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Introduction: The Civil Registration System in India goes back to the center of the nineteenth century. In the Independent India; the Parliament enacted the law called Registration of Births and Deaths Act (RBD Act), 1969, which was enforced in most parts of the country in 1970. The Act gives a uniform law to obligatory registration of births and deaths across the nation. However, keeping seeable the diversity of the country, it permits State Governments to formulate rules for its implementation and appointment of assorted functionaries. The implementation of the law is the duty of the State Governments. National Policy: The Government of India is a signatory to the United Nations Convention of the Rights of the Children, 1989 that perceives birth registration as one of the fundamental privileges of a kid. Administration of India is examining the planning of a National Population Register and issue identity cards to the people. The refreshing of the populace register for every one of the birth and death that happens in the nation regular requires a efficient civil registration system that enrolls each birth and death. In any case the Population Register would become obsolete not long after it is readied. Information for these reasons must be accessible from a totally utilitarian Civil Registration System. Subsequently it is in light of a legitimate concern for the individual and the general public to guarantee enlistment every births and deaths. Reasons for Low Level Registrations: Lack of public awareness and no demand for civil registration documents (birth/death certificates) is probably the greatest test and the explanation behind low degrees of registration. Utilization of interchange reports, for example, school leaving certificates, voter’s identity cards, and so on. as verification of date and place of birth is far reaching. Notwithstanding, much of the time such reports are not founded on undeniable realities and depend on unverified data. As levels of registration are low, authorities are hesitant to demand registration reports for various services. This has brought about such an endless loop – low registration is coming about because of absence of interest for registration records while registration archives are not demanded because of low degree of registration. The information in birth and death registers is not linked to other services and programmes. This has resulted in the potential in these data remaining largely unutilized. While inaugurating the National Campaign on Birth Certificates, President Dr. A. P. J. Abdul Kalam stressed the responsibility and need to link the registration to other programs of the state with regard to birth registration. He said, “Children are our greatest wealth. Every child born in the nation should be allowed to blossom. This is the responsibility of the state. To enable us to fulfill this responsibility the first action is identification of the child soon after its birth. This should be correlated to the nutritional programme, immunization programme, pre-education programme, educational programme, healthcare programme leading to the development of an enlightened citizen who will become an asset for national development”. Inadequate budget allocation by state governments for the civil registration service is another reason for low levels of registration. It is antagonistically influenced accessibility of writing material for example adequate structures, and so forth. Manpower for registration work as well as inspection and management, handling of and spread of the information, and so on. Taking into account that the registration work is dealt with by functionaries of different divisions of the legislature alongside the exercises of their area of expertise, it is important that satisfactory consideration is given by those divisions for preparing and labor advancement in a coordinated way. Initiative from Government: The office of the Registrar General, India has taken several steps to vitalize the Registration System and also to generate public awareness regarding registration. Some of the most important steps are given below. 1. National Campaign on Birth Certificates The National Campaign on Birth Certificates is one of the most significant activities that have been ever taken up. This exceptional crusade propelled on 14 November, 2003, (Children's Day) by the President of India has a target of giving birth certificates in a "campaign mode" to all kids less than 10 years in a staged way. The National Campaign was proposed on the grounds that a large portion of the Registrars were not giving Birth Certificates for nothing out of pocket on registration inside 21 days as ordered by the RBD Act. It was felt that non-giving of birth registration was negatively affecting the open's observation on registration as the general population didn't get anything from the framework right away. It was additionally felt that a Government crusade for giving birth certificate would not just assistance clear the excess and create mindfulness among general society, yet would likewise improve the open observation about the administration conveyance instrument of the Government. This would additionally help in improving execution of different projects dealt with by similar field functionaries. 2. Million plus cities The enormous urban communities of the nation represent too much of births as individuals from outside the urban communities utilize the medical facility accessible in that. Taking into account this the working of the civil registration system in the huge urban communities ought to be models for others to follow. In this way there is a need to build up the framework in these urban communities as right on time as could be expected under the circumstances. With this view, the ORGI began an annual conference of the million or more urban communities on civil registration from 2002 wherein the agents of the 27 municipal corporation with populace over one million can trade data, thoughts, and so on. 3. Consultations A National Consultation on Improving Birth Registration was organized in March 2004 as a team with UNICEF. Comparative state level counsels have been proposed and the one for Madhya Pradesh has been finished. Those for Rajasthan, Uttaranchal, Uttar Pradesh and Chhattisgarh are probably going to be organized soon. 4. Birth Registration Advisors With the help from UNICEF, administrations of Birth Registration Advisors were given to around 150 areas to sharpening the civil registration machinery about their obligation under the Act and assist them with smoothing out the registration work. They worked in each region for a month on a normal. Conclusion: Significantly following a range of 50 years of implementation of the provision of this Act the current measurements show enlistment figures as less as 55% of the births and 46% of the deaths. As far as numbers around 26 million births that happen in a year, out of which around 14 million just are enrolled. There is impressive variety in the degree of enrollment over the states in the nation. In the States of Kerala, Goa and Union Territory of Punditry practically all births get enlisted. In Maharashtra, Punjab, Tamil Nadu and West Bengal over 90% of the births are enlisted with Karnataka and Haryana not far behind with around 75 percent of the births getting enrolled. Though just about 20% of the births were being enrolled in Bihar in 1995 and the circumstance has not improved. Indeed, even in states with significant levels of birth registration, demise registration levels fall behind.
Emerging Challenges related to Human Rights in India
Author: Sumit Ghai from The NorthCap University, Content Writer Presently a day in the event that we turn on news channel or look through a news paper, we can see a great deal of event of savagery, including youngster misuse, butcher, grievous exercises and a few activities disregarding human rights. Despite receiving the Universal Declaration Human Rights and unique game plans given to privileges of kid, ladies, incapacitated, wrongdoing keeps on developing easily. What are Human Rights? Human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status. We are all equally entitled to our human rights without discrimination. These rights are all interrelated, interdependent and indivisible. Universal human rights are often expressed and guaranteed by law, in the forms of treaties, customary international law, general principles and other sources of international law. International human rights law lays down obligations of Governments to act in certain ways or to refrain from certain acts, in order to promote and protect human rights and fundamental freedoms of individuals or groups. The regulation of human rights has been profoundly compelling inside worldwide law and worldwide and local establishments. Activities by states and non-legislative associations structure a premise of open strategy around the world. The possibility of human rights proposes that "if the open talk of peacetime worldwide society can be said to have a typical good language, it is that of human rights". “To deny people their human rights is to challenge their very humanity.”- Nelson Mandela Practically regularly there are chilling occurrences of savagery, ethnic cleansing, heinous torture, child abuse, man slaughter and several other human rights violations In spite of the reception of the Universal Declaration Human Rights (1948) and exceptional pledges accommodated the privileges of kids, ladies and handicapped, wrongdoings proceed with unhindered and unabated. The spirit looking through inquiry is... 'Has mankind been surrendered?' In India, different instruments, for example, the National Human Rights Commission, State Human Rights Commissions, and Women's Commissions have been comprised at the Center and in the states, for maintaining human rights purposes. Authoritative shields for example The Constitution of India, which is preeminent a lex (the rule that everyone must follow) and diverse laws, for example, The Human Rights Act, 1997 are in presence yet futile. Human rights infringement is the thing to take care of and the above 'law-requirement' arms stockpiles miss the mark regarding usage. Rights are only specified on paper and subsequently stay a dead letter. Poverty: Poverty is a merciless slave driver; it claims an over the top cost as far as forswearing of essential human rights for example food, cover, garments, training, social insurance and so forth which thusly comprise essential necessities of life. An examination of established and different shields gets relevant to check the adequacy of the law according to the millions who have no other plan of action however the stockpile of equity. Article 21 is the Magna Carta of the Constitution of India. It peruses as follows-No individual will be denied of his life or individual freedom aside from as indicated by method built up by law. It prevents us from getting the fundamental products like food, cover, training, medication, and attire. It is clear to state that the key privileges of life are natural and not given to us by constitution. Without these fundamental rights common and political rights are good for nothing. The individuals who are living underneath the neediness line, has nothing to do with these rights and they are pointless to them. The biggest populace of India hits the hay with no food. 750 million of its kin don't utilize latrines, 510 million have no entrance to fundamental medications, more than 300 million grown-ups without proficiency, and youngsters are experiencing lack of healthy sustenance. Ironically a 50million huge amount of food is squandered each year in the FCI stockrooms. So passing is inescapable for these powerless individuals with no plan of action. This was only a little consequence of neediness. Education: In Unni Krishnan v.State of A.P, the Supreme Court has perceived a major right to training morally justified to life under Article 21. Taking the guide of Articles 41 and 45 it has held that ' each child/resident of this nation has a privilege to free education until he finishes fourteen years old.' It varied from Mohini Jain's case as in the privilege to instruction is dependent upon the restrictions of monetary limit and advancement of the state. Considerably after the Unni Krishnan case improvement in the circumstance has been parsimonious. Thus, the legislature authorized the Constitution (86th Amendment) Act, 2002 by excellence of which Article 21A has been accommodated. It peruses as follows-" The State will give free and mandatory education to all offspring of the age of 6 to 14 years in such way as the state may, by law, decide". There is no implementation for this act. There is no denial from poverty, and thus it only stays as a fundamental right with no implementation. The government have no proper funds for its own educational institutions, hence education is privatizing. Without the infrastructure government schools are getting low attendance, high drop outs, and even 6 decades of independence drop out count is 50% of children are dropouts. Sex is one of the noteworthy differentials of lack of education that is portrayed by a solid patriarchic worth framework. The degree of proficiency is about 64% for males and about 39% for females. Subjugation of Women: In India ladies establish about 50% of our populace. Ladies are denied human rights from the support to the grave. Child murder is wild in specific pieces of the nation where the introduction of a young lady youngster isn't welcome. Almost forty-one percent of the ladies abroad assume a functioning job in the creation procedure. In India the circumstance fails to impress anyone. Sexual maltreatment and tissue exchange are chewing shades of malice, which undermine the presence of ladies as autonomous substances. Dowry is the biggest wrongdoing against ladies. 'Are our girls and sisters available to be purchased? Ladies are for all intents and purposes sold into the marriage advertise. Enormous settlements are as yet requested in any event, when the young lady can enhance the man's salary. In such a milieu, a lady appreciates no rights since she is a lady. Rape is a weapon to oppress ladies. The lady is sheltered no place. Equity highly esteems being ignorant concerning everything except for reality - yet undoubtedly, the realities paint an alternate picture. In the Mathura Case. - The judgment didn't recognize assent and persuasive accommodation. Correspondingly the decisions in Bhanwari Devi and a couple of different cases were unfair and for the charged. In a huge judgment of Vishakha v. Territory of Rajasthan, the Supreme Court set down thorough rules for forestalling lewd behavior of working ladies in their work environment until an enactment is ordered for this reason. Biasness in the law that leads ineffective implementation: Ø As an entire, the procedure of law is one-sided against the person in question. On the off chance that the casualty is a minor, the onus is on the charged to demonstrate his blamelessness. In any case, if the casualty is a significant, it is dependent upon her to demonstrate her charge. Ø Also, in rape cases, except if the lady is inspected restoratively inside 24 hours, it becomes troublesome forensically to demonstrate that assault has happened. Ø The laws also are prejudicial in nature. As indicated by Section 155 (4) of Indian Evidence Act, "When a man is arraigned for assault or an endeavor to violate, it might be demonstrated that the prosecutrix (casualty) was of by and large corrupt character." Ø Section 54 of Indian Evidence Act says, "In criminal procedures (counting assault) the way that the denounced individual has a terrible character is insignificant, except if proof has been given (by him) that he has a decent character, where case it gets significant" Ø Forced dwelling together, attacks and inappropriate behavior is the standard. Equity is once in a while allotted to such casualties who either don't hold up an objection for the dread of a social disgrace. Ø Moreover the charged gets vindicated because of a helpless indictment, antagonistic observers and such. In India the pace of conviction is around 2-3%. Conclusion: According to the whole scenario I can conclude that In India ‘It is the state which is the violator of human rights in most the cases’. There a lot of questions that come in my mind and the people who will read this will give a thought about it that Thousands of widows and elderly people are left to fend for themselves. Insensitivity, non- action and a lack of desire to come forward are responsible factors. 'Do we mean to say that are daughters, mothers, sisters have no rights'? and The children who aren’t able to study due to poverty Do their right to education is hindered due to this one factor i.e., Poverty? So I would ask you and leave it to you people to have a thought on this and think what should we as a one nation INDIA.
Home Buyers are Financial Creditors
Author: Aastha Singh from Chanakya National Law University, Content Writer. A financial creditor is person who provides loan to another person who is in debt and is legally bound to repay as result of legal transfer of funds.The Supreme Court in the case of Pioneer Urban Land and Infrastructure Limited vs. Union of India, upholding the constitutional validity of the Insolvency and Bankruptcy Code (Second Amendment) Act, 2018 (Amendment Act) brought 'real estate allottees' (home buyers) within the meaning of financial creditors. In this context the Court relied on the recommendation made by the Law Committee and highlighted the significance of the contribution of these home-buyers in completing the construction of these flats and apartments. The Court re-affirms that he Amendments of 2018 does not infringe article 14 and 19 of the constitution of India along with article 300-A. As a result the home-buyers can too initiate proceedings on account of default on debt payments on part of the real estate developers. Safeguards and burden of proof Under section 7 of the Insolvency and Bankruptcy code (IBC) allottees of real estate are deemed as financial creditors and Home-buyers can plead change in the management of the developers and initiate insolvency. The amendment act of 2018 gave space to home-buyers to be represented by committee to safeguard their losses in cases of fraudulent acts for the real estate developers. senior Advocate Abhishek Manu Singhvi, argued that it would create a disbalance by giving powers to the home-buyers to initiate malicious suits against real estate developers. However, the bench comprising of comprising Justices RF Nariman, Sanjiv Khanna and Surya Kant rejected their pleas. Furthermore, the ruling may have upheld the law but had “at least read substantial safeguards for non-rogue builders in the IBC to enable them to take substantial and substantive defences and to preclude mischievous and trigger-happy home-buyers who may want to delay or sabotage a project by using the IBC as a threat”, Singhvi said.“This will give a huge arc of protection to builders whose defaults were involuntary or because of external incontrollable factors. Section 5(8)(f) features the funds raised through the allottee to be deemed to have the commercial effect of borrowing. The court repaying on this, held that the contribution of the home-buyers cannot be neglected as their funds and advances acts as capital thus, they are deemed to be financial creditors. However, the home-buyers do not have unprecedented power. A prima facie default case has to be established by the home-buyers and proved wherein it is seen that the default is related to amounts due and payable to allottee. Once the case is established it is the burden on the real estate developers to prove the accusation charges wrong. The developers have the defence to prove the lack of intention on part of the buyer to actually take the possession of the property and wrongdoer itself. The Court further pointed out that the developers have the freedom to bring the attention of NCLT that the CIRP has been invoked maliciously and on fraudulent charges to check the frivolous accusation of the financial creditors i.e the Home-buyers on account of illustrations mentioned in section 65 of the IBC. The Supreme Court has held the IBC as a beneficial legislation that can be invoked by unsecure financial creditors. For the expeditors disposal of the cases the court also directed the government to provide adequate and required infrastructure to be established and appoint Adjudicatory officers and request authority in order to deal with the suits and appeal thereof. In essence, the judgment re-affirms the rights of home buyers as financial creditors under the IBC. This might prove to be a genuine safeguards to the innocent home-buyers however, its validity is to be tested in the long run. See Section 5(7) of the IBC
Judgment dated August 09, 2019 in Writ Petition(s)(Civil) No. 43/2019
Report dated March 26, 2018 of Insolvency Law Committee chaired by ShriInjetiSrinivas
Doctrine of Competence-competence
Author: Srishti Sharma from IIMT ans School of Law, GGSIPU, Content Writer. Introduction The doctrine of competence-competence expresses that the Arbitral Tribunal has the purview to decide the extension and ambit of its own forces, i.e., the council has the "skill" to choose its own "ability". In Kvaerner Cementation India Ltd. v Bajranglal Agarwal, the solicitor had documented a suit in the common court for an affirmation that there was no mediation proviso between the gatherings and that the assertion procedures that were continuous were without locale. The common court had conceded between time help which was later abandoned. The Sigle Judge of the Bombay High Court would not meddle with the request for the common court emptying the between time request in light of the fact that as far as Section 5 read with Section 16 of the Arbitration and Conciliation Act, ("1996 Act"), the Tribunal has the purview to control on its own locale and the common court can't pass a directive against arbitral procedures. The court found that it was clear from Section 16 that the topic of the legitimacy of the mediation arrangement could be taken up before the Arbitral Tribunal itself whose choice could be attacked under Section 34 by a gathering abused by the Arbitral Tribunal's choice. The candidate was, thusly, at freedom to bring up the issue before the Arbitral Tribunal itself and the Arbitral Tribunal may arrange the issue as a primer issue. Position under the Arbitration and Conciliation Act, 1940 Under the 1940 Act, an Arbitral Tribunal had no capacity to decide if an issue brought before it for mediation could appropriately be introduced, nor would it be able to decide if a substantial assertion understanding existed from which the Arbitral Tribunal's ward emerged. Under Section 33 of the 1940 Act, this should be possible by the courts alone. The Arbitral Tribunal couldn't be viewed as having the option to choose its own locale; it was impractical for the Arbitral Tribunal to sit upon an issue that may have influenced its own reality and forces. Importance of the doctrine of competence-competence Segment 16 of the 1996 Act contains the regulation of capability fitness. The significance of Section 16 in the plan of the 1996 Act is central as it exhibits the faith that is rested in the authority of the Arbitral Tribunal. The council by method of Section 16 has put bountiful trust and dependence on the capacity of the Arbitral Tribunal to do equity even where their choices may influence their own reality. Another motivation behind why Section 16 has been acquainted is with guarantee quickness in procedures permitting the court to manage jurisdictional inquiries, which are commonly treated as primer issues. The standard contained in Section 16 is a focal principle and must be remembered with the end goal of the translation of any of the arrangements of the 1996 Act. Area 16 shows that the lawmaking body accepts that the Arbitral Tribunal can be endowed with issues that are as grave as their own ward. Concept of Jurisdiction Section 16 permits a council to decide the degree and presence of its ward – subsequently, the idea of "purview" is a significant factor in the current conversation. The expression "locale" signifies force or capacity of a power to do equity by mediating and deciding the rights and liabilities of the gatherings who show up before them. The degree of locale is the cutoff points or limits of that power. The topic of presence of purview further incorporates the legitimacy of the source from where the force is determined. For example, the Indian legal executive gets its forces from the Constitution of India. The Constitution is hence the wellspring of the legal executive's capacity. The elements of the legal executive and the capacity of the legal executive to act the manner in which it does are borne from the Constitution. The constraints of the purview of any courtroom is resolved on the basis of 3 central point – 1. The estimation of the suit brought under the steady gaze of the court or the estimation of the topic of the suit (monetary purview) 2. The physical furthest reaches of the region inside which the court may practice its forces (regional locale) 3. The sorts of topic in debate identifying with which the courts can settle (topic purview). For example, the first affable aspect of the Bombay High Court has financial locale over cases esteemed at over one crore rupees, its regional purview reaches out to the furthest reaches of Bombay city and it has topic ward over all thoughtful procedures which are not expelled by the resolution. The Arbitral Tribunal's purview Essentially, arbitral council shaves their own source and degree of ward. An arbitral court gets its forces from the intervention arrangement or the discretion provision that is finished up between the gatherings. The arrangement will diagram who the gatherings are and what debates might be submitted to the council. The degree of locale of the court is reliant on 3 elements – 1. The topic of the question set before it 2. The gatherings who look for help from the council 3. The kind of help looked for by the gatherings from the council. Scope of enquiry An Arbitral Tribunal's extent of enquiry with respect to assurance of its ward is exceptionally wide. The court may lead on the very establishment of its command and force. The enquiry need not be limited to the width of its ward however reach out to the legitimacy or wellspring of its purview too. Three significant inquiries might be posed by the Tribunal while deciding the degree and legitimacy of its jurisdiction – 1. Is the intervention understanding under which the council was comprised substantial? 2. Has the council been comprised truly according to the conditions of the intervention arrangement? 3. What are the issues or questions that are accurately eluded to the council for locale? In the event that the initial two inquiries are addressed emphatically, and it is discovered that the issue alluded to the court falls inside the ambit of the debates that might be truly alluded to the council, at that point the court might be said to have ward. Assuming, nonetheless, both of the initial two inquiries are replied in the negative, at that point the court must find that it doesn't have ward and excuse the assertion procedures before it. Time before which such a supplication must be taken Area 16 places a breaking point on the time after which involved with the intervention procedures may make a supplication before the court claiming that the council has no ward. Segment 16(2) states that such a request will not be raised after the accommodation of the announcement of guard. A supplication claiming that the council has surpassed the extent of its power must be raised when the issue asserted to be past the court's extent of ward is raised during the procedures. The Supreme Court explained in Olympus Superstructure Pvt. Ltd. v Meena Vijay Khetan that the utilization of the words "when" and "no later than" in the arrangement show that such a supplication must be taken immediately. Nonetheless, the Tribunal is equipped to concede a supplication as referenced above in the event that it thinks about that the purpose behind the deferral in presenting a request is advocated. The Arbitral Tribunal will itself consider the contentions put before it with respect to locale. I fit finds that the contentions are unconfirmed; it might dismiss the supplication and precede with the arbitral procedures to make an arbitral honor. Any gathering bothered by such an honor will have response against it under Section 34 of the 1996 Act. Who may make a supplication under Section 16? A gathering who has taken an interest in the arrangement of the judge concerned or in the constitution f the arbitral council may likewise introduce a test to the court's ward it might so happen that a debate having emerged, the petitioner moved toward the court for mediation thereof by method of a suit. The respondent to the suit brings an application under the watchful eye of the court expressing that since a mediation understanding exists between the gatherings, the contest must be first alluded to intervention. The petitioner at that point contends that the questions looked to be alluded are inside the extent of the intervention arrangement; the assertion understanding allegedly exists. The court says that any examination concerning the extent of the questions will be finished by the council itself under Section 16. The court in this manner guides the gatherings to discretion. The inquirer, according to the guidelines of the court, partakes in the arrangement of a mediator according to the intervention understanding. When the council is comprised, the petitioner at that point places before them the request that the concerned questions can't be alluded to intervention. It can't be said that the gathering isn't permitted to present such a supplication only in light of the fact that he encouraged the arrangement of the judge. It might likewise be noticed that Section 16 doesn't make it basic that the application be put by one of the gatherings testing the court's purview before the council can think about the subject of its capability. The council may suomotu investigate its capability and in the event that it finds that there is some imperfection, at that point it can end the procedures.
The Rising Trends in NBFC’s
Author: Sumit Ghai from The NorthCap University, Content Writer Non-banking Financial companies ("NBFC") have gone through huge change in the course of recent years. Advancement of the lawful system, expanding digitization and rising monetary incorporation have given a lift to development, development and interest in the budgetary area. Administrative changes A year ago, the administration changed the monetary administrations area by allowing 100% unfamiliar direct interest in the budgetary area under the programmed course, subject to the pertinent element being managed by the Reserve Bank of India ("RBI") or other money related area controllers. Further, the advantage of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 was reached out to 196 NBFCs permitting such NBFCs to authorize security interests on resources charged to them, without depending on either legal or arbitral specialists. Presently, the legislature is running after fitting the guidelines material to different classes of NBFCs to encourage simplicity of-working together in this area. The legislature is likewise taking activities towards an innovative upheaval in this area by executing a data innovation structure and advancing FinTech exercises. Operational development and development With the rising development and development in the area, more up to date plans of action of NBFCs, for example, 'account aggregators' and 'distributed loaning stages' ("P2P Lending") are getting pace. To explain, account aggregator is a type of NBFC occupied with gathering and giving data on a client's monetary resources, in a united, sorted out and retrievable way. Further, P2P Lending is a type of group financing which utilizes an online stage to coordinate banks with borrowers to give unstable advances. RBI told P2P Lending stages as NBFCs on 24 August 2017 and as of late gave the Master Directions to manage the P2P Lending stages on 4 October 2017. The NBFC area is likewise observing a flood of more up to date organized items like Market and Credit Linked Debentures wherein the primary venture of the debenture holder is secured and the premium installment, to be made at development, is connected to the presentation of a hidden Index or a stock. Changed venture techniques Throughout the long term, NBFC area has seen different venture structures going from key speculations, private value ventures to obligation financing through NBFC course (counting private value reserves setting up their NBFC arms). Key speculations give monetary and working cooperative energy and help NBFCs tap new business sectors and give ability in tasks. Nonetheless, private value ventures give capital implantation which can be used for development purposes, encourage innovation upgradation and furthermore help in improving corporate administration of NBFCs. Obligation financing through NBFCs is another venture procedure whereby unfamiliar speculators set up or obtain NBFCs in India and utilize such NBFCs to additionally loan or put resources into Indian organizations through organized instruments, for example, non-convertible debentures (which have a preferred position of secured disadvantage and value potential gain by method of recovery premium or coupons). While, various ventures have been organized in such a way, there are disparate perspectives in the market with respect to whether such speculations through organized instruments could be dependent upon any issues from the unfamiliar direct speculation strategy viewpoint. Expanded market movement with more enlistments, endorsements and postings In 2016, RBI presented a most optimized plan of attack enrollment cycle and two classifications of utilizations relying upon acknowledgment of public assets and client interface. This most optimized plan of attack measure expanded action in the area as enlistment of new NBFCs. Furthermore, the quantity of endorsements allowed for unfamiliar interest in contributing organizations and the quantity of NBFC postings with the stock trades have additionally expanded considerably. The area has additionally seen an enormous number of pioneering activities and triumphs, generally focusing on mid to lower part of-the-pyramid clients. Area to pay special mind to The administration strategy of demonetization went about as an impediment for the sloppy area and prompted habitual budgetary consideration. The administrative changes pointed towards advancing unfamiliar venture additionally gave a lift to the money related area. This area has advanced fundamentally in the previous scarcely any years and the development of money related incorporation is required to be driven further with higher infiltration into parts of the economy where public-area banks can't enter. Trends in NBFC model that makes it next generation: i. Partnership with Fintech Companies: Ø The joint effort of NBFC's with Fintech new businesses makes a success win circumstance for both the gatherings. Since it supports the loaning capacities of NBFC's and gives a serious edge to Fintech amateur. The advantages that NBFC's gather by helping out Fintech players are as per the following: Ø Creating new item contributions: NBFC improve new items by utilizing innovation based instruments of Fintech. The organization of NBFC's and Fintech assists with dispatching new item contributions, for example, POS Financing, Invoice Financing, Consumer Durable Loans, Payday Loans and that's only the tip of the iceberg. Ø Fortify computerized business activity: Non-Banking Financial Companies get an admittance to the serious strategies by joining with a Fintech Company. It urges NBFC to supplant the current manual cycle with paper-less computerized strategies. Subsequently, advanced on boarding and confirmation have diminished the operational expense. Ø Higher profitability Fintech has smoothed out the interior and outer elements of NBFC. Thus, urge NBFC's to redo their back-office exercises, bringing about expanded efficiency. ii. Video KYC: Ø Video KYC will before long be an outstanding pattern in NBFC Business Model. Since a few extortion personality cases were accounted for in the monetary domain, it requires another activity. By and by, the budgetary foundations check the client's personality through archives and mark on the structures. Nonetheless, this technique is demonstrated to be perilous rather than validating the live advanced impressions. Ø The business tries to eliminate fraud cases through various advanced video KYC checks. In the technique for Video KYC, the financial specialists will need to transfer their character verifications like location confirmation, PAN Card, photo and marks through Mobile Application or site. Once, the speculators transfer all the archives, they have to begin ongoing video recording by utilizing the front camera of their cell phone and show a printed version of each report for in any event 10 seconds. iii. Automation: Ø NBFC can saddle robotization to accelerate the loaning methodology by foreordaining certain means to handle a Loan Application. Robotization can acquire revolutionary changes the working of Non-Banking Financial Companies. iv. Alternative Credit Scoring: Ø NBFC will receive elective credit scoring dependent on non-budgetary information, the same number of residents of India actually don't have sufficient money related impression information. The new-age stages, for example, ATMs, Mobile Banking, Social Media, Smartphones, Internet Banking leave the impressions of exchanges all over the place. Accordingly, NBFC can use the information of such exchanges to check the FICO assessment. v. Pro active Risk detection: Ø NBFC must create hazard the board structures to favorable to effectively oversee, distinguish and moderate any kinds of interior or outer dangers. The non-banking budgetary moneylenders ought to secure against data spills. On the off chance that NBFC doesn't make any thorough move, at that point it can possibly undermine the client's money related security and stain the moneylender's picture. Along these lines, the NBFC moneylenders need to intermittently survey IT controls which are capable to keep up data trustworthiness. Conclusion: The rising client desires and acceleration of digitalization has instigated the current NBFC to change their tasks and grasp the most recent patterns. The tech-driven arrangement will strengthen the NBFC business structure and assists with achieving a high achievement rate. Read More.....
CORPORATE FRAUDS IN INDIA
Author: Komal Verma from Fairfield Institute of Management and Technology INTRODUCTION Corporate Crime is being increasing with the change in the decade, the reason behind this enormous increase behind this is found in the fast developing countries and industrial growth in the developing countries. The fast growth of industries and the technologies is the reason behind this crime. One of the major havoc that has been found in recent times is disappearing of companies. Out of 5651 companies listed in BOMBAY STOCK EXCHANGE, 2750 has been vanished. It means that one out of two companies that comes to the stock exchange to raise crores from the investors and then run away. We have SEBI, RBI and Department of Companies Affairs to monitor the stock exchange but none has documented the whereabouts of these 2750 odd companies suspended. WHAT ARE THE CAUSES? A corporate fraud occurs when a company or an entity deliberately changes and conceals sensitive information which then apparently makes it look healthier. Companies adopt various modus-operandi to commit such corporate frauds, which may include miss-information in the prospectus, manipulation of accounting records, debt hiding etc. The aspect of falsification of financial information includes false accounting entries, false trades for inflation of profits, disclosure of price sensitive information which comes under the ambit of insider trading and showing false transactions which result in attracting more investors and lenders for funding. There can be several reasons cited for which companies commit such frauds like making more falsified money, creating a false image of the company for the market scenario and misguiding Governmental authorities for tax evasion. In India, the Commission on 'Prevention of Corruption', in its report, observed, "The advancement of technological and scientific development is contributing to the emergence of mass society with a large rank in file and a small controlling elite, encouraging the growth of monopolies, the rise of a managerial class and intricate institutional mechanisms. There is a necessity for a strict adherence to high standards of ethical behaviour for even the honest functioning of the new social, political and economic processes. The report of the Vivian Bose Commission inquiring into the affairs of the Dalmia Jain group of companies in 1963, highlighted as to how the big industries indulge in frauds, falsification of accounts and record tampering for personal gains and tax evasion etc. The first successful trial of a financial scandal in independent India was the Mundhra Scam, in which Hon'ble Justice M.C. Chagla made certain critical observations about the big business magnate Mundhra who wanted to build an industrial empire entirely out of dubious means. CORPORATE FRAUD UNDER COMPANIES ACT, 2013 The Companies Act, 2013, is the legislation which focusses on issues related to corporate frauds. Fraud in relation to affairs of a company or any corporate body as defined in S.447 of the Companies Act 2013, includes any act, omission, concealment of any fact or abuse of position committed by any person or any other person with the connivance in any manner, with intent to deceive, to gain undue advantage from, or to injure the interests of the company or its shareholders or its creditors or any other person, whether or not there is any wrongful gain or wrongful loss. In order to amount to Fraud, an act must be confined to acts committed by a party to contract with an intention to deceive another party or his agent or to induce him to enter into a contract. Fraud, which vitiates the contract, must have a nexus with the acts of the parties entering into the contract. This definition highlights the precondition to prove the intention of the person who has committed fraud. If that person has willingly committed a fraud, then he will be punished. Here the person means himself or his agent. The acts which include fraud are wrong suggestions or concealment of facts or false promises or any fraudulent act to deceive others. PUNISHMENT FOR FRAUD (S.447) Any person who is found guilty of fraud shall be punishable with imprisonment for a term which shall not be less than six (06) months but which may extend to ten (10) years and shall also be liable to fine which shall not be less than the amount involved in the fraud, but which may extend to three (03) times the amount involved in the fraud. Where the fraud in question involves public interest, the term of imprisonment shall not be less than three (03) years. TYPES OF FRAUD: There are many types of frauds like Fraudulent Financial Statements, Employee Fraud, Vendor Fraud, Customer Fraud, Investment Scams, Bankruptcy frauds and miscellaneous. Some of the common types of frauds are: Financial frauds - Manipulation, falsification, alteration of accounting records, misrepresentation or intentional omission of amounts, misapplication of accounting principles, intentionally false, misleading or omitted disclosures. Misappropriation of Assets - Theft of tangible assets by internal or external parties, sale of proprietary information, causing improper payments. Corruption - making or receiving improper payments, offering bribes to public or private officials, receiving bribes, kickbacks or other payments, aiding and abetting fraud by others. Though it may be conducted in a variety of ways, corporate fraud frequently is performed by taking advantage of confidential information or access to sensitive assets and then leveraging those assets for gain. The fraud is often hidden behind legitimate business practices or exchanges to disguise the illicit activity. Multiple stakeholders involved in corporate fraud also allows for elaborate fraud schemes to be protected by a group of complicit actors.Other forms of corporate fraud may aim to disguise or misrepresent a service or product the company is developing or has in service, hiding its flaws or defects. Rather than investing in repairing, refurbishing, or redesigning the product, those responsible for the product attempt to deflect or disguise these issues. This might be done if the department or company does not have the finances to correct the problem or if revealing the issue might drive away customers and investors. If a company or individual claims it is putting some of its funds towards investments or other types of monetary reserves that are intended to gain in value, but in actuality, those funds have been expended or diverted elsewhere, this counts as a type of corporate fraud. CORPORATE FRAUD: FAMOUS CASES East Indian Company The East India Company was a Crown chartered trading company. It was owned privately but had a mandate to benefit the British State commercially and politically. First and foremost, the EIC was an agent of the Crown. It was first Multinational Corporation in the world that pursued investment opportunities as well as territorial power. EIC employees based in India sought commercial profits for themselves, the Crown, and East India House; while they acquired Indian Territory aggressively on behalf of the Empire. In late 1700s Edmund Burke had Robert Clive, (the founder of the empire) and Warren Hastings, (India’s Governor General), brought up on impeachment charges laden with corruption issues. Though the trail failed to convict anybody. To achieve all of these ends, the EIC’s corporate conduct was inconsistent. Sometimes, the Company complied with ethical practice in safety and financial matters. At other times it readily engaged in economic theft and bribes, or breached civil liberties and human rights. The concept of corporate social responsibility was secondary to its interests. The company was subsequently wound up under East India Company Stock Redemption Act. Mundhra Scam- First Scam of Independent India Haridas Mundhra, an industrialist and stock speculator sold fictitious shares to Life Insurance Corporation (LIC) and thereby defrauding LIC by 125 crores. Mr Jawaharlal Nehru, (the then Prime Minister), set up a one-man commission headed by Justice Chagla to Investigate. Justice Chagla concluded the matter and Haridas was found guilty and was sentenced to imprisonment of 22 years and T.T. Krishnamachari, the then Finance Minister, resigned from his position. Enron Scam Enron scandal, publicized in October 2001, eventually lead to the bankruptcy of the Enron Corporation, an American energy company based in Houston, Texas and De-Facto dissolution of Arthur Andersen. · In February 2000, Fortune Magazine Chooses Enron as its “Best Managed and Most Innovative Company”. · August 2000: Stock at $73 Billion. · March 2001: Financial Year 2000 revenues at $100 Billion. · September 16, 2001: Enron buys more shares. · October 2001: Enron pays its regular Dividend. · October 16, 2001: 3rd quarter loss was shown as $618 million and further made deduction of $1.2 billion in equity shares. · October 31, 2001: SEC upgrades inquiry into a formal investigation. · December 2, 2001: Enron files for Bankruptcy. Result of this was 4,000 employees were fired, 20,000 workers loses their jobs and $73 billion was lost in the stock value. Reason behind Enron Fiasco: Enron Senior Management used complex and murky accounting schemes, · To reduce Enron’s tax payments. · To Inflate Enron’s income and profits. · To inflate Enron’s stock Price and credit rating. · To hide losses in off-balance-sheet subsidiaries. · To engineer off-balance-sheet scheme to funnel money to themselves, friends and family. · To fraudulently misrepresent Enron’s financial condition in public report. Satyam – Enron of India Satyam Scam, 2009: Satyam was the biggest scam in the history of India. The Satyam scam of 2009 has shatter the peace and tranquillity of investors in the share market. The chairman Ramalinga Raju has manipulated the financial statement and the books of accounts. Satyam’s books of account shows: · Over stated Assets of Rs. 490 crores. · Fake cash balance over Rs. 5000 crores in the balance sheet. · Interest component of Rs. 376 crores which never flowed into the company’s coffers. · Understated Liabilities of Rs. 1,230 crores. He has also inflated with revenues and net profit figures of the company, with which he was charged with heavy penalty. Harshad Mehta Scam Case The Harshad Mehta Scam shocked the entire economy of India. He fooled many investors by taking advantage of the loopholes of the system. Scandal details: · Harshad Mehta obtained fake Bank receipts from small Banks. · The said Bank Receipts were further passed on to other banks as security to obtain cash. · This money was used to drive up the prices of stocks in the stock market. · Bubble of stock market manipulation and fake bank receipts busted. · Drastically impacted the stock market, economy and progress of the country. · Banking system was swindled was swindled of a whopping of Rs. 5000 crores. · Even, the chairman of one of the bank committed suicide. Sahara vs. SEBI: It was a case of issuing misleading information and clause in prospectus of company. · In this case, Sahara India Real Estate Corporation Limited (SIRECL) and Sahara Housing Investment Corporation Limited (SHICL) floated an issue of option of fully convertible debenture (OFCD’s) to more than million investors and termed their issued debenture as private placement, with a defence that the company did not intend to get their OFCD’s listed because the security which have been issued is a Hybrid Security. · During this period, the company had total collection of over Rs. 17,656 crore. This amount was collected from 30 million of investors. · The Hon’ble Supreme Court on 31st august, 2012 in one of the most anticipated judgment of recent times has directed the Sahara Group and its two group companies SIRECL and SHICL to refund around Rs. 17,400 crore to their investors within 3 months. · Supreme Court also ruled that SEBI has myriad powers to invest listed and unlisted companies functioning regarding the issue of securities in order to secure the interest of investors. This was the landmark judgment in the field of Indian corporate Law. Conclusion Government of India has taken many steps to prevent this type of Crime in India. There are certain mechanisms that have been cited by the Government of India by which the frauds can be prevented under the Companies Act, 2013.Further, Central Government can also order investigation into the affairs of a company and on the receipt of the report of the registrar or the inspector. Read More........
EXTREMISM and TERRORISM – LINKED?
Author: Sumit Ghai from The NorthCap University, Content Writer INTRODUCTION: Extremism: Extremism is "the quality or condition of being extraordinary" or "the backing of outrageous measures or views". The term is fundamentally utilized in a political or strict sense, to allude to a philosophy that is thought of (by the speaker or by some inferred shared social agreement) to be far external the standard mentalities of society. It can likewise be utilized in a monetary setting. The term is normally intended to be disparaging. Be that as it may, it might likewise be utilized in a more scholarly, absolutely engaging, non-censuring sense. Radicals sees are regularly diverged from those of conservatives. In Western nations for instance, in contemporary talk on Islam or on Islamic political developments, the differentiation among fanatic and moderate Muslims is usually stressed. Political plans apparent as radical regularly incorporate those from the extreme left legislative issues or extreme right governmental issues just as radicalism, traditionalism, fundamentalism and obsession. Terrorism: Psychological warfare is a sort of political viciousness that incorporates the deliberate focusing of noncombatants and recognizes the immediate casualties and crowd that you need to influence. Along these lines, psychological warfare, as I characterize it, has three key components: political viciousness, or a brutal activity done to share a specific political message; the deliberate focusing of noncombatants; and a bifocal nature, where you assault one gathering to threaten another gathering. How are these two terms related? In my view, there isn't a ton of cover among fanaticism and illegal intimidation. Where there is some cover is the point at which you inspect the philosophy and brain research of psychological oppressors. Clearly, when you talk about illegal intimidation, you talk about the fear monger and why an individual would submit this sort of act. Verifiably, demonstrations of psychological oppression have been related with fanaticism since they include the direct focusing of noncombatants. People may consider illegal intimidation to be the main path advance thus acknowledge the slaughtering of regular folks. This might be on the grounds that they hold an outrageous view, be it their perspectives on self-assurance, religion or something else, however this doesn't need to be the situation. For instance I will tell you about the recent case related to this i.e. French instructor who had as of late indicated understudies depiction of the Prophet Mohammed was executed external his school on Friday, in what President Emmanuel Macron called an "Islamist psychological oppressor assault”. The aggressor, whose personality has not been set up, was shot by police as they attempted to capture him and later kicked the bucket of his wounds, police said. France has seen a rush of Islamist brutality since the 2015 dread assaults on the ironical magazine Charlie Hebdo and a Jewish market in the capital. French enemy of dread investigators said they were regarding the attack as "a homicide connected to a fear based oppressor association". The assault occurred on the edges of Paris at around 5:00 p.m. (1500 GMT) close to the center school where the instructor worked in Conflans Saint-Honorine, a northwestern suburb around 30 kilometers from the focal point of the French capital. The executing bore the signs of "an Islamist fear based oppressor assault", Mr. Macron said as he visited the scene. Noticeably moved, the President said that "the whole country" stood prepared to shield instructors and that "obscurantism won't win" , according to me this is tough to say that is this extremism or terrorism ,but according to me it has both in it i.e. extremism and terrorism. CONCLUSION: According to me, Not all fear based oppressors are fanatics. On the off chance that we expect that all psychological oppressors are fanatics, at that point we wind up marking individuals in reverse. For instance, on account of the National Liberation Front in Algeria or the secessionist development in Ireland, you may hold a generally sensible view on the privileges of your kin to self-assurance yet at the same time submit a demonstration of psychological oppression since you believe you don't have some other methods. At that point, your conviction might be considered "outrageous" not on the grounds that it really is, but since it drove you to submit acts that are viewed as extraordinary. No. Indeed, a few kinds of radicalism don't have anything to do with psychological warfare. For example, pacifism has two variants: unexpected pacifism, where utilizing savagery is permitted in certain conditions, as physical self-protection; and supreme pacifism, where utilizing brutality is never permitted. Outright pacifism is really a type of radicalism and is even once in a while alluded to as "extraordinary" or "fanatic" pacifism. The individuals who hold this view - a view that many would think about incredibly great as it were - are treated as fanatics in this specific philosophy. Notwithstanding, they are not psychological oppressors and, indeed, stand firmly contradicted to brutality. You can take one more instance of the Delhi Riots i.e. protest against the CAA I would ask the people reading this article , to think and tell us their thoughts on this protest.
GUJARAT DISTURBED AREA ACT(AMMENDED) 2020
Author: Komal Verma from Fairfield Institute Of Management and technology, Content Writer What is the Disturbed Areas Act? Under the Disturbed Area Act, a district collector can notify a particular area of a city or town as a “disturbed area”. This notification is generally done based on the history of communal riots in the area.The transfer of immovable property in the disturbed area can take place only after the Collector expressly signs off on an application made by the buyer and the seller of the property. Violation of the Act’s provisions invites imprisonment and a fine. The state government claims it is aiming to check communal polarization of various parts of the state through the Act. About the Act: · The act was first introduced in Ahmedabad in 1986. A that time, due to large scale and continuous riots in Ahmedabad city, a number of areas started witnessing distress sale of properties mainly by people of a particular community. To check that, the then Gujarat government had brought in an ordinance. Later, it was converted into the DA Act in 1991. The DA Act is applicable in Ahmedabad, Vadodara, Surat, Himmatnagar, Godhra, Kapadvanj and Bharuch. Why in News The President has given his assent to a Bill passed by the Gujarat Assembly in 2019, which made some amendments to the ‘Gujarat Prohibition of Transfer of Immovable Property and Provisions of Tenants from Eviction from Premises in Disturbed Areas Act, 1991’ - popularly known as the ‘Disturbed Areas (DA) Act’. State minister Pradeepsinh Jadeja said on Monday, adding that the amended law would stop polarisation and keep a check on attempts to cause any “demographic imbalance”. The Act bans sale of property by members of one religious community to those from another community without the prior approval of the district collector in areas declared as “disturbed areas”. The bill was brought by the BJP government last year to amend the ‘The Gujarat Prohibition of Transfer of Immovable Property and Provision for Protection of Tenants from Eviction from Premises in Disturbed Areas Act’, 1991, commonly referred to as the Disturbed Areas Act. The government had added some stringent provisions amid complaints from people that the current act was unable to curb the illegal sale or transfer of their properties in such notified disturbed areas.In the earlier version of the Act, the district Collector had to ensure, on the basis of an affidavit by the seller, that she/he had sold the property of her/his own free will, and that she/he had got the fair market price for it. This Act has been in force in some communally sensitive areas of the state, including in Ahmedabad and Vadodara. Amendments: More Powers to the Collector: To ascertain if there is a likelihood of “polarisation” or “improper clustering” of persons belonging to a particular community, thus disturbing the demographic equilibrium in the area. · For probing these aspects, the formation of a Special Investigation Team (SIT) has also been envisaged. Review Power to the State: The state government is authorised to review a decision taken by the Collector. Advisory Committee: Enables the state government to form an advisory committee that will advise it on various aspects of the DA Act, including adding new areas to the ‘disturbed areas’ list. Disturbed Area: The government can notify any area as a ‘disturbed area’ where it sees the possibility of a communal riot, or where it sees the possibility of a particular community’s polarisation. Strict Provisions: · To check the registration of transfer of properties in disturbed areas without the Collector’s prior approval, the amended Act has a provision to enlarge the scope of the term ‘transfer’, and include transfer of right, title or interest in or over such property in disturbed areas by way of sale, gift, exchange, and lease. · The Act has amended the Registration Act under which no property in disturbed areas can be registered without prior sanction of the Collector. · Redevelopment of the Property is allowed only if it is for the owner’s purpose. But if the owner is planning to bring new people on the redeveloped property, she/he has to take the permission of the Collector. Non-Applicability: The provisions of the Act will not be applicable to the government’s rehabilitation schemes in a disturbed area, where it resettles displaced people. Penal Provisions: The amendment has increased the punishment to imprisonment between three and five years. The fine has also been increased to Rs. 1 lakh, or 10% of the jantri rate (ready reckoner of property prices in different parts of the state) of the property, whichever is higher. · The punishment for the violation of the Act was earlier imprisonment for six months and fine up to Rs.10,000. Under the amended Act, the collector can now check if there is any “likelihood of polarisation”, “disturbance in demographic equilibrium” or any “likelihood of improper clustering of persons of a community” if the transfer takes place. The collector can reject the application of transfer after making an assessment on these grounds, said the release, adding that the aggrieved person can now file an appeal with the state government against the collector’s order. The act also empowers the state government to form a “monitoring and advisory committee” to keep a check on the demographic structure in the disturbed areas. Read More.....
Author: Aastha Singh From Chanakya National Law University, Content Writer BACKGROUND: The General Assembly through its resolution in 1996 established International Covenant of Civil and Political Rights (herein after ICCPR) in view to protect the civil and political rights across globe in United National. It was enforced in the year 1976, almost 10 years after the resolution was passed. It is often addressed as the key to Intentional Rights de to its two protocols: 1. International Covenant on Economic Social and Cultural Rights 2. Universal Declaration of Human Rights Together forms International Bill of Human Rights. It is a multilateral treat which binds the state parties to protect and preserve the basic human rights including the right to life, freedom of speech, equality before law and equal protection of law, freedom of religion and gender equality etc. In addition to these rights it also protect the minorities rights and rights of family. It can be broadly diving into following heads for simply learning. · freedom from torture and other cruel, inhuman or degrading treatment or punishment · fair trial rights · freedom of thought, religion and expression · privacy, home and family life · equality and non-discrimination It positive binds the State Parties to take positive steps through its Legislative, judicial and administrative organs to ensure protection of these rights and mitigate infringement by way of adopting effective measures. There are a total 173 signatories of the International Covenant on Civil and Political Rights. One of the important features of ICCPR is that it mandates all the government of the State Parties including the local givernmentsto take affirmative actions in order to maintain the objectives enshrined in the treaty. In addition to this, it also binds all the private conyractor as well who carry out the governmental function or assist Government.  When any State ratifies the treaty an understanding is established between UN and the State parties that the treaty "shall be implemented by the Federal Government to the extent that it exercises legislative and judicial jurisdiction over the matters covered" by the treaty, "and otherwise by the state and local governments" with support from the federal government for the fulfillment of the Covenant. PURPOSE: The purpose of ICCPR is to actively ensure that the each individual hasdignity and basic human rights. Secondly, ensure that the States are taking active measure to mitigate such issues which may pose a threat to the rights of the Humans due to which they are unable to enjoy their civil and political rights Moreover, the preamble itself puts an obligation on States to take effective measures though action of Judiciary, legislative and administration to protect the basic human rights enshrined in the Covenant. What is the Human Rights Committee? The objective of establishment of human rights committee was to administer and check the implementation of ICCPR. 18 experts universally recognized for their imminent contribution in the field of Human Rights, are elected for a period of four years to from the body of the committee. However, these experts must essentially be from the countries which has signed and ratified the Covenant. In 2019, experts from Albania, Canada, Chile, Egypt, France, Germany, Greece, Guyana, Israel, Japan, Latvia, Mauritania, Paraguay, Portugal, Slovenia, South Africa, Tunisia, and Uganda formed the part of the Committee. Function of the Human Rights Committee The Human Rights Committee assembles at Geneva Switzerland thrice a year for general discussion and submission of reports from the State Parties. The State Parties are mandated to report to Committee at the UN Headquarter once in every four years. In cases of conflicts, the committee passes general statement or observation retailing to a question of law on Human Rights which are binding in the States. It is also published and usually live steamed.. Some important judgment of Human Rights Committee The Human Rights Committee has contributed enormously in expanding the right to life in various context. It stated that it is essential on the part of the State to take measures in order to protect the health of the citizen from beng deteriorated and thus, should take steps in order to reduce reduce infantmortality and to increase life expectancy. In addition to this measures should be adopted to eliminate malnutrition and epidemics.”Further more, the case of EHP v. Canadaproves helpful in further understanding theextent of Right to life where the Committee observed that the temporary disposal site for radioactivewaste raised serious issues with regard to the obligation of States parties to protect human life. InLantsova v. The Russian Federation the Committee found even if there is no actual“killing”, the failure to provide medical care is enough to constitute aviolation of the right to life. Furthermore, Carlos Cabal and Marco PasiniBertran v. Australiainvolved a decision on admissibility on failure to separate detainees with communicable diseasesfrom other detainees could be covered under Right to life. The rights protected under the ICCPR include: Summary of the Constitution of ICCPR Rights Article 6 – Right to life Article 8 – Right to not be enslaved Article 9 – Right to liberty and security of the person. Article 10 – Rights of detainees. Article 11 – Right to not be imprisoned merely on the ground of inability to fulfil a contractual obligation Article 13 – Rights of aliens. Article 16 – Right to recognition as a person before the law. Article 18 – Right to freedom of thought, conscience and religion. Article 19 – Right to hold opinions without interference. Article 21 – Right of peaceful assembly. Article 22 – Right to freedom of association with others. Article 23 – Right to marry. Article 24 – Children’s rights Article 25 – Right to political participation. Freedom .
Article 7 – Freedom from torture. Article 12 – Freedom of movement and choice of residence for lawful residents.
Article 14 – Equality before the courts and tribunals. Right to a fair trial. Article 15 – No one can be guilty of an act of a criminal offence which did not constitute a criminal offence. Article 17 – Freedom from arbitrary or unlawful interference. Article 20 – Propaganda for war shall be prohibited by law. Article 26 – Equality before the law. Article 27 – Minority protection. https://www.equalityhumanrights.com/en/our-human-rights-work/monitoring-and-promoting-un-treaties/international-covenant-civil-and
International Covenant on Civil and Political Rights". United Nations Treaty Collection. 24 August 2018.
General comment 6/16 of 27 July 1982.
E. H. P. v. Canada Communication no. 67/1980.
Lantsova v.The Russian Federation Communication No.763/1997.
Carlos Cabal and Marco PasiniBertran v. Australia Communication 1020/2001.
FARMERS’ BILLS - Criticism
Author: Nandini Tripathy from Symbiosis law school, Hyderabad, Content Writer Passage of the three Farmers’ bills and its outcomes Introduction: The Parliament recently passed three controversial bills. The introduction of the bill is based on the concept of “One India, One Agricultural Market”. It aims at opening the gates for farmers to the corporate world to create additional trading opportunities beyond the APMC market yards to help farmers to get remunerative prices due to additional competition. On the other hand, the opposition is of the view that the bills passed challenges the three pillars of the food security system i.e. Minimum Support Price, Public Procurement and Public Distribution System. It is also argued that the bills are ‘anti-farmer’ as farmers are being handed over to the capitalists who will encroach them and exploit them rather than empower. The reformations made in the bills and the prime concerns that led to the protests by the farmers and the opposition members of the Parliament are: The Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Bill, 2020 The Farmers (Empowerment and Protection) Agreement of Price and Assurance and Farm Services Bill, 2020 Essential Commodities (Amendment) Bill, 2020 Ruckus in the Council of States: In most cases, the opposition members of the Parliament used to show their strong dissent in passage of any bills, motions or resolutions. The ruckus in the parliament is not new and they are the conventional practice of the members. It may be as a simple walk-around the well of the house or sometimes unruly behaviour like mocking the Chair. A similar incident happened in 20th September 2020 when eight opposition MPs shown their dissent inside the Rajya Sabha during the passage of the two Farmers’ bills. They demanded the bill to be sent to select committee, however the Council was trying to pass the bill with a voice vote. The agitated MPs naming the bill and the government as anti-farmer, approached the Chair, tore the Rule book, threw papers away, marched towards the Chair and even attempted to break the microphones of the Council Secretary. The ruckus though seems to be offensive and disrespectful; these are the result of emotions of the parliamentarians. These acts need not be considered either as Criminal Act or as a Civil wrong, however these are morally avoidable and would invite punishments under the Rules of the Council. Rules and Regulations of the Council of States: Under Art 118 of the Constitution of India, the Council of States made rules for regulating its procedure and the conduct of its business. Under section 255 of the Rules of Procedure and Conduct of Business in the Council of States (Rajya Sabha), the Chairman may direct a member to withdraw from the Council. Under section 256 of the Rules of Procedure and Conduct of Business in the Council of States (Rajya Sabha), the Chairman may name a member and cause for an initiation for a motion to suspend the member from the service of the Council. These provisions under sections 255 and 256 were framed in order to ensure “the smooth functioning of the Council” during the sessions. In the recent issue of ruckus in the Council of States on 20th September 2020, the Chairman of the Council, suspended the 8 opposition members from the sitting. This is a punishment which may be given to the members who violates the Rules of the Council or disregards the authority of the Chair. On the other hand, the democratic institution like the Parliament, particularly the Council of States, must be functioned with the presence of opposition’s voice. The Chairman, instead of suspending the MPs from the Council, may provide enough time and space for the views and ideas of those MPs which would make the system more democratic. This kind of suspension of MPs is not uncommon, it was happening in almost every session. These activities invite strong criticism against the Presiding Officer (either Speaker of Lok Sabha or Chairman of Rajya Sabha) that, the job of the Presiding Officer is to run the House and not to lord over it. Legality of the Suspension: The suspension cannot be called into question before any court of law as far as there is no mala-fide intention behind the suspension. According to sec 256 of the Rules, the Chairman after naming the member(s), a motion has to be resolved for such suspension. However, the suspension shall not exceed a period beyond the remainder of the Session. This kind of motion after a majority decision of the parliamentarian of the Council cannot be challenged as it involves the parliamentary sovereignty. Further, it is to be noted that, no parliamentarians shall be disqualified or the membership be cancelled on the ground of unruly behaviour within the premises of the House or the Council. Neither the Presiding Officer nor the peer parliamentarians, by way of motion, can cancel the candidature for such acts. Conclusion The farmers are the soul of the country and their growth and upliftment is the foremost duty to be taken care of by the government. The bills or the forthcoming enactments must be in a right direction providing a bigger platform to the farmers to get the desired price for their agricultural produce. The reformations which accelerate agricultural growth through private sector investment in constructing agricultural infrastructure and supply chains for Indian farm produce in National / global markets will generate employment opportunities, and strengthen the economy. Further, farmers will be freed from the clutches of selling their produce at designated places. The government has to ensure the practice of MSP and the Mandis under the state laws so as to empower the farmers and foster their growth and development of the country which in turn reshape the Indian economy. Read More....
Arbitration in the digital age post COVID-19
Author: Asif Iqbal, Centre for Juridical Studies, Dibrugarh University, Content Writer Coronavirus has been declared as a pandemic by the World Health Organisation as it has spread to more than 190 countries and impacting millions of lives in an unprecedented manner. There is a desperate demand for ventilators, lifesaving machines which will keep patients breathing. The hotspot of the United States of America is New York City, where there is a shortage of more than 30,000 and more requirements for ventilators. On 19th March 2020, an announcement made by General Motors that they will collaborate with Ventec, normally production of ventilators was 200 per month but they will try to inflation by more than 10 times. Moreover, there is a struggle going against the transmission of the virus amongst people which led to lockdown all over the world but there has been a rise in the infected people and people dying due to it. There is a vocabulary which people have come across, like social distancing, flattening the curve and self-isolating during this quarantine and work from home. The International Monetary Fund has declared that the world has entered into recession and things will get better, only in the presence of vaccines which can protect every people belonging to all ages. There are certain measures which have been announced by the Government of India to protect the interest of corporates in this situation like the announcement mentioned about the extension in the last date for filing income tax return for FY 2018-19 from 31st March 2020 to 30th June 2020. Along with, the deadline for filing the returns for Goods and Service Taxes has been extended from 31st March to 30th June 2020. The Account holder will not have to worry about the maintenance of monthly minimum amount as the non-maintenance charge will be waived off for three months and withdrawals from any ATM bank will be free for debit cardholders, this will be for three months. Estimation of loss was released by Moody mentioning there would be a contract of 0.5 per cent this year and the GDP of America will be shrunk by 2 per cent and Euro zone by 2.2 per cent. This virus has caused an impact on the economy as well due to which the global economy will move downwards and requires massive funding for developing countries. In the G-20 summit, nations pledged for a 5 trillion USD investment into the global economy which will counter the pandemic in the middle of a deep recession forecast. There was videoconference chaired by the King of Saudi Arabia, Salman with the President of USA and Russia, Donald Trump along with Vladimir Putin, respectively. The aim was to have coordination in controlling oil price war between Riyadh and Moscow which roiled energy markets. The investment of 5 trillion USD as a part of targeted fiscal policy, economic measures and countering the social, economic and financial impacts through guaranteed schemes. Amid the scare of Coronavirus, The Supreme Court of India decided to use Thermal Screener. The precaution was taken in the wake of pandemic declared by the World Health Organisation (WHO) and entry is restricted to Lawyers, litigants and Journalists in the courtroom. There were long queues at the entry gate with officials from the Health Department checked them with thermal screening. There was uncertainty in the minds of officials as to who should be permitted inside the premises of Supreme Court and courtroom due to restricted entry. Only lawyers and litigants whose matters were listed for the day were allowed to enter the courtrooms and six of 15 benches heard the matters, of which 12 were taken up today. To avoid, the overcrowding in the courtroom, it was decided that six matters will be taken up by judges after half an hour break they took the next six cases for the day. It was notified by the Supreme Court of India that only urgent matters shall be taken up to avoid overcrowding and usually, 15 Benches of the Supreme Court sit on Monday and Friday and miscellaneous matters are taken upon these days. Perhaps, there are cases which cannot be arbitrated and those cases fall outside the categories of arbitrable disputes as opined by the Supreme Court of India in the case of Booz Allen and Hamilton Inc vs. SBI Home Finance Limited and these are; 1. Offences concerning criminal activities 2. Matters of Guardianship 3. Insolvency 4. Intellectual Property Rights 5. Competition Laws 6. Fraud 7. Bribery The Section 2 (1) (f) of the Arbitration and Conciliation Act 1996 have defined the International Commercial Arbitration as; “an arbitration relating to disputes arising out of legal relationships, whether contractual or not, considered as commercial law in force in India and where at least one party is:(a) An individual who is national of, or habitually resident in, any country other than India
(b) A body corporate which is incorporated in any country other than India
(c) A company or an association or a body of individuals whose central management and control is exercised in any country other than India
(d) The government of a foreign country. Considering the jargon attached with the definition of Arbitration; it can be defined as an alternative to litigation or court proceedings, where the parties mutually control the terms by which they avoid their national legislation or rules of procedure. While this Arbitration & Conciliation Act, 1996 is hushed toward this treatment of negotiation processes by video conferencing, Section 19 allows the Arbitral Tribunal to perform the same. The Arbitral Tribunal rump directs these people before these arbitration proceedings to register pleadings by automated communication; deportment operations in the midpoints of video conversations supporting social distancing with an insignificant decline in the productivity. Arbitral Tribunals in consonance including some altering expertise, this severe congressional timelines specified in the Arbitration & Conciliation Act, 1996 still resort through video conferencing while routine matters for help as well as cost-effectiveness equivalent in domestic arbitration proceedings. Read More....
Seat versus the Place of Arbitration
Author: Asif Iqbal, Centre for Juridical Studies, Dibrugarh University, Content Writer. The preamble of the Arbitration Act 1996 mentions the adoption through the United Nations Commissions on International Trade Law (UNCITRAL) on International Commercial Arbitration in 1985. The United Nations asked the member countries to provide recommendations over the changes in the Model Law to have desirability containing a uniform law for conciliation and arbitral procedures. They established the rules to have settled those disputes which arise between international countries and maintain cordial relation at the end as countries were trying to come out from the losses which were suffered because of World Wars and Cold War; which happened between members of the Soviet Union and supporters of the United States of America. The parliament of India could enact this model law in the Forty-Seventh year of being Republican. They referred the Act passed in the Parliament to as the Arbitration and Conciliation Act 1996 which extends within the territory of India. The word Arbitration means to hear and determine dispute arose between parties by a person or someone selected as per the unanimous decision between parties. An English bench gave a wide definition of Arbitration in Collins vs. Collins 1858 28 LJ Ch 184: 53 ER 916 which read as follows; ”An arbitration is a reference to the decisions of one or more persons either with or without an umpire, a particular matter in difference between the parties”. The arbitration is voluntary where the issue aroused amongst parties can be settled or judged by the bench of a Court. There are several manners through which arbitration can be resolved without the intervention of the judicial process; Negotiation Mediation Conciliation Arbitration Mini- trial International Commercial Arbitration defined in section 2(f) highlights the dispute aroused through the legal relationship, whether contractual or not, which is commercial in nature within the ambit of the rule of law. The parties in the agreement have to be national or resident of India, the body of enterprise raised within the territory of India, Central management of an association and exercises within the territory of India. The Chapter- V of the Conduct of Arbitral Proceedings adds about the treatment of parties in an equal as per section 18 of the Arbitration and Conciliation Act 1996, where the opportunity shall be provided to present the case in an unbiased manner. Section 20 of the discussed Act allows parties to decide the place of arbitration to parties with no coercion imposed upon them by the arbitrator appointed for the negotiation of issue. If the parties cannot fulfil the consideration provided in the agreement will impose responsibility upon the tribunal to decide the place of arbitration; shall be based upon the convenience of parties. The tribunal can also decide the place for arbitration; the place of arbitration is good for consultation amongst members, permitting members to hear the opposite parties, an inspection of documents, goods or other necessary properties. The Supreme Court of India on September 25, 2018, gave judgment on a case was between the Union of India against Hardy Exploration & Production or Union of India vs. Hardy Exploration & Production, Civil Appeal no. 4628 of 2018. The decision on the Seat versus a place of Arbitration was decided by the division bench of the High Court of Delhi in 2016 which decided to dismiss the appeal preferred by the Union of India. The appeal was against the decision which was made by the arbitrator for the recourse against the arbitral award which is provided under section 34 of the Arbitration and Conciliation Act 1996. The Section mentions arbitral award may be set aside by the Court; where either of the parties was under an incapacity if the agreement for arbitration isn’t valid, the party which has made the application hasn’t made received notice for the appointment of the arbitrator if the matter is beyond the scope of arbitration, composition which has been established for the arbitration in tribunal and procedure was not following the agreement which was agreed by the parties. The Court finds the subject-matter was not in accordance to provide a settlement for arbitration under the law, the award which was made by the arbitrator to either of parties induced through force, corruption or violation of Section 75 or Section 81. The fundamental policy of the law in India was contravened and the decision for arbitration is against the morality coincides with the justice notions. Apart from the International Commercial Arbitration can be set aside by the Court, if the decision made by the tribunal is vitiated by the patent illegality which has been found by the court in the investigation. The application for arbitration cannot be set aside for more than three months from the date of receiving the arbitral award. The application is disposed by the tribunal expeditiously within a period of a year from the date of notice which was served to another party for negotiation. The Bench which was headed by then the Chief Justice of India, Dipak Misra opined the contractual clause between the parties to the contract stipulating Kuala Lumpur as the ‘venue’ of arbitration did not amount to a choice of juridical seat between the parties. The decision which was made by this bench gave clarity over the issue upon Seat versus venue for arbitration amongst parties. There was a product sharing contract which entered between the Government of India with the Hardy Exploration and Production for extraction, development and production of Hydrocarbons in a geographic block in India. The matter of arbitration was referred to be Kuala Lampur which was in favour of Hardy Exploration and Production. To understand the place of arbitration has to be read with Section 20(2) along with Section 2(2) of the Arbitration and Conciliation Act 1996.