Showing posts with label Agarwal and Company. Show all posts
Showing posts with label Agarwal and Company. Show all posts

Friday, May 11, 2018

SC stays verdict on pleas challenging validity of Aadhaar: Top 5 points

A five-judge constitution bench of the Supreme Court headed by Chief Justice of India (CJI) Dipak Misra on Thursday reserved its judgement on the Aadhaar matter. Several appeals were filed challenging the constitutional validity of Aadhaar. Supreme Court judge Justice D Y Chandrachud, while hearing the petitions challenging the Aadhaar scheme's constitutional validity, on Wednesday recalled a personal experience of how his mother, who was suffering from Alzheimer's disease, had faced difficulty in authentication to get her pension.
Justice Chandrachud is part of the five-judge Constitution Bench, headed by Chief Justice of India Dipak Misra, which is hearing a batch of petitions challenging the constitutional validity of the Aadhaar scheme and its enabling law of 2016.

A battery of lawyers including Attorney General K K Venugopal, who represented the Centre and senior advocates like Kapil Sibal, P Chidambaram, Rakesh Dwivedi, Shyam Divan, Arvind Datar, Rakesh Dwivedi had appeared for various parties.
The constitution bench also comprised Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan.
During the arguments spread over four months, the Centre had strongly defended its decision to seed Aadhaar numbers with mobile phones, telling the top court that it could have been hauled up for contempt if the verification of mobile users was not undertaken by it.
However, the court had said that the government had misinterpreted its order and used it as a "tool" to make Aadhaar mandatory for mobile users.
Former Karnataka High Court judge Justice K S Puttaswamy and other petitioners had challenged the constitutional validity of Aadhaar.
The court had also not agreed with the government's contention that the Aadhaar law was correctly termed as a Money Bill by the Lok Sabha Speaker as it dealt with "targeted delivery of subsidies" for which funds came from the Consolidated Fund of India.
On May 3, the Centre had strongly defended its decision to seed Aadhaar numbers with mobile phones, telling the top court that it could have been hauled up for contempt if the verification of mobile users was not undertaken by it. However, the court had said that the government had misinterpreted its order and used it as a "tool" to make Aadhaar mandatory for mobile users.
The petitioners had referred to the technical experts' views on the technical aspect of the Aadhaar architecture and said that real-time surveillance of citizens was possible.
Earlier, the court also did not agree with the government's contention that the was correctly termed as a Money Bill by the Lok Sabha Speaker as it dealt with "targeted delivery of subsidies" for which funds come from the Consolidated Fund of India.
1) SC reserves judgement on pleas challenging Aadhaar: The Supreme Court on Thursday reserved its verdict on a batch of petitions challenging the constitutional validity of Aadhaar and its enabling 2016 law.
A five-judge headed by Chief Justice directed all the parties concerned to file their written submissions to put forth their case.
The judgement was reserved after a marathon hearing which went on for 38 days spanning four months.
2) Justice Chandrachud's mother had to authenticate ID every month for her pension:failures could create problems for those in need and some solution had to be found to address the issue, said the Bench, also comprising Justices A K Sikri, A M Khanwilkar, and Ashok Bhushan. Recalling his experience, Justice Chandrachud said "my mother, who was suffering from Alzheimer's disease was entitled to family pension being the wife of a former Chief Justice of India (late Justice Y V Chandrachud)".
"She had to give a for authentication.

I recall, every month the bank manager or his representative would come home and affix her thumb print on certain documents and only then could she get the pension," Justice Chandrachud said. "So it (authentication) is a serious issue. It's not largesse. It is not charity... we have to find answers for these problems," he said, adding that there was a class of needy people who may not get the benefits due to authentication failures.
3) Senior advocate says 90-year-old woman who is unwell being threatened by bank over Aadhaar: The apex court judge was responding to the arguments of senior advocate Shyam Divan, appearing for former High Court judge Justice (Retd) K S Puttaswamy, who said a 90-year-old woman suffering from various ailments is being threatened that her bank account could be closed for non-authentication by Aadhaar.
Divan said that through that bank account, she was getting her pension and she uses that money for her treatment as she has no one else to look after her.
"There are numerous cases where the failures of the elderly, people suffering from any disease or physical disability, leads to to those otherwise entitled to it," Diwan said.
He said in many villages, young people have now migrated to cities or nearby towns and only the elderly residing there were dependent on their pension or other grants. But due to failure, they were not getting the benefits.

4) Senior advocate tries to poke holes in World Bank report praising Aadhaar: Divan sought to assail a World Bank report which had praised the Aadhaar project and which was relied upon by the government to bolster its case for the 12-digit unique identification number. He said the World Bank had partnered with a private entity for preparing the report titled 'Identification for Development'.
Divan claimed that the same private entity was also the company with which had partnered to facilitate Aadhaar.

5) Advocate Divan says Aadhaar authentication should not be made compulsory for certain schemes: Divan told the apex court that there were 144 notifications issued by various ministries and departments of the government which covered 252 schemes. The senior lawyer concluded his rejoinder arguments saying that essential government schemes that apply to children or relate to citizen's rehabilitation, food, health, and nutrition should be excluded from the requirement of Aadhaar authentication.

http://www.business-standard.com/article/current-affairs/aadhaar-case-sc-judge-recounts-ailing-mother-s-pension-hurdles-top-points-118051000187_1.html

Thursday, December 8, 2016

NGT sword on vintage car rally

Every December, enthusiasts wait for the high-profile car rally organised by the Constitution Club of India. But this year, it's likely to be a lacklustre affair, with the vintage cars of the MPs not being allowed in the rally due to the stipulations of the National Green Tribunal (NGT). However, the vintage cars will be put in display for the visitors.

This is followed by NGT's order that bans running vintage cars on Delhi roads. However, experts told Mail Today, that the green tribunal allows vintage car rallies when permission is sought. "The Constitution Club organises just a car rally in which there can be vintage cars. In earlier editions of the rally, such vintage cars did participate," said Tutu Dhawan, auto analyst and organiser of the CCI car rally. Vintage cars have been major attractions of this car rally. It was pioneered by the present Punjab governor VP Singh Badnore, who was the convener of the CCI car rally when he was a Rajya Sabha member. The old cars earned praises from all quarters, including Vice President Hamid Ansari.


"Vintage cars never fail to attract because of their classic looks. Each one of them has an identity and an equally amazing history," Dhawan added. With this car rally, the Parliamentarians also try to spread the message of safe driving. "This year, the car rally will be held on December 11. The theme of the rally is road safety," a CCI official said. "The rise in number of road accidents leading to loss of life is a serious concern. Our politicians spend a lot of time travelling on the roads while campaigning and meeting people. Safety and discipline on roads is very important. We are attempting to convey the message of road safety by organising a car rally every year," said organising committee member Shahnawaz Hussain. The rally is expected to be attended by people from across the social spectrum.

AskMe Ashok Rajagopal gets interim bail

Ashok Rajagopal, former director of defunct e-commerce firm AskMe who represented the majority investor Malaysia’s Astro on the board, got interim bail on a case filed by one of the online sellers My Limo Trading Company. The seller had accused AskMe of not paying the company the money the latter had collected on its behalf from buyers for goods sold on the e-commerce platform.

Though Rajagopal was not in charge of day-to-day affairs at AskMe, My Limo filed a case against him since he had represented Astro, the 98.5% stakeholder in Getit Infoservice Pvt Ltd, the company that ran AskMe. Rajagopal had sought anticipatory bail in this case in the court of district and sessions judge, Patiala House, New Delhi, after a first information report (FIR) was registered against him on complaints filed by My Limo Trading Company.

My Limo claims AskMe owes the former around Rs 1.5 crore.

The court has ordered not to take any coercive action against Rajagopal till 8 January, when the bail application would again be considered. Rajagopal and Astro spokesperson did not respond to queries regarding the legal proceedings.

The legal imbroglio involving Astro and AskMe is getting more complex with another FIR being registered against former AskMe board members on a case filed by My Limo’s affiliate company EBiz International seeking Rs 2.5 crore of defaulted payments.

AskMe suspended operations and top management led by CEO Sanjiv Gupta left the company in August when Astro stopped funding the company. A number of sellers are now filing cases against former directors while Gupta and the investor Malaysian conglomerate Astro are slugging it out at the National Company Law Tribunal (NCLT).

NCLT has scheduled for hearing on the winding down petition moved by Astro along with several other petitions related to this matter for 12 December.  Various parties including hundreds of online sellers and 4,000 unpaid employees of AskMe are awaiting the conclusion of the legal battle that was set off end-August following the collapse of talks regarding a management buyout.


Corporate Insolvency - National Company Law Tribunal

On November 25 2016, the provisions of the Sick Industrial Companies (Special Provisions) Repeal Act, 2003 (SICA Repealing Act) were notified with effect from 1 December 2016. This means that the Sick Industrial Companies (Special Provisions) Act 1985 stands repealed and consequently, the Board for Industrial and Financial Reconstruction (BIFR) and the Appellate Authority for Industrial and Financial Reconstruction (Appellate Authority) are dissolved. On the same day, Section 4(b) of the SICA Repealing Act, as substituted by the Eighth Schedule of the Insolvency and Bankruptcy Code 2016 (Code), was also notified with effect from 1 December 2016. It seems that as a corollary to these notifications and possibly to avoid creating a vacuum in the legal process, the Government of India decided to notify substantive parts of the Code relating to corporate insolvency resolution process on 30 November 2016, effective from 1 December 2016.

In our Ergo Newsflash of 25 November 2016 we had outlined that the Code was being notified in phases and that the provisions dealing with intermediaries had been notified into law on 27 November 2016. In May 2016, we had shared our thoughts on the broad contours of the Code with you. In addition to these, we provide below in FAQ format (i) a brief outline of what has been notified; and (ii) the implication of notifying the SICA Repealing Act on the Code.

The Code is here; long live the Code

What provisions of the Code have been notified?

Per the latest notification issued on 30 November 2016, the provisions relating to corporate insolvency have been notified into law, namely:

Sections 4 to 32: These deal with the substantive as well as procedural aspects of initiating a corporate insolvency resolution process, moratorium, constitution of the committee of creditors, and appointing of insolvency professionals, etc.;

Sections 60 to 77: These deal with offences and penalties for various actions;

Section 198: This allows the National Company Law Tribunal (NCLT) to condone any delay by the Board for reasons recorded in writing;

Section 231: The section bars the jurisdiction of civil courts in respect of any matter which the NCLT is empowered to pass orders on;

Sections 236 to 238: These sections (i) empower the special courts created under the Companies Act 2013 to try offences under the Code; (ii) empower the High Court to hear appeals and revisions from the special court; and (iii) make clear that the Code overrides all other laws in India;

Sections 239(2)(a) to (f): These sections empower the Central Government to make rules for various purposes; and

Sections 246 to 248 and 250 to 255: These sections amend various other laws and were notified prior to 1 December 2016.

In addition, the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations 2016 were also notified with effect from 1 December 2016. These regulations are substantive guidelines which outline how a corporate insolvency resolution process can be triggered, what constitutes proof of claim, the governance of the committee of creditors, and the power of the insolvency professional, amongst other things.

Impact of the notification of the SICA Repealing Act

What does notifying the SICA Repealing Act and, inter alia, Part II (Chapter 1 and 2) of the Code (both effective from today, 1 December 2016) mean for pending cases under the erstwhile SICA?

Section 252 of the Code, notified on 1 November 2016, amended the SICA Repealing Act by substituting Section 4(b) therein with the Eighth Schedule of the Code. This was later followed by the notification on 25 November 2016 notifying the SICA Repealing Act itself with effect from 1 December 2016. The net effect of this is that BIFR and the Appellate Authority are, as of today functus officio (ie defunct). In terms of the Eighth Schedule of the Code, it means that any appeal preferred to the Appellate Authority or any reference made to the BIFR or any inquiry pending before the BIFR or any other authority or any proceeding of whatever nature pending before the Appellate Authority or the BIFR immediately before the commencement of the SICA Repealing Act stand abated. Any company in respect of which such an appeal or reference or inquiry stands abated has been given an option to make an application to the NCLT under the Code within 180 (One hundred and eighty) days from the commencement of the Code in accordance with the provisions therein. The provisions of the Code giving such an option have come into force from 1 December 2016.
What is the impact of the SICA Repealing Act on the orders passed either under Section 22 of SICA or scheme sanctioning order or any other order affecting the rights of the parties therein?

As stated above, the SICA Repealing Act read together with Section 252 of the Code, does state that all proceedings pending before the BIFR or Appellate Authority, shall stand abated with effect from 1 December 2016. However, the SICA Repealing Act also contains a "savings" section. The way this section is drafted, it intends to "save" any rights and obligations which have vested in a party under SICA upon its repeal. Given the substantive nature of the above orders passed under SICA, it may be argued by some that these orders are saved. Having said this, considering that the criteria for reference to NCLT and declaration of moratorium under the Code are substantively different from what was prescribed under SICA, it remains to be seen if such an interpretation is maintainable and merits a clarification from the Government to remove ambiguity.

Do the notified provisions of the Code apply to all companies (and not just industrial companies)? What is the test for "sickness" under the Code?

The Code is a significant change from the erstwhile SICA regime, particularly on this point. As a remedy, the Code is available for and against all companies and partnerships in India, but as of now only against companies and limited liability partnerships. Further, as a remedy it is available not just to scheduled commercial banks in India but to all financial creditors (ie lenders or beneficiaries of corporate guarantees) and operational creditors (ie trade creditors).

Furthermore, the balance sheet test under SICA for determination of "sickness" has been replaced with a low threshold cash flow test. Where a corporate debtor has committed a default of INR 100,000 (Indian Rupees One lakh) or more, an operational creditor or a financial creditor or corporate applicant itself may initiate a corporate insolvency resolution process.

Source: http://www.mondaq.com/india/x/549680/Corporate+Commercial+Law/India+Steps+Into+A+New+Era+For+Corporate+Rescue+And+Insolvency


Changes in debt recovery laws growth positive

Secured credit is the driving force of the economy and growth of credit creates wealth and generates employment. Recent Amendment Act to change debt recovery laws passed by Parliament proposes certain path-breaking changes in the registration systems as well as in priority to secured credit over taxation dues. This will create an environment conducive to growth of credit not only by banks and financial institutions (FIs) but by all other secured lenders.
In terms of amendments to the SARFAESI Act, the Central Registration System established under the Act is to be extended to all secured lenders who will be able to register any security interest created in favour of the lender over immovable, movable or intangible property belonging to the borrower. The registration system is also to be extended to attachment orders on property issued by any taxation or other authority or by any court. Such registration system when implemented will result in creating a national database of all encumbrances on property rights and all lenders will be in a position to ascertain whether the property offered as security for any loan is already encumbered or under attachment.
One other aspect of the new registration system is that it is not compulsory and secured lenders have the option to register particulars of a property mortgaged, charged or hypothecated to them or any modification or satisfaction of such charge. But one distinct advantage of registration will be that there will be public notice of security created and any dealings with such property shall be subject to registered security interest. Hence, there is adequate incentive to register security interests over any property right for secured lenders. Similarly, enabling provision is made to extend the registration system to all taxation authorities having powers to issue attachment orders.
As far as priority to secured creditors over taxation dues is concerned, all the taxation authorities whether at central, state or local authority level operate on the principle that Crown debts have a priority over all other claims, including claims of secured creditors. Many states have incorporated provisions in tax laws declaring that arrears of tax dues shall have a first charge on the assets of the assessee and, in such cases, banks and FIs as secured creditors rank below the revenue claims. Further, revenue authorities have powers to charge penal interest on delayed tax payments and, in many cases, substantial part of the recoveries made by banks / FIs has to be paid to tax authorities.
Exception to the principle of priority to claims of revenue over secured creditors is provided under insolvency laws. Sections 529 & 529A of the Companies Act, 1956 now incorporated in the Sections 325 & 326 of the Companies Act, 2013 recognise the rights of secured creditors to claim priority over taxation dues subject to priority extended to workmen’s dues on pari passu basis.
Similar priority was recognised under the insolvency laws for individuals and non-corporates. The above principles contained in old insolvency laws have been incorporated in the new Insolvency and Bankruptcy Code, 2016.
Outside the insolvency laws, banks/ FIs have rights of recovery under the SARFAESI Act, 2002 and RDDB & FI Act, 1993. In the absence of any provisions in the above debt recovery laws recognizing priority to secured creditors over taxation dues, the Supreme Court had held that priority given under the state laws shall prevail over debt recovery laws and secured creditors cannot have priority over taxation dues.
Recent amendments to the SARFAESI Act and RDDB & FI Act have totally changed the status of banks/ FIs in the order of priority. Newly inserted Section 26E of the SARAFESI Act and Section 31B of the RDDB & FI Act recognise priority of banks/ FIs as secured creditors over taxation dues. This amendment is also conducive to promote low-cost credit by enhancing availability of secured credit.
Such amendments to debt recovery laws for banks / FIs are related to the legislative powers of Parliament to legislate on ‘banking’, because lending is the principal business activity of banks and speedy recovery of loans is part of the banking laws. The provisions made in the Union law passed pursuant to legislative powers of Parliament shall prevail over the state laws making contrary provision giving priority to state taxation dues under article 254(1) of the Constitution. Hence, the amendments made to the debt recovery laws are constitutionally valid and shall override state laws.
States need to appreciate that secured credit is the engine of growth in the economy. Such priority provided to secured credit will create an environment of growth for low-cost secured credit, which will trigger creation of wealth, generate employment and facilitate overall growth and development in the economy, and better tax collection by states.

http://blogs.economictimes.indiatimes.com/et-commentary/changes-in-debt-recovery-laws-growth-positive/

Supreme Court backs move to ban highway liquor vends

The Supreme Court indicated on Wednesday that it would order shutting of all liquor vends on national and state highways for the safety and security of commuters who get “distracted” after seeing the shops, causing accidents.

A bench headed by Chief Justice TS Thakur came down heavily on states for not heeding the Centre’s advice to not give licences to the vends on the highways. Instead, the states have increased the number of licences, the bench pointed out. The first communiqué was released in 2007, since then the Centre has been sending notices to the states.

“We would not like any vend on national highways, state highways, advertisements, or signage about the availability of liquor shops. We will direct all highway authorities to remove all sign boards. It should be absolutely free from any distraction or attractions. It should not be visible. Visibility is the first temptation,” Justice Thakur said.

The court was hearing petitions challenging various high court verdicts, which disapproved the sale of liquor on highways. The courts have held that the shops be located at a distance from where they are neither visible nor accessible to the commuters.

“You can start a door delivery of liquor,” the bench told counsel for Jammu and Kashmir who argued if the vends are away from the highway, people would have problems accessing them due to the terrains.

Punjab government counsel also faced the court’s ire for defending the liquor lobby’s interest. “You are acting like a mouthpiece for the liquor lobby by defending the policy,” the bench told the advocate who pleaded the ban should be made effective from April 1, 2017 to avoid a revenue loss of `1,000 crore to the exchequer.

Supreme Court Orders Facebook, Google, Microsoft To Block Rape Videos Circulating On Their Platforms

There is an evil side to social media as well, the one which we sometimes conveniently ignore or refuse to accept its existence. But, that evil is lurking around, choosing its next victim online.

One such evil is the circulation of rape videos on various social media platforms. Videos of sexual exploitation and rape are actually sold in large numbers in states like UP, Bihar, Rajasthan for as low as Rs 50. Shady dealers from rural hinterland acquire these videos, and make a business out of that.

And as per reports, these dealers acquire such sick videos from social media portals like Youtube and Dailymotion. And once a customer buys this video, it is again been re-circulated on the social media via WhatsApp, Facebook and the trauma of the victim continues.

Understanding the gravity of the situation, Supreme Court has ordered Facebook, Google, Microsoft to immediately place a ban on these videos.

A bench headed by Justice Madan B Lokur said, “The social media which is used to circulate the explicit clips should also be called in to ascertain their view as to how this can be curbed. We are issuing notice”,

This order was passed to Additional Solicitor General Maninder Singh.

Representing Govt. of India, Additional Solicitor will now issue notices to these social media portals and ask them to devise methods which can stop the sharing and viewing of these videos.

Why Supreme Court Intervened?

The Bench was hearing a PIL filed by Sunitha Krishnan who had initiated the popular #ShameTheRapistCampaign. Under this campaign, she received rape videos of more than 200 victims, which are being shamelessly shared across social media platforms, and instead of damaging the ‘reputation’ of the rapists, is destroying the life of the victims.
After her campaign, Govt. instructed CBI to investigate these videos, and book the culprits – both the rapists and those who are buying such videos and then circulating them on social media.

Interestingly, last month, the Court asked whether social media portals can held accountable and declared as accused in this case? This observation was made because these social media portals are the mediums through which such videos propagate, and if they are declared as accused along with the rapists and buyers of such videos, then it can turn out to be an interesting legal case study.

Analysts are saying that social media portals are mere platforms for sharing content, and hence, they cannot be held responsible for the type of the content. But yes, they can certainly block some specific type of content, if it harnesses evil and hatred.

Taking actual data from National Crime Record Bureau statistics, the apex court has asked the Centre to point out measures taken by the Govt. to stop cyber crimes against women and children.

As per arguments made by the Centre, it was revealed that Home Ministry has established exclusive Indian Cyber Crime Coordination Centre, which will work to stop such cyber crimes, including sharing of rape videos.

A statement from the Home Ministry said, “In order to tackle cyber crimes comprehensively, MHA has already set up an expert committee to recommend a roadmap for tackling the menace,”


Tuesday, December 6, 2016

Gujarat High Court Passes Verdict Against Entry Tax On Ecommerce Goods - Reduces Liability On Marketplaces

In the case of E-commerce Marketplaces Vs Gujarat State Entry Tax, the Gujarat High Court has reportedly granted some relief to the companies. The tax liability can now be reduced to the extent of central sales tax paid in the state of origin.
The order was passed by a division bench of Justice MR Shah and Justice BN Karia of Gujarat High Court, in a case relating to Flipkart and its group company Instakart. The ruling will ensure that the total tax paid on the goods purchased by consumers in Gujarat from ecommerce companies is equal to the tax paid levied on similar goods in the state.

The decision is in line with the judgement given by the Supreme Court on November 11, 2016, wherein the states were allowed to impose an entry tax on ecommerce goods, but also mandated to ensure that it should not discriminate when compared with the tax imposed on similar goods by a state on its local traders.
Long Story Short.

The Gujarat government passed the bill to levy entry tax on goods purchased through ecommerce portals in March 2016. As per the government, the previous bill affected the local traders as the goods on ecommerce websites were sold at a much cheaper price as no taxes were levied on these goods.

The ecommerce marketplaces including Flipkart, Amazon and Snapdeal alleged that they are a facilitator and an intermediary. The tax, if applicable, should be imposed on the merchant directly, and not on the marketplace. However, looking at the innumerable transactions happening via ecommerce marketplaces, states find it easier to impose the tax on the marketplace or delivery entity instead of the seller.

After Flipkart, Amazon too filed a case against Gujarat State Government for imposing Entry Tax. Flipkart also sued the states of Uttarakhand, Assam, Rajasthan, and Madhya Pradesh on similar lines.

Prior to this, in October 2015, Flipkart, Amazon and Snapdeal had collectively decided to stop delivering products exceeding INR 5,000 in value, in UP and Uttarakhand. The decision was made citing the harassment by tax authorities, wherein buyers needed to file VAT form and provide the details of vehicle shipping good while purchasing goods from them.

Other States With Taxes On Ecommerce Goods

Uttarakhand: In December 2015, the Uttarakhand government had imposed 10% tax on all ecommerce goods entering the state. In response, Flipkart filed a case against the state of Uttarakhand for imposing this entry tax on ecommerce goods.

Jammu and Kashmir: Tax is levied in case of non-registered dealers and individuals for goods above INR 4,999.

Maharashtra: The state has an entry tax on ecommerce goods.

Sikkim and West Bengal: Both the states have 1% tax on ecommerce goods.

Bihar: Shipments below INR 10,000 have tax applicable.

Himachal Pradesh: If the TIN is not mentioned then entry tax is levied. A 5% entry tax for individual & non-registered dealers, and 3% for government bodies.

Madhya Pradesh: In his budget speech, Madhya Pradesh Finance Minister Jayant Malaiya said the government wishes to impose an entry tax of 6% on goods purchased online to compensate for the loss due to ecommerce.

Assam: According to recent reports, Assam was also planning to levy a tax on ecommerce goods.

A few state governments charge these taxes in form of octroi and the amount ranges from 3% to 6% in different states. The situation is expected to become clear with the induction of the GST in April 2017, provided ecommerce marketplaces are defined correctly, so as to have the right kind of tax levied on them.

The development is first reported by ET.

Thursday, May 28, 2015

Defending India’s IPR


It is ten years since India amended the Indian Patents Act, 1970 to bring its laws in line with the agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The most important of those amendments related to the introduction of product patents for 20 years, including for pharmaceutical products. Significant safeguards were built into the legislation. These included debarring of ever greening patents, a process by which the patent holder seeks to extend the life of patents by some minor tinkering with the products. The amended legislation also expanded the scope of compulsory licensing and introduced for the first time post grant opposition to patents (Provisions relating to pre-grant opposition were retained).The legislation raised the bar for what constitutes an invention and what cannot be patented in India.

The above provisions served Indian consumers well by keeping the price of some important drugs dealing with critical illnesses such as cancer under check. The Patent office’s rulings have by and large been upheld by the highest courts. Inevitably big pharma have lobbied with their governments to force India to dilute the provisions.

The new government under pressure

The NDA government’s approach to the IPR issues has been a subject of intense discussion, especially in the context of repeated attempts by the US Trade Representative (USTR) to put India and some other countries on the mat over the alleged weaknesses in their IPR regime. The Office of the USTR is part of the executive office of the American President and apart from being the chief trade negotiator of the U.S. government has enormous clout over the conduct of trade across the world.

On April 30, the office of the USTR named India and China among 13 countries, which were placed on a priority list, requiring close scrutiny for their alleged IPR weaknesses in diverse areas including pharma, IT and publishing.

The report called upon these governments to plug what it thinks are the lacunae in their IPR regimes so as to align them with global standards. For India the USTR action has been a persistent thorn. As soon as the NDA government took office it had to face a similar report. In fact out of last year’s inclusion in the priority list, India faced a mid-term appraisal.

However, the U.S. authorities noted some improvement — a conclusion no doubt arising out of improving relations between the two countries at the highest levels.

There has been one saving grace on both occasions: India while being on the priority list was not designated a priority watch country, which might have led to penal action against India. In practical terms that means being able to stand up to influential lobbies such as seen spectacularly in pharma. The consolation prize of avoiding punitive action by the developed countries is simply not enough.

Draft of a new policy

India needs to fashion a policy that will be in tune with global standards and at the same time protect special Indian strengths. Prime Minister Narendra Modi has said as much: “India should align its IPR laws with global standards.” Commerce Minister Nirmala Sitharaman remarked earlier that “We need an integrated policy,” While nothing significant can be inferred from these statements the government has done well to release a draft IPR policy in the public domain. Taking a balanced approach, it says that existing laws — that seek to protect the rights and incentives of innovators on the one hand and public interest on the other — would remain. However it also calls for legislative changes to keep pace with economic and technological developments.

A challenging task

It is going to be an extremely challenging task to stick to that position. Of special concern have been the developments in the pharma industry where India is facing maximum pressures from extremely well funded lobbies set up by big pharma from the U.S. and other developed countries (although it must be reiterated that pharma is not the only area).

IPR challenges have to be met increasingly through political action and diplomacy. The government needs to strengthen its decision-making process and boost the skills of its negotiators. In this connection an important initiative of the NDA government has been the setting up of an IPR think tank which among other tasks, will help in the formulation of a National Intellectual Property Rights policy for the first. The draft paper is the first step. The government has called for feedbacks before it finalises a new IPR policy.

The domestic constituency of the NDA government also cannot obviously be ignored. Already there have been rumblings over the composition of the technical committee that will advise the government.

To reiterate, the main challenge is to eradicate even the faintest of suspicions that the government is acting under external pressure. India does not have an IPR policy but it has a strong legal foundation. Important precedents have been set especially in pharma-related matters. Besides, there is a well functioning Patents office with sufficient experience to grant patents and uphold consumer interests. From here a new, well balanced policy should not be too difficult. Resisting the big lobbies which have the support of the political establishments of developed countries is an entirely different matter.

(This article first appeared in The Hindu dated May 18, 2015)

Sunday, March 29, 2015

Some facts about National Green Tribunal (NGT)

The NGT is a specialized forum for effective and speedy disposal of cases pertaining to environment protection and conservation of forests.

BACKGROUND
Most conservationists would have heard of the National Green Tribunal (NGT), and some may have already filed applications before it. This short primer explains how, when and where to approach the NGT, and looks at the fundamental difference between courts and tribunals, and the structure and jurisdiction of the NGT.
The NGT was established on October 18, 2010 under the National Green Tribunal Act 2010, passed by the Central Government. The stated objective of the Central Government was to provide a specialized forum for effective and speedy disposal of cases pertaining to environment protection, conservation of forests and for seeking compensation for damages caused to people or property due to violation of environmental laws or conditions specified while granting permissions.

STRUCTURE
Following the enactment of the said law, the Principal Bench of the NGT has been established in the National Capital – New Delhi, with regional benches in Pune (Western Zone Bench), Bhopal (Central Zone Bench), Chennai (Southern Bench) and Kolkata (Eastern Bench). Each Bench has a specified geographical jurisdiction covering several States in a region. There is also a mechanism for circuit benches. For example, the Southern Zone bench, which is based in Chennai, can decide to have sittings in other places like Bangalore or Hyderabad. Click here for a copy of the notification specifying jurisdiction of each bench. Provided below is a link to all NGT zonal benches, addresses & contact details.
The Chairperson of the NGT is a retired Judge of the Supreme Court, Head Quartered in Delhi. Other Judicial members are retired Judges of High Courts. Each bench of the NGT will comprise of at least one Judicial Member and one Expert Member. Expert members should have a professional qualification and a minimum of 15 years experience in the field of environment/forest conservation and related subjects.

POWERS
The NGT has the power to hear all civil cases relating to environmental issues and questions that are linked to the implementation of laws listed in Schedule I of the NGT Act. These include the following:
The Water (Prevention and Control of Pollution) Act, 1974;
The Water (Prevention and Control of Pollution) Cess Act, 1977;
The Forest (Conservation) Act, 1980;
The Air (Prevention and Control of Pollution) Act, 1981;
The Environment (Protection) Act, 1986;
The Public Liability Insurance Act, 1991;
The Biological Diversity Act, 2002.

This means that any violations pertaining only to these laws, or any order / decision taken by the Government under these laws can be challenged before the NGT. Importantly, the NGT has not been vested with powers to hear any matter relating to the Wildlife (Protection) Act, 1972, the Indian Forest Act, 1927 and various laws enacted by States relating to forests, tree preservation etc. Therefore, specific and substantial issues related to these laws cannot be raised before the NGT. You will have to approach the State High Court or the Supreme Court through a Writ Petition (PIL) or file an Original Suit before an appropriate Civil Judge of the taluk where the project that you intend to challenge is located.

PROCEDURE FOR FILING AN APPLICATION OR APPEAL
The NGT follows a very simple procedure to file an application seeking compensation for environmental damage or an appeal against an order or decision of the Government. The official language of the NGT is English. Click here for the prescribed template for filing an Application/Appeal before the NGT.
For every application / appeal where no claim for compensation is involved, a fee of Rs. 1000/- is to be paid. In case where compensation is being claimed, the fee will be one percent of the amount of compensation subject to a minimum of Rs. 1000/-.
A claim for Compensation can be made for:
Relief/compensation to the victims of pollution and other environmental damage including accidents involving hazardous substances;
Restitution of property damaged;
Restitution of the environment for such areas as determined by the NGT.
No application for grant of any compensation or relief or restitution of property or environment shall be entertained unless it is made within a period of five years from the date on which the cause for such compensation or relief first arose.

PRINCIPLES OF JUSTICE ADOPTED BY NGT
The NGT is not bound by the procedure laid down under the Code of Civil Procedure, 1908, but shall be guided by principles of natural justice. Further, NGT is also not bound by the rules of evidence as enshrined in the Indian Evidence Act, 1872. Thus, it will be relatively easier (as opposed to approaching a court) for conservation groups to present facts and issues before the NGT, including pointing out technical flaws in a project, or proposing alternatives that could minimize environmental damage but which have not been considered.
While passing Orders/decisions/awards, the NGT will apply the principles of sustainable development, the precautionary principle and the polluter pays principles.
However, it must be noted that if the NGT holds that a claim is false, it can impose costs including lost benefits due to any interim injunction.

REVIEW AND APPEAL
Under Rule 22 of the NGT Rules, there is a provision for seeking a Review of a decision or Order of the NGT. If this fails, an NGT Order can be challenged before the Supreme Court within ninety days.

FREQUENTLY ASKED QUESTIONS (FAQS)

1. What is the difference between a Court and a Tribunal?
The Supreme Court has answered this question by holding that “Every Court may be a tribunal but every tribunal necessarily may not be a court”. A High court for instance, where a PIL would be filed, may have wide ranging powers covering all enacted laws (including the power of contempt) but the NGT has only been vested with powers under the seven laws related to the Environment.

2. We are trying to protect a National Park/Sanctuary from various pressures including a dam proposal and widening of a highway. Should we approach the NGT?
No. As explained above, the NGT is not empowered to hear matters pertaining to issues coming under the ambit of the Wildlife (Protection) Act, 1972, which is applicable in case of National Parks, Sanctuaries and Tiger Reserves. It would be appropriate to approach either the High Court in your State or the Supreme Court. Please consult a competent lawyer for advice.

3. Can I personally argue a matter before the NGT or do I need a lawyer?
Yes. You can argue the matter yourself provided you are well acquainted with the facts and are reasonably knowledgeable about the law and procedures. The language of the NGT is English, and some guidelines related to dress apply. However, it would be best if a lawyer represents you since (s)he will be better equipped to argue and handle all procedural aspects.

4. What is the penalty for non-compliance of an NGT Order?
If a project proponent or any authority does not comply with the directions contained in an NGT order, the penalty can be imprisonment for three years or fine extending to 10 crores or both. Continued failure will attract a fine of twenty five thousand rupees per day.

5. Is there a bar on civil courts to hear /take up cases under the seven specified laws in Schedule I of the NGT Act?
Yes. With the enactment of the NGT Act, Civil courts cannot hear matters related to Environmental issues under the seven laws which the NGT is empowered to deal with.



http://www.conservationindia.org/resources/ngt

Media as Arbiter of Law Harmful

The Constitution of India very clearly divides powers between the executive, the legislature and the judiciary. Executive power vests in the president and in officers appointed by him through whom he will exercise his powers. This applies mutatis mutandis (making the small changes that are necessary for each individual case) to the states also, except that here it is in the governor that executive power vests. It is the duty of the executive, within the laws framed by the legislature, to administer the country. The legislature itself enacts laws keeping in mind the provisions of the Constitution and directive principles given therein. The judiciary interprets laws and adjudicates all disputes. The role of each of these organs of the state is independent, though there is a coming together at the margin of the executive and the legislature and, to the extent that effect has to be given to the judgments of courts, at the margin of all three organs.

Adjudication is entirely within the domain of the judiciary, which is why so much emphasis is laid in the Constitution on the independence of the judiciary. Under the umbrella of the Supreme Court we have the high courts in which all the judges are given constitutional protection against removal except through a process of impeachment. The entire subordinate judiciary, from the district and sessions judge right down to the civil judge at the lowest level and judicial magistrate, is under the control of the high court and totally immunised from any interference by the executive. Under Article 227, superintendence of courts and tribunals located within the territorial jurisdiction of a high court is vested in the high court, which is empowered to lay down the rules and procedures to be followed by subordinate courts.

The independence of the judiciary and its sole authority to adjudicate and pronounce judgment are laboured because in the ultimate analysis it is only a court that can judge and deliver a decree or a judgment. In criminal matters the police can investigate, the media can report, but only the court can judge.

There is a presumption of innocence till guilt is proved beyond reasonable doubt, which is not only a basic principle of Anglo-Saxon jurisprudence but is also a part of our legal system. That is why under Article 20 of the Constitution no person may be convicted of an offence except for violation of a law. Under Article 21, a person cannot be deprived of life or personal liberty except according to procedure established by law. Under Article 20(3), a person cannot be compelled to be a witness against himself in any criminal proceedings. Under Section 101 of the Indian Evidence Act, the burden of proof lies on the person who alleges a fact or accuses a person of having committed a crime. That is the refrain of Chapter VII of the Indian Evidence Act. Under Indian law, the accused has to prove nothing, certainly not his innocence. All he has to do is to rebut the admissibility, relevance and credibility of the evidence led against him and if any doubt remains, then it is the accused who will get the benefit of doubt.

The police investigates, determines whether prima facie an offence can be brought home to an accused and then proceeds under CrPC (Code of Criminal Procedure) Chapter XII to prosecute the offender in a competent court. The freedom of speech and expression guaranteed by Article 19 does not supersede the constitutional competence of courts to pronounce judgment, nor does it permit the media to report matters in a way that would suggest that a certain person is in fact either the perpetrator of an offence or is the victim of the actions of a particular offender. Unfortunately, the Indian media, in particular some TV channels, are only too eager to act as accusers, inquisitors and judges and pronounce judgment freely on cases that lie within the domain of the judiciary. One recent example is that of the death of D K Ravi, an IAS officer of the Karnataka cadre of the 2009 batch who was found hanging from a ceiling fan in his house. Bangalore Police took notice of this and reported the matter to the nearest executive magistrate under Section 174 of the CrPC. The media jumped on this, claimed Ravi was an honest officer who as district magistrate of Kolar took action against illegal sand mining and subsequently, as joint commissioner, commercial taxes, launched a probe against land developers for tax evasion. The media concluded, without any investigation, that Ravi is an honest officer who has annoyed vested interests and these persons murdered him, and that he had not committed suicide. The Karnataka Police have been upbraided by the media, whose reports have triggered a popular agitation, for not registering an offence under Section 302 of the IPC and instead having recourse to Section 174. Unfortunately, the agitators and the mediapersons do not seem to have read Section 174 of the CrPC, which requires the police, on receiving information about a suspicious death, an alleged suicide, an accidental death, etc., to immediately report the matter to the nearest executive magistrate, who is then required to conduct an inquest. The magistrate can record evidence, send the body for post-mortem and subsequently to direct the course of action which, if the death appears to be a homicide, could take the form of recording of a FIR and subsequent investigation. The Karnataka Police had no option except to follow this course and I think the police have acted appropriately in D K Ravi’s case.

Before being judgmental our press must learn not to suddenly make a person a hero and someone else to be a villain. Do the media know enough about D K Ravi to decide here is an honest young officer who has been virtually tortured mentally by vested interests? Did he make any complaint in this behalf to his own superiors? One story emerging is that perhaps Ravi wanted a relationship with someone that was not reciprocated and, therefore, he could have been perturbed. All this will come out in the course of investigation and, therefore, any prejudgment in this behalf would be totally premature. Unfortunately, a media that is becoming increasingly immature in its hunt for sensationalism recognises none of the rules of prudence because it is so much easier to typecast people as heroes and villains in the unending saga, which it loves to create.

http://www.newindianexpress.com/columns/Media-as-Arbiter-of-Law-Harmful/2015/03/27/article2731556.ece