Jerome Merchant + Partners

Education is one sector which was left behind during the reforms stage in 1991. It is one of the most important sectors in any country. Educated youth are a requirement for a successful country.

“The main hope of a nation lies in the proper education of its youth”- Erasmus

The Government cannot cope with the huge demand for quality education. Computer education for example, has spilled over to the free market outside government control. The world is changing and computer skills are becoming a must. Indians had traditionally been good at learning new stuff so India had an appetite for IT. Although, our schools and colleges are only creating an army of unemployables.

Two young entrepreneurs from IIT Delhi, Vijay Thadani and Rajendra Pawar, saw in the early 1980s what the government did not. They started NIIT (National Institute of Information Technology). There was another bunch of entrepreneurs that started Aptech.

India has more than three thousand centers of such ‘schools’ which train more than half a million students a year. This kind of training institutes became an instant success. They were so successful that the promoters could not cope up with the demand. So they decided to franchise it. They did it very successfully. They maintained the quality. The improved it actually. They earned a lot and the society gained a lot. They have checks and balances to see to it that the quality remains that way.

NIIT also have a four year program. It is like an undergraduate degree. It has an interactive method of teaching with emphasis on practical experience. It is also easier for them to change their course with the changing times and make it more effective as they don’t have to time consuming government process in between.

Tamil Nadu government has collaborated with them. NIIT provides computers and teachers and the Government provides them real estate. In the day it is a normal school where students are taught computers for free and after the school it becomes a commercial NIIT center where the residents of the town come and learn. It is a win win situation. If you think that NIIT will start exploiting the customers then you are wrong. Competitors like Aptech would see to it that such a situation doesn’t arise. That’s the beauty of a market economy.

NIIT is just an example I choose randomly. There are many more out there. Some known, some unknown.

We have seen the magic created by the Economic reforms. It’s time we have some on the Education front too. Economic reforms need the backing of education reforms. It cannot transform the country alone. Only educated youth can make full use of the opportunities that are offered through economic reforms.

Another question that I have is, is it Capitalism versus Communism/Socialism?

Government control on any sector has ruined it. I am not the only one saying this. It’s a fact now and not just my opinion. Cuba you say? Check this link.

It has been so many years since Independence but the Government has not been able to do anything about improving the education sector, atleast not as much as it should have.

We regularly see frequent fights between the Human Resource Department, the Law Ministry and the Bar Council over who will ‘control’ law students.

The foreign university bill is another controversial piece of legislation. It has various compulsions that a foreign university has to follow that will most definitely dissuade the good Universities to come to India. Imagine having to keep a large chuck of money with the government as surety, compulsorily employing Indians, following a limit set by the government on the salary that can be given to the faculties and following all the other guidelines given the government regarding its operations. No one would want to come, atleast not the famous Universities. Why can’t we leave it to market economy to decide? Students of good universities will be successful and that University will rise in the ranks. All the mediocre students and Universities will be shunned and finally will have to improve or shut down.

According to me, it is unjust that all political parties in India have to compulsorily declare that they will adhere to the principle of socialism under Section 29A of the Representation of the People Act 1951. It is as if the legislators think that Capitalism is against the interests of the general public. *sigh*

Well, that it I guess. There will be a lot of contradictory views, I am sure. Please feel free to ask questions. All of them will be answered. Keep coming back if you want to rebut my replies to your comments. A healthy discussion is always welcome. 

I recommend India Unbound by Gurcharan Das to anyone who wants to know more about this topic. The book is a gem. Simply Brilliant. 

 This is not exactly a law related post but well I thought a little bit of variety wouldn't hurt. :) 

Oh its been a long time since I wrote anything. I feel good.

Cheers

Napster

It's just two years since I've enrolled,  and already my practice is growing by leaps and bounds.  I am losing track of the number of inquiries I get from potential clients. I've always had a flair for mergers & acquisitions, takeovers, international banking, and cross border transactions law.  Now the world is beginning to recognize my talent too. 

"It's quite amazing," I sometimes think.  "How fast word spreads." Is it the confidence with which I carry myself in the courts? Is it the assertive tone of my voice when I make my submissions? When you are good, you don't have to put in extra efforts to impress. Your natural flair carries the day.  No networking, no attending seminars and flashing visiting cards, no surrogate advertising - nothing.  People just get wind of your sheer talent and approach you.

And it's not just locally that you are noticed. In this age of technological advancement, word spreads like wildfire.  People from across the world have been writing, wanting me  to assist them in their high stakes business ventures.  I've begun to realize that there is a global dearth of good talent.

In the last 24 hours, I learned:

a) That Odafe Nbujara, Bank Manager at the Nigerian Overseas Bank, discovered  an abandoned sum of $12.5 million in an account that belonged to Thomas Sbarjanda, chief military advisor to the Nigerien Government, who was overthrown and killed in a military coup in 2006.  To my sheer good luck, I have been identified as Sbarjanda's next of kin and Nbujara needs my help in transferring the funds to me.  "All I have to do is pronounce Sbarjanda's name correctly," Nbujara said in his e-mail, and gave me a phone number at which to call.

b) That I am entitled to One Million, Five Hundred Thousand Dollars as charity/aid from the Royal Dutch Shell Foundation (NETHERLANDS) International donation scheme. "Wow," I thought, on reading the e-mail.  "Perhaps, this Foundation of international repute has heard of my growing prominence, and wants to honour me before anyone else does."

c) That my e-mail address was the lucky winner of 4.5 million dollars in an online lottery promoted by Microsoft.  "Indeed, why not." I said to myself, on reading the good news. "Fortune not only favours the brave, it favours the exceptionally talented too."

Another person wrote to me from Hong Kong.  I will not disclose his name here because he has requested confidentiality. Anyway, his mail started by saying "It is understandable that you might be a little bit apprehensive because you do not know me, Please forgive this unusual manner to contact you, but this particular letter/email is of exceptional and very private nature."

"How polite," I thought.  "A thorough gentleman indeed.  Not only does he want to engage my services, he also wants me to forgive him for contacting me!  Sheer humility.  You  just don't find people like him these days."  Anyway, this kind soul wants my assistance in executing a business project worth $25.5 million.  How can I ever refuse?

Another  unfortunate widow has written to me from Rwanda, informing that her husband died two months ago, leaving behind $50 million to her.  She fears that her greedy relatives are trying to grab the money and needs my urgent assistance in transferring the money to my account, and handing it over to her when she meets me in person.  She has promised me 25% as fees.  "Well," I thought. "She definitely needs someone trustworthy like me to help her."   Only someone with in depth knowledge of foreign exchange laws, transnational contracts, international banking, and inheritance laws can help her.  No wonder she has written to me. Perhaps, she made her own discreet inquiries and launched an international search for the right person to assist her.  I feel proud to be the chosen one.

Success can really be intoxicating, you see.  Now,  I really get worried when I don't receive such client inquiries regularly. Anyway, I'm not going to rest on my laurels.  Sweat, toil, and hard work  are stepping stones to even more sweat, toil, and hard work.

By: Kartik Dawar – Associate Advocate, Kaden Boriss Legal LLP

Partnership is one of the oldest forms of business relationships that continues to be relevant in the present era as well. In India, even though limited liability companies have substituted partnership firms in large businesses, partnership continues to be the dominant business model for professionals and small business enterprises, often due to legal necessity and implications rather than choice.

The Indian Partnership Act, 1932 provides for a traditional form of partnership which is simple to form and easily dissolved and requires very little regulatory compliance. An important feature of this kind of partnership is the unlimited liability of the partners for the acts of the firm; in fact the firm does not have a separate legal identity from the partners and for this very reason it is also difficult to induct and retire partners as any change in the constitution of firm gives rise to a new firm. To overcome the shortfalls of this kind of traditional partnership, a need was felt by both the legislators and the business community to create an alternate business structure that would combine the positive points of traditional partnership and the limited liability company; and such a structure has come to be known as the Limited Liability Partnership (LLP). A Limited Liability Partnership is a hybrid between a company and a partnership that, as the name suggests, provides the benefits of limited liability and allows its members the flexibility of organizing their internal structure as a partnership based on a mutually arrived agreement.

LIMITED LIABILITY PARTNERSHIP: INTERNATIONAL PERSPECTIVE

Limited Liability Partnership has already been accepted as a business structure in many countries like US, UK, Japan, Singapore etc. In US, Limited liability partnerships emerged in the early 1990s: while only two states allowed LLPs in 1992, over forty had adopted LLP statutes by the time LLPs were added to the Uniform Partnership Act in 1996. Each state of US has its own law governing the formation of LLPs. The liability of the partners varies from state to state. In UK, LLPs are governed by the Limited Liability Partnerships Act, 2000 (in England and Wales and Scotland) and the Limited Liability Partnerships Act (Northern Ireland) 2002 in Northern Ireland. A UK Limited Liability Partnership is a Corporate body – that is, it has a perpetual succession. The feature of LLP in UK is that it combines the organizational flexibility and tax status of a partnership with limited liability for its members. In Japan, LLP is not a corporation, but rather exists as a contractual relationship between the partners. In Singapore, LLPs are formed under the Limited Liability Partnerships Act, 2005. This legislation draws on both the US and UK models of LLP and establishes LLP as a body corporate. However for tax purposes it is treated like a general partnership.

THE LLP LAW IN INDIA

The Indian Legislature, keeping in view, the international business trends where a range of services is being offered by professionals and businesses in the form of Limited Liability Partnerships, has enacted the much awaited Limited Liability Partnership Act. The Limited Liability Partnership Bill, 2006, was approved by the Cabinet on Dec 7, 2006 and was introduced in the Rajya Sabha on 15^th Dec, 2006. It was later referred to the Department Related Parliamentary Standing Committee on Finance for examination. The Committee submitted its report to both Houses of Parliament on 27^th Nov, 2007, recommending some changes along with some suggestions regarding the LLP Bill, 2006.[1] On 12^th Dec 2008, the Parliament passed the Limited Liability Partnership Bill, 2008. The Limited Liability Partnership Bill, 2008 received the assent of the Hon’ble President on 7^th January, 2009 and has now become a legislation to be called as 'Limited Liability Partnership Act, 2008’.

The Limited Liability Partnership Act, 2008

An LLP under the Limited Liability Partnership Act, 2008 is a body corporate having a distinct legal entity separate from that of its partners and has perpetual succession i.e. any change in the partners will not affect the existence, rights or liabilities of the LLP.

The Limited Liability Partnership shall be required to have at least two partners but there will be no limit on the maximum number of partners. If at any time the number of partners of an LLP is reduced below two and such LLP carries on business for more than six months, the person who is the only partner of the LLP during the time it carries on business after those six months shall be liable personally for the obligations of the LLP incurred during that period.[2] Any individual or body corporate may be a partner in an LLP.[3] Further, the provisions of the Indian Partnership Act, 1932 shall not be applicable to an LLP.[4] Further, an LLP, will by its name has the power to sue and being sued, hold and dispose property, have a common seal and to do and suffer such other acts as bodies corporate may lawfully do and suffer. Every LLP is required to have either the words limited liability partnership or the acronym LLP as the last words of its name.

Incorporation of an LLP

An LLP is formed pursuant to a “limited liability partnership agreement” which means any written agreement between the partners of the limited liability partnership or between the limited liability partnership and its partners, which determines the mutual rights, and duties of the partners and their rights and duties in relation to that limited liability partnership.[5]

For an LLP to be incorporated, at least two persons must subscribe their name to a document called an incorporation document, which must then be submitted to the Registrar of companies. There is also a requirement of fling a statement in the prescribed form, made by either an Advocate, or a Company Secretary, or a Chartered Accountant or a Cost Accountant in whole time practice in India or by anyone who subscribed his name to the incorporation document that all the requirements under the Act and the rules made thereunder are complied with in respect of the incorporation, along with the incorporation document. The incorporation document must contain information such as the name of the LLP, its proposed business, address of its registered office, the name, address and photographs of the persons who are to be its partners on incorporation.

Upon receiving the incorporation document the Registrar will retain and register it. Once the documents have been registered, the Registrar will issue a certificate that the LLP is incorporated by the name specified in the incorporation document. The certificate issued by the Registrar is evidence that all the requirements have been complied with.

Extent and Limitation of Liability

An LLP being a separate legal entity is liable for an obligation arising in contract or otherwise and the liabilities of the LLP will be met out of its property. A partner will not be held personally liable, directly or indirectly for an obligation of the LLP, solely by reason of being a partner of the LLP. However, such liability shall not affect the personal liability of a partner for his own wrongful act or omissions and in the event of an act carried out by the LLP or any of its partners, with intent to defraud creditors of the LLP or any other person, or for any fraudulent purpose, the liability of the LLP and partners who acted with intent to defraud creditors or for any fraudulent purpose shall be unlimited for all or any of the debts or other liabilities of the LLP. Therefore, a partner will be held personally liable for his own wrongful act or omission, but not for the wrongful act or omission of any other partner of the LLP.

Safeguards to Prevent Misuse

Since there would be limitation on the liability of the partners and the LLP shall be a separate legal entity contracting with third parties in its own right, the Act has certain built-in features which shall lead to greater control over LLPs than what could be exercised over traditional partnerships. Some of these requirements include the requirement of every LLP to have a registered office in India to which all communications will be made and received. Any change in the registered office has be intimated to the Registrar. Every LLP is also required to have at least two designated partners and one of them should be resident in India.[6] The designated partners shall be answerable for all acts, matters and things as are required to be done by the LLP in respect of compliance of the provisions of the proposed legislation and be liable for penalties for non compliance.

The LLP shall be required to maintain proper books of accounts in the prescribed manner according to the double entry system of accounting at its registered office for the specified period of time. The LLP shall also be required, within a period of six months from the end of each financial year, to prepare a Statement of Account and Solvency for the said financial year, which report is then required to be signed by the designated partners of the LLP. Further, the LLP shall file an annual return duly authenticated with the Registrar within sixty days of closure of its financial year. Certain penal provisions have also been provided by the Act for the contravention of the Provisions pertaining to financial disclosures.

ADVANTAGES OF LIMITED LIABILITY PARTNERSHIP

In a nutshell, the Limited Liability Partnership has the following advantages:

·         It provides limited liability to its partners. Though personal Liability arises in case of wrongful acts or omissions, a partner is not personally liable for such acts or omissions of other partner.

·         LLP Business Structure also has the advantage of Internal Flexibility. As in traditional partnership, the internal structure of LLP can be organized as per mutual agreement.

·         The requirements as to Board Meetings, Resolutions, Annual meetings, etc. are not there in case of LLP. There is less paperwork in case of LLPs, even the formation of a partnership agreement is not mandatory; the Act provides for default provisions in its Schedule I. The filing requirements are also less as compared to a company.

·         Since LLP is a separate legal entity, its existence is not offered by the entry or exit of partners.

CONCLUSION

The passing of the Limited Liability Partnership Act, 2008 is a recognition of the changing needs of the businesses in today’s times. If it is implemented properly, the introduction of the LLP will provide a helpful new option for professional partnerships which are anxious about their exposure to liability. In view of the growth of Indian Service industry in recent times, LLPs would further contribute to the growth of the service industry and a large number of existing companies, public as well as private, are expected to convert into LLPs with a view to have access to the benefits of the LLP. The Government of India has made an endeavour to create a facilitating environment for entrepreneurs, service providers and professionals to meet the global competition; however it needs to be seen how far the change is useful.

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

Most Countries of the World which embarked on the road to economic development had to depend on foreign capital to some extent. But until the early 1990s India’s approach towards foreign capital as an instrument of growth and development in an overall sense was rigid, restrictive and selective. Things, however, changed with the Industrial Policy 1991.Coming on the heels of the macro –economic and balance of payment crisis of late 1980s, it ushered in a paradigm shift in the Indian economy and over bent to cajole foreign capital to come to India. The beginning made by the Industrial Policy 1991 in the direction of inviting foreign capital has increasingly been gaining momentum with new sectors being made eligible, with almost each subsequent year, for foreign capital.

The most important channel through which foreign capital flows into the country is Foreign Direct Investment (FDI). FDI as defined in Dictionary of Economics (Graham Bannock et.al) is “investment in a foreign country through the acquisition of a local company or the establishment there of an operation on a new (Greenfield) site.  International Monetary Organization (IMF) and Organization for Economic Cooperation and Development (OECD) define FDI as  a category of cross border investment made by a resident in one economy (the direct investor) with the objective of establishing a ‘lasting interest’ in an enterprise (the direct investment enterprise) that is resident in an economy other than that of the direct investor. The motive of the direct investor is a strategic long term relationship with the direct investment enterprise to ensure significant degree of influence in the management of the direct investment enterprise .Besides, International Bank for Reconstruction and Development (IBRD) and United Nations Conference on Trade and Development (UNCTAD) also provide definition of Foreign Direct Investment. To put in simple words, FDI refers to capital inflows from abroad that is invested in or to enhance the production capacity of the economy. It is preferred over other source of foreign capital because it is non-volatile, non-debt creating and results in economic development, modernization and employment generation in the economy.

Foreign Direct Investment under the Industrial Policy 1991 and thereafter under different Foreign Trade Policies is being allowed in different sectors of the economy in different proportion under either the Government route or Automatic Route.  In Retailing, presently 51 per cent FDI is allowed in single brand retail through the Government Approval route while 100 per cent FDI is allowed in the cash-and-carry (wholesale) formats under the Automatic route. Under the Government Approval route, proposal for FDI in ‘Single Brand Product Retailing’ are received in the Department of Industrial Policy and Promotion, Ministry of Commerce & Industry. Automatic route dispenses with the need of multiple approvals from Government and/or regulatory agencies (Government of India or the RBI). Investors are required only to notify the concerned Regional offices of RBI within 30 days of receipt of inward remittances and file required documents with that office within 30 days of the issue of shares to foreign investors

The legal regimes that controls FDI in India and to that extent FDI in retailing includes Press Notes by Department of Industrial Policy and Promotion, Foreign Exchange Management Act 1999, Guidelines  of Reserve Bank of India(RBI) and Security and Exchange Board of India, besides, of course, the Constitution of India.

India’s large and ever growing population coupled with a paucity of profitable economic opportunities make “labor intensive” activities like Agriculture and Retailing a major source of subsistence for the teeming millions especially the poor unskilled labor, superfluous labor and the educated unemployed. Therefore, any change that tend to disturb the existing configuration of these two sectors have a bearing on the lives of millions of these people and raises sharp public outcry and to that extent FDI in Agriculture and Retailing has always been a contentious issue. Of late, the Government of India has expressed its desire to bring the Multi-Brand retailing within the ambit of FDI, and in the process has put in train a debate on its possible outcome. This short paper proposes to examine the conflicting view points of this debate so as to arrive at a balanced conclusion.

Retailing in India as also elsewhere in the world is divided into organized and unorganized retailing. Organized retailing refers to trade activities undertaken by the licensed retailers i,e,  those who are registered for sales tax, income tax etc. These include the corporate backed hypermarket, retail chains and also the privately owned large retail business. Unorganized retailing, on the other hand, refers to traditional format of low cost retailing, for example the corner store (kirana i.e. grocery shops),owner manned general stores, Cigarette shops, convenience store, hand cart, pavement vendor etc. Unorganized retailing is the most prolific and visible form of retailing in India while the organized retailing constitutes only a very small percentage (3-4%). The reasons as to why Indian retailing is so fragmented or unorganized in nature lies in her entrenched poverty and the fact that a large number of educated unemployed and superfluous labor takes refuge in retailing in the face of joblessness and glaring poverty. Retailing in unorganized sector is thus not a profit oriented vocation but a mere source of livelihood. Naturally, the capital investment is very low and the infrastructure is rudimentary. It is estimated that less than 4% of Indian retailers have shops larger than 500 square feet. Given this rickety state of Indian unorganized retailing, there are serious apprehensions that the flow of organized foreign capital with its associated baggage of humungous infrastructure, bulging financial power professional managerial staffs etc, would sound the death knell for the Indian retailing industry. As against most Indian retailers’ less than 500 square feet premises, the average size of a store of Wall-mart (American Retailing Giant)   is 85000 square feet and has an average annual turnover of $51 million as opposed to an average Indian retailer’s paltry turnover of Rs.186, 000. Further, it is feared that the international retailing giants will resort to predatory pricing to acquire monopolies. These retailing giants with their sprawling business cutting across different continents and deep pockets will be able to sustain loss till their competitors are wiped out.

As has been mentioned earlier retailing “disguises” the abysmal nature of unemployment in the country. Indian agriculture has long been a source of livelihood for the teeming millions of the country (provides employment to more than 50% of India’s labor force)   so much so that it is massively over-crowded now. Besides, during the lean season even the productive farmer find themselves unemployed. Although the manufacturing is a labor absorbing sector, its true potential has not been harnessed as yet and it has been stagnating since the tenth five year plan. Retailing helps in absorbing these shocks providing safety-net and opportunities to the superfluous labor to eke out a living where all other sectors have not been able to. Critics fear that the inflow of FDI in retailing will restrict the labor absorbing capacity of the retailing sector since the international retailing giants employ labor saving machinery and knowhow both to add value to their service as well as to enhance their profit. And given the fact that the manufacturing is not in a vibrating state to absorb those who are displaced from the retailing by the advent of FDI, the poor and the unemployed will find the going very difficult for them. There will be a hike in the rate of both unemployment and underemployment.

It has also been said that the domestic organized retailing is underdeveloped and in a nascent stage. Therefore, it is important that the domestic retailing sector is allowed to grow and consolidate first before the sector is opened to FDI. FDI in retailing may also widen the rural -urban divide in the sense that most of the retailing centers would be set up in the cities where both the density of population and level of income of the people are high. These retail centers would also attract cheap labor from the rural areas and thereby deplete the hinterland of its workforce. In addition, organized retailing with FDI would result in bevy of buildings and multiplexes. Unless their constructions are regulated, they will also add to the chaotic muddle of urbanscape.

After having expatiated on the possible pitfalls of allowing FDI in retailing, it is also necessary to understand the distinction between appearance and reality. Much of the prognostication of gloom is based on a theoretical understanding of the situation. In reality, the research conducted by the Indian Council for Research on International Economic Relations (ICRIER) has revealed that there is no evidence of overall decline in the employment of the Unorganized retailing sector as a result of the advent of FDI in organized retailing and that the rate of closure of small shops for the same reason is very minimal.

One needs to be holistic in his assessment of the outcome of introducing FDI in Retailing. One of the reasons as to why a vast swath of India’s population is suffering poverty and depravation is that Agricultural sector of the country has not developed appropriately, and the main stumbling block in this regard has been that of inadequate logistics and direct access for farmers to vast markets. FDI in retailing can to a large extent ameliorate these deficiencies. If FDI in front end retailing is allowed, the international retailing giants will be motivated to invest capital, bring in  knowhow and global capacity on a colossal scale and as a result a world class back end infrastructure would be built the like of which may take the government years to make (Though FDI is permitted in backend infrastructure to the extent of 100% through the automatic route, in the absence of FDI in retailing, investment in backend infrastructure has not been so forthcoming) . The foremost beneficiary of such a development would be the farmers, especially those engaged in Horticulture. Though India is the second largest producer of fruits and vegetables, lack of storage facilities cause heavy losses to farmers. Availability of adequate post harvest and cold chain infrastructure would enable the farmers to avoid wastage and distress sales. The retailers would engage the farmers directly through the contract farming programmes as also resort to direct buying from the farmers which will dilute the role of profit siphoning intermediaries, enhance the income of the farmers and give them direct access to markets. The resultant rural prosperity may open up market for other industrial goods and help bring about a more balanced regional development. 

The Medium and Small Enterprise that plays a critical role in country’s overall manufacturing scenario has lagged and suffered due to lack of branding and avenues to reach out to the vast world market. The international retailers can buy from them not only for the domestic market but for their stores outside the country also and in the process provide the small and medium enterprises of the country a brand name and a window to the international market. In fact, it is estimated that FDI in retailing can significantly increase export from the country. If the domestic organized retailers are allowed to grow to the exclusion of FDI, it may bring about other above mentioned developments but not increase the exports.FDI can, in fact, spur competition among the organized retailers. The ultimate beneficiary of these competitions would be the consumers. An example of how the consumer benefit from the competition is the automobile industry in India. The intense competition among the automobile industries has resulted in a situation where the consumer has been able to purchase cars for as low a price as rupees one lakh. CRIER in its research has found that all income groups save through organized retail purchase, but the lower income groups save more. Thus, organized retail is relatively more beneficial to the less well-off consumers.

A growing and mushrooming retail sector means that its contribution to GDP would grow. It would thus help in expanding the economy, generate employment and result in more tax income.      

In the light of all that have been discussed above it can be said without any dispute that the time for allowing FDI in Multi –Brand Retailing has come and as Victor Hugo has said “Nothing can stop an idea whose time has come”. FDI in Retailing started with FDI in cash and carry wholesale trading first permitted in 1997 to the extent of 100% under the Government approval route and thereafter in 2006 brought under the automatic route. In 2006 again FDI in Single Brand Retailing was permitted to the extent of 51%. From here it is but natural and logical that FDI would now proliferate to multi-brand retailing. But the progression to FDI in multi-brand retailing cannot take place at the cost of vital concerns raised in connection with this possible change by different groups; viz, the question of adaptability of the retailers in the unorganized sector, the question as to how the FDI in retailing can be harnessed for the benefits of Indian agriculture and Medium and Small Enterprise and above all how to impart into the economy a degree of resilience to withstand the changes that would be ushered  in the wake of introduction of FDI in retailing. All these concerns have to be addressed not because the Left wing political parties and the media through their campaign have necessitated such attention but because we are constitutionally bound to do so .The Preamble of the Constitution resolves to constitute India into a Sovereign, Socialist, Secular, Democratic, Republic and to secure to all its citizens JUSTICE, social, economic and political …..EQUALITY of status and opportunity. Directive Principles of State Policy similarly exhorts the state to establish just, equitable and fair order. Article 39(c) states that the state should ensure that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. Though both these features are not enforceable, the Executive and the Apex Court in particular have time and again reiterated the sacrosanct nature of these features [ Kesavananda Bharti v.State of Kerala AIR 1973 SC1461,1973(4) SCC225; Minerva Mills v. Union  of India 1980 AIR 1789,1981 SCR(1) 2061]

Unlike FDI in single brand retailing which pertains to brand loyal and a relatively small high income clientele, FDI in multi-brand retailing would have direct impact on a vast spectrum of population and thus a sensitive issue. Left alone foreign capital will seek ways through which it can only multiply itself, and unthinking application of capital for profit, given our peculiar socio-economic conditions, may spell doom and deepen the hiatus between the rich and the poor. Thus the proliferation of foreign capital into multi-brand retailing needs to be anchored in such a way that it results in a win-win situation for India. This can be done by integrating into the rules and regulations for FDI in multi-brand retailing certain inbuilt safety valves. For example FDI in multi –brand retailing can be allowed in a calibrated manner with social safeguards so that the effect of possible labor dislocation can be analyzed and policy fine tuned accordingly. To ensure that the foreign investors make a genuine contribution to the development of infrastructure and logistics, it can be stipulated that a percentage of FDI should be spent towards building up of back end infrastructure, logistics or agro processing units. One of the justifications for introducing FDI in multi-brand retailing is to transform the poverty stricken and stagnating rural sphere into a forward moving and prosperous rural sphere. To actualize this goal it can be stipulated that at least 50% of the jobs in the retail outlet should be reserved for rural youth and that a certain amount of farm produce be procured from the poor farmers. Similarly to develop our small and medium enterprise, it can also be stipulated that a minimum percentage of manufactured products be sourced from the SME sector in India. Public Distribution System is still in many ways the life line of the people living below the poverty line. To ensure that the system is not weakened the government may reserve the right to procure a certain amount of food grains for replenishing the buffer. The government may also put in place an exclusive regulatory framework to protect the interest of small retailers. It will ensure that the retailing giants do resort to predatory pricing or acquire monopolistic tendencies. Besides, the government and RBI need to evolve suitable policies to enable the retailers in the unorganized sector to expand and improve their efficiencies

The Industrial policy 1991 had crafted a trajectory of change whereby every sectors of Indian economy at one point of time or the other would be embraced by liberalization, privatization and globalization.FDI in multi-brand retailing is in that sense a steady progression of that trajectory. But the government has by far cushioned the adverse impact of the change that has ensued in the wake of the implementation of Industrial Policy 1991 through safety nets and social safeguards. But the change that the movement of retailing sector into the FDI regime would bring about will require more involved and informed support from the government. One hopes that the government would stand up to its responsibility, because what is at stake is the stability of the vital pillars of the economy- retailing, agriculture, and manufacturing. In short, the socio economic equilibrium of the entire country.  

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

The mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant.
            Explanation—For the purposes of this clause, salts, esters, ethers, polymorphs, metabolites, pure form, particle size, isomers, mixtures of isomers, complexes, combinations and other derivatives of known substance shall be considered to be the same substance, unless they differ significantly in properties with regard to efficacy".

Above statement doesn't clarify the exact meaning, how it is clearify ??

Redstone Pharmaceuticals was one of India's biggest drug companies.  Unknown to the public, Redstone's main drug, Kilosal, actually used the public as genie pigs.  Kilosal was introduced into the market without being fully tested, and the first few batches were sold in establishments throughout the country, resulting in several women giving birth to children with severe brain damage, including cerebral palsy.  Redstone recalled the drug and tried to hush up the matter.   A young scientist, Subhash Iyer, who discovered that the abnormal births were a result of using Kilosal was planning to publish his findings in an international medical journal.   His paper was almost complete, and he was awaiting certain clarifications sought from Redstone.  Mysteriously, he was found dead a week later. The post mortem report stated that Subhash Iyer had died of cardiac arrest.  Incidentally, the hospital that prepared the post mortem report was Redstone's sister concern.

That was three years ago. Subhash Iyer's death was long forgotten.

Redstone was now defending perhaps the strongest law suit filed against it.  The plaintiff has questioned the manufacturer of Redstone's main drugs, and had incontrovertible evidence in his favor.   Redstone was manufacturing drugs far beyond its authorized capacity, and in a bid to please its shareholders, had blurted out this information in its Annual Report.   Also, the license to manufacturer some of its drugs had expired, and Redstone continued manufacturing and selling them illegally.

Redstone's arch rival, Super Pharma, engaged Advocate Shakeel, the city's most feared trial court lawyer, to launch civil proceedings against Redstone.   Shakeel, a master tactician, advised Super Pharma to stay out of the picture.  Instead, he set up his close friend to purchase a few of Redstone's drugs, gain locus standi, and file a hard hitting suit against Redstone before the City Civil Court, seeking far reaching reliefs including converting the suit into a class action. Needless to say, the plaintiff was just a front for Super Pharma, which was now fighting a proxy battle against Redstone. The plaintiff also sought an interim injunction seeking closure of Redstone, till the disposal of the suit. The interim application was supported with hundreds of documents, statistics, and expert opinions as to why Redstone should be shut immediately in public interest.

Notice was issued to Redstone, and corporate India's largest battle in the pharmaceutical sector was about to unfold before a district judge.

Redstone's management was shaken on reading the contents of the plaint. The company was given 10 days to file a reply. Redstone's Managing Director, Yashraj, immediately contacted Vishal, the city's most renowned corporate lawyer, to defend Redstone. Yashraj was a worried man, because he knew that everything alleged in the plaint was true. Even a day's closure would result in a financial loss of crores of rupees to Redstone. The damage that closure would cause to Redstone's reputation would be immense too.

Super Pharma, through the plaintiff, had already issued a press release. The suit against Redstone hit the headlines in almost all newspapers in the country.

Unknown to Super Pharma's management, they had a traitor working in their administrative department. Their senior accountant was actually Redstone's mole, who regularly leaked Super Pharma's confidential information to Yashraj. Of course he was handsomely rewarded each time. This was how Yashraj learned that the plaintiff was actually a front for Super Pharma. There was nothing on record to show that though.

Vishal used all his ingenuity in preparing objections to the interim application. He conjured up all arguments he could think of, including factual, legal and constitutional arguments. The objections filed made good reading. However, Vishal knew that Shakeel, a brilliant lawyer, would stoop to any level to get an interim order of Redstone's closure. Vishal cautioned Yashraj against taking any chances.

The hearing of the interim application commenced on Monday, post lunch. The Press was keenly following every word that was argued. Shakeel took two days to complete his arguments. Every point he made sounded like a winning argument.  Listening to him, it was hard to imagine how Redstone could escape.

Vishal commenced his arguments on Wednesday, and continued till the court rose for the day.   He commenced with technical arguments, challenging the Plaintiff's locus standi, and how the court fees paid was insufficient in the light of the reliefs sought. The next day, he was to argue on merits.

On Wednesday evening, just after the hearing, Super Pharma's accountant passed on information to Yashraj, which Yashraj had dreaded.  Just last evening, Super Pharma had bought the judge by paying Rs. One Crore to pass orders closing Redstone.

Yashraj spent the whole evening discussing strategies with Vishal. "I don't want my company closed at any cost!" thundered Yashraj.   "I have 85% stake in the company and its share value is over Rs. 1000 in the market. Even a drop of Rs. 100 will erode my net worth by hundreds of crores!"

Vishal was worried too. He had no evidence of Super Pharma "buying" the judge.   He could file an application to recuse the judge, but without evidence, any such move could prove fatal. Challenging any adverse order before the High Court too would prove expensive. Moreover, the judge had a pretty good track record, and his rulings were seldom disturbed by the High Court.

Vishal and Yashraj came up with a plan. If Super Pharma could buy the judge with Rs. one crore, perhaps they could do the same with double the amount!! They had to move fast. Vishal had to complete his arguments the next day.

That Wednesday night was the most tense in Vishal's career. He made some discreet inquiries, established contact with the judge and succeeded in striking a deal. Rs. Two Crores!! Redstone, after all, would not be shut down.

Vishal had to complete his arguments the next day though. As usual, reporters from various media filled up half the court hall. Camera crews were strategically positioned outside the court premises for sound bytes after the hearing. To make a show that the battle was still being bitterly fought, Vishal went through the motions of arguing on merits the whole afternoon. Shakeel, who was sitting opposite, listened to the arguments with disdain. "Say what you want, kid," Shakeel said to himself. "We've looked after this judge really well. Nothing that you say will convince him. The judge's ears are shut to whatever you say. Redstone too will soon be shut."

Vishal concluded his arguments that evening and the matter was reserved for orders on the interim application the next day at 2.30 pm.

On Friday, during the lunch hour, expectations were running high. TV channels were debating about the probable outcome of the hearing. The court hall was packed even though lunch hour had just begun and and pronouncement of the orders was almost an hour away.

Shakeel and Vishal were in the court hall too, seated opposite each other. In order to portray himself as a true intellectual, Shakeel had strategically placed legal commentaries on the table and pretended to be engrossed in reading volume 3 of Seervai's Constitution of India, 4th Edition. A curious reporter even asked him why he had so many books before him when the matter was only for pronouncement of orders. "I need to be prepared for any eventuality." Shakeel boasted. "Perhaps the judge may seek clarifications." As he spoke, there was a nod of approval from others who had gathered there.

Shakeel was only playing to the galleries. He was confident of Redstone's closure being ordered. "One crore should go a long way" he said to himself.

Across the table, Vishal sat smugly, with a half sneer and half snicker on his face. "Show off!" he said to himself, referring to Shakeel. "I just can't wait to see your face when your application is dismissed. Your one crore has gone down the drain, dude. If the judge has any ethics, perhaps he'll return the money to you. Actually, I hope he does not."

On the bench meant for the visitors, Yashraj too sat there pretending to look apprehensive. After all, there were reporters surrounding him and badgering him with questions. Deep within, Yashraj too was feeling smug, knowing that the two crores he had paid would ensure that the judge does not order Redstone's closure.

It was 2.30 pm. Lunch hour was over. "Ooppeeen Cooourt," cried the Bench Clerk, as the judge walked into the court room to take his seat. There was muffled silence in the court room as every one stood up, and remained standing till the judge did his customary "Namaste" and took his chair. Everyone's heart began to beat a bit faster.

A whole minute passed by. The judge was shuffling through the case file, trying to seem oblivious to all the attention focused on him. He closed the file and then spoke.

"Counsels," the judge said, looking first at Shakeel and then turning to Vishal. "We have a problem here. Only yesterday, I learned that my wife has 5000 shares in Redstone. Because of this apparent conflict, I'm afraid I have to recuse myself from the case."

There was deafening silence in the court hall.  Neither Shakeel nor Vishal knew what to say. Yashraj's jaw had dropped. "You scroundrel," he thought. "How can you do this after taking two crores from me? Damn you, you've taken one crore from the other side too."

Shakeel and Vishal too were fuming within. Till now, both had been supremely confident of their success, and had even prepared press statements.

"Do any of you have anything to say?" the judge enquired.

Too stunned to speak, there was silence for a few seconds. Shakeel was the first to stand up and speak. "Err . . . aaah . . . no, your Lordship!! Err . . . we appri . . . err . . . we . . . we . . . appreciate your Lordship's integrity! The matter may be placed before any other judge."

Yashraj, who was watching was even more furious. "Integrity? . . . My left foot," he muttered to himself. "You were supposed to throw out that application, you creep. . . . And these servile idiots call you 'Lordship.' What crap! You are the incarnation of Satan. They should call you 'your Devilship.' Just look at that face of yours! After all, you are only a district court judge!! What audacity! I'm sure you will take the local bus this evening and get off at the Mercedes Benz showroom."

"So be it," said the judge. "I will order that the file be placed before the Chief Judge for further orders. Thank you, gentlemen. Call the next case please. . . ."

As the crowd dispersed from the court hall, both the sides knew they were done in. Both the lawyers had a lot of explaining to do to their clients.

_____________

That evening, at 6 pm, about twenty kilometers from the court premises, the Director of the Spastics Society of India was getting ready to call it a day. Just then, his receptionist called him on the inter-com and informed that he had a visitor.  "Send him in," said the Director.

A middle aged man walked into the Director's office. "Hello, my name is Ashok Iyer," he said. "If you remember, my brother, Subhash Iyer - a scientist, passed away three years ago. That made quite a lot of news those days."

'Oh yes, Mr. Iyer" said the Director. "I do remember.  I'm sorry for your brother. What brings you here? Are you a scientist too?"

"No," said Ashok. "Actually, I am a judge at the civil court. I struck a lottery yesterday.  I've come to donate Rs. 3 crores to the Spastics Society in memory of my brother."

What is your first reaction when you come across a Eunuch or transgender or in Indian context ‘kinnar’, ‘hingra’, or a ‘chakka’?, One runs away from them or at most gives them a handsome amount of money to get rid of them but the impression every citizen of this worthy country carries is that “they are a stigma on the society”. Why are they considered a stigma?,

As they are Unacceptable part of the society because they don’t live like a normal human being or to be precise they don’t have normal sexual orientation, is this impression correct?

A transgender is a normal Human being capable of fulfilling all his duties as a citizen of a country. A normal human baby male or female is always born with both male and female hormones, the exposure which they get lead to decide there feelings as a male or female. A person who has been exposed to more female domination from his tender age develops feelings as a female and starts feeling like one and in his adolescents age wants to fulfill his desire by dressing like a female, carrying the same attitude as a female does, which is very much unacceptable by the society at large. This ill attitude of people towards them forces them to test there gender identity. 

I received an email from one KV Dhanajay, Advocate, Supreme Court of India; the email was not any personal email but was addressed to many addresses including me; initially I thought it was more like a spam communication or an unsolicited invite to join some movement or sell a service or product; but my thought was wrong though my instinct was right; instinct prevailed over thought and I went through the contents and attachment to that email opening through defined links.

I must admit that I was really overwhelmed by the initiative taken by this lawyer Dhanajay. As claimed in his email, to ensure greater transparency in judicial proceedings, he wrote a letter to the Learned Chief Justice, Delhi High Court on 03-Mar-2009 stating that he wish to audio-record judicial proceedings in which he represented one or more of the parties to that proceeding. He also claimed that the said letter was on similar terms as that made to the Learned Chief Justice, Karnataka High Court in the month of September, 08. Six months later, he was told that the High Court of Karnataka is yet to take a decision on that letter. He is contemplating taking legal action/remedy against the Hon’ble Chief Justice of Karnataka High Court, in his administrative capacity, to compel him to allow his request.

The Indian national daily Indian Express has carried a story on this in their Delhi and North Indian editions. According to the newspaper, “a Young lawyer has provoked a new debate on transparency in the judiciary by sending a letter to Delhi High Court Chief Justice A P Shah, seeking permission to “non-intrusively” tape-record court proceedings……………………………………But Dhananjay reasoned in the letter that an audio record of court proceedings, especially interaction between the judge and lawyer, would help his client accurately follow the case. “The recording would be done by a tiny device, which, without any displacement, can capture every sound generated in that specific court room. This device can even be worn inside a pocket of a shirt or a trouser. This device makes no sound or noise whatsoever as its mechanism and operation are electronic.”

I also went through the contents of the said letter written by Dhananjay to the Learned Chief Justice, Delhi High Court, as the same is available on google’s website. By way of the said letter, he has sought a no objection from the Chief Justice to record those judicial proceedings in which he is engaged as the arguing counsel by any party to such judicial proceeding conducted in this Hon’ble Court. If allowed, he proposed to use miniature digital audio recorders being several times smaller than the smallest cell phone in use today. The recording would be done by a tiny device, which, without any displacement, can capture every sound generated in that specific court room. This device can even be worn inside a pocket of a shirt or a trouser. This device makes no sound or noise whatsoever as its mechanism and operation are electronic. The request was made because ordinarily in India audio recording of judicial proceedings is not permissible. The justification extended by the lawyer for the said request is that transcription has become an integral part of judicial proceedings in most parts of the world today and every major democratic institution of the world employs transcription. Appellate Courts in many jurisdictions routinely remand matters back to the lower court and order retrial in the event the previous trial was not captured in an official transcript or if the official transcript is lost or destroyed. And their intermediate and Supreme Courts routinely consult transcripts of precedent proceedings to resolve any substantial question of law. Millions of transcripts of judicial proceedings from various parts of the world are posted on the internet and have fostered immense trust and faith in the integrity of the judicial proceedings that are open for transcription. Further, every judicial proceeding is invariably reconstructed on appeal and the fairness of an appeal is directly determined by the degree of accuracy with which the proceeding below is reconstructed. The absence of a transcription greatly burdens an appellate court with assumptions (about the proceeding below) that may greatly vary from the actual proceeding. A transcript relieves an appellate court of such enormous burden and in doing so, similarly relieves an appellant of burden that is incompatible with the modern era – recording devices are commonplace, transcribing professionals are active in every part of the world and more so in the city of Delhi and its adjuncts, transcribing software mechanically converts audio signals to written word with 99.99 % accuracy (while the balance 0.01% is achieved manually). The lawyers also goes on to state that a party to a judicial proceeding has an inherent right to information about such proceeding and the consequent right to preserve such information. This right is not fully honored as long as a party must reconstruct a judicial proceeding by employing his own memory or that of his counsel. Further, given the possibility of different counsel appearing at different stages of the same judicial proceeding and of different appellate counsel, it becomes absolutely essential that a party’s need for an accurate reconstruction of a judicial proceeding is fully honored. Now let’s go through the contrary view as contained in the Indian Express; one section of the legal fraternity feels that audio recording of court proceedings also carries with it a possibility that information could be manipulated, distorted, or used to embarrass, harass or intimidate parties to court proceedings.

Speaking now for myself, I would certainly support the audio and even video recording; in my assessment it has following advantages –

1. First and foremost, it will improve the discipline and decorum inside the court rooms; cause everybody will be conscious of the fact that they are being recorded;

2. It will improve the standards of practice; each lawyer would try to justify to his or her client about his or her best efforts;

3. Likewise, it will also improve the justice delivery system; cause the Judges would be under scanner;

4. It will improve the judicial mechanism as a whole; cause the data of judicial proceedings in any matter would be readily available for scrutiny by the higher court;

5. It will speed up justice; cause the appellate courts need not hold actual detailed hearings; they can analyze video/audio and if need be circulate questionnaire to the parties;

6. Globally, we are moving towards digitization and electronic management system; everything should be available composite data form;

7. It will cut cost; one could have proceedings viewed through video conferencing mode; the litigants need not attend court proceedings, they could have a password oriented long distance video access to the proceedings;

8. It will certainly bring about transparency in judiciary and legal system as a whole.

I feel that one should always deal with a problem` head on’ and not by `escapism’. Hold the bull by its horns because otherwise you will have no option but to be hit by it. The section of lawyers who are opposing the AV recordings are according to me not opposed to the idea of AV but are either scared of the risk of not being able to control the bull or are not confident enough or want to tame the bull first and then solve the issue; let me advise them that one cannot tame the wild bull. Judicial activism against judicial intoxication; we in India are blessed with a proactive and sensitive judiciary who has by and large upheld the rule of law and sentiments of the society; I am sure that our judiciary will be open to the idea of AV recording of the judicial proceedings; I have full faith in the custodians of law; let us not lose hope. I wish all the very best to the activist lawyers like KV Dhanajay in their initiatives directed towards modernization and transparency.

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

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.

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…

Riaz Sonawala was a successful lawyer. In his mid-forties, he was always impeccably attired, and carried a regal air around him everywhere he went. He was suave, sophisticated, and had a baritone voice which inspired the awe of the people watching him. He was a self made man, lived in a posh locality, and was proud of his latest acquisition, a Rolls Royce – Phantom. His clients included the whos who among politicians, industrialists, and celebrities. Whenever one of them got into any trouble, the chances are that they would contact Riaz. And why not? Riaz always got them out of trouble, often earning a sneer from jealous contemporaries in the profession.

Among the more sensational matters Riaz was handling was the defense of a former senior cabinet minister exposed in a sting operation. The minister had allegedly sought five acres of prime land in an SEZ zone for approving a multinational’s mega investment project in the state. It was rumored that the investment was the largest ever, and would generate 20,000 jobs over the next two years. The minister was caught red handed by a television film crew, posing as representatives of the multinational, when he demanded that five acres of the land allotted to the multinational be transferred to a sham company that he had set up. Following an enquiry, the minister was dropped from the cabinet, and had criminal proceedings instituted against him, which were pending before the I Class Magistrate.

Riaz knew that the entire media was following the story. Trial was over and the judgment reserved. But Riaz was a worried man. Only two days ago, he tried using his most potent “winning formula” to succeed – of sending a generous “gift” to the Magistrate. “Rupees one crore!! He’s probably never seen so much money in his life,” thought Riaz. That was right. The Magistrate had indeed not seen so much money ever – and did not want to. The Magistrate was an honest, unsung hero, who took no nonsense from anyone. He refused the “gift” and shot a letter to the Chief Justice complaining about Riaz. Riaz knew that contempt proceedings would soon be initiated against him. His hollow lawyering skills would soon be exposed and he would stand shamed before the world.

Riaz went to bed that night, praying fervently that the inevitable somehow does not happen. “Oh, God!! Please save me,” he prayed. “I promise to change my ways.”

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

Adit was Riaz’s son. Four years ago, he had completed his schooling in one of the most elite and expensive private schools in the country. Though Adit was an expert in computers and networking, Riaz wanted his son to be a lawyer. Adit obtained admission in a national law school, 600 kilometers away from home. Adit was too happy to join and be away from his parents. It gave him the freedom to be himself. Though not exceptional in academics, Adit had managed to clear three years in law school without major hiccups. It was in his fourth year that troubles began. Unknown to his parents, Adit was depressed. He had a failed affair, rejected by a girl whom he thought the world of. His grades began to fall. He had failed in three courses in the semester, and had to write the repeat exams. If he failed again, he would lose a year. The repeat exams were a week away, and no matter how much Adit tried, he just could not get himself to study. He knew how much clearing the exams meant to his father, and dreaded the thought of losing a year – which now seemed inevitable.

Feeling defeated, lost, and depressed, Adit was now getting desperate. Suddenly a brainwave stuck him. Adit saw light at the end of the tunnel. Bright light!! “Why on earth didn’t I think of it before,” thought Adit – congratulating himself. “I need to be careful, though.”

Adit’s plan was simple and he was confident of its success. Being an expert at computer networking, Adit had also picked up hacking skills. His plan was to hack into his professors’ computers and access the question papers. Once he could “lay his hands” on the question papers, the rest would be easy. Adit set about his task. He needed help though. He decided to contact his good friend from school – Sunil – studying computer networking at a premier engineering college.

While trying to contact Sunil, Adit committed a huge mistake. He emailed Sunil using his law school e-mail id., not knowing that mails were secretly tracked by the law school administrator. The administrator alerted the Examination-in-Charge, and they laid a trap for Adit. They let Adit communicate with Sunil, and once Adit broke into the professors’ computers with Sunil’s remote help, they blew his lid. Adit was trapped, and had nowhere to go. He was summoned by the Director, whom he had to meet tomorrow.

Adit knew that he may now not just lose a year – but may be expelled from law school itself.

Adit went to bed that night, weeping like a kid, dreading what would happen tomorrow. He prayed fervently. “Oh God, get me out of this mess. I promise to study hard, and be honest henceforth. Please don’t let my father know.”

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

Shireen was Riaz’s wife. Her only grouse against her husband was that he worked too hard, and spent little time with her and the family. Shireen led an active social life and was often featured in page 3 gossip columns. She always wore designer clothes and was extremely conscious of her looks and the way she dressed. With her husband making enough money, she never had the necessity to earn. She looked atleast 10 years younger that what she was, and it was becoming an embarrassment for her to tell others that she had a son who was studying to be a lawyer.

Unknown to Riaz, Shireen had grown extremely friendly with one of Riaz’s more prominent clients, Arjun, a successful builder. Arjun was 50, the toast of the construction industry, and had projects in every major city. Riaz had introduced Shireen to Arjun just three months ago, when Shireen was thinking of purchasing a pent-house because she “liked the idea of owning one.” Being a prestigious client, Arjun personally accosted Shireen to his major projects. A divorcee, Arjun took very little time in getting attracted to her. Shireen enjoyed the harmless flirting at first, and was in awe of Arjun as he boasted of his riches. In fact Arjun once flew Shireen to another city in his private jet so that they could see his apartment complex under construction there. They were back in the evening, and Riaz was not even aware of his wife’s trip to another city, eight hundred kilometers away.

For the past two days, Shireen was an extremely worried woman. She was two months pregnant, carrying Arjun’s child. “How could I be so stupid?” moaned Shireen. “Damn it, I have a 20 year old son!” She dreaded thinking of the repercussions this news would have if the press got wind of it. “I have to do something, quick!!”

Shireen confided in her close friend, a Gynecologist working in London. They made a plan. Shireen would go to London on a holiday, and have her pregnancy terminated there. It would be all hush, hush and nobody would know.

Shireen went to bed that night, extremely tense. She prayed. “Oh God, please save me! I promise to be faithful to my husband forever and never meet Arjun again. Save me please!!”

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

Krishna was Riaz’s clerk. Krishna’s father, Prabhu, worked as a Jamedar (Doorkeeper) in the High Court. Prabhu had studied upto class 8, and did not want his son to follow his footsteps. Working at the High Court, Prabhu had seen hundreds of lawyers over the years, and his life’s biggest dream was to see his son be a lawyer too. Nobody in Prabhu’s immediate or extended family had studied beyond high school, but that did not deter Prabhu from egging his son to study law. He sent Krishna to a local government school, where Krishna struggled to pass and scraped through his class 10 exams scoring 41 percent. Krishna opted for the Arts stream and joined a local junior college. Two years later, Prabhu’s joy new bounds when his son passed his pre-university course. Krishna had fared slightly better this time, scoring 46 percent, but that was enough for his dad to be proud of his son.

Studying in a national law school was out of question for Krishna. He did not even attempt their entrance exams. His grades were not good enough to secure admission in the other reputed non national law schools either. Prabhu did not give up. There was nothing that would stop his son from studying law. Prabhu approached a senior judge in the High Court seeking a recommendation for his son’s admission to Krantiveer Rani Kittur Chennama Law College, where the judge was a patron. Having known Prabhu over the years, the judge obliged, and the rest was easy. It did not matter that among the 900 odd law colleges in India, Krantiveer Rani Kittur Chennama Law College ranked perhaps among the bottom 50.

After getting his son enrolled in a law college, Prabhu boasted of his son to the other Jamedars in the High court, who were only too happy for Krishna. All of them pooled in money and bought a gift for Krishna, something that he had never used before. A pair of shining black shoes.

On his part, Krishna did not want to disappoint his dad. His mind was set in completing the law course and fulfilling his father’s dream. After attending classes for the first few days, Krishna however realized that attending college was futile. He learned nothing. Rather, he was taught nothing. That’s when his father again pulled a few strings and got his son to work as a clerk in Riaz’s office. “It does not matter if you are not paid,” Prabhu told his son. “Just work in Saab’s office for five years, and learn all you can. After five years, you will be better than most lawyers entering the profession.”

From then on, every single day, Krishna lived his father’s dream. Within two years, Krishna had become familiar with the court system, and new words like “affidavit,” “caveat,” “injunction,” “bail,” etc. became a part of his everyday vocabulary. He became an expert in the court filing process, and was familiar with registration of documents before the sub-registrar. Because Krishna was sometimes used as a conduit to deliver money on behalf of his senior, he also learnt about the more seamy side of Riaz’s practice. “I’m going to be different,” Krishna always told himself. “I do not want a posh house, or an expensive car.”

As in school, Krishna just about managed to clear his exams, more often than not, securing the bare minimum passing marks. His scores however did not matter. The fact that he passed did. He now had only three more years to go before becoming a lawyer!

Krishna was religious too. He went to bed every night with a simple prayer. “Thank you God, not just for who I am, but also for who I am not.”

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

Do homosexuals belong to the race of humans?

Do they belong to the race of humans? Where in the world are they going to build a dignified life? If they are not the biological male or female, what are they? Homosexuals or LGBTs (lesbian, gay, bisexual, transsexual) as they are called are no new term to be unknown. It is an undenying fact that they too have a body like any other normal human has; they too have a soul and a heart that carries them away to fall for the same sex attraction. It’s the modern-educated society we live in and we all talk about rights, rights about a free life with the Constitution being the guarantor. Yes, we declare to live in a free country; but when we give a keen eye to the cliché of its precincts we are no lesser then in a dungeon. We are trapped in our own freedom with defined restrictions.

The cult in which we are borned and brought up has hardly given us any independence as to the right to choose our own spouse. The Indian society has faith in arranged marriage of a kind which is fixed by the consent of the elders of a family. Such a fashion could be seen prevalent in the rustic sides of the country till date. But the scene has undergone a slight change in the metropolitan cities with the enhancement in each ways as to education and living standards. The matter to be noted in this new advent is “Where the timeworn system restricts whilst choosing ones partner even in the opposite sex marriage, accepting the wedlock of same sex marriage is an irony and a felony to the society”.

When acceptance of the concept is a great taboo to talk about, what will be the outcome when one is under such a commitment? What a life with repeated hounds by the society would be but to succumb his identity to a veiled persona. A body with no identity and a dead soul is a life for them. A regular person like me can only see where they are being ridiculed and later out-casted and sometimes even killed in the name of bare honor. The minority of the masses is where they belong, but minorities also share the same Rule of law and the same roof of government as we. However, it is the vicinity of giving a rightful recognition where they are collected as an ‘unidentified object’. If they had ever been considered as a soulful being, they would have had their rightful rights as a human and as a gender. The query which seems reasonable to be put up is ‘Why not the homosexuals are be recognized as our fellow beings?’

Gay rights are recognized in some parts, but denied and counted as criminal act in many parts of the world community. India is one lagging behind to accepting them and regards them as a taboo to the society. The traditional uproot has still been taking its toll reckoning the aged-old followings. This is the main reason why they fear to tell about their sexual orientation and hesitate to clear their entirety.

Section 377 of the Indian Penal Code criminalizes any non natural sexual relation.  It has been considered as a punishable offence with imprisonment for life, or with imprisonment of either description for term which may extend to ten years, and shall also liable to be fined. In the famous Naz Foundation (India) Trust case, 2009 the Indian law on this aspect has decriminalized homosexuality. The Delhi High Court ruled in this case that treating consensual gay sex as a crime was an infringement of fundamental rights protected by the Constitution.

In the month of February this year (2010), a professor was suspended for having consensual sex with another man in the Aligarh Muslim University. This is the famous University with glorious history and present. The societal strain leaves in most of the cases like this the ultimate choice to meet the fate. He was later found dead in his room.

 Not later after this in March, a gay couple in Manipur publicly declared to get married. Sandip Soibam, the 25 year old groom exchanged ring with Nikhil Hidangmayum, the 28 years old bride knotting their 6 years old courtship. The parents of both the bride and the groom did not attend the wedding clearing that their own family disowns such recognition. But a number of transvestites graced their presence in the wedding blessing the couple indicating that only a transvestite understands another of its kind.

The said marriage between Nikhil and Sandip lasted only a budge. They were pressurized to withdraw their marriage not very later. This is not the first time that a gay marriage has been reported in the small state of Manipur. There are many more unnoticed same sex marriages in this tiny state only. Those marriages took place though not with as many public attention as that of Nikhil and Sandip. Nevertheless they share the same societal pressure which won’t let them live a happy life together, the spite being their own community i.e. we ourselves.

The detractor scrutinizing their lives is not only the public, but from all the spheres of facet. If we see the story angling the issue from law point of view, then there was never a marriage between them. The Delhi High Court order has given legality to consensual sex between same sex adult partners, but never has it been referred that same sex marriage as a part of Naz Foundation Trust case, or a judge-made law in India. Even if the marriage is assumed to be lawful, there is a bar to their union from another edge. The gay couple belongs to the Meitei Community; hence by law the way of solemnization of the marriage was void ab initio.  The Meiteis are governed by the customary marriage laws. There was never a valid wedding between them. They exchanged rings in a way a Christian wedding is being celebrated. It was seen in some of the leading newspapers of India with headline “The Gay Marriage Ended in Divorce”. The question that popped up inside me was that how could a marriage that never happen end up in a divorce?

We (humans) are the race which has the sensibility to think smart, work for good and development. We in all parts of the humankind declare ourselves to be a rational and social animal. This declaration serves only a bare fragment of imagination, and is alike putting up a transparent veil on one’s eyes and knowingly not accepting one’s another self.

The people in the globe have different cultural backgrounds, but this doesn’t make us to be an entirely different entity. As all humans are same every where in the world, why are laws that are being applied to them different from the rest of mankind? Why are homosexuals still unheard of even when their outcry is the same far and wide? Or is it that the experts of the world’s largest democracy deaf and blind?

Non Compliance to Court Orders is a broad day light reality. Even courts have shown inability to monitor implementation of their Orders. In this background I write this blog.

The Plaintiff / Petitioner / Defendant / Respondents / Complainant / Opposite Party may insert a clause in the Prayers- "Judgment debtors shall file an Affidavit of Compliance with a copy being served to the Judgment holder. The non filing of such Affidavit shall be deemed to have the construction of non-compliance to Court Orders, vulnerable to Contempt of the Court”.

Alternatively or simultaneously, the Courts, in all Litigations involving Appellant/ Respondents as Govt/any Public Authority, under Article 226 or 32 or 136 or Otherwise, while passing Orders, interim or final may direct-

"Appellant/Respondents Govt/ Public Authority shall update their website about Court's directions so given and action taken in pursuant thereof; as long as the Appellant's/ Respondent's website doesn't show up details of action taken, non compliance of Court Orders can and should safely be presumed and be alleged." The regular updating of website will secure the monitoring of continuous mandamus.

From,

Sandeep Jalan (advocate)

Janhit Manch,

Kuber Bhuvan,

Bajaj Road,

Vile Parle West,

Mumbai – 400056.

This blog specifically deals with property Agreements that are ordinarily executed between Developers, the Landlord, the Tenant and the members of the Co-operative Housing Societies. 

This blog originated when one of my dear friend Kamal Ladia approached me for studying the Re-development (proposed) agreement that was given to him by the Developer. I said-yaar I am not aware of complex development & property laws. Kamal has already took opinion from one his friend who is a Developer.

Kamal pointed out to me some hidden technical legal meaning, quite different from plain meaning, of one clause in that proposed agreement, and I found myself in utter surprise.

And I thought if one goes by the plain meaning of the clause, he will certainly be cheated. It is impossible to understand the technical legal meaning of that clause unless the man or a lawyer is well versed with those specific laws.


And I thus advised my friend as this-


Set-up your mind what specifically and broadly you seek from the Developer.  Consult with your Solicitor/Advocate to know what you are entitled to under the law.  
Once this is done, record a brief and very to the point “Letter of Offer” to the Developer thru your Solicitor / Advocate. This letter must state in very clear / categorical / unambiguous terms and language what you want from the Developer. The terms may be in the form of Option 1, Option 2 and so on.  This letter shall call upon the Developer to prepare the final Agreement in the context and backdrop of this “Letter of Offer”. This "Letter of Offer" may also be referred to as "Instrument of fundamental / core terms".

This “Letter of Offer” must be produced / manifested in verbatim in the final agreement.


The final agreement must specifically mention that this Agreement is made in pursuant to the “Letter of Offer”. The said Agreement shall also state as what Option, i.e. whether Option 1 or Option 2, the Developer has agreed to. If there is any negotiations with regard to Options, the same may be finalized and a fresh “Letter of Offer” may be prepared, without any options.


The final Agreement shall state that Parties to the Agreement have expressly agreed that all terms and conditions or any Clause of this Agreement which is found to be inconsistent or frustrating or varying or diluting the terms of “Option” so agreed in “Letter of Offer”, expressly or by necessary implication, shall be deemed to have been infected / suffering from / with “undue influence” or misrepresentation or both and not accepted by the Tenant notwithstanding he subscribe his signature to this final Agreement and the Agreement shall be voidable at the option of the tenant.

There must be a clause in the final Agreement to the effect that while interpreting the terms of this Agreement, if there appears to be conflicting meaning between the terms of the “Option” in the Letter of Offer  and terms of this final Agreement, the terms of the Option shall prevail over the terms of agreement.

The terms of the “Option” in Letter of Offer” shall demise only in one situation and that is, if any of the term of the “Option” in “Letter of Offer” is held by competent authority to be manifestly / expressly going against the laws of the land and in that scene the Developer is at liberty not bind by that term.


The efficacy of this approach is uncertain to me and the learned people who routinely deals in these kind of agreements can only offer their views on the same. And I humbly request for the same.
Sandeep Jalan (advocate)
Mumbai.

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?

Human Rights Violation

“It is the obligation of the State to ensure everyone the right to adequate food, education and enjoyment of highest attainable standards of physical and mental health. These rights have to be respected and made available to the citizens by the State”.

- Justice Anand, Former Chairperson, National Human Rights Commission

            Human rights violation have become very common now-a-days. The Newspapers and T.V. tell us that every day and at every moment, somewhat in the world, Human Rights are being violated. Broadly speaking “Human Right” means the right to life, liberty, equality, and the dignity of an individual irrespective of caste, creed or sex. These human rights are natural rights, required to be protected for peaceful existence of a provisions, the violation of these rights is very frequently taking place. The protection and preservation of Human Rights is a great challenge to every country in the world. Cases of violence, murder, torture, rape, child abuse, death due to starvation, death due to dowry, sexual harassment, custodial death have become rampant in the society.

            The Human Rights of the people have been protected by “The Protection of Human Rights Act, 1993”. It has been amended by Protection of Human Rights (Amendment Act, 2006. The Act is passed for the constitution of a National Human Rights Commission (NHRC), State Human Rights Commission in States and Human Rights Courts for the better protection of human rights and for matters connected therewith or incidental thereto.

The National Human Rights Commission (NHRC) has been able to touch the tip of iceberg of the problem of Human Rights violation. But NHRC can’t be blamed, when the entire society is culpable in respect of Human Rights violations in one way when the entire society is culpable in respect of Human Rights violations in one way or the other. It is not possible NHRC to keep vigil on every human being in the country.

            The Former Chairperson of the National Human Rights Commission, Dr. Justice A.S. Anand has emphasized that it is the obligation of the State to ensure everyone the right to adequate food, education and enjoyment of highest attainable standards of physical and mental health. These rights have to be respected and made available to the citizens by the State, said Justice Anand while inaugurating the two-day Capacity Building Workshop on “Economic, Social and Cultural Rights” jointly organized by the National Human Rights Commission and the Indian Institute of Public Administration.

            “India being a signatory to Universal Declaration of Human Rights, International Covenant on Economic, Social and Cultural Rights and other international instruments, is legally as well as morally committed to ensure basic human rights to all its citizens and enact laws accordingly”.

            With every passing year, conviction has grown in the Commission that for right to live with human dignity, it is essential to focus in equal measures on economic, social and cultural rights and civil and political rights. The indivisibility and interrelated nature of these rights is a reality and there is a symbiosis between them. Those in the field must, therefore, ensure that the concern and anxiety, which they show for political and social rights, are also manifested in economic, social and cultural rights as we he said.

            The abject poverty prevailed in the country, denies basic Human Rights to millions of poor in our country. Poverty is the major cause of various Human Rights violation. Child labour, Bonded labour and Illiteracy are various vulnerable points of Human Rights violation. The Human Rights of women are violated from birth to death. Even the female’s right to born is taken away by Sex determination tests, with termination of female foetus. Female infanticide is common in many parts of the country even as on date. Sexual abuse of female children, dowry deaths, flourishing flesh trade, rape case, pitiable conditions of windows living in Vrindawan and Varanasi are some flagrant examples of violations of the fair sex. Ours is male dominated society, where women are being treated as their subordinates. Most of the women in real terms, do not enjoy any rights at all, they are just living first as per wish of their parents and after marriage as per whims of their husband and in the old age, as per convenience of their sons and daughters in-law.

            The NHRC has tried to check the human rights violations in wide range of spheres. The Commission has asked the States and Union Territories in April 2000, to compulsorily video film the post-mortem examination in all cases of custodial deaths. The Commission has asked the State governments to sensitize the police and jail officials. The NHRC also taken up the cases of victimized women in all perspective. It has also recommended that the maintenance allowance for divorced women be increased from Rs. 500 to Rs. 5000 per month. Cases of violation of children’s right, like trafficking in children, imprisonment of juveniles, child marriage, have also taken up by the NHRC. NHRC also taken up cases of rape, death and detention without trials, vehemently.

            The Founding Fathers of the Indian Constitution had a vision of the Indian society, which they wanted to realize through the Constitution. That vision was primarily reflected in the Preamble, the chapters on Fundamental Rights and Directive Principles of State Policy is the product of human rights movement in the country. It is the duty of the State to guarantee what is said in the Constitution. But the shocking evidence that the State is itself the culprit, according to Mr. J.S. Verma, the former chairman of the NHRC. According to a statement made by him on Jan. 15, 2003, just a few days before his demitting the office: “It is often the State which is violator of Human Rights in maximum cases in the country. But the maximum responsibility to protect and safeguard the rights of its citizens also lies with the State”.

            The former Chairperson of the National Human Rights Commission, Dr. Justice A.S. Anand stressed the need for making human rights the focal point of good governance. He called for greater role for National Human Rights Commission in the work of United Nations, its treaty bodies and specialized agencies, stressing the need to further develop cooperation between them. He made these observations while delivering a Statement to the 60^th Session of the Commission on Human Rights at Geneva on 14^th April 2004.

            He emphasized the protection of human rights not only requires vigilance by various agencies but sustained cooperation at regional and international levels.

            No commission or no Police station can police every nook and corner of the country. No NGO, no any other agency can be present everywhere to protect the Human Rights. It is the we people; it is the duty of every civilized person to rise to the occasion. This can be brought about only through general awakening which make everyone understand the eternal values of life and dignity of an individual irrespective of caste, creed or sex. In the words of Swami Vivekananda that the “Self in you is the Self everywhere.”

            “It has always been a mystery to me how men can feel honoured by the humiliation of their fellow beings.”

-         Mahatma Gandhi

Deepesh Mittal
V Year, B.A. LL.B.
New Law College,
Bharati Vidyapeeth University, Pune
Contact No.: 921 441 2554