Importance of limitation of liability cause in a vendor agreement

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August 2, 2021

This article has been written by Deena Nawab, pursuing a Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho.com.

Table of Contents

Introduction

With the growing need to fulfill business transactions between any two parties, a contract falls as a legal obligation. There are more signs of a written contract than an oral one. A contract to be specific must not be vague and must contain all essential clauses. A written contract varies based on the specific performance to be done. A written contract must include all the essential clauses, keeping in consideration the future consequences. The parties must consider, what will happen if things do not happen in accordance with the general terms and conditions in the contract.

In this article, the author has discussed the importance of liability clauses in a vendor agreement. A vendor agreement in short is a contract entered for one’s business and between the vendors. A vendor agreement aims to provide a better understanding to the parties in terms of payment, deliveries, minimizes future risk, and specifies limitations to the vendor. Laying down the obligations on the parties and consequences if the party fails to meet, the expectations set forth in the contract. Vendors now are increasingly relying on this clause to reduce the amount of liability upon them. But, the author has proceeded with distinguishing between a liability clause and indemnification clause for clarity and better understanding at the first instance.

Difference between limitation of liability clause and indemnity clause

Depending on the nature of the contract, a company has the liberty to add liability and indemnity clauses. A limitation liability, in layman terms, means a limit imposed on the liability of a party in a contract, intending to limit damages.

For instance, say, ‘A’ is a builder and he is paid $10,000 by his client for additional wooden ceilings and marble tiles to be used for constructing a building. ‘A’ can insert a limitation of liability clause limiting his liability to $10,000 if there arise any uncertainties. Which may be caused by any loss or damage due to any mishappening, the client hereby virtue of the insertion of liability clause in a contract cannot reimburse more than $10,000.

Therefore, the parties negotiate to limit the liability of the party indemnifying, if there arises a breach of contract which may exceed the contract price. On the other hand, an indemnity clause gives one party the liberty to ask for compensation or file a lawsuit against the other contractual party if there have been any monetary/physical damages arising in violation of the terms of the contract. The party can file a lawsuit against the other infringing party.

This clause mandates the parties to pay an amount in a lawsuit as settlement or jury award. The party, against whom a lawsuit has been filed, can also be held liable to pay the winning party’s legal expenses incurred so far. This shall also include the attorney’s fees and other possible legal costs and expenditures. Using the above example, if the newly constructed building’s roof falls upon a tenant causing him an injury, the client can sue the builder, he shall also be held liable to indemnify for the damages caused due to the collapsed wall, with no limitation on the liability.

The indemnity clause, therefore, manages the risk involved in a contract and imposes the cost to be rectified by any party who has breached the contract including the cost of a lawsuit.

Vendor agreement and its essential clauses

A vendor agreement is a contract that lays down provisions, required to be complied with by the vendor and the specific performance of certain work to be done by the vendor. This agreement is between a business owner who hires a person (called as ‘vendor’) requiring certain work to be done, say for the delivery of goods/services and the vendor performs such work.

For the better regulation of a business and to run the business smoothly and efficiently, a supply of adequate materials must be present. Which may include; internet services, courier services, raw materials for product manufacturing and so on. The supply may also be required for various purposes like, for instance, office supplies or for the production and manufacturing of a product based on the business that is being carried out.

Therefore, to maintain the supply chain, vendor agreement has been given significant importance. This agreement avoids the dispute between the parties, which may arise in the course of supply by the vendor. The vendor agreement lays down the rights and duties upon the business owner and the vendor, making this of paramount importance. This agreement further helps to reduce the risk of future disputes and lawsuits.

Some of the essential clauses to be included in the vendor agreement

A clear description of the product or scope of services: A vendor agreement should always contain clear and detailed information. This clause shall describe the specifics of the product or the services being provided. At times, a ‘Statement of Work’ is attached to a vendor’s agreement, which provides all the necessary details for the efficient engagement of the purpose of the agreement.
The payment clause: A clause regarding the ‘payment’ must be specified. This clause puts forth the structure of payment, amount to be paid to the vendor for supply of products, any matter regarding the amount, and so on.
The time duration: A ‘time duration’ clause must be included, this clause must be brief about the duration of the business relationship between the business and the vendor. The agreement is for a fixed term which may need to be renewed based on the wishes of the parties. This clause must also include a situation upon which the agreement may be terminated before the expiration of the period of contract by serving a notice to the party.
Warranty clause: A clause regarding the ‘warranties’ must be included, the warranties which have been agreed by the vendor to provide the business. This warranty may be against infringement of IPR for the business, the ability of the vendor to avail goods and services.
Limitation of liability clause: A clause regarding ‘limitation of liability’ is essential in vendor agreement for the vendor. This clause safeguards the vendor since it limits his liability in the cause of delay in delivery due to his negligence or fraud. The business through this clause may claim damages if the action of the vendor causes damage to the business.
Dispute resolution method: A clause for ‘dispute resolution method’ must be included i.e., in case of a dispute between the parties, whether the parties implement the dispute through arbitration seating’s and the seat of the arbitration must also be mentioned. The court that will have jurisdiction along with the laws applicable on both must be mentioned.

Importance of liability clause in the vendor agreement

In vendor agreement, a limitation of liability clause is necessary, as it sets up a monetary limit if the vendor fails to perform his duty as laid under the agreement. Assignment on the amount of liability to be imposed on the party comes into question here.

In vendor agreement, a liability clause is set up in a manner that firstly limits the amount the vendor will pay, to the other party in contract i.e., the registered company under any circumstances. This clause is stated as THE VENDOR IN NO WAY WILL BE LIABLE TO THE (NAME OF THE REGISTERED COMPANY) FOR MORE THAN (Amount specified), this is a fixed number.

Secondly, the clause must include as to what the vendor will compensate for, this clause must be like: THE VENDOR IN NO CIRCUMSTANCE WILL BE LIABLE FOR ANY DAMAGES IF INDIRECT, SPECIAL OR CONSEQUENTIAL CIRCUMSTANCE ARISING FROM OR RELATED TO THE AGREEMENT. This clause mandates to hold the vendor liable only for the damages that are direct and predictable. A limitation of liability clause in vendor agreement, seeks to cap a party’s liability in a contract.

One-size fit approach

Emphasis must be laid upon as to whether there is a one size fit approach of liability clause in all agreements. The answer is No, one size fit- all approaches may not be applied in the same manner to different agreements. Let me explain with an example, as to how the limitation of liability shall differ based on circumstances.

The liability of a delivery man failing to deliver 6 quarters of milk to a family every day differs compared to that of the failure of a milk delivery company, to deliver gallons of milk to an ice-cream factory within the stipulated time. The delivery man here is the supplier/vendor under a vendor agreement, the supplier must supply the products essential to the business owner which in this case, is the ice cream factory.

In the first scenario, the failure on part of the supplier to supply milk to the family would only cover minor damages. This shall include the cost of the family driving to the store along with the cost of replacement of the milk, which wouldn’t exceed more than $50. However, in the second scenario, there’s a huge dependence of the ice cream factory on the milk supplier. Unavailability of which results in the damages of not just replacement of milk but also foreseeable loss of profits and sales in a day. Since no ice cream can be produced without any milk. This fault on the part of the supplier can trigger contractual terms leading to monetary penalties which can easily reach up to thousands of dollars.

In the first scenario, limitation of liability is not worth worrying about but however, in the second scenario, is it? The milk producer should be wise enough to add a limitation of liability clause in the agreement. This inclusion of a cap on the damages would limit the damages to be compensated for, by the milk supplier. If a limitation of liability clause is not included, the ice cream factory would want to unfairly retrieve back all the damages, including indirect loss. And shall recover all categories of damages, for which the milk supplier cannot be held liable.

Dealing with limitation of liability clause in the vendor agreement

Sufficient steps may be taken to deal with the limitation of liability clause when in a contract, all of which have been stated below-

Firstly, having a repo with the vendor creates a better understanding for the company registered. Enabling to become aware, as to where the vendor is coming from and the root cause for the inclusion of limitation of liability clause. This would allow the company/business to respond well to the vendor’s issue rather than a hypothetical version of the vendor’s issue created by the company. During the contract negotiation process, the dialogue between the parties can help the company to create goodwill with the vendor.
Secondly, considering whether entering into this contract with the vendor serves best interest to the business. There are several vendors who would provide the same services, but before choosing a vendor what the company knows about the vendor must be taken into consideration. Presumptions as to whether the vendor has significantly provided the company with raw materials, leaving a track of success. Or, the vendor has led to a mess in performing his functions to the company or in transactions with any companies in different towns and states.
Thirdly, considering whether the amount stated in the liability clause adequately protects the company when there is a breach of the contract on part of the vendor. There must be reasonableness for the amount of liability cap in the contract.
Fourthly, if there’s a conclusion that coming into contract with the chosen vendor is best for the company. Then the next step is to consider how the limitation of the liability clause interrelates with the rest of the clauses in the contract. For instance, whether the limitation of liability clause interrelates to the payment structure of the contract. A vendor has nominal liability exposure in the contract during its early stage when he has not been paid much, the liability here is limited to the amount paid under the contract. In general, limiting liability to the overall amount of the contract instead of the amount paid under the contract gives rise to an unlikely situation. The company here would recover more for the damages beyond just recovering its actual amount for the damages caused. An indemnification clause might be adversely affected by a limitation of liability clause. The indemnification clause would be of much less use if the vendor has to fully indemnify the company but there has been an inclusion of low liability cap in the contract.
Fifth, after considering the above aspects, consider if the inclusion of the limitation of liability clause is not called out to be “unfair” by the vendor. There are higher chances that the vendor may suggest the clause to be “unfair” and that “unlimited liability risk must be borne by the vendor”. A mutual limitation liability clause may be applied, this must be fair on both of the parties thereby avoiding the other to be aggrieved over the recovery amount that has been negotiated between them.

Drafting is the key

The enforcement of a limitation of liability clause is valuable and drafting is a key for this. For efficient drafting of this clause, the following guidelines must be looked into-

The clause must be conspicuous: Use boldface print or underline the clause. The clause may also be placed apart from the rest of the text, the other party must be aware of its existence.
The language must be clear and concise: The clause must be clear and not vague, it must relate to the contract as a whole.
Negotiate the clause: A discussion must be held with the vendor and negotiate if there is any inconsistency. Keep the drafts of any revisions that were made to the limitation of liability clause, as proof that the clause was negotiated. A third party is not bound with the contract. The contract is only enforceable against the party to the contract.

Conclusion

Therefore, a vendor agreement enables the parties to build trust, improving reliability, and ensuring a timely supply of products. If there is any deficiency in products delivered, the customer can claim to recover the same under the vendor agreement. The inclusion of the limitation of liability clause, prevents the vendor to be held responsible for any loss or damages indirectly arising out of this agreement. In the absence of limitation of liability clause, the vendor would be held liable for all the damages, irrespective of whether or not caused by his negligence. The addition of the limitation of liability clause must be in relation to the other clauses. Whereas, the liability of the owner due to his negligence for any loss that occurred, must be limited to the payment amount only. Therefore, a well-written limitation of liability clause in the vendor agreement would reduce the risk of liability to be imposed on the vendor. Thereby, disabling the business owner to unfairly seek compensation for the damages from the vendor for which he isn’t entitled.

References

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Vodafone’s victory in the international arbitration case against India

By

Diganth Raj Sehgal

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August 2, 2021

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This article is written by Shashwat Kaushik, a student of CCS University. This article gives an analysis of Vodafone’s victory in the international arbitration case against India.

Table of Contents

Introduction

Vodafone group had won a global intervention argument against the Indian government, ending the most high-profile cases in the nation including a $2 billion assessment guarantee. The Court in The Hague decided that India’s imposition of tax on Vodafone were in breach of a treaty between India and the Netherlands. India had asserted an aggregate of ₹279 billion ($3.79 billion), incorporating about $2 billion in charge, just as interest and penalties.

Contention to the parties

In May 2007, Vodafone had purchased a 67% stake in Hutchison Whampoa for $11 billion. This incorporated a wider communication business and different resources of Hutchison in India. In September that year, the Indian government interestingly raised the interest of Rs 7,990 crore in capital gains and withholding tax from Vodafone, saying the organization ought to have deducted the duty at source before making an instalment afterwards. Vodafone tested the interest notice in the Bombay High Court, which decided for the Income Tax Department. Therefore, Vodafone appealed the High Court judgment in the Supreme Court. In 2012, the Supreme Court decided that Vodafone Group’s understanding of the Income Tax Act of 1961 was right and that it didn’t need to pay any duties for the stake buy.

That year, the then Finance Minister, the late Pranab Mukherjee, sidestepped the Supreme Court’s decision by proposing an amendment to the Finance Act, in this manner enabling the Income Tax Department to reflectively tax such arrangements. The Act was passed by Parliament that year and made Vodafone pay the tax liability. The case had by then become famous as the ‘retrospective taxation case’.

Meaning of retrospective taxation

As the name recommends, retrospective tax collection permits a nation to pass a standard on burdening certain items, things, or administrations and arrangements, and charge organizations from a period behind the date on which the law is passed. Nations utilize this course to address any irregularities in their tax collection approaches that have, before, permitted organizations to exploit such provisos. While governments frequently utilize a review revision to tax assessment laws to “explain” existing laws, it winds up harming organizations that had intentionally or unexpectedly deciphered the expense management.

Aside from India, numerous nations including the US, the UK, the Netherlands, Canada, Belgium, Australia, and Italy have reflectively burdened organizations, which had taken the advantage of escape clauses in the past.

Evolution of the case

Vodafone Group Plc, which is a British organization, entered into the Indian media communications industry in 2007. For entering the business, the organization had two different ways on how they might set up their framework i.e. opening branches across India and enlisting individuals which is a long process or another way was to buy an existing organization at an appealing cost.

Along these lines, Vodafone bought Hutchison Essar Limited (HEL) for 55,000 crores. What’s more, you need to pay a Capital Gains Tax to the Government. The individual who is purchasing the property first requires to pay Tax Deduction at Source (TDS), solely after this, the purchaser pays the abundance to add up to the dealer.

To escape so many expenses, multinational organizations utilize different ways. Perhaps the most widely recognized way is to open an organization in a tax haven country and afterwards utilize that organization as an intermediary and manage it. The Hutch previously had an organization which was set up by them in 1998 in the Cayman islands named as the CGP Investment possessions whose parent organization was arranged in Hongkong named as Hutchison Telecommunications International Ltd. (HTIL).

The passage of Vodafone

Vodafone purchased CGP Investment possessions. This is because the choice of purchasing CGP investment property implies purchasing Hutchison Essar Limited (HEL) in a roundabout way because CGP Investment possessions had 67% portions of Hutchison Essar Limited. After this arrangement, Vodafone supplanted Hutchison Essar Limited (HEL) in India, yet worked from the Netherlands.

The Indian expense department

Since in this entire arrangement an Indian organization was purchased and sold, the Income Tax Department said this exchange should be burdened by the Indian tax collection framework, which was around 10,000 crores. In any case, Vodafone would not charge compensation in India because as indicated by them they didn’t buy Hutchison Essar Limited (HEL), they purchased CGP Investment possessions, and 67% portions of Hutchison Essar Limited went under this organization. So lawfully, Vodafone doesn’t have to pay charges in India.

The passage of the legal executive framework

The Indian Government filed the argument against Vodafone in the Bombay High Court. On 3 December 2008, the Indian Government won this case. The court expressed that because an Indian organization was associated with the exchange along these lines, Vodafone is obligated to pay TDS. Vodafone was told by the court to pay 25,000 million rupees in 3 weeks to the Indian Government.

Vodafone transferred the cash, however, they appealed this case in the Supreme court of India. The Indian Government lost this case in the high court in January 2012. This was a major escape clause as indicated by the laws around then and Vodafone took advantage. The High Court additionally said that the Indian duty division has no option to burden the abroad exchanges. The Supreme court additionally provided the request to the Indian duty division to return 25,000 million rupees with a 4% premium to Vodafone.

The government had started an appeasement cycle with the organization in 2013 however dropped it once Vodafone had conjured discretion under the Bilateral Investment Treaty (BIT). The government stand had been that expense matters are not under the domain of BIT.

“Vodafone has finally got justice first from the Indian Supreme Court and now from an international arbitral tribunal”, said Anuradha Dutt, a senior accomplice at DMD Advocates.

The decision restricts the most dubious disputes in India under worldwide arrangements that it enters into with nations to ensure foreign investments. India has caught more than twelve such arguments against organizations, including Cairn Energy, over review charge cases and wiping out of contracts. The exchequer could wind up paying billions of dollars in damages if it loses.

To lessen future mediation claims, India has finished such agreements with more than 50 nations and is working on another law to shield unfamiliar financial backers by offering help from conceivable policy changes even as it maintains the option to tax them, Reuters revealed.

Definition of the bilateral investment treaty

On November 6, 1995, India and the Netherlands had signed a BIT for advancement and security of speculation by organizations of every country in the other’s legislation. Among the different arrangements, the deal had then expressed that the two nations would endeavour to empower and advance good conditions for investors of the other country. der the BIT, the two nations would guarantee that organizations present in each other’s countries would constantly be concurred with reasonable and impartial treatment and would appreciate full insurance and security in the region of each other. The BIT between India and the Netherlands terminated on September 22, 2016.

The corrections made

In this arrangement, the Indian Government lost 12,000 crores and accordingly amended the Income Tax Act to protect itself from future misfortunes. It was explained in the Income-tax laws that any foreign exchange which in a roundabout way includes any Indian organization, the organizations will be obligated to pay capital gains tax and tax deducted at source.

After the alterations were made in the demonstration, the Government began requesting cash from Vodafone. Presently Vodafone had no way out because even the High Court can do nothing if alterations are made in the law. Yet, Vodafone took this decision to the global courts, and this case was dealt with in the International Arbitration Tribunal.

The choice by the International Arbitration Tribunal

On 25 September 2020, the International Arbitration Tribunal which is arranged in the Hague, Netherlands gave the choice that the interest of the Indian Government isn’t right and they can’t charge on the exchange of Vodafone, and the Indian Government is responsible to pay Rs. 40 crores to Vodafone to meet the lawful expense of the case.

Explanations for this choice

The legal advisors addressing the instance of Vodafone in the International Arbitration Tribunal contended that both the gatherings which were associated with the choice that is India and Netherlands have marked a deal which has a condition of fair and even-handed treatment. And, the Indian Government is violating this clause when Government on a retrospective basis by making amendments in the laws.

The International Arbitration Tribunal said that this is correct and Vodafone didn’t get fair and even-handed treatment by the Indian Government and along these lines. One of the main considerations for the Court of Arbitration to decide in favour of Vodafone was the infringement of the BIT and the United Nations Commission on International Trade Law (UNCITRAL).

In 2014, when the Vodafone Group had started intervention against India at the Court of Arbitration, it had done so under Article 9 of the BIT between India and the Netherlands. Article 9 of the BIT says that any debate between an investor of one contracting party and the other contracting party regarding interest in the domain of the other contracting party will quite far be settled genially through arrangements.

The other was Article 3 of the discretion rules of UNCITRAL, which, in addition to other things, says that the constitution of the arbitral council will not be hindered by any contention as for the adequacy of the notification of arbitration, which shall be at last settled by the arbitral court.

Conclusion

This is unquestionably a piece of uplifting news for Vodafone-Idea (presently Vi) given their continuous battle in the Indian telecom industry because of AGR dues and so forth. Be that as it may, it’s a major misfortune for the Indian Government.

The Indian Government says that it is tax avoidance, however, as per Vodafone, it did its tax planning by following the laws. Indeed, various individuals may have various assessments on this case. However, as of now, Vodafone has won it. The Indian Income Tax Department has said that it will seek the issue further but what would that lead to, only time will tell.

References

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Criminal liabilities and remedies for copyright infringement in India

By

Abanti Bose

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August 2, 2021

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This article is written by Ananya Singh, pursuing a Diploma in Intellectual Property, Media, and Entertainment Laws from Lawsikho.com.

Table of Contents

Introduction

With the rise of creating and owning the intellectual property in the contemporary world, intellectual property rights (IPR) came into being to protect the original work created by authors/creators. One of the subsets of IPR is copyright. It is covered under the Copyright Act, 1957 (the Act). The Act provides protection to such creations from being infringed by any person(s), other than the creator, that exploits such work without gaining the explicit permission of the creator themselves. This kind of protection also fosters the environment of creativity by encouraging current and potential creators to keep creating in future. As these laws enable an author/creator to restrict and/or refrain others from using their original work which may hamper their goodwill and reputation and/or gain monetary benefit out of their original work. If the infringer does not comply by ceasing to infringe various civil and criminal liabilities can be imposed on it under the Act, and civil and criminal remedies are also made available to the creator whose work has been infringed. For example, the famous Netflix show ‘Sacred Games’ could not have been created without the explicit permission of the book author Vikram Chandra. Had Netflix proceeded without his permission they would have infringed his copyright and Vikram Chandra could have easily sued them for infringement.

With this in mind, in this article, I will be discussing criminal liabilities envisaged in the Act. Since it has been rightly acknowledged by the legislators that Copyright infringement is not just limited to loss of monetary value and demanding damages through a civil suit is barely enough, and therefore, the criminalization of copyright infringement is more than necessary to prevent loss of credibility, reputation, goodwill of an organization from literal theft. The criminal sanctions not only provide an exemption from impunity but also act as a deterrence.

What is copyright and what constitutes copyright infringement?

The World Intellectual Property Organization (WIPO) defines copyright as a legal term that describes the rights that authors/creators have in their artistic and literary “works”. Works as used here “range from books, music, paintings, sculpture, and films to computer programs, databases, advertisements, maps, and technical drawings.”

Under Indian copyright laws, there are certain exclusive rights that are vested in the copyright owner, that is, “the right to right to reproduce, distribute, display or perform the protected work, or to make derivative works.”

Broadly speaking, copyright infringement happens when any of the following acts occur:

Using the exclusive rights vested in the copyright owner either in relation to the whole copyright work or a substantial part of the copyrighted work without getting authorization for the same from such copyright owner.
Deriving profit by providing a place to be used for infringing purposes.
Trading and/or importing infringing copies of a copyrighted work which includes displaying and/or distributing such work.

For all the above-mentioned acts there are criminal liabilities that are imposed on the infringer via the Act. Correspondingly, there are criminal remedies as well in the Act that are provided to the rightful owner of such copyright works. These criminal remedies include fines, imprisonment, seizing infringing copies and delivering infringing copies to the rightful owner.

Notably, the time limit for filing a suit for damages is three years from the date of such copyright infringement taking place. Moreover, vicarious liability and contributory liability also amount to copyright infringement, even though they are not specifically mentioned in the Act, but there are numerous case laws that provide for the same. Moreover, the burden of proof in such cases is always on the prosecution. It means “the presence of knowledge on the part of the accused prior to infringement must be proved by the prosecution for exercising the criminal remedy.”

Criminal copyright provisions under the Copyright Act, 1957

Sections 63 to 70 under Chapter 13 of the Act provide for the offences relating to copyright infringement. The principle penal provisions under the chapter are as follows:

1. Section 63: It states that when a person knowingly infringes or abets copyrighted work or any of the neighbouring rights under the Act (such as performer rights, moral rights and broadcast reproduction rights) he/she/they can be imprisoned for a minimum of six months and a maximum term of three years and can be fined between Rs. 50,000 to Rs. 3,00,000.

2. Section 63A provides for an enhanced penalty for second or subsequent convictions with increased imprisonment from one to three years and a fine ranging from Rs.1,00,000 to Rs. 2,00,000. However, if such infringement is not made for the purposes of gain in trade and business, the courts can reduce the sentence to less than one year and a fine of less than Rs.1,00,000 by providing adequate and special reasons for the same.

It is important to note that criminal proceedings in such instances do not entitle the copyright owner to get an injunction, that is, “if a convict infringer repeats the infringement the owner will have to initiate a fresh proceeding. So, in such cases, it is advisable to initiate criminal as well as civil proceedings simultaneously if the stakes are very high.”

3. Section 65A states that circumvent any of the effective protective technological measures that can be applied to any of the rights conferred under the Act. Pertaining to copyright, performance rights are punishable with imprisonment of a maximum of two years and payment of a fine.

4. Section 65 B states that removal or alteration of “rights management information” without authorization is punishable with imprisonment of a maximum of two years and payment of a fine. Such removal or alteration includes knowingly distributing, broadcasting or communicating to the public copies of work without authority.

Sections 65A and 65B were inserted via the Copyright (Amendment) Act, 2012 can only be punishable by applying criminal remedies. These provisions have purposely been drafted in a very preliminary fashion “and a lot of scope has been left for judicial creativity so that it can be adapted to Indian conditions.”

i. Other provisions under Chapter 13 include penalties for offences like possessing or making plates to make infringing copies of works (Section 65), using infringing copies of a computer program (Section 63B) and making false entries in the Register of Copyrights (Section 67).

(Note: The above-mentioned provisions and the remedies thereof effectively apply to electronic and digital media, that is, the internet in the same way as it applies to traditional media.)

ii. Section 64(1) states that any police officer not below the rank of sub-inspector may exercise the power to seize infringing copies of work without a warrant. The offence under this section is considered a cognizable and non-bailable offence. Section 64(2) provides safeguards to the person against whom such seizure has taken place to make an application to the Magistrate within 15 days of such seizure for restoring the seized copies. This provision does not facilitate or permit infringement of any manner by the person who has been accused to have committed infringement.

Relevant case laws

Krishika Lulla & Ors. vs. Shyam Vithalrao Devkatta & Anr

In the landmark case of Krishika Lulla & Ors. Vs Shyam Vithalrao Devkatta & Another, which is considered to have set a standard relating to infringement in film titles and plotlines, also famously known as the “Desi Boys Case”, the plaintiff authored a story titled ‘Desi Boys’ and registered the synopsis with the Film Writer’s Association. He forwarded the synopsis to his acquaintances subsequently. Later, he came across the trailer and promos of the movie titled “Desi Boyz”. Since he understood that he could not allege infringement over his idea or story under copyright law, he filed an FIR for the copyright infringement of the title ‘Desi Boys’ under Section 482 of Criminal Procedure Code, Section 63 of the Act and Section 420 of Indian Penal Code. The issue which arose under this case, was whether a literary work’s title on a standalone basis is a copyrighted work that is capable of being infringed under the copyright law. The Supreme Court rejected the notion of the title of a film constituting a copyright ‘work’ to begin with in order to qualify for infringement. The title of the film does not fall within the ambit of literary work.

Cheria P Joseph vs. Prabhakaran

In the case of Cheria P Joseph vs. Prabhakaran, it was held that “clear and cogent proof of knowledge is necessary to establish the commission of an offence.” Moreover, a criminal court will not give a decision relating to the issue of infringement if the same is lying with the civil court for final decision. Here, the complainant alleged that certain extracts of the accused’s book in Malayalam were translations of the book complainant book and “that they were translated and kept for sale without his permission or knowledge and the accused by so doing has infringed his copyright in those books thereby committing an offence punishable under Section 63 of the Act.”

Conclusion and analysis

The criminal liabilities coupled with criminal sanctions under the Act is a step taken in the right direction, especially in the light of changes brought in by the Copyright (Amendment) Act, 2012. The legislative intent behind the criminal sanctions is to punish offences of particular gravity, accordingly with the help of varied terms of imprisonment and fines, and by orders of seizure and delivering infringing copies to the rightful owner, depending on the seriousness of the crime. These provisions also serve as a deterrent as they not only punish but also aim to prevent such infringements.

Reference

https://www.wipo.int/copyright/en/https://www.indiafilings.com/learn/copyright-infringement-in-india/
https://www.lexology.com/library/detail.aspx?g=96a0fc1e-d8de-4efe-9f7b-d9ed17752bc4
Mangal, S., 2016. The Incompatibility Between Copyright Infringement and Criminal Sanctions. Postgraduate. National Law University Delhi (India)
http://www.legalserviceindia.com/articles/In_Copy.html

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Property mortgage : how to get a decree for the sale of a mortgaged property

By

Abanti Bose

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August 2, 2021

0

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

This article is written by Darshi Hetal Jhaveri, pursuing Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from LawSikho.com.

Introduction

A mortgage can be described as a loan lent to a person in favour of an immovable property that acts as a security. There are various types of mortgages and the terms and conditions of the mortgage depend on the chosen type of mortgage. In case, the mortgage amount is not reimbursed then there are certain remedies available. The remedy that is elaborated in this particular article, talks about the order to file a suit for sale of the immovable property. Once the decree is passed of the suit for sale in the favour of the plaintiff then the sale amount that is obtained is used to pay the mortgage money.

This particular article describes, what a mortgage is? How many types of mortgages exist under Indian law? What happens when an immovable property is mortgaged and the person refuses or couldn’t pay back the amount lent to him? What procedure to follow in court and how to obtain the decree for sale to sell the immovable property?

Defining mortgage

Mortgage refers to the lending of immovable property as a security in exchange for monetary benefits for a pre-discussed period at a pre-discussed rate of interest. Once the monetary benefits availed have been reimbursed along with the discussed interest the immovable property. A mortgage is a way of loan in which an immovable property acts as a guarantee in favour of money that is a way of a loan. In simpler terms, mortgaged property is an immovable property that acts as a security against the money received by the way of a loan.

The person who mortgages his immovable property for a sum of money is known as the mortgagor. The person from whom the mortgagor borrows money for which the immovable property acts as security is known as the mortgagee.

In simpler words, the mortgagee is the lender whereas, the mortgagor is the borrower. The sum of the principal amount along with the interest amount is known as mortgage money.

The lawful agreement or instrument through which the transactions of a mortgage take place is known as a mortgage deed.

Types of mortgages

Under Section 58 of the Transfer of Property Act, 1882, there are six types of mortgages.

1. Simple mortgage

In a simple mortgage, the mortgagor is personally liable to reimburse the loan amount along with interest. In case the payment has not been paid by the mortgagor two remedies are available to the mortgagee. The first one being obtaining a money decree for the sale of the mortgaged property. The second one is obtaining the decree for the sale of the mortgaged property.

2. Mortgage by the conditioned sale

As the name suggests, this mortgage is conditioned. The conditions are such that;

The mortgagor will sell the property on a pre-decided date if the payment has defaulted until that particular date. Thus, the sale shall be considered absolute or;
On the payment of the mortgage money on the specific date, the sale of the immovable property shall become null and void or;
The mortgagor shall transfer the immovable property back to the mortgagee on the payment of the mortgage money.

3. Usufructuary mortgage

In a usufructuary mortgage, the mortgagor delivers his property possession to the mortgagee, and all the revenue generated from the property through rent or interest is availed by the mortgagee. The mortgagor will receive his property back after the payment of the mortgage money.

In this type of mortgage, there is no liability of the mortgagor nor any remedy of decree for sale or foreclosure in case of non-payment by the mortgagor. However, the right to possession and the revenue generated from the property is of the mortgagee until the loan is reimbursed.

4. English mortgage

In an English mortgage, the mortgagor personally guarantees to pay back the mortgage money at a pre-decided date. Until that period the mortgagor transfers the mortgaged property to the mortgagee and retransfers the same after the payment of the loan amount of mortgage.

5. Mortgage by deposit of title sale

In this type of mortgage, the mortgage of the immovable property acts as a security. However, the possession of the property is not given in this mortgage; only the title of the property is transferred. The applicable remedy to receive the payment of the mortgage money is a suit for sale.

6. Anomalous mortgage

A mortgage that is not a simple mortgage or an English mortgage or a mortgage by usufructuary mortgage or a mortgage by deposit of title deed or a mortgage by conditional sale is called an anomalous mortgage. It is not defined yet, but this mortgage is generally customized as per the situation.

Section 59 of the Transfer of Property Act, 1882 states the registration of a mortgage. It states that “where the principal money secured is one hundred rupees or upwards, a mortgage 5 [other than a mortgage by deposit of title deeds], can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses. Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by [a registered instrument] signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.”

What is a decree for sale?

A decree for sale is a final judgment passed by the hon’ble judge with regards to the mortgage suit. A decree for sale is filed by the mortgagee if the mortgagor fails to repay the mortgage money within the decided period. After the period is due the mortgagee can claim to sell the mortgaged property to obtain his money back. In simpler terms, to avail the mortgage money, the mortgagee has to sell his property. But, to sell the property, the mortgagee needs the permission of the court and the permission is obtained by filing a mortgage suit.

Remedies available to redeem the mortgage money

If the mortgagor does not repay the mortgage money, there are several lawful remedies available to the mortgagee to redeem the money. These remedies are explained under the Order 34 of the Code of Civil Procedure, 1908. . They are as follows-

1. Foreclosure suit

Filing for a foreclosure suit is the foremost remedy a mortgagee generally applies for. A foreclosure suit refers to the suit in which the plaintiff lawfully takes possession of the mortgaged property when the defendant constantly fails to repay the mortgage money.

2. Suit for sale

To obtain the mortgage money back, the immovable mortgaged property of the defendant is sold off and the plaintiff recovers the money back.

3. Recovery of balance due in the suit for sale

This suit is filed to recover the sum of the mortgage money that is not sufficient even after selling the mortgaged property of the defendant. The balance is recoverable after selling the other properties of the defendant.

How to obtain a decree of sale?

1. The parties to the suit

Under Rule 1 Order XXXIV of Code of Civil Procedure, 1908, the parties to the suit have been mentioned.

Mortgagor,
Mortgagee,
Co-mortgagors, or any person who has an interest in or charge upon the mortgaged property.
Or any person, who has a right of redemption of the mortgaged property.

Under Rule 4 of Order XXXIV of Code of Civil Procedure, 1908, if the mortgagor doesn’t pay the mortgage money once the due date has passed. Then the alternative available to the mortgagee is to file a suit for sale of the immovable mortgaged property. If the plaintiff succeeds in this process, then the hon’ble court shall pass a preliminary decree for the sale of the suit.

2. Preliminary decree for sale of suit

Once the suit has been filed, and the plaintiff succeeds in proving the court directs to take an account of the sum that is due to pay at the date of the decree. The sum shall include-

The mortgage money;
The cost of the suit, if any;
Any other cost that may be incurred to him concerning the immovable property.

Once the amount has been declared to the court, the court passes a decree for the defendant to pay the amount so declared on or before the date as the court may have fixed within six months from the date on which the court confirms and countersigns the account taken. Further, if there is a default in payment then the plaintiff shall be entitled to apply for a final decree for the sale of the property.

Rule 4 sub-rule 4 states that the person receiving the benefits of the title of the decree for sale shall also be a party to the suit. It provides for the adjudication of the respective rights and liabilities of the parties to the suit and form outlined in Form No. 9, Form No. 10, or Form No. 11, as the case may be, of Appendix D with such variations as the circumstances of the case may require.

3. Final decree for sale of suit

When the defendant pays the mortgage amount of the suit before the confirmation of sale made in the final decree, then the court shall file a final decree ordering the plaintiff to return the documents related to the mortgaged property; transferring the property back to the defendant; and put the defendants back in the possession of the property.

If the immovable mortgaged property has already been sold, then the defendant has to deposit 5 per cent of the amount of purchase money paid into the court by the purchaser. After the deposit of the amount by the plaintiff, the purchaser is entitled to have his money repaid by the court.

When the payment has not been made after the due date by the preliminary decree, then the court shall pass a final decree ordering to sell the immovable property or part of the property of the defendant to recover the mortgage money.

Conclusion

By now, we know that there are two steps to obtain a decree for the sale of the mortgaged property. First is when the mortgagor does not pay the money after the due date, the mortgagee has to file a suit for the sale of the mortgaged immovable property. If the mortgagee succeeds, the court will pass a preliminary decree against the mortgagor. He then has to pay the money back within a stipulated time. Second, if the mortgagor again makes a default in payment, the mortgagee would be entitled to apply for a final decree for the sale of the property. It is the final decree where the court orders for the sale of the immovable property or a part of it to recover the money due to the mortgagee. The remedy of suit for sale is available when the mortgagor doesn’t pay back the mortgage money, A suit for sale of the mortgaged property can be filed against him as a remedy and it is also studied about how the decree of suit for sale is obtained.

References

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Analysis of the amended rules governing criminal trials to address delay, deficiencies

By

Abanti Bose

-

August 2, 2021

0

This article is written by Prashant Thakkar, pursuing Certificate Course in Introduction to Legal Drafting: Contracts, Petitions, Opinions & Articles from LawSikho.

Table of Contents

Introduction

‘The course of justice often prevents it’ -Edward Counsel. The criminal justice system of India is marked by innumerable discrepancies including loopholes in the investigation system, abysmal quality of documentation, want of promptness with regard to examination and recording of the statement of witnesses, incompetency of some police and judicial officers etc. These factors have certainly marred the efficient functioning of the law courts who seek to redress the grievances of people and provide timely relief. The abovementioned factors might sound trivial but an indifferent attitude is shown by the police, lawyers and judicial officers and many other officers who function in different capacities toward them has led to an exponential rise in pending court cases over the past few years, straining the country’s already overburdened judicial system. These circumstances demanded immediate action and therefore a reality check was considered essential to ensure speedy justice to the victims and protect the rights of the accused. Urgent need for reform was felt in all spheres of the administrative system including police, the forensics wing, the prosecution, the courts and the laws. This finally took shape when the 3-judge bench of SA Bobde, CJ and L. Nageswara Rao and S. Ravindra Bhatt, JJ directed all High Courts to take expeditious steps to incorporate the Draft Rules of Criminal Practice, 2021 as part of the rules governing criminal trials, and ensure that the existing rules, notifications, orders and practice directions are suitably modified, and promulgated (wherever necessary through the Official Gazette) within 6 months.

Background of the Draft Rules

Mr R Basant’s submissions

The court was hearing a criminal appeal involving the death of a political worker in 2016. Amidst these proceedings, Mr R. Basant, learned Senior Counsel appearing for the appellants-complainant, pointed out certain common inadequacies and deficiencies in the course of trial adopted by the trial courts while disposing of criminal cases. Mr R Basant stressed certain practices which could be incorporated by criminal courts across the country to resolve the issues pertaining to criminal trials which ultimately would usher in a certain amount of uniformity and stability in the conduct of criminal trials across the country.

Eventually by an elaborate order dated 30.03.2017 the court realized the presence of common deficiencies in the practices and rules of High Courts by taking a cue from existing rules in some high courts particularly the High Courts of Andhra Pradesh and Kerala. After considering about 13 issues put forth by Mr R Basant, the bench noticed a lack of uniformity across States on how criminal trials are conducted. Particular emphasis was laid on the manner in which documents (i.e. list of witnesses, list of exhibits, list of material objects) referred to are presented and exhibited in the judgment, and the lack of uniform practices in regard to the preparation of injury reports, deposition of witnesses, translation of statements, numbering and nomenclature of witnesses, labelling of material objects, etc. These very often lead to asymmetries and hamper appreciation of evidence, which in turn has a tendency of prolonging proceedings, especially at the appellate stages. The court, therefore, issued notice to the officers of all High Courts and State government’s calling upon them to submit their responses along with suggestions.

Appointment of amicus curiae

The case took a turning point when the court by an order dated 07.11.2017 appointed Mr Sidharth Luthra and Mr R. Basanth, Senior Advocates as amicus curiae. The team was further strengthened with the appointment of Mr K. Parmeshwar on 20.02.2018. After a series of events, a colloquium was convened in New Delhi at the India International Centre, on 30.03.2019 wherein written responses were invited from stakeholders. After considering the suggestions made during the colloquium, the amici curiae submitted the “Draft Rules of Criminal Practice, 2020” for the consideration of this court. Hereinafter a series of discussions were conducted wherein some high courts indicated their reservations to certain Draft Rules. However, the case ended on a positive note when the CJI Bobde led three-judge bench issued an order to implement the “Draft Criminal Rules on Practice, 2021”.

Objective and purpose of the Draft Rules

The Draft Rules consist of 5 chapters under 19 heads which stress upon the various practices that can be incorporated in the system to effectively deal with the inadequacies and deficiencies in the course of trial adopted by the trial courts while disposing of criminal cases. Through these Draft Rules, the court sought to establish a uniform approach – in the description of exhibits, manner and description of recording of statements of witnesses, labelling of material objects, and so on. Various measures which could help achieve the objective of uniformity have been mentioned herein below:

Provide a sense of clarity and uniformity to various state authorities and High courts throughout the country towards the Draft Rules.
Ease the burden of workload on public prosecutors by providing a separate team of lawyers to advise the police during an investigation.
Do away with practices and procedures (Bipin Shantilal Panchal v. State of Gujarat) that impede the smooth progress of trial proceedings give way for better substitutes which would help accelerate trial proceedings.
Respect the time, effort and money of the court, witnesses and parties to the litigation.
Instil a sense of responsibility and respect amongst the court, witnesses and parties to the litigation towards the trial.
Widen the role and responsibilities of the investigating agencies and the police authorities to ensure uniformity and stability in the trial and pre-trial stage.
Ensure that a preliminary case management hearing is held at the beginning of the trial to ensure orderliness in the conduct of proceedings
Ensure that all High Courts shall take expeditious steps to incorporate the said Draft Rules, 2021 as part of the rules governing criminal trials, and ensure that the existing rules, notifications, orders and practice directions are suitably modified, and promulgated (wherever necessary through the Official Gazette) within 6 months from today.
Ensure that state governments, as well as the Union of India (in relation to investigating agencies in its control), shall carry out consequential amendments to their police and other manuals, within six months from today.

Causes of delay and deficiency in criminal trials

Delay in the criminal justice system is a daunting challenge faced by the judiciary. Delay and loopholes in the administration can defeat the purpose of criminal law which seeks to prevent crimes, provide justice and dispose of cases at a rapid rate. Pending court cases have exponentially risen over the past years with criminal cases being worst affected especially in the district and subordinate courts where nearly 2.5 crores of the 3.4 crores impending cases were criminal. This phenomenon can be traced to several factors including

1. Scheduling of cases

The courts in India are notorious for attempting to settle a variety of cases in a single day thereby causing inconvenience to parties and the witnesses. Moreover, the judicial officers are partial towards civil cases and pushing the criminal cases to the backburner due to which pending court cases are multiplying at a rapid pace.

2. Poor quality of investigation

An incompetent investigation is one of the main factors behind the plummeting rates of conviction. This in addition to the use of outdated methods, inexperienced field officers with inept knowledge of forensic science, poor quality of supervision are some of the many glaring gaps which indirectly has had a malicious impact on the way criminal trials are conducted in India.

3. Abysmal quality of documentation

A lackadaisical attitude toward drafting and maintenance of records and other compliances by both the advocates and judges are one of the main factors responsible for rising in pending court cases. Many irrelevant details form a part of the documentation which leads to unnecessary wastage of courts time and postponement of cases. A huge part of the Draft Rules have considered this factor and dealt with it appropriately.

4. Adjournment of cases

Respected President Ram Nath Kovind said that one of the reasons for long delays in the adjudication of cases in courts is the “culture of seeking adjournments as a norm”. Indian courts are notorious for seeking adjournments as a delay tactic which deprives the court of its precious time leading to many litigants withdrawing the case out of frustration. Moreover, the court grants these adjournments on frivolous, unfounded and spurious grounds which defeat the very purpose of criminal law.

5. Framing of charges

This is one of the crucial stages of a trial. Unfortunately, this also happens to be one of the most time-consuming aspects of the trial wherein the accused have evaded presence by resorting to adjournments and other tactics.

Analysis of Draft Rules in criminal practice

Investigation

This chapter focuses extensively on the duties and responsibilities of the investigating authorities, police authorities which include the necessity of a body sketch, the importance of taking photographs and videos of post mortem in certain cases in case of death of person [under Section 46 Criminal Procedure Code, 1973(“CrPC”) or Sections 129 to 131 Cr.PC] or death while in police custody, the necessity of a site plan prepared by the investigating officer which shall disclose the details of the occurrence.
Gone are the days when the police and the judiciary exclusively relied on witnesses for crime detection and solution. Science has acquired immense significance in these modern times and the investigating authorities have found a way to apply scientific principles in crime investigation. Not only the investigating authorities but the whole criminal justice system has realized the importance of giving scientific conclusions to cases and the branch of science which is helping in the application of scientific principles for the effective administration of the criminal justice system is called forensic science. Forensic science is a multidisciplinary science that sprawls throughout various disciplines including odontology, toxicology, anthropology.
Despite acquiring a respectable position in the criminal law circles, Forensic science has been plagued by numerous issues including less reliance on forensic evidence by the Supreme Court and high courts throughout the country, use of obsolete forensic methods and tools. There have been many instances wherein the accused was acquitted owing to lack of forensic evidence notably the cases of Vijay Shankar v State of Haryana and Mani Kamat Dinesh v State Govt of Nct of Delhi. Moreover, many forensic methods used for criminal investigation have been outdated.
These circumstances demanded immediate action and therefore the amicus curiae have allotted an entire chapter to it as a part of the Draft Rules. In order for forensic science to realize its full potential a serious and in-depth understanding was most essential and the Draft Rules have provided a platform for the same.

Charge

The Draft Rules regarding charge mention that the order framing charge shall be accompanied by a formal charge in Form 32, Schedule II, CrPC to be prepared personally by the Presiding Officer after complete and total application of mind.
Framing of charge is an essential element of a criminal trial. The primary object of a charge is to give the accused person firm and clear notice about what the prosecution intends to prove against them. A failure to do so might lead to a miscarriage of justice.
A recent case of the Supreme Court held that it was not essential to give reasons in an order framing charge. The said order was challenged by the accused through a revision petition before the High Court, wherein he claimed that the Sessions Court ought to have applied its judicial mind and given some reasons while framing charges. Framing of charges is a very crucial part of the trial and not some mere formality and therefore demands complete and total application of mind on the presiding officer’s part.
The above-mentioned circumstances demanded immediate action and therefore the amicus curie has taken the right step by including charge as one of the chapters in the Draft Rules.

Trial

This chapter extensively on the procedure of recording of evidence, format of witnesses, exhibition of material objects and evidence, subsequent references to accused witnesses and other statements.
In the Code of Criminal Procedure, Section 311 empowers the court to summon a material witness, or to examine a person present at “any stage” of “any enquiry”, or “trial”, or “any other proceedings” under CrPC, or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to. Examination of witnesses is envisaged in the Code of Criminal Procedure whether in trials either session trial, warrant trial, or summary trial.
Admissibility of evidence is paramount in a trial and therefore the relevant facts are to be presented clearly and coherently and a systematic approach as provided by the Draft Rules is imperative to achieve this.
With the evolution of cyberspace and increasing reliance on electronic means of communication, storage of information in digital form has acquired paramount importance. Requisite amendments made to Indian Laws in the year 2000 with the Introduction of IT Act to make digital evidence admissible are a testimonial to the same and the court is completely justified to use technology to its advantage so as to ensure efficient functioning of the Legal system.
Marking of witnesses, exhibits and material objects in seriatim and their reference by numbers instead of names is justified and beneficial despite opposition from various high courts due to ease in reference and to ensure greater authenticity and reliability.

The judgment

In criminal matters, Chapter XXVII of the Code of Criminal Procedure, 1973 provides for ‘the judgment’.
Every judge has a different approach to writing judgement and their writing inevitably varies in style, language, manner of statement of facts, discussion of evidence and reasons for such decision.
Judgement writing consumes a major part of the Judge’s work and considering the current scenario the judges are clearly overwhelmed by the arrears of cases leading to the adoption of ineffective and time-consuming ways of writing Judgements thereby compromising the quality of the drafts.
More systematic and to the point methods as provided by the Draft Rules would facilitate a better culture of judgement writing thereby leading to speedy disposal of cases and delivery of quality judgements.

Miscellaneous

The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the court and be in attendance thereon whenever his presence is required.
S.K. Hyder v. The State of Odisha would be the epitome of the lax attitude shown by the Indian courts in dealing with bail applications and suspension of sentences.
The Draft Rules have provided for the disposal of cases within 3 to 7 days which are completely justified and have already seen light in the guidelines issued by Allahabad High Court.
The 2nd clause under this chapter advocates for an appointment for advocates other than public prosecutors to advise the investigating officer during the investigation. This clause previously saw light in the Indian judicial scenario in the year 2012 when the then home minister P Chidambaram today strongly advocated a separation of investigation and prosecution by amending the criminal justice system for the speedy delivery of justice. A part of the reason why the accused get easily acquitted can be traced to the degrading quality of the investigation system. Initially following the CRPC amendment of 1973, the separation of prosecution and investigation was thought to be an unwise measure and it was strongly felt that this would impede the successful conviction of criminals.
However, it was realized that prosecution was a separate arm of the criminal justice system and its coordination with an investigation was a gratuitous move and for its best interest it ought to remain a separate branch. Therefore by appointing a separate class of advocates to assist the investigation is a well-considered move as it eases the burden on prosecution, improves the quality of investigation, provides a new field for advocates to specialize in etc.
Adjournment is a term used in court when a lawyer of either side makes an application to adjourn the matter for reasons as stated in its application and there is a grant of such application. Adjournment is granted either with costs or no costs. Unfortunately, adjournment is being exploited as a delay tactic in courts throughout India. Adjournments are granted without any serious thought and have become an inevitable cause of delay in the disposal of cases. The Draft Rules have provided for clauses that adequately deal with the problem.

Conclusion

While we got to realize the fact that courts throughout various parts of India function differently and therefore any change of that magnitude requires time and patience. Many states had their reservations to certain Draft Rules particularly the one requiring day to day trial. However, the states ought to realize that the Draft Rules are merely practised to reflect the mandatory provisions of the Code of Criminal Procedure, 1973 and therefore it’s their duty to abide by them.

The successful implementation and execution of these Draft Rules will demand the collective efforts of many branches of the criminal justice system including police, investigating agencies, prosecution, judges etc. While most certainly these branches will have their reservations too regarding various clauses but it is also likely that they will see the larger picture wherein the Draft Rules seek to achieve uniformity and stability throughout the various organs of the criminal justice system accordingly dealing with the problem of delay and deficiencies in the criminal trials.

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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Draft of lease agreement between the owner and a bank

By

Abanti Bose

-

August 2, 2021

0

This article is written by Srinithi Vasudevan, pursuing Certificate Course in Introduction to Legal Drafting: Contracts, Petitions, Opinions & Articles from LawSikho.

Introduction

What is drafting?

Drafting is the act of preparing a legal document which may include agreements, contracts, notices, etc. The purpose of legal drafting is to seek and present effectively the facts and law that can impact the parties to a document. For drafting legal documents it is imperative to have the following:

The skills required for drafting,
The knowledge of the facts and law so as to put the facts in a systematized sequence to give a clear projection of the legal status,
Privileges,
Rights and duties of the parties and obligations arising out of mutual understanding,
Terms and conditions,
Breaches and remedies etc.,

All these are drafted in a self-content or self-explanatory form where it is clear and without any vagueness or doubtful meaning.

What is a lease agreement?

Now, a lease can be defined as a contract where a party is the owner of an asset (lessor) provides the asset (leased property) for use to another person (lessee) at a consideration (rent), either fixed or dependent on any variables, for a certain period (lease period), either fixed or flexible, with an understanding that at the end of such period, the asset, subject to the set in preferences of the lease, will either be returned to the lessor or disposed of as per the lessor’s instructions.

Lease agreement between a bank and an owner

A bank may take a property in lease for many reasons like; for Atm installation, for setup of a new branch, branch member’s residential quarters etc. because in Indian conditions, branch banking structure is the most suitable and preferred structure of banking than the other banking structures. Generally, a property is classified into two categories:

Residential property

Any land, plot or area of land including any building used primarily or intended to be used for owner or tenant accommodation constitutes residential property. Single-family housing, as well as multifamily units, can be constructed on residential land to qualify as residential property.

Commercial property

Commercial property is buildings and land that are intended for profit-generating activities rather than regular residential purposes, it may include retail shops, banks, industrial complexes, office buildings etc.

Leasing in commercial and residential properties is a different thing. While renting a house involves minimal expenses, commercial renting includes not only heavy operational overheads but high vacancy risks. Also, not every commercial space can be taken as bank space. Generally, when a bank needs rental space, that specific bank publishes the advertisement with property requirements that the bank is looking for, or you will need to get in touch with the Regional Manager of the concerned bank. If your property meets the criteria then you can participate by applying your application with the property documents such as a sale deed, a title deed, NOC etc., to the concerned bank. The bank will collect the application and will announce the shortlisted applicant through advertisement. Finally, after all the necessary scrutinization, one person is selected and a lease agreement between that person and the bank is made.

Difference between lease and license agreement

Lease agreement

A lessee has exclusive possession, he can transfer his interest or right in the property to anyone. Unless specified, death does not terminate a lease agreement and unless mentioned in the agreement, sub-tenancy can be created by the lessee to the agreement. A lease agreement is governed by the Rent Control Act of that particular state where the agreement is made. Only the small cause court has the jurisdiction to handle the disputes of a lease agreement.

Licence agreement

However, in the case of a licensee, there is no transfer of interest or right in the property to anyone. It is not inheritable. Creation of sub-tenancy cannot be created and death does terminate the license agreement. A licence agreement is governed by the Indian Easement Act, 1882. Any court can handle and has jurisdiction over the matters of the license agreement.

Some of the important clauses to a lease agreement

A well-drafted lease agreement should create certain rights and liabilities between the parties to the agreement. Therefore it is essential that the agreement should be detailed and address all the issues that may come in the future, including dispute resolution. Therefore, some of the important clauses to a lease agreement are as follows:

1. Introductory clause

The introductory clause of an agreement mainly deals with the title, name and details of the lessor and the lessee, definitions of the terms which are used in the agreement and are necessary for the agreement, address of the licensed property including the description of the house/property and surrounding area of the property, lastly the summary describing why the contract has come into force. These clauses are commonly used in all contract agreements.

2. Term of tenancy

Every rental document should state the term of the tenancy. Leases usually last a year. It is the decision of the owner whether to make the agreement flexible by not mentioning the specific period or state that the agreement will be in force for a specific period from the date of execution. The agreements must always contain the date of execution. By stating the term of the tenancy it is ensured that both the parties to the agreement are safe, because, the lessee cannot stay more than the specified period and the lessor cannot expel the lessee before the specified period ends.

3. Rent

The consideration paid by the lessee to the lessor for utilising the licensed property is called the rent. The lease agreement should specify the amount of rent, time of payment, acceptable payment methods, whether late fees will be due if rent is not paid on time, mode of payment for late fees, the amount of the fee and whether there is any grace period, and any charges if a rent cheque bounces. Sometimes, the agreements may be made that there will be an increase of rent amount paid by a certain percentage after a specific period or certain intervals of time. This increase in rent is called escalation.

4. Payment of security deposit

Security deposit is the amount received by the lessor from the lessee at the beginning of the agreement, this is taken to dissuade the lessee from causing damage to the licensed property or leaving the licensed premises before the notice period without paying the rent for that period. It should be noted that the security deposit will be returned by the lessor to the lessee at the time of termination of the agreement.

All the agreements should specify the amount of security deposit to be given by the lessee to the lessor at the time of execution of the agreement and the mode of payment of the security deposit.

5. Maintenance charges

Here, the maintenance charges which should be transferred to the society or complex for the common area, electricity, water, etc., are conferred. The agreement should clearly state who is going to pay the maintenance charge either the lessor or the lessee, to whom it should be paid, on which date it should be paid etc.

6. Use

The agreement should clearly mention the usage of the given property. A property can be either used as residential property or commercial property. Even in the case of a lease for a bank and an owner, it can either be for residential use like branch member’s residential quarters or it can be for commercial purposes like for ATM installation, for setup of a new branch. Therefore, mentioning the usage of the property is very important for the lessor because, the lessee, if not mentioned can use it either way which may cause a dispute in the future.

7. Alteration

This clause specifies the alterations made to the property. Alterations can include changing any furniture already fixed to alteration of the whole property (like altering the room size) etc. It should always be mentioned in the agreement if any alterations can be made in the property, till to what extent the alteration can be made, who will bear the cost of alteration, mode of payment, it should state the terms and conditions for using the common facilities. Where admittedly there is unauthorized construction by a lessee or by any other person on Government land which is public premises and such person is in unauthorized occupation thereof. This has been held in the case of Express Newspapers Pvt. Ltd. & Ors vs Union Of India & Ors.

8. Notice period

In this clause, the agreement should specify the details about the period of time that should be given by the lessee to the lessor in case, if the lessee vacates the property before the termination of the agreement. It should also state the penalty in case of violation of this clause. Generally, if the lessee violates this clause either civil actions are taken against the lessee or the security deposit is withheld.

9. Registration

It is not necessary to register an agreement, but it is best practice to register an agreement. This is due to the fact that an agreement that is registered is solid evidence in case of any dispute between the parties. However, in modern law either the Transfer of Property Act or the Rent Control Act specifies a person to register an agreement with a witness. This has been held in the case of Salil Seth & Anr. vs. Arun Kumar & Anr.

Therefore, this clause specifies the registration process like who should bear the registration cost, which act should be followed, etc.

10. Termination

Termination of an agreement means the end of the period mentioned in the agreement for the usage of the licensed property. A termination can be done for many reasons;

Termination for cause: Termination of an agreement can be for any particular cause, it may be due to personal reasons or using the property for an illegal purpose etc.

Termination without cause: Sometimes termination can be without cause for e.g, sometimes due to misunderstanding between the parties there can be eviction without cause.

Automatic termination: This happens when the period in which the license was issued has come to termination or due to breach of the contract etc.

11. Dispute resolution

When a dispute arises between the parties, it is this clause that specifies how the resolution should be sort either by first by negotiation and if not resolved then moving to court or directly moving to court, about the jurisdiction under which this dispute comes under or which parties jurisdiction of the court has to be approached in case of dispute, which party will bear the court fees etc.

12. Signature

At the end of the agreement, it should be signed by the lessor, lessee and witness. The date of signing should be accompanied by the signature.

Format of a lease agreement between a bank and owner

Rental agreement

This agreement is made and executed on (date) at (place).

BETWEEN

(Name) , Age: About________ Years, Occupation:___________ , PAN:__________ , UID:__________ . Residing at:_________________

HEREINAFTER called ‘the Licensor,

(Name) , Age: About________ Years, Occupation:___________ , PAN:__________ , UID:__________ . Residing at:_________________

HEREINAFTER called the Licensee’

WHEREAS, ___( Summary describing why the contract has come into force)

Now therefore it is hereby agreed to, declared and recorded by and between the parties hereto as follows:-

Include all the clauses mentioned above and all the necessary clauses to the agreement. Starting from Term of Tenancy till Dispute resolution.

Name & Address	Photo	Signature
Lessee Name : UID: Address:
Lessor Name : UID: Address:
Witness of execution -cum- identifier for Name : UID : Address:
Witness of execution -cum- identifier for Name : UID : Address:

Conclusion

Therefore, in this article, we have analysed the concept of drafting, the meaning of lease agreement and a lease agreement between an owner and a bank. Also, we have discussed the difference between the lease and a license agreement.

Also, from this article, we can understand that even though there are so many clauses that can be included, there are few clauses that are necessary for every lease agreement including a lease agreement with a bank. Finally, we have also presented a prototype of how a lease agreement between an owner and a bank appears. Therefore, by this article one can be clear with the concept of a lease agreement between an owner and a bank.

References

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Foreign Direct Investment Regime in Chile

By

Bushra Tungekar

-

August 1, 2021

0

shutterstock-Chile-flag-1409116358 (1) — Image source-https://rb.gy/bla1og

This article is written by Esha Barua Chowdhury who is pursuing a Diploma in M&A, Institutional Finance and Investment Laws (PE and VC transactions) from Lawsikho.

Table of Contents

Introduction

The Foreign Investment in Chile has seen a decline owing to the 2020 pandemic and its effect on several economic variables. However, Invest Chile’s Managing Director Andrés Rodríguez is hopeful that if the government’s new strategy is implemented correctly, the Latin American country might see investments exceeding US$25 billion.

Invest Chile, the Chilean government’s Foreign Investment Promotion Agency has been preparing strategies to meet the above-mentioned goal to the extent that the agency has been holding meetings with leading companies like Amazon, Tesla, TechMahindra, Netflix, Alibaba, Baidú, etc.

According to the World Investment Report 2020 published by UNCTAD, FDI in Chile had increased by 63% from USD 7 billion to USD 11 billion in 2019, sustained by investment in utilities, mining, and services.

This article primarily discusses foreign direct investment and the regime in Chile together with the investment culture prevalent there.

What is Foreign Direct Investment?

Foreign Direct Investment is the investment made directly by a company or legal individual of one country into any business/ firm located and functioning in another company. When a foreign entity invests or purchases into the business of a country other than their home country to obtain a controlling stake over the company so purchased, the process is termed as a Foreign Direct Investment (FDI). FDI involves setting up a business, establishing operations, or purchasing assets in a foreign land.

For Example

If a multinational company from Britain starts operating in India, either by partnering with an existing firm or by setting up its segment, such investment shall be considered as a part of FDI in India.

Flows of Foreign Direct Investment

FDIs can be outward or inward, meaning if a different country invests in India, it is an inward investment and if an Indian entity invests in another country, it is considered to be an outward investment.

Not all foreign investments are FDI, How?

FDI is different from FPI (Foreign Portfolio Investment) since the latter is the investment made in financial assets and securities in businesses of other countries. The FDI so made flows into the primary market and aids to the growth in the GDP of the country. FDIs are usually made in an open market, ie a market that has lesser trade restrictions or is a free trade market (elimination of imports and exports). Chile is the seat of such open markets.

Kinds of FDI in Chile

FDI s can be Inwards and Outwards. FDI s can be of 4 types

Horizontal.
Vertical.
Conglomerate.
Platform.

What determines a foreign investment?

The economic and political state of the host often determines the nature of the guest. Economy, regulatory conditions, legal flexibility, political stability, market size scope, flexible government policies, exchange rates, labour costs, geographies, investor’s strategy, range of equity inflow, and relative factor endowments are some of the elements which determine FDIs of a country.

What is the position of Chile concerning foreign Investments?

FDI is said to be beneficial for developing countries since it increases job opportunities and plays an important role in the economic development of the host country besides increasing the exchange rate of the country.
The World Investment Report 2020 prepared by UNCTAD (United Nations conference on trade and development) forecasted that FDI in Latin America vis a vis Chile will plummet by 40-50%.
The consistency in FDI in Chile during this Covid pandemic is noteworthy and has been better than opposed to other Latin American countries excluding Mexico, which has also seen a rise in investments. Invest Chile promotes investment in the country and brings forth the stats of the FDI inflow.
In 2014, Chile’s government launched the Initiative of Productivity, Innovation, and Growth, stressing how the country would prioritize investment in five economic sectors: mining industry services, the sophisticated food industry, exportable technological services, sustainable tourism, and energy/logistics infrastructure for development.

FDI Regime in Chile

Chilean economic policy is founded on the principles of capital transparency and non-discrimination against foreign investors. Chile is regarded as one of the strongest investment destinations of Latin America (South America) due to its stable economic system, judicial security, growth potential, low-level risk, and high quality of infrastructure.

FDI regime in Chile is majorly regulated and governed by Law 20.848 and Chapter XIV of the Compendium of Foreign Exchange Regulation of the Central Bank of Chile which has been discussed below.

On a lighter note, no specific rule is available restricting foreign investment in Chile. The country has a foreign investment regime that is relatively favourable to inward investments.

Chapter XIV

Investments exceeding USD10,000 are performed under Chapter XIV. Such a provision is available to foreign investors who can be individuals or legal entities regardless of their place of origin

Law No. 20.848

Chile encourages foreign investment regardless of its place of origin. The Chilean Law 20.848 established a law allowing Foreign Direct Investment within the country according to which no international investor should be discriminated due to their place of origin and any investment made by such foreign entity would be treated similarly as the investments made by a local investor.

The law passed in 2015 to establish a new framework and to allow FDI amounted to the creation of the Foreign Investment Promotion Agency (APIE) which is also known as “Invest Chile”. The former Foreign Investment Committee is legally continued as Invest Chile.

Law 20.848 defines FDI and sets out the eligibility of investors to be treated as a foreign investors and subsequently the conditions that are required to be met in order to be regarded as a Foreign Investor.

What are the conditions to be fulfilled to be deemed a Foreign Investor in Chile?

The conditions for being a foreign investor are as under:

Natural person or legal person/entity established overseas;
Not resident or domiciled in Chile;
That transfers overseas capital or assets to Chile.

What is the minimum amount that should be invested as FDI?

The minimum amount of foreign investment mandated by Chilean Law is at least US$5 Million or its equivalent in other currencies from other countries. Any investor that transfers such an amount would be a Foreign Investor in Chile.

What are the modes of FDI in Chile?

FDI also includes investments in the form of acquisitions, partnerships, or ownership of any company or capital in Chile, provided such investments should give the investor a control amounting to 10% voting shares of the company or an equivalent share capital if the company is not a stock company.

Forms of investment accepted by Chile

The amount transferred through investment can be in the following forms

Freely convertible foreign currency;
Physical goods in all their forms or states;
Reinvestment of profits;
Capitalization of loans;
Technology in all its forms provided it may be capitalized;
Loans associated with foreign investment from related companies.

Limitations of Foreign Investors to invest

In addition to ancillary limitations which may arise depending on a diversity of factors responsible for FDI, there are two major limitations that fend off foreign investments.

There lies a prohibition in the FDI regime of Chile, according to which an investor is forbidden from acquiring the domain, tenancy, or possession of a real estate that borders the neighbouring country when such acquisition affects the nationals (corporations or persons) of such neighbouring. Nevertheless, the president of Chile may act as a silver lining to such a prohibition by issuing Supreme Decree to authorise such acquisitions on grounds of national interest.
The chile government restricts foreign investments in the monopolistic sectors. Restrictions on domains like nuclear energy, hydrocarbons, defence, sea transport, and mining are put by the government due to national security purposes. These sectors are solely under the government. Chile imposes a ban on private investment projects in hydrocarbon exploitation.

The Political Constitution of the Republic which is the Chilean Supreme Law holds that the state of Chile is the exclusive owner of all the hydrocarbons, whether in a liquid or gaseous state, existing within the territory of the country. It accounts for the sole right of the State to extract, exploit, utilize, such hydrocarbon resources. Such a restriction is anti-FDI and also poses a barrier for national investors.

What are the Sectors in which investments are preferred by Chile?

Investments in the forms mentioned above can be made in Chile. It should also be noted that investments are preferred in manufacturing, forestry, energy, infrastructure, telecommunications, R&D, technological, medical, or scientific development projects. Capital goods imported and used for exploration development, or exploitation in Chile can be allowed a Value Added Tax during imports.

The company structures most commonly used by foreign investors in Chile

Chile prefers the investing companies to be established by public deed from a public notary. The deed would contain and specify the type of company, its activity area, the equity contribution of their respective partners (if any), and the structure of distribution of profits and the liabilities of the company for losses.

Following are some of the company structures that invest in Chile

Individual Limited Liability Company (EIRL)
Stock Company (SpA)
Limited Liability Company; Corporation (S.A.), which can be public or closed.

How can foreign investors invest in Chile?

Foreign investment in Chile can be made in two ways:

through a binding contract made with the State of Chile where the investor must submit a request to the FIC (Foreign Investment Committee) under Decree-Law 600 (DL 600) and
by simply and freely investing through the Central Bank.

The Chilean policy complies with OECD ( Organisation for economic cooperation and development) standards for matters concerning FDIs. A foreign investor has to, however, subject itself to the regulations and controls of the Central Bank. One can purchase real estate (excluding the state-owned properties) in Chile freely without restrictions. As such there are no major limitations and the regulations are liberal enough to accommodate the foreign investors equally to the extent that there has been no nationalisation of private companies so far.

What are the impediments for foreign investors?

The system of exchange controls to ensure monetary stability has certain implications over inward investment. Registration for investors implying that Capital cannot be repatriated for one year and that Foreign loans are subject to a reserve requirement in terms of noninterest-bearing deposit at the Central Bank for 1 year is one such impediment for foreign investors

What are the investment aids offered by Chile towards FDIs?

Chile incentivises the investments which in turn acts as a magnet for future FDIs. The incentives are sometimes specific and at times are in the form of special tax regimes. Nowadays policies are made to facilitate foreign investments. DL600 contract is one of that investment facilitation instruments that has now become obsolete and are no longer required.

Below are some of the aids that are provided towards foreign investments

Chile government has agencies like CORFO, ProChile, and SENCE that help the Foreign investors in the promotion of entrepreneurship, innovation, and research and allow the companies to access a broad national network
Tax benefits are given for investments in R&D sectors. Credit against First Category Tax is provided to such R&D investments up to 35% of the entire amount invested
Co-financing facilities are available for investment projects in technological sectors.
Nonrepayable subsidies are given before the actual investments, primarily for the pre-investment studies to facilitate the decision-making process of the investors.
For rural areas of Chile, subsidies in labour costs are given by the government
Investment subsidy is given up to 20 % for the small and medium-sized companies for investments in the remote areas of Chile

FDI mechanism in Chile over the years

Foreign Investment Statute (DL 600)-

It was in force since 1974, allowed an investor to sign a legally binding contract with the state for the implementation of foreign investment projects, for which the investors received certain guarantees and rights

Chapter XIV of the Central Bank’s Compendium of exchange Regulations(CFER)

This is a simpler version of the investment mechanism implemented by chile. Under this, a foreign investor only had to comply with the registration procedures. However, it did not include the guarantees provided by DL-600

Chapter XIX of Central Bank’s Compendium of exchange Regulations(CFER)

This was mainly used for manufacturing and services sectors. Such debt conversion mechanism is no longer in operation

Recap of the major points

Chile has an Open Investment regime.
Foreign investors are treated legally the same as nationals. Foreign Investors are also granted the same repute as the nationals.
Chile has a robust mechanism and institutional environment for the growth of FDI.
There is no requirement of prior approvals/ screenings from the government of Chile for FDIs
Law 20.848 and Chapter XIV governs the FDI investment in Chile
Regulatory frameworks are friendly to attract FDIs
Chile has got a sound legal framework, stable financial sector, and market-oriented policies to support FDI
There is an openness for trade acting as an attractive investive climate
Chile’s sovereign bond ratings are good enough to be considered for FDI
Government aids are provided to counter the limitations and inhibitions to foreign investment.

Conclusion

Till today Chile has fared well in the FDI segment despite its small market. It has one of the highest FDI to GDP ratios due to the heavily concentrated investments in its natural resources. As has been discussed above, Chile ordains a flexible regime for FDIs. It has been constantly keeping track of its progress and enthusiastically promotes its FDI policies. The strong yet accommodating FDI policy implemented by Chile has amounted to the significant growth of its economy.

The liberal policies propagated and promoted through Invest Chile and the abundance of natural resources have attracted several investments by various foreign investors from all around the globe. Currently, Chile is one of the leading countries of Latin America in terms of investments made through FDI and shows a promise for growth.

Even though Chile is not the best market for foreign investment, the country has consistently promoted FDIs and attempted at making the investment procedures hassle-free and now with a new “ Tu Empresa en un Dia” (Your Company in One Day) initiative, designed for small companies the processes are going online paving way for remote investment procedures.

References

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The Uttar Pradesh Population (Control, Stabilization And Welfare) Bill, 2021: pros and cons with respect to the society

By

Sneha Mahawar

-

August 1, 2021

0

The Uttar Pradesh Population (Control, Stabilization And Welfare) Bill, 2021 — Image Source: https://rb.gy/t5wsn2

This article is written by Neha Patel, a 4th-year law student at the University of Petroleum and Energy Studies, Dehradun.

Table of Contents

Introduction

Population plays a major role in a society when we talk about growth be it individual growth, economic, social growth, development and also the availability of opportunities to the people. Over- Population has posed a great hindrance to the development of society and it has not only become a particular country’s issue but a global problem, which cannot be ignored.

As it has been rightly said by Henry W. Kendall– “If we do not voluntarily bring population growth under control in the next one or two decades, nature will do it for us in the most brutal way, whether we like it or not”. Relating this with the current situation happening all around the world, that is, the COVID-19 pandemic, which has led to a tremendous loss of human life worldwide and affected the health, food systems and world of work, education especially the poverty-stricken, vulnerable ones because of the majority lack of social protection and access to quality health care. As for the destitute ones, no income means no food or less food or less nutritious food. Though the above quote in a way support the Bill when it comes to present circumstances, the question arises is the Bill – the only solution left or is it just a shift of blame on the people? Through this article, the author is trying to shed some light on the reasons behind the coming up of this bill and how it can raise doubt in the minds of the common people.

About the Bill

Law is dynamic as it needs amendments, changes, abrogation according to the needs and circumstances, and welfare of the society. The Subject matter of ‘population’ control and family planning is included in the Concurrent List of Indian Constitution on which both the Centre and State legislature has the power to legislate. Recently, on World Population Day – 11th July 2021 – Uttar Pradesh Chief Minister Yogi Adityanath unveiled the new “Population Policy 2021- 2030” to steady the growing population within the State. It has the aim of bringing the gross fertility rate in the State of Uttar Pradesh down from the existing 2.7 to 2.1 by the year 2026. The draft Bill regarding population control, which promotes a 2-child policy and aims at providing incentives to the families who adhere to the policy and it will disentitle the ones who breach it so this Bill has both incentives and disincentives. The draft Bill aims at providing basic necessities to human life including affordable food, safe drinking water, decent housing, access to quality education, economic/livelihood opportunities, power/electricity for domestic consumption, etc.”This policy will be applicable to a married couple where the boy is above 21 years of age and the girl is above 18 and the policy will be voluntary which cannot be enforced upon anyone.

What if the two-child norm becomes a policy

There are two sides of the same coin so there always exists two different perspectives of the same thing. Though population hampers the growth of the society, will this policy really take Uttar Pradesh in the direction of ‘Vikas’ or will it be the opposite?

Pros

Opportunities

It has been promised by Uttar Pradesh government that it will give promotions, increments, concessions in housing schemes and other perks like the public servants who adhere to the policy, and have two or fewer children will be getting two additional increments during the entire period of their service, maternity or as the case may be, paternity leave of 12 months, along with full salary and allowances and 3% increment in the employer’s contribution fund under the National Pension Scheme. But the question arises whether people on the ground level would be able to avail these opportunities as it happens often that the number of funds released by the Government gets decreased till it reaches to the citizens.

Education and awareness

In today’s world, it is very crucial to get a quality education for the continuous growth and development of society. The right to education is one of the Fundamental Rights guaranteed under Article 21A of the Indian Constitution. In the case of State Of Tamil Nadu & Ors v. K Shyam Sunder & Ors, it was held that “right of a child should not confines only to free and compulsory education, but should be enhanced to have quality education without any discrimination on the basis of their economic, social and cultural background.” The size of the Family has a great impact on educational achievement in households where schooling is available but expensive. The connection between poverty and education is especially relevant for girls. Girls from large families with comparatively fewer resources are the least likely to attend school. The NFHS (National Family Health Survey)-4 data on birth order showed that the highest proportions of births were among women with no schooling. The draft bill also mentions the introduction of a compulsory subject on population control in all secondary schools. Bill also aims at establishing maternity centres at all primary health centres that will distribute contraceptives like pills and condoms and also spread awareness about family planning methods through community health workers.

Health

A healthy mind exists in a healthy body. The excessive growth in the population has resulted in issues like urban crowding and environmental changes that have resulted in the emergence of many infectious diseases. Overpopulation adds to the inability of governments to scale up health care systems and facilities. This problem can be solved by spreading awareness among the people about family planning and education about overpopulation, enacting birth control measures and regulations, and providing universal access to birth control devices. More availability and equitable distribution will be there. Less population will amplify the reach of resources to a comparatively more number of people in the State, which will result in a happy and healthy society.

Environment

The less the population, the less will be the pollution and more cleaner will be the environment as the Right to a healthy environment has been held as a fundamental right under Article 21 of the Constitution. Where there is a right, there comes a duty as Article 51A(g) envisages the fundamental duty of the State to protect and improve the natural environment. A developing country is the most vulnerable one when it comes to the effects of overpopulation on the environment as they are interlinked with each other. As with the increase in population, there will be depletion in the number of resources including plants and animals due to consumption resulting in more exposure to air pollution, diseases, and a decrease in access to clean water.

Cons

As the increasing population has been a bane for the country, data shows that the trend of population rise is reversing in many States including Uttar Pradesh. As per National Family Health Survey data, the country-level TFR (Total Fertility Rate) in India is 2.23, which is not hugely above the desired level of 2.1.

Infringement of Rights

In the case of Suchita Srivastava & Anr. v. Chandigarh Administration, The Apex Court observed that a woman’s freedom to make reproductive decisions is an integral facet of the right to personal liberty guaranteed by Article 21 and quoted “to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating”. In the case of K.S. Puttaswamy v. UOI, it was observed that the Constitution sees a person’s autonomy over her body as an extension of the right to privacy. But the restrictions if placed on this right must conform to a doctrine of proportionality. The bill provides certain incentives to public servants who undergo sterilisation and adopt the two-child norm hence it impinges on the right to reproductive freedom of the citizens.

Sex-selective abortion

Being a patriarchal society like India, when there is not any existence of a restriction on the number of children one can have, then also there is massive discrimination on the basis of gender resulting in sex-selective abortion. The preference for sons both in rural as well as urban India is well documented. A legal restriction to two children could force couples to engage in sex-selective abortion since there are only two ‘attempts’ to conceive. A study was conducted between 2001 and 2004 to explore the results of implementing two-child norms in 5 states (Andhra Pradesh, Haryana, MP, Odisha and Rajasthan) and found relatively more number of offences like bigamy and desertion, neglect and death of female infants, cases of pre-natal sex determination. The already skewed sex ratio may be compounded by families aborting a daughter in the hope of having a son with the view to conform to the two-child policy. It can worsen the sex- ratio fuelling economic disparity.

Imbalance in the Society

This Bill can cause an imbalance in the future in turn affecting the economic growth of the society. For example- China had enforced the one-child policy norm in the 1980s. However, it was forced to abandon the policy because of the skyrocketing aged dependents, insufficient people of working-age, and a huge excess of aged people needing costly medical care. China now encourages couples to have more children to maintain balance.

Underprivileged section of the society

In rural areas, due to lack of education, early marriage, limited access to contraception and the need for extra labour, the poor are expected to have large families in order to combat their need for extra labour and hence resulting increase in the overall population of society. This policy can be a bane to this section as most of the poor and middle-class families have more than two children, which is against the 2 child- norm policy hence they will be deprived of getting benefits out of the government schemes. This is the section that is in dire need of these government schemes the most but they will be the ones to get deprived of. The policy may act as coercion to these people as providing benefits with a condition that cannot be termed as welfare act.

Comparative study:

China: Reasons for failure of One-child policy

For a long, China has been known for having the largest population in the world. In the 1970s, China realised that the unlimited growth of population was posing a hindrance to economic growth and leading to a lack of resources. China had implemented a one-child policy that stipulated that each couple can have only one child. The unprecedented one-child policy soon proved to be enormously unpopular and challenging due to the traditional belief in big families, the burgeoning market transition, and increasingly mobile and diverse society. According to the Chinese population census of 1990, we can estimate the treatment effect on the probability of being a boy to be as large as 1.01 % points for the 1980-1990 birth cohorts. It can be concluded from this that strict enforcement of the one-child policy casually increased the sex ratio by 4.4, which accounts for about 94% of the increase in sex ratios during this period. The one-child policy accounted for about a 57% increase in sex ratios for the 1991-2000 and a 54% increase for the 2001-2005 birth cohorts. Besides gender imbalance at birth, the female child mortality rate also increased. The policy of one-child intensified the gender-based discrimination in birth decisions which was facilitated by illegal ultrasound gender tests and sex-selective abortions. There were also various inconsistencies in the implementation of the policy like government officials were bribed by rich people to give approval of an extra birth.

Similarly, in India due to existence of traditionally rooted patriarchy and a major gap between rich and poor in the society can lead to an increase in sex-selective abortions, imbalance in sex-ratio and improper implementation of the two-child policy. It is necessary that students, being future pillars of the world, should be provided with gender-neutral knowledge and awareness regarding population control.

Conclusion

The population is a hindrance to the development of society and it is the need of the hour that people be aware of the methods and the need to control them. The problems prevalent in the society are in some way linked with each other like poverty leads to lack of education leads to lack of awareness which leads to lack of knowledge about contraceptive measures hence resulting in an increase in population, lack of resources, etc. There is a need for sex education among all the age groups of our society which can play an important role in awareness and population growth prevention methods. Yes, it is the duty of the Government to make laws for the benefit of society but before that, it is very necessary to understand the aim and motive behind the law. It is rightly said by Jeremy Bentham, who gave the principle of utilitarianism- Law should be made with the purpose of maximum benefit and minimum pain to the people. Similarly, A law cannot satisfy everyone but it must be taken care that at least it satisfies the Maximum.

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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ITC and the big-budget CSR

By

Oishika Banerji

-

August 1, 2021

0

CSR-01 — Image source: https://www.vskills.in/certification/blog/csr-activities-indian-companies/

This article has been written by Sneha Asthana, pursuing the Diploma in Business Laws for In-House Counsels from LawSikho.

Table of Contents

Introduction

One of the most renowned companies also adhering to India’s mandatory Corporate Social Responsibilities law is ITC, yet again, a company with a wide range of businesses reaching heights in every field imaginable, such as packaging and branding, hospitality sector, the agri-business, etc. According to Section 135, Companies Act, 2013, companies reaching a certain threshold and profit margin are legally required to invest a minimum of 2% of their profits in activities concerning Corporate Social Responsibilities. Therefore, as ITC falls under the same category, it partakes with several other organizations to fulfill the needs of society. Just like its competitors, ITC had also begun its welfare activities a long time before it was mandated by the law. Certain issues were harmoniously mixed with their innovative business ideas which had a two-fold objective: helping them to run their business and help the society through the same. Some of their initiatives were the Badrachalam Project, Nepal Adivasis, etc. ITC has been famously known for its consistent practice of being Transparent and Ethical. It mirrors the same characteristics for their social welfare programs. This article will reflect on several initiatives taken by ITC towards meeting social responsibilities in India and how well have they been implemented.

Meeting sustainable development goals

ITC understands the importance and success of India’s economic and global development which, unfortunately, came at the cost of highly detrimental problems to the society, both in terms of people and the physical conditions of the planet. The consistent scant attention paid to the condition of the planet earth and the income distributions amongst people have given India problems bigger than what she can face herself. While countries have become significantly tied to each other post Globalization, most of them suffer from the same tangled societal issues as India does.

After conducting several studies, the United Nations finally came up with Corporate Sustainability, which essentially speaks about the 10 principles of Sustainable Growth, guiding such organizations through their journey of societal welfare by targeting top-priority problems. Members of the society who are fully resourced to solve these problems need to come to the center of the stage and perform their acts before it’s too late. Luckily, for India, the big-shot companies are willing to do so. Companies are made to target issues that the entire world faces, only with varying levels of intensity. All these issues, such as lack of education, lack of jobs, inadequate health care, poor environmental conditions, etc. are interlinked with each other and have to be fought up from the roots. While a country cannot entirely depend on its highly successful companies to make a difference, a little help from them can only do good for society.

ITC and its corporate social responsibilities

ITC has always functioned with the notion of “Nation First” in all its Sustainable growth and CSR operations. All its programs and policies follow the UN 10 Principles and Section 135 of Companies Act read with 2014 rules and the VII Schedule of the Act. The company collectively invested about Rs 291 crores in CSR in 2018 and Rs 307 crores in 2019. Additionally, ITC is also known for its Triple Bottom Line business strategy which judges the success rates of companies on the 3Ps – Profits, People, and Planet. Such a strategy makes it inevitable for the organization to focus equally on all three aspects of a business thereby ensuring that businesses don’t get greedy and focus on the issues of society too. Their sustainability and social operations are aligned with a few key goals, viz.:

Create sustainable livelihoods and alleviate poverty through promotion of, inter alia, afforestation, water stewardship, sustainable agriculture and climate-smart practices, livestock development, and women empowerment;
Build capabilities for tomorrow through interventions in, inter alia, education, vocational training, sanitation, school WASH (Water, Sanitation & Hygiene), safe drinking water, and solid waste management;
Promote healthcare, including preventive healthcare, and improve critical nutritional & health status of the at-risk population through interventions to strengthen mother & child health, nutritional content, delivery, outreach, and outcomes;
Protect national heritage, art & culture, and preserving & promoting music and sports; and
Provide relief and assistance to victims of disasters and calamities.

What are the initiatives taken by the company?

As ITC follows the triple bottom line strategy, it is bound to invest significantly in Long-Term Social Investment Programmes rather than short-term policies. It is because of the strategies that they mostly tend to fund projects financially and more often than not, partner with either the Government or Non-Profit organizations. Following is some of their renowned initiatives:

E-Choupal

E-Choupal is an internet-based platform, mostly internet kiosks, that was set up by the ITC in an attempt to help the farmers of the country, in June 2000. Agriculture is the backbone of Indian income, however, not even 10% of its land is arable. The farmers also stand at a disadvantageous position as most are not aware of the risk liability, choice of crop, choice of agricultural method, pesticides, etc. This initiative by the ITC allows farmers from rural areas to understand the specific requirements that their crops need and work accordingly. How does E-Choupal work?

With the help of a Sanchalak (leader), farmers can find out information on rain predictions, fertilizers, pesticides, new advanced methods of cultivation, and others from the internet. While agriculture is so widely practiced, it is unfortunate that many farmers fall victim to bad crops because they are not aware of what all goes into cultivation and the latest methods that can be learned. A plethora of information is provided on the e-choupal website and hence ensures farmers stay aware of all thing’s agriculture with the help of this information on their specially curated website.

As most of the rural population is not technology-friendly, one Sanchalak is chosen, who is educated and trained in the same way to help the other farmers. The unique design of the model also helps overcome one of the major obstacles that farmers face in getting a good profit from their yield which is having several Intermediaries in between. The reason why farmers don’t excel according to their potential is that, to date, intermediaries either deprive or steal vital and critical information from the farmers which puts them at a disadvantage because they have to dance to the intermediary’s tunes now. This steals away their yield and their profit margins, both of which, are extremely crucial to the farmers.

E-Choupal is a transparent, customer-centric entrepreneurial model that allows informationally deprived farmers access to the A-Z of farming ranging from weather conditions to equipment, alternative farming methods to the price of crops, etc. The model primarily focuses on building and collecting a globe of information on farming and provides it to the farmers for their advantage. As this is a customer-centric model, the website has been made easy to access and farmers can choose to operate it in their mother tongue. If such an option isn’t available to them, Sanchalaks take the responsibility of translating the same content as on the website.

Amidst the entire functioning, ITC held credit for being the platform creator, rule maker, and modifier. Its Research & Development, Engineering, and Logistics helped build the first online trade business model for Indian farmers. Looking at the huge success rates in farmer’s lives, e-Choupals had eventually expanded to regular social use and architectural use as well.

Findings

Studies have shown several benefits farmers were able to avail due to this initiative-

Farmers have had more control over their choices
They have earned higher profits.
Their resources are not burning out due to wrong cultivation because e-choupal has made them knowledgeable on the same.
The farmers are globally linked.
The most important advantage is that the farmers are aware of the price of their crops in the market.
E-choupal has reached around 4 million farmers today who have been growing various crops like coffee, soya bean, pulses, rice etc.
E-choupal has reached 35,000 villages and 10 states.
About 6,100 kiosks have been set up all around the country which is easily accessible to all farmers.

Solid Waste Management

ITC has devised one of the most efficient solid waste management systems named Well-being Out of Waste (WOW) which educates and promotes awareness on waste segregation and recycling. It also introduces and establishes systems that maintain the same functions. ITC works with the local municipalities to educate the rag pickers and waste collectors regarding waste segregation as the procedure helps greatly in reducing the dump in landfills. The collaboration with local municipalities ensures that all houses, schools, hospitals, offices, etc. are covered and all waste generated at such places is segregated either by the rag pickers or the people generating such waste themselves.

Additionally, the initiative also focuses on High Impact Public campaigns, Educating students, and Training rag pickers and civic servants. Public skits, plays, hoardings etc. have become a vital tool in educating the public at large. As these skits or plays also have a tinge of entertainment, people have become more receptive to these ways of education rather than simply being fed all the information. Similarly, schools have also started including waste management lessons, quizzes, etc. in their curriculum to ensure such information is instilled in children from a young age. This has also turned out to be fruitful as the significant amount of the population in India is the youth and targeting them to instill such habits would only prove to be for the benefit of the country.

The planning for such waste management has to tick all boxes when it comes to logistics and implementation. A plethora of intrinsic details goes into the execution of such an initiative. One of the most important ways of following waste segregation is to have color-coded dustbins to segregate the different kinds of waste. Wastes are mostly segregated into wet waste and dry waste, vegetable peels separately and recyclables separate. Most societies have begun educating their households to segregate these wastes themselves, which is the first level of segregation. However, after this, the waste goes through several rounds of segregation ensuring that the right waste is managed properly.

A similar solid waste management project was held in Saharanpur, Uttar Pradesh, to study the various challenges that may arise in working towards this method of waste management. The studies depict the positive outcome of the initiative and the change in people’s mindset about an issue as crucial as this.

Findings –

Parivesh Bandhus – It is a group of 142 women from Self Help Groups belonging to Tribeni, West Bengal who have been supported by ITC and partner organization, Pitar and the District Panchayats to keep the town’s drains and roads clean and run a solid waste management operation. These women work in four-person teams- a road sweeper, a drain cleaner, and two household waste collectors serving 10,000 households every day.

This initiative focuses on segregating biodegradable waste into green bins and recyclable wastes into red bins. Post this segregation, the biowaste is turned into a bio-compost. This service is availed at the cost of merely Rs 20/per household. Thorough checking of the collected waste is done to be transported to the main center by the men of the same Self Help Groups, where the waste is either sold or treated with micro-bacterial chemicals to transform into compost. It also helps people earn their living as each person is paid Rs 12000 per month as their honorarium and has insurance covers for health and life.

To ensure that these workers remain healthy, they have also been given necessary tetanus shots and continue to receive them regularly so their health is maintained. As a result, this project has impacted over 1,36,000 households, in 12 districts over 6 states. Around 2.5 tonnes of biowaste are treated every day. All this compost is then made into a farming compost mixture which is in high demand from the local and countrywide nurseries. This compost mixture is sold with the name of Prakriti Bandhu, which in turn, helps farmers and home science experts grow healthy plants in the correct soil compositions.

Bala Swacchagrahis – This is an initiative that aims at educating young students about solid waste management, hence the name. This initiative was taken up primarily in Hyderabad and has now reached about 2000 schools in the city. The initiative has included solid waste management in the curriculum and various activities revolving around the same have also been included. More than 1,00,000 students have been educated and also trained to educate furthermore people in their societies, households, or other schools.
Health and Sanitation

Two primary areas of focus for ITC under sanitation were Open Defecation and inaccessibility of clean drinking water. Open defecation has been on India’s list of problems since times immemorial. Lack of adequate toilet facilities has forced Indians to take such steps. Unfortunately, it has become so common in India that people don’t tend to fathom the importance of its alternative i.e., the facility of a toilet. Several problems associated to open defecation which is why building toilets had become and in fact, still are the need of the hour.

Similarly, very few sections of the country receive clean drinking water regularly. Most villages and towns in the corners of the country have never seen clean drinking water. The lack of it also attracts several health issues endangering people’s lives. To tackle both these issues, ITC decided to take a step and build infrastructure. Sanitation and health go hand in hand. Therefore, people had to be educated about their health too. The famous Swasth India Mission by the ITC helped in educating women, mothers, children about their health and physical needs. They were also given regular consultations.

Findings –

ITC was able to build about 4,443 Individual Household Toilets in 26 districts. To date, a total of 35,916 such toilets have been constructed.
ITC was also able to set up Reverse Osmosis plants in villages and districts of Andhra Pradesh. Furthermore, 26 new RO plants were installed in the past year, taking the total up to 127. Over 150,000 rural people have access to potable drinking water through this health and sanitation initiative.
ITC was able to reach out to 3.22 lakh women, adolescent girls, and school kids in seven districts of UP and 4 districts of MP. They were educated on sanitation, menstrual hygiene, family planning, and how to prevent diarrhea.
Nearly 19.2 lakh children from 5,247 schools in 12 states were covered in the Swasth India Mission. Additionally, access to handwashing was enabled through the unique ‘ID Guard’ initiative to all the students covered in these 5,247 schools.

Conclusion

One of the most unique characteristics of ITC is the Triple Bottom Line strategy it applies to its business. It helps businesses take a firm responsibility towards the people and planet too. While this allows ITC to invest in long-term social investments, which are more beneficial to the country, such projects tend to aid a smaller group of people in society. Most of ITC’s projects help the environment significantly but the number of people who are being directly helped through ITC’s CSR policies shows fewer figures. Additionally, it also appears as if most of the CSR fund is utilized and focused on basic procedures and equipment to achieve their missions. A rather equal distribution of such funds in activities that touch most societal issues would be furthermore appreciated.

References

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The second amendment’s impact on the rise of gun violence in the USA

By

Rachit Garg

-

August 1, 2021

0

Gun license — image source - https://rb.gy/umzlxz

This article is written by Varchaswa Dubey from the School of Law, JECRC University, Jaipur. This article aims at reflecting the impacts caused by the second amendment in the USA.

Introduction

The issue of firearms has always persisted in the United States of America, and the consequences it has on society at large have mostly been negative. The Second Amendment in the US has laid down the rights of citizens to possess firearms for defence in their residences and states that – “A well-regulated ‘Militia’, being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.” Militia refers to a group of people who possess firearms that are available for emergency services like the defence of the country.

The Second Amendment has granted the right to possess firearms as an individual right to the citizens of the USA and the availability of such right has its effect which is discussed in this article.

Origin of the Second Amendment

The founding fathers of America were of the view that militia is the second army after the professionally trained army who is being paid to defend the country. The militias are a group of people who shall be employed in case the main army needs assistance in any manner. The second amendment was written in the year 1791 as one of the 10 amendments in the bill of rights.

Initially, the founding fathers had only three options, i.e, to either only employ a standing army, to only depend on militias to safeguard America or to use each other for the assistance, and subsequently, the founding fathers adopted the last option, i.e. to have a militia and a standing army.

While America was being ruled by the Britishers, the right to bear firearms was only possessed by wealthy landowners and poachers. But after independence, the founding fathers considered this one of the essential rights.

Standing army vis-a-vis militia

The War of Independence was fought by fourteen independent military organizations like the continental army under George Washington and other thirteen colonial militias. The debate regarding the benefits of standing armies and the militia continued even during the war. The 13 colonial militias not only lacked training but also uniform, proper weapons, food, etc., and eventually, the birth of the U.S. Army took place on 14th June 1775 under the command of George Washington which was considered as a standing army, an army of paid soldiers who were trained and well equipped.

According to Joseph Story’s commentary on the Constitution – “the militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.”

District of Columbia v. Heller (2008)

In this case, the Supreme Court of the United States has upheld the right to possess firearms by the US citizens who do not belong to any militia group.

Background of the case

In 1976, the District of Columbia banned the possession of handguns that were not possessed and registered before by the Firearms Control Regulations Act, 1975. The petitioner in the present case sought a registration certificate to get a handgun he intended to keep at home, however, the District of Columbia refused him. Five other individuals, including the petitioner of Shelly Parker v. District of Columbia (2007), filed the present case however, none of the plaintiffs claimed that they belonged to any militia group. But the District Court of Columbia rejected their plea by emphasizing the case of The United States v. Miller (1939), where the court had held that – “In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of fewer than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument”.

Judgment

The Supreme Court of the United States, while agreeing to hear a case concerning the second amendment, is itself a historic moment since this was the first time in around 70 years that the court has considered a case regarding the second amendment. The court during its proceedings considered more than 30 Amicus Curiae (friend of the court) who belonged to diverse fields like the American Public Health Association, National Rifle Association, and the National Association for the Advancement of Colored People, who presented their views on gun ownership and regulation.

The apex court by a 5:4 decision invalidated the federal law, i.e. Firearms Control Regulation Act, 1975 which earlier barred all citizens except for army personnel and militia groups from possessing guns in Columbia, and the second amendment protection was extended to individuals in other states as well. The judgment granted individuals the right to possess handguns to safeguard their houses. The Supreme Court of the United States held that – “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defence, within the home”.

McDonald v. Chicago (2010)

In this case, the issue before the court arose regarding the right to keep and bear arms, which is protected by privileges or immunities clauses of the Fourteenth Amendment.

Facts

The case initially arose when the Heller case failed to explain whether the Second Amendment affects state or local firearm laws or only limits the power of the federal government. The case briefly unfolds as, in the year 2008, Mr. Otis McDonald challenged the 1976 law which banned possession of guns and firearms. After this suit, several other suits were also filed because the ban on firearms violates their rights. The District Court of Chicago dismissed the case. However, a re-appeal in the Supreme Court of the United States accepted the plea.

Judgment

The court ruled that – “The Second Amendment right recognized in the case of Heller applies not only to the Federal Government but also to states and municipalities”. Justice Alito held – “Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, and in Heller, we held that individual self-defence is ‘the central component’ of the Second Amendment right”.

The impact of the Second Amendment in the USA

Providing American citizens with the right of possessing firearms has not only caused a public debate over the consequences of firearms and sparked violence for firearms. The effects of the second amendment in the US are:

Mass shootings

Mass shootings refer to the incident which involves shooting one or more firearms at a large number of people who are random victims. Mass shootings have increased in the United States with an average of 51 innocent lives every year.

Some cases of a mass shooting are:

Columbine High School shooting: The incident occurred on 20th April 1999, where two teenagers went on to open a mass shooting which resulted in the death of 12 students and 1 teacher leaving at least 20 others wounded.
Sandy Hook School shooting: The incident occurred on 14th December 2012, where a 20-year-old boy, after killing his mother, shot dead 28 innocent people leaving 2 others wounded in Sandy hook elementary school.
Las Vegas Hotel shooting: The incident occurred on 1st October 2017, when a gunman opened fire at a crowd of around 22,000 people who were attending a concert. The gunman fired from his hotel room on the 32nd floor, killing 59 people and injuring more than 500 people.

According to a report by CNN and gun violence archive, 2021 has witnessed 272 mass shootings, as of June 2021 which, on average, is 40% higher at this point as compared to 2020, and approx. 65% higher as compared to this point of 2019.

Degradation of public health

According to a report, 87% of Americans consider gun violence as a public threat. Gun violence is considered one of the most atrocious acts which result in numerous people losing life every year.

According to a report of Amnesty International, firearms have resulted in derogatory public health conditions and especially of those who reside in areas where gun possession is more because, in such areas, gun violence has higher chances. Most of the gun violence is the result of gang clashes and robberies. This leads to obstruction in the path of justice and frequent police investigation and exhausting national resources.

Gun violence not only kills the innocent but it creates lifelong trauma on victims who are left severely injured, and on those who have witnessed the gun violence, including the family member of the victim.

Suicide

According to a report, around 39,773 people died from gun-related injuries in the U.S. of which around 60% of the deaths were suicide and the number is high in the states where gun possession is high. The US gun suicide rate is 10 times that of other high-income countries and the reason for such a large number of atrocities is associated with possession of firearms.

Black American victims

According to a report, black Americans experience nearly 10 times more gun violence, 15 times more gun assaults, and 3 times more shootings from White American police. On average, 26 black Americans are a victim of gun violence each day and on average around 104 injuries are witnessed by Black Americans in America. Gun violence has led to the loss of more Black American lives and the reason for it is racial discrimination which the US still has considering black African-Americans.

According to another report, the black teens and men are a victim of more than 1/3 of the total firearms violence in the USA in the year 2019.

Other Impacts

Fear of gun violence

Most of the Americans who do not possess any firearms live under the fear of gun violence which caused a permanent place in the hearts of Americans who may or may not possess any firearms. Gun violence is usually high in areas where the number of individuals possessing guns is high and in such areas, others who do not possess firearms due to any reason have fear.

Impact on the children

The children are the most vulnerable victims of gun violence as such incidents may not only create permanent trauma but also such children may adopt firearms as a means of settlement and vengeance, leading to violation of the law.

Impact on women

Many women are widows because their husbands were a victim of gun violence. Furthermore, the chances of rape at gunpoint are more.

Conclusion

The Second Amendment under the Bills of Rights creates provision for the right to have firearms regarding militias, the purpose of which is to assist the National Army in times. However, there are no pieces of evidence to support their claim whether the US needs militias to protect its sovereignty, but conclusive proofs of firearms violence have been established by this article and therefore, the US must abandon the right to firearms if the nation desires to protect the lives of its citizens.

Despite, various discussions on legislations and the current firearms policy in the United State regarding the sale, purchase, manufacturing, transportation, ownership, possession, etc., the American judiciary has not yet provided with how these factors are more essential than compared to the lives of those innocent who are killed every year as a consequence of such a dangerous law being enforced. Indeed, the thinkings of the founding fathers cannot be withheld, neither their practices are abolished. However, the US has certainly failed in protecting the lives of innocent victims of gun violence.

References

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Introduction

Difference between limitation of liability clause and indemnity clause

Vendor agreement and its essential clauses

Some of the essential clauses to be included in the vendor agreement

Importance of liability clause in the vendor agreement

One-size fit approach

Dealing with limitation of liability clause in the vendor agreement

Drafting is the key

Conclusion

References

Introduction

Contention to the parties

Meaning of retrospective taxation

Evolution of the case

The passage of Vodafone

The Indian expense department

The passage of the legal executive framework

Definition of the bilateral investment treaty

The corrections made

The choice by the International Arbitration Tribunal

Explanations for this choice

Conclusion

References

Introduction

What is copyright and what constitutes copyright infringement?

Criminal copyright provisions under the Copyright Act, 1957

Relevant case laws

Krishika Lulla & Ors. vs. Shyam Vithalrao Devkatta & Anr

Cheria P Joseph vs. Prabhakaran

Conclusion and analysis

Reference

Introduction

Defining mortgage

Types of mortgages

1. Simple mortgage

2. Mortgage by the conditioned sale

3. Usufructuary mortgage

4. English mortgage

5. Mortgage by deposit of title sale

6. Anomalous mortgage

What is a decree for sale?

Remedies available to redeem the mortgage money

1. Foreclosure suit

2. Suit for sale

3. Recovery of balance due in the suit for sale

How to obtain a decree of sale?

1. The parties to the suit

2. Preliminary decree for sale of suit

3. Final decree for sale of suit

Conclusion

References

Introduction

Background of the Draft Rules

Mr R Basant’s submissions

Appointment of amicus curiae

Objective and purpose of the Draft Rules

Causes of delay and deficiency in criminal trials

1. Scheduling of cases

2. Poor quality of investigation

3. Abysmal quality of documentation

4. Adjournment of cases

5. Framing of charges

Analysis of Draft Rules in criminal practice

Investigation

Charge

Trial

The judgment

Miscellaneous

Conclusion

References

Introduction

What is drafting?

What is a lease agreement?

Lease agreement between a bank and an owner

Residential property

Commercial property

Difference between lease and license agreement

Lease agreement

Licence agreement

Some of the important clauses to a lease agreement