Nimanniyu Sharma, Intern, Kaden Boriss Legal LLP, India

Factor markets in India, be it Land or Labour, both have been in need of reforms. Part reason for non-reform in these markets is that that they are primarily State Subjects. But what is pertinent to note is that without reforming them, the economy’s productivity cannot increase. So here, regardless of any other regime, the most glaring problem on the pathway to reform is that of ‘land titling’. In any law system, establishing a ‘titling’ system can be a very challenging affair. Not only has the title to be traced back to its original roots, but also title searches and grants (with costs and additional issues) are no final guarantee of ownership.

The Rural Development Ministry’s ‘Department of Land Resources’ has now come out with a draft ‘Land Titling Bill 2010’ to bring uniformity across the country and replace the existing deeds system fraught with excessive litigation due to inaccuracies in property records. It aims to usher in a system of conclusive property titles with title guarantees through registration of immovable properties and indemnification against erroneous losses. This draft had been opened for public discussion uptill August 31, 2010 and was placed in the public domain then. The eventual implementation now would be depending on the state reaction for the same.

Aim and Objective discussed:

The overall idea of the Land Titling Bill, 2010 is to overhaul the current system of maintenance of property records, as it has a lot of drawbacks. There are numerous agencies involved in their maintenance, leading to a multiplicity of inharmonious property records; lack of interconnectivity among these agencies, their inefficiency and differing processes of updation of property records, all these lead to inaccuracies in the ultimate records. What the Bill seeks to implement is in fact, the ‘Torrens System’ implemented in several other common law countries, after its origins in Australia in 1858. The ‘Torrens System’ is a Land Registration system in which the government is the keeper of all land and title records, and a land title serves as a certificate of full, indefeasible, and valid ownership. In the deeds system, all titles of immovable property are “presumed titles”, where title to property is claimed by people through diverse legally recognizable instruments. Usually, it is the sale deed which is used as the prime instrument to claim title to property. But it gives rise to litigation with different persons furnishing different instruments to contest title claims. That is what the new regime will seek to remove.

Now, there are several pre-requisites that need to be taken care of before the proposed land titling authority, which will be established under Section 3 of the Bill, can start guaranteeing titles:

1)   There has to be a Title Registry.

2)   There have to be Survey Settlements.

3)   Presence of the Land Information System.

4)   Property Valuation System.

5)   A Land Titling Tribunal, to supplant recourse to courts.

6)   Appropriate Technology availability to match satellite-based images with survey records and digitized cadastral maps.

The National Land Records Modernisation Program (NLRMP) has already undertaken computerisation of land records which includes data entry, digitized cadastral maps and integration of textual and spatial data, strengthening of revenue and survey training institutions, village index maps and core GIS, legal changes and programme management. Cadastral Maps, here  would mean comprehensive register of the metes-and-bounds of real property of a country. A cadastre commonly includes details of the ownership, the tenure, the precise location (some include GPS coordinates), the dimensions (and area), the cultivations if rural, and the value of individual parcels of land.

But even before, we can begin to discuss the actual implementation of the aforesaid requisites; the big question is that, ‘Would all states in India be able to implement such a System?’ Putting it differently, one can say that while some states are efficient in administrative delivery and technological advancement, others are not. Nor should one forget that various issues will crop up if subjects like alienation of tribal land are taken into consideration as the Bill is silent on the matter.

We, as a nation, have constitutionally fragmented the states and allowed the fragmentation to continue since Independence. Contrary to what is stated in the Preamble of this Bill as an objective, we would not get standardisation and unification everywhere in India. It is an impossible objective unless there is 100% compliance. But at the same time, it is an important first step and one that ought not to be restricted in its early stages. Even if one has reservations about ownership legislation, there is no reason why laws cannot change. Establishment of property rights and conclusive titles will also encourage owners to invest more in ‘land’.

Provisions of the Bill (In brief):

Let us examine and analyze some of the major aspects of the Draft Bill: 

1. The Land Titling Authority:

Chapter II of the Draft Bill is dedicated to the establishment, composition, powers, functions, duties, scope, administration and other matters related to the Land Titling Authority. A total of twenty six functions have been prescribed under Section 4 of the Act. The Authority shall be having same powers as a Civil Court has under Code of Civil Procedure, 1908 in the matters relating to the land titles. Apart from this it will also be empowered to exercise all the powers of the Chief Controlling Revenue Authority under the Indian Stamp Act, 1899. Now, under the Land Titling System, the government aims to guarantee conclusive title, as against presumed title, for every immovable property which is tagged with a unique Property Identification Number (PIN). Titles under the new system would be indefeasible i.e. title of any immovable property once entered in the ‘Register of Titles’ cannot be altered or made void.

1. The Title Registry:

This is perhaps going to be the biggest development of the proposed Bill. The Authority shall, for the purpose of this Act, establish a central Title Registry for the entire Union Territory (or the state) and may also establish sub-offices or Citizen Facilitation Centers for the proper and hassle-free receipt, recording and maintenance of the Land Titles. The Title Authority, after survey and settlement will prepare an Index of Maps with unique property identification numbers long with a Register of Titles, a Register of Charges and Covenants and Register of Disputes. These registers shall be in both, paper as well as in electronic form.

1. Survey, Settlement and Land Information System:

For the facilitation of this Act, the Land Titling Authority shall establish a ‘Survey, Settlement and Land Information’ division. The Director, Survey, Settlement and Land Information System shall prepare a record of boundaries in a notified area and give it a unique identification number after cadastral surveying and mapping of each immovable property in the area. It shall accept request for survey of immovable property by any title holder or a third party on payment of fees as may be prescribed and/or may also hire services of private licensed surveyors for the purpose of surveying of immovable property with prior approval of Government.

1. Property Valuation Division:

Chapter V of the Draft Bill deals with the establishment and functioning of Property Valuation Division for the purpose of this Act. The Division will undertake the assessment of immovable property for the purpose of its valuation under this Act. The valuation will also serve as a base for calculating the Stamp Duty payable on such immovable property. Use of electronic media and information technology and proper software for auto-calculation of stamp duty, registration fees and other applicable levies & fees payable on a particular immovable property, has been advocated for. Also, the provision for property valuation on request is prescribed on payment of requisite fees.

1. Legal Services and Title Guarantee Division:

Chapter VI of the Draft Bill proposes to establish the Legal Services and Title Guarantee Division for the purposes of this Act. The Division shall be empowered to render the legal advice to the Land Titling Authority.

1. The Land Titling Tribunal:

Chapter VII of the Draft Bill proposes to establish and constitute a Land Titling Tribunal by Government for the purpose of this Act. The functions of the Tribunal are to adjudicate on the claims preferred for payment of compensation out of the title guarantee fund of the Authority and of the private parties authorized by the Authority to operate such a fund. Tribunal shall hear appeals against the orders of the Land Titling Authority by an aggrieved party within three months of date of notification of such an order and the Appeal against the order of the Tribunal shall lie with the High Court. The Tribunal is empowered act under laws of natural justice which provides it with necessary freedom to discharge its duties in more timely and accurate manner. Also it provides for exclusive right of Tribunal to hear on the matter related with land. This shall expedite the settlement of land dispute in our country which is typically characterized by excessively long and harassing litigation.

1. Compulsory Intimation to the Land Titling Authority:

Chapter VIII of the Draft Bill lays down different events to be compulsorily intimated to the Land Titling Authority. These events are such which change or are potentially capable of changing the title, ownership, beneficial ownership, control, possession, usage, obligations etc. of the immovable property and land. This very provision will help to arrive at the conclusive legal and title status of a land and an immovable property as due to single and centralized recording of all matters of land like transfer of legal or substantial ownership or any charge, mortgage, covenant created on it.

1. Miscellaneous Provisions:

Chapter IX is the last chapter of the Draft Bill and it deals with all the miscellaneous provisions relating to the Act. The model Draft stipulates a period of five years from the date of promulgation of this Act for every property owners to obtain a title from the Authority for each property. It also aims to grade every property among small, medium and large. Section 71 grants to the employees, an immunity against any legal proceedings for anything done in good faith under this Act.

The provisions of the Indian Stamp Act and the Indian Registration Act which are not inconsistent with the Act when it comes into existence, will apply mutatis mutandis to the relevant matters dealt with under the Act. Also, there would be a three-year challenging period in case there are ownership disputes that are yet to be settled. No conclusive title is conferred on the property unless settled by the tribunal to be set up by the authority. But in case there is no challenge to the ownership of the property for three years, then the Provisional Title will itself convert to the Conclusive Title.

Enumerated Benefits:

1)   Property owners will have a sense of ownership security and will be able to mortgage their property for raising loans, more easily.

2)   Financial institutions will be able to check the absolute status of the property before granting mortgages or loans.

3)   The problem of multiple wills and fraudulent transactions will be taken care of.

4)   The government will be able to curb stamp duty and property tax evasion, improving its revenue collection system alongside.

5)   It has been proposed that the title documents and conclusive certificate would include the intrinsic characteristics of properties such as mortgage, charges, liens and transaction history so, buyers who are vulnerable to manipulations in title deeds at the hands of unscrupulous developers, would have a mechanism at their disposal to check the health and reliability of the titles before proceeding with the transactions.

6)   Additional features, such as provision of valuation for properties and regular updates thereof, would make it easy for the owners to keep a tab on their worth at any given time.

7)   The Bill also proposes a Central Property Valuation division which would maintain a Register of property valuation that would be regularly updated. Such information will also be placed in the public domain and shall enable: Auto-calculation of stamp duty, registration fee and other levies. The system shall also provide that title holders seek valuations upon request.

8)   There will be a separate division for legal services and title guarantees and the incumbent bill proposes to set up a Title Guarantee Fund. The proposal keeps the option open for title guarantee through private parties and insurers.

9)   The proposal and presence of a separate tribunal will clearly bring down the ever-crushing burden of property claims and disputes from civil courts.

Challenges, Responsibilities and Drawbacks:

While the benefits of a clear and conclusive Land Titling System are for all to enjoy, the Bill also proposes to confer some responsibilities on the people. It proposes to make it compulsory for people to declare any changes in their titles. They have to provide compulsory intimation of civil suits or appeals or revisions, equitable mortgages, statutory charges, pending action, power of attorney, grant of succession and transaction. Penalties are prescribed for willful concealment of information or deliberate furnishing of false information to the proposed land titling authority.

Also, the implementation of the Bill will be a huge challenge for the government as the creation of the land titling authority, the tribunal, the survey system, the legal services and valuation cell, too, will be quite an uphill task. Regular updates of features, such as valuation, will require an infrastructure, which at present does not exist. What also needs to be noted is that the proposed law will not help the marginal farmers and people of the rural background. The reason for the same is that for most of these people, the work on settlement and recording of land rights happened in the 1930’s and 1940’s. Post Independence, the settling of land rights has been perpetually ignored. The introduction of a new system now may prove to be more cumbersome than even the actual provisions existing today.

And at the same time, it is also pertinent to note that even some of the positive aspects of the bill lack clarity. For instance, the bill says the titling authority will suo moto take up irregularities in provisional titles. This provision would be effective only if the rights of all are recorded as we ultimately come back to the very basic statement that land is a state subject and it is also not certain if all states would enact a Land Titling Bill or not.

Legally Drawn is created by Vasanth Sarathy and is published on his blog www.legallydrawn.com

We will be featuring his future cartoons on Legally India.

By Nimanniyu Sharma, Intern, Kaden Boriss Legal LLP, India

 “Human beings are human beings. They say what they want, don't they? They used to say it across the fence while they were hanging wash. Now they just say it on the Internet.” –Dennis Miller

The Constitution of India lays down the Freedom of Speech for one; the Law has a duty to regulate it. But what does the law of the land have to say for Libel or Defamation on the Internet? This issue persists because there are varied opinions, even more Internet blogs on the said subject than the ones actually professing defamatory causes and there’s no definitive ruling made by the Supreme Court. None as of now, because the Supreme Court can only decide cases that reach its doors, and moreover only the ones that are relevant. Until that day comes, let’s just say, ‘We sit back and enjoy the show.’

What is Defamation?

The concept of defamation or libel in India is defined under Section 499 of Indian Penal Code as, “Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.” Now, it is very pertinent to note that even though if statements are defamatory and the defenses may vary from case to case and jurisdiction to jurisdiction, there is a common agreement in all of them that statements that are merely unflattering, annoying, irksome, embarrassing or just hurt one's feelings are not actionable. Let it also be clear here that there’s no separate crime known as “internet defamation” or “e-libel” as of now, making it very clear indeed that the general purview of the aforesaid definition is quite absolute in its application.

Many nations have criminal penalties for defamation in some situations, and different conditions for determining whether an offense has occurred or not. For example, in Zimbabwe "insulting the President" is by statute (Public Order and Security Act 2001) a criminal offence. To the Bloggers’ delight, not many are criminalized for what they write on the Internet, here (in India). More so, most of their ‘words’ are not even legally acknowledged. But for those who get caught off stump, it is a death of their democratic being. At this point, let me mention the widely debated case of Ajith D. which even though has not been one of defamation, has been incorrectly hyped up as one. Incidentally, Ajith D. has been sued not for creating a ‘community’ against a said political party, but for some ‘comments’ made in the community’s forum by others. But to counter that easily, we have the December 2008 Amendment in the IT Act of 2000 which exonerates one from the liability of what others say on one’s forum, website or server. So, what is defamation exactly here- the ‘community’ so created, the ‘views’ in it or the ‘comments’ in the forum? Answers to this need to be found and such case law is the actual need of the hour, to decide upon the inconclusive debate on online speech and defamation and its legal conclusion and have the ground rules laid out for the same.

Why is there no Internet Defamation?

The non-existence of the concept of e-defamation or internet libel makes a lot of sense. The concept of ‘internet’ and the ‘www’ generation emerged towards the end of the 20^th century, and ‘blogs’ or other forms of electronic expressions started much later. The term “blog”, coined by Peter Merholz in 1999, is a shortened version of the term “weblog” coined in 1997 by Jorn Barger. While on the other hand, it is to be fairly considered that the IPC (Indian Penal Code, 1860) or so even the other relative provisions or acts of law were conceptualized way before. Even before the time we had airplanes.

Elements of Defamation.

For a person to be liable for defamation, the following elements must be necessarily present: (1) An allegation of a discreditable act or some condition concerning another; (2) Publication of the act so alleged; (3) Person or his/her reputation to be defamed; and (4) Existence of intent to defame or soil another’s reputation.

“Publication,” here, is probably the key requisite, and can be defined as the “communication of the defamatory matter to some third person or persons.” The element of publication and exactly how the defamatory material is “published” determines the exact classification. Defamation, which includes slander and libel both, means injuring a person’s character, fame or reputation through false and malicious statements. While Oral defamation is called slander, Libel, on the other hand, is defamation committed by “means of writing, printing, lithography, engraving, radio, phonograph, painting or theatrical or cinematographic exhibition, or any similar means.” It could be fairly argued that blogs and the internet are not included in the aforesaid enumeration of all that is included under libel however, the catch-all phrase to it is “or any similar means.” The television is not expressly included in the enumeration, but defamatory statements made on TV are still libel. And likewise, the blog/internet is definitely a means of communication and publication and could be easily subsumed in “any similar means.” What also needs to be noted here is that the Internet now is spilled with the radio extracts, and theatrical and cinematographic exhibitions. Be it popular music videos, excerpts from movies, vogue dialogues etc. You may not only watch re-runs or previously aired programs but now can also listen to live radio or stream live TV, through the internet. Any libelous pronouncements made by the same then considering such developments, are not diminished and can rather be taken to be propagating of such defamatory matters.

Blogs and other Internet Publications

A blog can be defined as ‘a website, usually maintained by an individual, with regular entries of commentary, descriptions of events, or other material such as graphics or video.’  It is a website that is updated frequently, most often displaying its material in journal-like chronological dated entries or posts. Most blogs allow readers to post comments to the original author’s post, and link it from their blog to other posts using the permalink URL or address. In a blog, the content is not just simply ‘shared’ by one but can also be published and syndicated separate from the formatting as well by using an RSS feed. Readers can then subscribe to the feed to automatically receive updates on the same blog like further comments, more links being attached etc. More so, they are taken to be online public diaries by many, which is quite correct in certain respects as it can even serve to be your ‘daily’ repository of expressions. Now here, a diary entry would probably mean to be very personal to one, but in actuality, a blog always need to be published by clicking on the ‘publish’ button after one is done writing, thereby making it absolutely public in character. Blogs, in fact are meant to be read. It is the very aim and purpose of blogging that they should be made public, which is why one of the distinguishing features of blogs is the ‘comment’ section under almost each of them, where fellow readers are not just expected, but in a way encouraged to post their opinions on the subject matter of the blog. Bloggers must be aware of their responsibilities as hosts of discussions where these comments are invited from readers.  After all, the blog is in fact, an inspiration or the reason for the comment to be made, in the first place. So, any defamatory comments made in other posts on the blogger's website may result in the blogger being held responsible for those comments and being sued for libel. This is again very evident from Ajith D’s case whereby even if the cause of the original blog was not libelous, but the comments which were defamatory in nature owe that nature to the original material of the blog itself.

Conclusion

The internet is rightly and ‘write’ly one’s way to expression and speech. But more than democratization, it is a tool to murder another’s e-being at the least. As I read somewhere, ‘A single person can take on a huge institution which just a computer, an internet connection, and a cause (or even without a cause).’ It can be very conveniently discerned that the internet today, provides not only just a worldwide exposure to one’s ideologies; but a whole world available at one’s beck and his popular blog.

The time is not to cull the freedom of speech and its defenses and contemplate on what has been said; rather it is time to break the strands of complacency and legislate on what has been left unsaid…

CWG 2010: THE HISTORICAL SUCCESS

It is the seasons of festivals embracing all over the country & India adds one more festivals to the season to celebrate by successfully holding the Commonwealth Games 2010 at Delhi & by showing a wonderful performance by the nation in the games. Now, the people have one more Diwali to celebrate before Diwali. The time has come to exchange scrumptious sweets by celebrating Diwali with the new festival “Delhi Commonwealth Games Festival.”

            “All is well that ends well”. To start with, everyone knows that it was not only the ending of the games that was well & ended on a high note but also the games began with a fabulous opening ceremony on a very good note. The most controversial Commonwealth Games ever held, ended with an extravagant cultural closing ceremony at the Nehru Stadium in Delhi with the delight presence of guests including Mike Fennell, the President of Commonwealth Games Federation. The dignitaries who attended the opening ceremony of the games include President Pratibha Patil who was the Chief Gust at the CWG Opening Ceremony, Prime Minister Manmohan Singh, Prince Charles, as representative of Commonwealth head-Queen Elizabeth II, Mike Fennell- The Commonwealth Games Federation President and the Organizing Committee Chairman- Suresh Kalmadi.  The inauguration of the XIX Commonwealth Games 2010 Delhi was performed by President Pratibha Devisingh Patil & Prince Charles jointly at Jawaharlal Nehru Stadium in Delhi. The mega event spanned for a period of 12 days of remarkable journey.

Now, the Delhi Government must be relaxed after a fantabulous performance by Indian Players without any uncertain incident during the games. The Government is relieved now when there was a lot of hue & cry all over about the certainty of the Games to be held or not? The Government at the same time, must have been satisfied that the Games ended off on a good note as they started off since the past two months on a rather cynical note.

The credit for the success of the games must go to the authorities including the staff & security forces, the people including spectators for making silent & delightful presence without creating chaos and confusion and finally to the athletes for making their benign presence in the games by showing the their sporty spirit & passion towards the games.

Mike Fennell, the President of Commonwealth Games Federation has said in his concluding press meet at the closing ceremony: “When I was going to India on September 23, I was even asked when I would announce the cancellation of the Games”.

            The spectators also warmly welcomed the Games & even the Athletes with a sporty spirit by attending the Inaugural ceremony of the Games. The crowd of the people seemed like “a bunch of people covered in a packet” with great enthusiasm to start the games as soon as possible. This contribution distinctly makes the strength & unity of the spectators of different countries who joined the bunch in a record number with excitement even when the hue & cry for the games had not ended.

            India’s performance in the games was fantabulous and has become remarkable in the history of Indian Games. It is the first time for India in Commonwealth Games that our Athletes brought highest number of Gold medals ever in any Commonwealth Games. Some 5000 Athletes from 71 countries had sportingly competed for 826 medals of which Indian won 101, including 38 Gold, its highest ever, to be the second in tally behind Australia with a total of 177. We also brought home 27 siilver & 36 Bronze medals. Overall previous records of Commonwealth Games been broken by our players themselves by bringing home such a record number of medals.

            To start with the journey of the Stars of the Indian Games, Krishna Poonia was undoubtedly the start of India’s best-ever performance at the Commonwealth Games by getting One Gold leading a clean sweep of Women’s Discus Throw. Such was beyond expectations for everyone but she did. A pleasant surprise came suddenly for India by winning second Gold in Women’s 4x400m relay. Three new national records were also seen at the games – By Prajusha in Women’s tripla jump, Maheshwary in Men’s triple jump & by Men’s 4x400m relay team. They performed tremendously well. Another fantastic performance was seen in Table Tennis which took tally to five medals (Gold in Men’s Doubles, Women’s team Silver, three Bronze Medals in Men’s Singles, Women’s Doubles & Men’s team events). Another athlete who should be applauded is Ashish Kumar, who didn’t win final but made history by winning India’s first ever Commonwealth Games medals in Gymnastics – a Silver & Bronze.

            Going by the series of events, the disappointment was seen in the National Game of India, Hockey, when Australia thumped India 8-0 in the final & the nation had to satisfy itself with Silver medal. But, the performance by our players during the match was wonderful. Australia is a Number one team in Hockey & is the 4^th time continuous winner in the Commonwealth Games. The match is not won by luck, it is the efforts that work. Considering the efforts of the team, India & the tremendous performance by the team at the final, they received hearty applause from the public even after losing the final.

            One important sport which no one can forget is Wrestling. Anita in Women’s 67 Kg free style got the medals. The 21 years old Wrestler Geeta, pinned down her Australian opponent & cornered one more Gold for India & Renu Bala Chanu also won the event in Weighlifting, 58 Kg and another Gold by Alka for Wrestling, 59 Kg.

Deepika Kumari also came up with a Golden Double in Women’s Recurve Archery Event. In Archery Recurve Team, Dala Banerjee, Deepika Kumari & L Bombayala Devi conjured up magical moment by winning India’s first ever Commonwealth Gold in Archery. Since, 1958, India was waiting for such a Gold in either track on field.           

The record haul in Shooting was setup by the shooters, with Gagan Narang, bagging four Gold medals. Anisa Sayyed in 25m Pistol Shooting brought medals, Heena Sidhu & Annu Raj Singh also bagged Gold in 10m Air Pistol (Pairs) Shooting. Finally, in Women’s 25m Pistol (Pairs) Shooting, also bagged medals.

            An unforgettable winning by India was finally lead by Badminton Player Saina Nehwal in Women’s Singles final when she had an unbeaten 4-0 record against her opponent, Malaysia’s Wong Mew Choo. She brought home one Gold by winning the final. This was the time when England & India were tied at 37 Gold each, but England had many more medals, so it was a must win match for the nation to secure second position at Commonwealth Games. During the whole 74-minute thrilling match, never before had the entire country watched a badminton match so passionately on television. Saina’s triumph ensured the Games would end on a high note for India & she made the India victorious for made us to stand on No-2.

            All the Athletes from the nation have, today, made everyone in the country feel proud by achieving such prestigious & remarkable number of awards ever. Such adds one more feather in our cap & shows the potential & capability of the country to participate further in any games of the world. Such a successfully organization of the games proves that we have capability to hold such games in future. After all such incidents, everyone in the world wonders that the Delhi did the unthinkable by hosting the 2010 edition of the Games successfully. The period of 12 days of such a mega event has left everyone impressed that India was not bad and has potential lead anyways.

            It is the duty cast upon the authorities, to look towards any chaos & confusion created two months prior to the games when it was not even certain that the games are going to be held, finally, in India or not? The authorities should take notice of such problems and mistakes that, if any such obstacles are created by their own mal-administration, they are going to curb them at any cost. But, all obstacles were removed, people of the country are very much happy with the performance of India in the games & even the players who came from various countries are satisfied with the facilities provided to them in India. The President of the Commonwealth Games Federation has also praised the administration of the Organising Committee for holding the games in India & organizing the Games ceremonies would be a cherishing experience ever. As we similarly bid the Commonwealth sportspersons and their inimitable energy adieu, we look forward to seeing them set the playing field ablaze again once again during CWG 2014 in Glasgow & an emotional goodbye from Commonwealth Games 2010 mascot, Shera.

Deepeth Mittal

Final Year, B.A. LL.B.

New Law College,

Bharati Vidyapeeth University, Pune

921 441 2554

Hemant Batra, Lead Partner, Kaden Boriss Legal LLP, India

 Introduction

What makes “the East” different from “the West” and how?

“Culture is more often a source of conflict than of synergy.”

Following are the major differences found between the east and the west:-

Individualism on the one side versus its opposite, collectivism, that is the degree to which individuals are integrated into groups. The west focuses more on individualism whereas for the East, they emphasize on the collective good. The concept of “us”” is very strong in the eastern side. The family is inter-dependent. (Strong concerns and responsibilities for siblings). In the west the concept of strong individualism prevails. Family members are usually independent. You are taught to be self-sufficient so that you could become independent.

In the eastern purview there is Cyclic development, thus improvement has no limits and is an ultimate goal. Whereas in western philosophy there is Linear development, thus improvement has a goal. The development stops when the goal is reached.

Westerners and Asians literally see different worlds. Westerners pay attention to the focal object, while Asians attend more broadly – to the overall surroundings and to the relations between the object and the field. These generalizations seem to hold even though Eastern and Western countries each represent many different cultures and traditions.  

In the east workers are more scared of loosing their jobs (job insecurity). West has much more safety towards their work. In the west the people have their own responsibilities for their specific works. They are basically non- interfering in the work of others. For the East the sense of community is very important, they put great emphasis on human relationship.

East is not that transparent in their thoughts. They are more closed off. West is much more transparent, open and people are more outgoing in nature and in their attitude. 

In context to their managerial skills also they differ. West is much more task specific. While the East is more towards ‘doing more work if required’. Moreover, the management of West is better that the east. In the East one must do more than one’s job description requires one to do. It is one’s responsibility to find additional work within the office. In the West one would normally adhere to job descriptions on the contract.

Conclusion

There exist gaps between eastern culture and western one. Then what should we do to face this gap in the gradually globalizing world?

Firstly, we cannot deny any of the cultures. Every nation has its own characteristics and it’s mainly through its culture that we first begin to know the nation and its characteristics. So we cannot say that this culture or custom is right and that is wrong. Equal respect should be attached to every culture in the world, even to those that are not in existence any more.

Secondly, we should get to learn how to coordinate the different cultures. We say the world is becoming smaller and smaller. More foreigners come and go everyday. When it is in the same country, the same city, the same neighborhood, the cultural collision is expected to be more serious. So we should try to avoid this happening. One important thing is to get some basic knowledge about the other cultures so as not to misunderstand some actions or habits of the foreigners. The co- ordination should be well enough to maintain a balance in the companies with cultural disparities. The communication skills should be well developed and there should be adaptability in the employees. The difference in culture should be moulded in such a way so that it is beneficial for the progress of the company.

Thirdly, we can start to communicate effectively. We can take in some strong points from the foreign cultures. Though there doesn’t exist correctness in terms of culture, it does have the terms of more advanced or more suitable for the world nowadays.

Different cultures add the most colorful element to the world of 21^st century. The cultural gap should not be the obstacle to the civilization of human being. It ought to be the motivation of our going farther.

By Hemant Batra, Lead Partner, Kaden Boriss Legal LLP, India; Vice President, SAARCLAW; Chairperson, IICLAM, Singapore; Advisory Board Member, OIC, USA

Hemant Batra, Lead Partner, Kaden Boriss Legal LLP, India

The promoters, members and directors of limited liability companies incorporated under the Indian companies laws are not insulated against all odds; there are several exceptions where they could be held liable beyound their stipulated limits as to their contributions in the company.

The exceptions where the members could have unlimited liability include the following scenarios -

1. Where the no. of members of the company falls below the statutory requirement i.e. two in the case of a private company and seven for a public company; and the remaining members continue to operate the company beyound six months from the date of the said reduction and knowingly so. In the instant scenario the said members shall be jointly and/or severally liable for all acts and omissions committed post-six months as above said.

2. If any officer of the company indulges in any fraudulent activity on behalf of the company, he could face unlimited liability for consequences flowing there from.

3. If any person(s) form a company/companies with an intention to defeat any legal obligation or circumvent a law or legal committment; that person(s) and company so formed may have to face legal action without any boundary of limited liability.

4. Finally, in India, the statutory tax laws like income tax are considered superior legislation; meaning thereby that the directors of a company could be held liable personally for the tax liability of that company.

The bottom line is that the exceptions to the concept of limited liability stands created and acknowledged by the statute itself be it the Companies Act and the Income Tax Act; and also by the judicial pronouncements.

Author Hemant Batra is a Corporate, Business & Strategist Commercial Lawyer; Managing Head-Legal, Kaden Boriss Consulting [affiliate of Kaden Boriss (UK) Ltd.]; Lead Partner of Käden Boriss Partners, Lawyers; Vice President of SAARCLAW (South Asian Association For Regional Co-operation In Law); Chairperson of IICLAM (Singapore); and Advisory Board Member of OIC (USA). He is an ardent writer and speaker on current topics of public importance.

Disclaimer: This poem has got NOTHING to do with law. Law aspirants can have other thoughts, right?

Legally Drawn is created by Vasanth Sarathy and is published on his blog www.legallydrawn.com

We will be featuring his future cartoons on Legally India.

Legally Drawn is created by Vasanth Sarathy and is published on his blog www.legallydrawn.com

We will be featuring his future cartoons on Legally India.

US self-styled legal tabloid Above The Law has an interesting post with a purported letter from a 1930 law student in India (see snippet above). The article was published in The Law College Magazine of Bombay and is entitled “Is It Worthwhile? A Frank Talk with Budding Lawyers.”

Really, the document has barely aged and if I was feeling particularly lazy we could copy-paste it for a brilliant Legally India Careers Counsel column [copyright elapsed, right? – Where can we get all their back-issues? –Ed]

Anyway, a certain young Bombay advocate E.G. Nayar, who is on a two-year (!) law degree writes:

“Is it worth spending two long years of our life in the Law Colleges when there is terrible over-crowding and soul-killing competition in the legal profession? This question must have cropped up in the minds of most law students, but the presence of an unusually large number of budding lawyers in different colleges is proof positive of this robust optimism with regard to their prospects in the profession. But I cannot help putting this question, even at the risk of provoking the just indignation of the would be lawyers.”

Nayar, who could easily pass for any modern-day disillusioned graduate from a law school dreaming of entering litigation, writes:

“The problem for the budding lawyer is not the hackneyed degree, which, by the way, is a trifle easy to secure, but life after he has got it. I do not wish to throw cold water on the profound optimism of those who dream of purchasing a Rolls Royce within a year after setting up in practice. But it is foolish to shut our eyes to the hard facts of everyday life. We know too well the trials and privations of many struggling practitioner, and in view of their plight, we have to think, not once or twice, but a hundred times before we decide to become members of the legal profession.

“Of course, to those who have got long purses to fall back upon, or to those who take the profession as a sort of recreation and hobby, I have nothing to say. But I do wish to address seriously those who take this profession for a living.

“It is common knowledge that a majority of our lawyers have to live on starvation diet and would fare ill but for assistance from their relatives. The man who thinks of earning a decent income within several years of his beginning to practice is living in a fool’s paradise. I can admire such a man for his optimism and hopes, but I can give him little credit for his judgment.

“The path of the future lawyers is certainly not strewn with roses, and it is highly desirable that he should be informed as to how best he should act under the circumstances.

I will try to give a few titbits of information on these points. I happen to know a lot about lawyers. I have seen much and heard more about them.”

Emphasis added – hands up who has heard a friend at the bar say the exact same thing 80 years later? (with a couple more swearwords littered here and there probably)

Sure, it is hard to feel pity for grads hitting the jackpot at top corporate law firms, but then again, how many of those are there? For every 10 lakh per year recruit, are there not hundreds of so-called law firm lawyers on Rs 10,000 a month?

Above The Law has the full article as a PDF on its site. Also read ATL’s interesting take on the parallels between a US lawyer in a recession and good-ol’ Nayar.

Note :- If you're waiting for the sequel to Mooting for the Professionals :- Part I, I'm terribly sorry but you'll have to wait just a bit longer. I'm still to finish the second instalment to my satisfaction. All my apologies. As a filler, I've tried my hand at verse instead of the usual prose. The usual disclaimers apply - nothing that follows is intended to have more than the most tenuous connection to reality, everything is firmly tongue-in-cheek and greatly distorted for humorous/dramatic effect, and most importantly, I do not in fact hate corporate law. I just greatly enjoy making fun of it. ;)

From Noob to Nariman (and still no wiser..)

I've got myself a corporate job,

For the power, the money, the fame;

(But how high can you really rise in a firm

That bears someone else’s last name?)

They put me in a tiny cubicle,

They hand me my diligence file;

I will not let it get me down -

If it kills me, Goddammit, I'll smile.

Some people dream of wealth, and

Some people of world peace;

I just want a corner office,

And a set of Beemer keys.

The sea is calm and sparkly;

The sky’s the colour of wine;

The horizon is unbroken,

One day that view’ll be mine.

I encourage the right gossip;

I quietly quash the bad;

My bonuses are squirreled away,

To fund my bachelor pad.

I am seen with the right people,

I laugh at all their jokes;

I cultivate an accent - 

I replace ‘dudes’ with ‘blokes’.

I read my Legally India,

I cheer for L. Bhasin;

I shudder to think of my bonuses, if

They let them white blokes in.

Silk carpet, rosewood sofa,

My secretary is a MILF;

For these, my life's little luxuries,

I am thankful to the SILF.

Years pass, they make me Partner,

Those Beemer keys are finally mine;

I let my chauffeur have them..

(Only he has the time.)

My Blackberry takes over my vacations; yet,

I accumulate air-miles;

The stunning sea-view to the right of me,

Is obscured by a pile of files.

I've gone from Folly Noob to Nariman,

(Kian knows I earn more than I reveal)

So it's odd; I still feel like a hamster,

Doomed forever to a corporate wheel.

No doubt, my shoes are shiny;

No doubt, my suit’s bespoke;

Turns out I’m still just a gold-shod buffalo,

In a golden corporate yoke.

---------------------------------------------------------------

(Edited to Add - A friend tells me 'Beemer' refers only to the BMW bikes and not the cars. Oh well, one lives and one learns. Auto-enthusiasts kindly excuse.)

Mr.Henpecked Humblepie was in the middle of a tiresome day at work, when  he started musing over his Lady Love…"it’s been a while since she called me…why is that? …surely , I can’t have wronged her?…I would’ve known - …the ritual hurling of  kettles and rolling pins wasn’t there this morning"…then , it struck…it had been a year to the day he tied the knot - the realization brought with it a tidal wave of fear-one that threatened to render him motionless for the rest of the day.An hour later , having recovered from the very potent  bout of trepidation, he wrote a letter.His Lawyerly Love , he hoped, would abate the storm that was to follow once he reached home…and writing a letter was just the right  thing to do…for, it spares one the possibility of a  verbal assault, that could , ever-so-often , turn violent.Once at home (read battleground) , he sensed the palpable wrath - so much so , that he could’ve knifed through it.With not so much as a squeal , he handed out the letter -quivering with rage , she read  it :   

                                                                          A P O L O G I A

“Forgiveness is the fragrance that the violet sheds on the heel that has crushed it.”- Mark Twain.

Hello to all, this blog which comes after along gap is the result of requests from some of my juniors to write a blog on sources of International Law (and this could be probably because those little lazy mutts might not want to make the notes of the topic themselves). So here have tried to make brief notes on sources of International Law, which could come handy for a quick revision, and also for interesting reading.  These notes are made after a sincere reading, apart from other works, from ‘A Modern Introduction to International Law’ by Michael Akehurst, therefore, the incidents of similarity in expressions are high.

So, there we go.

Sources of International Law

Determination of sources of IL has attracted wide debates and discussions, and this is probably because of absence of any universal law making authority analogous to national legislation. Art. 38 of Statute of International Court of Justice solves this problem to some extent by laying down the basis on which it is to decide the International disputes submitted to it. The list, so given in Art. 38, is the most widely accepted list on the sources of international law. Though some authors point out that the list is inadequate and does not include all the sources of international law, but none of the other lists ever provided have generated the kind of wide acceptance which has been accorded to Art. 38. It must be observed that Art. 38 nowhere contains the word ‘sources’ but the it has been taken since 1920 as stating the relevant sources.

Here an important discussion pertains to the question whether the sources given in Art. 38 are ‘formal’ sources of int’l law or are the ‘material’ sources of int’l law. According to Salmond,  the distinction between formal sources and material sources is, ‘A formal source is that from which a rule derives its force and validity. The material sources are those from which is derived the matter, and it supplies the substance of the rule to which the formal source gives the force and nature of law’. A far more simpler distinction, which is stated to be derived from constitutional law, is that formal source constitute what law is, while material sources identify where the law may be found. Brownlie, however, argues that such distinctions derived from constitutional law are not appropriate, given the nature of international society. Some authors question if the differences of nomenclature are so important as ICJ has not devoted any attention to the controversy.

Treaties as a Source of International Law

Coming to the first source of International Law as provided by Art. 38 (1), ‘international conventions, whether general or particular, establishing rules expressly recognized by the contesting States.’ Conventions mean treaties, and the expression ‘treaty’ comprises a large number of instruments that may use different names, such as agreement, pace, protocol, covenant, declaration etc.  but, as Akehurst, points out that some of these words have alternate meaning which can mean something other that treaties, thus making the problem of terminology even more confusing. The best way I could think of coming out of this confusion is to look for the definition of ‘Treaties’ in Article 2(1) of Vienna Convention on Law of Treaties.

Treaties are the maids of all work in International law. They are considered to be major sources of law as treaties arise from the express consent of a State. Being based on consent the general principle is that only the parties to a treaty are bound by its terms (but there are exceptions to this principle where the states not parties to the treaties are also bound by it, examples are, a) when treaties codify customary law; and b) distinctive category of ‘depositive treaties’ that create an objective legal regime binding upon third states).

Law Making Treaties and Treaty Contracts

Treaties are generally divided into law making treaties, known as, ‘traits-lois’; and treaty contracts, known as, ‘traits-contrats’. Some writers argue that only law making treaties should be regarded as source of law as treaty contracts are not sources of law, but merely legal transactions. But Akehurst points out that most of the treaties are on a border line case and it becomes hard to classify, though the classification is not entirely useless, but the better view is to regard all treaties as a source of International Law. Personally, I do not see any reason as to why contractual treaties should not be considered as a source of int’l law, as, the contractual terms which lay down rights and duties can be a source of law in absence of other laws of nature similar to that of the rights and duties so drawn under the contract.

Treaties when Codify Customary Law

Importance of treaties escalate when they codify customary law, as then they would not only be binding on the states parties to it, but also to the non party states. As the non parties may not be bound under the treaty per se, but they would be bound under obligations arising in customary international law, which the given treaty so codifies. Thus, a State can enforce an obligation on another State by showing that the treaty codifies customary law. In cases where treat is an amalgamation of customary law and provisions that seek to further the progressive development of the law, then the non parties will be bound only by those provisions that may be said to constitute customary international law.

Note- I hope this might be of some help to people who have just been introduced to Public International Law. Though on request of my few juniors I intend to write whole series on all the sources of International Law, but that would also depend on the feedback from the readers. So if this writing has been useful to you in any manner and you would like to read on other sources of International Law through this blog space, please do leave a comment or ‘like’ it on facebook.

Disclaimer: This is my final post. Disclaimer stays the same. No offence is intended to anything living, alive or metaphysical. Read in peace.

Law firm ‘X’ recently had one of their recruitment drives in a college not so well renowned. I attempt to decipher how and why one man dared to tell them ‘No’ despite having all the possible credentials to make it.

My friend, the ‘Godfather’ (refer earlier posts to find his mention), has a good batch rank He did not apply to law firm ‘X’ even though it was offering a very lucrative package and neither did he ever want anything to do with it.

Background:

The Godfather and I hail from the more recently established pedigree of law schools having a national tag. Our perceptions have changed from time to time. At the time we joined law school, the senior most batch comprised only of the third years and people didn’t expect much to happen in terms of recruitments and future prospects. Levels of hope ranged from the outright practical (expecting a degree to come at the very least) to the plain absurd (Law firm ‘X’ coming down to recruit). People’s perception changed and the institution grew along with us. Batch by batch, year by year, we started getting our due outside and being appreciated for our competency. Firm ‘X’ picked very few people from the first batch; picked fewer people from the second batch and this year picked the most number of people. The Godfather didn’t apply to firm ‘X’ and was clear cut in his choice, stating that he wanted to enter litigation. The reason I have given this background is that from a position of no hope, the institution and its people have grown to a position of choosing an alternate option as their career instead of immediately taking whatever comes by them. The Godfather made this decision despite knowing that he did not belong to one of the elite (NLS, NALSAR or NUJS). He did so because he wanted to do it and he knowingly opted for a path less trodden despite knowing what adversities he might have to face in that given path.

Reason:

The Godfather was ever encouraging of people who applied for the job and was happy for all of them getting these massive packages which can set their lives for years to come. But yet, the Godfather had a simple question to ask few people including me, ‘Where do you see yourself two years down the line?’. This question didn’t really generate any concrete response from anyone. He simply stated that if 14 lakh Rupees was to be the benchmark to gauge the growth of a law school and how good its students are, then we’ve reached this stage as an institution. Weighing out a long term perspective compared to a short term perspective is what needs to be looked at. But, a long term perspective in terms of growing within an organization or growing in the profession is something which nobody could concretely ascertain since people just thought about the package and nothing more.

 Conclusions:

1)      Firm ‘X’ continues to remain and will always be a brilliant place to work and it has made lives for many people.

2)      Second generation law colleges have arrived and have arrived for a reason. Having faced deprivation and ignominy for years on end, talent is being recognized purely for the good work that students from these colleges do, since more often then not they are left with limited options.

3)     Probably, the Godfather has taken a big risk by refusing a sure shot offer but yet, even Firm ‘X’, acknowledged the fact that students in this batch and in this law school have values instilled in them and do not simply run behind money. The institution has grown and will continue to grow as firms come by and firms go but it is the people who make up the institute who make it as acclaimed as it is.

4)   Choices made by graduating law students are mostly clear cut for decisions influencing their lives in the near future. But, at the same time balancing choices from a short term or long term perspective is something which very few people can do while passing out.

P.S.

1) Kian, Thanks for this excellent platform. You have given bloggers like me the most ideal space to bring up issues ranging from the extremely simplistic to the outrageously bizarre.

2) To all other bloggers- Nandi, Poet, Folly, False News, John. It’s been a great competition and full marks to all of you for making it a tough race to the finish.

3) People have often asked me why I have a pitchfork as my symbol. It actually represents the ‘Trishul’, the weapon used to vanquish evil and also my ideology, to a certain extent.

Cheers!

SSS

Everyone celebrated their wedding. The groom was an NRI engineer settled in Boston who came to Punjab to marry Manjeet, a beautiful village girl. No one had ever anticipated that this fairy tale would turn into a nightmare until the groom decided to abandon Manjeet and marry again.

He obtained a divorce decree in US. Subsequently, Manjeet filled a petition in an Indian Court. The court declared the divorce null and void although it hardly had jurisdiction over the foreign decree. Now, her husband is divorced in States but married in India.

According to NCW more than 50 women are facing the issue in Gujarat, Punjab and other parts of the country.

Problem

In such divorce cases the conflict of Private International Law becomes evident. Usually, one party obtains a divorce decree aboard which is not recognized in the Indian Courts on the ground that the foreign court had no jurisdiction over the matter. As a result the marriage is recognized in one country but annulled in the other. Such a person may be tried for Bigamy in India but in the other country he would not be considered guilty.

EX-PARTE JUDGEMENT:

An ex-parte divorce happens when only one spouse participates in the court proceedings.  In US, a state has the authority to determine the marital status of that person (who lives in that state) even if it does not have jurisdiction over the other spouse. Usually,the spouse who doesn’t live in the county where the divorce was filed would not be subject to its jurisdiction unless a status exception is present.

Many a times foreign courts grant ex-parte divorce decrees, with one party being unrepresented and thus unheard. Often the parties are unaware about these proceeding too. Due to various practical and financial difficulties; a party may not be able to contest the case. Generally, the wives deprived of maintenance and matrimonial property in these cases.

Recognition of foreign Judgments in India:

The Section 13 of Code of Civil Procedure deals with recognition of Foreign Judgments in India. SC in various decisions noted that a court would have competent jurisdiction if it recognizes the Act or law under which the parties are married. Further, If any foreign judgment is opposed to natural justice, founded on breach of Indian law or obtained by fraud; it would not be recognized in India.

For a court to have competent jurisdiction both the parties must voluntarily and unconditionally submit themselves to the jurisdiction of the said court.

In a leading judgment SC of India ruled :-

1. No marriage between an NRI and an Indian Women which has taken place in India may be annulled by foreign court.

2. Provision may be made for adequate alimony for wife in the property of husband in India and abroad.

Legislations In Other Countries

The (English) Foreign Marriage Act, 1892 and  Marriage (Overseas) Act, 1955 in Australia provide for a form  of marriage which may be availed by the parties marrying abroad where on of the citizens where at least one of the person to the marriage is a citizen. However, the acts do not affect the validity of these marriages.

Law Commission in its report proposed a legislation similar to the two for addressing the issue of foreign marriages. It suggested that the parties at the time of marriage must be free to choose the law by which they would be governed. Moreover, Indian citizenship should be a prerequisite for the parties to avail the benefits of the proposed legislation.

Recommendations

Precautions by the family:-

1. The family must verify credentials of the groom and his family. They must check his address proof, passport details, his place of work etc.

2. The girl must be made aware of her rights in the foreign country.

3. She must have a separate bank account near her place of residence in case of any emergency.

4. Marriage must be registered.

5. A photocopy of the groom’s passport and other credentials must be kept with the family.

Steps to be taken by the government

1. Registration of the marriages must be made compulsary.

2. Bilateral Agreement must be signed with other countries.

3. Spreading awareness and releasing information booklets to prevent fraudulent marriages.

4. Setting up of special cells for counseling and free legal advice in various states.

5. Collaboration with Ministry of Overseas Indian Affairs to deal with the issue.

6. There should be a uniform law for recognition and enforcement of foreign judgments in relation to matrimonial disputes.

7. Assistance must be provided to NRI wives.

Fresh out of law school,

with a trained eye for detail,

his maiden battle left him,

feeling like a garbage pail.

Furious with his reasoning,

the fulminating judge quipped:

"Counsel, you've been quibbling,

when you ought to stay tight lipped,

for, to wriggle your way

out of this one,

you are very ill equipped ! "

Hounded by the humbling,

his ego was now smarting.

He felt such a great big fall,

would've had a Zen Master fuming,

even the clairvoyant Octopus Paul,

could never have seen it coming.

His wizened senior  chipped in,

and over a bottle of the finest gin,

preached with the slightest of grins:

" You are my trusted lynch pin,

a fine lawyer you'll make,

your pride, though, is a deadly sin,

abandon it for career's sake."

The words struck a chord,

he realized he wasn't The Lord,

he felt humble,did not grumble,

never again did he stumble.