Certificate Course on Research Methodology, 12th batch by indianlegalsolution.com

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The objective of this course is to grow the seeds of proper research methodology among Law students.

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You will Learn Research Methodology through our different Modules which are made under the guidance of top advocates and legal wizards throughout the country. You can also name this course as, “Legal Research and Writing Course”.

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Steps Involved in our Research Methodology Course:-

Module 1: Basics of Research Methodology

Module 2: How to become a Good Researcher

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*You will be provided with the Personal assistance of our best Researchers during all three drafting works. Meaning thereby 24×7 assistance by our team during your research to clear your doubts. They will guide you word by word during your all drafting works.

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Module 3: How to write a Research Paper

Module 4: Mistakes that Researchers do while writing a Research Paper

Module 5: Practical Problems faced during writing a Research Paper

Module 6: Research Process

Module 7: Tips for writing a Good Research Paper

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Module 8: How to write a Good article

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Smt. Neelam vs Ram Asrey (2020)

CASE COMMENT

Author: Ruth Vaiphei, Assistant professor National Law University, Jodhpur

Smt. Neelam vs Ram Asrey (2020)

Case No. 104 of 2015

High Court of Judicature at Allahabad

(Decided on October 21, 2020)

Legal conundrum on paternity determination is recurrent phenomenon since courts either rely upon the provisions under section 112 of Indian Evidence Act,1872 or permit for a DNA test which may indicate third party intervention in procreation. In a recent Judgment, yet again an issue to rely on forensic input such as DNA arise in a divorce petition under Section 13 of the Hindu Marriage Act, 1955 filed by the husband on the ground of adultery, unprecedentedly seeking the wife, to undergo a DNA test, to establish her infidelity, and remarkably the court conceded that DNA test for paternity most authentic for a wife to establish that she had not been unfaithful, adulterous, or disloyal.[i]  It is imperative to understand the gist of DNA for a vivid understanding as to why reliance on the same has always been sought. According to Richard Saferstein in his book “An Introduction to Forensic Science”, inside each of 60 trillion cells in the human body are strands of genetic material called chromosomes, arranged along the chromosomes, like beads on a thread, are nearly 25,000 genes. The gene is the fundamental unit of heredity. It instructs the body cells to make proteins that determine everything from hair colour to our susceptibility to diseases. Each gene is composed of Deoxyribonucleic Acid (DNA) specifically designed to carry out a single body function.[ii] Through DNA profiling scientists could distinguish between individuals of the same species using only samples of their DNA obtained from a person or sample of bodily tissue. DNA is found in every living cell of our bodies and can, therefore, be extracted from different body material.[iii]

Undeniably in the current era forensic inputs like serology and DNA tests, fingerprints, handwriting and signatures etc. have played a pivotal role in resolving not only a criminal case but also civil matters in the courtrooms. In India DNA has been resort in civil matter commonly for paternity determination. However, for various reasons remains a legal challenge since ages because disclosure of parentage is an essential component for self-determination, for knowing one’s genetic roots and for succession rights. Also, a dispute regarding a child’s paternity is one of the major causes of marital discord and ground for contesting divorce suits.

In the instance case, the marriage between Neelam and Ram Asrey took place on April 28, 2004, and three daughters were born out of the wedlock. However, the husband claims that since January 15, 2013, he has been living separately from the petitioner and there has been no resumption of cohabitation.  Further, on June 25, 2014, they were divorce as per custom and he has been paying maintenance to her since then. A male child was born to the petitioner on January 26, 2016, in her paternal house. Therefore, a divorce petition under Section 13 of the Hindu Marriage Act, 1955 filed by the husband on the ground of adultery seeking the wife to undergo a D.N.A. test to establish her infidelity. Accordingly, an order was passed by learned Additional Principal Judge, Family Court directing the wife to undergo a DNA test.[iv] Hence, Petition under Article 227 of the Constitution of India has been filed challenging the order dated 22.09.2018 passed by learned Additional Principal Judge, Family Court.

The following issues were addressed in this case

  1. Whether a Court in a divorce petition under Section 13 of the Hindu Marriage Act, 1955 filed by the husband on the ground of adultery can direct that the wife, either to undergo a DNA test or refuse to undergo a DNA test.
  2. In case she elects to undergo a DNA test, then findings of the DNA test will determine conclusively the veracity of accusation levelled by the petitioner-husband against her. In case, wife refuses to undergo a DNA test, then whether a presumption can be drawn by the Court against the wife.
  3. Whether the report of DNA test is just a piece of expert evidence or a conclusive or a substantive piece of evidence.
  4. Plea of presumption under Section 122 of the Evidence Act too was raised by the petitioner.

The High Court has observed that DNA test to establish a child’s paternity is the “most legitimate and scientific means” that can be used by a man to assert claims of his wife’s infidelity. The court added that the test is also the wife’s “most authentic way to establish that she had not been unfaithful, adulterous or disloyal.” The learned family court has placed reliance on the judgment of Supreme Court in case of Dipanwita Roy Vs. Ronobroto Roy, 2015 (1) SCC D 39 (SC), wherein husband had filed a divorce petition on the ground of adultery. The adulterer was named, and then-husband had moved an application for D.N.A. Test of himself and a male child born to the wife. Family Court had dismissed the application. High Court reversed the orders of the family court. Supreme Court upheld the order of the High Court despite the pleading of the wife that the husband had access to her, whereas the husband had denied the same categorically.[v]

Reliance has also placed on the judgment of Supreme Court in case of Nandlal Wasudeo Badwaik Vs. Lata Nandlal Badwaik and another, 2014 (2) SCC 576, wherein, Supreme Court observed that “the husband’s plea that he had no access to the wife when the child was begotten stands proved by the DNA test report and in the face of it, we cannot compel the appellant to bear the fatherhood of a child, when the scientific reports prove to the contrary.”[vi]The Apex Court had further observed that “we are conscious that an innocent child may not be bastardized as the marriage between her mother and father was subsisting at the time of her birth, but in view of DNA test reports and what we have observed above, we cannot forestall the consequence. It is denying the truth. ‘Truth must triumph’ is the hallmark of justice. The court therefore clearly opined, that proof based on a DNA test would be sufficient to dislodge, a presumption under Section 112 of the Indian Evidence Act.”[vii]

The High court observed that when the impugned order is tested on the touchstone of the legal pronouncement of the Supreme Court, the same could not be faulted with. Therefore, the Court did not find any illegality, infirmity, or arbitrariness to interfere with the impugned order dated 22.09.208 passed by the learned Additional Principal Judge, Family Court Hameepur.[viii]

Thus, the Petition failed and was dismissed.

From the aforesaid observation of the High Court, it is opined that though Section 112 of the Indian Evidence Act, 1872 postulates “Birth during the marriage, conclusive proof of legitimacy”. Where the presumption of legitimacy hinges upon the Latin Maxim ‘pater est quem muptice demonstrate’ meaning ‘he is the father whom the marriage indicates’.[ix] In a literal interpretation of Section 112, it presumes morality in sexual conduct of a married woman, consequently a child born within lawful wedlock become legitimate. In the eyes of paternity law, both socio-legal father (pater) and biological father (genitor) are the same people i.e., the husband but in real life, the pater and genitor may be different identities. However, this presumption seems to have been regarded now as obsolete when the court observed that “We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancement and DNA test were not even in contemplation of the Legislature”.[x] The result of a DNA test said to be scientifically accurate is now profoundly accepted even by the court that it seems to supersede Section 112 of the Indian Evidence Act, 1872. From the instance case, one can perceive the scope of section 112 pertaining to presumption of conclusive proof on the satisfaction of the conditions enumerated therein but the same is rebuttable. The presumption may afford legitimate means of arriving at an affirmative legal conclusion. However, While the truth or fact is known, from the court observation there is no need or room for any presumption. That means where there is evidence to the contrary, the presumption is rebuttable and must yield to proof.

Therefore, it is concluded that in a plethora of cases with the availability of advance science and technology which can proof the issue in question scientifically accurate, when there is a conflict between a conclusive proof envisaged under the law and a prove based on scientific advancement accepted by the world community to be correct, the court is more inclined to consider the latter over the former.

[i] Smt. Neelam vs Ram Asrey, 2020

[ii] RICHARD SAFERSTEIN, AN INTRODUCTION TO FORENSIC SCIENCE  396 (11 ed. 2015).

[iii] Ibid at 397

[iv] Ram Asrey vs. Smt. Neelam, 2018

[v] Supra note iv, para 8

[vi] Supra note iv, para 15

[vii] Nandlal wasudeo badwaik vs. Lata nandlal badwaik & ors, 2014 (2) SCC 576

[viii] Supra note i, para 11

[ix] Available at https://advocatespedia.com/SECTION_112_OF THE_INDIAN_EVIDENCE_ACT,1872 last access on 09/12/2020

[x] Supra note i, para 17

Invoking arbitration after full and final settlement of Insurance claim

Invoking arbitration after full and final settlement of Insurance claim

Author: Vishal Tinani, BA.LLB, LL.M

Invoking arbitration after full and final settlement of Insurance claim

It is a vastly illustrated affair that insurance companies may deny to accept partial liability to avoid arbitration—a costly affair for insurers. Most insurance (quantum) disputes can be referred to arbitration, but sometimes chances to invoke arbitration plummets due to discharge voucher (DV’s) execution, stating acceptance of insured’s consent for full and final settlement to hogwash the insured further claim.   

Is it a healthy practice to grant even partial payment subject to the condition of signed and stamped DV? What are the Insured rights in these circumstances? These are some of the points to be considered for fruiting the technical aspects of insurance and arbitration.  

The notion is well accepted; if the insurers deny the claim in full by rejecting its admissibility, there is no remedy available for arbitration (except approaching the High court, consumer forum, commissions, and thereafter Supreme court). Only when the insurance company accepts the liability and offers a settlement, then the dispute on quantum is always referable for arbitration. In case of non-appointment and no mutual consent, the high court, and thereafter the Supreme court is the proper venue for pleading the appointment of arbitrators and even a sole arbitrator.    

What various insurance policy arbitration clause says?  

As stated with minute changes in a number of arbitrators, much of the arbitration provision in the insurance agreement is similar, as stated — “If any dispute or difference arises as to the quantum to be paid under this policy (liability being otherwise admitted), such difference shall independently of all questions be referred to the decision of a sole arbitrator to be appointed in writing by the parties to the contract or if they cannot agree upon a single arbitrator within 30 days of any party invoking arbitration, the same shall be referred to a panel of three arbitrators, comprising of two arbitrators, one to be appointed by each of the parties to the dispute /difference and the third arbitrator to be appointed by such two arbitrators and arbitration shall be conducted under and in accordance with the provisions of the Arbitration and conciliation act, 1996.” (Standard IRDAI Insurance policy arbitration clause)

The dispute resolution clause can be divided into the following three parts: –  

Part 1. The dispute or difference on quantum then the claim can be referred to the arbitration  

Part 2. There shall be no arbitration if the insurer has wholly denied the liability under the policy; and.  

Part 3. Accepting some amount/quantum (executing DV) under duress and compulsion and initiating arbitration for the remaining quantum.

In part 1, it is well perceived that the difference in quantum can be referred for arbitration. In part 2 one may say that insured is remediless as far as invoking Section 11(6) of the Arbitration Act is concerned if the insurer entirely denies the claim. In part 3, the quantum already paid is sometimes subjected to the discharge voucher stating voluntary accord and consent of insured for accepting partial or any payment pursuant to claim. It is to be noted that part 3 is concomitant to part 1. Part 1 must be satisfied and complied with at first instance to invoke the arbitration clause.

Voluntary consent/Accord of discharge voucher and its arbitrability  

It is pertinent to broach that the insured is within its right to request reconsideration of the deductions made even after executing the Discharge Voucher. This objection to the Discharge Voucher is also in compliance with the Circular bearing Reference No. IRDA/NL/CIR/Misc/173/09/2015 issued by Insurance Regulatory and Development Authority of India (“IRDA”) directing/informing the insurers that the execution of discharge voucher does not foreclose the rights of the policyholders to seek higher compensation before any judicial fora or any other forum established by law and that even though the policyholder has signed the Discharge Voucher, the policyholder is not estopped from claiming a higher amount. The same is warranted in the backdrop when IRDAI received complaints from aggrieved policyholders that the insurers are using the said instrument of discharge voucher in the judicial fora with the plea that the full and final discharge voucher extinguish the rights of policyholders to contents the claim before the courts. This narrates the approach taken by the insurance companies during the claim settlement and has been christened in the pleadings of policyholders stating the preconceived emulating method of insurers.

Void DV’s doesn’t bar the insured right to invoke arbitration for further Bona fide claim. 

The insurance company is not permitted by any law to withhold the admitted amount’s payment unless the amount is voluntarily accepted by the insured as a full and final settlement. Moreover, if the protests and non-acceptance are conveyed to the insurer before the cheque gets enchased, then it cannot be held that amount was accepted by the insured as voluntary as the same was accepted under compelling circumstances and under protest. Where disagreement exists before the contract is discharged, then it is not necessary to prove on the face of instrument discharging the same as it is always compelling and involuntary in nature.  

In a recent judgment, United India Insurance Co. Ltd. v Antique Art Exports Pvt Ltd. The Hon’ble Court held that execution of full and final agreement by parties to insurance contract and receipt of a discharge voucher by insurer in itself could not be a bar to arbitration. It further relied upon its decision in National Insurance Co. Ltd vs M/S. Boghara Polyfab Pvt.Ltd on 18 September, 2008, which lays down any discharge voucher executed under threat, coercion, or economic duress and compulsion, such discharge voucher is neither valid nor binding on the insured entity or person, and the dispute relating to the claim survives for consideration and is arbitrable. Where the person to whom the claim is made withholds the admitted amount to coerce and compel the claimant to accept a smaller payment in full and final settlement and gave a discharge voucher, there is no accord and satisfaction in the eyes of the law; and discharge voucher will not come into the way of a genuine and bona fide dispute raised regarding the balance of the claim and seeking reference of such claim to the arbitration. Similarly, in support of said contentions, the reliance was placed on the decisions of this Court in Damodar Valley corporation V. K.K. Kar (1974(1) SCC 141), Ambica construction V. Union of India (2006 (13) SCC 475). M/s Bharat Heavy electrical Ltd., Ranipur V. M/s Amar Nath Bhan Prakash (1982 (1) SCC 141).  

The dispute or contention by the insurer that there is a discharge of the contract by the issue of full and final settlement voucher is a matter for an arbitral tribunal to examine and decide, and cannot be held as a threshold bar to arbitration; and that the question whether there were accord and satisfaction, or whether there was a discharge of a contract by performance, is itself a question that is clearly arbitrable.

Unfair trade practice of discharging contract of insurance involuntarily.

In given case of coercion, duress or undue compulsion of discharge voucher must prima facie satisfy the judicial fora, once satisfied that the discharge voucher was obtained by fraud, misrepresentation, coercion, undue influence, or like coercive bargaining circumstances, then insured has every right to seek to plead the invocation of the arbitration clause. The approach taken by the Supreme Court is also patterned in the cases before the National Commission. In Oriental Insurance Co. Ltd. v. Government Tool Room and Training Centre reported in (2008) CPJ 267 (NC), the Hon’ble National Commission directed the insurance companies to abandon this practice of not paying the claim amount without a full and final discharge voucher and considered it as an unfair trade practice and further directed the Insurance Regulatory Development Authority (IRDA) to take appropriate action so that the insured’s option/choice to approach the legal forum for just settlement of his claims is not curtailed or defeated.

In National Insurance Company Ltd. v. Rajan Sood reported in IV (2014) CPJ 415 (NC), the Hon’ble National Commission rejected the similar plea of the Insurance Company asserting the defence of written consent and executed discharge voucher, the insured who had lost household goods in a fire accident and had been waiting for settlement of his claim for years accepted the cheque offered by the Insurance Company under economic duress and impecunious financial condition. Considering the binding nature of it, Hon’ble National Commission held that the settlement relied upon by the Insurance Company is not a settlement out of free consent, and the Insurance Company cannot take advantage of the involuntary and coerced settlement.    

To further elucidate, para 51 of the oriental Insurance co Ltd and Anr V. Dicitex Furnishing Ltd (SLP (C) No. 34186 of 2015) to consider what civil court would have done in a case where the defendant puts forth the defense of accord and satisfaction based on a discharge voucher signed and returned by insured in final settlement for release of the sum of claim payment from the Insurance company, and the policyholder alleges that it was obtained by fraud/coercion undue influence and therefore not valid. If no fraud, coercion, or undue influence is found or established, it will accept the voucher accordingly to the contract’s discharge and reject the claim without going into the merits. On the other side, if it is established that the discharge voucher had been obtained by fraud/undue influence/coercion. The same would be ignored, examine whether the plaintiff had made out the claim on merits, and decide the matter accordingly. This position taken here by the court is also applicable when there is a provision for arbitration.

Likewise, in master construction and Genus power (Supra), the court cautioned that a “bald Plea” of coercion, without any supporting documents/ material, is insufficient; it is necessary the claimant must bring prima facie bona fide contention as the chief justice/his designate must look into the credibility and reliability.  

Conclusion: 

Many policyholders withhold their rightful claim once burdened by the vehement defense of discharge voucher executed in the full and final settlement. However, the defense does not warrant the avoidance of arbitration in full. Once there is a partial acceptance of the claim, the remaining claim for quantum paid cannot be excused for invoking the arbitration merely or solely on the ground that a settlement agreement or discharge voucher has been executed by the insured subject to bona fide claim as warranted in para 24 (Page 284) in Boghara ployfab private Ltd.   

The genesis is that there are decisions of courts (Associated construction V. Pawanhans helicopters Ltd (2008) 16 SCC and Boghara Polyfab (Supra) which upheld the concept of economic duress in executing discharge voucher. In more places than one, the court recognized that an aggrieved party could be the victim of economic concern, which results in its signing a document that discharges the other party of its obligations. 

Present plunging market carrying the symptom of amelioration, chances are high as every that companies/organization hit by the claims will seek full retention of claim not only due to the economically distressed situation but also assimilating present substandard economics into an excuse of economic duress for executing discharge vouchers, which in turn may bring the parties to the arbitration table, it is to be noted that the existence of an arbitration clause in the contract of insurance is not disputed, and is vindicated.

Citations 

1) https://www.irdai.gov.in/admincms/cms/LayoutPages_Print.aspx?page=PageNo2621 

2) National Insurance Co. Limited v. Boghara Polyfab Private Limited. SC/4056/2008: 2009(1) SCC 267 

3) Section 11 in The Arbitration Act, 1996 

4) Section 15 in The Arbitration Act, 1996 

5) Section 16 in The Arbitration Act, 1996 

6) Section 20 in The Arbitration Act, 1996 

7) Damodar Valley corporation V. K.K. Kar (1974(1) SCC 141) 

8) Ambica construction V. Union of India (2006 (13) SCC 475) 

9) M/s Bharat Heavy electrical Ltd. Ranipur V. M/s Amar Nath Bhan Prakash (1982 (1) SCC 141) 

10) National Insurance Company Ltd. v. Rajan Sood reported in IV (2014) CPJ 415 (NC) 

11) oriental Insurance co Ltd and Anr V. Dicitex Furnishing Ltd (SLP (C) No. 34186 of 2015) 

12) Union of India & Ors vs M/S. Master Construction Co on 25 April, 2011 

13) Associated construction V. Pawanhans helicopters Ltd (2008) 16 SCC 

14) New India Ass. Co. Ltd vs Genus Power Inf. Ltd on 4 December, 2014 

15) Mirc Electronics Ltd vs The Oriental Insurance Company on 15 February, 2016

16) https://www.irdai.gov.in/ADMINCMS/cms/Uploadedfiles/54.SFSP%20-%20Policy%20Wording.pdf 

17) The arbitration and conciliation act, 1996 

Ut res magis valeat quam pereat

Meaning:

Its literal meaning is better for thing to have an effect than to be made void.

Details:

In Radha Sundar v. Mohammed Rahim, the Apex Court has held that it is settled law of election that if two meanings of a document are admissible and in which one meaning affects all the clauses of the document in question whereas another meaning nullifies one or more clauses of the said document, then the earlier meaning of the document should be accepted on the principle that it is better for a thing to have an effect than to be made void

Par in Perem non habet

Meaning:

Its literal meaning is that an equal has no power over an equal.

Details:

The Legal maxim “Par in Perem non habet” is applied under International law on the concept that no State will have dominion control over the sovereignty of other states. The Constitution of the United Nations organization under the International law is based on this maxim wherein sovereignty of all of the member states are equal and under the Charter, no State has dominant power over other States. Thus, all States rather nations are equal. There are two consequences of this maxim:-

  1. No State can claim its supremacy on any other State; and
  2. No Court of any State can interfere with the administrative functions of any other state

Can transgender marry under Hindu Marriage Act, 1955?

Can transgender marry under Hindu Marriage Act, 1955?

Author: Abhishek Sharma[1]

The answer to the above-raised question is settled under Hindu Law. Let’s understand the chronology of cases that gave birth to this widely accepted progressive finding by describing the concept of gender and sex.

Dispute:

In the case of ARUN KUMAR, SREEJA   Vs.   THE INSPECTOR GENERAL OF REGISTRATION, 2019 Mad HC- the main issue in the case was that one of the petitioners was a transgender person and both the petitioner were professing the Hindu religion. They solemnized their marriage as per Section 5 read with Section 7 of the Hindu Marriage Act, 1995 (hereinafter HMA). But the Registrar of the marriage refuses to register their marriage alleged that Section 5(iii) of HMA prescribes the age of bridegroom and bride, and does not mention the “transgender” in it. To support this dictionary meaning of the word bride was presented which ordinarily means ‘women on her wedding day’. However, in this case, the second petitioner is a transgender and not a woman. Therefore, the main issue is can a transgender person get married according to the provisions of HMA.

Reference:

The court refers to the judgment of Hon’ble Supreme Court i.e. NATIONAL LEGAL SERVICE AUTHORITY     Vs.    UNION OF INDIA, 2014 SC in which it was upheld that the transgender person has the right to decide their self-identified gender. This judgment was even considered in the case of JUSTICE K.S. PUTTASWAMY (RETD)     VS.    UNION OF INDIA AND ORS., 2017 SC and in the case of NAVTEJ SINGH JOHAR VS UNION OF INDIA, 2019 SC.

Explanation:

The Hon’ble Supreme Court noted that there is a difference between sex and gender. The sex of a person is biologically determined at the time of birth. Whereas it is not so in the case of gender; the gender identity lies at the core of one’s personal identity, gender expression and presentation. Therefore, the transgender person who is neither male nor female fall within the expression “person” mentioned under Article 14 of the constitution and hence is entitled to legal protection of the law in all the spheres of state activities as enjoyed by any other citizen of India. Discrimination on the ground of sexual orientation or gender identity is violative of Articles 14, 19 and 21 of the Constitution of India.

It was also held that legal recognition of gender identity is the part of the fundamental right of dignity under article 21 of the Indian Constitution.

The court in this case has held that the HMA uses the expression Bride under sub-section (iii) of Section 5 which can be interpreted to include a transgender person who identifies herself as a woman. The only consideration is how the person perceives herself as now if they are kept out of the purview of HMA, even though they are Hindus as per section 2 of the Act then their fundamental right under Article 25 is also being violated.

[1] Founder at The Lawman’s Co. | a YouTube Channel

Antitrust Laws with respect to India and China

ANTITRUST LAWS WITH RESPECT TO INDIA AND CHINA

Author: Abhinav Srivastava , Faculty of Law, University of Delhi.

INTRODUCTION

The antitrust policy of the government regulates the monopolies, in order to ensure fair trade practices and maintain healthy competition so as to benefit the consumers and promote economic growth. The term ‘Anti-Trust’ has its origin from The Sherman Anti-trust Law, passed by Congress of the United States in 1890. It has been passed to curb the concentration of power of monopolies and to maintain economic competitiveness. Since then it has set an example for other developed and developing countries. India and China are not the exceptions that these two countries had not worked on regulating the monopolies. In India, the unregulated practices of the market used to govern by ‘Monopolies and Restrictive Trade Practice, 1969’ and later on it has been replaced by ‘Competition Act, 2002’. On the other hand, China introduced the ‘Anti-Monopoly law’ in 2008. It is the first regulated law of China in regulating monopolies.

This article will look into India’s Competition Act and China’s Anti-monopoly law and try to elaborate on the nature of both laws.

INDIA’ COMPETITION LAW

In the light of Article 39 (which talks about certain policies shall be made by the state for the welfare of state) of Directive Principle of State Policy of the Indian Constitution, Parliament enacted Monopolies and Restrictive Trade Practice Act, 1969 (hereinafter MRTP). The objective of MRTP is to promote competition by restricting the dominant position of monopoly on one hand. However, in the post-liberalization period, this act proved to be inadequate to match the exigency of anti-competitive measures. Mergers and acquisitions were happening between firms which enlarged their size and resources and were making the market more competitive. Along with all this, customers would be prone to deception and the new firms would-be victims of predatory pricing. The wholesome act was needed for the hour, so in 2002 ‘Competition Act’ came into the picture.

This act was enacted keeping in mind these following prerequisites[1]-

·         Economic growth of the country

·         Restriction on practices, which adversely affect the market

·         Healthy competition in market and promotion of market

·         Interest of consumers should not be disregarded.

To eliminate the malpractices in the market, the Competition Act, 2002 has also established Competition Commission of India as a chief regulatory body.

Key components of Competition Act[2]-

a)      Prohibition of anti-competitive agreements (Horizontal and Vertical),

b)      Prohibition on abuse of dominant position,

c)      Regulation of ‘combination’, if it adversely affects the competition in India.

Horizontal Agreements

These agreements are the type of agreement where competitors (same entities) agree to function mutually and manipulate the other competitors in the market. Section 3 of the Competition Act, 2002, talks about Anti-competitive agreements and the term ‘horizontal agreement’ has not been specifically stated in the section, however, section 3(3) states, that any agreement between persons/association of persons, and enterprises/association of enterprises, (cartels also included) having similar trade, which adversely affects the competition by –

·         Determining sale prices directly/indirectly,

·         Controlling/limiting the market, supply, or production,

·         Sharing market and production,

·         Doing bid-rigging directly/indirectly.

An exception has also been stated that, if the agreement is for the purpose of the joint venture then this section is not applicable.

Vertical Agreements

Section 3(4) of the Competition Act, talks about vertical agreement, where it states that the agreement between persons/persons of association, and enterprises/association of enterprises at different levels of the production chain. These types of agreement are mostly for those individuals who are unable to derive outcomes individually.

Agreements which are restraint under this section are-

1.      Tie-in agreements in which purchaser is required to purchase other goods, because of the condition.

2.      Exclusive supply agreements in which restriction has been put on purchasers from acquiring or dealing with any other goods.

3.      Exclusive distribution agreements in which limitation or restriction has been put on disposal or sale of goods in any particular area.

4.      Refusal to deal is the condition where selling and buying of goods from any particular person or group of persons, restricted.

5.      Resale price maintenance puts a condition on the prices of the goods that have to be sold by resale price, which has to be stipulated by the seller.

Section 3 of the Competition Act, which prohibits the anti-competitive agreements, is not applicable to[3]-

·         Conditions which are reasonable for protection of Intellectual property rights under specific law,

·         Agreements that are exclusively related to the control, production, distribution, or supply of goods for export.

PROHIBITION OF ABUSE OF DOMINANCE POSITION

According to section 4 of the Competition Act, the dominant position means where enterprises enjoy a position of strength in the market of India by-

·         Operating independently of competition in market

·         Affecting competitors, consumers, or markets in its favour.

Conditions which amounts to an abuse of dominance position according to section 4-

1.      Imposition of unfair or discriminatory practices, directly/indirectly

2.      Limiting/restricting production of goods or development of technical/scientific goods

3.      Indulges in practice/practices which results in denial to access to market

4.      Make such a contract that imposes supplementary obligations (having no connection with the subject of such contract) on other parties.

5.      Usage of dominant position in entering or protecting the relevant market.

To regulate or control such abuse of dominance position, the Competition commission according to section 27 of the Competition Act, directs any such enterprises to discontinue/modify such agreement as the commission deems fit. Competition commission may impose penalty also for not more than ten percent on average turnover.

REGULATION OF COMBINATION

Section 5 of the Competition Act elaborated the term combination, according to which it is the merger between two or more enterprises or acquisition of enterprises by persons/firms, vis-a-vis.

Section 6 laid down the procedures for combination, and it prohibits such combination which adversely affects the competition in the market. After the approval of the proposed merger or amalgamation by the board of directors, such enterprises within thirty days need to give notice (disclosing the details of combination) to the commission.[4] After notice, the commission will examine the nature of the combination.[5] It is also mentioned that until one hundred and twenty days have passed, there shall not be any combination for which the notice has been given.[6] Not every merger and acquisition has been covered under the act, only those mergers and acquisitions are covered which crosses specified assets and turnover as according to the act.

To redress the loopholes of the MRTP Act, the Competition Act, has been enacted and the same proved to be regulatory enough to mitigate the unhealthy market competition with the view of a welfare state.

Now it is interesting to look into China’s Anti-monopoly law which has been passed years after India’s Competition Act, and how far it managed to regulate or control the market competition.

CHINA’S ANTI-MONOPOLY LAW

The Anti-monopoly Law (hereinafter AML) was enacted on August 30, 2007, after thirteen years of debates and discussions.

Three reasons had been stated by the legislators which urged Anti-monopoly bill, they are[7]-

1.      Abuse of dominance jeopardizing the interest of consumers and competitors, which hinder the country’s development.

2.    Regulated law is the need of the hour so as to guide the active role of mergers and acquisitions.

3.      China being a market economy needs a competition law so as to provide business, an open, and transparent legal framework.

Provisions of antitrust law from the United States, Europe, and Germany have also been included in AML.[8] One interesting part of AML is that it also prohibits the abuse of power by administrative agencies considered as ‘administrative monopoly’.[9]

Like Competition law of India, AML also have three key components, they are –

1.      Monopolistic Agreements are prohibited,

2.      Abuse of dominant market position is prohibited, and

3.      Controlling and regulating mergers and acquisitions.

MONOPOLISTIC AGREEMENTS ARE PROHIBITED

According to article 1 of the AML, the purpose of the law is to prevent/restrain monopolistic conduct, enhancing and protecting fair competition in the market with economic efficiency, protecting and safeguarding the interest of consumers, and developing a healthy socialist market economy.

Now coming to the foremost part of the law, which is the prohibition of monopolistic agreements. China’s AML like India’s Competition law separated horizontal agreements and vertical agreements. Horizontal agreements which are prohibited under article 13 of AML, are those agreements which[10]-

1.      Fixes or changes the price,

2.      Limits the sales of product,

3.      Allocates the sale or purchasing markets,

4.      Limits the purchase or development of new technology,

5.      Boycotts transactions jointly, and

6.      Other monopolistic agreement, identified by the authorities.

Article 14 of AML prohibits those vertical agreements which-

1.      Fixes the resale price,

2.      Restricts the resale lowest price, and

3.      Other monopolistic agreement, identified by the authorities.

Unlike India’s Competition law, AML only recognized these three kinds of agreements and is less elaborate than India’s Competition law.

Some exceptions on monopolistic agreements are also given under article 15, which covers those agreements which are made to improve, research, and develop new technology, made to improve quality of the product and to improve the efficiency of small and medium enterprises, and made to deal with economic depression. These agreements are exempt from articles 13 and 14 of AML.

ABUSE OF DOMINANT POSITION IN MARKET

Chapter 3 of AML talks about the prohibition of abuse of a dominant position in the market. Article 17 states that those businesses which hold the position of dominance in the market are prohibited to abuse their position if they-

1.      Sells/buys commodities at unfairly high/low prices

2.      Sells commodities below the cost

3.      Refuses to trade with parties

4.      Requires its party to trade exclusively

5.      Imposes unreasonable conditions for trade

6.      Apply different pricing with other counterparties

7.    Conduct such practice which results in abuse of their dominant position, identified by the authorities.

If the business holds a relevant market share of 1/2 or above, or businesses jointly hold a market share of 2/3 or above, or three businesses jointly hold a relevant market share of 3/4 or above, then it is assumed that the business/businesses hold the dominant position in the market.[11]

CONTROLLING AND REGULATING MERGERS AND ACQUISITIONS

Unlike India’s Competition law, AML used the term ‘concentration’ instead of ‘combination’.

According to article 20, concentration refers to-

1.      Mergers

2.      Acquisition by purchase of assets

3.      Acquisition of control either by contract or other means

No particular notification criteria are given for concentration but the same is to be stipulated by the State Council, and that notification needs to be notified in advance with the authorities.[12] Concentration Notification will not be entertained by the authorities in the following situations[13]-

1.      If a party to the concentration exercises more than half of the voting rights of the other party.

2.     If a party other than a party to concentration exercises more than half of the voting rights of the concerned party.

Article 23 prescribed the documents which are necessary to notify the authorities about the concentration and if the necessary documents are incomplete then the time will be given, stipulated by the authorities. The authorities then review the notified concentration, preliminarily, and will inform the parties within 30 days that they are proceeding with the review according to article 25. Some factors are also taken into consideration while reviewing the concentration, like a market share of parties and their controlling power, and influence over the market, consumer, and economic development.[14]

The authorities may put some restrictions/obligations on the concentration to ensure that such concentration will not harm the economic environment of the market.

CONCLUSION

In the end when one looks at the antitrust laws of both countries, one may find that India’s Competition law is more elaborative and more clear in regulating or controlling the economic market. China’s AML lacks clarity and has a limited effect on China’s market. China being one of the largest economies needs the more guided implementation of AML, because economic globalization will hamper its economy sooner or later. Still, the enactment of AML is in itself a milestone for the country.

India’s Competition law, on the other hand, adopted an ‘economic approach’ for formulating the law for the Indian economic market, with the framework of the welfare state. With time, Competition law shifted focus from consumer interest to the public at large and became punitive in nature. The main objective of the Competition Act is to maintain and generate economic efficiency by not overlooking consumer welfare.

Now it is interesting to look at these two antitrust laws in future, that how much they are consistent with economic globalization.

[1] Kabir Altamas, “Competition Laws and the Indian Economy”,  National Law School of India Review, vol. 23, no. 1, 2011, pp. 1–8, available at:  www.jstor.org/stable/44283735.

[2] B.S Chauhan, “INDIAN COMPETITION LAW: GLOBAL CONTEXT.” Journal of the Indian Law Institute, vol. 54, no. 3, 2012, pp. 315–323, available at: www.jstor.org/stable/44782475.

[3] Rajat Sethi, and Simran Dhir. “Anti-Competitive Agreements under the Competition Act, 2002,” National Law School of India Review, vol. 24, no. 2, 2013, pp. 32–49, available at: www.jstor.org/stable/44283760

[4] The Competition Act,2012, s.6(2)

[5] Id., s.30

[6] Id., s.6(2A)

[7] Yong Huang, “PURSUING THE SECOND BEST: THE HISTORY, MOMENTUM, AND REMAINING ISSUES OF CHINA’S ANTI-MONOPOLY LAW,” Antitrust Law Journal, vol. 75, no. 1, 2008, pp. 117–131, available at: www.jstor.org/stable/27897571

[8]  Xiaoye Wang, “HIGHLIGHTS OF CHINA’S NEW ANTI-MONOPOLY LAW,” Antitrust Law Journal, vol. 75, no. 1, 2008, pp. 133–150, available at:, www.jstor.org/stable/27897572.

[9] Anti-monopoly law, chp, 5

[10] Id., art.13

[11] Id., art.19

[12] Id., art.21

[13] Id., art.22

[14] Id., art.27

In the elder brother’s property, can younger brother claim the share? Fact Check.

Myth:

*In the big brother’s property, small brother can claim the share during the partition.

*In small brother’s property, big brother can’t claim for a share during the partition.

In this article, we will check whether these statements are true or not? What is actual rule for the partition?

Introduction:

Partition is a process of separation by the virtue of which the “Joint family status” of a family comes to an end.

Here for better understanding in simple words, the partition is defined as the division of the property for their specific shares among the family members (Coparcener).

Who are Coparceners? Who can claim share in the property?

Coparcener is a person who acquires a right to the ancestral property by birth in the family.

Coparcener has a right to demand partition in the HUF property. This right comes into being not by choice but by God’s grace.

After the Hindu Succession (Amendment) Act, 2005, daughters are also entitled to claim the property.

*This is to be noted, till only four generations (Property Hold by one generation +3) coparcenary rights can be claimed and Once an ancestral property is partitioned amongst the coparceners it loses the characteristic of ancestral property and becomes self-acquired property.

Laws Governing Partition in India:

  1. Partition Act, 1893
  2. Indian Succession Act, 1925
  3. Hindu Succession Act, 1956
  4. Muslim Personal Law (Shariat) Application Act, 1937 (applicable only when both parties are Muslim).

Types of Property?

  1. Ancestral Property

Ancestral property is such property that is inherited from the father, father’s father and so on (ancestors) [1]. Simply, the property which passes from generation to generation is called ancestral property.   Honorable S.C has said in Maktul vs Mst. Manbhari & Others[2], that,” Ancestral property means, as regards sons, property inherited from a direct male lineal ancestor, and as regards collaterals, property inherited from a common ancestor”.

Illustration: Your great grandfather owns property in Dehradun. After his death, this property passes to your grandfather, then to your father and so on. These types of property are termed ancestral property.

2. Self-Acquired Property

Self-acquired property is such property which is acquired during the lifetime of a person by his own earnings.

Illustration:

Ram is living in his ancestral house situated in Bihar. Fortunately, he got an opportunity to work with any company, suppose “Vestige” and he purchased another house in London from his own earnings. So, this house in London is his self-acquired property.

Answer of our Question:

Coparceners can claim for share only in the ancestral property. Any claim to the self-acquired property is not maintainable. It is up to his will, whether he wants to give that property to anyone or not. He is not bound to do so.

Straightly coming to the answer of our question,

If the big brother has purchased any property from his own earning, his small brother is not entitled to claim any share from the same property.

The same goes for small brother, if he has purchased any property from his own earning, no one can claim a share from it.

Going deeper, even if the father has purchased any property from his own earning, no coparcener can claim a share from that property. It is up to his will to whom he wants to give that property. After his death, in the absence of any will, that property can be claimed by the coparceners only.

*Always keep in mind, the self-acquired property is not subject to the partition. So, if you are bothering that if I will buy any property, I have to share with my smaller brother and so on, need not worry. It is your self-acquired property and no one can claim a share in that.

Q. What if you have paid some amount of money in purchasing the house for your father and this house has been registered in the name of your father?

Answer: Again no need to worry.

If you have paid any sum of money to purchase that property and that has been registered in the name of your father, it comes under the self-acquired property of your father. Even though, you can claim the share from that property because you have contributed the money to purchase that property. You will get a share from the property according to your contribution to that property.

[1] U.R.Virupakshaiah vs Sarvamma & Anr, Civil Appeal No. 7346 OF 2008, Arising out of SLP (C) No. 11785 OF 2007

[2] Honourabkle S C has said in Maktul vs Mst. Manbhari & Others, 1958 AIR 918, 1959 SCR 1099

Author: Raghvendra Kumar

Founder of indianlegalsolution.com

*The content of this article is intended to provide a general guide to the subject matter only. If you have something to mention, please write down in the comment box.

Does the Mutation of land in revenue records create title over land?

Myth

In rural areas, it is a very common presumption that Mutation of Land in Revenue record creates the title over the Land. If a person anyhow manages to update their name in the land records, they start claiming that now the respective piece of land belongs to them.

In this article, precisely we will discuss the legal value of the above statements.

Introduction:

First of all, make this clear that Mutation (In regional language people also refer it as “(Dakhil-Kharij”) and ownership of land are both different concepts in the eye of law.

What is Ownership?

Read in detail about the ownership

Ownership

Steps Involved when you purchase any property:

Step 1: Registry of the said property under the Registration Act, 1908. 

Step 2: Mutation of the said Property.

What is Mutation?

Mutation is the second process after when the registry of any land or property is done. It simply means that from the land records, the name of the seller of the property has been removed and your name has been updated. Now, you can pay the tax for the said property and enjoy the right to sell the property as well.

In recent times, all the land records are available on the internet. The source of this information is the land records available in the local office and further, these land records are updated as per the mutation records.

Let’s understand this with the help of an Illustration:

Mr. Ram has bought a piece of land from Mr. Shyam and the registry for the same property has been done successfully. Even after this, if you will check the land record on the internet, you will find that the specific piece of land belongs to Mr. Ram.

Now, when the mutation of the said property is done in the name of Mr. Shayam (As I have mentioned above that this is the second step), now you go and check the land records, you will find Mr. Shyam’s name is updated there.

Legal Point

Here we are discussing whether the mutation of land in the revenue records creates a title for the same land?

So, the answer is simply NO.

It is generally seen that when there is a conflict for any piece of land/property, the party asserts the title of the said land/property on the basis of their name is reflected in the revenue records. Mutation entries are maintained for only fiscal (relating to government revenue, especially taxes) purposes, to ensure that the land revenue is paid by the person whose name is recorded thereon. This is to be noted that they are not direct evidence of legal title.

On this point, Honorable Supreme Court has cleared this confusion in many judgments:

In the case of Prahlad Pradhan & others Vs. SonuKumhar& others[1] which was decided on October 16, 2019, court said that “Mutation entry in the revenue records does not create or extinguish title over the land, nor such entry has any presumptive value on the title of such land”.

In Case of Smt. Bhimabai Mahadeo Kambekar (D)Th. LR Vs. Arthur Import and Export Company[2], once again Honourable Supreme Court clarified the law that the mutation entry in the revenue records does not create or extinguish title over the land, nor such entry has any presumptive value on the title of such land.

In Sawarni (Smt.) Vs. Inder Kaur[3], the Supreme Court held that the mutation of a property in the revenue record does not create or extinguish title nor does it have any presumptive value on the title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question.

In Balwant Singh & Anr. Vs. Daulat Singh (dead) by L.Rs. & Ors[4],  similar observations were made by the Supreme Court, where it was held that a party is not divested of his title in the suit property as a result of mutation entry.

In Narasamma & Ors. Vs. State of Karnataka & Ors.[5], the Supreme Court reiterated the above position by observing that it is true that the entries in the revenue record cannot create any title in respect of the land in dispute.

Read more cases on this topic

Conclusion:

There are cases when mutation entries are generally challenged on the ground that they were made surreptitiously or fraudulently or a sale deed relating to a particular transaction was fraudulently made and therefore void.

So, if anyone had falsely or fraudulently updated their name in the land record which originally belongs to you or you have possession of it and you have reasonable ground to believe that the title of the land belongs to you, so need not to worry that the records are showing their name and your have lost your title over the land. You can challenge that mutation in the court of law having its proper jurisdiction.

What if you are not economically sound?

Again need not worry. There is a district legal service authority (district legal cell) in every district and they are constituted for the purpose to help poor persons, needy persons free of cost in their legal issues.

The District Authority is under the direct supervision of the District Judge who acts as an ex-officio Chairman and Sub-Judge I –cum-ACJM as Secretary of DLSA.

So, Visit them, they will be happy to help you.

[1] Prahlad Pradhan vs Sonu Kumhar on 16 October, 2019

[2] Bhimabai Mahadeo Kambekar (Dead) … vs Arthur Import & Export Co.. on 31 January, 2019

[3] Sawarni (Smt.) Vs. Inder Kaur (1996) 6 SCC 223

[4] Balwant Singh & Anr. Vs. Daulat Singh (dead) by L.Rs. & Ors. (1997) 7 SCC 137

[5] Narasamma & Ors. Vs. State of Karnataka & Ors. (2009) 5 SCC 591

Author: Raghvendra Kumar

Founder of indianlegalsolution.com

*The content of this article is intended to provide a general guide to the subject matter only. If you have something to mention, please write down in the comment box.

National Education Policy 2020: An Analysis

A CRITICAL ANALYSIS ON NATIONAL EDUCATION POLICY 2020

Author: Khushi Paliwal, University College of Law, Mohanlal Sukhadia University

INTRODUCTION

The National Education Policy 2020 was the most awaited and exciting policy for Indians as this transforms the old rote learning methods of education to actual conceptual means. It was approved by the Union Cabinet of India on 29 July 2020.

The first attempt to establish an education policy in India was somewhere around 1966 and shows its significance in a document published by Prof. DS Kothari. The implementation of the same thought was done by Prime Minister Indira Gandhi in 1968, which called for a “radical restructuring” and proposed equal educational opportunities in order to achieve national integration and greater cultural and economic development. 

The second such thought of education policy was brought up by the Rajiv Gandhi Government in 1986 which took almost 6 years for its proper implementation and reached 1992 and the same policy was in practice for 34 years until the year 2020 when Prime Minister Narendra Modi had come up with New Education Policy. 

It is just a policy, not a law as education is a subject matter which comes under concurrent list, but its further implementation depends on both the states’ and the center’s regulations. 

EVOLUTION OF EDUCATION POLICY IN INDIA

  • UNIVERSITY EDUCATION COMMISSION (1948-49)

It was the first education commission of independent India, also known as Radhakrishnan Commission. It was appointed in November 1948 under the Chairmanship of Dr. S. Radhakrishnan studied the problems of university education in India & needed to submit his reports on the same. 

  • SECONDARY EDUCATION COMMISSION (1952-53)

In 1952 Union Government of India appointed Dr. A Laxman Swamy Mudaliar as a chairman of secondary education commission, also known as Mudaliar Commission. The major aim behind this was to examine the existing system of secondary education in the country and to suggest measures to improve it.

  • EDUCATION COMMISSION (1964-66) UNDER DR. D. S. KOTHARI

It was popularly known as Kothari Commission, was an ad hoc commission set up by the Government of India to examine all aspects of the educational sector in India, to evolve a general pattern of education and to advise guidelines and policies for the development of the same.

  • NATIONAL POLICY ON EDUCATION, 1968- Passed by Parliament (First NEP)

This policy called for fulfilling compulsory education for all children up to the age of 14, as stipulated by the Constitution of India and focused on specialized training and qualification of teachers. It was also called for education spending to increase to six percent of the national income

  • 42ND CONSTITUTIONAL AMENDMENT, 1976- Education in Concurrent List

The 42nd Amendment Act of 1976 transferred five subjects to Concurrent List from State List and education was one of them. 

  • NATIONAL POLICY ON EDUCATION, 1986 (Second NEP)

This new policy by Rajiv Gandhi Government was called for “special emphasis on the removal of disparities and to equalize educational opportunity,” especially for Indian women, Scheduled Tribes (ST) and the Scheduled Caste (SC) communities.

  • NPE 1986 modified in 1992 (Programme of Action, 1992)

The National Policy on Education of 1986 was modified in 1992. It is a comprehensive framework to guide the development of education in India. The principles included in the NPE-1968 are also included in the new policy with some modifications.

  • In May 2016, ‘COMMITTEE FOR EVOLUTION OF THE NEW EDUCATION POLICY’ under the Chairmanship of Late Shri T.S.R. Subramanian submitted its report then The Ministry announced formation of a new committee.

NEP 2020 BACKGROUND

The Committee for drafting the National Education Policy (NEP) was constituted by the Ministry of Human Resource Development in June 2017 and it was headed by Dr. K. Kasturirangan who submitted his reports on May 31, 2019. Consequently, the draft National Education Policy 2019 was shared by the ministry of human resource development (MHRD) for public comment and got approved by Cabinet as The National Education Policy 2020 (Third NEP).

KEY FEATURES OF NEP 2020

SCHOOL EDUCATION CHANGES

  • Early Childhood Care and Education:

The main objective behind NEP is to groom students from the very beginning, keeping in mind this perspective, the government focused on kids from 3-6 years of age group to get “free, safe, high quality, developmentally appropriate care and education” by the year 2025. [1]

  • Foundational Literacy and Numeracy:

There are several reports which show that a large proportion of students in elementary schools are unable to read, write, learn, solve and understand due to lack of basic foundation, which in near future force them to drop out or leave them behind against others. Under NEP a special mission-based committee has been set up which will work in maintaining a 30:1 pupil-teacher ratio at all schools and try to encourage parental participation etc.[2]

  • Reintegrating Dropouts and Ensuring Universal Access to Education:

Numerous studies show the fact that most of the students usually began dropping out after grade 5 and it became difficult to bring those dropouts back to education.[3] That’s why NEP tries to focus on effective and sufficient infrastructure to encourage students back to school. 

  • Curriculum and Pedagogy in Schools:

The new system has replaced the old 10+2 to 5+3+3+4 design of pedagogical structure which will follow this substructure- 

  1. 5 years of the Foundational Stage: 3 years of pre-primary school and Grades 1, 2.
  2. 3 years of the Preparatory Stage: Grades 3, 4, 5.
  3. 3 years of the Middle Stage: Grades 6, 7, 8.
  4. 4 years of the High Stage: Grades 9, 10, 11, 12.
https://lh4.googleusercontent.com/wis4_RkVIGTMhNJ-va6dtG92d1nHCIWlOOTCcPnuF2PrsWg_66Eui3t2zAkgyf1SWg83HfrbJnOVSPr4gE7GHrhvfqqw9IkDhezy_hrC97dVOxD61mrR5CbipHh5t_rCPdX3nE6m

This brand new system not only covers the curriculum content but also enhances the critical thinking of one’s mind by debates and discussions, experimental learnings, etc., and most importantly now students can study arts, science, sports, etc subjects altogether. For example, now one can opt political science with physics. Apart from this, this system also fulfills the old demand for teaching and learning in one’s mother tongue until grade 5 including sign languages and ancient Indian languages like Sanskrit.

It is quite obvious that for developing students teachers are the key and for making the teachers more trained and qualified the NEP has proposed special merit-scholarships with guaranteed employment, incentives to take up jobs in rural areas and decided to decrease teacher transfers so that the teachers can become more accountable and responsive. 

HIGHER EDUCATION CHANGES

When we emphasize the foundation or roots it leads to strengthened upbringing but at the same time higher structure too plays a vital role because it leads an individual to a specific direction. Hence when one comes to the age to attain higher education usually suffers from multiple things including societal and peer pressure, chaos regarding subject selection, due to the desires of getting high paid jobs and getting admission in famous colleges; students often run behind percentage and not knowledge. So here NEP comes up with a few reforms which break these stereotypes and allow students to grow:

  • Approaching a system of multi-disciplinary universities and colleges: In universities and colleges it is important to break certain prejudices, harsh activities like ragging etc. Because these are shrines of education where all students need to be treated equally with equal distribution of opportunities. 
  • Moving towards a liberal undergraduate education: It is a high time that we look at education in a broader manner. It need not be limited in a particular field like science or commerce etc. 
  • Supporting faculty and institutional autonomy: The NEP would like to make institutions and staff autonomous so that it generates a sense of responsibility, innovation and regulation in their work.
  • Establishment of a National Research Foundation (NRF): The main aim of NRF is to provide funding to all institutions across India for research proposals. [4]
  • Reformed regulation system: Some measures are as same as the previous policies but this time more focus will remain on its implementation and whosoever does not adhere to the guidelines set up under NEP, strict action could be taken against them. 

OTHER CHANGES

  • An autonomous body, the National Educational Technology Forum (NETF), will be created to provide a platform for the free exchange of ideas on the use of technology to enhance learning, assessment, planning, administration.
  • National Assessment Centre- ‘PARAKH’ has been created to assess the students.
  • It also paves the way for foreign universities to set up campuses in India.
  • It emphasizes setting up of Gender Inclusion Fund, Special Education Zones for disadvantaged regions and groups.
  • New Policy promotes Multilingualism in both schools and higher education. National Institute for Pali, Persian and Prakrit, Indian Institute of Translation and Interpretation to be set up.
  • It also aims to increase the public investment in the Education sector to reach 6% of GDP at the earliest. Currently, India spends around 4.6 % of its total GDP on education.

LOOPHOLES OF THE SYSTEM

Apart from being open, liberal and full of visions, this policy still represents many drawbacks. For example introduction of classical languages to school education is a controversial topic because even research scholars find it extremely difficult to learn certain archaic languages. Furthermore, making everything digital when network availability is not ensured to remote areas is again a big challenge in itself. The most distressing fact is that the policy opens its paths to privatization which will surely result in high fees and more dropouts and takes us away from the important motto of the policy.  

CONCLUSION

Every year 8,934 students are committing suicide in India [5] just because marks become the topmost priority in the education system and left an individual away from his actual capabilities. The New Education Policy 2020 shows that education is much more than cramming of subjects, meeting deadlines and obtaining marks but the real meaning of education is to obtain knowledge, skills, values and to do and make progress in the field in which one really finds his interest. 

There is no doubt that if the complete policy is implemented in a proper manner it can take Indian education to new heights. Although some of its objectives lack clarity of goals we really cannot judge this until its written plans turn into action. We can only hope for the best results after all it has been brought keeping in mind the holistic development and happiness of students. 

REFERENCES

[1] Brain Development, FIRST THINGS FIRST (Nov 02, 2020, 12:09 PM), https://www.firstthingsfirst.org/early-childhood-matters/brain-development/#:~:text=90%25%20of%20Brain%20Growth%20Happens,full%20grown%20%E2%80%93%20by%20age%205 

[2] What is ECCE in NEP (Nov 02, 2020, 7:00 PM), https://www.hindustantimes.com/education/what-is-ecce-in-new-education-policy-unpacking-the-early-childhood-care-and-education/story-9ATDaa0L2Dpn9eCFhdjyMP.html 

[3] Veignesh Radhakrishnan, What is the dropout rate among schoolchildren in India?, THE HINDU (Nov 03, 2020, 10:14 AM), https://www.thehindu.com/education/percentage-of-school-dropouts/article25909306.ece 

[4] NEP 2020: National Research Foundation paves a way for self-reliant India (Nov 02, 2020, 7:00 PM), https://www.academics4nation.org/post/nep-2020-national-research-foundation-paves-a-way-for-self-reliant-india 

[5] Devanik Saha, Every hour, one student commits suicide in India, HINDUSTAN TIMES (Nov 3, 2020, 11:39 PM), https://www.hindustantimes.com/health-and-fitness/every-hour-one-student-commits-suicide-in-india/story-7UFFhSs6h1HNgrNO60FZ2O.html 

Interview with Adv. Nishtha Sanduja, Delhi High Court

INTERVIEW OF ADV. NISHTHA SANDUJA 

(Lawyer at the Delhi High Court)

Advocate Nishtha Sanduja is a practicing lawyer at the Delhi High Court. She is a second-generation lawyer in her family after her father. Legal discussions were a common talk at her family’s dining table that helped her develop a passion for the legal profession at a tender age. She grew up attaching sanctity to the profession and inferred that lawyers are a catalyst for change and justice in society.

She pursued her graduation in law from Amity Law School, Noida. There she fetched a scholarship for the entire tenure of her course & her achievements at college culminated into the prestigious “Personality Enhancement Award” & “All-Rounder Award”.

Currently, she is associated with her father’s firm, dealing predominantly in the Criminal Law and feels extremely responsible for ensuring that her client secures justice & that motivates her to keep going onwards.

Her philosophy in life is: respect earned is the true measure of a life well spent & she feels it can be attained by being useful to others. She is striving to attain a meaningful life & utilizes her law degree to touch multiple lives. Recently, she has initiated an Instagram account for sharing her views on vital topics at @nishtha_contemplates.

What inspires you the most to take law as your profession?

To be very honest I was never asked to take law as a profession but I independently took this up. As a toddler itself, I used to see my father getting ready for his arguments, practicing for a while in front of the mirror and all such cultivated my interest and inclined me towards the profession of law. I was very sorted from the 9th grade that I wanted to be a lawyer, not for convenience because my father was already into it but this field is something where I could speak and raise my voice for my clients. 

As you stated that raising voice really matters in one’s life so what do want to suggest to our readers regarding being vocal?

Being vocal is something that is lined with my aspiration in becoming a lawyer. In general, I feel that intra-activism is really important for each one of us and I keep addressing people about this. Voice is the only way to reach the people in society because it encourages others to bring their voice and that is the only reason I keep touching sensitive issues in my subtle write-ups. So that people come to know that vulnerability is important and for raising our voice social media is our biggest power. When we speak, others will speak.  

As you have presented one successful webinar on ‘Emerging Fashion Laws in India’ can you make the readers aware about the scope of Fashion laws?

My personal specialization is in IPR and this is the reason that fashion laws are something I could truly take up. So fashion laws in India are ongoing, it is upcoming but not as a very separate field because all these matters are very well subdued under trademarks and copyrights. Nowadays I see lots of students coming up in fashion laws. You can be a fashion designer and then probably take up a course in fashion laws because it is going to benefit you in that particular industry. 

How many years of courtroom experience do you have? 

The courtroom experience is not just standing up there, speaking and presenting your client, it is much more than that. It’s been two and half years now after I completed my BA-LLB. But since my father is into this profession, it’s 7 years I’ve been working with him; so during my entire tenure of college, I kept on working right from meeting the clients, replying the mails to attending court’s proceedings, creating drafts, etc.  

What major loopholes you have found in the system and what changes do you wish to bring? 

Once you step into this profession you realize that there many loopholes, not one or two but the biggest flaw I realized is in constable rank people who write the FIR because that’s the basis of the complete case. Most of the time these constables use the wrong section which later on results in big troubles because the investigation runs according to that, they also write procedural urdu towards the end and that is something which becomes difficult for any lawyer or investigation officer to deal with. And keeping these flaws in mind, me and one of my friend have worked on this, we researched together and she filed the PIL and this got changed; so now there is no more procedural urdu because we are lawyers and we have to fight for the transition of the same. 

Apart from this as far as our justice system is concerned, of course, it takes a lot of time. So more courts need to be established in our country. 

What advice do you like to forward to budding lawyers regarding academics and curriculum? 

Academics is very important because you are bound to rise in this field; half of the people don’t know what they are doing right from the constable putting down certain sections to the FIR up to the advocates etcetera. People say practical is different theory is different, but in law, if you are not clear with the theory, you cannot grasp the practical. During your law school, don’t mug up things because it will only help you to pass the exam but you won’t get any clarity of concept; try to understand each section as a separate chapter. If a section gets over in your classroom in 10 minutes, go home and read it by you in-depth, relate it with some case laws, get some recent updates over it. 

Now if I come to the extra curriculum, whatever you are doing extra including your moot courts, paper writings, and internships with any law firm, even you are a sportsperson that will boost your confidence a lot and helps in upgrading your CV too. But literally, these all are not as important as your subject, so study your subject well rather than mugging it up. 

What does a lawyer’s personality really require? 

There are actually multiple things that a lawyer’s personality requires but the most important is, you have to be compassionate, otherwise, you cannot represent the case well. You have to understand where your client stands and his side of the story well.

Secondly, your integrity in your profession really matters. Just like doctors have their moral codes, we lawyer too. Charging too high unnecessarily, not returning the extra amount will pollute your integrity and your profession as well.  

My last question to you is what’s your mantra of success that you would like to advise our readers?

I have very philosophical views on success; I never understand the definition of success. If I am winning every time will that be considered a success? But the winning of cases is not in your hands. What is in your hands is to represent your client well enough, to understand them well, to be on time, to ensure that your juniors are reaching on time or not, these are a few things that you can manage for your clients. 

Success to me is, in life in general, whatever you are demanding or wanting from your life, you keep getting that or working hard to achieve that in some way or the other.

Interviewer

Ms. Khushi Paliwal, 2nd Year BA-LLB Student from Mohanlal Sukhadia University. 

Depository, Depository Participants and Issuer under The Depositories Act, 1996

THE DEPOSITORIES ACT 1966 WITH MAJOR FOCUS ON “DEPOSITORY”, “DEPOSITORY PARTICIPANT” AND “ISSUER”

Author: Khushi Paliwal, University College of Law, Mohanlal Sukhadia University

INTRODUCTION

We, humans, are blessed with technology in the 21st century and the ‘depository system’ is one of those blessings where we can deposit our securities electronically. There was a time when investors used to get the physical certificates and they had to keep them safe and needed to forward the same to the next party.  But due to the innovation of the Depositories Act, 1996, this paperwork is replaced by an electronic mode of entries and largely known as the concept of dematerialization. 

The Depositories Act was enforced on 7 January 1996 and subsequently brought changes into the Companies Act, 1956; the Securities and Exchange Board of India Act, 1992; the Indian Stamp Act, 1899; the Income-tax Act, 1961; and the Benami Transactions (Prohibition) Act, 1988. It was brought by keeping in mind the objectives of free, speedy, accurate and safer transferability of securities deposited by the investor. 

MEANING OF DEPOSITORY 

In simple terms, we can say that a ‘depository’ is an institution which receives deposit, money, security etc. for example a bank or trust company. This institution has its obligation that he keeps the thing with reasonable care and upon request restores it to the depositor. It holds securities of inverters in electronic form. These securities can be shares, debentures, bonds, Government Securities, units etc.

A depository also provides services regarding transactions, acts as a trustee and an agent of the owner of the securities. Once the shares are submitted in the depository then their transfer would be regulated by the book-entry system and its basic function is to dematerialize the security and to maintain the book records.

Sub-section (1A) of section 12 of the Securities and Exchange Board of India Act, 1992 says that a depository means a company formed and registered under the Companies Act, 1956 and which has been granted a certificate of registration under the same Act i.e. SEBI.

PARTIES TO A DEPOSITORY 

There are generally four parties involved in a depository system:

  1. The Depository

A Depository is the most important party of the complete process because it is a center of holding securities electronically and keeps an eye on book entry transactions which are done by the Depository Participant. There are a few modes of registration with depository when it comes to securities transfer:

  • Every depository shall, on receipt of intimation from a participant, register the transfer of security in the name of the transferee.
  • If a transferee of any security seeks to have custody of such security, the depository shall inform the issuer accordingly.
  • The Beneficial Owner

In legal terms, a beneficial owner (BO) is an individual who enjoys the benefits of specific ownership even though that particular property and its legal title do not belong to him.

The investor who is also known as a beneficial owner is another party to the depository process; where he has to open a Demat account with the help of any depository participant for dematerialization of his holdings and transferring securities.

  • The Depository Participant

This party of depository system is an agent of depository (bank or any trusted institution) which offers depository services to investors. According to the guidelines placed by SEBI any financial institutions, banks, custodians, stockbrokers, etc. are eligible to act as depository participants. 

In India, a depository participant (DP) is described as an intermediaries or middlemen between the depository and the investors. There is an agreement made under the Depositories Act which governs the relationship between the two, depository participants and depository. 

As per the provisions mentioned under the SEBI Act, a depository participant can perform his services i.e. depository-related services only after he receives a certificate of registration from the said act. According to the report of 2012, there were 288 DPs of NSDL (National Securities Depository Limited) and 563 DPs of CDSL (Central Depository Securities Limited) registered under the SEBI Act. Depository Participants include brokers, banks, insurance companies, Stock Exchange clearing cells, the Reserve Bank of India, financial institutions, institutional managers, fund managers etc.

  • The Issuer

In the simplest term, an issuer is a person who issues the securities submitted in the bank/depository in dematerialized form. Issuers can be corporations, investment trusts, domestic or foreign governments, etc. These issuers make available securities such as equity shares, bonds, and warrants and it is a legal entity that develops, registers, and sells securities to finance its operations. Moreover, Section 1(1) (j) defines ‘registered owner’ as a “depository whose name is entered as such in the name of the issuer.”

Agreement between depository and participant:

A depository can enter into an agreement with one or more participants at once. All DPS are the agents of the depository; any person can approach these depository participants (DPs) and can enter into an agreement through the process of bye-laws and can avail the services of that depository. The same has been mentioned under Section 4(1) of the Act. 

Section 41 of the Companies Act lays down two modes of acquiring membership of a company and in both an entry of the name of a person as a member in the register of the members of the company is a condition precedent for a person to be regarded a member of the company. However to facilitate the beneficial owner of shares, on whose behalf the depository holds the shares, to be recognized as members, Section 41 in its new subsection 3 provides that every person holding equity share capital of a company and whose name is entered as a beneficial owner in the records of a depository shall be deemed to be a member of the concerned company.

Regulation 26 of the SEBI (Depositories and Participants) Regulations, 1996 states that depositories, participants, issuers, and issuer’s agent, in addition to the rights and obligations laid down in the Depositories Act and the bye-laws shall have the rights and obligations arising from the agreements entered into by them.

In Probir Kumar Misra v. Ramani Ramaswamy it was held that after the Depositories Act, 1996, such depositors who are holding equity share capital of the company and whose name is entered as the beneficial owner are also deemed to be members of the company, thus making them members under the Act.

In the case of Northern Projects Ltd. v. Blue Coast Hotels and Resorts Ltd. it was contended that only persons holding equity shares can be members of the Company in terms of Section 41(3) of the Act. This was rejected by the Court and it was stated that Subsection (3) of Section 41 is therefore only in addition to Section 41(1) and Section 41(2) and not in derogation or substitution of the first two subsections. The word ’shareholder’ and ‘member’ is used in the same connotation under the Act and the Section covers the third category of equity shareholders who are neither subscribers as contemplated by Sub-section (1) nor whose names are entered in the register of members as contemplated under Sub-section (2) of Section 41.

CONCLUSION

The motto behind the Depositories Act which provides for the establishment of depositories like NSDL and CDSL is to remove the irregularities which often take place in the capital market and to secure the investors’ interest, avoid corruption, a way for transparency and so on.

There is no doubt that the process often takes time, results in bad delivery and faulty paperwork. Sometimes theft, falsification, the proliferation of certificates are something common what we hear in the media. But this process/Act has overcome many loopholes including stamp duty, fake securities, high transaction cost, one share cannot be traded and many more things that actually existed earlier in the system.

Farm Bill, 2020: All you need to Know

Two farm reform bills passed by Lok Sabha, 2020

Author: Narayani Modi, Mewar Law Institute

Introduction

Lok Sabha passed 2 reform farm bills on September seventeenth, 2020 amid protests from the opposition parties and a part of farm organizations. 

These 2 bills square measure namely: 

  •  Farmers’ produce Trade and Commerce (Promotion and Facilitation) Bill, 2020[1]
  •  Farmers (Empowerment and Protection) Agreement of worth Assurance and Farm Services Bill, 2020[2]

Agricultural markets in Asian country square measure principally regulated by state APMC laws. The APMCs were started to confirm a method of truthful trade between the consumers and sellers for effective worth discovery of a farmer’s turn out. APMCs can, (1) regulate farmer’s trade by providing licenses to the consumers, commission agents and personal markets, (2) levy market fees or the other charges on such trade, and (3) give a necessary infrastructure at intervals their markets for the acceleration of the trade.

The committee on Agriculture (2018-19) noted that availableness of a clear, simply accessible, and economical selling platform could be a pre-requisite to confirm remunerative costs for farmers.  Most of the farmers lack access to government procure facilities and APMC markets it had been noted that tiny rural markets will emerge as a viable various for agricultural selling if they’re given the correct infrastructure facilities.  

 As a result, The central government enforced 3 Ordinances on Gregorian calendar month five, 2020: (i) the Farmers’ turn out Trade and Commerce (Promotion and Facilitation) Ordinance, 2020, (ii) the Farmers (Empowerment and Protection) Agreement on worth Assurance and Farm Services Ordinance, 2020, and (iii) the Essential Commodities (Amendment) Ordinance, 2020.

The Ordinances along look to (i) facilitate a barrier-free trade of the farmer’s turn out outside the markets that square measure notified beneath the varied state APMC laws, (ii) outline a framework for contract farming, and (iii) impose stock limits on agricultural turn out as long as there’s a pointy increase in retail costs. 

The 3 Ordinances jointly aim to extend opportunities for farmers to enter future sale contracts, increase the number of consumers, and permit consumers to buy farm turns out in bulk.

The bill and their highlights

  1. Farmers’ manufacture Trade and Commerce (Promotion and Facilitation) Bill, 2020: {to provide }supply}manufacture} associate scheme wherever traders associated farmers would get pleasure from their freedom of selection relating to sales and get of farmer’s produce that facilitates remunerative costs through competitive different trading; to market an economical, clear associated barrier-free bury and intra-State trade of farmer’s manufacture outside the physical premises of markets; to supply an increasing framework for electronic commercialism and for matters connected with that or incidental to it. 

 Key features:

  • Trade of farmers ‘manufacture: The Ordinance allowed intra-state and inter-state trade of farmer’s produce outside: (i) the physical premises of market assigned by market committees that square measure shaped underneath the state APMC[3] Acts and the other markets notified underneath the state APMC Acts. Such trade will be conducted in associate ‘outside trade area’, i.e., anywhere of production, collection, aggregation of farmer’s manufacture which has (i) farm gates, (ii) warehouses, (iii) manufacturing plant premises, (iv) silos, and (v) cold storages. 
  • Electronic commercialism: The Ordinance permits the electronic trading of scheduled farmers’ manufacture (agricultural manufacture regulated underneath any state APMC Act) within the nominative trade space. associate electronic commercialism and dealing platform could also be created to facilitate the direct and on-line shopping for and commerce of such merchandise through electronic devices and also the web. the subsequent entities could establish and operate such platforms: (i) corporations, partnership corporations, or registered societies, having permanent account variety underneath the taxation Act, 1961 or the other document notified by the central government, and (ii) a farmer producer organization or agricultural cooperative society. 
  • Market fee abolished: The Ordinance prohibits state governments from levying any market fee, or levy on farmers, traders, associated electronic commercialism platforms for the trade of farmer’s manufacture conducted in an ‘outside trade area’.
  • Farmers (Empowerment and Protection) Agreement of Price Assurance and Farm Services Bill, 2020: to {produce} associate system wherever traders associated farmers would get pleasure from their freedom of alternative concerning sales and buy of farmer’s produce that facilitates remunerative costs through competitive different trading; to push an economical, clear associated barrier-free put down and intra-State trade of farmer’s manufacture outside the physical premises of markets; to produce an increasing framework for electronic mercantilism and for matters connected thereupon or incidental to it.  

Key features:  

  • Farming agreement: The Ordinance provides for a farming agreement between a farmer and a customer before the assembly or rearing of any farm manufacture.  The minimum amount of associate agreement is going to be one crop season or one production cycle of eutherian. the utmost amount is 5 years unless the assembly cycle is quite 5 years.
  • Pricing of farming manufactures: the worth of farming produce ought to be mentioned within the agreement.  For costs subjected to variation, a warranted worth for the merchandise, and a transparent reference for any further quantity higher than the warranted worth should be per the agreement.  Further, the method of worth determination should be mentioned within the agreement.
  • Dispute Settlement: A farming agreement should give for a conciliation board likewise as a conciliation method for the settlement of disputes.  The Board ought to have a good and balanced illustration of parties to the agreement.  At first, all disputes should be mentioned the board for resolution.  If the dispute remains unresolved by the Board once thirty days, parties might approach the Sub-divisional official for resolution.  Parties can have a right to charm to associate legal proceeding Authority (presided by collector or further collector) against selections of the official. each the official and legal proceeding Authority are going to be needed to get rid of a dispute inside thirty days from the receipt of the appliance.  The official or the legal proceeding Authority might impose bound penalties on the party contravening the agreement.  However, no action may be taken against the agricultural land of the farmer for recovery of any dues.

Conclusion

The bill introduced is not adverse, but what makes it so are the flaws in it, them being:

The MSP4, the government provides MSP on 23 items but it doesn’t give the guarantee that they will buy all of it from everyone. They only buy things like rice and wheat, only states like Punjab and Haryana benefits from MSP, so farmers believe that if the trade outside the mandis5 the government will remove the MSP, which is the major cause of their protests.

The concept of MSP is false and flawed, only 6% of the farmers benefit from it. And traders do not buy anything at MSP, simultaneously there is no uniform method of price discovery for non-MSP crops, the farmers themselves don’t know the price of their crops which ends up being a major problem faced by them.

Next, When the farmers are allowed to trade outside the mandis, it is beneficial for them but, this can be a cause of a major loss of the commission agents of the mandis as they would lose commissions and mandi fees, by the competition and cost-cutting transport,  

The key provisions of the proposed legislations intend to assist small and marginal farmers, who have no proper means of either negotiating for a better price pf their produce or investing in technology to increase their farm productivity and make it more efficient, the Agri market bill allows the farmers to sell their produce to whomsoever they want to, outside “mandis”. Even at their farm gates, anyone could purchase their produce. So, farmers will benefit and get better prices through this law, which also includes contract farming.  

But their lies a loophole that farmers have a good possibility of being exploited by extensive trading companies, if the big and powerful company do not honor its own contract, as they won’t reach out to small farmers for negotiating, in this case, the farmers will fall out of help and won’t be able to do much for themselves. To come out of this problem, an intermediary body is required to protect the farmers from being exploited.

Then there is, the issue of storage and warehousing, the farmer’s produce is received by the traders but due to mismanagement, and lack of proper infrastructure, our country still is deprived of proper food, even though it is available, it still doesn’t reach the stomach of the hungry, and sometimes there is a huge increase in the price of a produce6

Traders and companies don’t invest in its creation so there need to be incentives to build proper infrastructure

To solve this, the farmers can use NCDEX7 and MCX8, to make the base and fix their own price with the help of it. 

Lastly, the division of farmers kills their bargaining power, if the government wants the well-being of the farmers, it should start finding ways to unite them, to become like NECC[4] the union of the farmers is important, together farmers can make their produce organization like FPO[5], where they can pool their produce and build it, the center and state government can provide the funding to keep it running

The success or failure of an idea depends on its way of implementation. The bill that’s made for farmers and their benefits, becomes their adversary itself, the bill would have no point.

If the loopholes in the bill are fixed, it will bring about revolutionary transformation and transparency in the agriculture sector, electronic trading will increase, there will be accelerated agricultural growth as a private investment will be attracted in building supply chains and agricultural infrastructure, new employment opportunities will be created and rural economy will get a boost, which will in turn help to strengthen the national economy.

References used:

[1] Bill no. 113 of 2020

[2] Bill no. 112 of 2020

[3] Agricultural produce market committee

[4] National Egg Coordination Committee is an association of poultry farmers in India with a membership of more than 25,000 farmers.

[5] Farmer produce organization

The Essential Commodities (Amendment) Bill, 2020

THE ESSENTIAL COMMODITIES (AMENDMENT) BILL, 2020

Author: Khushi Paliwal, University College of Law, Mohanlal Sukhadia University

INTRODUCTION

The words ‘essential commodities’ itself refer to certain products/ commodities which are essentially required by each and every human in the country. By keeping this in mind the Parliament of India has passed an Act in the year of 1955 to ensure the proper regulation regarding essential commodities. It is the subject that comes under the Ministry of Consumer Affairs, Food and Public Distribution. 

Recently, the existing Act of 1955 has been replaced by the Essential Commodities (Amendment) Bill, 2020 which was introduced and passed in Lok Sabha on Sept 14, 2020, and Sept 15, 2020, respectively and Rajya Sabha agreed upon the same on Sept 22, 2020.

Along with this two other ordinances were also brought (also passed as bills now) i.e. Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Bill, 2020 and Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Bill, 2020 resulted into the nationwide farmers’ protests especially in Punjab and Haryana.

A BRIEF BACKGROUND

The basic objective behind The Essential Commodities Act 1955 was to prevent hoarding and black marketing of foodstuffs. This act was legislated at a time when India was facing a scarcity of foodstuffs due to persistently low levels of foodgrains production. At that time we Indians were dependent on imports and assistance (such as wheat imports from the US under PL-480) to feed the population. 

There is no specific definition of essential commodities in the Essential Commodities Act 1955. Section 2(a) states that an “essential commodities” means a commodity specified in the Schedule of the Act. This Act gives powers to the central government to add or remove a commodity in the Schedule. The Ministry of Consumer Affairs, Food and Public Distribution implement the Act and these seven essential commodities were marked under the Act:

  • Essential drugs
  • Fertilizers can be organic, inorganic or mixed
  • Foodstuffs can include edible oilseeds and oils
  • Hank yarn made wholly from cotton
  • Petroleum and petroleum products
  • Raw jute and jute textile
  • Seeds of food crops, fruits, vegetables, cattle fodder, jute and cotton seeds.

When a commodity is declared as essential then complete control comes into the hands of the government regarding its production, supply, distribution of that commodity and imposition of stock limit.

WHAT WAS THE NEED TO BRING AMENDMENT IN THE EXISTING ACT?

The 1955 Act was legislated at a time when the country was facing a scarcity of foodstuffs. In short, India was not agriculturally independent or self-sufficient in it. Indians were unable to produce according to their demands and that is why they seek help from outside nations and used to import. But today the situation is fully different. India has now become an exporter of several agricultural products to multiple nations. We export all types of fruits, vegetables, nuts, beverages, oils, dairy products, sweeteners etcetera and that too to more than 190 countries in the world. 

From the very beginning, the agricultural markets in India are run by state Agriculture Produce Marketing Committee (APMC) laws. This committee was brought to ensure the objectives of fair trade between buyers and sellers for effective price discovery of farmers’ produce. These APMC laws provide:

  1. Licenses to buyers, commission agents, and private markets.
  2. Levy market fees or other trade charges.
  3. Proper infrastructure for regulating the market trade. 

In 2018-19, a committee called ‘The Standing Committee on Agriculture’ was established and did detailed observation over the working of APMC and came out with a report which said that the APMC laws are not implemented in its true sense and need to be reformed urgently. Issues included in the report are: 

  1. Most APMCs have a limited number of traders operating, which leads to cartelization and reduces competition.
  2. Undue deductions in the form of commission charges and market fees.
  3. Traders, commission agents, and other functionaries organise themselves into associations, which do not allow easy entry of new persons into market yards, stifling competition.
  4. The Acts are highly restrictive in promotion of multiple channels of marketing (such as more buyers, private markets, direct sale to businesses and retail consumers, and online transactions) and competition in the system.

During 2017-18, the central government released the model APMC and contract farming Acts to allow restriction-free trade of farmers’ produce, promote competition through multiple marketing channels, and promote farming under pre-agreed contracts. The same above-mentioned Standing Committee also noticed that the states are not working according to the suggested reforms in the model Acts. After this the central government recommended the formation of a committee of Agriculture Ministers of all states to design a legal framework so the procedures could be implemented effectively. 

A STEP FURTHER 

In July 2019 the Committee of seven Chief Ministers with high profiles was set up to discuss adoption and time-bound implementation of model Acts and the changes that need to be done in the Essential Commodities Act, 1955. The present three ordinances passed recently by the Parliament were the ultimate result of this committee. 

THE ESSENTIAL COMMODITIES (AMENDMENT) ORDINANCE, 2020

The main target of the government behind this ordinance is to provide opportunities for farmers to enter into a contract on a long term basis, more availability of buyers and allow them to purchase in bulk. Apart from this, the Act we are following earlier has mentioned seven commodities as essential on which the government can practice its full-fledged control. But now due to the latest amendment, the central government may regulate the supply of certain food items including cereals, pulses, potatoes, onions, edible oilseeds, and oils, only under extraordinary circumstances. These extraordinary circumstances include: war, famine, extraordinary price rise and natural calamity of grave nature and this has been added under sub-section (1A) in Section 3. Earlier, these commodities were not mentioned under Section 3 and reasons for invoking the section were not specified.

This amendment also has a clause of “price trigger” to counter extraordinary price rise and impose stock limits. Example,

  • Horticultural produce, a 100% increase in the retail price of a commodity over the immediately preceding 12 months or over the average retail price of the last five years whichever is lower.
  • Non-perishable agricultural foodstuffs, a 50% increase in the retail price of the commodity over the immediately preceding 12 months or over the average retail price of the last five years whichever is lower.

Also, this ordinance does not repeal the existing APMC laws but limits the regulation of APMCs to the physical boundaries of the markets under their control. So that it will result in more efficiency in providing cost-effective services and for farmers selling their produce outside the APMC markets, the prices prevailing in APMC markets can serve as a benchmark price, helping in better price discovery for farmers.  

WHAT IMPACT DOES THE AMENDMENT ACT CREATE?

The amended act not only removes the barriers but also liberalizes the trade to its fullest. At the same time, it helps in enhancing the infrastructure, with the help of the Gramin Agricultural Markets scheme which aims to improve civic facilities in 22,000 Gramin Haats across the country and made this a fully funded central scheme and scaled to ensure the presence of a Haat in each panchayat of the country. So that the farmers need not suffer from the unavailability of a transparent, easily accessible, and efficient marketing platform.

In addition, better transportation facilities, the National Rural Employment Guarantee Scheme, the Agri-Market Infrastructure Fund where the Fund will be set up by NABARD to provide Rs 1,000 crore to states at a concessional interest rate for the development of marketing infrastructure in Gramin Haats are key competencies of this policy. 

WHY IS IT BEING CRITICIZED?

Many prominent personalities like Harsimrat Badal, the Union Minister for Food Processing Industries, Kavitha Kuruganti of the Alliance for Sustainable and Holistic Agriculture and political parties such as the Congress and Biju Janata Dal claimed that the bill does not consider the realities of interlocked farm markets and has many loopholes. Many farmers, NGOs, activists and lawyers have thoroughly studied the bill and put forward the following contentions –

  1. Now the food traders are free to buy from any market and the specific market such as APMC remains unhighlighted. 
  2. There might be chances of exploitation of farmers in the hands of big food corporations and middlemen plus it will become difficult to calculate what is being traded and at what price. This may result in more corruption, inefficiency in the system and illegal trading of certain goods.
  3. As there is no mention of MSP (Minimum Support Price), a basic remunerative price in the complete amendment then it might weaken the system when it comes to price exchange. 
  4. The bill allows tax- or levies-free markets, whereas APMCs charge between 4.5% to 8% in mandi levies. This will lead to a loss in revenue.
  5. Large corporations are better equipped to hoard and stockpile since they have better storage facilities, unlike the average farmer or NGO and this may increase the gaps between the rich and the poors. 
  6. The price limits that have been set are too high and thus likely to be triggered very rarely, if at all.

CONCLUSION 

It is beneficial for a diverse country like India to have control over its supply and distribution channel among its people, especially when it comes to essential commodities. The hard times of COVID-19 made us more aware of the essential requirements of ours and these three latest ordinances whose major focus is on the socio-economic growth of farmers and country’s production could reduce the chances of lack of food supply chain and its mismanagement. So that the sudden inflation or deflation of essential goods’ prices and a lot of produce going to waste or remain unused do not take place one more time in the future. Thus, the complete system would result in less interference of government and introduce more modernize methods to preserve one’s production and earnings.

Ubi jus ibi remedium

Meaning:

This legal maxim means where there is right, there is remedy.

Details:

The legal maxim Ubi jus ibi remedium means that no right exists without a remedy. It is a law of Tort. In a leading case of Ashby v. White, the Court propounded that no right can exist in absence of remedy. Under the Common Law, where it is right, it provides protection. In the above-mentioned case, it was held that any nature of interference with the private property is an encroachment rather than trespassing. A person who sustained damages is entitled to claim damages and he must be compensated by the Court.

The Apex Court in D.K.Basu v. State of West Bengal, while passing an order of compensation for custodial death, has said that there is no wrong without a remedy. It is a cardinal principle of law that the person who has sustained death while in police custody due to police excess and torturing and whose right to personal liberty has been violated, under Article 21 of the Constitution of India, though there is no provision to award compensation in term of money, even though the victim’s family is entitled to be compensated as his fundamental right is grossly infringed.