THE COLLEGIUM SYSTEM VERSUS THE JUDICIAL APPOINTMENTS COMMISSION BILL

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THE COLLEGIUM SYSTEM VERSUS THE JUDICIAL APPOINTMENTS COMMISSION BILL

(Author: Rudrika Sharma. Student of 5th year, Law School, University of Jammu)

The judiciary is perhaps the only institution in our country to which the citizens accord utmost credibility. It is indeed the most trusted and respected institution. Then why does the selection of judges to serve in the Supreme Court and the High Courts take place through an impenetrable process? Questions have been raised time and again on the genuineness and transparency of the existing collegium system for appointment of the judges to the Supreme Court and the High Courts. Justice Rumpa Pal has rightly remarked that the process of appointments of judges to the superior courts is the best kept secret in the country. The Judicial Appointments Commission, Bill 2013 has been introduced to replace the existing collegium system by an independent Judicial Appointments Commission. The collegium system undoubtedly gives supreme power to the judiciary in making the appointments and there is an immediate need for a complete overhaul of this system. But is the Judicial Appointments Commission a better successor?

 

 CONSTITUTIONAL PROVISIONS AND JUDICIAL INTERPRETATION

The constitution of India provides under Article 124(2) that the judges of the Supreme court shall be appointed by the President in consultation with such of the judges of the Supreme court and the High Courts as he may deem necessary provided that in case of appointment of a judge other than the Chief Justice, the Chief Justice of India shall always be consulted and Article 217(1) provides that the judges of the High Courts shall be appointed by the President after consulting the Chief Justice of India, the Governor of the State concerned and in case of appointment of a judge other than the Chief Justice of the High Court to which the appointment is to be made. Thus the Constitution has vested the power of appointments with the executive in consultation with the Chief Justice and such other judges deemed necessary by the President.

A question came before the Supreme Court in S.P. Gupta v. Union of India that whose opinion amongst the various functionaries participating in the process of appointment should have primacy? It was held by the Supreme Court that the opinion of the Chief Justice of India and the Chief Justice of the High Court are MERELY CONSULTATIVE and the power resides solely and exclusively  in the Central Government. Thus, a literal interpretation was given to the word consultation.

 

In 1993 , a nine judges Bench OVERRULED this decision in SUPREME COURT ADVOCATES-ON-RECORD-ASSOCIATION v. UNION OF INDIA and conferred wide powers on the judiciary in making the appointments. The Supreme held :-

 

  • That the opinion of the Chief Justice of India should have the greatest weight as he is best suited to know the worth of the appointee,
  • The selection should be made as result of a participatory consultative process in which the Executive has the power to act as a mere check on the exercise of power by the Chief Justice of India
  • In case of a conflict  the primacy must lie in the final opinion of the Chief Justice of India and this primacy in effect means primacy of the opinion of the Chief Justice of India formed collectively after taking into account the views of his senior colleagues who are required to be consulted by him.
  • It is open to the executive to ask the Chief Justice of India and his two colleagues forming the collegium to reconsider the matter, if they have any objection to the name recommended but if, on such reconsideration, the Chief Justice of India and his two colleagues reiterated the recommendation, the executive was bound to make the appointment.

 

Thus after this judgment the role of the judiciary became pivotal in making the appointments.  Role of the Executive became minimal with no power to override the decision of the collegium. This epoch-making judgment was reaffirmed IN RE :SPECIAL REFERENCE (1998) case in which the then President Mr. K.R. Narayanan made a reference to the Supreme  Court under Article 143 of the constitution. The Supreme court recommended that the collegium making the appointments should consist of the Chief Justice and four senior most judges, the opinion of all the judges should be in writing, if the majority of the collegium is against the appointment of any person he should not be appointed.

 

 THE COLLEGIUM SYSTEM

The collegium system thus came into being in 1993. This system consists of a powerful clique of judges led by the Chief Justice having an absolute and irrefutable power to make the appointments of the judges of the High Courts and the Supreme Court. This system has been criticized by many doyens of the Indian Judiciary for being non-transparent and undemocratic. This system was introduced with the objective of insulating the Judiciary from political interference but it has drawn flak from various legal luminaries for not providing any concrete criteria for the prospective appointees. The original scheme of the constitution aimed to maintain a balance between the Executive and the Judiciary  but this system has vested indisputable powers in the Judiciary. The Constitution has no mention of such kind of a system. The constitution provides for a fine balance which has been disturbed by this system. The Rule of Law runs throughout the spirit of our constitution and the basic principle governing the Rule of Law is this that absolute power is not to be vested in any body, organization or institution. It is a well known maxim that power corrupts and absolute power corrupts absolutely. There is always an apprehension that there can be an arbitrary exercise of discretion, judiciary being no exception to it.  The Supreme Court Bar Association President M.A.Krishnamani opines that many judges feel that the collegium system has failed and barring one or two appointments, all other appointments under the collegium system are vitiated either by lack of criteria or by lack of transparency and by nepotism and favoritism. It can be concluded from his opinion that this is a flawed system having no uniform criteria for appointing judges. It lacks the element of accountability of the selectors who can select anybody subject to their whims. There is a blatant lack of objectivity in this system The subjective satisfaction of the collegium is not subject to judicial review and the decision can be challenged only if the proper procedure has not been followed by the collegium. It means only the procedure can be challenged and not the appointment..

 

The first  collegium consisted of Justice M.N.Venkatachaliah, Justice S RatnavelPandian and Justice A.M Ahmadi. It is said that the former Chief Justice of Guahati High Court U.L Bhatt was not recommended as the Supreme Court judge because he was considered to be ‘irreverent’ by colleagues of Justice M.N .Venkatachaliah. Is this the criteria which governs the appointment of judges of the Supreme Court? This system has failed to deliver and its replacement by a more transparent and objective system is desideratum.

 

THE JUDICIAL APPOINTMENTS COMMISSION, BILL 2013

This bill has been introduced with the objective of creating a broad based Judicial Appointments Commission for making recommendations for selection of judges. It aims to introduce transparency in the selection process by giving due representation to the Executive as well as the Judiciary. It is proposed that the Judicial Appointments Committee will consist of the Chief Justice, two Supreme Court judges, the Law Minister and two eminent persons who will be selected by a collegium consisting of the Prime Minister, the Chief Justice and the Leader of the Opposition. This Bill is an attempt to revive the concept of equal representation of the Executive and the Judiciary in making the appointments. To bring the proposed commission into existence, 120th Constitution Amendment has been introduced. Once the Bill is passed by both the Houses of the Parliament it will have to be ratified by one half of the assemblies, only then it can become an Act.

 

THE COLLEGIUM SYSTEM  Vs THE JUDICIALAPPOINTMENTS COMMISSION

It is writ large that the collegium system has failed to create an unbiased system for making the appointments of the judges of the Supreme Court and the High Courts and many voices from the legal fraternity have been demanding its replacement. But is the legal fraternity ready to adopt the Judicial Appointments Commission as proposed? Charges have already been leveled against the JAC as an attempt to compromise the independence of the Judiciary. It has been said that the cure should not be worse than the disease. It is required that the JAC should not give sweeping powers to the Executive and a balance is maintained. There is a system of checks and balances under which the Constitution functions and it can be maintained only if no organ of the State is vested with an absolute power. The collegium system is an undemocratic system under which the prerogative lies with the Judiciary to make the appointments to such a powerful institution. This system is a perfect example of legislation by the Judiciary. Such a system is not followed in any democratic state and is unique to our legal system. It has completely annihilated the Constitution scheme of checks and balances by reducing the role of the Executive to the minimum. The JAC, Bill definitely provides a better alternative but a lot of debate and discussion is required to be conducted before it turns into an Act as it concerns a matter of immense importance. There is no clarity as to who will be the ‘two eminent’ persons who are proposed to be the members of the JAC and on what considerations they will be selected. The UPA government’s hurry to pass the bill has raised serious aspersions on the intention of the government. The approach of the government should be more assiduousand responsible. This is not a bill of ordinary importance and concerns the complete overhaul of the process of judicial appointments. It should be passes only after detailed deliberations and debates. The non transparency of the current collegium system should not be made a pretext for giving the Executive sweeping powers in the matter of judicial appointments.

Court Management

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Court Management

(Author: Sanjay Salkute)

The greatest problem of district courts is that of huge backlog of cases leading to undue
delay in deciding cases. Shifting the blame on judicial system only will not cure such problem.
Now recently the Hon’ble Chief Justice of India has launched a National Court Management
Program.
New Methods and New Roles are necessary in the Justice Delivery System which was
pleased to addressed by Hon’ble Shri. Justice Mohit S.Shah, Chief Justice of the Bombay High
Court at the inauguration of the conference of the Judicial officer on “Enhancing Quality of
Adjudication” at Judicial Academy Uttan, Thane.
At District & Sessions Court, Thane , formulated a mission to develop “ Best
Practices Guide” for improving Judicial Quality, Enhancing court management and reduce
pendency.
The Hon’ble Shri. K.K. Sonawane, Principal District Judge, Thane who is also the
Patron-In-Chief of this mission pleased to establish to develop Best Practices Guide at Thane
Court with a series of administrative stages to facilitate continuous monitoring , mentoring and ,
if necessary to to guide to ensure cases are disposed at the earliest opportunity at Civil Judge
Junior Division and J.M.F.C. Courts.
This pilot project is for the one of the object from the mission to develop Best
Practices Guide , to decrease old pendency and Increase rate of disposal in Civil Judge Junior
Division and J.M.F.C. Courts Bhiwandi District Thane. The period of Pilot project was from
December 2012 to February 2013. It is an Executive Mentoring program.
There are Eight Courts of Civil Judge Jr. Dn. & J.M.F.C at Bhiwandi Thane.
Physical verification of cases by qualitative and quantitative manner is like a health
check of the the court. Unless physically fit , the surgery can not be carried out. So, unless cases
are physically verified by qualitative and quantitative way , the result for new method can not be
Calculated /evaluated. At four courts , physical verification by quantitative method was carried
out , therefore those courts are selected and taken as Pilot courts. Other Four courts where
balance sheet and physical verification was not carried out , those are considered as Nonpiloting
courts. Some Pilot courts are concentrating over criminal cases though civil cases are
vested to them. Mentoring sessions were held for all courts. This pilot project shows effect over
piloting and non piloting area.
In this pilot project, the disposal from previous three months from September 2012 to
November 2012 was compared with the disposal during the pilot project period . The aspects
are researched , for pilot courts , increasing percentage rate of disposal per day and percentage
rate of disposal of old pending cases by dissecting balance sheet. For Non-piloting courts were
monitored and effect of increase in average rate of disposal of cases per day and average
decrease in pendency found. Thirdly overall effect of this pilot project over disposing cases
under ADR system.
To the end of this pilot project, examine the outcome of the all courts , resistance found
to pilot project and suggested need of effective management in the existing environment of
judicial system.
This pilot project may study by any person therefore some secondary data is presented at
relevant stage.
Findings :-Main Factors:-
A) Decreasing the pendency of cases in all courts.
B) a) Pilot courts:-
(I) Increasing % rate of disposal per day.
(II) Decreasing % backlog of old pending cases.
b) Non-pilot Courts :-
(i) Average Increase the rate of disposal of cases per day.
(ii) Average Decrease the pendency of cases .
c) For ADR system:- Increase in disposal of cases through
Mediation and Maha Lok-Adalat.
Decreasing the pendency of cases in Civil Cases by Pilot Courts.
§ 3rd Joint Civil Judge Jr. Dn.and JMFC Decreased Pendency of 99 cases
§ Disposal for 3rd Joint Civil Judge J.D. &J.M.F.C. In civil cases Increased per day by 1.636
§ 5th Joint Civil Judge Jr.Dn. and JMFC Decreased Pendency of 12 cases
§ Disposal for 5th Joint Civil Judge Jr. Dn. &J.M.F.C. In civil cases Increased per day by
0.428
Decreasing the pendency of cases in Criminal cases by Pilot courts
§ 4th Joint Civil Judge Jr. Dn. and JMFC Decreased Pendency of 145 Cases
§ Disposal for 4th Jt. Civil Judge Jr. Dn. & JMFC in criminal cases Is increased per day by
1.991
§ 5th Joint Civil Judge Jr. Dn. and JMFC Decreased Pendency of 156 Cases
§ Disposal for 5th Jt. Civil Judge Jr. Dn & JMFC in criminal cases Is increased per day by
5.414
§ Juvenile Court Decreased pendency of 102 Cases
§ Disposal by Juvenile court is increased per day by 7.202
Pendency decreased by Mediation by Pilot Court
§ Mediation cases disposal by 3rd Joint CJJD & JMFC is increased 07 cases
§ Mediation cases disposal by 4th Joint CJJD & JMFC is increased 21 cases
§ Mediation cases disposal by 5th Joint CJJD & JMFC is increased 10 cases
Decreasing criminal cases pendency by Non-pilot courts
§ Jt. CJJD & JMFC disposal rate increased 1.08 & 10 years old pendency 0.333 (BJ), 9.667
(O.W.)
§ 6th Jt. CJJD & JMFC disposal rate increased 2.294 & 10 years old pendency 1.333 (BJ),
otherwise 6.667 (O.W.)
Pendency decrease by mediation by non-pilot court
§ Jt. CJJD & JMFC increased 12 cases.
§ 6th Jt. CJJD & JMFC increased 13 cases.
• Conclusion : There is heavy pendency of cases in all courts. Most of the cases are old cases.
Each of the pilot courts had a distinctly different experience with the pilot project. For this
reason, each court was examined separately in order to consider the extenuating factors that
varied from court to court. There are two civil courts . One of the civil court which is pilot court
has given excellent response. The pilot court for criminal cases, where civil cases are vested , has
shown satisfactory progress .This pilot project resulted in significant improvement in nearly all
areas of case load management. In addition, all the courts showed more favorable results for
disposal of cases through ADR System. Experience during the three months of the pilot project
has shown that, except resisting courts, the goal of decreasing backlog in the courts is being
achieved. This being Pilot Project, the possibility of better results, using other methods may be
possible. By effective management, the goal of entire mission is possible for which long term
strategy has to be continued. The Policy & Action Plan for National Court Management Systems
(NCMS) will be more beneficial for getting dramatically higher results.

Defining “Judicial Accountability”

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Defining “Judicial Accountability”

Judicial Accountability is now generally accepted as an important value of judiciary, even though some instruments explicitly mention it. The problem with judicial accountability is that little attention is paid to what is meant by this notion. Most authors primarily focus on the notion of judicial accountability only in relation to judicial independence. As a result they tend to leave the notion of judicial accountability undefined. This fact in turn increases the danger that judicial accountability “can be co-opted and misused easily”.

Furthermore, the phrase” judicial accountability” consists of a noun (accountability) and an adjective (judicial); it suggests that we need to understand the concept of accountability before we can understand judicial accountability. Accountability is a complex and amorphous notion, which, in turn, increases the danger that it can be “co-opted and misused easily”. The definition of accountability should provide answers to two fundamental questions, namely (1) must accountability mechanisms must entail a power of principal to impose sanctions? And (2) does accountability encompass only negative actions? The answers to these questions are yes and no.

In order to define this notion “judicial accountability” six questions must be answered:

(1)   Who is a “judge”?

(2)   To whom are judges accountable?

(3)   For what are judges accountable?

(4)   Through what processes are judges accountable?

(5)   By what standards are judges accountable?

(6)   With what effects are judges accountable?

The answer to first question is judges here are the full time professional judges of the courts i.e. the district courts, session’s courts, High courts and Supreme Courts, who are designated to be a judge by a due process and hold the capacity to be judges.

The answer to the second question is; judges can be accountable to four different actors

(1)   to the executive

(2)   to the legislature

(3)   to the public

(4)   to their fellow judges

 

Some of these mechanisms are specific to particular accounting agent e.g. impeachment is only available to legislature, some of them can be employed by all accounting agents like criticism of judges, and some can be designed in various ways in order to encompass one or more accounting agents e.g. disciplinary proceedings.

As to accountability for what question, it can be distinguished between decisional accountability and behavioural accountability. Decisional accountability means holding judges responsible for their judicial decisions. Answerability for judicial decisions should be considered broadly so as to so as to encompass not only substantive content of a decision but also its form, layout and legibility. Behavioural accountability means holding judges responsible both for their “on-the-bench” and off-the-bench” record.

The remaining three questions- through what process?, with what effect? And by what standards? Are closely interrelated. Even though the definition of judicial accountability is very narrow, there is still a plethora of mechanisms that fall within the ambit of this definition like impeachment which is a constitutional provision in India to the latest judicial accountability bill, 2010.

Finally by what standards question, these standards vary from mechanism to mechanism. However we may broadly define two standards (1) political standards and (2) legal standards. A specific feature of accountability of judges is a significant degree of “legalization” of judicial accountability. This means that the political accountability of judges that allows greater discretion has been eroded and to a large extent and replaced by legal accountability that rests strictly on legal standards.

After answering abovementioned questions, the following definition judicial accountability emerges. Judicial accountability is “the cost that a judge expects to incur or profit that he expects to gain in case his behaviour/ or his decisions deviate too much from a generally recognized standard.

 

BAR COUNCIL OF INDIA: INTRODUCTION

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BAR COUNCIL OF INDIA: INTRODUCTION

The Bar Council of India is a statutory body that regulates and represents the Indian bar. It was created by Parliament under the Advocates Act, 1961. It prescribes standards of professional conduct, etiquettes and exercises disciplinary jurisdiction over the bar. It also sets standards for legal education and grants recognition to Universities whose degree in law will serve as a qualification for students to enroll themselves as advocates upon graduation.
Section 4. of the Bar Council of India provides-
(1) There shall be a Bar Council for the territories to which this Act extends to be known as the Bar Council of India which shall consist of the following members, namely:–
(a) the Attorney- General of India, ex officio;
(b) the Solicitor- General of India, ex officio; 1[
(c) one member elected by each State Bar Council from amongst its members.

Section 4(1-A) of the Act makes it clear that no person shall be eligible for being elected as a member of the Bar Council of India unless he possesses the qualifications specified in the proviso to sub- section (2) of section 3.

Section4(2) of the Act provides that there shall be a Chairman and a Vice- Chairman of the Bar Council of India elected by the Council in such manner as may be prescribed.

Section 4(2-A) of the Act makes it clear that a person holding office as Chairman or as Vice- Chairman of the Bar Council of India immediately before the commencement of the Advocates (Amendment) Act, 1977 (38 of 1977 ), shall, on such commencement, cease to hold office as Chairman or Vice- Chairman, as the case may be:
Provided that such person shall continue to carry on the duties of his office until the Chairman or the Vice- Chairman, as the case may be, of the Council, elected after the commencement of the Advocates (Amendment) Act, 1977 (38 of 1977 ), assumes charge of the office.

Section 4(3) of the Act provides that the term of office of a member of the Bar Council of India elected by the State Bar Council shall–
(i) in the case of a member of a State Bar Council who holds office ex officio, be two years from the date of his election 2[ or till he ceases to be a member of the State Bar Council, whichever is earlier]; and
(ii) in any other case, be for the period for which he holds office as a member of the State Bar Council:
Provided that every such member shall continue to hold office as a member of the Bar Council of India until his successor is elected.

Section 10-A of the Act provides that The Bar council of India shall meet at New Delhi or at such other place as it may, for reasons to be recorded in writing, determine. A State Bar Council shall meet at its headquarters or at such other place as it may, for reasons to be recorded in writing, determine .The committees other than disciplinary committees constituted by the Bar Councils shall meet at the headquarters of the respective Bar councils. Every Bar Council and every committee thereof except the disciplinary committees shall observe such rules of procedure in regard to the transaction of business at their meetings as may be prescribed. The disciplinary committees constituted under section 9 shall meet at such times and places and shall observe such rules of procedure in regard to the transaction of business at their meetings as may be prescribed.

Section 10-B of the Act provides that an elected member of a Bar Council shall be deemed to have vacated his office if he is declared by the Bar Council of which he is a member to have been absent without sufficient excuse from three consecutive meetings of such Council, or if his name is, for any cause removed from the roll of advocates or if he is otherwise disqualified under any rule made by the Bar Council of India.

Section 14 of the Act provides that no election of a member to a Bar Council shall be called in question on the ground merely that due notice thereof has not been given to any person entitled to vote thereat , if notice of the date has, not less than thirty days before that date, been published in the Official Gazette.

HISTORY

After the Constitution of India was established on January 26, 1950, the Inter-University Board passed a resolution emphasizing the need for an all-India Bar and the importance of uniformly high standards for law examinations in different Universities. In May 1950, the Madras Provincial Lawyers Conference, held under the presidency of Shri S. Varadachariar, resolved that a committee appointed by the Government of India should evolve a scheme for an all-India Bar and amend the Indian Bar Councils Act such that it conforms to the new Constitution. On April 12, 1951, Shri Syed Mohammed Ahmad Kazmi, a Member of Parliament, proposed a bill to amend the India Bar Councils Act. The Government of India concluded that it was necessary for the Government to sponsor the Bill. In August 1951, a Committee of Inquiry was set up to consider the feasibility of a unified Bar in India, the continuance or abolition of the dual system of counsel for each state, possibility of a separate Bar Council for the Supreme Court and the revision of enactments related to the legal profession.

STRUCTURE OF THE BAR COUNCIL OF INDIA

The Bar Council of India consists of 18 Members. The Attorney General of India and the Solicitor General of India are Ex-officio Members of the council and the other 16 Members represent the 16 State Bar Councils in the country. The Members are elected for a period of five years and the Chairman and Vice -Chairman are elected for a period of two years from among the Members of the Bar Council of India. The Bar Council further consists of various committees viz., Legal Education Committee, Disciplinary Committee, Executive Committee, Legal Aid Committee, Advocates Welfare Fund Committee, Rules Committee and various other Committees formed to look into specific issues arising from time to time.
FUNCTIONS OF BAR COUNCIL OF INDIA

The Bar Council of India was established by Parliament under the Advocates Act, 1961. The following statutory functions under Section 7 cover the Bar Council’s regulatory and representative mandate for the legal profession and legal education in India:
1. To lay down standards of professional conduct and etiquette for advocates.
2. To lay down procedure to be followed by its disciplinary committee and the disciplinary committees of each State Bar Council.
3. To safeguard the rights, privileges and interests of advocates.
4. To promote and support law reform.
5. To deal with and dispose of any matter which may be referred to it by a State Bar Council.
6. To promote legal education and to lay down standards of legal education. This is done in consultation with the Universities in India imparting legal education and the State Bar Councils.
7. To recognize Universities whose degree in law shall be a qualification for enrolment as an advocate. The Bar Council of India visits and inspects Universities, or directs the State Bar Councils to visit and inspect Universities for this purpose.
8. To conduct seminars and talks on legal topics by eminent jurists and publish journals and papers of legal interest.
9. To organize legal aid to the poor.
10. To recognize on a reciprocal basis, the foreign qualifications in law obtained outside India for the purpose of admission as an advocate in India.
11. To manage and invest the funds of the Bar Council.
12. To provide for the election of its members who shall run the Bar Councils.
The Bar Council of India can also constitute funds for the following purposes:
1. Giving financial assistance to organize welfare schemes for poor, disabled or other advocates,
2. Giving legal aid, and
3. Establishing law libraries.
The Bar Council of India can also receive grants, donations, and gifts for any of these purposes.
With respect to the point 6, (stated above) the Supreme Court has made it clear that the question of importing legal education is entrusted to the Universities in India and not to the Bar Council of India. All that the Bar Council can do is to suggest ways and means to promote suck legal education to be imparted by the Universities and for that purpose it may lay down the standards of education. Sections 7 do not entitle the Bar Council itself to frame rules laying down pre-enrolment as Advocate.
In RaveendranathNaik v. Bar Council of India, the resolution passed by the Bar Council of India directing advocates not to participate in any programme organized by the Legal Services Authorities in any LokAdalat or any legal aid programme has been held illegal and void.
In Ex-Captain Harish Uppal v. Union of India, the court held that section 7 provides in respect of the functions of the Bar Council of India, but none of its functions mentioned in section 7 authorizes it to paralyze the working of the Courts. On the contrary it is enjoined with a duty to lay down standards of professional conduct and etiquette for advocates. No Bar Council can ever consider giving a call of strike or a call of boycott. In case any association calls for a strike or boycott the concerned State Bar Council of India must immediately take disciplinary action against the advocates who gives a call for a strike. It is the duty of every advocate to ignore a call of strike or boycott.
COMMITTEES OF BAR COUNCIL OF INDIA

The Bar Council of India has various committees that make recommendations to the Council. The members of these committees are elected from amongst the members of the Council.
The Advocates Act mandates the creation of a Disciplinary Committee (under section 9), a Legal Education Committee, and an Executive Committee (under section 10). Chapter III of the Bar Council of India Rules permit the Council to appoint from amongst its members, one or more committees in addition to those specified in the Act. The Council can delegate powers, duties, and functions to these committees.
The term of the members of the committees of the Council has been specified in Chapter III of the Bar Council of India Rules. A different term can be specified at the time of election.
LEGAL EDUCATION COMMITTEE
The Legal Education Committee consists of five members of the Bar Council of India and five co-opted members to represent the judiciary, the Law Ministry, the University Grants Commission, and academia. This committee makes recommendations to the Bar Council of India on all matters pertaining to legal education in the country. The committee elects its own Chairman.
The Legal Education Committee has the power:
• To make recommendations to the Council for laying down the standards of legal education for Universities.
• To visit and inspect Universities and report the results to the Council.
• To recommend to the Council the conditions subject to which foreign qualification in law obtained by persons other than citizens of India may be recognised.
• To recommend to the Council for recognition of any degree in law of any University in the territory of India.
• To recommend the discontinuance of recognition of any University already made by the Council.

Precisely, Legal education matters within the Bar Council are regulated by the Legal
Education Committee, which consists of five Members of the Bar Council of India and
five Members co-opted from outside and they represent Judiciary, Law Ministry,
University Grants Commission and Academicians. This is a high powered committee
which makes recommendations to the Bar Council of India on all matters pertaining to
Legal Education in the country. The Legal Education Committee elects its own Chairman.

DISCIPLINARY COMMITTEE
The disciplinary committee of the Bar Council of India hears applications for revision by persons against summary dismissal of their complaints against advocates for professional misconduct, by the State Bar Councils.
Appeals lie before the Bar Council of India against orders of the disciplinary committees of the State Bar Councils. Every such appeal is heard by the disciplinary committee of the Bar Council of India, which may pass an order, including an order varying the punishment awarded by the disciplinary committee of the State Bar Council.
Each disciplinary committee consists of three members. The term of the members of this committee is three years.

EXECUTIVE COMMITTEE
The Executive Committee is the executive authority of the Council, and is responsible for giving effect to the resolutions of the Council.
Members of the Executive Committee are elected from amongst the members of the Bar Council of India. The committee elects its Chairman and Vice-chairman.
The Executive Committee has the power:
• To manage the funds of the Council,
• To invest the funds of the Council in the manner directed by the Council from time to time,
• To grant leave to members of the staff, other than casual leave,
• To prescribe books of account, registers and files for the proper management of the affairs of the Council,
• To appoint and supervise the work of the members of the staff and prescribe their conditions of service
• To appoint auditors and fix their remuneration,
• To consider the annual audit report and place it before the Council with its comments for its consideration,
• To maintain a library and under the directions of the Council, publish any journal, treatise or pamphlets on legal subjects,
• To prepare and place before the Council, the annual administration report and the statement of account,
• To provide for proper annual inspection of the office and its registers,
• To authorise the Secretary to incur expenditure within prescribed limits,
• To fix travelling and other allowances to members of the committees of the Council, and to members of the staff,
• To delegate to the Chairman and/or the Vice-Chairman any of its aforementioned powers,
• To do all other things necessary for discharging the aforesaid functions.

ADVOCATE WELFARE COMMITTEE
The Advocates Welfare Committee looks into applications made by advocates through various State Bar Councils for welfare funds. The committee verifies the application and allocates funds.
The Advocates Welfare committee is empowered by the Advocates Welfare Fund Act, 2001. The State Bar Council shall pay to the Fund annually, an amount equal to twenty per cent of the enrolment fee received by it from advocates clause (f) of Section 24 of the Advocates Act.
The members of the Advocates Welfare Committee are elected from amongst the members of the Bar Council of India. The term of each member in this committee is two years.
LEGAL AID COMMITTEE
The Legal Aid Committee provides aids to those requiring legal assistance.

BUILDING COMMITTEE

The Building Committee is responsible for setting up offices for the Council.

RULES COMMITTEE

The Rules Committee reviews the rules and regulations of the Council.

CONCLUSION

The Bar Council of India has a lot of functions vested within itself, whereby exercising those functions it can restructure and reframe the entire legal arena in the country. In fact, it can be more predominantly envisaged that in modern times it has hardly contributed constructively in the improvement of law in India. There are certain loopholes in the legal arena in India today which the Bar Council must look into, in order to protect the law standard from degradation and to maintain the same standards.

Laws article relating to ’GIFT’

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INTRODUCTION

“Gift” is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee. Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void.

The conception of the term “gift” as used In the Transfer of Property Act is somewhat different from the use in Mohammedan law. In the Mohammedan law a gift is a transfer of property or right by one person to another in accordance with the provisions given in the Mohammedan law and includes-

a) A hiba, an immediate and unconditional transfer of the ownership of some property or of some right, without any consideration or with some return (ewaz); and

b) An ariat, the grant of some limited interest in respect of the use or usufruct of some property or right.
Where a gift of any property or right is made without consideration with the object of acquiring religious merit, it is called sadaqah.

The terms “hiba” and “gift” are often indiscriminately used but the terms “hiba” is only one of the kinds of transactions which are covered by the general term “gift”. A hiba is a transfer without consideration. A gift by a Muslim in favour of his co-religionist must be under the Mohammedan Law. A gift is not a contract (though in Muslim law it is called a contract) but the principle may be applicable even to gift.

In ordinary legal effect, there cannot be a `gift’ without a giving or taking. The giving or taking are two contemporaneous, reciprocal acts, which constitute a gift. Section 122 of the Act postulates that a gift is a transfer of certain existing movable or immovable property made voluntary and without consideration by one person called the donor, to another, called a donee and accepted by or on behalf of the donee.

The essential elements of a gift are :

(a) The absence of consideration;

(b) the donor;

(c) The donee;

(d) The subject-matter;

(e) the transfer; and the acceptance.

The concept of gift is diametrically opposed to any presence of consideration or compensation.
In order to constitute a valid gift, the pivotal requirement is acceptance thereof. No particular mode of acceptance is required and the circumstances throw light on that aspect. A transaction of gift in order to be complete must be accepted by the donee during the lifetime of the donor. Factum of acceptance can be established by different circumstances such as donee taking a property or being in possession of deed of gift alone. If a document of gift after its execution or registration in favour of donee is handed over to him by the donor whom he accepts, it amounts to a valid acceptance of gift in law. The specific recital in the deed that possession is given raises a presumption of acceptance.

 

Conception Of Property

English Law.-In order to appreciate the questions of conditions in gifts (and also in bequests) it is necessary to first note the different conceptions of property in English and Mohammedan laws.

The English law as to rights in property is classified by a division on the basis of immoveable and moveable (real and personal) property. Rights in land described as “estate in land” do not always imply only absolute ownership but also rights which fall short of it and are limited to the life of the grantee or otherwise limited in respect of time and duration or use property in all these various forms are described as “estate”.

Ownership of land is thus split up into estates distinguished in point of quality (e.g., into legal and equitable estates) and in point of duration (e.g., estates in fee simple, in tail, for life or in remainder.’

Mohammedan Law – In general, Muslim law draws no distinction between real and personal property, and there is no authoritative work on Muslim law, which affirms that Muslim law recognises the splitting up of ownership of land into estates. What Muslim law does recognize and insist upon, is the distinction between the corpus of the property itself (ayn) and the usufruct in the property (manqft). Over the corpus of property the law recognises only absolute dominion, heritable and unrestricted in point of time; and where a gift of the corpus seeks to impose a condition inconsistent with such absolute dominion the condition is rejected as repugnant; but interests limited in point of time can be created in the usufruct of the property and the dominion over the corpus takes effect subject to any such limited interests. Limited interests in respect of property are not identical with the incidents of estates under the English law. Under the Mohammedan law they are only usufructuary interest (and not rights of ownership of any kind).
Thus, in English law a person having interest in immoveable property for limited periods of time is said to be the “owner” of the property during those periods. The usufruct is also a part of the corpus. On the other hand, in Muslim law, a person can be said to be an “owner” only if he has full and absolute ownership. Ownership for a limited period is not contemplated at all. If the use or enjoyment of property is granted to a person for life or other limited period such person cannot be said to be an “owner” during that period. The English law thus recognises ownership of the land limited in duration while Muslim law admits only ownership unlimited in duration but recognises interests of limited duration in the use of property.
There is no difference between the several schools of Muslim law in their fundamental conception of property and ownership. A limited interest takes effect out of the usufruct under any of the schools.

 The Donor


Doner’s Qualification
 :

The donor is the person who gives. Any person who is sui juris can make a gift of his property. A minor, being incompetent to contract is incompetent to transfer, and a gift by the minor would therefore be void trustees cannot make a gift out of trust property unless authorized by the terms of the contract.

On behalf of a minor, a natural guardian can accept a gift containing a condition that the person nominated in the gift deed shall act as a manager of the gifted property. Such acceptance would amount to recognition by the natural guardian of the nominated person as the manager or the agent of minor for the purpose of such property.

In Mohammedan law majority is to be determined according to Sec. 3 of the Majority Act, and not by Mohammedan law.
The age of majority as regards matters other than marriage, dower, divorce and adoption, is now regulated by the Indian Majority Act IX of 1875. Section 3 of the Act declares that a person shall be deemed to have attained majority when he shall have completed the age of eighteen years. In the case, however if a minor of whose person or property a guardian has been appointed, or of whose property the superintendence has been assumed by a Court of Wards, the Act provides that the age of majority shall be deemed to have been attained on the minor completing the age of twenty-one years.

Soundness of mind and majority are the only qualifications required for making a gift. A gift to be valid must be made by a person with his free consent and not under compulsion. The donor must not be insane but a mere weakness of the intellect would not be sufficient to invalidate the gift if the donor was able to apprehend the transaction.

Donor’s powers are unrestricted in Mohammedan law-
A man may lawfully make a gift of his property to another during his lifetime, or he may give it away to some one after his death by will. The first is called a disposition inter vivos and the second a testamentary disposition. Mohammedan law permits both kinds of dispositions, but while a disposition inter vivos is unfettered as to quantum and testamentary disposition is limited to one-third of the net estate. Mohammedan law allows a man to give away the whole of his property during his lifetime, but only one-third of it can be bequeathed by will from that of a will a gift may be made to a stranger wholly excluding the heirs. Pardanashin Lady Free consent means, the consent should not have been obtained by fraud, misrepresentation or undue influence. An insolvent donor is not competent to make a gift.

 

The Donee

The donee is the person who accepts the gift, by or on behalf of a person who is not competent to contract. A minor therefore may be a donee; but if the gift is onerous, the obligation cannot bee enforced against him while he is a minor. But when he attains majority he must either accept the burden or return the gift. 

The words ‘accepted by or on behalf of the donee show that the donee may be a person unable to express acceptance. A gift can be made to a child en ventresa mere and could be accepted on its behalf. 
The donee must be an ascertainable person and be a donee under this section; nor can a gift be made to an unregistered society.

A gift to two or more persons may be a gift to them as joint tenants or as tenants in common. The presumption of English law in favour of joint tenancy does not apply to a Hindu gift, and in a Hindu gift the donees are presumed to take as tenants in common It is necessary in Mohammedan law that the donee should accept a hiba and possession must be delivered in the case of hiba. As hiba is immediate and absolute transfer of ownership a hiba in favour of a person who was not in existence is invalid. It is necessary that the donee should accept a hiba and possession must be delivered in the case of hiba. As hiba is immediate and absolute transfer of ownership a hiba in favour of a person who was not in existence is invalid.

Gifts of Usufruct(Ariat) to unborn persons -a hiba stands on a different footing from a gift of a limited interest in usufruct a gift of future usufruct to unborn persons is valid provided that the donee is in being at the time when interest opens out for heirs

Child in the womb – a hiba in favour of a child in the womb is valid if the child is born within six months from the date of the hiba because in that case it is presumed that the child actually existed as a distinct entity in the womb of his mother.

Juristic persons – a gift to juristic persons or any other institution is valid. So a gift to corporate units, e.g. a tauazhi (consisting of a mother and of all her children and not descendants in the female line governed by Marumakkathayam law) are valid. Such a gift will be valid as being one for the whole body.

It has been held that a mosque is recognized by the Mohammedan jurist as a juristic person, and that a valid gift can be made in favour of a mosque.
Gifts to Non-Muslims – a gift may be made to a non-Muslim but in such a case the property will, after the completion of the gift, be subject to the personal law of the donee and not that of donor.

 

Subject Of Gift

The subject matter of the gift must be certain existing movable or immovable property. It may be land, goods, or actionable claims. It must be transferable under s 6. But it cannot be future property. A gift of a right of management is valid; but a gift of future revenue of a village is invalid. These cases were decided under Hindu and Mohammedan law respectively but they illustrate the principle. In a Calcutta case, it was said that the release of a debt is not a gift, as a gift must be of tangible property. It is submitted that the release of a debt is not a gift as it does not involve a transfer of property but is merely a renunciation of a right of action. It is quite clear that an actionable claim such as a policy of insurance may be the subject of a gift It is submitted that in a deed of gift the meaning of the word ‘money’ should not be restricted by any hard and fast rule but should be interpreted having regard to the context properly construed in the light of all the relevant facts. Therefore in order to constitute a valid gift, there must be an existing property. In Mohammedan law any property or right which has some legal value may be the subject of a gift.

Conditions For Valid Gift Under Section 122 Of The Transfer Of Property

There was a divergence of view between the two schools of Hindu law as to the necessity of acceptance of the gift by the donee, Dayabhaga holding that it was not necessary but Mistakshara holding the contrary. This section has modified the indigenous Dayabhaga law. A transfer of a stock to the name of the donee vests the property in him subject to his right to repudiate the gift, even though he be unaware of the transfer And this is so even though the gift be onerous. The mutation entries of the property alleged to be gifted does not conveyor extinguish any title and those entries are relevant only for the purpose of collection of land revenue.

Voluntarily :

In this section the word ‘voluntarily’ bears its ordinary popular meaning. It denoting the exercise of the unfettered free will, and not its technical meaning of ‘without consideration’. When a gift is made, it must satisfactorily appear that the donor knew what he was doing and understood the contents of the instrument and its effect, and also that undue influence or pressure was not exercised upon clear intention to make an out-and-out gift, but the intention has failed for want of transfer or any other cause, the courts will not convert what was meant to be an out-and-out gift into a trust, and the donor will not be deemed a trustee of the property for the intended donee. The gift will fail. Also where the husband deposited certain ornaments with a bank for safe custody in the joint names of himself and his wife, with direction to be delivered to be either or survivor, it did not amount to a gift, as the husband retained dominion over the property. Where a person keeps money to fixed deposit in the name of his niece, brought up and given in marriage by him, there is an inference of gift in favour of the niece. 
Where the motive behind the deed of gift was unequivocal to give the transferee a title which would act as a safeguard against any claim for pre-emption, the transaction for that reason cannot be called a sale. Similarly where a person settles an annuity upon his alleged wife, the settlement cannot be construed to be a contract for consideration of love and affection, but is a gift pure and simple.

Donative intention (motive) and consideration:

A gift is a transfer. But it does not contain any element of consideration. Complete absence of monetary consideration is the main, hallmark, which distinguishes a gift from a grant or any other transactions for valuable or adequate consideration. Where there is any equivalent of benefit measured in terms of money in respect of a gift, the transaction ceases to be a gift. Love, affection, spiritual benefit and many other factors may enter in the intention of the donor to make a gift but these financial considerations cannot be called or held to be legal considerations as understood by law. Legal consideration is one recognised or permitted by law as valid and lawful. The term is also sometimes used as equivalent to a ‘good’ or ‘sufficient’ consideration. Love and affection is a sufficient consideration when a gift is contemplated, but it is not considered as a ‘valuable’ consideration when such is required.

It is one of the essential requirements of a gift that it should be made by the donor ‘without consideration’. The word ‘consideration’ has not been defined in the T.P. Act, but means the same as in the Contract Act excluding natural love and affection. If not, and if the transfer involved consideration, the transaction would amount to a sale within the meaning of sec. 54 or to an exchange within the meaning of sec. 118. The essence of a gift inter vivos must be without ‘consideration’ of the nature defined in sec. 2(d) of the Contract Act.

Where a very old man, with weak eyesight, sues for cancellation of the deed of gift executed by him in favour of his son alleging that it was not his voluntarily act. The circumstance also indicated that the donee was in a position to dominate the will of the donor. Under such circumstance the onus shifts on to the donee to prove that the gift was made voluntarily.

In another case of the Orissa High court, Gift deed is alleged to have been taken from a pardanashin lady by practicising fraud. When the plaintiff is an illiterate or pardanashin lady, in spite of the fact that she is unable to establish her case of practising fraud, the onus still remains uponi the donee to establish conclusively that the document was executed after it was read over and explained to her and after she understood the contents thereof.

‘Without consideration’ :

A gift is a transfer without consideration and if there is any consideration in any shape, there is no gift. The word ‘consideration’ means valuable consideration, i.e. consideration either of money or money’s worth. A gift in lieu of conferring spiritual benefit to the donor is not a transfer with consideration, but is to be treated as a gift.

Where a mother gifts property to her only daughter, who promises to maintain the former throughout her life, the promise is not enforceable in law because the gift has to be for natural love and affection and not for any consideration . A minor may be a donee and the minor’s natural guardian can accept the gift on behalf of the minor. But if the gift is onerous, the obligations cannot be enforced against the minor during his minority. But on his attaining majority, the minor must accept the burden or return the gift. The donee can even be a child en ventresa mere (in its mother’s womb).

When Acceptance to be made. :

Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void.

Acceptance. :The gift must be accepted by the donee or by someone on his behalf. An offer without acceptance by the donee cannot complete the gift. Acceptance may be inferred from acts prior to the execution of the deed of gift. Mere silence may sometimes indicate acceptance provided the donee knows about the gift, slighest evidence of acceptance being sufficient.

Even when a gift is made by a registered instrument, the same has to be accepted by or on behalf of the donee to make it complete, failing which the gift will be bad, because it so provides in sec. 122. What the law requires is acceptance of the gift after its execution, though the deed may not be registered. Anterior negotiations or talks about the gift would not amount to acceptance. Person accepting gift on behalf of the minors appended his thumb-impression on the deed in token of acceptance. It was held that the gift was complete. Acceptance must be essentially made before the death of the donor. There must be something shown to indicate an acceptance. The acceptance may be signified by an overt act such as the actual taking of possession of the property, or such acts by the donee as would in law amount to taking possession of the property where the property is not capable of physical possession. Acceptance may be implied, but the rule of implied acceptance ought not to be extended so far as to hold that the acceptance will be presumed unless dissent is shown. Acceptance will be presumed if there is possession, actual or on the parties where some right, interest, profit or benefit accrues to one party, or some forbearance, detriment, loss, or responsibility is given, suffered or undertaken by the other. There is nothing in section122 of the transfer of property Act to show that the acceptance under this section should be express. The acceptance may be inferred, and it may be proved by the donee’s possession of the property, or even by the donee’s possession of the deed of gift.

Delivery of possession of the gifted property is not absolute requirement, for the completeness or the validity of the gift as found in Muslim Law of Gifts.

When a gift of immovable property is not onerous, only slight evidence is sufficient for establishing the fact of acceptance by the donee. When it is shown that the donee had knowledge of the gift, it is only normal to assume that the donee had accepted the gift, because the acceptance would only promote his own interest. Mere silence may sometimes be indicative of acceptance, provided it is shown that the donee knew about the gift. No express acceptance is necessary for completing a gift.

While mere possession by or on behalf of, a donee may amount to acceptance, mere possession cannot be treated as evidence of acceptance where the subject matter is jointly enjoyed by the donor and the donee.

A gift of immovable property can only be made by a registered instrument. A deed cannot be dispensed with even for a property of small value, as in the case of a sale. And as a further precaution, attestation by two witnesses is required. This provision excludes every other mode of transfer and even if the intended donee is put in possession, a gift of immovable property is invalid without a registered instrument.

 

Essentials Of Gift Under Mohammedan Law

Under Mohammedan law, to be a valid gift, three essentials are required to exist:

(a) declaration of gift by the donor

(b) an acceptance of the gift, express or implied, by or on behalf of the donee,

(c) delivery of possession of the subject of gift.

Courts have consistently held that when there is no compliance of any of the above three essential conditions the gift renders itself as invalid. Another characteristic of Mohammedan law is that writing is not essential to the validity of a gift either of movable or immovable property.

In another case the Patna High Court held that under the Mohammedan Law for validity of the deed of gift four elements are necessary

–         declaration of gift by the donor

–         relinquishment by donor of-ownership-and dominion

–         acceptance of the gift by donee,

–         delivery of possession of the property by donor.

Under the Mohammedan Law it is essential as regards gift that the donor should divest himself completely of all the ownership and dominion over the subject of the gift. It is essential to the validity of the gift that there should be delivery of such possession as the subject of the gift is susceptible of. According to Muslim law it is not necessary that there should be deed of gift in order to make it a valid gift, but of course, if there is a deed it should be registered.

Delivery of possession :

Under the Mohammedan law it is not necessary that there must be actual delivery of possession to make a gift valid. It is a fundamental rule of Mohammedan law as regards gifts,that “the donor should divest himself completely of all ownership and dominion over the subject of the gift. It is essential to the validity of a gift that there- should be a delivery of such possession as the subject of the gift is susceptible of what delivery the property is capable of and whether such delivery as the property is capable of has been given would depend upon the particular facts in each case.

A gift with a reservation of possession by the donor during his life was held to be void in K.S. Mohammad Aslam Khan v. KhalilulRahman Khan, One thing is clear, that by reserving undisturbed his right to be in possession and enjoyment, the donor does not divest himself completely of all dominion over the properties, though in sense, he purports to associate the donees with himself, nor can such associating the donees in the matter of possession and enjoyment with him be deemed to be delivery of such possession, if all, as the properties are susceptible of. It is not correct to say that a stipulation that the donor and the donees shall be in joint possession, satisfies the requirement of delivery of possession in a gift under the Mohammedan law.

Even where the donee resides with the donor in the property although no physical departure by the donor or formal entry by the donee, is necessary, the gift has to be completed by the donor indicating a clear intention of his part to transfer possession and to divest himself of all control over the subject of the gift.’ Among the conditions required for the validity of a gift under Mohammedan law the most essential is that of delivery of possession, actual or constructive, with the permission of the donor, without which a gift cannot be valid.

Possession, Actual and Constructive :

It should, however, is noted that while the delivery of possession is an essential condition for the validity of the gift, it is not necessary that in every case there should be a physical delivery of possession. Possession the delivery of which would complete a gift may be either actual or constructive. All that is necessary is that the donor should divest himself completely of all ownership and dominion over the subject of the gift. The relinquishment of control is thus necessary to complete the gift. The real test of the delivery of possession is to see whether the donor or donee reaps the benefit; if the former possession is not transferred and if the latter, it is transferred, and the gift is complete if the donee is permitted directly or indirectly to receive the benefit. Constructive possession of the subject of the gift is therefore sufficient.

Oral Gift of an Immoveable Property:

In view of sec. 123 of Transfer of Property Act, a gift of immovable property, which is not registered, is bad in law and cannot pass any title to the donee. Any oral gift of immovable property cannot be made in view of the provisions of sec. 123. Mere delivery of possession without a written instrument cannot confer any title

Under the Muslim law, an oral gift is permissible. However, in order to constitute a valid gift, the donor should divest himself completely of all ownership and dominion over the subject of gift. It is also essential for the donee not only to prove that the donor had made an oral gift in his favour, but it is also essential for him to prove that he accepted the said gift and delivery of possession of the gifted property had also been effected.

Although the Hindu law requires delivery of possession to complete a gift of immovable property, that law has been abrogated by sec. 123 of this Act. This section clearly seems to have the effect of rendering unnecessary the delivery of possession, substituting, as it does, registration for delivery of possession.

Since delivery of possession is not necessary, it follows that if a Hindu executes a gift in praesenti of three villages by means of a duly registered instrument but reserves possession of the villages in order to enjoy the usufruct during his lifetime, and at the same time provides that he would not alienate the property to anybody else, the gift is perfectly valid.

Under the Mohammedan law, the essentials of a gift are: declaration of gift by the donor, an acceptance of the gift by the donee, and delivery of possession such as is the subject of the gift susceptible of. This rule of Mohammedan law is unaffected by the provisions of sec. 123, Transfer of property Act and, consequently, a registered instrument is not necessary to validate a gift of immovable property.

Possession means not always actual physical possession but possession which the property is capable of being given. So far as declaration is concerned, it must be shown that the donor either in the “presence of witnesses or otherwise made a public statement that he gifted the property in favour of the donee and that he divested himself of the ownership of the property by delivering possession to the donee. A Mohammedan can make oral gift of his immovable gift subject to these conditions.
Delivery of possession being essential to the validity of a gift, it follows that if there is no delivery of possession, there is no valid gift.

Under the Mohammedan law, a valid gift can be affected by delivery of possession, and if there is delivery of possession, the mere fact that there is also an unregistered deed of gift does not make the gift invalid.

 A Comparitive Of Gift In The Transfer Of Property Act And In Mohammedan Law Property

Gifts as given under the transfer of property Act deals only with gifts of tangible properly; and so a release of a security without consideration does not fall under this section; because, though the release of the security may be said to be a gift, still the gift is not one of tangible property.

When the certificate of shares together with a blank transfer form signed by the registered shareholder is handed over to the buyer by the registered holder, the buyer acquires not the full property in the shares but the title to get on the register of the company. This title to get on the register, though a chose in action, constitutes goods within the meaning of the Sale of Goods Act, and the gift of such title to get on the register is complete when a deed of gift duly attested and registered, together with the shares and blank transfer form signed by the donor, is handed over to the donee.

Hiba Of Corporeal And Incorporeal Property :it is not necessary that a hiba must be of some corporeal or tangible property, it may be made not only of corporeal property but also of incorporeal property. Thus, a hiba may be made of actionable claims or chooses-in-action, e.g. debts,negotiable instruments or Government promissory notes.

 Gift of a debt

The gift of a debt to the debtor is lawful both by analogy (qiyas) and liberal interpretation (istehsan). A gift takes effect in two ways, by transfer of right of property (tamlik) or by cancellation or discharge (iskat). The gift of a debt to the debtor comes under the latter category. If the creditor releases the principal debtor from debt, both the debtor and surety are released. The release of a debt may also be made in favour of the heirs of the debtor if he dies.

 Existence Of Property Necessary

In order to constitute a valid gift, there must be an existing property. In other words, the subject-matter of the gift must be certain existing moveable or immovable property like land, goods or actionable claims. It must be transferable under sec. 6. In case of gift of certain amount by entries in the books of account by credit and debit, the sums should be available on the date of gift in the account of the firm whose accounts are said to be credited or debited. In the case of banking companies or other firms and companies who have overdraft facilities, even if the sums are not in credit of the donor and are not with such companies or firms, gifts might be possible by adjustment of the book entries. But in the case of non-banking companies or firms, if these companies or firms do not have overdraft facilities, it is not possible to make a valid gift if sums or funds are not available. A donation cannot be made of anything to be in future (e.g. future revenues of a property).

 

Existence Of Property Necessary Also In Case Of Hiba

A hiba is an out-and-out transfer of some determinate thing or an incorporeal right, it is necessary that such thing or right must be in existence and can be transferred immediately. Also in the case of a gift of usufruct(Ariat) produce (Manqfi) refers to rights which accrue from day to day in future. Such produce or use of a thing becomes property particle by particle as it is brought into being. The manqfi may thus be transferred by the donor during his lifetime by gift or by bequest and be the subject of gift even though they are not in existence at the time of the gift.

Equity of Redemption can be subject of a valid gift-where the property gifted is subject to a usurfructory mortgage, what is gifted is merely the equity of redemption and not physical possession of the property itself.

 

Oral Gift Of Immoveable Property

In view of sec. 123, a gift of immovable property which is not registered is bad in law and cannot pass any title to the donee. Any oral gift of immovable property cannot be made in view of the provisions of sec. 123. Mere delivery of possession without a written instrument cannot confer any. Under the Muslim law, an oral gift is permissible. However, in order to constitute a valid gift, the donor should divest himself completely of all ownership and dominion over the subject of gift. It is also essential for the donee not only to prove that the donor had made an oral gift in his favour, but it is also essential for him to prove that he accepted the said gift and delivery of possession of the gifted property had also been.

When Gift May Be Suspended Or Revoked 
Section 126 of the Transfer of Property provides for conditions where a gift may be revoked.thefollowing are those conditions :

(1) That the donor and donee must have agreed that the gift shall be suspended or revoked on the happening of a specified event;

(2) such event must be one which does not depend upon the donor’s will;

(3) the donor and donee must have agreed to the condition at the time of accepting the gift;

(4) the condition should not be illegal, or immoral and should not be repugnant to the estate created under the gift.

Section 126 is controlled by sec. 10. As such, a clause in the gift deed totally prohibiting alienation is void in view of the provisions contained in sec.10.

A gift, which was not based on fraud, undue influence or misrepresentation nor was an onerous one, cannot be cancelled unilaterally. Such a gift deed can be cancelled only by resorting to legal remedy in a competent court of law.

A Mohammedan on the other hand can revoke a gift even after delivery of possession except in the following cases:

(1) When the gift is made by a husband to his wife or by a wife to her husband;

(2) when the donee is related to the donor within the prohibited degrees;

(3) when the gift is Sadaka (i.e. made to a charity or for any religious
purpose).

(4) when the donee is dead;

(5) when the thing given has passed out of the donee’spossession
by sale, gift or otherwise;

(6) when the thing given is lost or destroyed;

(7) when the thing given has increased in value, whatever be the cause of the increase;

(8) when the thing given is so changed that it cannot be identified, as when wheat is converted into flour by grinding;

(9) when the donor has received something in exchange for the gift

Except in those cases, a gift may be revoked at the mere will of the donor, whether he has or has not reserved to himself the power to revoke it, but the revocation must be by a decree of court.

 

Onerous Gift

‘Onerous gift’ is a gift made subject to certain charges imposed by the donor on the donee. The principle behind this is that he who accepts the benefit of a transaction must also accept the burden of the same. This section, being an embodiment of a rule of equity, applies equally to Hindus and Mahomedans. For acceptance of an onerous gift, acceptance of the gift itself is sufficient; there need not be any separate and express acceptance of the onerous condition also at the same time. The acceptance of the gift will carry with it the acceptance of the onerous condition also, even though at the time of the gift the donee was not aware of such condition, specially where the onerous condition is of a trifling nature (payment of Rs. 5 as monthly maintenance to a certain person for life). A donee not competent to contract and accepting property burdened by any obligation is not bound by his acceptance. But if, after becoming competent to contract and being aware of the obligation, he retains the property given, he becomes so bound.

Universal Donee
 :

The essential condition to constitute a universal donee is that the gift must consist of the donor’s whole property. If any portion of the donor’s property, no matter whether it is moveable or immovable, is excluded from the operation of the gift or the endowment, the donee is not a universal donee. This concept is embodied in section 128 of the Transfer of property Act. Where a Mahomedan made a gift of the whole of his estate to his son and directed him to pay his debts, the son was a universal donee and he was liable to pay all debts of the donor. There is no rule of Mahomedan law which conflicts with the provisions of this section.

Conclusion

The conception of the term gift and subject matter of gift has been an age old and traditional issue which has developed into a distinct facet in property law. Different aspects related to gift in property act and its distinction with the Mohammedan law and its implications has been the major subject matter of this article. In considering the law of gifts, it is to be remembered that the English word ‘gift’ is generic and must not be confused with the technical term of Islamic law, hiba.

The concept of hiba and the term “gift as used in the transfer of property act, are different. As we have seen in the project that Under Mohammedan law, to be a valid gift, three essentials are required to exist:

(a) declaration of gift by the donor

(b) an acceptance of the gift, express or implied, by or on behalf of the donee, (c) delivery of possession of the subject of gift.

The English law as to rights in property is classified by a division on the basis of immoveable and moveable (real and personal) property. The essential elements of a gift are

(a) The absence of consideration;

(b) the donor;

(c) thedonee ;

(d) the subject-matter;

(e) the transfer; and the acceptance

Thus this striking difference between the two laws relating to gift forms the base on understanding its implications related to law relating to gifts.

Role of Due Diligence in Mergers and Acquisition

logoRole of Due Diligence in Mergers and Acquisition

Introduction

Ever since the Indian Economy opened itself to the foreign market after the economic liberalization reforms of 1991, Mergers and Acquisitions have become a common phenomenon throughout India. In a highly competitive global environment, mergers and acquisitions have turned out to be one of the fastest strategic options for companies to gain competitive advantage. While a merger is a combination of two companies, with one company merging itself into the other and losing its identity, while the other prominent company gains more importance and either absorbs the other company or consolidates itself with the other company, an acquisition is the action whereby the acquiring company purchases the interests of the acquired company’s shareholders and ceases to have any interest or right after the acquisition.

 

Merger is an arrangement that assimilates the assets of two or more companies and vests their control under one company. Acquisition simply means buying the ownership in a tangible or intangible asset such as purchase by one company of controlling interest in the share capital of another company or in the voting rights of an existing company. In the merger context, both companies pool their interests, which mean that the shareholders of both companies still hold on to their portfolio interests from their company and also gets interests in the other enterprise.

 

The term ‘amalgamation’ is used synonymously with the term merger and both these terms are used interchangeably but both these terms are not precisely defined in The Companies Act, 1956. Section 390 to 395 of Companies Act, 1956 deal with arrangements, amalgamations, mergers and the procedure to be followed for getting the arrangement, compromise or the scheme of amalgamation approved in India but the term merger or acquisition is not defined within the Act. However, the Income Tax Act, 1961 defines the term ‘amalgamation’ under section 2(1B) of the Act as the merger of one or more companies to form one company in such a manner that all the properties and liabilities of the amalgamating company(s) become the properties and liabilities of the amalgamated company, and not less than three-fourth shareholders of the amalgamating company become the shareholders of the amalgamated company.

 

Under Section 5 of the Competition Act, 2002, “combinations” are defined with reference to assets and turnover of merging companies located exclusively in India or located in India and outside India. Section 6 of the Competition Act, 2002 states that, no person or enterprise shall enter into a combination which causes or is likely to cause an appreciable adverse effect on competition within the relevant market in India and such a combination shall be void. All types of intra-group combinations, mergers, demergers, reorganizations and other similar transactions are thus within the purview of the Competition Act, 2002 unless specifically exempted.

 

Further, mergers and acquisitions are also governed by the SEBI Take Over Code, 1994 and requires mandatory permission from High Courts of the respective jurisdiction of such companies to enable any scheme of amalgamation or merger or arrangement to come through.

 

Why Mergers and Acquisitions?

Mergers and Acquisitions is an important way for companies to grow and become stronger and better organizations. The main reasons underlying such operations are:

– Enhanced reputation in marketplace or with stakeholders

– Reduction of operating expenses or costs

– Access to management or technical talent

– Access to new product lines

– Growth in market share (complement/extend current business)

– Quick access to new markets or entry into new industry (diversification)

– Reduction in number of competitors

– Access to new technology, manufacturing capacity or suppliers

 

Now, even though Mergers and Acquisitions have several advantages, but the risks involved are equivalent too. The real motive behind mergers or acquisitions should be on the table for all the parties concerned to ensure real success of such merger or acquisition. The post implementation phase is a very critical part where several mergers or acquisitions fail and before onset of any deal, most companies should conduct due diligence to ascertain the real risks and profitability of such deals. Due Diligence Due Diligence in Mergers and Acquisitions is the process of evaluating and investigating a prospective business decision by getting information about the financial, legal, intellectual and other material information from the other party.

 

The ultimate goal of such activities is to make sure that there are no hidden drawbacks or traps associated with the business transaction under consideration. By performing due diligence, a perfect strategy can be evolved to carry out the merger or acquisition. Failure to exercise due diligence prior to entering into a transaction of enormous proportions such as a merger or acquisition may lead to a precarious situation where the asset acquired, may be marred by encumbrances, charges and other liabilities which get automatically transferred to the acquirer as a result of such acquisition. While the cost involved in performing a due diligence is on the higher side, as it usually involves the services of a CA and an attorney, the importance of conducting a thorough due diligence before undertaking a transaction cannot be undermined under any circumstances. To any company involved in merger or acquisition, the due diligence investigation will attempt to reveal all material facts and potential liabilities relating to the target company/unit/business.

 

The purpose of due diligence is to confirm that the business actually is what it appears to be. While gaining information about the business, the company conducting the due diligence can definitely identify deal killers and eradicate them. Further, information for valuing assets, defining representations and warranties, and/or negotiating price concessions can also be obtained vide due diligence. The information learned while conducting due diligence will further help in drafting and negotiating the transaction agreement and related ancillary agreements.

 

This information will also be helpful in allocating risks in regards to representations and warranties, pre-closing assurances and post-closing indemnification rights of the acquirer, organizational documents to determine the stockholder and other approvals required to complete the transaction, contracts, including assignment clauses, and permits and licenses, to determine whether the transaction is contractually prohibited or whether specific consents are required, regulatory requirements, to determine if any governmental approvals are required, and debt instruments and capital infusions, to determine repayment requirements. Why Due Diligence? Mergers and Acquisitions revolve around certain specific steps and due diligence is the first step to make the end business successful. Due diligence helps in understanding the following about the company:

 

 Capital structure including shareholding pattern.

 Composition of board of directors.

 Shareholders’ agreement or restrictions on the shares, for example, on voting rights or the right to transfer the shares.

 Level of indebtedness.

 Whether any of its assets have been offered as security for raising any debt.

 Any significant contracts executed by it.

 The status of any statutory approvals, consents or filings with statutory authorities.

 Employee details.

 Significant litigation, show cause notices and so on relating to the target and/or its areas of business.

 Intellectual Property of the Company

 Any other liability, existing or potential.

 

Conducting Due Diligence: By conducting due diligence before finalizing any merger or acquisition helps in evaluating and structuring the transaction and identify legal or contractual impediments that might impact the end result. It also helps to validate the business plan and mitigate any risks that seem imminent and formulate solutions to deal with various issues. The first step in conducting due diligence is to plan the due diligence so that the business transaction can undergo smoothly. Liaisons with Regional Legal Advisor/General Counsel, Contracting Officer/OAA, Program Office, or other office to plan an efficient approach toward conducting the due diligence should be conducted to determine and plan the due diligence memo. Secondly, information should be gathered about the company from public domains such as news articles, company reports and subscription-only resources, such as Dun & Bradstreet, Lexus-Nexus, Factiva, etc. Constitutional documents of the Company, annual reports and annual returns filed with statutory authorities, giving information on shareholdings, directors should also be analyzed including quarterly and half-yearly reports, in the case of listed companies (in accordance with the standard listing agreement prescribed by the SEBI). Government resources should be checked to see if there are particular issues concerning the business, relationship with a particular country, government, or client, or other policy concern.

 

The top managers or board members of the company can also be scrutinized by conducting a search involving sensitive information to determine if the company individual is eligible for a visa to the US, which is one way to identify risks to the agency. By conducting web searches about the company untapped information about the company may also become evident which would be helpful in furthering the business transaction. Local searches should also be conducted to gather information about the company’s current customers, suppliers, and/or private sector or government partners, relevant local associations and to assess the overall reputation of the company. Thirdly, after all the information about the company has been obtained, the same must be analyzed to understand the business operation and the key strengths and weakness of entering into any scheme of merger or acquisition with such company.

 

Fourthly, the stock exchanges where merging and merged companies are listed should be informed about the merger proposal. From time to time, copies of all notices, resolutions, and orders should be mailed to the concerned stock exchanges. Fifthly, the due diligence memo must be prepared and discussions held with the company to bring out the true nature of the transaction process and finalize the transaction. The Memorandum of Understanding (MOU) must be drafted thereafter and reviewed by the Agency deciding official well before serious alliance discussions begin with the potential partner. The Board of Directors of each company must approve the draft merger proposal and pass a resolution authorizing its directors/executives to pursue the matter further.

 

Although it might seem that due diligence has come to an end after the draft merger proposal has been approved by both the companies, however, due diligence is an ongoing process and may continue right throughout the existence of the amalgamated or merged company to evaluate any risk that may crop up at any point of time during the alliance. Conclusion Once the Memorandum of Understanding and merger proposal has been approved by both the companies, each company should make an application under the Companies Act, 1956 to the High Court of the State where its registered office is situated so that it can convene the meetings of share holders and creditors for passing the merger proposal.

 

Thereafter notices must be dispatched to the shareholders and creditors of the company to convene a meeting and such meeting must be subsequently held where at least 75% of shareholders of the company who vote either in person or by proxy must approve the scheme of merge. Once the scheme of merger has been approved by the creditors and shareholders, another petition to High Court to confirm the scheme of merger must be presented and notices regarding the same published in two newspapers. After the High Court passes an order approving the scheme or merger or amalgamation, the certified true copies of the orders must be sent to the registrar of the companies and assets and liabilities of the companies stands transferred to the amalgamated company. It has been reported that mergers and acquisitions take about a three to four months for completion

 

although the SEBI Takeover Regulations require the acquirer to complete all procedures relating to the public offer including payment of consideration to the shareholders who have accepted the offer, within 90 days from the date of public announcement. However, ultimately, whatever the time limit might be, mergers and acquisitions definitely help the companies to strengthen and expand their business operations to increase profitability and consolidate the business structure. With strict due diligence in place, companies can definitely hope to tackle the risks involved and make the end result successful for effective mergers and acquisitions. Today, India presents the right opportunities for companies to engage in cross-cultural transactions and amalgamations and Indian markets are registering massive growth in mergers and acquisitions with consolidation of international businesses in India and fierce competition amongst business houses who are seeking to expand their market.

Widening of the scope of power of Transfer Pricing Officer in context of Section 92CA of the Income Tax Act

logoWidening of the scope of power of Transfer Pricing Officer in context of Section 92CA of the Income Tax Act, 1961 – An Analogous study

In the last few years the Government of India has taken many steps in order to strengthen the Transfer Pricing (Taxation) regime in India. A series of amendment has been introduced in order to enhance the ambit of tax base and consequent increase in the revenue. The latest step in this direction was the extension of the transfer pricing provisions to Specified Domestic Transaction w.e.f. 1.4.2012. Another area in which the government achieved considerable success was widening of the scope of the powers of Transfer Pricing Officer. The basic intention of this article is to highlight the latest development that has resulted in strengthening of the powers of the Transfer Pricing Officers along with a summary discussion on section 92 CA of the Income Tax Act, 1961.

Section 92CA of the Income Tax Act,1961 (Reference to the Transfer pricing officer) deals with role TPO (Transfer Pricing Officer) under the transfer pricing regime. According to section 92 CA, the assessing officer (AO) may refer the computation of the Arm’s Length Price (ALP) under section 92C to the TPO if he considers it necessary and expedient andan approval of the commissioner has been obtained.

Section 92 CA also casts an obligation on the TPO to provide an opportunity of being heard to the assessee. TPO shall serve a notice to the assessee requiring him to produce ( or cause to be produced) on a specified date, any evidence on which the assessee may rely in support of the calculation made by him of the ALP in relation to the international transaction. A distinction has to be drawn while interpreting this section with reference to section 92C (3), wherein the AO is obliged to disclose the method adopted by him to compute ALP in the show cause notice issued to the assessee but where the AO is referring the computation of ALPto TPO, he is not required to disclose the reason for such referring to the assessee.After conducting the hearing and taking into consideration all the relevant facts, the TPO shall by order in writing determine the ALP in relation to the transaction in accordance with the provision of section 92C (3) and send a copy of his order to the AO and the assessee. On receipt of the order, the AO shall proceed to compute the total income of the assessee under section 92C (3) having regard to the ALP determined by the TPO. It should be noted that it is incumbent upon the AO to proceed to compute the total income of the assessee in conformity with the ALP determined by the TPO (The position taken by the Hon’ble Supreme Court in case of Juggilal Kamplapat Bankers vs WTO has been nullified w.e.f. June 1, 2007).

Before going into the core part of the article it is essential to discuss another important aspect of section 92CA – “Whether it is legal requirement under provisions contained in chapter X (i.e. Transfer Pricing) that AO should prima facie demonstrate that there is avoidance, before invoking the relevant provision (i.e. section 92 CA)”. This issue was settled in the case of Aztec Software & Technology Services Ltd vs CIT(2007) wherein it was held by the tribunal that avoidance of tax cannot be considered as a condition precedent for invoking the provisions of section 92C/92CA. There is no requirement of establishment of ‘tax evasion’ before initiation of proceedings for determination of ALP. The tribunal further substantiated that “perusal of the provisions of sections 92C and 92CA reveals that these provisions can be invoked by the Assessing Officer and he can proceed to determine ALP where he either finds the existence of the circumstances mentioned in clauses (a) to (d) of section 92C (3) or where he considers it necessary and expedient to refer the determination of ALP to the TPO. There is no other requirement for invoking these provisions by the Assessing Officer. Besides, as per the mandate of section 92(1), income from international transaction between associated enterprises has to be computed having regard to ALP. Therefore, the question of tax avoidance is not to be established by following mandatory provisions. Therefore, the language used by the Legislature is plain and unambiguous and there is nothing in the language employed by the Legislature on the basis of which it can be said that the Assessing Officer must demonstrate the avoidance of tax before invoking these provisions”.

Now let us focus on the core part of the article that deals with latest development that has taken place resulting in enhancement of the powers of TPO. This analysis can be best done by comparing the legal scenario prevailing in two phases namely Pre – Finance Act 2011 and Post – Finance Act 2011.

Prior to the enactment of the Finance Act 2011, the TPO cannot under section 92CA (3) determine an ALP in relation to the international transaction not referred to it by Assessing Officer under section 92CA (1). This position was enumerated in the case of 3i Infotech Ltd vs CIT[IT appeal no 2831of 2007, July 30, 2010]. In this case assessee was a software company that entered into international transactions with its associate enterprises. In course of assessment, Assessing Officer referred matter to TPO for determining ALP. TPO was of view that no adjustment was required to be made to value of international transactions entered into by assessee. He, however, proceeded to make an adjustment in respect of an issue which was not reported by assessee as an international transaction in Form No. 3CEB filed pursuant to section 92E. Said issue related to transfer of three employees of assessee to its associate enterprise, namely, Infotech USA. According to TPO, transfer of such employees, resulted into benefit to transferee entity, as it was not to incur any expense on recruitment and training and, salary packages to such employees were also less in comparison to foreign employees, resulting into savings to transferee-company. In such a situation, TPO computed arm’s length compensation to associate enterprise at Rs. 2.71 lakhs – Following above report of TPO, Assessing Officer made an addition of Rs. 2.71 lakhs to assessee’s income. Now the issue before the tribunal was whether such additions made by the AO on basis of order issued by TPO was valid in law. The tribunal ruled the decision in the favor of the assessee and considered such additions as invalid. The tribunal further opined that the jurisdiction of a TPO is restricted to the transactions referred to him by the Assessing Officer under section 92 CA(1). The TPO, therefore, could not under section 92 CA(3) determine the ALP in relation to an international transaction not referred to him by the Assessing Officer under section 92CA(1). In this regard, Instruction No. 3 of 2003, dated 20-5-2003, issued by the CBDT regarding computation of income from international transaction having regard to arm’s length price, is very clear. In the said instructions, the CBDT explaining the role of the TPO has instructed that in terms of section 92CA of the Act, the TPO’s role is limited to the determination of arm’s length price in relation to the international transactions referred to him by the Assessing Officer and if during the course of proceedings before him, it is found that there are certain other transactions which have not been referred to him by the Assessing Officer, he will have to take up the matter with the Assessing Officer so that a fresh reference is received with regard to such transaction. The Board has further opined that reference to the TPO is transaction and not enterprise specific. A similar ruling was given in the case of Amadeus India Pvt Ltd vs CIT(2011) by the Delhi Tribunal.

 

To nullify the effect of the aforesaid rulings, sub-section (2A) was inserted in section 92CA w.e.f June 1, 2011 so as to specifically provide that the jurisdiction of the Transfer Pricing Officer shall extend to the determination of the ALP in respect of other international transactions, which are noticed by him subsequently, in the course of proceedings before him. These international transactions would be in addition to the international transactions referred to the TPO by the Assessing Officer.

Further, in order to enable the TPO to conduct on-the-spot enquiry and verification, section 92CA(7) is amended so as to enable the TPO to also exercise the power of survey conferred upon an income-tax authority under section 133A of the Act, w.e.f. June 1, 2011.  

 

Under section 92E of the Act, there is reporting requirement on the taxpayer and the taxpayer is under obligation to file an audit report in prescribed form (Form No.3 CEB) before the Assessing Officer (AO) containing details of all international transactions undertaken by the taxpayer during the year. This audit report is the primary document with the Assessing Officer, which contains the details of international transactions undertaken by the taxpayer. If the assessee does not report such a transaction in the report furnished under section 92E then the Assessing Officer would normally not be aware of such an International Transaction so as to make a reference to the Transfer Pricing Officer. The Transfer Pricing Officer may notice such a transaction subsequently during the course of proceeding before him. In absence of specific power, the determination of Arm’s Length Price by the Transfer Pricing Officer would be open to challenge even though the basis of such an action is non-reporting of transaction by the taxpayer at first instance. Section 92CA of the Act retrospectively amended (w.e.f. June 1, 2002) by Finance Act 2012 to empower Transfer Pricing Officer (TPO) to determine Arm’s Length Price of an international transaction noticed by him in the course of proceedings before him, even if the said transaction was not referred to him by the Assessing Officer, provided that such international transaction was not reported by the taxpayer as per the requirement cast upon him under section 92E of the Act.It is also provided in new sub-section (2C) that the AO shall not have power to reopen or rectify any assessment proceedings which have been completed before 1-7-2012.

Therefore from the above discussion it is clear that Finance Act 2011 & 2012 have played a pivotal role in conferring additional powers to the TPO. With the advent of transfer pricing in case of specified domestic transactions, it can be expected that further revisions in the legislature will be made in order to equip the transfer pricing officers to navigate through the new challenges.

Punishment and the application of law

 
logoPunishment and the application of law/ the law and order and the application of same law with different views

 INTRODUCTION:

Bhagwati, J delivering the judgment on behalf of himself, Chandrachud and Krishna Iyer, JJ. Propounded the new concept of equality in the following words-“Equality is a dynamic concept with many aspects and dimensions and it cannot be ‘cribbed, cabined and confined’ within traditional and doctrine limits. From a positivistic point of view, equality is antithesis to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belong to the rule of law in public while the other, to the whim and caprice of the absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14.”

Article 14 of Constitution of India declares that “the state shall not deny to any person equality before the law or equal protection of the laws within the territory of India”. The phrase “equality before law” occurs in almost all written constitutions that guarantee fundamental right. Equality before the law is an expression of English Common Law “equal protection of laws” owes its origin to the American Constitution.

Both the phrases aim to establish what is called the “equality and of opportunity” as embodied in the Preamble of the Constitution. While equality before the law is a somewhat negative concept implying the absence of any special privilege in favour of any individual and the equal subjection off all classes to the ordinary law, equal protection of laws is a more positive concept employing equality of treatment under equal circumstances.

Thus, Article 14 stands for the establishment of a situation under which there is complete absence of any arbitrary discrimination by the laws themselves or in their administration. But why there are different types of treatment with some criminals like: Dhananjoy Chatterjee, Afzal Guru, Kasab??? .

The arguments on the side of the retentionists are equally strong. However, in India the Supreme Court has made death penalty applicable only to the “rarest of rare cases” – the cases where the act is no less than shocking to human conscience. It has also recommended that a convict, whose death sentence has been confirmed by a High Court, should have the statutory right to appeal to the Supreme Court and that his/her appeal should be heard by a five-Judge Bench. Amnesty International, India, insists that the verdict of the death sentence should be unanimous by the Judges. These safeguards could further limit the scope for judicial errors in the award of capital punishment.

 

CONCEPT OF DEATH:

Death and its concept are absolutely empty. No picture comes to mind. The concept of death has a use for the living, while death itself has no use for anything. All we can say about death is that it is either real or it is not real. If it is real, then the end of one’s life is a simple termination. If it is not real, then the end of one’s embodied life is not true death, but a portal to another life.

This used to be a universal practice in North America. However, in recent decades, almost all democracies in the world have abandoned the death penalty. The U.S., Japan, and South Korea are the only exceptions. Of course, most dictatorships and theocracies in the world retain the death penalty as a terror weapon.

“It is generally agreed between the retentionists and abolitionists, whatever their opinions about the validity of comparative studies of deterrence, that the data which now exist show no correlation between the existence of capital punishment and lower rates of capital crime.” In the early 1970s, the top argument in favor of the death penalty was general deterrence. This argument or hypothesis suggests that we must punish offenders to discourage others from committing similar offenses; we punish past offenders to send a message to potential offenders. “In short, a remarkable change in the way the death penalty is justified is occurring. What was once the public’s most widely cited justification for the death penalty is today rapidly losing its appeal?”

 

History of Capital Punishment:

The Capital Punishment has always been a part of the Indian Judicial system. It was incorporates on to the Indian Penal Code right from its beginning in 1860. Similarly, it was also present in the Criminal Procedure Code (1898). According to Section 367 of the Cr.PC, a person convicted of murder was to be sentenced to death. And this was to be the general rule, not an exception.

A commendable feature that we notice is that right from the days of British rule, there has been strict opposition to enforcing the Capital Punishment. In 1931, Gaya Prasad Singh, a member of the Legislative Assembly introduced a bill in the assembly which proposed to abolish the death penalty in the country. However, it was overturned. Even after Independence, there have been several attempts, both inside and outside the parliament, to force the abolition of death penalty. Of these efforts, those by Prithviraj Kapoor (He was also a member of the Rajya Sabha) in 1958 and by Raghunath Singh in the Lok Sabha in 1962 are not worthy. Even in contemporary times, there has been strict opposition to the death penalty. Unfortunately, such activities come to the fore only when the sentence is about to be executed.

In 1974, there came in to force a new Criminal Procedure Code. One of the major features of the new Code was the overturning of the over ruling regarding the death penalty. By the new code, for all offences involving murder, life imprisonment was to be the norm. The death penalty was to be awarded only in exceptional circumstances.

CASES:

The landmark cases where the death sentences were awarded in India are Ranga Billa case, Indira Gandhi and Rajiv Gandhi Assassination case, Laxman Nayak case and most recently in 2004 Hatab case of West Bengal where accused Dhananjoy Chatterjee a security guard was sentenced to death after he raped and murdered a young girl whose mother had complained against him of eve teasing, hanged on 14 August, 2004, on his birthday, after Supreme Court affirmed the death sentence awarded by the lower courts. The President also declined his plea for pardon. The Dhananjoy Chatterjee case shows that both judicial and non-judicial decisions on a death sentence are guided by public outrage over the gravity of the crime committed.

Chatterjee is only the 55th person to be executed since Indian independence in 1947, and recently Kasab also. In the face of significant opposition to state executions, trials and appeals in such cases are usually lengthy and the death sentence rarely carried out. Between 1991 and 1998, 700 people were sentenced to death, but most are still involved in judicial appeals or have been granted clemency.

Recently, on 28 February, a Supreme Court bench comprising Justice AK Patnaik and Justice Swatanter Kumar elaborated on its clear preference for life rather than death while commuting a death sentence awarded by a Bilaspur trial court to life imprisonment. The case was related to four convicts who were held guilty of raping a married woman who died later. Justice Kumar emphatically observed that “the basic principle, stated repeatedly” by the Supreme Court is that “life imprisonment is the rule and death penalty an exception.”

As Justice Kumar explained, “In our opinion, the measure of punishment in any case must depend upon the atrocity of the crime; the conduct of the criminal and the defenseless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society’s cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment.”

It was in Bachan Singh v/s State of Punjab (1980) that the Supreme Court rejected the challenge to the constitutional validity of awarding the death penalty and held that it should not be imposed except in the “rarest of rare cases”. The court also enunciated some of the mitigating and aggravating circumstances required to be kept in view while considering the sentence.

In Ajitsingh, the Court has relied on Machhi Singh (1983) and Mohd. Mannan v/s State of Bihar (2011) to hold that murders which are gruesome, ghastly or horrendous, and when collective conscience of the community is petrified, death penalty is called for, as they belong to the category of rarest of rare cases. The questions whether the sentence of life imprisonment is inadequate and whether there is no alternative punishment cannot be answered with subjective views. The facts and circumstances of each murder are different, and therefore, by simply repeating the adjectives used to describe the manner of killing in earlier cases, the case before the Court does not ipso facto become rarest of rare. The distinction between ordinary murders and murders which are gruesome etc. which the Court has drawn in Paragraph 98 of Ajitsingh is not at all convincing. Neither Bachan Singh nor Machhi Singh Benches intended to draw such distinction. See lethal lottery-the death penalty in India, Amnesty International and PUCL, May 2008.

Mulla v/s State of UP should be viewed as the first step towards answering a larger question: Whether the Indian State shall continue with the lethal lottery of death penalty? At any given trial for murder today the chances of a person being hanged or not depend solely on the whims and fancies of the judges, so much that in a recent judgment the Supreme Court has expressed the fear that arbitrary sentencing may lead to a violation of Article 14 of the Constitution. , . In the impugned judgment while the convicts were spared the noose owing to their having served fourteen years in jail, a very different conclusion was reached by the same Court in Dhananjoy Chatterjee alias Dhana v/s State of West Bengal who had served an equal period in jail. The Supreme Court itself has remarked in Aloke Nath Dutta and Ors v/s State of West Bengal on the arbitrary nature in which the death penalty is awarded or commuted. While getting into the merits and demerits of the death penalty is beyond the scope of this research, the authors would like to quote Dr. B.R Ambedkar on the issue:

“This country by and large believes in the principle of non violence. It has been its ancient tradition, and although people may not be following it in actual practice, they certainly adhere to the principle of non violence as a moral mandate which they ought to observe as far as they possibly can and I think that having regard to this fact, the proper thing for this country to do is to abolish the death sentence altogether.”

Till that is done, judgments like the one discussed here will provide the humanitarian face to a retributive law.

Another landmark case decided in the Bombay High Court resulted in the release of hundreds of under-trial prisoners, who had languished in prisons for far beyond the maximum term of their punishment, due to slow court procedures. . However, statistics still demonstrate that 70% of India’s prison inmates are under trials and much remains to be done to improve the criminal justice system of the country.

ROLE OF JUDICIARY:

In the year 2003 government laid a Bill in the Parliament, which proposed to add a provision of death penalty in Drugs and Cosmetics Act. After the new government came in power in June 2004, President Dr. A.P.J. Abdul Kalam suggested that Parliament should consider the abolition of death sentence altogether.

Kasab’s arguments for a review of his death sentence that was awarded by a trial court on 6 May 2010 and upheld by the Bombay High Court on 21 February 2011, tilts heavily in favour of the factors listed under the “mitigating circumstances”. For example, senior advocate and amicus curie Raju Ramachandran, who argued the case on behalf of Kasab in the SC, cited his young age (21 at the time of the terror attack) as an important factor that had to be considered. Also, that he was not acting on his own but was under the influence of “skewed religious faith and false ideology”. Though kasab is the puppet of anti-social elements he got death punishment for the crime he had done. Killing a life for the prosperity of the society is an acceptable equation in the civil society not only kasab, the terrorists involved in the Samjhota express blasts, malegaon, mecca masjid, Ajmer blasts, should be brought to the notice of the court and their crime should be proved like what happened in kasab’s case and they should be hanged. No body should use the name of God for terrorism

as no God has preached the killings. This punishment will send signals to those who sought religion as a tool against humanity. Human rights activists should take up the issue of fake encounters against innocents, happening in our country, rather than opposing capital punishment to the proved criminal. I vaguely remember Mahatma Gandhi’s opinion that dogs that have become mad due to rabies have to be killed and cannot be saved or reformed.

 

The prosecution lawyer Ujjwal Nikam has categorically stated that the terrorist should be awarded capital punishment as “This is the rarest of rare cases. He should not be entitled to any mercy.”

If we keep them in jail for life, we will only encourage their compatriots to try and save them. Have we forgotten the shameful episode of Jaswant Singh releasing Terrorists to save our brothers in Khandhar Hijacking?

Why leave ourselves open to such blackmail in future? Why keep these worthless folks alive? India is good place for criminals to live happily…

The constitutional power is that the President has the power to disagree with the Supreme Court both with its findings of fact and law. But others are of the view that such a sweeping Constitutional power cannot be given to the President in as much as it would subvert the concept of justice enshrined in the Constitution.

One very critical role of the President is the responsibility he has to take while dealing with a death penalty. The decision of death penalty given to a person by Indian Law can be overturned only by the President. This is one of the most crucial decisions that a President may have to make while respecting the legal procedure involved in the particular case. Death penalty in India is imposed only in the rarest of rare cases according to the rule of Supreme Court of India.

The term ‘justice’ in the Preamble embraces three distinct forms- social, economic and political, secured through various provisions of Fundamental Rights and Directive Principles. Social justice denotes the equal treatment of all citizens without any social distinction based on caste, colour, race, religion, sex and so on. It means absence of privileges being extended to any particular section of the society, and improvement in the conditions of backward classes (SCs, STs, and OBCs) and women. Economic justice denotes on the non- discrimination between people on the basis of economic factors. It involves the elimination of glaring in equalities in wealth, income and property. A combination of social justice and economic justice denotes what is known as ‘distributive justice’. Political justice implies that all citizens should have equal political rights, equal voice in the government. The ideal of justice- social, economic and political- has been taken from the Russian Revaluation .

 

Indian Judiciary system: So slow and lethargic

The Indian Judicial system is supposed to protect the common man from lawbreakers and offenders. But in reality it serves the political authorities and provides protection to gruesome criminals who are subtly baked by the politicians. The role of Indian Judiciary in securing law and order across the country should be impartial and free from all sorts of external or unauthorized influences.

Most negative aspect of Indian Judiciary system is its lethargic and slogging approach. There are countless instances wherein cases run for decades and the defendants pass away being awarded with the proper judgment. Indeed this is shameful for any civilized country that boasts about its advancing prosperity. According to the records till January 2005, more than 30,000 cases pending at the Supreme Court, 33.79 lakhs in high courts and more than 2.35 Crore in lower courts. With respect to the population of India, the ratio of judges to people is 10.5:10,00,000 which is no doubt the poorest in the world.

There should be an even arrangements for the pending cases and the new cases. The court remains closed for days just like school holidays which are nothing but an unnecessary luxury. With so much work pending, Government should trim down the number of holidays and day offs. Legal system should not be a purchasable commodity any more. Politicians should be strictly restricted from directly or indirectly interfering in judgments. Moreover the corrupt political leaders must be treated with utmost stringency.

But, in Kasab’s case.. his death sentence was upheld by the Supreme Court on 29 August 2012, and his mercy petition was rejected by the President on November 5. Stating that eleven mercy petitions from persons on death row were pending before the President prior to Kasab filing his petition, he said the convict’s lawyer and family in Pakistan were not informed of the imminent execution which was in violation of international standards on the use of the death penalty. The manner in which Kasab was hanged raises more questions than

answers.

It is hard to believe Home Minister’s Version that the PM was unaware

of the Hanging. If the PM was unaware how did the High Commissioner

deliver the information on Kasab’s Hanging to Pakistan before he was

hanged. Did the home ministry inform Indian High Commissioner without

informing the external affairs minister and the prime minister?

Did the Home Ministry Inform the High Commissioner through the external

affairs minister without informing the prime minister?

Did the External Affairs Minister act without informing the prime

minister?

It looks like the Government is Hiding Something.

Kasab was a weapon, used by terrorists and then by politicians. Victims are we people!

PRESENT SITUATION:

While the death penalty is legal in India, there is a growing lobby of highly influential persons and others who are pressing for its abolition. They include such notables as the senior Supreme Court lawyer Colin Gonsalves, former Supreme Court Justice AK Ganguly and Justice KT Thomas, whose bench upheld the death penalty in the Rajiv Gandhi assassination case.

Commenting on India’s growing ambivalence on the contentious issue of death penalty, The Economist observed in October 2011 that the case of Ajmal Kasab is being viewed as a “big test” for India. “It will be a brave Indian who demands that he be spared.”

Internationally, Amnesty International is in the forefront in challenging the death penalty while calling it “the ultimate denial of human rights” and “the premeditated and cold-blooded killing of a human being by the state in the name of justice.” What about all those innocents who were killed by Kasab??? Kasab killed Indians in cold blood if he would not be hanged and then he would have point his thumb at the nose of Indians and on the families who lost their loved ones due to acts of this terrorist.

This “rarest of rare” business is one day going to lead to a situation where even to arrest someone who has committed a crime; we will be doing the rounds of the courts that the crime was rarest of rare. The measure of punishment in a given case must depend upon the atrocity of the crime, the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society’s cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime.”

Judge: Kya bhai, kya kar diya ab?

Accused: Zyada kuch nahi huzoor – 3 khoon, 2 rape, jisme se ek saat saal kee bachchi thee, 14 bomb blast jisme do charso bakrey murey….

Judge: Ummm…mmm ; nothing rarest of rare here. Let the accused be set free. We are a liberal country….

But that will be OK because Congress will do whatever it takes to get the votes of Muslims. We all saw the real face of Congress during recent UP elections. What a shame. Bad luck for our country.

Whether death penalty is to be continued or not, is a different debate. But Kasab’s case is plain and simple; he was a cold blooded murderer and deserves no mercy. Death penalty would be an easy way out for him in fact…He should be made to regret every moment of his life for what he did. Reformation is not possible for such animals, though it may be fashionable for human rights activists to argue so.

There was a better chance of him dying of heart attack, his cholesterol levels would be going up with all the food items, Biryani that he was eating inside! I don’t understand that why our government was providing him all sorts of facilities inside the jail.. and why not he was treated like other criminals.. The Maharashtra Government has spent over Rs. 25 crores to keep 26/11 terrorist Ajmal Kasab alive since he was captured in 2008. Speaking in the Maharashtra Assembly state Home Minister RR Patil gave details of expenses for the sole surviving Pakistani terrorist.

Even as Kasab’s trial continues in the Supreme Court, the cost of keeping him alive is a huge burden on the state exchequer. While the Government has spent Rs. 5,25,00,000 on his high security cell at Mumbai’s Arthur Road jail, his security entrusted to the Indo Tibetan Border Police (ITBP) has cost the state over Rs. 19 crores.

Mr Patil also said that the state has once again asked the Centre to waive the charges, since terrorism is not a state subject alone. On the other hand, the cost of salaries of the policemen who protect Kasab cost the state Rs. 1,22,18,406. While his medical expenses cost Rs. 28,066, the state has paid another Rs. 34,975. There were many rights and privileges that kasab had in jail..

Also if we let him live, thousands will come onto our soil from pak ( as pak is imploding ), kill a few and spend rest of life in safe jails ( instead of being killed piece by piece in pak )

And if we keep him in jail who will pay bills???

We are not even able to feed our own country, You want to spend millions on feeding and security of a killer terrorist ???? All are equal in the eyes of the law but some are more equal than others.

Today there is no fear amongst the criminals. And unless there is a fear of punishment, there is no way we can see a drop in the crime rate. Our Preamble provides us many Acts for criminals, infect there is fixed punishment for each and every crime but still neither crimes are stopping nor criminals are minimizing. Instead, if these criminals are executed immediately after their crime, it will instill such a fear in the minds of people that such acts will come down drastically. Will this happen is a million dollar question!

Hypocrisy is the standard of Indian psychology, either abolish death penalty immediately or continue to use it without any of so called ‘reservations’ and end the waiting of more than 100 convicts who still do not know their fate. Death penalties are needed to have an order in the society, no rapist, murderer or a dacoit should feel ‘safe’ thinking whatever they do and get convicted they can still be alive and well and ‘stay’ in jails forever.

If religion and provocation and age are the factors which can bestow life for the criminals, terrorism in India will become the order of the day. Anybody can enter within our territory, any time and kill as many people as they like. In short there is no value for the life of an Indian in the eye of our own Judiciary.

17 mercy petitions pending before president:-

Mercy petitions of 17 people on death row were pending before former President Pratibha Patil. Most of the pleas are from those convicted of murder or rape. The petition of Sushil Mumu from Jharkhand, who was convicted of killing a nine-year-old child for a religious ritual, has been pending since 2005. Like this case many mercy petitions are pending before the President.

Pros and cons for death sentence

Different countries have different guidelines for Capital Punishment. In some countries, drug trafficking and corruption may be a capital offense, while in others, death penalty is only given to murderers. I think capital punishment is a very good way of making people scared of committing crimes and understanding the value of others life which they take away from them without even thinking once but there is a great constraint to this that not all who are accused are criminals there is a never ending list of innocent people who have beard the pain of a punishment which they never committed although there are some crimes which are clearly evident like rape should be given capital punishment, because it is a deliberate act and for some other cases the extent and severity of crime should be considered..

You see, a thief is always a thief and a murderer is always a murderer. Why should the government waste people’s taxes on thieves and murderers? Even when you hurt an animal you get a punishment under law. Then what is the punishment for killing 166 people. Is it keeping him in prison and teaching him values with good food & place to sleep with our tax money.

The Sikhs don’t want Bullar and Rajoana to be hanged, the Tamils don’t want the Rajiv assassins to be killed and the Kashmiris don’t want Afzal Guru to be killed. In fact, what all these communities together are asking for,…”It’s wrong to surmise everyone in respective communities wanted that way! No generalization please! aam aadmi is not at all interested in the issue. Let the law makers, not the President, decide about the fate- after all, their own ‘house’ was attacked!

 

Justice AK Ganguly of the Supreme Court has termed the award of death sentence as “barbaric, anti-life, undemocratic and irresponsible” which is “legal” in the prevailing judicial system.

Describing this as his “personal view”, Justice Ganguly said the Constitutional guarantee of right to life cannot be subjected to “vague premises”. The doctrine of the crime falling in the ’rarest of rare’ category in awarding the death penalty was a “grey” area as its interpretation depended on individual judges, he said, adding the “sentencing structures” should be in consonance with the goals set by the Constitution. The guilt of an accused should be proved beyond “lingering” doubt in cases warranting the award of capital punishment, which has so far not yet been evolved.

I don’t know where the hell Indian sentiment is! Instead of showing some toughness on terrorism, politicians are busy protecting their vote banks. With this kind of politics, we are sowing the seed of disintegration. We have proved ourselves as the soft state, completely non-serious about the rule of law, where religion and politics comes first and rule of law comes third. It is only in India where persons like Kasab and others found guilty on waging war against our country can survive so long. Take example of US and UK where the convicted were tried and executed with in a short period. But in India we keep on trying if some one is non Hindu.

He cautioned that before giving death penalty, a judge must be “extremely careful” and weigh “mitigating and aggravating circumstances”. The Judge said the state must adduce evidence that the accused cannot be reformed.

This strategy results in a tit-for-tat game with the two sides retaliating to each other’s actions in similar fashion. If there is a man linked to India on death row in Pakistan, be assured there will be one awaiting a similar fate in India. Today, Mohammad Afzal Guru stands convicted in India for storming the Lok Sabha in December 2001. In Kot Lakhpat jail, Lahore, we have Sarabjit Singh arrested in 1990 and convicted of carrying out serial bomb blasts in Faisalabad, Kasur and Lahore.

Sarabjit’s case will be coming up in court shortly and there are many reasons why thousands in Pakistan, as well as India, feel that he should not be hanged.

Sarabjit was sentenced to death in 1991 by Lahore’s anti-terrorism court. He filed a petition before the Supreme Court which was dismissed in 2005 on the grounds that it was time-barred. An appeal to review the petition was again dismissed in June 2009 when the government-appointed lawyer for the convict failed to appear before the court on two consecutive occasions when the case came up for hearing.

 

CONCLUSION:

Anti-death sentence lobbyists ask if the rapist-killer’s death sentence is commuted, would it not give him an opportunity to reform himself, and spread the message of non-violence to others with similar criminal intent. Is death penalty the only form of justice that could satisfy the family of a victim and society at large? Apparently, these issues are debatable, and in the absence of any legislation and judicial decisions, the debate will largely remain academic.

The lack of professional hangmen should make the Law Commission’s 187th report to the government, submitted in October 2003, worthy of consideration. The Commission recommended alternative methods such as lethal injection, which would require rendering the convict unconscious with anaesthesia before injecting the lethal dose, in view of the physical pain and suffering a convict undergoes when he or she is hanged until death. I can’t explain why but I feel pity for him. We should be criticizing the system that creates situations where ordinary people turn to killing people to feed their family. It’s very unfortunate what happened. Please do not spread hatred…..he was a young man lured in by terrorist….no one is born a terrorist but made a terrorist by extremists…..he was a poor person who was lured in to do this because of money….I am Indian myself, but not a hater….do not show others that we Indians are haters…..

In India “death in the midst of life” is a literal, not figurative, notion. Along the Ganges River, for instance, bodies are regularly cremated, and the odor of burning flesh fills the air. And in the city of Calcutta, dead bodies become a problem to those responsible for keeping the streets clean. Thus, it is not surprising that in India’s sacred texts and stories, how one’s life determines one’s fate after death.

What we should do with the Godhra culprits…about 1000 people were killed during riots why we talk only about hanging Kasab? What about Modi who was the one n only one person/ maker of 2002 riots, that was not created by normal people it was a planned by our lovingly Gujrat CM Mr. Naredra Modi. And how shamed it is that Gujrat people and many BJP leaders want him as a prime minister of our country!! Why we people are not talking about Babu Bajrangi and Maya Kodanani .. they are also terrorists… hang till death to all three.

 

Killing Kasab will not stop the crime but if he alive and we give him torture, the people behind him may think once to attack again and if we kill him he will be happy and his team will attack again and again. I am not against the Kasab personally but the act which he had committed should be reciprocated, in a way, that any other person don’t ever try it due the consequences occurs after that. I hate offence not the offenders…!! So inspite of being an Indian I will not kill ‘Kasab’, rather I want to kill the offensive mood of the people like ‘Kasab’….!! Kasab’s hanging should act as a warning to other terrorists. But what about the main culprits who motivated him to commit the brutal murders?

Ram Chandr keh gaye siya se, Congress raj ayega, Anna bukh se marega, Kasab briyanniii khayega…

Here are main things which I want to mention:-

 At one place our Constitution says that “everybody is equal in the eyes of law” but there is not any difference between criminals who are doing wrong with Indian Public.

 There are differences between Dhananjoy Chatterjee and Afzal Guru and Kasab, because all the people who come in India did terrorism but they are not belongs to India and don’t have the Indian nationality.

 We all think that vote bank politics protecting terrorists.

 I think the government is waiting for new major incident like “Kandhar Hijack”.

Government is run by the politics and politician not by any other person as we all know the truth of our politicians therefore we can say yes they are waiting for another crime or attacks. Ruther to punish terrorist or the other to create.

 

Freedom of speech is the most abused and misused right in India. These so called Human Rights activists are just lime-light seekers and nothing more.

Women get raped and murdered, people in some slums use water from the same tank for consumption and other purposes, untouchability is still prevalant in many parts of India, dowry system, female feticide and there are many such gross violations of a human being’s right to live a free, healthy and fair life. Our HR activists are not bothered about such things because fighting for these causes does not give them the lime-light. Instead they wait for an execution of a terrorist or a rapist to raise the voice. For a man who shot at unarmed innocent people killing and injuring them death penalty is completely justified and absolutely correct. My request to these activists, please go out into the society and try to fight for solving real problems instead of making useless statements.

 

DISCLAIMER:

Unless otherwise indicated, all posts by a regular or guest contributor to this blog reflect that contributor’s own personal opinions and views and not any institution to which the contributor may be affiliated. Posts should not be attributed to the blog as a collective or to any other regular or guest contributors.

Furthermore, by expressing their views and opinions to this blog, contributor’s exercise their freedom of speech and expression protected by international human rights instruments and the Constitution of India.

 

 

 

FAQ on Consumer Forum

cf01. Who can approach the redressal agencies established under the Consumer Protection Act for redressal of his grievances?


A consumer, as defined in section 2(1)(d) of the Act, or any voluntary consumer association registered under the Companies Act, 1956 or under any other law for the time being in force or the Central Government or any State Government or one or more consumers where there are numerous consumers having the same interest, or in case of death of a consumer, his legal heir or representative, can file a complaint in writing alleging that an unfair trade practice or a restrictive trade practice has been adopted by any trader or service provider; or the goods bought by him or agreed to be bought by him suffer from one or more defects; or the services hired or availed of or agreed to be hired or availed of by him suffer from deficiency in any respect; or a trader or the service provider, as the case may be, has charged for the goods or for the services mentioned in the complaint, a price in excess of the price – (a) fixed by or under any law for the time being force; (b) displayed on the goods or any package containing such goods; (c) displayed on the price list exhibited by him by or under any law for the time being in force; (d) agreed between the parties; or goods which will be hazardous to life and safety when used are being offered for sale to the public (i) in contravention of any standards relating to safety of such goods as required to be complied with, by or any law for the time being in force of (ii) if the trader could have known with due diligence that the goods so offered are unsafe to the public; or services which are hazardous or likely to be hazardous to life and safety of the public when used, are being offered by the service provider which such persons could have known with due diligence to be injurious to life and safety; with a view to obtaining any relief provided by or under the Act.

02. How to approach and where to approach and what are the requirements for filing a complaint before the State Commission and the District Forums


No format is prescribed for filing a complaint. A complaint can be filed even on plain paper. The services of an Advocate are not required. Complaints, where the value of goods or services and the compensation, if any, claimed does not exceed Rs. 20lakhs, can be filed before a District Forum where the Opposite Party or each of the opposite parties where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, or any of the opposites parties, where there are more than one at the time of institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the District Forum is given or any of the opposite parties, who do not reside or carry on business or have a branch office or personally work for gain, as the case may be, acquiesce in such institution,; or the cause of action wholly or in part had arisen.
In the case where the value of the goods or services and the compensation, if any, claimed exceeds Rs.20 lakhs but does not exceed Rs. 1 crore, in that event such a complaint can be filed before the State Commission having jurisdiction and in case where the value of the goods or services or compensation, if any, claimed exceedsRs. 1 crore, in that event the complaint straightaway can be filed in the National Commission situated at New Delhi.

03. What are the requirements for filing an Appeal against the orders of the District Forums to the State Commission?


As per the provisions of the Act, any person aggrieved by an order passed by the District Forum may prefer an appeal against such order to the State Commission within a period of 30 days from the date of order. The period of limitation for filing the appeal is to be computed from the date of communication of the order to the aggrieved party. Proviso to Section 15 of the Act provides that the State Commission may entertain an appeal even after the expiry of said period of 30 days if it is satisfied that there was sufficient cause for not filing the same within that period. The procedure for filing the statutory appeal against the orders of the District Forums to the State Commission has been laid down in Rule 8 of the Delhi Consumer Protection Rules, 1987.
04. In case the orders passed by the redressal agencies are not implemented, remedy available to aggrieved person


In case the orders passed by the District Forum or by the State Commission, as the case may be, are not implemented, the aggrieved person has a right to file an Application for implementation of the orders, under section 25 and/or under section 27 of the Act, as he may be advised.