and laws, in general, curtail many aspects of personal freedom when it comes to mentally incapacitated individuals. Even though the policies aim to protect the interests of the individuals suffering from mental illnesses, they essentially take away certain aspects of liberty that are guaranteed to most individuals. 

Despite best intentions, governmental authority is used to exercise restraint to deprive such individuals of basic rights in the name of welfare. But the main issue with respect to such provisions lies in the concept of mental illness itself, when an individual is unable to function in society as a reasonable and prudent person, it is the duty of the State to provide assistance to such a person.

It might be argued that mentally unsound people are unable to manage their own affairs rationally and might have a hard time integrating into society and hence they need protective interference into their life which might curtail their personal liberty. But the cost of such interference is the violation of human rights.

Mentally ill individuals are constantly stigmatized due to lack of awareness and might even face discrimination due to their mental health conditions in several aspects. Lack of awareness is the predominant reason for human rights violations that happen against mentally incapacitated people.

Current legislation governing the rights of individuals with unsound mind

Human rights and treatment of mentally ill individuals have always been intertwined as a treatment for the same often involves the imposition of restrictions on the rights of the afflicted person. Mental illness and its treatment have been mentioned in Ayurvedic texts, but most legislation governing the treatment of mentally ill people was formulated based on British counterparts. 

But the ratification of the UNCRPD by the Indian legislature in May 2008 paved the way for disposing of these archaic laws. The Convention provides for equality in all aspects of life by virtue of Article 2. Article 3 provides for the adoption of appropriate measures to enable individuals with mental incapacity to exercise their legal rights. Article 4 also requires the adoption of relevant safeguards to prevent the abuse of the existing support system but the convention does not explicitly prohibit forced interventions. However, it also does not mandate compulsory mental health care.

Due to the ratification of UNCRPD, all the existing laws governing mental health are currently undergoing revision as it is one of the requirements of the convention. It states that an effort should be made to formulate laws adhering to the principles enshrined in the convention. The Mental Health Care Bill, passed on the 19th of August 2013 by the Rajya Sabha, takes the rights of mentally ill individuals into special consideration. Chapter V of the abovementioned Bill contains provisions related to the rights of mentally ill individuals, containing six sections from Sections 18 to 28.

Chapter II of the same Bill contains provisions, Sections 3 and 4 that lay down the basis for the identification of mental illness and the capacity to make treatment decisions. Chapter XII of the Bill also contains provisions relating to admission and treatment, Section 85 of the Chapter recognizes that admission needs to be voluntary in nature. But it also states that supported admissions into mental health institutions may be allowed when situations make it unavoidable.

Detaining mentally ill individuals against their will : is it an infringement of human rights 

While most laws in the application currently advocate for fair and equitable treatment of mentally ill individuals, provisions for supported admission to mental health care institutions still exist. The WHO (World Health Organisation) reports that around 64% of countries do not even have an applicable law governing and protecting the rights of mentally ill individuals. 

Due to a lack of appropriate mental healthcare framework in some countries mentally incapacitated people are often confined and restrained in prisons and other dilapidated institutions. Even in psychiatric institutions, human rights violations may occur in the form of forced seclusion, restraints, and abhorrent living conditions within the institutions.

Competence and capacity of mentally ill individuals and its consequences

Two important terms that determine the issues with reference to rights and liability in civil and criminal cases are ‘competence’ and ‘capacity. The term ‘competence’ is a legal concept and it refers to legal consequences of a person’s mental capacity and the word ‘capacity is health-related and refers to the existence of mental abilities to be able to engage in an activity or take decisions. 

The general presumption is that the presence of capacity consequently draws the inference of competence, and even though the individual is mentally ill they are qualified to make their own decisions and are free to enjoy their rights. No person who is capable and competent should be detained against their will otherwise it will result in a violation of their human rights. 

The statutes that govern mental health care in countries stress the importance of voluntary decision making with respect to treatment and personal affairs. Interference in any of the mentioned aspects is only permissible when the afflicted person is not competent enough to take care of their own affairs. In such a situation the afflicted person may be assisted by others in making healthcare decisions and managing their personal affairs in their interest. 

But when the person is competent enough to understand information regarding their health care and manage their own personal affairs, they cannot be forcefully admitted to any mental healthcare facility. A competent person retains autonomy in making their own decisions and exercising their rights.

Assessment of competence and capacity

The existence of serious mental illness does not by itself disqualify the person from being competent. The determination of competence and capacity is mostly function-specific and it may fluctuate. It needs to be assessed with respect to a specific task, time or specific function or decision. 

Laws governing mental health care mandate that the incapacity of an individual can only be determined by a licensed health professional of that field. Consequently, based on such findings and other associated factors, a judicial body may deliberate and determine the incompetence of individuals.

Mental healthcare legislations stress the importance of free and informed consent in case of admission and treatment, but in cases where a person is mentally incapacitated to the extent that they are unable to give their consent but neither are they competent enough to oppose, decisions are taken on their behalf for their wellbeing by their guardians or the State.

Issues related to involuntary admission and treatment

In case of involuntary admission or treatment, a mentally impaired person who has been admitted to a mental healthcare institution may be detained longer for treatment by a qualified mental health practitioner if they feel that the release of the afflicted person might result in an imminent threat to the society or the person themselves. An involuntary admission can only take place if all the prerequisites are satisfied. 

In such situations, there is no free and informed consent given by the afflicted person but rather in their interest a proxy consent may be given by the guardians, representative or family members. One might argue that in the absence of free and informed consent such an intervention would result in the violation of the human rights of the afflicted person. But in cases where a person has deteriorated to such an extent that they might become a threat to themselves, other external interventions become necessary to safeguard their interests and others’. 

The involuntary admission might not be the main reason for violation of human rights, as it is done in the best interests of the patient, but seclusion, unauthorized surgical procedures and inhumane treatment within mental healthcare institutions are the main violators of human rights.

Possible solutions 

Involuntary admission is a necessary intervention done considering the interests of the patient and might not be a violation of their human rights as access to health care is important but often the consequences of involuntary admissions might result in some violations of human rights.

Due to the lack of awareness and inadequate mental healthcare infrastructure, the right to treatment and care of afflicted persons gets affected. Unable to secure effective treatment and support, they are often discriminated against and are vulnerable to other crimes. The promotion of human rights in conjunction with mental healthcare is the only way to attain security for mentally incapacitated individuals by:

Spreading awareness about mental health and associated issues

Technological advancements have placed knowledge at our fingertips but many still remain unaware of the problems plaguing the mind. Mental illness is still a controversial topic and due to ignorance people might ostracize a person who is in need of care and support. The government should organize awareness programs to educate more and more people about mental illness so that they might help such people. Rights organizations and NGOs should join the effort and organize and advocate for the rights of mentally ill people.

Reinforcement of mental healthcare infrastructure

To create a robust mental healthcare and support system for mentally ill individuals, adequate investment is needed. Governments need to make it a priority to allocate budgetary allowances for the healthcare sector to focus more on mental healthcare. In addition to financial aid, the mental health care sector also needs trained professionals and other workers who can provide the care and treatment required to such individuals and the promotion of good recovery methods and respect for human rights.

Community care over mental health care institutions

It has been proven that patients flourish more with connection and interaction with friends and family. Institutions are often associated with malpractice and human rights violations making the patients even more apprehensive to treatment that they might be given there. Isolation and monotony only add to the woes of treatment, and as such treatment would be more effective when the patients are willing and not averse to receive it. Such a measure would ensure that afflicted individuals enjoy all the same opportunities of life that others enjoy, without being locked up in an institution.

Supporting people with mental conditions and their families

In order to promote equitable rights for mentally ill individuals, governments should empower organisations, families and afflicted people. People who face the problem firsthand are in a better position to highlight the issues. Only they can effectively and accurately convey their needs and help find solutions to problems plaguing them. Laws and policies can be formulated more effectively with their recommendations which would protect their rights and prevent violations. 

Implementation of regulations and compliances to improve mental healthcare

Regulations and compliances should aim to improve the conditions prevailing in healthcare institutions that result in violations of human rights. A framework should be established to assess the conditions prevailing inside a mental healthcare institution to prevent violations of human rights. Such actions would ensure that healthcare institutions honour their duty to provide the care and support required by afflicted individuals.

Conclusion 

Humans are social animals and hence we are dependent on one another for survival. In a modern scenario, individuals who are unable to take care of themselves due to mental incapacity are dependent on others to secure their rights. Due to lack of adequate mental healthcare infrastructure many mentally incapacitated people become vulnerable to human rights violations.

Even with several laws safeguarding the rights and interests of mentally incapacitated individuals they still fall victim to crimes. Involuntary admission to mental healthcare institutions does not violate their right as much as the subsequent unauthorized treatment and seclusion might do. The right to healthcare is guaranteed to everyone and mentally ill individuals require care and support the most.

References

 

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Delhi Chief Minister’s Advocates’ Welfare Scheme

By
Sneha Mahawar
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0
Advocates
Image Source: https://rb.gy/fh5hju

This article is written by Priyanshi Soni, a student of Symbiosis Law School, Noida. This article seeks to highlight the legal loophole in Chief Minister’s Advocates’ Welfare Scheme which was tackled by the Delhi High Court in a petition which was brought before it. 

Introduction

In a laudable move by the state government of Delhi, a scheme was rolled out to give maximum benefits to the advocates of the state. The government made a provision of Rs. 50 crores budget for lawyers. The registration process is also rather very simple. There is a lot of competition and hardships for advocates nowadays and this necessitates the need for protection and benefits. Thus, the CM Advocates’ Welfare Scheme brings up benefits to the advocates and their family members. But does this scheme have a rational nexus with the objective that it has to achieve? We will look into this aspect of the scheme, for which a petition was filed in Delhi High Court.

Chief Minister’s Advocates’ Welfare Scheme

CM Advocates’ Welfare Scheme was announced recently by the Chief Minister of Delhi, Mr. Arvind Kejriwal. This scheme came up after the formation of a Committee in December 2019 by the Chief Minister, headed by the President of the Supreme Court Bar Association Mr. Rakesh Khanna. The Committee had 13 members who were advocates and were given the responsibility to formulate schemes that will benefit the advocates of Delhi. The Committee recommended that those who are enrolled with the Bar Council of Delhi, subject to cross-checking by Bar Associations they are associated with, which includes the Supreme Court Bar Association, The Delhi High Court Bar Association, NCLAT, NCLT, etc., and those who have voter ID cards i.e, should be enrolled in the voter’s list and for that, it requires them to be a resident of Delhi, should only be eligible to take the benefits of this scheme. This was a controversial clause. 

Along with the CM Advocates’ Welfare Scheme, the Committee also rolled out Rs. 50 Crore in the budget in honor of the advocates for their great contribution towards society in general. This wonderful step by the state government received widespread admiration. 

The Committee gave a compiled set of 4 recommendations finally to the Chief Minister which included – Group (Term) Insurance, Group Medi – Claim, e-library, and creche facilities, which we will now see in detail. 

Key points

  1. The government of Delhi came up with the CM Advocate’s Welfare Scheme to benefit the advocates of the state who are registered with the Bar Council of Delhi and have voter ID cards in Delhi.
  2. The registration will be done through the website of the Department of Law, Justice, and Legislative Affairs. It is fairly simple. 
  3. The scheme violates the rule of equality before the law and in this regard, a petition was filed challenging the discriminatory clause, it was then decided in the favour of the petition, and benefits are now extended.

Group (Term) Insurance

As per the proposal by the Committee in cooperation with the Life Insurance Corporation of India (LIC), every practicing lawyer in Delhi will get a life term insurance of Rs.10,00,000. The Law Ministry of National Capital territory will be the nodal agency for the same and will have authority to negotiate the premium in the future as the LIC rates are very competitive. 

As per the data provided by BCD, there are 40, 115 advocates who will benefit from this scheme. 

Group Medi-Claim

The Committee recommended providing medical coverage to all Delhi-based lawyers and their families through a group medical plan provided by any insurance company. The Committee has suggested considering the offer of a group medi claim policy of Rs. 8,500 adding GST  for the advocate, spouse, and 2 children up to the age of 25 years. 

E-Library

The Committee in the said scheme has also recommended making facilities for e-library in 6 district courts of Delhi namely Tis Hazari Courts Complex, Karkardooma Court Complex, Patiala House Court Complex, Rohini Court Complex, Dwarka Courts Complex, and Saket Court Complex. This was suggested on the backdrop of poor working facilities in libraries there. It pointed out that lawyers require extensive legal research to be done and thus accessing all the case laws, sections and other legal material should be hassle-free. The Committee thus proposed setting up 10 computers each in these district courts with e-journals and all the legal databases such as SCC Online, Manupatra, All India Reporter, and others, with printers.

Creche Facility

There is a provision by the Committee to provide a creche facility for free in all 6 districts for all the female advocates and female personnel employed by lawyers. It is recommended that LIC Corporate Social Responsibility (CSR) will be used to administer these creches and if they are unable to do so, then the government will do this with their expenses, like the Supreme Court of India’s. 

The registration process for the scheme

All advocates who are registered with the Bar Council of Delhi and are enrolled in the voter’s list of Delhi i.e. who are residents of Delhi are eligible for registration under this scheme. Registration was started from 21st March to 31st March 2020.

Steps to be followed 

  1. Open the official website of the Department of Law, Justice, and Legislative Affairs.
  2. Click on the link which asks you to fill the form and then the form will be visible.
  3. Fill in the required details asked in the form.
  4. A verification preview will come up for the information filled in.
  5. Then an OTP will be received after submitting the form and then after submitting the OTP, registration will be done.
  6. Thereafter, the advocates will receive a unique ID number on the registered numbers/mail IDs.  

The petition before the Delhi High Court

Legal practice in Delhi and NCR region/neighbouring areas 

The primary issue raised in the petition was regarding legal practice in the Bar Council of Delhi. The scheme mentioned the benefits for advocates practicing under the BCD but the clause restricting the benefits to the advocates practicing in Delhi and having voter IDs of Delhi raised a big legal question. Many lawyers resided in NCR/ neighbouring areas due to many personal reasons but even they are enrolled with BCD and thus, should be included in the scheme’s benefits. It is not legally correct to restrict the benefits of a scheme or sub-classify the scheme into a category among equals and the same was held by the court as well. 

Place of residence v. Place of practice – Whether the scheme can be restricted to advocates who have voter ID cards in Delhi 

Place of residence is not given importance in any of the provisions of the Bar Council of India Certificate and Place of Practice (Verification) Rules (2015), the Advocates Act 1961, and the Bar Council of Delhi Rules, 1963, as observed by the Court. It is the place of practice that is considered over the residence.

The Court further added that not every advocate can afford to live in Delhi and so they reside in NCR/Other areas including Noida, Gurugram, Gaziabad, etc., and commute to Delhi regularly to work. Even they contribute to the revenue of the Delhi government by practicing under the Delhi Bar Council. Thus, even they should be entitled to receive the benefits of this scheme. Otherwise, the objective of the scheme itself remains unfulfilled. It is not correct to restrict the scheme to only those who have voter ID cards in Delhi. 

Can the Court interfere in the policy-making of the government

As per the Government of National Capital Territory of Delhi (Amendment) Bill, 2021 (GNCTD), if the government wants to restrict any scheme to a subcategory of people, courts cannot interfere in the same. To this, the High Court held that policy decisions by the government are open to judicial review if found arbitrary and violative of the rights of the people and thus there is no hard and fast rule for the same.

Whether the sub-classification of advocates registered with the BCD would be permissible in law

Further, it was added that the sub-classification is arbitrary in this case and thus needs to be quashed. The Court also observed that GNCTD cannot impose such a classification based on place of residence on BCD advocates and not on its employees. The test of classification is done by fulfilling 2 conditions i.e., intelligible differentia and rational nexus and the objective behind. The objective of the government was the maximum benefit of the advocates of the state and the differentiation done based on place of residence for the same group of people is preferential and thus violates the rule of law and equality principle. 

Whether registration ought to be reopened to enable advocates who missed the initial deadline

It was also contended that the deadlines should be reopened so as to enable the advocates who missed the initial deadline to obtain the benefits of the scheme. The Court then asked to implement a new scheme based on the present judgment by 30th September 2021.

Petition by BCD in Delhi High Court seeking grant Of medical & term insurance

In 2020, during Covid-19, the BCD moved to Delhi High Court filing a petition seeking grant of medical services and term insurance to the advocates registered under the scheme. The court issued a notice granting the same within a 15 days period. The Council has submitted that over a month has elapsed since notification of the Welfare Scheme however it has not been implemented so far even though the insurance policies as promised under the scheme have become necessary to provide treatment to lawyers, particularly during Covid-19. As a result, it has requested that the Delhi Government provide funds and issue insurance coverage for Rs.5 lacs and Rs.10 lacs to 29,098 Advocates who are already registered under the Welfare Scheme.

Similarly, petitions were also filed by BCD seeking direction to the Delhi Government to implement the CM Advocates Welfare Scheme, especially during the taxing times of the COVID-19 pandemic.

Summarization of the relief sought 

  1. All those who were eligible to be registered under the scheme will get the insurance policies as per the scheme.
  2. Revoking the condition that those who have voter IDs will be eligible for the scheme and thus, in effect, extend the benefits of the scheme even to those residing in NCR/other areas provided they are enrolled with the BCD.
  3. To open the registration portal so that those who were unable to register can do it now. 5044 advocates are registered with the BCD but live in NCR/other areas. 
  4. Now since the budget crosses the funding limits of BCD, it should complement the fundings provided by GNCTD.
  5. Lastly, the Court added that the Law Secretary of the GNCTD and the Chairman Bar Council of Delhi should look into the working of the scheme.
  6. The Court then asked to implement a new scheme based on the present judgment by 30th September 2021, in consultation with BCD and insurance companies. 

Right to equality and the scheme

The equality principle is enshrined in Articles 14 to 18 of the Indian Constitution which says that equals should be treated equally i.e. nobody should be discriminated against based on caste, race, religion, sex, or birthplace. The state shall, thus, not discriminate or give any sort of preferential treatment to anyone or give anyone special treatment. However, it does not make a mention of equal treatment under the same situations. It is also mentioned in our Preamble. There are 6 types of equality – nature, social, civil, political, economic, legal. In the present case, there is a violation of legal equality. 

Rule of law states that nobody is above or below the law. Everyone is equal in the eyes of law. This rule of law comes from the Magna Carta and governs all the state organs and bodies. The rule of law in Article 14 is a “basic feature” of the Constitution and so cannot be violated. 

In D.S Nakara v. Union of India (1982), it was held that the clause which is differentiating between retirement age of prisoners is arbitrary and not dependent on a rational principle and thus violative of the rule of law. 

Concerning the scheme in question, the government cannot and should not discriminate on the grounds of the residence of the advocate. The scheme’s discriminatory clause that the advocates practicing in Delhi should also have voter IDs to avail the benefits of the scheme was quashed on the grounds of this principle. 

Conclusion

To conclude, the scheme is a great step by the state government of Delhi towards benefitting the lawyers of BCD as already, the competition remains high and facilities remain low. The discriminatory clause of the scheme was then quashed by the Delhi High Court, thus bringing relief to the lawyers who are residing in other areas than Delhi but practice under BCD. The same group’s people should not be discriminated against based on residence as this was duly acknowledged by the Honourable Court of Law. The Court’s decision on extending benefits to all the advocates of Delhi is very mindful. 

References

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Case analysis of Golden Tobie Private Limited vs. Golden Tobacco Limited

By
Oishika Banerji
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0

This article has been written by Samidha Hegde pursuing an Introductory Course to Legal Writing from LawSikho.

Introduction

Hon’ble Judges/Coram:

Jayant Nath, J.

Counsels:

For Appellant/Petitioner/Plaintiff: Kailash Vasdev, Sr. Adv., Priyadarshi Manish and Anjali J. Manish, Advs.

For Respondents/Defendant: Sumeet Verma, Vijay Kumar Wadhwa, and Maninder Pratap Singh, Advocates

The suit is one pertaining to an arbitration matter, a question involving Section 8 of the Arbitration and Conciliation Act, 1996 (Act), heard in the High Court of Delhi. 

The Plaintiff contended that the agreement between the Plaintiff and Defendant was terminated arbitrarily after having made significant investments into the business which disabled the Plaintiff from manufacturing and selling exclusive brands of Defendant in the market. While the defendants referenced the agreement and said the termination was well within the provisions of the agreement and cited the arbitration clause and sought reference of dispute to sole arbitrator.

The question was, whether the suit could be referred to arbitration in view of the existing agreement?

The bench was presided by Jayant Nath, J and the court held that the dispute in question was one related to the interpretation of the terms of the agreement and legality of its cancellation and therefore the right of the Plaintiff arose out of the contract and not from the statutory act and thus parties were referred to arbitration.

Facts

  • Initially, the Plaintiff entered into a Master Long Term Supply Agreement on 16/8/2019 by which the Defendant supplied exclusive brands of the Defendant to the Plaintiff “Golden’s Gold Flake, Golden Classic, Taj Chhap, Panama and Chancellor”. They exclusively sold, distributed, and supplied these brands in both domestic and international markets.
  • Later, on 12/02/2020 the Plaintiff entered into a trademark license agreement with Defendant. By this agreement, the Plaintiff was given exclusive non-assignable, non-transferable license to manufacture Defendant’s products at Plaintiff’s factory in Noida and to market and distribute it accordingly.
  • Plaintiff presented that, despite huge capital and operational expenditure including that for advertising and promotional schemes by Plaintiff to increase the availability of the Defendant’s products, Defendant on 14/8/2020, ignoring the prevailing pandemic, arbitrarily chose to terminate the license agreement.
  • Plaintiff further stated that the termination communication was withdrawn and a subsequent amendment agreement was entered into between the parties on 29/8/2020.
  • Thereafter, on 13/02/2021 the Defendant served another termination notice to Plaintiff for not having made timely payments as per the agreement. Defendant terminated the agreement dated 12.02.2020 and the amendment agreement dated 29.08.2020 with immediate effect and the Plaintiff was not allowed to manufacture and sell the exclusive brands of Defendant in the market from that point onwards. Hence the present suit was filed.

Issue

Whether the assignment of Trademark in the present case is arbitrable or not?

Arguments by the parties-

Plaintiff

  • Plaintiff contended that, as per terms of the agreement dated 12/02/2020, Defendant has assigned the trademarks in question in perpetuity to Plaintiff and the agreement cannot be terminated merely because there is a default in payment of royalty.
  • It is further pointed out by Plaintiff that pursuant to the agreement, the information was sent to SEBI and Trademark Registry. It is also claimed that based on the Agreement the Plaintiff has set up a factory in question and that the agreement cannot, therefore, be terminated. Furthermore, the transfer of trademark is in perpetuity and the dispute is a dispute in rem and cannot be referred to arbitration.
  • Plaintiff relied on the fourfold test laid down in the Vidya Drolia and Ors. vs. Durga Trading Corporation case, claimed that issue of patents and registration of trademarks are actions in rem and exclusively fall under government and sovereign functions and therefore have erga omnes effect. Such grants confer monopolistic rights, and they are non-arbitrable.
  • Further, Plaintiff claimed that the termination of assignment by Defendant touches upon the issue of registration of trademarks which is a sovereign function, and pleaded that the application by Defendant to refer the matter to arbitration under Section 8 of the Arbitration and Conciliation Act, 1996, be dismissed.

Defendant

  • The case of the defendants is that the trademark license agreement dated 12/02/2020 and amendment agreement dated 29/08/2020 that Plaintiff is seeking to enforce is determinable and could be terminated legally as per clause 8 of the agreement dated 12/02/2020 and clause 5 of the amended agreement dated 29/08/2020, and therefore the termination of the agreement via notice dated 13/02/2021 was valid.
  • Further, Defendant pointed out that clause 12 of the agreement dated 12/02/2020 provides for arbitration, hence the dispute between Plaintiff and Defendant be referred to a sole arbitrator as per the terms of the agreement of 12/02/2020 and amended agreement of 29/02/2020.
  • Defendant also relied on the judgment of a co-ordinate bench in Hero Electric Vehicles Pvt. Ltd. & Anr. vs. Lectro E-Mobility Pvt. Ltd. & Anr,  to point out that a co-ordinate Bench had rejected a similar plea with similar facts and circumstances as are presented by senior counsel for Plaintiff in the present suit.
  • Further relying on the judgment of the Supreme Court in the case of Vidya Drolia and Ors. vs. Durga Trading Corporation,  asserted that the present suit was arbitrable and liable to be referred to arbitration as per the arbitration agreement between the parties.

Legal provisions referred to in the case

Section 8 of the Arbitration and Conciliation Act reads as follows:

“8. Power to refer parties to arbitration where there is an arbitration agreement. —

(1) A judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists.

(2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.

Provided that where the original arbitration agreement or a certified copy thereof is not available with the party applying for reference to arbitration under sub-section (1), and the said agreement or certified copy is retained by the other party to that agreement, then, the party so applying shall file such application along with a copy of the arbitration agreement and a petition praying the court to call upon the other party to produce the original arbitration agreement or its duly certified copy before that court.”

(3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.”

Cases relied on 

In this case, the court dealt with the question of arbitrability of disputes. The court had propounded a fourfold test to determine arbitrability, and laid down the following conditions for a dispute being non-arbitrable:

“1) When the cause of action and subject matter of the dispute relates to actions in rem.

2) When the cause of action and subject matter of the dispute affects third-party rights and have erga omnes implication.

3) When the cause of action and subject matter of the dispute relates to inalienable sovereign functions of the state.

4) When the subject matter of the dispute is expressly or by necessary implication non-arbitrable as per mandatory statutes.”

The Supreme Court held in this case also held that registration, issuing, and granting of patents and trademarks are matters which fall under sovereign function and have an erga omnes effect. They grant monopoly rights and hence are non-arbitrable.

In this case, a similar matter was dealt with by the Delhi High Court, one of the parties to dispute objected to the application of arbitrability clause while relying on the Vidya Drolia Judgement.

The court held that in this case, the assignment of the trademark was resulting from the contract between the parties, while the registration of the trademark already stood. Thus the dispute arising was because of violation of contractual terms and not from the violation of the Trademark Act. Hence arbitration was allowed by the court.

These two cases laid down the framework for determining the arbitrability of disputes pertaining to intellectual property matters and clearly defined the ambit of Section 8 of the Arbitration and Conciliation Act.

What did the Court hold?

The court was of the view that while examining the aspect of arbitrability of the dispute in the exercise of its jurisdiction under Section 8 of the Arbitration and Conciliation Act, 1996, the court is exercising the very same jurisdiction that the Arbitral Tribunal is empowered to exercise, and therefore the court must ensure that jurisdiction under Sec 8 and Sec 11 should not be exercised in such a manner that would erode the authority of the Arbitral Tribunal to rule thereon.

The court examined the judgment in the case of Hero Electric Vehicles Pvt. Ltd. & Anr. vs. Lectro E-Mobility Pvt. Ltd. & Anr held that the dispute does not pertain to infringement of trademark by Defendant as a result of using deceptively similar trademark but rather that the right to use the trademark was conferred on the Plaintiff consequent to the agreement between the parties. The infringement as alleged by Plaintiff was not of the Trademark Act but of the provisions of the agreement in question.

The dispute which emanates out of the agreement between the parties was held to be arbitrable. Further, the court clarified that the controversy in the present case was not related to the grant or registration of trademarks as the trademark stood granted and registered. It was also held that the assignment of a trademark is by a contract and is not a statutory fiat. It does not involve any exercise of sovereign functions.

And therefore, the court referred the parties to Arbitration as per the Arbitration agreement.

Conclusion

The present case further reinforced what was established in the case of Hero Electric Vehicles Pvt. Ltd. & Anr. vs. Lectro E-Mobility Pvt. Ltd. & Anr that when a dispute arises as a result of an infraction of the trademark agreement between the parties the same cannot be alleged to be an infringement of the provisions of the Trademark Act and thus the rights arising out of the disputes cannot be claimed to be rights in rem. Registration of trademarks is part of sovereign function but licensing or assigning are done by the instrument of contract and rights and obligations arising from the contract are limited to the parties to the contracts and no rights are created vis-à-vis the whole world.

When an arbitration agreement exists between the parties and the cause of action arises as a result of the infringement of a provision of the contract between the parties and if one of the parties to the dispute wishes to refer the dispute to Arbitral Tribunal then the arbitration agreement cannot be ignored and an opportunity for the same must be provided and the court should not absorb the dispute as that would amount to usurping of the powers of the Arbitral Tribunal.

From this case, more clarity is given on when a dispute becomes non-arbitrable and the scope of what was held in the case of Vidya Drolia and Ors. vs. Durga Trading Corporation is further amplified so that the broad scope of the Vidya Drolia judgment cannot be misconstrued or misinterpreted to bypass the arbitration clause or arbitration agreement to approach the courts.

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Vision 2035 – public health surveillance in India

By
Rachit Garg
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0
Vicarious Liability in Medical Care
Image source - http://bit.ly/2mYMiT2

This article is written by Vivek Maurya from ICFAI Law University. The article deals with the Public health surveillance in India that is Vision 2035.

Table of Contents

About vision 2035 white paper

This is a vision statement of the public health surveillance in India in 2035. This document outlines the concept, outlines architecture, describes the proposed flow of information, lists key questions and considerations needed to increase the scope of public health surveillance in India, outlines four building blocks, and outlines possible steps to achieve the vision.

The vision statement briefly describes India’s progress in public health disease surveillance and builds on the existing experience of public health monitoring programs by focusing on federal-based federalism management, promoting the involvement of national governments, and using the bottom-up approach. It is in line with inclusive growth and sustainability and the targets set out in the 2017 National Health Policy.

The focus is on universal health and health-focused care that is sensitive, effective, safe, convenient, and dignified as well as confidentiality and increased awareness to include non-communicable diseases, employment, injuries, and environmental conditions in a single public health care system.

This vision statement of India’s public health surveillance in 2035 builds on opportunities including the Ayushman Bharat program that establishes health and wellness facilities at the community level – strengthening disease prevention, detection, and non-compliance and ensuring that the government pays for medical expenses out of pocket money for individuals and families below the pyramid. Key features of the vision 2035 are:

  1. Build on efforts like the IHIP Integrated Disease Control Program.
  2. It is in line with the citizenry values ​​highlighted in the 2017 National Health Policy and the National Digital Health Blueprint. It promotes the use of mobile and digital platforms and point-of-care devices as well as integrated diagnostics and data analysis.
  3. It highlights the importance of spending money on programs such as The Clinical Establishments (Registration and Regulation) Act, 2010 to increase private sector involvement in monitoring.
  4. It highlights the importance of a concerted effort by higher institutions including the National Centre for Disease Control, the Indian Council of Medical Research, and others. Also, there may be a need to establish an independent Institute of Health Informatics.

NITI Aayog

NITI Aayog was established in 2015 by the Government of India as a policy think tank. Its purpose is to achieve the sustainable development goals through co-operatives, to promote the involvement of the State Government, and to implement a complementary approach. Recently, the Government of India launched a program to review Public Health Surveillance.

NITI Aayog has released a white paper, “Vision 2035: Public Health Surveillance in India” which is expected to serve as a vision statement for promoting Public Health Surveillance (PHS) in India and establishing India as a global leader in the region. The white paper is a piece of information, usually issued by a non-profit company or organization, to promote or highlight features of a solution, product, or service.

This paper is a joint effort of Vertical Health, NITI Aayog, and the Institute for Global Public Health, University of Manitoba, Public Health Agency of Canada, with donations from technology experts from the Government of India, the United States, and international organizations.

Public health surveillance

Public health surveillance is a surveillance for monitoring of health related data so that a country can plan and implement policies against any diseases. It is very important for any country, so that they can minimise the effect of any disease and can eradicate it.

What is public health surveillance

Public health monitoring (also for diagnostic, clinical, or syndromic screening), according to the World Health Organization (WHO), is a continuous, systematic collection, analysis, and interpretation of health-related data needed for the planning, implementation, and evaluation of public health services. Emerging health-related issues are still young and practical solutions are available in a timely manner. Monitoring programs are often requested to provide information on when and where health problems occur and who is affected.

Public health monitoring systems can be implemented or operational. The idle monitoring system contains continuous reporting of diseases and conditions by all health facilities in a particular area. An effective monitoring system is where health facilities are visited and health care providers and medical records are updated to diagnose a specific disease or condition. Slow-duty monitoring systems are time-consuming and costly to operate but risk exposure to other diseases. Effective surveillance systems are best suited for epidemics or when the disease is intended to be eradicated.

Public health screening techniques have been used primarily to study infectious diseases. Many large institutions, such as the WHO and the Centers for Disease Control and Prevention (CDC), have developed state-of-the-art data and computer programs that can track and monitor outbreaks of diseases such as influenza, SARS, HIV, and bioterrorism.

Why is it important

Public health employment is an important public health profession that cuts across the entire three-tier public health system and the care provided. Monitoring is an ‘information for action’ and is an important means of diagnosing, preventing and many other activities such as:

Health screening

All data collected reflects people’s health. Public health employment keeps records of existing health problems and helps define death and illness.

Detecting changes in disease trends and health practices

Ongoing recording of data informing disease status keeps track of disease. Monitoring also helps to determine the natural history of the disease.

Data collection, monitoring and evaluation

The required data for planning, monitoring and evaluation is provided for consideration, is the basis for evidence-based policy development and assists the program builder in prioritization. It is also helpful in evaluating the effectiveness of an intervention.

Early warning and outbreak detection

Public health monitoring informs you about the disease and all the details also help in diagnosing the disease, which helps prepare for the epidemic.

Simplifying emergency planning

Public health monitoring helps provide a measure of the health problem and assists in emergency planning.

India’s current public health surveillance system

The World Bank funded the Government of India in 2004 with its ten-year ‘Integrated Disease Monitoring Program – IDSP’. This was later converted into a program and funded under program 12 (2012-17) within the National Health Mission. The IDSP Central Surveillance Unit was held at the National Centre for Disease Control (NCDC), New Delhi.

The Indian Council of Medical Research (ICMR) has played an important role in strengthening observational and research-related research. The ICMR network continues to expand and currently has 106 Virus Research and Diagnostic Laboratories (VRDL), 35 diagnostic centers and many tertiary institutions. Together, these institutions play a key role in identifying new and varied viruses, controlling emerging diseases (SARS, Nipah virus) and measuring the burden of disease through the modeling of statistics for diseases such as malaria and dengue fever.

In 2019, the World Health Organization (WHO) in partnership with the Government of India launched the Integrated Health Information Platform (IHIP) within the IDSP program. IHIP is an open digital platform that captures individual data in real time, generates weekly and monthly outbreak reports and early warning signs and takes feedback with ‘rapid response’ groups on 33+ disease cases.

Some sources capture information on some of the most important national diseases such as TB. TB became a popular disease in 2012 and the Nikshay platform serves as a source of information for measuring load and tracking styles and outcomes of diseases. Towards the end of 2019, the COVID-19 epidemic provided additional impetus to strengthen Public Health Service in India.

Over the years, these various organizations, networks and programs have worked well. Smallpox was eliminated in India in 1979, a year before the global epidemic broke out. India was declared ‘Polio free’ in 2014, three years after the last convictions in India in 2011. The SARS, Nipah and rotavirus epidemics were quickly detected by effective viral testing and the ICMR network of diagnostics was successfully managed.

The ICMR network plays a key role in preventing the COVID-19 epidemic. The epidemic has expanded government of India information infrastructure and health information data for consideration, which is reflected in ‘performance information’.

new legal draft

Key aspects of the vision 2035 white paper

Monitoring is defined as the primary public health function that ensures that relevant information is available at the right time and place to inform public health decisions and actions. In short, the observation should be “information for action”.

The key elements of the 2035 white paper vision are:

  1. Be a predictor of response, integration and testing of a disease and health monitoring system that includes the most important emerging and recurring infectious diseases. Readiness to take action in the community, institution and health as well as in governance systems are key elements of the response.
  2. Be a program based largely on individual patient identification information that includes a health care facility and laboratory data as key sources, among others.
  3. It is governed by an effective management and technology framework with adequate resources.
  4. Assist the public with the provision of meaningful ‘details of performance’ to relevant stakeholders with proper privacy care and personal privacy, and empowering them through a client response process.
  5. Provide regional/international leadership in accordance with international health regulations and events management that creates an international public health emergency.

Factors fuelling vision 2035

Apart from the great progress and strength of having an expanded and improved Public Health Surveillance Program in India, there are many challenges to the existing Public Health Surveillance that creates a 2035 vision:

Performance challenges – curved view, not complete

India needs to address these implementation challenges, be aware that relevant diagnostic and therapeutic information provided to citizens across the public and the private sector can be taken for granted. In addition, a way to modify, measure and maintain new driver/design models is urgently needed.

Monitoring activities on standing platform of programs and institutions

Vision 2035 anticipates that surveys will require the completion of traditional data entry systems based on the performance of a specific system, in obtaining real-time data from existing health records compiled using Unique Health Identification. Programs can be enabled to exchange transparent and secure data based on standard protocols, determined by integrated governance constructions.

Private sector involvement in monitoring is limited

Citizenship centrally Electronic Health Record (EHR) process in which a citizen receives the benefit of his or her health record from birth to death renewal in both the public and private sectors will facilitate real-time monitoring and quality and ensure full human inclusion. Provision of care becomes a major goal where surveillance can work.

Insufficient communication of illness and death details

The Reproductive and child Health (RCH) program has recently begun to focus on improving maternal and maternal mortality reviews so as to identify potential impacts and potential solutions to inform health service delivery and prevent future deaths. However, monitoring of maternal mortality, childbirth mortality, infant mortality, linking mortality and morbidity reports have not yet been fully integrated. The information contained in this important registration process has not been shared / linked to IHIP.

Staff challenges:

The recruitment of state and regional monitoring staff has been transferred to countries, however, the response of countries to address these vacancies is different. Health is a topic from the government, and health surveillance is a national right. Staff vacancies and staff capacity continue to plague the program.

Public health capacity training

There are many examples of training programs for community health professionals especially in the field of care. For example, the United States Epidemic Intelligence Service through the Center for Disease Control (CDC) is conducting a two-year Masters in Public Health on Epidemic Intelligence Service to develop a highly trained and skilled pathology field. India does not have enough public health professionals with this technology.

Limited use of digital, social and print media in viewing

Communication and printing resources are increasingly being tested for use. A few states in the country have media scanning cells or media promotion methods that help highlight disease outbreaks, or help identify a sudden increase in hospitalization or death due to a rare event.

Limited focus on the management of non-communicable diseases

Non-communicable disease (NCD) screening was introduced in most developed countries about 35-40 years ago. India suffers from both the burden of non-communicable and infectious diseases. ICMR has played a key role in improving the diagnosis of diabetes, heart disease and cancer rates. However, comprehensive integration of NCD risk assessments, morbidity and mortality statistics, as well as injury and accident monitoring, air pollution and its implications remain to be considered.

Separate and minor approaches to occupational health surveillance

Many employees in the legal profession have health insurance that covers the cost of hospitalization. However, apart from these advances and the availability of occupational health data from these sources, Occupational health surveillance is not an integral part of India’s Public Health Survey. Silicosis is a common disease under The Factories Act, 1948 but it has not yet been included under the Public Health Act. Many doctors have little training for health and disease at work.

Challenges to creation and implementation of vision 2035

Some of the key ideas in implementing Vision 2035 Public Health Employment in India are outlined below. Concerned stakeholders including policy makers and the government will need to address these questions in order to formulate and implement the vision of public health employment by 2035.

What could be the principles of public health monitoring

  • Predicting and preparing for an outbreak of infectious and outbreaks of non-communicable diseases, both diseases re-emerge in various forms (influenza, MDR-TB), or new outbreaks (NIPAH virus, Coronavirus, etc.,) or a new focus on NCD.
  • Health promotion and prevention tips: Identify new/hidden dams and sources of infection, prevent rapid transmission chains and reduce illness, disability or death.
  • Responding to outbreaks and future guidance systems for disease control: Include general procedures for a) showing results beginning with molecular testing, b) digital results and final action in real-time, c) generating genetic mapping to identify pathogen variability or potential manager.

What are the next steps to follow

  • Priorities: Can this include chronic and difficult conditions, especially in the context of health, the environment and health? Is it possible that sections of the community, institutions and system-level including seeking health care and social health structures can be included within Surveillance?
  • Staff identification and capacity building: How do we ensure that we have a community health cadre dedicated to local, regional, government and national levels, with adequate numbers and integrated renewable skills?
  • Landscaping and strengthening laboratory capacity: How can we increase laboratory capacity in the public and private sectors? How do we strengthen point-of-care diagnostics, self-assessment agreements and referral networks to reduce the time taken to produce reliable, valid and useful diagnostic or diagnostic results for the patient and provider? How do we ensure that laboratory results are well integrated with relevant clinical and social knowledge that contribute not only to better patient care but also to community health services?
  • Developing and promoting technologies and methods: Is it possible to have advanced scanning early warning signs using platforms such as WHO, PROMED and others? What is the role of communication? How do countries quickly learn how to prevent, respond to and act according to the experience of new outbreaks in a different part of the world? How do we ensure that ‘big data management integrates Artificial Intelligence and machine learning into surveillance platforms’?
  • Integration and management: Policy, technology, administration and digital?

How can Public health surveillance utilize existing talent and platforms

  • Digital health intervention;
  • Integrated Communication Technology; and
  • Scientific, technical, social and business platforms.

How can we regularly collect individual patient data to create human-based data sets

  • Unique health indicator;
  • Integrated health / Medical record;
  • General data sharing agreements;
  • Interaction between programs and systems.

Can public health monitoring integrate different sources of analytical data, and how do we ensure that feedback takes place between sectors

  • Statistics of plants, animals and human diseases;
  • Natural indicators;
  • Economic details.

What is the Federal National Implementation Architecture

  • Governance and cooperative federalism.
  • Data capture: Metadata, data levels, case descriptions, data protection, etc.
  • Methods of patient care and continuing care: Individual, Family, Disease, etc.
  • Open input/output methods: Call center, India’s health portal, health programs, insurance.

How does Public health surveillance increase access to data for relevant stakeholders to include all stakeholders while ensuring the required patient confidentiality

  • Public / public access;
  • Acquisition of intellectual property;
  • Apex Centers for the promotion of research on diagnosis and vaccination;
  • Large data publishing and data analysis;
  • Business development of multiple electronic manufacturers.

What diseases can India look for in ending by 2030 and what could be the path to removal

  • The WHO has provided a list of diseases that are intended to be eradicated by the WHO. How can India use this list to define their list of diseases and timelines for disease eradication?
  • The eradication of disease seems to be the most difficult goal and so far only achieved smallpox. However, with so many diseases set to be eradicated by 2030, can the disease eradication agenda also be defined? For example, many developed countries today are confronted with an epidemic of syphilis and other sexually transmitted diseases, which were previously eliminated.

Conclusion

In conclusion, India’s Vision 2035 for Public Health Surveillance enoses the integration in the three-tiered health system, which strengthens public scrutiny, expansion of transmission networks, and improved laboratory capacity. Electronic Health Record (EHR) becomes the primary basis for observation and is subject to periodic national/provincial/regional screening, specialized studies and research in order to limit and redefine general definitions of cases, as disease patterns change. Monitoring does not depend solely on diagnostic or operational monitoring programs, although this may not always be an important aid to intelligence. The building blocks of this idea are an integrated Governance-based intergovernmental system, a new data allocation that is not based on traditional data entry systems but is based on existing diagnostic systems. Monitoring uses new analytics, health informatics and data science as well as new ways to disseminate ‘information for action’. This will also strengthen India to become a global/regional leader in Public Health Surveillance.

References

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Concept of gift and will : a comparative study

By
Rachit Garg
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0
Image Source: https://rb.gy/3aha8g

This article is written by Ishan Arun Mudbidri, from Marathwada Mitra Mandal’s Shankarrao Chavan Law College, Pune. This article talks about the difference between gift and will.

Introduction

Gifts and wills both are certain documents that are used while transferring some property from one person to another. Although both these documents are used for similar purposes, they are different from each other. A gift is more or less an immediate process that does not take much time to prepare whereas a will is more of a  thoughtful process that takes a longer time.

Concept of gift

A gift in its general sense means a form of reward or a  token of appreciation given at weddings, birthday parties, etc. In terms of law, however, a gift is considered as a transfer of ownership of property from one person to another.

Provisions of a valid gift under Transfer of Property Act, 1882

All the provisions of a gift are mentioned in the Transfer of Property Act, 1882. According to Section 122 of the Act, a gift is a transfer of movable or immovable property which is existing. These transfers should have valid consideration and must be done voluntarily. 

Essentials of a valid gift 

There should be a donor and donee

The person who transfers the gift is called the donor and the person who accepts the gift is called the donee. The donor should be a competent person and should have the capacity to enter into a contract. Whereas, the donee need not be competent to contract. The donee can also be a minor. A gift made to the general public is invalid but, the donee can be more than one person.

Transfer of ownership

The donor should be the absolute owner of the property and should show interest in the property. The donor should have a right to transfer the property.

Movable or immovable property

The property can be movable, immovable, or of any other kind. However, the only condition is that the property should be an existing property and should fall under Section 5 of the Act while making the gift. A gift of a past or future property shall be deemed void.

Acceptance of the gift

The gift should be accepted by the donee. Without acceptance, the gift shall be deemed void. If the donee is a minor or not competent to contract, then the gift should be accepted by a person on his behalf, for example, a parent.

Transfer without consideration

The gift should be given as gratitude. It should be transferred without any consideration. Any consideration given for the gift will be deemed as an exchange and not a gift. In Padam Chand & Anr. v Lakshmi Devi (2010), the Court held that a gift is a voluntary transfer of property and should be given without any consideration.

Provisions of a valid gift under the Muslim Law

Under Muslim law, a gift is known as Hiba. Hiba is not included in the provisions of the Transfer of Property Act 1882, it is governed by the Muslim Law. The Muslims can divide their property in various ways and one of those ways is through a gift which is known as Hiba. Hiba under Muslim Law is the immediate transfer of property from one person to another without any consideration. 

Essentials of a valid gift

In the case of P. Kunheema Umma v. P. Ayissa Umma (1981), the Court held that the valid essentials for an immovable property are, a declaration by the donor, acceptance by the donee, and the transfer of possession from donor to the donee.

A declaration by the donor

There should be an intention from the donor to enter into a gift. The gift can be of any means oral or written. The declaration should not be taken by coercion, threat, etc.

Acceptance by the donee

Under Muslim Law, the non-acceptance of a gift by the donee makes the gift void. If the donee is a minor, then the gift is valid but it should be accepted by a person who is a guardian of the minor. The guardians mentioned under the provisions of the Muslim Law are:

  • Father
  • Father’s executor
  • Paternal grandfather
  • Paternal grandfather’s executor.

Transfer of possession from donor to the donee

The transfer of Hiba should be from donor to donee. Under Muslim law, as soon as the gift is transferred to the donee and is accepted by the donee, the transfer becomes valid. The delivery of possession can be actual and constructive. The gift will be valid from the date of transfer to the date of acceptance of possession. Registration of transfer under Muslim Law is not necessary.

Types of gifts

The types of gifts are as follows:

Void gifts

Void gifts are those which are used for illegal purposes, made by a person who is incompetent to contract, which is comprised of future as well as existing property, and etc.

Inter vivos

Inter vivos is a Latin word that means, while alive. Hence such gifts are given during the existence of the donor.

Onerous gifts

Onerous gifts are those which are made with an obligation imposed on the donee.

Outright gifts

Outright gifts are those, which are free of any kind of restrictions.

Concept of will

A will is a legal document in which a person mentions how he/she is going to distribute the property after death. The Indian Succession Act, 1925, mentions the provisions regarding a valid will.

Provisions for a valid will under the Indian Succession Act, 1925

Section 2(h) of the Indian Succession Act 1925 states that a will is a declaration of the intention of a person with regards to his property, assets. The Act mentions provisions for the Hindus, Buddhists, Jains, and Sikhs. Muslims are governed according to the Mohammedan Law.

Section 59 of the Act mentions that a person who is of a sound mind and has completed 18 years of age can make a will. The Section further states that a person who is occasionally of sound mind or occasionally in an intoxicated state can make a will when he/she is in a sound and sober state respectively.

Section 72 of the Act mentions that the will should be written in such a way, that the intention of the person making the will should be known.

Essentials of a valid will

Legal Declaration

A will is a legal declaration of the person intending to distribute his/her property. It is not a contract or a settlement.

The intention of the testator

A testator is a person making the will. The will is a declaration of the desires or intention of the person to make the will. The will should be legal. The person making the will should not be threatened or coerced into making a will. This will make the will void and illegal.

With respect to the property

The testator can make a will of his or her own property. The person cannot make a will out of something which he doesn’t have.

Signature and details of beneficiaries

The will should be signed by the testator and the date of the will should also be mentioned. Further, the details of the beneficiaries of the will should also be mentioned. 

Property of minor

In case, a minor is a beneficiary, then he/she should appoint a guardian to take care of the property till the minor attains turns 18.

In the case of Gnanambal Ammal v. T. Raju Ayyar (1950), it was held by the Court that the main point of observation while making a will should be, the intention of the testator.

Provisions of a valid will under the Mohammed Law

A will under Muslim law is called Wasiyat. It is not governed by the provisions of the Indian Succession Act. Under Muslim Law, there is a strict rule imposed on making a will. A person is prohibited from making a will for his entire property . A will for only 1/3rd of the total property can be made by a Muslim. The will can be made for anyone. This rule was imposed to honor the word of Prophet Mohammad.

Essentials of a valid will

The capacity of the legator

The legator is the person who makes the will. Hence, such a  person should be competent to make a will, of sound mind, should have attained the age of majority, and should be a Muslim to make a will.

The consent of the legator

The person making the will should not be coerced or threatened to make the will.

Competence of legatee

The legatee is the person in whose name the will is made. This person should be capable of holding the property, can be a Muslim or Non-Muslim, and should be alive at the time of making the will.

Acceptance by the legatee.

There should be acceptance and consent of the person in whose name the will is made. The acceptance can be expressed or implied. Expressed acceptance means acceptance where the parties explicitly agree to an offer. Implied acceptance means where the parties have not mentioned their willingness to an offer but it is seen by their actions.

Formalities

No particular formality is required to prepare a will. The will can be oral, written, or in any other form. In the case of Abdul Manan Khan v Mirtuza Khan (1990), the Court held that no formalities are required while preparing a valid will.

Types of will

The types of wills are as follows:

Contingent wills

The types of wills which become on the happening of a certain event or contingent, are known as contingent wills. Such will become void on the non-happening of the event.

Joint wills

Joint wills are those which are prepared by two or more persons.

Concurrent wills

When a person writes two or more wills, one for the disposal of all the immovable property and the other for the disposal of all the movable property, such wills are known as concurrent wills.

Comparison between gift and will

Now that we have studied about a gift and a will in Hindu and Muslim laws, so what is the difference between the two.

Points of    Distinction

                A GIFT

        A WILL

Registration

A gift requires to be stamped and registered.

A will need not be stamped or registered.

Type

A gift is a transfer of property which is done immediately.

A will is a transfer of property which is done after the death of the person making the will.

Revocation

A gift deed cannot be revoked. The person to whom a gift is given becomes the absolute owner.

A will can be changed or revoked as long as the person in whose name the will is made, is alive.

Effect

A gift comes into effect immediately after it is prepared.

A will comes into effect after the death of the person making the will.

Nature

A gift is prepared by any person who is of sound mind and has attained the majority age.

A will is prepared according to the family as it is going to get distributed within the family.

Can both these documents be challenged

A gift can be challenged if it is proved that the gift was not as per the wish of the donor.

A will can be challenged if it is within 12 years from the date of the death of the person.

 

Conclusion

A will might create disputes among family members who are not mentioned in the will, in such a case a gift deed can be used. Similarly, a gift can be acquired immediately so it cannot be changed in that case, a will is a better option as it is not acquired immediately and can be changed. Hence, both these documents have their own pros and cons and are equally important for transferring the assets. So it is up to the executor to choose between these two.

References

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

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