Category: Legal Articles

Doctrine of Equitable Set-Off: Critical Analysis

Posted on | by Shivam Goel | Leave a Comment on Doctrine of Equitable Set-Off: Critical Analysis

Doctrine of Equitable Set-OffIntroduction: Set-Off- Meaning and Characteristics:

According to the Black’s Law Dictionary (Seventh Edition, 1999), a set-off is nothing but a debtor’s right to reduce the amount of a debt by any sum the creditor owes the debtor. In the case of, Union of India v. Karam Chand Thapar and Bros (Coal Sales) Ltd and Ors, referring to the concept of set-off and quoting from ‘A Treatise on the Law of Set-Off, Recoupment, and Counter Claim’, by Thomas W. Waterman, the Hon’ble Supreme Court of India held that, set-off signifies the subtraction or taking away of one demand from another opposite or cross-demand, so as to distinguish the smaller demand and reduce the greater by the amount of the less; or, if the opposite demands are equal, to extinguish both. Set-off, broadly speaking, means ‘stoppage’, much because the amount due to be set-off is stopped, or, is deducted from the cross-demand.

According to Order VIII, Rule 6 of the Code of Civil Procedure, 1908, set-off means the deduction of one demand from another cross-demand. It is the demand that the defendant makes as against the plaintiff for the purpose of liquidating the whole or part of his claim.1 Order VIII, Rule 6 of the Civil Procedure Code, 1908 which deals with the doctrine of legal set-off is in fact restricted to only an “ascertained sum”. The conditions that must exist for the applicability of a legal-set-off are the following:

Suit must be for the recovery of money;

The claim demanded to be set-off must be an ascertained sum of money2;
The ascertained sum of money must be legally recoverable from the plaintiff3;
The ascertained sum of money legally recoverable from the plaintiff must not surpass the pecuniary jurisdiction of the court in which along with the written statement, the defendant has filed the set-off;
When the defendant pleads set-off, he is put in the position of a plaintiff as regards the amount claimed by him. A defendant can claim set-off even if the plaintiff’s suit is dismissed;
It is essential that both, the claim and the set-off must be for debts due from and to the same parties in the same right;
The claim must be made at the first hearing unless it is permitted by the court to do even afterwards.
In nutshell, set-off means reciprocal acquittal of debts between two persons. As per Order VIII, Rule 6, where in a suit for recovery of money by the plaintiff, the defendant finds that he also has a claim of some ascertainable amount against the plaintiff, then the defendant can claim set-off in respect of the said amount as against the money claim of the plaintiff. A plea of set-off is a request that the debt to be found due to the plaintiff shall be treated as extinguished or reduced pro tanto by being set-off against the debt to the defendant.4 It is pertinent to note that, in both Rule 6 and Rule 6-A of Order VIII of the Code of Civil Procedure, 1908, a set-off or counter-claim cannot travel beyond the scope and the limit of the suit with which it is concerned; and it cannot bring out something, which is completely foreign to the suit.5

A claim of set-off is based on an independent cause of action which the defendant has, as against the plaintiff, and the cause of action of the plaintiff and the defendant should have arisen in the same transaction or different transaction. It is pertinent to mention here, that, both claims (that of the plaintiff as well as that of the defendant) are decided vide the same judgment and the decree is drawn-up after adjusting the set-off claim, in favour of the person whose amount is greater.

Where the defendant relinquishes (that is, forgoes) a part of his claim in the set-off then in a subsequent suit for relinquished claim, the bar of Order II, Rule 2 shall apply.6

A claim of set-off is put to an examination which is akin to an independent suit and therefore, the rules of examination of a plaint, bar of limitation, res judicata and Order II, Rule 2 are applicable pro tanto.

According to Section 3(2) (b) (i) of the Limitation Act, 1963, for the purpose of the Limitation Act, 1963, any claim by way of a set-off is to be treated as a separate suit and it shall be deemed to have been instituted on the same date as the suit in which the set-off is pleaded.7 Generally speaking, the rules relating to a written statement to be filed by a defendant, apply to, a written statement in answer to a claim of set-off.8

Doctrine of Equitable Set-Off:

There have been cases where by the defendants were allowed to set-off even an unascertained sum of money by the Courts of Equity in England, on the premise that, if the plaintiffs’ claim and the defendants’ claim arise out of the same transaction, then, it would be inequitable to drive the defendants to a separate suit. This legal ideology later came to be known as the doctrine of equitable set-off.

Right to equitable set-off is recognised only if the claim arises out of the same transaction which is the foundation of the plaintiff’s claim and the claim has not become time-barred.9 Plea in the nature of equitable set-off is not available when the cross demands do not arise out of the same transactions.10 When a plea in the nature of equitable set-off is raised, then it is not done as a matter of right and the discretion lies with the court to entertain and allow such plea or not.11

In the case of Clark v. Ratnavaloo Chetti12, it was held that, so far as equitable set-off is concerned, the right of set-off exists not only in cases of mutual debits and credits, but also where cross-demands arise out of the same transaction.13 Further, in the case of, Raja Bhupendra Narain Singha Bahadur v. Maharaj Bahadur Singh & Ors14, it was held that, a plea in the nature of equitable set-off is not available when cross-demands do not arise out of the same transaction and are not connected as regards their nature and circumstances. In the case of, M/s. Lakshmichand and Balchand v. State of Andhra Pradesh15, the Hon’ble Supreme Court of India took occasion to rule that, when a claim is founded on the doctrine of equitable set-off, all cross-demands are to arise out of the same transaction, or, the demands are to be so connected in the nature and circumstances that they can be looked upon as a part of one transaction.

In the case of, Jitendra Kumar Khan v. Peerless General Finance & Investment Co. Ltd, (2013) 8 SCC 769, it was held that, an equitable set-off is different from a legal set-off, for an equitable set-off is independent of the provisions of the Code of Civil Procedure, 1908. The concept of equitable set-off is based on the fundamental principles of justice, equity and good conscience; the discretion is with the court to adjudicate or not to adjudicate, as regards the claim, which is in the nature of an equitable set-off; the court has to exercise the discretion sparingly with application of judicial mind and sound legal principles.

Requirements of Equitable Set-Off:

In case of an equitable set-off, the original suit has to be a money-suit just like in case of a legal set-off; but, however, unlike the legal set-off, the amount claimed in case of an equitable set-off can be for ascertained or even an unascertained sum of money.
In case of an equitable set-off, the set-off claimed should arise in the same transaction in which the cause of action for the main suit arises.
A claim by way of an equitable set-off can be allowed even if it is time-barred when there is a fiduciary relationship between the parties. In the case of, Mackinnon Mackenzie & Co. (P) Ltd. v. Anil Kumar Sen & Anr16, it was held that the provisions of the Limitation Act, 1963 do not necessarily bar an equitable set-off and provisions of Order VIII, Rule 6 do not do away with the principles of equitable set-off.
Section 3 of the Limitation Act, 1963 does not at all relates to an equitable set-off.
For payment of court-fee there is no distinction between a legal set-off and an equitable set-off. Both attract applicability of Schedule I, Article 1 of the Court Fees Act, 1870.17
Equitable set-off is not specifically referred to in the Code of Civil Procedure, 1908, however, Order XX, Rule 19(3) which deals with the case of drawing of a decree when set-off or counter-claim is allowed mentions that, “provisions of this rule shall apply whether the set-off is admissible under Rule 6 of Order VIII or otherwise”. The word “otherwise” therefore can be construed to imply equitable set-off.
It was held in: Dobson & Barlow v. Bengal Spinning & Weaving Co.18; and, Girdharilal Chaturbhuj v.Surajmal Chauthmal Agarwal19, it was held that, an equitable set-off is not to be allowed where protracted (or usual) enquiry is needed for determination of the sum due.

Conclusion:

The essence of set-off is that the defendant should have a cause of action against the plaintiff apart from the suit and not merely as a defence to the plaintiff’s claim. Set-off is in the nature of a cross-action which can be entertained separately.20 On the other hand, the concept of equitable set-off is not defined in any procedural law or otherwise. This concept of equitable set-off comes from the broad principles of justice, equity and good conscience. Equitable right to set-off exists only when both the claims, that is, of the plaintiff as well as the defendant, arise out of the same transaction. For example, in the case of, M/s Anand Enterprises (Bangalore) v. Syndicate Bank21, in a suit by the bank on a term loan, damages for the loss on account of delay in giving/sanctioni ng the loan was claimed by the defendant in the written statement. It was held that, the claim of the defendant was in the nature of an equitable set-off and not a counter-claim.

Thus, when the claim of the defendant is in the nature of mutual debits and credits as against the plaintiff, arising from the same transaction, between the same parties then, equitable set-off can be claimed by the defendant as against the plaintiff, without complying with rigours of Order VIII, Rule 6 of the Code of Civil Procedure, 1908 and Section 3 of the Limitation Act, 1963. Grant or non-grant of equitable set-off is the discretion of the court.

1*Authored by: Shivam Goel (Associate, S.G. & Co); LL.M. (WBNUJS); Author of: Corporate Manslaughter & Corporate Homicide: Scope for a New Legislation in India, Penguin-Partridg e, Bloomington, 2015; and Concept of Rights in Islam, Lambert Publications, Germany, 2014. See: Sudipto Sarkar & V.R. Manohar, Code of Civil Procedure, 1908, Volume 1, Tenth Edition (2005), Wadhwa & Company Nagpur, p.1045
2 See: Thanjavur P Bank v. Dharmasamvardhan i, AIR 1964 Mad 108
3 Note: A sum the recovery of which is barred under Section 11 of the Code of Civil Procedure, 1908, or Order II, Rule 2, or by the law of limitation at the time of plaintiff’s suit is not a sum legally recoverable; but it has been held in some cases that this rule as to limitation does not apply in the case of an equitable set-off.
4 See: Andhra Paper Mills v. Anand, AIR 1951 Mad 783, 786
5 See: Aninda Saha v. Amal Saha, AIR 2001 NOC 101: 2001 AIHC 2956 (Cal)
6 See: Aakarsh Kamra, Code of Civil Procedure, Chapter 5: Pleadings in General, Lexis Nexis Publication (2015), p. 115
7 See: Section 3 of the Limitation Act, 1963
8 See: Vinayak D. Kakde, Civil Trials: Practice and Procedure, Chapter VIII: Written Statement, Set-Off and Counter-Claim (Order VIII), Universal Law Publishing (2015), p. 30
9 See: Maharashtra State Farming Corporation Ltd. v. Belapur Sugar and Allied Industries Ltd., 2004 (3) Mh LJ 414 (Bom)
10 See: Nathmal v. Kashiram, AIR 1975 Raj 217
11 See: Union of India v. Karam Chand Thapar & Bros (Coal Sales) Ltd, (2004) 3 SCC 504
12 2 M.H.C.R. 296 (1865)
13 See: Chishlom v. Gopal Chander, ILR 16 Cal 711 (1889)
14 AIR 1952 SC 782
15 (1987) 1 SCC 19
16 AIR 1975 Cal 150
17 See: Cofex Exports Ltd. v. Canara Bank, AIR 1997 Del 355 (at 365)
18 (1897) 21 Bom 126
19 AIR 1940 Nag 177
20 See: Pramada Prasad v. Sagarmal, AIR 1954 Pat 439 (at p. 441)
21 AIR 1990 Kant 175

GST : ONE India ONE MARKET

Posted on | by Anukriti Ladrecha | Leave a Comment on GST : ONE India ONE MARKET

gstAnukriti Ladrecha
Introduction
The introduction of unified gods and services tax (GST) across the nation is the most important indirect tax reform since independence. It has taken almost 16 years from the date of inception of idea, formation of task force, to passage in Parliament. It represents a Herculean, nationwide, multi-party consensus- building exercise which is finally bearing fruits, officially known as The Constitution (One Hundred and twenty second Amendment) Bill, 2014, proposes a national Value added Tax to be implemented in India from 1 April 2017
There are few steps that lie ahead following the Rajya Sabha’s nod to the Constitution Amendment Bill.
Changes made to the bill in Rajya Sabha will have to be approved again by the Lok Sabha (either in a special session, or the winter session).
The Bill needs to be ratified by a majority of the states (15/29). Following this, it will be sent to the President.
After Presidential assent, a GST Council compromising representatives from the states and centre will be set up.
The council will help codify central GST and State GST laws which would be passed by Parliament and State assemblies.
GST Network, the IT backbone of GST, to facilitate online registration, tax payment and return filing would be introduced.
GST Network will create an online portal. The portal will begin migrating data on existing taxpayers under the current VAT/excise/service tax regimes.
All businesses will be given a GST identification number, a 15- digit code comprising their State code and 10 characters PAN.
The GST Network has already validated the PAN of 58 lakhs businesses from the tax department.
Government is already enabling “master trainers”, who would train accountants, lawyers and tax officers on the new system

GST will replace State taxes, Value Added Tax, Central Excise Duty, including additional excise duties, excise duty under medicinal and toilet preparations (Excise Duties) Act, 1955.
Octroi and Entry Tax, Service tax.
Purchase Tax, Additional Customs Duty
Taxes on lottery, betting and gambling, Central Sales Tax levied by the Centre and collected by the States.
State cesses and surcharges Central surcharges and cesses relating to supply of goods and services.
Luxury Tax, Special Additional and Duty of Customs.
Entertainment tax, other than the tax levied by the local bodies.

Major benefits of GST
It addresses a serious impediment to our competitiveness. Without the GST, there are multiple points of taxation and multiple jurisdictions. We also have an imperfect system of offsetting credits on taxes paid on inputs, leading to higher costs. Further there is cascading of taxes- that is tax on tax. Interstate commerce has been hampered due to dead weight burden on Central sales tax and entry tax, which have no offsets. All this will go once the GST is in place. It will enhance the ease of doing business, and make our producers more competitive against imports.

GST will increase the resources available for poverty alleviation and development
Indirectly: tax base will rise
Directly: the resources of poorest state: U.P., Bihar, M.P., who happens to be large consumers, will increase substantially.

The adoption of the GST is an iconic example of what PM Narendra Modi has called “cooperative federalism”. It represents a national consensus; an outcome of grand bargain stuck together by 29 States and 7 Union Territories with the Central Government. The States agreed to give up their right to impose sales tax on goods (VAT), and the centre gave up its right to impose excise and service tax. In exchange they will each get a share of unified GST collected nationally. The anticipated additional gains in efficiency, competitiveness and overall tax collections are what drove this bargain.

GST will facilitate ‘Make in India’ by making one India.
Curently:
CST on interstate sales of Goods
Numerous intra state taxes
Extensive nature of countervailing duty exemptions that favours import over domestic production.

Once the GST is in its place, it means a unified un-fragmented national market for goods and services, accessible to the smallest entrepreneur. Companies need not maintain stocks depots to avoid paying interstate taxes. This will free up some capital. All this will add to demand, and also efficiency. The National Council for Applied Economic Research and others have estimated that national GDP growth can go up by one percentage point on a sustained basis.

GST would improve even substantially tax Governance in 2 ways:
The first relates to the self- policing incentives inherent to a value added tax. To claim input tax credit, each dealer has an incentive to request documentation from the dealer behind him in value added/ tax chain.
The second relates to the dual monitoring structure of the GST, one by State and one by Centre.

Because the structure of claiming input tax credit is linked to having proof of taxes paid at an earlier stage in the value chain, this creates interlocking incentives for compliance between vendor and customer. No more questions from a vendor “would you like that with receipt or without receipt?” because of this inherent incentive, the total taxes paid, and hence collected, may go up significantly. This provides buoyancy to the GST. In fact a significant part of the black economy will enter the tax-paid economy.

Boost to investment have been documented in the report on the Revenue Neutral Rate that was submitted in December last year

The fewest flaws at inception
First is the question of uniform GST rates. An early report of finance minister from 2003 mentioned a rate of 12% but over the years this rate drifted higher and now is 18%. The empowered committee of finance minister uses a concept called “Revenue Neutral Rate”. It is that uniform rate which when applied will leave all states with the same revenue as before. So no state should lose out by signing up to the GST. But this approach is faulty, since unless we try it for a year or more we won’t be able to gauge the buoyancy of the GST. In trying to assuage the fears of the states, the calculation of the RNR has been loaded by every possible existing rate. This has caused the RNR to steadily escalate upward. But approach is to keep the GST rate low initially and promise to fully reimburse loosing state by the end of the year.

The report urged, GST be comprehensive, in its coverage, that exemptions from the GST be limited to a few commodities that catered to clear social benefits and that most commodities be taxed at the standard rate.
Another issue is that GST is an indirect tax, by its nature, indirect tax is regressive because they affect the poor more than the rich. India’s ratio of indirect to direct tax collection is 65:35, which is exactly the opposite of the norm in most developed countries. India’s ratio of direct tax to GDP is one of the lowest in the world and is badly needs to expand the direct tax net. Unless s rate cap I adopted, the GST rate could easily drift higher further hurting India’s income inequality.

It is far better to start and allow the process of endogenous change to unfold over time than to wait Gogot-like for the best time and best design before it is introduced.

Tax litigation is another issue. Approximately Rs 1.5 lakh crore is stuck in litigation related to Central excise and service taxes. On the other hand the State level VAT is administered in a way that empowers tax officials to dispose of cases quickly. Disputes involving Central taxes go through an appeal and tribunal processes and a drag on years. It is important that GST approach leans towards the more efficient State-level model
GST-type taxes in large, federal system are either overly centralized, depriving the sub-federal levels of fiscal autonomy. (Australia, Germany, Austria.) Where there is dual structure they are either administered independently creating too many differences in tax bases and rates that weaken compliance and make inter-state transactions difficult to tax.( Brazil, Russia, Argentina). Where administered with a modicum of coordination which minimizes these disadvantages ( Canada and India), but does not do away with.

The major problem comes in implementing the GST is the governance within the GST Council. It is de facto council of states, along with representatives from the Union Finance Ministry. It seems that one state will get on vote irrespective of its size. This seems unfair. An economically larger states, contributing a bigger chunk of the GST Pie, should have a greater say similarly the special needs of smaller states should also be headed
The Indian GST will be a leap forward in creating a much clearer dual VAT which would minimize the disadvantages of completely independent and central system

Exceptions in the form of permissible additional excise taxes on special good ( Petroleum and Tobacco) for centre, a petroleum and alcohol for states will provide the requisite fiscal autonomy to states.
Finally the issue of State’s autonomy. India will be uniquely large democracy that adopts a nationwide GST with virtually no taxing powers to state. In a situation where state want to undertake special spending programmes to respond to State specific situation, such as disaster?
In 1982, the CM of Tamil Naidu upgraded a midday meal scheme which his opponents criticized as being an empty promise and fiscally reckless. In response he raised taxes on goods (not possible in GST regime) and made the programme so successful that it is praised to this day. Similarly in the drought crises year of 1972, the Maharashtra government imposed a profession tax on city dwellers (not possible under GST) to fund an innovative programme called the rural “ Employment Guarantee Scheme”, which 3 decades later was acknowledged nationally as the inspiration behind the National Rural Employment Guarantee Act. The GST regime should remain sympathetic to this issue of state’s fiscal autonomy. The local bodies are not even discussed
The GST is obviously not a panacea for all ills of India’s economy it is nevertheless a revolutionary and long pending reform. It promises economic growth and jobs, better efficiency and ease of doing business, and higher tax collection.

Issue of Homosexuality : Looking up to the Apex Court…

Posted on | by S.Royal Raj | Leave a Comment on Issue of Homosexuality : Looking up to the Apex Court…

homosexualityLooking up to the Apex Court…
The issue of Homosexuality has attained the spotlight once again, and the people of India are certainly looking to this temple of Justice to uphold the sacrosanct moral values of our cherished motherland.
By the way, for quite some time we are referring to section 377 of the Indian Penal Code dealing with Unnatural Offences. It is pertinent to note that our arguments center around this particular section, besides other vital provisions enshrined in the Constitution.
All this fuss was triggered when the Delhi High Court in its landmark judgment( Naz Foundation Vs.Govt. of NCT of Delhi) held that Section 377 is unconstitutional and henceforth homosexuality was not an offence that would attracts penal provisions.This is the “cause of action” for all our debate. A close look at the judgment of the Delhi Court presents a peculiar feature. Senior Advocate N.H.Hingorani opines that almost the entire ruling is based on decision of foreign courts and other international instruments. The irony is that the Hon’ble Supreme Court has, right from its inception vehemently opposed this unique practice of ‘importing’ rulings of foreign courts. The High Court’s reference to the foreign courts’ views on homosexuality are certainly irrelevant for the interpretation of section 377. Above all the court also noted that section 377 violates Articles 21,15 and 14. It obviously relied on foreign judgments for this proportion that “If, in expressing one’s sexuality, one acts consensually and without harming the other, invasion of that precinct will be a breach of privacy” so is this stand is taken then with this even section 497 IPC can also be decriminalized, yes you read it right this also happens with consent right??, so the point is consent makes an act legitimate even though it may be vile!
So with this chaos and muddle, the matter reached the gates of the Apex court. The court in a splendid display of upholding morality, set aside the ‘erroneous’ judgment of the Delhi High Court.Seems the LGBT activists found it offensive and they put this issue in spotlight with a curative petition filed on the February 2nd, 2016 and the Hon’ble Supreme Court has referred the matter to a constitutional bench.
You might ask what difference does it make to me? Anyway it won’t affect my family!, Is it true that same-sex union can take place in our society and not affect “the rest of of us”?, No reader it certainly does!. Since I cannot take you through all viles of this case for now just consider this abstract from the World Congress of Families entitled “Homosexual Unions: Rare and Fragile”, and this organization reports “Progressive activists have argued strenuously in recent years that giving homosexuals the legal right to marry will improve life for homosexual couples and will consequently benefit oursociety as a whole. A new study of same sex marriage in Scandinavia, however casts doubts on this assertion. For, as it turns out, relatively few homosexual couples avail themselves of this revolutionary right. And a surprisingly high percentage of those who do so end in divorce court”Did you see, when the God ordained marriage system fails, for good or for worse it ultimately takes a toll on our values ( and certainly to our younger generation). After all what makes a society?it’s the family, and the family is nothing but individuals who are committed to each other. At the grass roots it’s the individual’s decisions that has far reaching implications. Just imagine a system in which a same sex individual’s child being raised with two fathers or two mothers. Whether raised by a lesbian or two homosexual men, these children will be denied either a mother or a father. Hopeful parents are seeking to rent wombs and deny children the right to know their biological parents, is It not a perilous situation? God intended that every child have a mother and a father who are an example of commitment, care and love. Not only is such a child given a sense of security, but he or she also sees feminity and masculinity modeled in a complementary relationship. Judith Stacey, a sociologist and an advocate for same-sex marriage, agreed that the sons of lesbians are less masculine and daughters of lesbians are more masculine. She also found that a ‘significantly greater proportion of young adult children raised by lesbian mothers than those raised by heterosexual mothers…reported having homoerotic relationship. God has rightly said both a mother and a father are relevant to parenting. Is anyone serious in suggesting that two men can take the place of a mother’s love, or two women can equal a dad? Of course, in our world with rampant divorce, immorality, and the redefinition of the family, this ideal is becoming a memory. At this juncture it is highly significant to look at two thoughts when it comes to allowing gay men to marry and to have a ‘family’. Marriage will change us, making us more monogamous or we will change marriage, making it less monogamous. It seems the latter is more often the case.
When the first marriage was instituted it was between a male and a female and this agreement was to last till “death does them apart”. This covenant justifies their sexual relationship and the sexual relationship/orientation does not justify the covenant.When we speak of the sanctity of marriage (between a male and a female), this is not a pious phrase; it is the essence of life, theenvironment in which values are formed, and future generations are guided”. Above all family is the very first cell in the social structure.
Let’s not be carried away by the opinion of the masses, but reason it out ourselves before reaching to any conclusion. Just because the world nations (especially the west) agree we need not. A nations success is certainly to see its citizens build up right families,(which obviously leads to a right society, ultimately affecting the welfare of the nation as a whole), thereby leaving an everlasting footprint in the (demoralized) sand for our little ones to follow. At the end of the day it’s up to the Honorable Supreme Court to consider all this issues and uphold our sacrosanct marital morality!!!
References:
The truth about same sex marriage by Dr. Erwin Lutzer
Pg 75,80, ibid.
Lawyer’s update XVIII, Part 4. April, 2022
Judith Stacey and Timothy Biblarz, “(How) Does the sexual Orientation of Parents matter?” American Sociological Review 66: 159-83
Dan Savage, “What does marriage mean?” July 17,2014,salon.com.

An Overview Of The CCI’s Decision in the Radio Taxi Services Market

Posted on | by Tanvi Kini | Leave a Comment on An Overview Of The CCI’s Decision in the Radio Taxi Services Market

taxiTanvi Kini
Symbiosis Law School, Pune

Background

Over the past few years, there has been a sudden surge in radio taxi services market wherein Ola, Uber, Taxi for Sure etc. operate. The options for varied modes of transport poses as a threat to auto-rickshaws, taxi drivers and other transportation service providers in India. An exponential demand for convenient and easy pick up and drop transportation services has put small players out of business and the may have an effect on competition in the market. The Competition Commission of India (CCI) has assessed and passed several orders dealing with the market of ‘radio taxi services’ in the past 2 years. The CCI has not only taken into consideration the competition aspects such as market share of these service providers but also factors such as convenience, availability, coverage etc.

Cases dealing with the Competition in ‘Radio Taxi Services’ Market

The competition aspect of radio taxi services (such as Ola, Taxi For Sure and Uber) came into question before the CCI for the first time in M/s Fast Track Call Cab Private Limited v. M/s ANI Technologies Private Limited. Fast Track Call Cab (i.e. the Informants) contended that ANI Technologies abused its dominant position in violation of Section 4 of the Competition Act, 2002 (Act) and indulged in a series of abusive practices including unfair conditions and predatory pricing in the radio taxi services market in Bengaluru. Fast Track Call Cab also alleged that ANI Technologies were offering unrealistic discounts and rates to lure customers and unviable incentives to drivers, resulting in loss of its business.

ANI Technologies, in response, contended that its complex pricing mechanism, incentives and discounts were designed to compete with similarly placed service providers in the market such as Uber. On an investigation conducted by the Director General (DG), the Commission observed that the facts and figures provided by the Informants could not be relied upon and that interim relief could not be granted. This view was dissented by Mr. Augustine Peter, who observed that ANI Technologies commands around 69% of the market while its competitors such as Meru Cabs and Uber have command over 13.7% and 2% respectively. Further, Mr. Augustine Peter observed that ANI Technologies is:
i. pricing below average variable cost which is inconsistent with rational business behavior by a dominant player,
ii. diverting its substantial fund flow to incentivize drivers and provide lower prices to customers, which is unjustified by any business rationale.
Further, it was also observed by Mr. Peter that the conduct of ANI Technologies is resulting in higher concentration and reduced competition in the relevant market. Furthermore, ANI Technologies is not competing on price but on discounts, and that the market performance is not based on its efficiency but on deep pocket and predatory strategy. The predatory pricing behaviour of ANI Technologies would have its effect, not only in radio taxi service market in Bengaluru, but also in other similar markets in which ANI Technologies operates, in India. The dissenting member, in his Order directed ANI Technologies to organize its pricing system in the relevant market such that the incentives paid to drivers and operators together with the share of the passenger revenue passed on to the cab operators and other variable costs do not exceed the passenger revenue collected by it.
This was the first case in which the Commission observed the that features of radio taxis, such as convenience, time saving, point to point pick and drop, pre-booking facilities, ease of availability even at obscure places, round the clock availability, predictability in terms of waiting, journey time etc., makes them a different mode of transportation as opposed to auto-rickshaws, buses and private taxis.

The CCI has also discussed competition aspects in a dispute between two taxi radio companies i.e. in Meru Travel Solutions Private Limited v. Uber India Systems Private Limited, Uber BV and Uber Technologies International Inc. In this case, Meru Travel contended that Uber was abusing its dominant position in the radio taxi services market in Kolkata. According to Meru, Uber reduced the market price of radio taxis in Kolkata from Rs. 20-22 km to Rs. 15 per km, in 2014 and then to an unreasonably low rate of Rs. 9 per km in addition to aggressive incentives to drivers, customer discounts and promotional discounts through its wallet system, thereby leading to price discrimination.
Uber India contended that the relevant product market is broader than ‘radio taxi services’ and should include all modes of public transportation as well as private transportation which are substitutable with one another. It was contended that at the very least, yellow taxis should form a part of the relevant product market in Kolkata. Further, services such as Uber X and Uber Go were launched by Uber to compete with the operations launched by Ola. Further, Uber asserted that there has been a drastic increase in the availability of radio taxis and significant reduction in prices in Kolkata, highlighting the fierce competition, benefits to drivers, and consumer welfare discounts.
In respect to the question of the relevant product market, the Commission was of the opinion that the relevant product market would be ‘services offered by radio taxis and yellow taxis’ on considering the fact that there is an active presence and reliance of consumers on yellow taxis in Kolkata and that these taxis provide a viable alternative to radio taxis. With respect to the relevant geographic market, the CCI was of the view that each city or State constitutes a different market in itself as the operations of taxis are restricted to the city or State limits. In the present case the geographic market was observed to be Kolkata and the relevant market was observed as ‘services offered by radio taxis and yellow taxis in Kolkata’. The CCI was of the view that the yellow taxis posed as a significant constraint on the behaviour of other taxi operators in the city of Kolkata and found that Uber did not hold dominant position in the relevant market.
Once again, in M/s Mega Cabs Private Limited v. M/s ANI Technologies Private Limited, ANI Technologies was accused of abusing its dominant position, this time in the Delhi-NCR region and entering into anti competitive agreements with its taxi drivers thereby Section 3 of the Act. The Informants in this case i.e. Mega Cabs alleged that ANI Technologies have raised huge investments in order to acquire a position of dominance in the Delhi-NCR region and have engaged in predatory pricing, providing driver incentives and customer discounts. Further, the acquisition of ‘Taxi for Sure’ by ANI Technologies has strengthened its position in the market i.e. the market comprising of radio taxis. Mega Cabs submitted that the relevant geographical market ought to be Delhi-NCR market i.e. a separate and independent geographic market. There relevant market proposed was the ‘radio taxi services in Delhi-NCR’.
ANI Technologies submitted that discounts are natural in every market, especially for new players trying to gain a presence in the market. It also relied on the CCI order in H.L.S. Asia Limited v. Schlumberger Asia Services Limited and Others, wherein the Commission observed that giving rebates and adopting similar practices are not essential components of the competitive process and law cannot condemn such practices. ANI Technologies stated that providing incentives to drivers is intended to keep them motivated and necessary to meet competition to establish a presence in the market. The Commission demarcated the relevant geographic market, keeping in mind aspects such as city or State in which operations are conducted, regions which the application (Ola App) is designed to cover and taxi availability in those regions. The CCI was of the view that taxis operating in Delhi region face homogenous competitive constraints distinct from those in other cities and States and that the relevant market is ‘radio taxi services in Delhi’. The CCI laid down that the inability of the existing players or new entrants to match the innovative technology or application developed by any player or the model created for operating in particular industry cannot be said to be a barrier to entry into the market.
Meru filed a complaint before the CCI against Uber in Meru Travel Solutions Private Limited v. Uber India Systems Private Limited, Uber BV, and Others, for allegedly indulging in anti-competitive practices inter alia unfair conditions, predatory pricing and abusing its dominant position in different markets so as to eliminate competitors. Meru contended that the unreasonable discounts and high incentives provided by Uber to its customers and drivers, respectively resulted in major losses. The relevant market proposed by Meru was ‘radio taxi services in Delhi-NCR’. However, the Commission was once again of a similar view that the relevant market ought to be ‘radio taxi services in Delhi,’ on considering the clear demarcation on the application between the taxi availability in the Delhi region and availability in the NCR region. The Commission observed that the fluctuating market figures of the various players exhibited the dynamism and vibrant competitiveness in the relevant market and that Uber was not holding a dominant position.

In a recent 2016 case before the CCI, Mr. Vilakshan Kumar Yadav and Others v. M/s ANI Technologies Private Limited, the informants who are drivers of auto rickshaws and taxis currently operating their vehicles in Delhi and some in the National Capital Region (NCR) contended that ANI Technologies through its radio taxi services such as Ola and Taxi for Sure was holding a dominant position in the ‘paratransit services market’ which includes auto-rickshaws, black yellow taxis and city taxis. The informants stated that ANI Technologies were charging low fares such as Rs. Zero/km for a period of time and generally less than one-third of the government prescribed rates. This act of predatory pricing is gradually forcing other competitors out of the market. ANI Technologies challenged the relevant market proposed and stated that auto-rickshaws, black yellow taxis and city taxis could not be stated to be competing in the same relevant market and denied the accusations of the informants.
The CCI on considering the facts and allegations, found that auto rickshaws and taxis are different from radio taxi services despite offering similar services owing to the difference in comfort, time taken by various modes of transportation, buying power of the consumer etc. and thereby they do not qualify to be substitutes for each other.
With regard to the Informants’ allegations on abusive pricing strategy of ANI Technologies in the auto-rickshaw segment, the CCI would assess the relevant product market as ‘market for auto-rickshaw services’ in addition to the ‘radio taxi services market’. The CCI observed that the relevant geographic market would be ‘Delhi’, on lines similar to the previous cases and therefore the relevant markets to be studied were: (i) ‘provision of radio taxi services in Delhi’ and (ii) ‘provision of auto rickshaw services in Delhi’. In respect to the the first relevant market, the CCI observed that not only are there several players in the relevant market but there exists stiff competition Ola and Uber, hence, ANI Technologies could not be said to be holding dominant position or abusing its position. In respect to the second relevant market i.e. the market for auto-rickshaws in Delhi, the CCI opined that ANI Technologies does not hold a dominant position as it constitutes around 19.75% of the market share.

Conclusion

In view of the recent rise in the consumer demand for and use of radio taxi services in India such as Uber, Meru, Ola and Taxi for Sure, there is a need to clearly demarcate the relevant market in which these taxi service providers operate. Attractive offers, heavy discounts and incentives offered by companies such as ANI Technologies and Uber have helped them gain substantial prominence and consumer reliance in the market, thereby affecting companies offering similar services, auto-rickshaws and taxi drivers in their respective cities and States.
One of the key takeaways that ought to be highlighted is the definition of the relevant market. In all of the above mentioned cases, the CCI has opined that the relevant product market is the ‘radio taxi services’ market and not the market for radio taxis, auto-rickshaws, taxis and other modes of transportation. Also, the CCI has emphasized that the relevant geographic market is the city or State in which radio taxi services operates and is based largely on the coverage of the application. However, there is a need for further clarity as these cases raise several questions with respect to the implications on independent auto rickshaw drivers, taxi drivers, and start up companies. The CCI has clearly stated that the markets are not the same and may be differentiated owing to the difference in convenience, coverage, and availability and therefore than are not comparable from the competition point of view.

Rights of the Arrested Decoded

Posted on | by Pratheek Maddhi Reddy | Leave a Comment on Rights of the Arrested Decoded

Pratheek Maddhi Reddy
Article 21 of the Indian constitution says, “No person shall be deprived of life or personal liberty except according to procedure established by law”. ‘Liberty’, succinctly, in its absolute sense, is the faculty of willing and the power to do what has been willed, without being influenced by any other source from within or from without.
To break when necessary and justified this liberty that we citizens in the modern legal systems hold so dear, with history brimmed with instances of revolution and war in attempting to attain it, the “procedure established by law” in Article 21, is the weapon. Pertinent currently, this procedure is – ARREST.
The word ‘arrest’ derives from a French word “arreter”, meaning to ‘stop’ or ‘stay’ and signifies a restraint of a person2. It is deprivation of a person of his liberty by a legal authority and such deprivation has to be total.

This paper would like to briefly analyse different provisions regarding arrest and then critically explicate the rights of the arrested in the Indian context.

The following are the provisions for affecting arrest.

1. S. 46 of CrPC (hereby referred to as the ‘code’) lays down the rudimentary procedure for arrest. An arrest can be affected only by touching the body of the person unless such person submits to the custody3 (e.g. confessing voluntarily4). S. 49 states that a person arrested shall not be subjected to more restraint than is necessary to prevent his escape.
S. 46(4) lays down the arrest law for women. No woman, save in exceptional circumstances with writing the reaarrestsons by the officer, shall be arrested after sunset and before sunrise. With the amount of crime by police in the country, this is an essential provision for safety of women.

2. Under S. 47, an occupier of a house is in a legal duty to afford the police reasonable facility to search. If the police face an obstruction in such search, they are entitled to use force to eradicate the obstruction (though certain restrictions are placed on this power in case of a Pardanashin woman residing).

3. Under S. 48, a police officer, for arresting any person without warrant, is authorized to pursue such person in any part of India. This power has also been emphasized in S. 22 of the Police code, 1861. In case of arrest with warrant, S. 77 comes into play. But, in either case, the special procedure in Ss. 78 or 81 need to be respected.

4. S. 60 authorizes the police to pursue and arrest a person who, in lawful custody, escapes or is rescued and as usual subject to Ss. 46 (arrest how made) and 49 (no unnecessary restraint).

5. In furtherance to S. 47, under S. 51, the police can search a person arrested without production of bail. The Police Act, 1861 mandates such search to be made in presence of independent and respectable witnesses and all the incriminating articles found be produced before the court under S. 102 of the code. If such a search is of a woman, the police shall maintain strict decency.

6. S. 53 of the code authorizes the police to conduct the medical examination of the arrested when it becomes necessary for investigation. As to the question that whether this section violates the constitutional privilege against self-incrimination, the law commission referred to the case of Kathi Kalu Oghad v State of Bombay5 which held that finger prints and hand writing samples do not by themselves go against Art. 23 of the Indian Constitution because they have to complemented by some other similar evidence that the police possess for possible conviction to occur.
S. 4 of Identification of the Prisoners Act, 1920 too empowers the police to take bodily measurements of the arrested person. An amendment to the code in 2005 spawned the new section of 53A for special procedure for examination of person accused of rape by medical practitioner.

7. S. 59 talks about discharge of person apprehended states that no person arrested by a police officer shall be discharged except on his own bond, or on bail, or under a special order of a magistrate.

In case of deviation from such rules by the police, punishment shall accrue under sections 224, 225 and 225B of the Indian Penal Code.
RIGHTS OF THE ARRESTED

Arrest probably is the most effective method for securing the attendance of the accused at his/her trial and also as a preventive or precautionary measure in respect of a person intending to commit a cognizable offence, or a habitual offender. It is a necessary requirement for efficiently and diligently dealing, in the interests of general public, with the problem of crime and criminals6.
But such concerns do not give, as Delhi HC pointed out, discretion to investigative agency to arrest in whim, fancy or in wholly arbitrary exercise of discretion. Because the accused’s liberty and society’s claims conflict, there is requirement of due reasonability and credibility in arrests made.

As long ago as 1215, the Magna Carta stated: “No free man shall be captured, imprisoned or diseased or outlawed or exiled… except by the lawful judgment by his peers or by law of the land.7”
The following are the rights of the arrested (restrictions imposed on police powers to arrest) as envisaged by the code:

a) Right to know the grounds of arrest: Under S. 50(1) of the code, the person arrested needs to be informed forthwith the reason for his arrest in language understandable by him8. If a subordinate officer is arresting, he will have to also show the order for such arrest from the senior officer. This right’s importance is better depicted in the fact that even constitution under Art. 22(1) confers it and in case of inconsistency with it, the arrest becomes illegal9.
In the old code, such a right didn’t exist in case of arrest with warrant. Since it doesn’t stand the test of constitutionality (Art. 22), the code had been amended adding the appropriate clause granting this right.
There is a slight inconsistency in the code: in case of arrest without warrant by a magistrate, then the arrest falls under S. 44 and not under sections that talk of this particular right (Ss. 50, 55 or 75)10. But in practice, since Article 22(1) mentions this right anyway, there exists no dispute.
This right helps the person to move the appropriate court for bail, make a writ petition for Habeas Corpus or make proper arrangements for defence and consult a legal practitioner more meaningfully.
Further, D. K. Basu v State of West Bengal11 guides that the police personnel should bear accurate and clear identification and his/her particulars be recorded in a register.

b) Right not to be detained for more than 24 hours without judicial scrutiny: Under S 57 of the code, a person shall not be detained for more than 24 hours12 without producing before a Magistrate. As explained by the SC in the case of Punjab v Aijab Singh13, this right which, like the previous one, is also mentioned in Art. 22(1) of the constitution governs only arrests without warrants, for those with warrants, S76 applies (shall be discussed subsequently).
In the code of 1898, under S. 151 (arrest to prevent the commission of cognizable offence) this time period has not been mentioned and it led to serious controversy. Resolving this, the code was amended adding the 24 hour time period into the section.
The main reason behind this right is, as stated by National Police Commission, wrongful use of arrest powers is one of the chief sources of corruption in the police. 60% of arrests made are unjustified14. It is a magistrate, known to be fair and impartial who is eligible to decide the fate of the arrested, not the police.
The right is for (i) preventing arrest for extracting confessions or to compel people to give information, (ii) to prevent use of police stations as prisons, and (iii) for immediate recourse to judicial officer. As said by the SC in Sharifbai v Abdul Razak15, if the police do not produce the person in 24 hours before a magistrate, it amounts to wrongful confinement.

c) Right to be examined by a medical practitioner: While S. 53 allows the police to conduct medical examination on the body of the arrested, S. 54 gives such person the right to demand the same. It is the duty of the police to inform the arrested person of this right16. The provision in 54 that in case of examination of a woman, it be done only under supervision of a female officer is now included in 53 too.
This right is crucial in aiding the arrested person build evidence that could help him in the court.
Regarding medical examinations, the SC has laid down guidelines that the arrestee should be subjected to medical examination every 48 hours during his detention17.

d) Right to consult a legal practitioner: An arrested person, not just under 303 of the code but also Art. 22(1) of the constitution has the right to consult a legal practitioner of his choice. The case of Nandini Satpathy v Dani18 has stated that a person has this right not only after arrest is made but before too, during interrogation, making its use more meaningful.
A part of this right, under 304 of the code and Art 21, when such person is an indigent, he/she is entitled to free legal aid by the state so as to ensure fair trial. Further, in a country where 80% of the population is indigent, it is hardly “fair, just and reasonable” to let the well off enjoy the benefit of a counsel and deny it to the poor. The right is also mentioned in Directive Principles of State Policy, Art. 39A.. To this end, central government constituted NALSA as the apex body regarding legal services available under the code. But, there is no express process mentioned in the relevant sections to classify someone as indigent.

e) Right to be taken before magistrate without delay: S. 56 of the code grants this right to be taken before a magistrate without delay and the person not to be confined anywhere else than the police station before such taking. Though Ss. 330 and 331 of IPC punish the police if harm or grievous hurt is caused by them to extort confession, allegations of custodial deaths have been increasing and there is a lack of proper machinery to tackle them and in such light this right and the following, regarding bail, are of utmost importance. The International Commission of Jurists state the arrestee’s right to be produced without delay as most basic of the procedures to be followed19.

f) Information regarding right to be released on bail: Under S. 50(2), if arrested for an offence not non-bailable, such person is to be informed of his right to bail. As observed in Joginder kumar v State20, “arrest and detention in police lock up can cause incalculable harm to the reputation and self-esteem of a person. This right regarding bail upholds the principle, “innocence until proven guilty21” in the most practicable way so that a person is deprived of life and liberty only by a ‘reasonable, just and fair’ procedure established by law22 (Art. 21).

g) Right to compensation when unlawfully arrested: Art. 9(5) of International Covenant on Civil and Political Rights, 1966, to which India ratified, mandates compensation for anyone arrested or detained unlawfully. In the case of Nilabati Behera v State of Orissa23, deciding on these lines, the court comments that the purpose of law is not only to civilize public power but also to assure people of a legal system that protects their interests and preserves their rights.

Consequences of non-compliance: A trial is not vitiated on mere non-compliance with these provisions but the police in such case shall be punishable under S. 220 IPC.

This paper concludes with the note: while all these rights and duties exist, there still exists huge inconsistency in praxis as observed by law commission’s 177th report24. Bhagvati, J. in Khatri v State of Bihar25 in the SC comments, “…instances of the cruel and barbaric manner in which the administrators of law deal with persons arrested by them… what may aptly be described as a crime against the very essence of humanity” and Prof. Madhav Menon Committee in its recommendations to changes in criminal law statutes doesn’t hesitate in referring to the law enforcement as “the extortionist police”. While law on the paper is constantly bettered, the actuality still remains grim26.
______
1 Pratheek Maddhi Reddy, 3rd BBA LLB, Jindal Global Law School
2 Bellary Uma Devi, Arrest Detention, and Criminal Justice System: A Study in the Context of the Constitution of India, 2012
3 Supt. & Remebrancer of Legal Affairs v Kaloo Khan, (1948) 49 Cri LJ 22: AIR 1948 Cal 68.
4 Bharosa v Emperor, AIR 1941 Nag 86, 90
5 1961 AIR 1808, 1962 SCR (3) 10
6 Bellary Uma Devi, Arrest Detention, and Criminal Justice System: A Study in the Context of the Constitution of India, 2012
7 Black, Henry. A Law Dictionary, page 709 (West Publishing 1910).
8 Harikisan vs The State Of Maharashtra, (1962) 64 BOMLR 522
9 Satish Chandra Rai And Anr. vs Jodu Nandan Singh, (1899) ILR 26 Cal 743
10 R. V. Kelkar, R. V. Kelkar’s Criminal Procedure, 6th edition (2014), pg. 82
11 AIR1997SC610
12 exclusive of the journey period
13 1953 AIR 10, 1953 SCR 254
14 Consultation Paper on Law Relating to Arrest, Law Commission of India, Part I Law Relating to Arrest, pg. 9
15 AIR 1961 Bom 42
16 Sheela Barse v State of Maharashtra, JT 1988 (3) 15
17 D. K. Basu v State of WB, AIR1997SC610
18 1978 AIR 1025, 1978 SCR (3) 608
19 Manish Mehrotra, POLICE CUSTODY AND BASIC INDIVIDUAL RIGHTS, [J.T.R.I. JOURNAL – Second Year, Issue – 4 & 5 – Year – March, 1996,
20 1994 AIR 1349, 1994 SCC (4) 260
21 Volume 1, Justice VS Malimath, Committee on Reforms of Criminal Justice System, March, 2003
22 Maneka Gandhi vs Union Of India, 1978 AIR 597, 1978 SCR (2) 621
23 1993 AIR 1960, 1993 SCR (2) 581
24 177th report; Law Commission of India, On Law Relating to Arrest, December 2001
25 1981 SCR (2) 408, 1981 SCC (1) 627
26 D. K. Basu v State of WB, AIR1997SC610;

“RAPE” committed by our Legislators with sec. – 375 of IPC

Posted on | by Dimple Jindal | Leave a Comment on “RAPE” committed by our Legislators with sec. – 375 of IPC

rapeAfter the Nirbhaya Delhi Gang Rape case, “The Criminal Law Amendment Act, 2013” came in to force w.e.f 3rd of Feb, 2013. Now this case was recorded as “Rarest of Rare case” in the history of Indian Judiciary case laws. Our parliament was forced by the street protesters to take immediate initiatives towards making the drastic changes in our criminal laws. By this amendment act, our legislators introduced some new sections and make some amendments in Indian Penal Code, Criminal Procedure Code, Indian Evidence Act and Protection of children from sexual offences act. New Sections 166A, 166B, 326A, 326B, 354A, 354B, 354C, 354D are inserted in Indian Penal Code (45 of 1860), Sections 198B, 357B, 357C are inserted in Code of Criminal Procedure (1973), Section 53A inserted in Indian Evidence Act (1872), whereas several amendments to some sections in these acts were also made by this amendment act. Section 375, 376, 376 A, 376 B, 376 C, 376 D substituted with new one and a new section 376 E was inserted through the same amendment act. Section 375 of IPC (which provides the definition of Rape) goes with drastic change through this amendment act. By this amendment, the definition of Rape was totally changed and its meaning was also changed. Our Legislators put excessive efforts to make amendment in section 375 and after reading the amended definition of rape given under section 375 of IPC, one is compelled to think that what has happened to the art of drafting and where it has gone? Are we so incapable to even draft a law, which make some sense? Interpretation of Statute by the courts is also a great art, which removes the ambiguity in the wording of the statutes giving different meaning in changing situations. But it does not mean that we leave a Patent ambiguity in the statutes and confer a duty upon the Judges & courts to interpret it and give proper meaning to the statute to show the proper object of the legislator. The patent ambiguity should always be removed while making the statute only and it should be the exceptional case, where a latent ambiguity shows from the wording of the statute in the changing circumstances. In that case, it should be the duty of the court to make every endeavour to interpret the statute under the object of the legislator and to make the statute best fit in that every changing situation.
Before passing the act, the definition of Rape is changed and the name of offence was made “Sexual Assault” which replaces the word “Rape” and it is common for man to man, man to woman, woman to woman and woman to man but when the ordinance converts in to act 2013, the word Rape re- changed with the word “sexual assault” & the offence remains punishable for man towards woman only.
This new definition of Rape is criticized by me at some words used by the Legislators unnecessarily.
1. In the new definition, the legislators uses the words, “Vagina, Mouth, Urethra or Anus” in clause (a) and “Vagina, Urethra or Anus” for the clause (b), (c), (d) of section – 375. Before interpreting this definition, we should firstly come to know the proper meaning of these words specifically used by the legislator in the statute. As per Oxford dictionary, Wikipedia and other national & international dictionaries, Urethra is a layer of skin inside the Vagina, means Urethra is covered by the outer layer of Vagina. According to my view, there is no need to use the word “Urethra” specifically. Vagina covers this part in itself as no penetration is possible physically without penetrating anything in to Vagina but to Urethra only (Urethra always comes after the Vagina).
2. Secondly, under section 375 (c), the Legislator criminalize the art of manipulation under the definition of Rape. In this case, now it becomes very difficult to distinguish between “Rape” and “Attempt to Rape” as attempt to rape is already a complete offence in itself and it should be punishable only under section 511 of IPC r/w section 376 of same code and not under the category of Rape. The reason is that, on the one hand we are trying to make the Rape Law as a hard law and on the other hand we are making the no difference between the main offence and attempt to that offence. Even in IPC, there is lesser punishment for attempt to murder as comparable to the main offence of murder. Another reason is that, by bringing the offence of “manipulation only” under the category of Rape, it broadened the ambit of act of Rape unnecessarily on the one hand and provides hard punishment for the less gravity offence on the other hand.
3. Thirdly, the Legislator uses the word, “any part of the body of such women”. It is quite funny to imagine that is there any other part left apart from Vagina, Urethra, Mouth or Anus where the penetration can be possibly made for the sexual purpose. What is the intention of Legislator by using these words here, is the Legislator want to say ear, nose or any other part? It is a bad drafting. Here it seems that Legislator had put excessive and unnecessary efforts to just make the offence of Rape harder. And these excessive efforts made the statute patent ambiguous.
4. Fourthly, the Legislator uses the words, “or any other person” in each four clauses of section 375. Earlier Gang Rape is defined under clause (g) of section 375. But after the amendment of 2013, it is separately defined under section 375 D. The requirement of minimum persons under section 375 D is two, for converting the offence of Rape in to Gang Rape and there is no need of sexual penetration by the both accused but only assistance of one person to the main culprit is enough to make them offender under this section. By using the words “any other person” the Legislator himself makes the both definitions of section 375 and section 375 D as overlapping upon each other. It is a big defect in the definition of Rape given under section 375 as it creates ambiguity in the statute that if one person assists to the offender to commit the offence of Rape, then whether they will be convicted under section 375 or under section 375 D (i.e. which provides punishment for gang rape).
As per above analysis of the amended definition of Rape given under section 375, it is evident clear that how efficient our Legislator are. It must be carefully examined before drafting any statute as the impact of bad drafting may results in to grave consequences. I suggest that there is a need of more involvement of Common man specially Law Graduates either practicing or Teaching or Research fellows in the law making process and they should come forward to give their suggestions. Legislators should make this involvement easy and friendly and must be in a transparent manner which serves many purposes with single act i.e. involvement of common man in law making process, improvement of efficiency, uplift of backward society, improvement in confidence in common man & improvement in education etc. by just giving them suggestive powers only.
This new definition of Rape is badly drafted and it looks by the above analysis that Legislator has committed Rape with section 375 and unfortunately there is no punishment for this offence in Indian Laws but some innocents or less offenders may amounts to harder punishment due to this ambiguity.

Writer:
Dimple Jindal (Advocate)
(M.B.A, LL.B, B.Com)
Distt. Courts, Barnala.

Embraer – DRDO Kickbacks – The Long Arm of The US Justice System

Posted on | by Sandeep Thomas Chandy | Leave a Comment on Embraer – DRDO Kickbacks – The Long Arm of The US Justice System

drdo

By Sandeep Thomas Chandy & Tanya Goyal

In 2008, India’s Defense Research and Development Organization (DRDO) purchased three Embraer aircraft from the Brazilian aeronautical company Embraer S.A. for building indigenous Airborne Early-Warning and Control Systems (AEW&C) for the Indian Air Force. Last week, international media reported that this $208 million deal with DRDO and another deal with a company in Saudi Arabia are being investigated by the US Justice Department under the Foreign Corrupt Practices Act. The question that comes to one’s mind is why should the US Justice Department investigate corrupt practices of a Brazilian company in India and Saudi Arabia?

The Foreign Corrupt Practices Act, 1977

The Foreign Corrupt Practices Act, 1977 (FCPA) was enacted by the United States Congress to prevent US Companies from bribing foreign government officials. This statute grants a broad jurisdiction to the officials of U.S. Department of Justice (DoJ) and U.S. Securities and Exchange Commission (SEC) to enforce prohibitory regulation over corrupt payments to foreign officials by an issuer, domestic company or a foreign national or business.1 The statute defines an issuer to be a corporation who is required to file periodic reports with the Securities and Exchange Commission (SEC) or that has issued securities registered in the United States.2 As per the definition, even a foreign company that lists shares on US Stock Exchanges is covered.

The FCPA prevents issuers and foreign nationals from using US mails, wires or other instrumentalities of interstate commerce in furtherance of a corrupt payment to a foreign official.3 By using “in furtherance”, the drafters have kept the threshold low thereby requiring only to establish something more than mere conceiving of the idea of paying a bribe.4 Also the statute by defining “interstate commerce” to include foreign countries have expanded the jurisdiction to beyond the boundaries of the United States. Therefore, placing a telephone call or sending an email, text message or fax from, to or through United States or sending a wire transfer from or to a US bank or otherwise using the US banking system falls within the meaning of interstate commerce.5 As the per the

It is normal for any anti-corruption statute to cover domestic companies and nationals but the FCPA has an abnormally wide jurisdiction to call it a near universal jurisdiction. Entities rarely challenge the aggressive jurisdictional position, in lieu of the intense pressure to disqualify the FCPA charges, though the majority of the cases are settled outside the courtrooms.

Embraer – DRDO kickbacks

Embraer S.A. though is a Brazilian entity, unfortunately or fortunately listed its American Depository Receipts in the New York Stock Exchange. Due to this, Embraer S.A. is an “issuer” under the FCPA as it has listed its securities on an American stock exchange. As per reports, Embraer offered kickbacks and used middlemen to secure contracts in India (DRDO), Saudi Arabia and Dominican Republic. The FCPA also allows for prosecution if the books and accounts of the issuer is not maintained accurately. It is usual for companies to manipulate books and accounts so as to hide payments which are prohibited under the FCPA. The reports also state that Embraer is working on a settlement of these charges with the American authorities and has even set aside $200 million pay any eventual fines that may come about as a result of the process.6

Other Indian FCPA Cases

In United States v. Dmitry Firtash7, Rajya Sabha MP Mr. KVP Ramachandra Rao who was the former aide of Andhra Pradesh Chief Minister Late Mr. YS Rajashekhara Reddy allegedly conspired with five others to pay at least $18.5 million as bribes to Indian officials for securing licenses to mine minerals in Andhra Pradesh.8 As of April 2014 all the accused have been indicted and five out of six defendants have been charged with violating FCPA provisions.9

Louis Berger, a New Jersey registered company agreed to pay $17.1 million for settlement of charges under the FCPA. During the settlement process, Louis Berger agreed to have bribed official in Goa including then Chief Minister Mr. Digambar Kamat and Public Works Department Minister Mr. Churchil Alemao.10

It is quite appalling that premier Indian agencies like Central Bureau of Investigation (CBI), Central Vigilance Commission (CVC) and the Comptroller and Auditor General of India (C&AG) failed to unearth the corruption and mismanagement in these multimillion dollar contracts which happened on Indian soil while a foreign agency located on the other side of the world was able to.

1 Foreign Corrupt Practices Act, anti- bribery provisions, Available at: http://acfcs.org/wp-content/uploads/2012/05/FCPA-DoJ-Laypersons-Guide.pdf, Last visited on 11-09-2016 at 12:31

2 Anti-Bribery and Books & Records Provisions of The Foreign Corrupt Practices Act § 78m available at : https://www.justice.gov/sites/default/files/criminal-fraud/legacy/2012/11/14/fcpa-english.pdf , Last visited on 11-09-2016 at 12:31

3 Supra – § 78dd-1

4 (OECD) Supplemental response to phase 1 questionnaire, Paragraph 1.1.3 –available at https://www.justice.gov/sites/default/files/criminal-fraud/legacy/2012/11/14/supplement.pdf. Last visited on 11-09-2016 at 12:31

5Laporte Margot, et.al Should FCPA “Territorial” Jurisdiction Reach Extraterritorial Proportions?Vol. 42 No.1 available at : http://www.americanbar.org/publications/international_law_news/2013/winter/should_fcpa_territorial_jurisdiction_reach_extraterritorial_proportions.html, Last visited on 11-09-2016 at 12:31
6 Supra, note 1

7 Court Docket Number – 13-CR-515.

8 http://timesofindia.indiatimes.com/india/Long-arm-of-US-law-nails-Andhra-MP-KVP-Ramachandra-Rao-in-bribery-case/articleshow/33148345.cms

9 http://www.fcpablog.com/blog/2014/4/2/six-indicted-for-india-mining-bribe-plot.html

10 http://www.business-standard.com/article/current-affairs/a-corruption-probe-in-us-creates-ripples-in-goa-115080301485_1.html

 

This article is co-authored by Ms. Tanya Goyal.

Sandeep Thomas Chandy, Final Year, Jindal Global Law School

Tanya Goyal, Final Year, Jindal Global Law School

Marxists Legal Theory- A Greater Understanding

Posted on | by Shrirang Ashtaputre | Leave a Comment on Marxists Legal Theory- A Greater Understanding

MarxistsShrirang Ashtaputre

(Symbiosis Law School, Hyderabad)

“Law, Morality, Religion are to (the proletariat) so many bourgeois prejudices, behind which lurk in ambush just as many bourgeois interests.” –

Karl Marx

Marxism is basically a social, political and economic theory which states that history is constantly evolving towards a certain direction and that the proletariat is the executioner, the redemptive force of the humanityi. Marx claimed to have henceforth, discovered a progressive patter which controls the pattern of human evolution which would lead to achieving his goal of a classless society, sooner or later. And so he defined state and its laws as instruments of class oppressions, wherein, the bourgeois made the laws for the state and continued yielding power, thus, completely ignoring the needs and demands of the working class proletariat people who actually constituted a majority in the state and dominated and oppressed them by imposing heavy taxes on them and not even granting them simple rights and he further said that all of this would disappear when the final stage of human evolution is achieved.

Marxists basically believe that law and human rights basically arises from the interactions of human beings with social structure that contains economic class distinction. This makes it very evident that law is made and given by man to his society and that GOD has nothing to nothing with the law making. Marxists are henceforth, atheists and thus state that GOD cannot, does not and should not exists, which is, a very important assumption of this theory. Infact, L.S. Jawitchs, a Marxists states that “There are no eternal, immutable principles of law”ii. Thus, the Marxists law is only based on human rationality. So, law basically comes to resolve the conflicts which arise due to the class divisions within the society which is the cause for disorder in the society. But, the state and hence its laws are all made and controlled by the Bourgeois, who are lesser in number but more powerful fore they have more wealth, which they use as a tool, to not only run state as they wish but also oppress the working class people and exploit them accordingly. This clearly implies that the capitalistic policies cannot create equal rights for one and all mainly because of the economic system which creates haves and have-nots. And so Cornforth states “There cannot be equality between the exploited and exploiters and exploited” iii. The richer continues to become rich and the poor continues to become even more poor, due to such capitalistic policies (laws) and such control over the state and hence, Marxists call for elimination of Bourgeois rule and instead, placing the proletariat as the rulers of the state who would then, make the laws for the state, promoting their interests thereby as they not only constitute the majority in the state but also, are the backbone of the same, is what they believe. And hence, according to the Marxists legal theory the working class may break capitalistic law, is such an action is in pursuit of equality. Lenin even goes on to say that:

“The revolutionary dictatorship of the proletariat is won and maintained by the use of violence by the proletariat against the Bourgeois, rule, that is unrestricted by any laws” iv .

And now that the proletariats take power in the state, the new Marxists Law or to say, the Socialistic Law will directly reflect the desires of only the working class people. Marxists believe that this new society would be more flexible and consistent and would be less exploitive in nature. The will of the proletariat thus, becomes the basis for all the rights, laws and judgments thus, completely going against the principles of natural or God-given laws. Selsem explains this in the truest sense, thus stating that “Marxism, which has so often be accused of seeking to eliminate moral considerations from human life and history emphasizes rather the moral issues involved in every situation. It does so, however, not by standing on a false platform of absolute right, but by identifying itself with the real needs and interests of the workers and farmers.”v . The second assumption of this theory is that humans are evolving animals and with them evolves their laws. Marx believed that a regular pattern of evolution controlled the human condition which would also lead to a perfect, classless society of individuals, further stating that the destiny of humankind lied in a lawless communism and therefore, law according to him and his dear followers was interpreted as not encompassing any human values or principles, but rather, representing a transitional device which merely illustrates “the course of the political struggle and the evolution of social formations”vi. In Marxist Theory, David and Brieley explain that:

“Law is a superstructure; in reality, it only translates the interests of those who hold the reins of command in any given society; it is an instrument in the service of those who exercise their ‘dictatorship’ in the society because they have the instruments of production within their control. Law is a means of exploiting the exploited classes; it is; of necessity, unjust-or in other words, it is only just from the subject point of view from the ruling class. To speak of a ‘just’ law is to appeal to an ideology-that is to say, a false representation of reality; justice is no more than an historical idea contained by circumstances of class.” vii

Marxists believe that once the proletariats take control, there would be an evolution yet again, moving from imperialism or capitalism to communism is what, is an evolution, according to them. Now that they become the new rulers of the state, there would be an end to class based conflicts as then, proletariats would be the one and only class present in that particular state. And an end to class based conflicts would mean that law would become unnecessary in the state, for Marxists believe that law exists only to resolve class based conflicts; hence, law withers away. End to class based conflicts would also mean that all the people of that state would live together in harmony and promote the same. Criminal activities would completely come to an end in such a society where everyone is respected and everyone is cared for equally and that all the elements which would cause injustice and inequality would cease to exist in this new state. However, since the Marxists state assumes authoritarian forms and frees itself from the any constitutional checks and balances, “this leaves out of account….very powerful impulses to state action generated from within the state by people in charge of decision making power.” viii

Conclusion:

This Marxists Legal Theory hence, tries to state that God cannot exists and it is the humans who make laws for themselves and they govern their own selves. It denies the possibility of an absolute moral code and the existence of any law grounded in any authority other than human authority. Lenin goes on to say that: “In what sense do we repudiate ethics and morality?….In the sense in which it was preached by the bourgeoisie, who derived from God’s commandments. We, of course, say that we do not believe in GOD.”ix. Also, humans are constantly evolving and will continue to do the same in future. They would have said to have been completely evolved, only when they achieve a lawless communist society with a lawless communist state. Laws won’t be required anymore, once a perfect communist state is established, mainly due to the end of class-based conflicts for then, there would exists no class in the state for if any exists, it would be only one, the proletariats. Thus, this theory tries stating that the working class must rule under the Marxist-Leninist Political party, giving the final authority on morality and law.

But, a society without laws is something which one cannot imagine or else, there would be total chaos in the state, for law exists not only to resolve the class-based disputes but, as stated by Glanville Williams “Law is the cement of society and also an essential medium of change. Knowledge of law increases one’s understanding of public affairs. Its study promotes accuracy of expression, facility in argument and skill in interpreting the written word, as well as some understanding of social values” which clearly indicates that there are various other factors which state why law must exists in a state. Besides, to achieve a perfectly classes society is very difficult as class is not the only way any which people distinguish each other but factors like race, color and most importantly religious classification and other such factors are something which also exists and are needed to be considered aswell. So, applying the Marxists legal theory would mean going against the modern day principles of radical feminism and even race legal theory apart from promoting judicial parity and political arbitrariness, which is unacceptable in today’s world. Besides, anti-capitalistic policies are unacceptable today as it opens more job opportunities and helps the nation earn more money and use it for its development, leading to socio-economic progress of not only the state but also of its citizens-thus leading to human development in its own sense.

Hence, according to this new state, laws made would be prejudiced in nature and in its society; freedom disappears as each and every citizen of the state is a citizen no more, but, subjects to be dealt by the state, who are held hostages by the arbitrary laws of the state.
i Cited in Johnson, P., The Intellectuals, Harper Perennial, New York, p. 55, 1988.
ii L.S. Jawitsch, The General Theory of Law (Moscow, USSR: Progress Publishers, 1981), 160.
iii Maurice Cornforth, The Open Philosophy and the Open Society (New York, NY: International Publishers, 1976), 290.
iv V.I. Lenin, Collected Works, 45 vols. (Moscow, USSR: Progress Publishers, 1981), 28:236.
v Howard Selsam, Socialism and Ethics (New York, NY: International Publishers, 1943), 13.
vi Collins, H., Marxism and Law, Oxford University Press, Oxford, p. 9, 1988.
vii David, R. and Brierley, J., Major Legal Systems in the World Today: An Introduction to the Comparative Study of Law Stevens & Sons, London, p. 171, 1985.
viii Kelly, ref. 22, p. 330.
ix V.I. Lenin, On Socialist Ideology and Culture (Moscow, USSR: Foreign Languages Publishing House, 1981), 51–2.
3

Reserch article on One Person Company

Posted on | by Nikunj Keyal | Leave a Comment on Reserch article on One Person Company

One-Person-CompanyBackground of One Person Company (OPC)
The New Companies Act, 2013 was approved by the Parliament in 2013. Some of the provisions of New Company’s Act 2013 came into force on September 20th 2013 while majority of sections came into force from 1st April 2014. The Companies Act, 2013 has introduced some new concepts in India’s Corporate Legal System which were not part of the erstwhile Old Companies Act, 1956.

One Person Company (OPC) is one of those new concepts which has been introduced in the New Act. According to this concept, a single person could constitute a Company. The introduction of OPC in the legal system will boost corporatization of micro businesses. In India, in the year 2005, the JJ Irani Committee recommended the formation of OPC. It had suggested that such an entity may be provided with a simpler legal regime through exemptions so that the small entrepreneur is not compelled to devote considerable time, energy and resources on complex legal compliance.

Position of OPC in India under the Companies Act, 2013:
Various countries permit this kind of a corporate entity. In countries like UK, Australia, Singapore, etc: a single person can form a company, it is a very popular concept in such countries. As per section 2(62) of the Companies Act, 2013, “One Person Company” means a company which has only one person as a member” An OPC shall have a minimum of one director, therefore an OPC will be registered as a private company with one member and one director. Such OPC may be either a company limited by shares/guarantee or an unlimited liability company.
Only a natural person who is an Indian citizen and resident in India shall be eligible to incorporate an OPC or be a nominee for the sole member of an OPC. No Minor shall become member or nominee of the OPC or can hold shares with beneficial interest.
# According to the National Stock Exchange (NSE) an OPC as described in the New Companies Act can act as a stock broker provided it satisfies the condition of two minimum directors .

Benefits of OPC:
The concept of OPC is quite revolutionary. It gives the individual entrepreneurs all the benefits of a company, which means they will get credit, bank loans, and access to the market, limited liability and legal protection available to companies.
Prior to the new act coming into effect, at least two shareholders were required to start a company. Now the concept of OPC would provide tremendous opportunities for the small businessman, traders including those working in areas of handicrafts, pottery etc. Earlier they were working as artisans on their own, so they did not have a legal entity of a company. Now the OPC will help them to do business with ease as an enterprise and give them the opportunity to start their own venture with a formal business structure. Further, the amount of compliance by an OPC is much lesser of filing returns, balance sheets, audit etc.

# The first OPC in India was incorporated on 28th April, 2014 at Delhi under ROC- Delhi jurisdiction, the company name being, ‘Vijay Corporate Solutions OPC Pvt Ltd’
However, there are also some restriction and terms imposed on an OPC. These are as follows:
1. Any natural person cannot incorporate more than one OPC.
2. Any natural person who has not attained the age of majority cannot become a member or nominee of an OPC.
3. An OPC cannot be converted into a Company i.e. Company Not for Profit.
4. An OPC cannot carry out The Non-Banking Financial Investment Activities.
5. NRI’s are not allowed to incorporate One Person Company
Exemptions Provided to an OPC:
An OPC is provided with certain exemptions which the other types of companies cannot avail. Such exemptions are as follows:
1. Cash Flow Statement is not required to be prepared by an OPC as a part of their financial statement .
2. An OPC is not required to hold an Annual General Meeting
3. The Annual Returns in the case of an OPC shall be signed by the Company Secretary or where there is no company secretary, then by the director of the company

Inter-Country Comparison:
The idea of OPC is new in India, but this concept has been already been prevailing and running successfully in many other countries like, China, Singapore, France, and U.S.A. The Great Britain was the nation which first made the way for such concept through its decision in Saloman & Saloman Co Ltd. It was in the year 1925 when Britain gave statutory status to this concept in their country. In due course, many other countries adopted this concept i.e. OPC in their own respective Corporate law. However the structure or perquisites for the incorporation of OPC may differ from country to country wherever they are adopted but the main motive behind is the same that is of promoting entrepreneurship and accelerating their economic development.
(i) Capital Requirement: According to the rules of countries like U.S.A. and U.K regarding the incorporation of OPC, the capital of the company should ‘meet the expectable strains of a business of its size and its nature’ . Whereas countries like India, China, Pakistan and France has expressly provided minimum capital requirement with respect to OPC.
(ii) Legal and Natural Person: Most of the counties with respect to incorporation of OPC does not put restrictions in terms of natural and legal persons.
But India, only permits natural persons to incorporate OPC.

Conversion of One Person Company into Private Company:
An OPC can be converted into Private limited company in the following two situations:
1. Voluntary Conversion
2. Compulsory Conversion
Voluntary Conversion:
An OPC cannot be converted into a private limited company for a period of not less than two(2) years from its date of incorporation and if the time has elapsed and the period of two years is over, it can apply for converting itself into a Private Limited Company or Public Limited Company.
The aforesaid conversion should be done in accordance with the rules and regulations laid down under section 18 and Rule 7(4) .
Compulsory Conversion:
When an OPC has a paid-up capital equal to or more than Rs.50 Lakhs or its Annual turnover for the relevant financial year exceeds Rs.2 Crore, then in such a situation the OPC has to be converted itself into Private Limited Company or Public Limited Company as per Rule 7(4)

Impact of an OPC in Indian Entrepreneurship:
Despite the fact that the concept of OPC is still new in Indian Entrepreneurship and hence extremely progressive, it will set aside time for such a concept to be consolidated with full efficiency, however as the time will pass by, OPC will have a sparkling future and will be considered as one of the best business idea. The reason behind it is the ease of incorporation of same with fewer compliances and less paper work. The foreign investor will be dealing with only a single member to form his corporate relationship and not with a score of other shareholders or directors where the chances of disparity in ideas. Any foreign company or investor who proposes to establish any business in India, could do so through merger or joint venture with the member of OPC. The concept of OPC has a bright and promising future in India, and is also expected to get good foreign investments, Joint Ventures, and Mergers etc.

Criticisms:
The accomplishment of the idea of OPC is doubtful due to the following reasons:
1. The current sole proprietors can raise funds and reserves from their relatives/friends or others but whereas an OPC being a private limited company is not allowed to acquire such funds from others.
2. In India, there are few existing proprietors who don’t want to go by the OPC concept since they prefer doing the business in their own traditional way and they don’t want to engage themselves with this concept due to legal compliances.
3. The desire that the financial institutions will provide funds to OPC is unrealistic. At present, the financial institutions demand guarantee and different securities for providing credit facilities to small proprietors. Since OPC now permits the same individual proprietors to claim limited liability, the risk factor is more to the financial institutions.

Suggestions:
In regard to the above-mentioned criticisms, the suggestions for the same are as follows:
1. The introduction of OPC in the legal system is a move that would encourage corporatization of micro business and entrepreneurship. The same concept should have been introduced much earlier into the market.
2. The legal compliances should be made less complicated and the registration process should be made more flexible to the common man, so that more and more individuals are encouraged.
3. The awareness of OPC should be brought into broad daylight with the much wider scope since a lot more are not aware of the concept of OPC.
4. Legal persons should be given an opportunity to incorporate an OPC apart from the regular natural persons.
5. Also, foreign companies and NRI’s should be given a platform to form an OPC without any harsh restrictions and stringent legal formalities.
6. The Income Tax Act, 1961 should recognize OPC and impose different tax schemes upon them.

# There has been total 7127 number of OPC’s incorporated in India since past 2 years out of which :
1. 7185 number of OPC’s are at current actively functioning in India,
2. 20 number of OPC’s are under process of striking off,
3. 7 OPC’s are already struck off,
4. 3 OPC’s are declared dormant under section 455 and
5. 2 OPC’s are captured.

Conclusion:
With the Companies Act, 2013 the concept of OPC has now become reality. This concept has been a keen interest among entrepreneurs looking forward to doing business with the entrepreneurial freedoms as afforded by proprietorships but without the baggage of personal liability that a proprietorship is bound to carry .OPC provide many opportunities to all those who are looking forward to kick start their own venture with a structure of organized business. This concept will help the young or start up entrepreneurs test a business model, a product or a service before attracting new investors. The compliance pressure which has to be mandatorily followed is comparatively less and the feature of limited liability is an added privilege to it. Such a concept will benefit a lot to all the individual proprietors and proprietors engaged in small scale industries. It will provide a greater flexibility to an individual to manage his business at the same time enjoy the benefits of a company. The point to be noted here is that with the use of this concept it will make a way for more favorable banking facilities, particularly loans and advances to individual proprietors. At the same time it will also boost the foreign funds in India as the requirement of nominee shareholder would be done away with.

National Child Labour Project,Deogarh- A home of Child labour

Posted on | by Dr. Samir Kr Nanda | Leave a Comment on National Child Labour Project,Deogarh- A home of Child labour

The issue of child labour has attracted enormous significance both at State & national level. The proactive policies of the Govt. of India followed with the land mark judgment of the Hon’ble Supreme Court of India on 10th of Dec’96   in writ petition No:465 of 1986  of Sri M.C Meheta ,State of Tamilnadu & others have enlightened all concerned. National Child Labour Project is the resultant action of the said policies through which withdrawing working children from hazardous occupations, educating them in the NCLP Schools, mainstreaming them into formal education making them morally & socially responsible citizens of the society are done.

National Child Labour Project, Deogarh came up as a Society registered under the Society Registration Act, 1860 on dt.08.09.1995 with the Collector & District Magistrate, Deogarh as the Chairperson. District Labour Officer is being entrusted with the job of execution of the Project with the help of a Field Officer.

The following activities have undertaken by the National Child Labour Project, Deogarh for the  rehabilitation of the child labours of the district.

 

Survey & Identification of Child Labour:-

The survey & identification of child labours were undertaken in DEOGARH district as per the guidelines of the Hon’ble Supreme Court of India  in 1997 and as per the direction of the Government of India in 2005.This district is having three blocks and one Municipality. The survey works were entrusted to the B.D.Os in their respective blocks and the Executive Officer of Deogarh Municipality. As per the survey undertaken in the year1997 about 428 number of child labours were reported in the field of hazardous employment i.e., in Bidi rolling process only in the Reamal block. There are 4910 child labours engaged in both hazardous and non hazardous manner in the un -organized sector in 1997 , 10014 child labours found to be engaged in the 2005 survey. During the recent Child Labour Survey more than 7000 child labour have been identified in the District in 2011. During the 2016 district child labour durvey 1875 child labours were identified in the district.Most of the child labours were engaged in cultivation, cow herd, stone work,beedi rolling etc. Some of them were engaged in construction work and other manual work.

Enrolment of Child Labour:-

In order to rehabilitate all the identified child labours 27 nos of Child labour  Special Schools were opened with 1350 child labours during 1996. Thereafter another 13 child labour special schools have opened with a total enrolment of 2000 child labour students per three year block period .

Till date NCLP, Deogarh has enrolled 12454 child labour students under rehabilitation process.

 

samir kumar nandaCURRICULUM

 

(a)    Time Table: – The Centres timing is from 10 A.M. to 4 P.M. except in summer. The time table consists of 5 periods having 50 minutes each. Before starting of classes, 10 minutes assembly time is allotted.  Besides these, one short-break of 10 minutes duration and another long break of 30 minutes duration for lunch are fixed.

 

(b)   Course Contents:-The course contents of formal education designed by the Education Deptt. are being adopted for the children of special schools at present.  The course content/cover Arithmetic, General Science, Social Science & English, General Knowledge, MIL(Oriya). A student can only continue for 3 academic years in a centre in which he/she has to passed Cass-V level.

 

(c)    Textual Materials for general education:-Textual materials designed by State Govt. for formal education have been supplied by Govt. of Odisha only on payment basis. .

 

(d)   Vocational Course:-The vocational training have been imparted in four trades i.e. (1) Cycle Repairing (2) Tailoring (3) Commercial Art & Painting.(4) Tasar Reeling, Cutting and Weaving. The Tasar trade has been discontinued since last one year due to some unavoidable circumstances.

(e)   Mainstreaming:-Till date, 12444 no. of students have been mainstreamed to different formal Schools right from the beginning.

 

(f)     Stipend Deposit:-The stipend deposit of Rs.150/- per month against each student is being given which is subject to fulfillment of 80% of attendance.

 

(g)      MID-DAY MEAL: – Free mid-day meals were being provided to the students @ Rs.5/- per child per day up to Apr ,2010 by the NCLP . The MDM programme was discontinued due to non availability of funds . However, supply of MDM has been started in three blocks of the district out of since August, 2010 .

 

(h)    AWARENESS GENERATION:- In the Utsav Pradhanpat our NCLP child labour students of NCLP, Deogarh had participated in the cultural programme.  An exhibition stall is also  being put-up to display different activities for elimination and prevention of child labour in the District .Awareness generation programme is being done in the District festival Ganesh Mela every year. Publication of advertisements in the local dailies and awareness in the form of leaflet are being done regularly.

 

 

 kumari basantiSUCCESS  STORY:-

 

Apart from participating regularly in Block level/District Level Sports and other activities the students of NCLP, Deogarh have  gone steps ahead, which is briefed below in a nutshell.:-

National Child Labour Project , Deogarh came up as a society registered  under the society registration Act 1860 on Dt. 08.09.95 and started functioning since August-96 10152 no.of students have been mainstreamed into formal system of education like govt. school & Ashram school. Sri Santanu Nayak and Nilakantha Pradhan,  Child labour  Students of NCLP Deogarh also got admission into Jawahar Novadaya Vidyalaya, Deogarh in the year 2006.

On a sample survey it was ascertained that more than 150 no. of child labour students have passed H.S.C examination are continuing   higher studies.

Apart from participating regularly in Block level/District Level Sports and other activities the students of NCLP, Deogarh have gone steps ahead, which is briefed below in a nutshell:-

Kumari Basanti Behera, One Girl student of Class-III of NCLP, Deogarh won the second prize in the State level drawing competition(Junior) among all the participants of the Eco-Club Schools of the State. She was awarded prize by the Hon’ble Chief Minister, Orissa Sj. Naveen Pattnaik  at Suchana Bhaban, Bhubanswar on dt.5.04.2004 on the eve of the celebration of World Environment Day

 

A student of Class-III, also won the Second prize in the District Level Art competition on the day of Rajiv Gandhi Akshya Urja Divas and received a cash award of Rs.1500/- from the District Magistrate and Collector, Deogarh on dt.27.08.2004

 

Kumari Saraswati Munda ,a child labour Student Of NCLP  Deogarh after mainstreaming had participated in the marathon race competition of   fifth National athletic meet held at Jaipur ,Rajasthan State on dt. 24.12.04 to 26.12.04 organized by Akhil Bharatiaya Vanabashi Kalyan Ashram . She has completed 7 K.M running in 28 min18 sec   and stood 1st in the said race.