All About 101st Constitutional Amendment

It has been noted by various eminent jurists like Dicey and Austin that for a society to survive, it has to constantly evolve itself with the changing times and make room for new generation to carry it forward in its own unique ways. This aspect of law making has been correctly elaborated upon by H.R. Khanna. J in Kesavananda Bharati v. State of Kerala [(1973) 4 SCC 225], where he inter alia states that the Constitution of India is also a social document which is dynamic in nature and contains room for experiment, without changing its basic structure i.e. India is a soveirgn, democratic, republic.

To keep up with the times, the Constitution (122nd Amendment) Bill of 2014 received presidential assent on 8th September, 2016 and became The Constitution (101st Amendment) Act of 2016. The said amendment will pave way for Goods and Service Tax, a concept which can be easily termed as paradigm shift in the arena of indirect taxation.

THE NEED:

One of the most distinguishing features of the proposed GST Model is its dual structure i.e. it will be levied by both Centre and the States. The Dual GST Model is aimed to be implemented through multiple statutes of different states, provided that the basic features of law such as chargeablilty, definition of taxable event, basis of classification etc. would remain the same. The Central GST and State GST would be paid to the accounts of Centre and States respectively.

Article 246 of Constitution talks about subject matter of laws made by Parliament and by the Legislature of the States. It confers exclusive power to Parliament and the States to make laws with respect to matters enumerated in List I (Union List) and List II (State List) of Schedule VII in the Constitution of India, respectively. In addition to this, the article also states that both the Parliament and the States have power to make laws with respect to matters contained in List III (Concurrent List) of Schedule VII of the Constitution.

In accordance with above, following entries in List I talk about taxation aspects of the Centre:

92. Taxes on the sale or purchase of newspapers and on advertisements published therein.
92A. Taxes on the sale or purchase of goods other than newspapers, where such sale or purchase takes place in the course of inter-State trade or commerce.
92B. Taxes on the consignment of goods (whether the consignment is to the person making it or to any other person), where such consignment takes place in the course of inter-State trade or commerce.
92C. Taxes on services
Similarly, following entries in List II talk about taxation policy in States:

52. Taxes on the entry of goods into a local area for consumption, use or sale therein.
53. Taxes on the consumption or sale of electricity.
54. Taxes on the sale or purchase of goods other than newspapers, subject to the provisions of Entry 92-A of List I.
55. Taxes on advertisements other than advertisements published in the newspapers and advertisements broadcast by radio or television.

As can be analysed from above, Centre does not have power to legislate on taxation of sale of goods except in case of inter-state sale whereas the States do not have the power to legislate on taxation of services as well as on purchase of goods for sale. The Constitution (101st Amendment) Act of 2016 therefore was passed to confer powers to both Centre and the States to make laws in respect of taxation of sale of goods and of services as well as of purchase of raw materials, respectively, by inclusion of article 246A in the Constitution.

246A.(1) Notwithstanding anything contained in articles 246 and 254, Parliament, and, subject to clause (2), the Legislature of every State, have power to make laws with respect to goods and services tax imposed by the Union or by such State.
(2) Parliament has exclusive power to make laws with respect to goods and services tax where the supply of goods, or of services, or both takes place in the course of inter-State trade or commerce.
Explanation.—The provisions of this article, shall, in respect of goods and services tax referred to in clause (5) of article 279A, take effect from the date recommended by the Goods and Services Tax Council.

HOW WAS IT DONE:

Constitution of India is a code in itself and provides for its amendment as well. Article 246A was included in the Constitution by way of amendment procedure given in Article 368 of the Constitution:

368. Power of Parliament to amend the Constitution and procedure therefore:
(1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article
(2) An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill: Provided that if such amendment seeks to make any change in
(a) Article 54, Article 55, Article 73, Article 162 or Article 241, or
(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or
(c) any of the Lists in the Seventh Schedule, or
(d) the representation of States in Parliament, or
(e) the provisions of this article, the amendment shall also require to be ratified by the Legislature of not less than one half of the States by resolution to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent
(3) Nothing in Article 13 shall apply to any amendment made under this article
(4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of Section 55 of the Constitution (Forty second Amendment) Act, 1976 shall be called in question in any court on any ground
(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article PART XXI TEMPORARY, TRANSITIONAL AND SPECIAL PROVISIONS.

AMENDMENTS:

Apart from inclusion of Articles 246A and 269A, The Constitution (101st Amendment) Act of 2016 also provided for changes in Articles 248 (Residuary powers of Legislation), 249 (Power of Parliament to legislate with respect to a matter in the State List in the national interest), 268 (Power of Parliament to legislate with respect to any matter in the State List if a Proclamation of Emergency is in operation), 268A (Service tax levied by Union and collected by the Union and the States), 269 (Taxes levied and collected by the Union but assigned to the States), 270 (Taxes levied and distributed between the Union and the States), 271 (Surcharge on certain duties and taxes for purposes of the Union), 288 (Exemption from taxation by States in respect of water or electricity in certain cases), 366 (Definitions), 368 (Power of Parliament to amend the Constitution and procedure therefor) as well as in Entry 84, List I and Entry 54, List II of Schedule VII. The Act also provides for omission of Entry 92, 92C, List I as well as Entry 52, List II of Schedule VII.

RATIFICATION BY THE STATES:

Since the Act provided for changes in Article 368 as well as of List I & II of Schedule VII, the amendment as done in accordance with Article 368(2), and required ratification of the Bill by the Legislature of not less than one half of the States by way of resolution before it was presented to the President for assent. The Act was ratified by the states of Assam, Bihar, Jharkhand, Himachal Pradesh, Chhattisgarh, Gujarat, Madhya Pradesh, NCT of Delhi, Nagaland, Maharashtra, Haryana, Telangana, Sikkim, Mizoram, Goa, Odisha, Puducherry, Rajasthan, Andhra Pradesh, Arunachal Pradesh, Meghalaya, Punjab and Tripura.

It is to be noted that the said act will come into force only by notification of the Central Government.

SOURCES:
Constitution of India, 1950
www.lawmin.nic.in

www.indiankanoon.org

National Workshop on Eradication of Bonded Labour: An Experience

An initiative of National Campaign Committee on Eradication of Bonded Labour in collaboration with Human Rights Law Network and Action Aid Association, the National Workshop on Eradication of Bonded Labour was organised at the Indian Social Institute, New Delhi from 21st-22nd January, 2017 with participation of various organisations, researchers, activists and advocates from as many as 12 states such as Maharashtra, Uttar Pradesh, Bihar, Chhattisgarh, Odisha, Madhya Pradesh, Tamil Nadu, Kerala, Karnataka, Jammu and Kashmir and Rajasthan. The workshop aimed to find difficulties in working for protection of rights of bonded labourers, to facilitate the release of bonded labourers in the unorganised sector, and to find a way forward for these organisations as regards the recourses available for eradication of bonded labour in various sectors.

The aim was to look at the fight against bonded labour not only from a legal but also from a practical perspective. The Guest of Honour for the workshop, Shri Dialu Nial was a rescued bonded labourer himself and the horrifying incident shared by him and his advocate only makes us realise that even after 70 years of independence, the struggle for freedom is still on and worse, there is still a long way to go for every citizen of India to achieve complete independence. Dialu’s hands were chopped off on refusal to migrate for work. What makes the particular incidence inspiring and so different from other such incidences is that justice was served within 3 years of filing the case, one of the very few instances in Indian Legal History. The accused were awarded with imprisonment for life and because the case was of such an exceptional nature so as to invoke the sentiments of all of us, the Presiding Officer personally ensured speedy justice in the case. This achievement was possible only due to the undying spirit and never-back-down attitude of all the advocates and activists involved, but more than that, due to refusal of Dialu Nial to bow down to the perpetrators.

Analysing the position of existence of bonded labourers in the modern society, it was unfortunate to realise that there are more than 50 crore people in India are still living in conditions of what can be easily termed as modern slavery. It’s the bad fortune of the society we live in, that Article 23 of the Constitution of India, which expressly talks about prohibition of trafficking in human beings and bonded labour, is a fundamental right which exists only on paper and has failed to achieve its intended objective i.e. prevention of exploitation of the weak and vulnerable in its true spirit and practice.

One of the major problems faced by activists and advocates in eradication of bonded labour practices is of identification of the workers as bonded labourers. The authorities refuse to recognise the workers as bonded labourers citing the narrower interpretation of provisions of Bonded Labour Abolition Act, 1976, failing to realise that the objective of the Act as intended by the Legislature was not to just legislate on the issue, but to ensure that modern slavery does not in any form exists in our country. The struggle of any activist or a labourer himself is to convince the authorities that they are indeed bonded labourers living in pathetic conditions where even animals wouldn’t want to live.

Once the identification of these workers is done, another challenge is to encourage these workers to revolt against the touts and the owners so that they can obtain the freedom they rightfully deserve, and to do the task as discreetly as possible. Rescue of these workers is a task in itself, and the major challenge is to prevent any leakage of information to the touts and owners. Such leak of information results in further exploitation of these workers.

Given the state of Indian Judiciary, prosecution is as difficult as identification and rescue of the workers and drains out all the energy of not only the worker, but also activists and lawyers fighting for his rights. Interestingly however, there were two conflicting views given by activists relating to how to handle the prosecution of culprits, specifically with regards to who should be the complainant in the said case. While one group of activists stated that the NGO should become the complainant so as to remain involved at every stage of struggle for freedom of these workers and to avoid further exploitation of already vulnerable workers, the other group of activists was of the view that complaint should be made by the exploited worker itself, because ultimately the objective is to empower the worker to fight for his rights not just in respect of bonded labour, but also in respect of any kind of exploitation that he may face in the future. One of the activists also highlighted the fact that there are many instances where these workers even after succeeding in their struggle for freedom and successfully granted Release Certificate still go back to same touts and owners to work in same dingy conditions, suggesting thereby that what is required is not just eradication of bonded labour system and other forms of modern slavery, but also empowerment of most vulnerable group of the society to ensure overall development of the country and the workers themselves.

Many activists and advocates present in the workshop elaborated on the theme of prosecution of the culprits especially in cases of bonded labourers. Even though Bonded Labour Act is a code in itself, most advocates stressed on application of Indian Penal Code (sec 370) and SC/ST Prevention of Atrocities Act (sec 3) as well. It is rather an undisputed fact that the workers almost always belong to SC/ST category and when the perpetrator is a person not belonging to these categories, it becomes almost always essential to include sec 3 of the SC/ST PoA Act in the chargesheet to ensure justice. The recently amended sec 3 of the Act, which deals with atrocities includes, inter alia, employment for any person belonging to SC/ST category for purpose of bonded labour, and the activists find it imperative to make proper use of the provision to ensure complete justice to these workers. Public Interest Litigation is another tool provided by the Judiciary to the society. While a PIL does not always guarantee implementation of rights, it is indeed one of the few measures to help eradicate exploitation of labourers.

Another major point of consideration was to find a way to fight against the Central Sector Scheme, an initiative by the Central Government aimed to rehabilitate bonded labourers. The scheme has one major discrepancy, that it links rehabilitation of workers with not only prosecution of the accused, but also their conviction, meaning thereby that till the time accused are not convicted of any offence, the rescued bonded labourers are not allowed any rehabilitation. The state of Indian Judiciary is such that the said scheme, even though aims to ensure complete justice both to the perpetrators and bonded labourers is in fact detrimental to the workers and defeats the purpose of safeguards provided not only various statutes, but also by the Constitution. The protest against the scheme is still ongoing, and although activists are trying to find a way, practically of the situation remains the same, and that is NHRC is not fastidious enough to cater to urgency of the situation.

The workshop in its totality aimed to sensitise the society towards labourers and to make every person in the country realise the fact that overall development of the country indeed lies with development of the weak and downtrodden. Article 21 talks about the right to life but as it has already been said time and again, right to life does not mean mere existence of a mortal, but it means a right to do or not do everything or anything that makes life worth living. Though there are activists and advocates working selflessly in the area, the need of the hour is to ultimately empower these vulnerable sects of the society so that they can fight for their own rights and contribute in the overall development of the country.

Indian Constitution: The Making and its Features

One the most distinguishing features of the Indian Constitution has to be the manner in which it has been drafted and adopted. While Constitution of other countries was imposed on them by exercise of power, the Indian Constitution was made by people themselves, though by representatives in the Constituent Assembly.

HISTORICAL BACKGROUND:

1. Government of India Act, 1858: Making of the modern Constitution at the earliest began from 1858, when India first came under direct rule of the British Crown. The Govt. of India Act, 1858 marks as a starting point towards making of the Indian Constitution because it was dominated by principle of absolute imperial control, without any popular participation in the administration of the country. The powers of the Crown were to be exercised absolutely by Secretary State of India, assisted by an Executive Council comprising 15 members, which was composed exclusively of people from England, thereby resulting in no concern for public opinion by the State.

2. Indian Councils Act, 1861: The Act introduced only a minute element of popular participation by providing that the Council would include certain non-officio members as well which would then function as a Legislative Council. The inclusion of non-officio members in the Council however was not considered representative, as their functions was restricted only to consideration of legislative proposals made before it.

3. Indian Councils Act, 1892: The Act comprised of 2 major improvements from the previous act:

• Non-officio members were to be now elected by Chamber of Commerce and Local Bodies for State and Province respectively.
• The functions performed by the Council was now widened, and had the power to discuss the Budget as well as to address the questions to Executive.

4. Indian Councils Act, 1909 (Morley-Minto Reforms): Morley Minto reforms is considered as the first attempt at introducing a representative and popular element in the governance in the truest sense. The size of the Legislative Council was enlarged by increasing the number of non-officio members, making the official majority in the Council disappear. The Act also introduced an element of election by announcing separate electorate for Muslims.

5. Government of India Act, 1919: The Act is considered as a landmark in the constitutional development of India, which introduced substantive changes in the existing system of governance. The major features of the Act were:

• Dyarchy (dual government) in Provinces
• Relaxation of Central control over Provinces
• Increase in representative nature of Indian Government.

The Act of 1919 failed to fulfill the aspirations of the nation as the Government structure remained by and large Unitary, with Governor-General being the one through which the British Parliament discharged their duties.

6. Government of India Act, 1935: The Indian Constitution is, to an extent, based on the said Act, whose major features included:

• a. Separate electorate not only for Muslims, but also for Sikhs, Indian Christians and Anglo-Indians.
• Federal System of Governance
• Dyarchy at the Centre
• Bi-cameral Legislature
• Distribution of power.

7. Indian Independence Act, 1947: The said Act provided an interim Constitution to both India and then newly-formed Pakistan, until the two dominions established a Constituent Assembly and draft its own Constitution. The Act abolished the sovereignty and responsibility of British Parliament over India and the Governor General were now merely the Constitutional heads for the Government.

8. The Constituent Assembly began working on the making of the Indian Constitution on 9th December, 1946 and it received the signature of the President on 26th November, 1949. While the provisions relating to citizenship, elections, provisional Parliament and transitional provisions were given immediate effect i.e. from 26th November, the rest of the Constitution came into force on 26th January, 1950.

THE PREAMBLE:
WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity;

and to promote among them all

FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

FEATURES OF THE CONSTITUTION:

Sovereign: means the independent authority of the State, and that it is not subject to the control of any other State or external power.

Republic: A government of the people and for the people, all source of authority as bestowed by the Constitution is the people of India.

Socialist: The principle means of production are under social ownership leading to progressive speeding up of production and equitable distribution of national wealth.

Secular: The State protects all religions equally and does not itself uphold any religion as the State religion. The question of secularism is not one of sentiments, but of law.

Democratic: The Constitution envisages democratic not only political, but also social meaning not only a democratic form of government but also a democratic society, infused with the spirit of justice, liberty, equality and fraternity.

• Other important features, inter alia, include:

1. It is a bag of borrowings: The Constitution is a curation of best features of Constitutions all around the world which is then modified to suit the conditions prevalent in India.

2. Partly rigid and partly flexible: As aptly put by H.R. Khanna, J. in the landmark judgement of Kesavananda Bharati v. State of Kerala [(1973) 4 SCC 225], the Constitution is dynamic in nature and therefore contains room for experiment, however the basic structure of the Constitution cannot be altered, that India is a Sovereign, Democratic, Republic.

3. Quasi-federal form of Government: Federalism essentially means two or more governments exercising concurrent jurisdiction over a territory, where none of the government is subordinate to the other. As laid down in the case of S.R. Bommai v. Union of India [(1994) 2 SCR 644], a state has a federal status but state qua the Union is quasi-federal and that India practises both unitary and federal principle of governance, depending on time and circumstances.

4. Universal Adult Franchise: One person one vote, one vote one value.

5. Cooperative Federalism: the state and centre work in harmony, with the spirit of togetherness and sharing the same goal: of all round development of the nation.

6. It is the longest constitution, comprising of 448 articles in 25 parts, 12 schedules, 5 appendices and 101 amendments.

7. Supremacy of Constitution: The Indian Constitution is supreme in the land and nothing can override the Constitution. The Constitution also provides for redressal mechanism in case of breakdown in any of the state or Union.

SOURCES:
Introduction to the Constitution of India by D.D. Basu;
Case Material on Constitutional Law – I, Faculty of Law, University of Delhi.

The Curious Case of Law Schools vs. Bar Council of India

For the uninitiated, there are two modes of access to legal education, namely a 5-year Integrated Dual Degree programme which can be pursued after passing class 12^th and a 3-year full time LL.B degree programme which can be pursued after obtaining Bachelors’ Degree in any field. While there is an age bar of 21 years for the former and has in the recent years gained popularity amongst students, there is no age bar on the latter and is offered by limited Universities, making it less preferable for the students in comparison to the former.

University of Delhi is one of the few Universities in the country which offers 3-year full-time LL.B Degree. University’s Faculty of Law comprises of Campus Law Centre and Law Centre – I which function from the main campus area in New Delhi in the morning and afternoon respectively, and Law Centre – II, which is currently operating in evening from an off-campus college affiliated to University of Delhi. Recently Bar Council of India (BCI), making use of powers conferred to it by the Advocates’ Act, 1961, de-recognised Faculty of Law, University of Delhi, making it incapable of imparting legal education to its students. The grounds of de-recognition were, inter alia, the timings of Law Centre – II, which operated from 5.30 pm to 8.30 pm six days a week. BCI in its adverse report clearly stated that the University has flouted Rule 5, Schedule III of Rules of Legal Education, 2008, (General timing for conduction of courses in Academic Building), which reads as follows :

“Classes may be conducted between 8 a.m. to 7 p.m. in an Institution, which is not fully residential. However the Library may remain open till 10 p.m.”

In interest of students, the University, for the academic batch of year 2016-19 and onwards, has taken note of the same, and has changed the timings of Law Centre – II to 8.30 am to 1.30 pm and also made it function from the newly constructed building of Faculty of Law in the main campus. BCI, in view of above compliance, has provided one-time relaxation for the students for the academic batch of years 2014-17 and 2015-18, meaning thereby that these 2 batches with function from the old off-campus college building and the timings will remain 5.30 pm to 8.30 pm.

While the new arrangement apparently clears the deadlock between the University and BCI, it has created more problems than one for the stakeholders at Law Centre – II. The new batch functions in the morning in the main campus while 2^nd and 3^rd year students still function from off campus building in the evening, making it difficult for the teachers and official staff to manage two places. Even students are left with limited options of interaction and it is still to be seen how extra-curricular activities take place at two places at the same time.

Section 24 of The Advocates Act, 1961, inter alia, states that a person who has obtained a degree in law from any University in India or from any University outside the territory of India, recognised by Bar Council of India, is entitled to be admitted as an advocate, subject to fulfilment of other requirements as laid down in the section. Easily comprehended from the above, valid recognition of a University/College from BCI is the most important requisite for admission of a person as an advocate. However, many renowned Universities and Colleges are now being derecognised by BCI on one pretext or the other, leaving the future of thousands of students in the dark.

It is not only University of Delhi, but also Government Law College and other law schools in Mumbai, Kerala and Chennai which have come under the axe. The news of not just one, but several of them of such high repute getting de-recognised by BCI makes us doubt the autonomy of BCI, and more so because these law schools are functioning from much earlier than when BCI came into existence, and has produced so many eminent personalities which now contribute for the betterment of the nation.

There have been numerous petitions filed in the court of law which question the autonomy of BCI in this regard. Apart from Wali Nawaz Khan and Ors. v. Bar Council of India and Anr.  [W.P. (C) 7650/2016] in the High Court of Delhi, which challenges the constitutional validity of Rule 5, Schedule III of Rules of Legal Education, 2008, there are several other petitions filed before the High Courts of other states which challenge the validity of powers conferred to Bar Council of India with regard to inspection of law schools and other rules laid down by BCI. However, there is still a long time to go before new rules of land are laid in this regard. What was formed to uphold the standard of legal education in India has now become autonomous regulatory body which has been on the de-recognition spree without looking into the ground reality. At time where numerous seats in Judiciary and legal education sector are lying vacant, there is a need to boost the legal education and not demoralise students from pursuing law by putting them in constant fear that the University they are pursuing the law degree from is no more competent enough to impart them education.

It is to be noted that a degree in law is preferred not only by undergraduate students who want to make a career in litigation and judiciary, but also by people who want to complement their already chosen career path. Ignorance of law is no excuse in India, and a lot of engineers, medical practitioners and civil servants choose to study law after they have already graduated in their respective education fields simply to gain knowledge of the law, if not for anything else. Moreover, since there is no upper age bar for an advocate, there shouldn’t be an upper age bar to study law either. People should in fact be encouraged to study law to become aware about the politico-legal scenario prevalent in the country. A 3-year degree in law is essentially a post-graduate degree and while the idea of studying law through correspondence is not propagated, BCI should take note of the fact that like many other post-graduate degrees, people can manage their day jobs and education at the same time. In an era where night schools are opened and promoted to provide easy access to education to even those who are underprivileged, closing down of evening law colleges is against the very vision of India as a superpower.

SOURCES:

The Advocates’ Act, 1961;

Case Material on Jurisprudence – I: Legal Method, Indian Legal System and Basic Theory of Law, Faculty of Law, University of Delhi;

http://barandbench.com/pil-completely-change-bar-council-indias-powers-legal-education/

In a Courtroom: Who does What?

A place where Courts of Law are held are more commonly known as the Courtrooms. Provided hereunder are the people one can find in the Courts, and the work they do.

BENCH 

The panel of Judges in a Court is known as the Bench. The Judge in the Court might preside over the proceedings singly or there may be two or more Judges to look into the matters of the day in the particular Court. There are various types of Benches in the Indian Legal System:

a. Single Bench: As the name suggests, Single Bench comprises of a single Judge who sits to hear a matter in the Court.
b. Division Bench: When two judges jointly sit to preside over the proceedings of the Court, it is known as Division Bench.
c. Full Bench: Full Bench comprises of three or more Judges who jointly sit to decide the matters of the Court.
d. Constitution Bench: The Bench which comprises of five or seven Judges who preside over the matters in a court jointly, is known as Constitution Bench.

In the District-level Courts in India, a Judge sits in singly to preside over the matters.

The Judges in High Courts of respective States usually sit in Single or Division Benches to preside over the matters which comes to the Court, depending upon the importance of the cases. The Chief Justices of respective States, however, usually sit in Division Benches to hear the matters placed before them.

In the Hon’ble Supreme Court of India, the Judges sit in Division, Full and Constitution Benches. The Division Benches comprises of two or three Judges. The Vacation Judge in the Supreme Court, however sits singly to hear the matters.

When the Bench comprises of two or more Judges, the majority opinion counts and judgement of a larger Bench is binding on the smaller Benches of the Courts. An interesting trivia to note here is that the largest Bench constituted in the Hon’ble Supreme Court of India has been of thirteen judges in the case of Kesavananda Bharti v. State of Kerala and others [(1973) 4 SCC 225], the case which is more popularly known as “the case which saved the democracy of India”.

COUNSELS
The Counsels are the Advocates which represent the aggrieved, and Opposite Party in the Courtroom.

Counsel for the plaintiff/Complainant/Appellant: Plaintiff is a term used in Civil Courts for the aggrieved party who has filed a case. Complainant is the synonymous term used for aggrieved in the Criminal Courts. A person who files an appeal in the higher Court against a decision of the Lower Court is more often known as an Appellant.

Counsel for the Defendants/Accused/Respondent: In a Civil Court, a Defendant is the person against whom the case has been filed. The Accused is a synonym for Defendant in a Criminal Court. In an Appellant Court, the person who responds to the question of fact/law is then known as respondent.

Therefore, an Appellant can be either Plaintiff/Complainant or even Defendant/Accused, depending on who files the appeal.

In the District Courts, the Counsel for Plaintiff/Complainant stand towards the RIGHT side of the Bench and the Counsel for Defendant/Accused stand towards the LEFT of the Bench.

In High Courts, however, the Counsel for Plaintiff/Complainant in case of Original Jurisdiction of the Court and Counsel for Appellants/Petitioners in Appellant Jurisdiction of the Court stand towards the LEFT of the Bench and similarly, the Counsel for Defendant/Accused in case of Original Jurisdiction of the Court and Counsel for Appellants/Petitioners in Appellant Jurisdiction of the Court stand towards the RIGHT of the Bench.

There are no restrictions in the Hon’ble Supreme Court of India in this regard. The Counsels of the respective parties can stand anywhere in the Courtroom according to their own convenience.

In Criminal Courts throughout India, it is compulsory for the Complainants/Accused to be present in person in the Court during the proceedings. If the Complainant in person is not present in the Court, the Bench has the power of ordering dismissal of the case. If Accused in person is not present in the Court during the proceeding, the Court may order Bailablle/Non-Bailable warrants against him.

In Civil Courts however, the requirement of Plaintiffs/Defendants to be present before the Court in person is dispensed with. The Counsel of Parties can act in the Court on behalf of them.

COURT STAFF
Apart from the Bench and Counsels in a Courtroom, there is also Court Staff which assist in smooth functioning of the Courts.

a. Reader/Court Master: A Reader in a District Court and a Court Master in the High Courts and Supreme Courts of India, is an officer of the Court who occupies the seat just below the Judges’ Dias and assists in the conduct of Court proceedings.
b. Stenographer: A court reporter or court stenographer also called stenotype operator, is a person who transcribes spoken speech by the Bench into written form, to produce official transcripts of court hearings.
c. Ahlmad: Ahlmad or the File-keeper in common parlance is the person responsible for safe-keeping of files of different cases brought before the Hon’ble Court. An Ahlmad Room is a place where all the files of a particular Court are placed collectively.

NAIB COURT
Apart from the Bench, Counsel and the Court staff in a Courtroom, there also exist a few policemen, also called the Naib Court, to keep a record of the detainees and accused brought before the Court. This is to ensure that any order made by the Bench against the accused/detainees are immediately complied with. 

It is interesting to note that Naib Courts are specialities only of the Criminal Courts. Civil Courts cannot order an arrest of a person and therefore, there is no requirement of a Naib Court is those Courts.

Question: What happens if the Bench is on leave?

When the Judge is on a leave, as it happens often, the matters are adjourned for another day in a Civil Court. 

In case of Criminal Courts, and more specifically at District-level, Link Magistrates preside over the Court proceedings. Link Magistrates are the Judges placed at the same designation as the Magistrate in front of whom the case was originally placed. Criminal cases often involve rights as to life and liberty (art. 21 of Constitution of India) of an accused and therefore the Court does not stop functioning and the matters listed in the Court are automatically transferred to the Link Magistrates, who then decide the matters on behalf of the original Magistrate.

In High Courts and Supreme Court of India, the concept of linking of courts exist, but that is subject to application made by the parties on the basis of importance and the emergency of the case. The Courts can then operate at any time of the day to ensure justice is expediently imparted to the parties concerned. The case of Yakub Abdul Memon v. State of Maharashtra and Ors [W.P. (CRL.) No. 135 of 2015] is a classic example of Courts working even at midnight for ensuring justice to the parties.


SOURCES:

www.delhihighcourt.nic.in
www.indiankanoon.org

Checklist for Cross Border Merger: India & Hong Kong

TRANSFEREE COMPANY (Amalgamated Company): INDIAN HOLDING COMPANY;
TRANFEROR COMPANY (Amalgamating Company): SUBSIDIARY COMPANY SITUATED IN HONG KONG

PREPARATION OF SCHEME OF AMALGAMATION IN NATURE OF MERGER:

INFORMATION REQUIRED BY ADVOCATES:

a. Cross holding of Directors of Transferor and Transferee companies
b. Relationship between transferee and transferor companies
c. Names of authorised signatories
d. Names of newspapers where notice is being published
e. List of creditors and their dues
f. List of chairmen of meetings of transferee and transferor companies

INFORMATION/DOCUMENTS MAY BE REQUIRED BY THE REGIONAL DIRECTOR, MINISTRY OF CORPORATE AFFAIRS:

a. Balance sheets for last 5 years of the Transferor and Transferee companies
b. 2 copies of Valuation Report of Chartered Accountants
c. List of directors of transferor company and their other directorships
d. List of directors of transferee company and their other directorships
e. Rights/Bonus/Debentures Issues made by transferee and transferor companies in the last 5 years

s. 233 read with s. 234 of Companies Act, 2013 provides for fast track merger for small companies and merger between Holding Company and its Wholly Owned Subsidiary Company.

PROCEDURE FOR AMALGAMATION:

a. Scheme approved by BoD to be sent to RoC, Official Liquidator for their suggestions within 30 days of approval of scheme.
b. Scheme along with suggestion from RoC and Official Liquidator to be approved by:

• Shareholders holding 90% of the total number of shares at a general meeting
• Majority creditors (representing nine-tenth in value) in a meeting convened with 21 days’ notice.

c. Approval of RBI also required pursuant to section 234(1) of the Companies Act, 2013.
d. Each of the companies to file Declaration of Solvency with the RoC.
e. Copy of scheme to be filed with RoC, Official Liquidator and Central Government.
f. RoC and Official Liquidator to intimate the suggestions in the scheme to Central Government in writing within 30 days.
g. In absence of no such communication, the scheme shall be deemed to be approved by the RoC and the Official Liquidator and the Central Government shall register the same and issue a confirmation thereof.
h. Tribunal to record the merger pursuant to section 232 of the Companies Act, 2013 if the Central Government feels the merger is against the public interest and the same is intimated to the Tribunal.
i. Registration of the scheme would result in dissolution of Transferor Company without the process of wounding up.
j. Registration of scheme to result in:

• Transfer of property or liabilities of Transferor Company as property and liabilities of Transferee Company
• Charges on the property of Transferor Company to be applicable and enforceable as charges on the property of Transferee Company
• Legal proceedings pending before any court of law to be continued by or against the Transferee Company.
• Purchase of shares by dissenting shareholders and settlement of debt due to dissenting creditors, if the scheme so provides, such amount to the extent that it is unpaid becomes liability of the Transferee Company.

k. All shares held by Transferee Company in its subsidiary to be cancelled and extinguished on merger.
l. Transferee Company to file an application with RoC indicating revised authorised capital along with the requisite fees.

COMPLIANCE BY THE TRANSFEREE COMPANY (HOLDING COMPANY) PURSUANT TO COMPANIES ACT, 2013:

a. EXAMINATION OF OBJECT CLAUSE:

• With regard to power of amalgamation
• With regard to power to carry on the business of transferor company
• With regard to sufficiency of authorised share capital

b. PREPARATION OF SCHEME OF AMALGAMATION:

• Business Valuation
• Consideration paid: According to sub-section 2 of section 234 of the Companies Act, 2013, RBI may provide for the payment of consideration to the shareholders of the transferor company in cash or in Indian Depository Receipts (IDRs), or partly in cash and partly in IDRs.
• Calculation of Swap Ratios

c. BOARD MEETINGS:

• Notice of BM to be sent
• Approval of scheme of amalgamation
• Approval of Swap Ratio
• Directors/Officers to be empowered to make application to the Tribunal

d. APPLICATION TO THE TRIBUNAL:

• Application to be made in Form No. 33 of Companies (Court) Rules, 1959
• Affidavit in support of summons in Form No. 34 of Companies (Court) Rules, 1959
• Order of the Judge in summons convening meeting of the members to approve the scheme for approval in Form No. 35 of Companies (Court) Rules, 1959

e. FILING/ANNEXING:

• Certified copy of Order to be filed with ROC within 30 days
• Form 21- Notice of Court or any competent authority
• MGT 14- Special Resolutions passed
• GNL 1- File an application with RoC
• GNL 2- Submission of documents with RoC
• GNL 3- Particulars of authorised signatories for the purpose.

PROVISIONS FOR TRANSFEROR COMPANY:
a. Companies Ordinance, 2012 provides for an amalgamation of two or more wholly-owned companies within an existing group of companies without the need of court approval.
b. An amalgamation under the Companies Ordinance will not require the amalgamated company to pay any consideration for the acquisition of the business assets and liabilities of the amalgamating companies.

SOURCES:
Companies Act, 2013 (India);
The New Companies Ordinance, 2012 (Hong Kong);
Secretarial Audit and Due Diligence: ICSI

Criminal Procedure Summed Up

The Code of Criminal Procedure, 1973 (the Code), as the name suggests is the law relating to criminal procedure and is applicable to all criminal proceedings in India (except in the States of Jammu and Kashmir, Nagaland and Tribal Areas of Assam). The Code, which first came into being in 1898, was completely revamped in 1973 to simplify procedures and speed up trials as far as possible.

Provided hereunder is an attempt to summarize the vast Code and to provide an outline for procedural formalities in criminal offences.

HIERARCHY OF COURTS:

The Indian Judiciary is active at three distinct levels, a hierarchy of which, in descending order, is provided hereunder: 

1. Supreme Court of India
2. High Courts of concerned states
3. District Courts:

• Civil District Court (civil matters)/Court of Sessions (criminal matters) 
• Chief Metropolitan Courts 
• Court of Metropolitan Magistrate – I (the Magistrate) 
• Court of Metropolitan Magistrate - II 

SOME DEFINITONS:

1. Bailable Offence: According to Section 2(a) of the Code, an offence which is shown as “bailable” in the First Schedule of the Code or any other law in force is a bailable offence. In common parlance, bailable offence means an offence which is generally not of serious nature, in which bail is granted to the accused as a matter of right.

2. Non-Bailable Offence: Section 2(a) of the Code states that a non-bailable offence is any other offence. The Court or the Police Officer in that cases, can even refuse to grant bail to the accused. These offences are generally of a serious nature.

3. Cognizable Offence: According to Section 2(c) of the Code, an offence under which arrest of the accused can be made without a warrant.

4. Complaint: Section 2(d) of the Code defines a complaint as any allegation made orally or in writing to a MAGISTRATE with a view to his taking an action under this Code that some person has committed an offence and it does not include a Police Report or a First Information Report.

5. Inquiry: Section 2(g) of the Code defines inquiry as any inquiry conducted by a Magistrate or Court other than a trial.

6. Investigation: Section 2(h) the Code states that investigation includes all proceedings made for collection of evidence conducted by a Police Officer or any other person who is not a Magistrate.

7. Non-Cognizable Offence: Section 2(l) of the Code describes a non-cognizable offence as an offence in which a Police Officer has no authority to arrest without warrant.

8. Offence: Any act or omission thereof becomes an offence only when the State provides for it in any Act or Statute. There are two types of offences:

• Offences of personal nature: where the parties to a case remain two individual legal persons and it includes an artificial person. 
• Offences against the State: Offences which are of serious nature, which disturb the public order. The State takes over from the complainant/victim and represents the case on their behalf. 

9. Police Report: According to Section 2(r) of the Code, a report forwarded by a Police Officer to a Magistrate. In common parlance, it is also known as a Challan or a Chargesheet.

10. Public Prosecutor: A person who is the Counsel for the State. The Public Prosecutor can never represent a case on behalf of the accused.

11. Summons Case: Section 2(w) of the Code defines summons case as a case relating to an offence which is not a warrants case.

12. Warrants Case: Section 2(x) of the Code states that a warrants case is a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years.

THE PROCEDURE:

1. Filing of FIR/Complaint

• Initiation of any criminal case begins with filing of an FIR or a Complaint. Sections 154-156 of the Code provides for provisions for filing an FIR with a Police Officer. According to Lalita Kumari v. Govt. of U.P. [2013 (13) SCALE 559], a Police Officer cannot refuse to register a FIR in case the offence is cognizable. Moreover, no preliminary investigation is permitted in such a situation. However, the precedent also provided that in cases of offence against public servants or in relation to medical negligence, corruption, or matrimonial discord a preliminary investigation is must. 
• If a Police Officer refuses to register the FIR, the aggrieved can send such piece of information in writing to the Superintendent of the Police who shall investigate the case himself or order the Police Officer to register an FIR.
• The aggrieved person can also make a complaint to the Magistrate who shall take cognizance of the case by himself or order the Police Officer to investigate the said case.

2. Arrest and Bail

• The arrested person also has rights which are laid down in sections 157, 41A-41D, 46-47, 51-54A, 55A, 56-57 and 60A of the Code.
  
  Provisions of bail are contained in Sections 436-439 of the Code.
• In cases of bailable offence, bail is granted to the accused as a matter of right. Bail in such cases can be granted by both Police Officer and a Magistrate, depending on which stage the case is on. Bail is granted to the accused after he executes a bail bond with surety (guarantee). 
• In case of a non-bailable offence, bail is granted to the accused, either by the Police Officer or by the Magistrate, if he is arrested without a warrant but subject to certain conditions as provided in the Code. 
• If however the offence pertains to an offence against the State, against human body or against property as provided in the Indian Penal Code (IPC), or an offence punishable with imprisonment which may extend to seven years, only the Court has the power to release the accused on bail subject to the conditions prescribed in the Code. 
• Anticipatory Bail: Where a person has a reason to be believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply for bail in the High Court or Court of Sessions for a direction that on his arrest he shall be released on bail on conditions as imposed by the above mentioned Courts. 

3. Pre-Trial Proceedings

• A Magistrate can take cognizance of an offence either on the basis of complaint made to him, FIR or a Police Report or suo moto (upon his own knowledge). 
• Once the Magistrate takes cognizance of the offence, the complainant is examined on oath and substance of such examination is reduced to writing.
• Depending upon the nature of the case, the Magistrate issues a summon or a warrant to the accused, after payment of relevant process fees. The summon or a warrant is accompanied by a copy of the complaint so registered.
• Charge is framed on the accused for the offence committed by him, stating the particulars of the offence he is accused of committing. 

4. Trial: Aquittal or Conviction
A brief outline of a how a case proceeds in a trial is provided hereunder:

• Public Prosecutor/Complainant initiates the trial.
• The accused is produced by way of a summon or a warrant.
• Charge is framed by the Court for the offence committed by the accused.
• If, after production the accused pleads guilty, the Court can pass an order for conviction.
• If the accused does not plead guilty, a date is fixed for examination of witnesses and evidences of the Prosecution.
• The pleaders by due permission of the Court, cross-examines the witnesses. 
• The Counsel for accused then provide their witnesses and evidences.
• After the witnesses are examined, the prosecutor sums up his case by way of arguments to which accused or his pleader is entitled to reply.
• After the arguments, the Court gives a judgement of conviction or acquittal.
• The Code also provides for Summary Trials in Sections 260-265 of the Code, a topic that is vast enough to be covered in subsequent blogs. 

5. Other means of disposal of cases

• Compounding of Offences:
  Compounding of offences means disposing off the case between two parties without any prosecution. Section 320 of the Code calls for compounding of offences. It provides for offences that can be compounded without the permission of the Court, offences which can be compounded only by the permission of the Court and who can compound the said offences. It is to be noted that only those offences mentioned in the Code can be compounded.
• Plea Bargaining:
  Plea Bargaining is one of the means whereby the accused, on conviction can plead for a lesser punishment. The provisions of plea bargaining were added in the Code as a new Chapter XXIA and is applicable in respect of those offences for which punishment is upto a period of seven years. Moreover it does not apply to cases where the offence committed is a socio-economic offence or where the offence committed is committed against a woman or a child below 14 years. Also, once the Court passes an order in this case, no appeal lies to any Court against the order.

6. Inherent powers of High Courts:
Section 482 of the Code provides for inherent powers of the High Court meaning thereby that High Court of the concerned state can be directly approached. The inherent power of High Court may be exercised:

• To give effect to an order under the Court 
• To prevent abuse of the process of Court 
• To secure the ends of justice.

SOURCES:
The Code of Criminal Procedure, 1973
Case Material on Law of Crimes – II, Faculty of Law, University of Delhi