Incorporation of a Company

Incorporation of a company is a process used to form the corporate entity or the company. A company comes into existence after being incorporated. It becomes a separate legal entity of its own, recognized by law, and can be identified with terms like “Inc” or “Limited “ in its names once it gets incorporated. Incorporation essentially means giving birth to a company.

Continue reading

Revisiting Related Party Transaction laws in India

In layman’s language, a Related Party Transaction is nothing but businesses carried out among the relatives of different companies. On the other hand, legally speaking, there are many financial and commercial legal instruments which define and provide for such transactions.

Section 188 of the Companies Act, 2013 does not disallow or prohibit Related Party Transactions (for brevity, RPTs) but in fact, lays down how the contracts or arrangements involving related parties should be made keeping in mind the interests of the company, investors and other tax compliances. It is to be noted that the definitions of related parties have been given in not just The Companies Act, 2013 but also in Indian Accounting Standards-18 which is a tax compliance rule. Additionally, under the S. 41 of the Income Tax Act, 1961, while considering the taxable status of transactions, the following have been regarded as related parties:

assessee is an individual – any relative of the assessee; (ii) assessee is a company, firm, association of persons or HUF – any director of the company, partner of the firm, or member of the association or family, or any relative of such director, partner or member; (iii) any individual who has a substantial interest in the business or profession of the assessee, or any relative of such individual; (iv) a company, firm, association of persons or Hindu undivided family having a substantial interest in the business or profession of the assessee or any director, partner or member of such company, firm, association or family, or any relative of such director, partner or member; (v) a company, firm, association of persons or Hindu undivided family of which a director, partner or member, as the case may be, has a substantial interest in the business or profession of the assessee; or any director, partner or member of such company, firm, association or family or any relative of such director, partner or member; (vi) any person who carries on a business or profession, (A) where the assessee being an individual, or any relative of such assessee, has a substantial interest in the business or profession of that person; or (B) where the assessee being a company, firm, association of persons or Hindu undivided family, or any director of such company, partner of such firm or member of the association or family, or any relative of such director, partner or member, has a substantial interest in the business or profession of that person[1].

Therefore, it is always better to go through the section in the company’s annual report which details related party disclosures to get a fair idea of the operative mechanism of the company.Globally speaking, in countries like South Korea, RPTs act as a tool to transfer wealth from one generationof controllers to the next in avoidance of inheritance taxes.[2] In business adverse jurisdictions with stringent tax system, RPTs is a way of accruing private benefits.

Impact of RPTs

The RPTs have a tendency to adversely affect the financial health of the corporates by the undesired influence or control or joint control on the policies of the administration and operation of companies. The corporate wealth can be misappropriated by reducing the profits to the outside investors and shareholders. Tax evasion is also accompanied with such actions by managers of the company-. The best corporate governance practices are thus challenged owing to poor monitoring and disclosure policies of the companies in case of RPTs. Recent corporate scandals have heightened the concern to understand the phenomenon. Accounting frauds in Enron, Tyco, Parmalat, and Satyam are glaring examples of the same.[3] There has always been an incessant effort made to highlight the significance of transactions done based on arm length principle (usually, the parties to the transactions act independently without showing any personal interest in the business).

Let’s look at the laws in place

RPTs under Indian Accounting Standards

Under AS 18, related party includes[4]:

Enterprises, directly or indirectly, controlled by one or more other enterprises;

Associates or Joint Ventures of an enterprise;

Individuals who own interest in the voting power of an enterprise and are in a position tosignificantly influence the enterprise;

Key Management Personnel and their relatives;

Enterprises which share common directors.Now comes the analysis part, if we compare the two definitions, we will come to know that AS­ 18 is wider in purview than the Companies Act. The Companies Act requires approval only when a director and his/her relatives are involved in the transactions. However, even if substantial interest is involved if the key management personnel (i.e -a director), is not involved in any transaction, the approvals are not required-. In this way, AS-18 takes a lead because it requires the approval from all key management personnel transacting with related parties.

Disclosures

Presence of parent or controlling company is to be revealed in the financial statements irrespective of the transaction between the two[5]. However, before the Ministry of Corporate Affairs gave a clarification through a circular issued in 2014, to exclude mergers and acquisitions transactions from the purview of related party transactions (RPT) provision in the new company law. Prior to this, there were much speculations u/s 188 since the provision was not clear.[6]

Under both CLA, 2013 and SEBI Code, approval of the shareholders through special resolution needs to be obtained in addition to the requirement that the related parties must abstain from voting on such resolutions. But, the problem with this might be the rising of doubts in the minds of minority shareholders who have every right to disapprove a non-abusive RPT without wholly examining the proposed transactions. Not only this, it is highly imperative on the part of independent directors on the board to effectively monitor and identify the RPTs. Until these things materialize, Indian capital markets will continue to suffer.

Conclusion

Further, Auditing and Assurance Standard 23­ Related Parties impose duty on auditor to identify and disclose the related party transaction in the financial statements of the company. This is in correspondence to the roles of auditors in a company.

 Photo Courtesy: https://www.google.co.in/search?q=related+party+transaction&biw=1366&bih=612&source=lnms&tbm=isch&sa=X&ved=0CAcQ_AUoAmoVChMIhIutk8LhxgIViweOCh1VsQiR#imgrc=F8HmOobZKtdc9M%3A

http://www.thehindubusinessline.com/iw/2002/12/08/stories/2002120800520600.htm

…………………………………………………………………………………………………………………………………………………………….

[1] Definition of Related Party – A Comparative Analysis
CORPORATE LAW REPORTER http://corporatelawreporter.com/2013/02/22/definition-related-party-comparative-analysis/ last accessed 12/7/15
[2]Luca Enriques, Related Party Transactions: Policy Options and Real-world Challenges (with a Critique of the European Commission Proposal), HLS Forum
<http://corpgov.law.harvard.edu/2015/06/04/related-party-transactions-policy-options-and-real-world-challenges-with-a-critique-of-the-european-commission-proposal/>   last accessed 12/7/15
[3]Padmini Srinivasan, An Analysis of Related-Party Transactions in Indiahttp://www.iimb.ernet.in/research/sites/default/files/WP%20No.%20402_0.pd last accessed 12/7/15
[4]See Supra note 1
[5]IAS 24 — Related Party Disclosures, DELOITTE
http://www.iasplus.com/en/standards/ias/ias24last accessed 14/7/15
[6]K R Srivats, M&A deals, de-mergers not to attract related party provision in new company law, THE BUSINESS LINE

By Aishwarya Dhakarey

A Rape Covered Under The Veil Of Marriage

1.  Introduction

Whenever Mahira, who is 25 years old, has a fight or a heated argument with her husband, he takes it out on her in the bed. She is merely a toy for him whom he can use differently every night. He forces himself on her, every single day, even during her periods. Their relationship has never been about ‘consent’ and ‘equality’.

Similarly, many women are subjected to dowry harassment and brutal rape which involves inflictions with torch lights leading to serious injuries.

These are just a few examples out of the plethora of such cases. These women are all married and they have to go through such kind of violence and forced intercourse. Is a wife merely a tool to vent out sexual and emotional tension and frustration? Marital rape is an oxymoron. Yet marriage and rape have an unfortunate continued relationship in India. Both rape and marriage are considered ways of gaining control over a woman’s body since time immemorial. This was also exemplified in the infamous Imrana rape case[1] where back in 2005, 28-year-old Imrana, a mother of five, was raped by her 69-year-old father-in-law. And the Panchayat (local council) declared her marriage to her husband as void since she had had sex with her father-in-law and by virtue of her physical relationship with her father-in-law she was also told to treat her own husband as her son.

The dictionary meaning of the word “rape” is “ravishing or violation of a woman” which in its generic term “Raptus” implies violent theft, applied to both property and person. Rape is the word for forced or coerced sex. It is when the woman has not had the opportunity to freely give consent or she is unable to give consent. Marital rape is the non-consensual sex committed by the spouse. It is also known as partner rape or rape in marriage.

2.  Indirect laws addressing Marital Rape

Marriage in India is considered a holy sacrament between a husband and his wife. When a man marries a woman, it not only brings implied consent of sexual intercourse but also the man’s duty to give due respect to the dignity of his wife. When the husband commits unwanted/ forceful intercourse with his wife, he breaks the confidence of his wife and breaches her trust in him. Lately, Section 498A of the Indian Penal Code i.e. the anti-dowry law is voluminously misused by the women and a considerable number of rape cases reported each year are also false. Proving marital rape and taking bedrooms to courtrooms in such cases is not only a difficult but also a dangerous idea.[2]

As per the Indian penal legislation i.e., Section 375 of the Indian Penal Code- “Sexual intercourse” or “sexual acts” by a man with his own wife, the wife not being under fifteen years of age, is not rape.” [3] Exception to Section 375[4] of IPC provides immunity to the husband who rapes his wife and declares marital rape as legal and does not consider it as rape. This shows that the concept of marital rape goes beyond the virtues of Article 21[5] of the Constitution of India i.e. right to live with human dignity. Marital rape prima facie violates Article 14[6] of the Constitution as it creates a classification between married and unmarried women and denies equal protection of the criminal legislation to the former.[7] Though marital rape violates basic human rights that are attributed to every human being under the purview of these Articles there are not many remedies available to the victim.

Therefore, in India, marital rape can come under cruelty clauses of section 498A of IPC. Cruelty covers physical and mental harassment. Punishment is imprisonment for a maximum period of three years with fine. The remedies for cruelty under the Indian Penal Code take years to reach an outcome. In view of this, victims remain victims. They either give in, or give up.

Another remedy available to the wife is under the Protection of Women from Domestic Violence Act, 2005 which deals with protection of women from physical and mental cruelties of all forms, including sexual abuse. Family Courts as well as Magistrates provide counselling to the husband under domestic violence laws. But unfortunately, the provisions of this Act provide civil remedies only and a wife who wants to see her husband (rapist) punished finds no solution to that. Instead she is the one who struggles and suffers especially if she has children or is financially dependent or is without family support.

The only lasting solution to the problem of marital rape is legal separation or annulment of the marriage itself. A legally separated wife can only file a complaint for rape against her husband under Section 376A[8] of IPC.[9]

3. Startling Statistics

Marital rape is both common and an un-reported crime. A study conducted by the Joint Women Programme – an NGO, found that one out of seven married women had been raped by their husbands at least once. They frequently do not report these rapes because the law does not support them.[10] According to the UN Population Fund, more than two-thirds of married women in India, aged 15 to 49 years, have been beaten, or forced to provide sex.[11] Bertrand Russell in his book Marriage and Morals saw marriage as one of the most conventional forms of livelihood for a woman where the frequency of undesired intercourse she has to give in to is in all probabilities higher than that endured by a prostitute. [12]

Still the problem of marital rape has received very little attention from the activists, criminal justice system and the society at large. The concept of rape in marriage got recognition only after 1970s. The right of a husband to have sexual intercourse with his wife was considered to be one of the most natural implications of the contract of marriage.[13]

International Instruments

Article 2 of the Declaration of the Elimination of Violence against Women includes marital rape explicitly in the definition of violence against women.[14] Also the unanimous resolution at the UN conference in Beijing, September 1995 guarantees every woman the right to say no to sex as she wishes, specifically wives. In accordance with these Declarations and Conferences many countries have either enacted marital rape laws, repealed marital rape exceptions or have laws that do not distinguish between marital rape and ordinary rape. These States include Albania, Algeria, Australia (in 1991), Belgium, Canada, China, Denmark, France, Germany, Hong Kong, Ireland, Italy, Japan, Mauritania, Mauritius (in 2007), New Zealand (under Crimes Act, 1961), Norway, the Philippines, Scotland, South Africa, Sweden, Taiwan, Tunisia, the United Kingdom (in 1991), the United States, and recently, Indonesia, Thailand (in 2007), Turkey (in 2005).[15] In England and Wales, the House of Lords held in 1991 that the status of married women had changed beyond all recognition. Lord Keith, compared a marriage of the modern times with a partnership of equals where the wife is no longer the subservient chattel of the husband.[16]

4. Rethinking of the existing law

In India, the 42nd Law Commission Report (1972) suggested that marital rape should be criminalised. However, actions were not taken to that effect and the 84th Report (1980) was not in favour of the criminalisation. In the year 1996 the Supreme Court of India in Bodhisattwa Gautam v. Subhra Chakraborty[17] classified rape as a crime against the basic human rights and a violation of the victim’s most cherished of fundamental rights, namely, the right to life enshrined in Article 21 of the Constitution. However, the Apex Court negated this very pronouncement by not recognizing marital rape.[18] This shows that the Indian courts as well as the law makers have made recommendations and pointed out the need for penalising marital rape several times. Still there has not been any substantial change in this field.

5. The gray areas

There are a lot of loopholes in the Indian legal system when it comes to marital rape. It not only provides immunity to the rapist husband but is also silent with regard to a lot of questions. For example, there are no provisions to deal with the cases of rape which are committed by the husband in collusion with a third person or if rape is committed by both the husband and a third person. Whether the third person will only be punished for rape, or whether the husband, would escape punishment for marital rape owing to his relationship with the victim are some of the many questions which the law has failed to adequately answer.[19]

 The honourable High Court of Delhi has rightly pointed out in the case of Meena & Anr. v. State & Anr.[20] on 17 October, 2012 where the Court observed that if a girl who is not the wife of the man but is below 16 years of age (15 as per the Criminal Law Amendment 2013) then even the consensual intercourse between the two amounts to rape. But if the girl is above 16 years and is wife of the man, then even the forced intercourse is not rape. This provision in the Indian Penal Code, 1860 is a specific illustration which shows that the legislature has legitimized the concept of child marriage by keeping a lower age of consent for marital intercourse.

6. The deep scars left from the crime

Marital rape causes both mental as well as physical trauma which has severe and long-lasting consequences on women. The immediate physical and gynaecological effects of marital rape include injuries to private organs, lacerations, soreness, bruising, torn muscles, fatigue, vomiting, miscarriages, stillbirths, bladder infections. It may also lead to infertility and HIV. Rape in marriage has a lot of long-lasting psychological consequences also. It causes anxiety, shock, intense fear, depression, sleep problems, suicidal ideation, etc. [21]

7. Conclusion

The concept of marital rape is an oxymoron. It is a rape under the veil of marriage. Marriage is not a licence for sex. Just because a woman says “I do” to marriage it does not mean that she has said “I do” to sex whenever, wherever, and however her husband wants it. Sex is not an implied ‘right’ under the contract of marriage rather it is a clear communication of love, mutual consent, caring and respect between husband and wife.

A recent incident of gang rape and murder of a student on a bus in Delhi in 2012 led to a mass outcry. This outrage took place when the girl was raped by strangers. Had she been raped by her husband, would it have the same effect? If rape is the violation of human rights then it would continue to be a violation whether committed by her husband or a stranger.

The dignity of women either married or unmarried is alike. She cannot be considered as a property or the subservient chattel of the husband In today’s scenario we require generation of awareness along with judicial awakenings. What really needs to be done is to teach both boys and men to not rape and educate them to view women as valuable partners in every aspect of life.

[1] http://archive.indianexpress.com/news/imrana-rape-case-fatherinlaw-gets-bail/1143012/

[2] http://www.bbc.com/news/world-asia-india-32810834

[3] As per the Criminal Law (Amendment) Act, 2013

[4] Section 375- Definition of Rape

[5] Article 21 of Indian Constitution- Protection of life and personal liberty

[6] Article 14 of Indian Constitution- Equality before law

[7] http://www.indialawjournal.com/volume2/issue_2/article_by_priyanka.html

[8] Section 376A – Intercourse by a man with his wife during separation

[9] http://www.firstpost.com/living/law-marital-rape-domestic-violence-act-reasonable-substitute-2223674.html

[10] http://www.supremecourtcases.com/index2.php?option=com_content&itemid=5&do_pdf=1&i

d=586

[11] www.ijmr.net.in

[12] http://www.ndtv.com/opinion/the-sordid-reality-of-marital-rape-760245

[13] http://www.ebc-india.com/lawyer/articles/645.htm

[14] http://www.un.org/documents/ga/res/48/a48r104.htm; Usha Badri Poonawalla vs K. Kurian Babu [AIR 2002 Bom 292]

[15] Refer – Law Commission of India’s 20th Report on Proposal to Amend The Prohibition Of Child

Marriage Act, 2006 And Other Allied Laws

[16] http://nlrd.org/wp-content/uploads/2013/01/121798698-Justice-Verma-Committee-report.pdf

[17] (1996) 1 SCC 490

[18] http://www.theglobaljournals.com/ijar/file.php?val=December_2013_1385986800_cc62d_76.pdf

[19] www.jstor.net

[20] W.P. (Crl.) 1231/2012

[21] http://www.vawnet.org/research/summary.php?doc_id=248&find_type=web_desc_AR

By Anubha Yadav

Juvenile Justice (Care and Protection of Children) Amendment Bill, 2021: All you need to know

The Juvenile Justice (Care and Protection of Children) Amendment Bill, 2021 (hereinafter referred to as ‘the bill’) which amends the Juvenile Justice Act, 2015 was recently passed by the Rajya Sabha after being tabled in the Lok Sabha in March. The Bill did not receive too much opposition and was passed with overwhelming support from both the opposition and the ruling party. The Bill brings in certain key changes with regard to the power of district magistrates as well as in classification of offences. 

What is the Juvenile Justice Act, 2015?

The Juvenile Justice Act, 2015 (hereinafter referred to as ‘the Act’) is the act governing the juvenile justice system in India. It was passed in 2015 and replaced the now-repealed Juvenile Justice (Care and Protection of Children Act), 2000. The Act deals with the trial of juveniles as adults i.e. those from 16-18 years of age. It provides for a Juvenile Justice Board to decide whether a juvenile should face trial as a child or not, depending on the crime committed and the circumstances surrounding it. The Act also brought in certain provisions relating to adoption and the procedure to adopt.

The Act at the time of passing, received huge backlash from Child Right Activists and opposing MPs who argued that punishing juveniles should not overshadow the prospect of educating them, especially considering the fact that many who commit crimes at a young age are illiterate and economically backward. Even till date, there are question marks that remain over the Act with organizations that stand for child rights pushing for it to be repealed or amended. 

The Juvenile Justice Amendment Bill, 2021 – Changes brought in

The latest amendment bill brings in a few crucial changes to the original act, although most of these don’t concern the earlier mentioned criticisms of the Act. While presenting the Bill, Minister for Women and Child Development, Smriti Irani stated that the bill would give more responsibilities to District Magistrates to ensure fast trials as well as fast adoption procedures. 

The changes that have been brought in are as follows:

Increased power and responsibilities for District Magistrates

The bill provides District Magistrates (DMs) with the power and responsibility to ensure that all provisions of the Act are implemented. More specifically, it requires them to supervise the functioning of agencies such as Child Welfare Committees, Juvenile Protection Units, Juvenile Justice Boards, etc. The change has been brought in due to the fact that a plethora of such institutions were found to not be conforming to the provisions of the Act. 

The bill also requires every DM to check on members of such institutions, especially Child Welfare Committees. Background checks, criminal charges and the like are to be looked at and verified by the DM to remove any probability of child abuse and the like. For the same, the committees must adhere to the DM’s requirements and file reports on their activities and that of their members. Further, DMs are also tasked with issuing adoption orders. 

While all of these changes have been welcome ones that have been brought in to ensure the smooth functioning of welfare committees, boards and protection units, concerns have been raised that the responsibilities placed on the DMs are excessive. 

Clarification of offences and punishments

There was quite a bit of ambiguity previously regarding certain terminology in the original Act such as ‘heinous offences’ and ‘serious offences’. The bill has clarified the same and brought in minor changes in punishments. Serious offences would now include those for which maximum punishment is more than seven years of imprisonment. Heinous offences are those with a maximum imprisonment of seven years.

Conclusion

Although the amendment bill does not address the original concerns that were raised when the original act was passed, it seems like a step in the right direction as it provides for better functioning and operation of committees, boards and protection units. DMs might feel hard done by however, and it remains to be seen if some burden will be eased on them after the bill comes into force as an Act. 

Consumer Protection Laws In India With Special Reference To Human Health- A Socio-Legal Study

The Consumer Protection Act or the CPA is a statute that was enforced in the year of  1986. The CPA was implemented in India so as to ensure the protection of the interests of the consumers and to prevent them from exploitation at the hands of the sellers. Under the Consumer Protection Act, six consumer rights were included,  namely, right to be heard, right to choose, right of education of customer, right to safety, right to redress and the right to be informed.

Continue reading

Inherent Powers of the HC made explicit in case of non-compoundable Offence

A recent judgment by the apex court of India in the case of Narinder Singh v. State of Punjab has been instrumental in removing the ambiguity in law. A law that gives the High Court (hereinafter referred as HC) inherent powers to quash proceedings on the basis of settlement between parties has emerged from this judgement. The judgment delivered appears to be progressive, as it has listed out the guidelines that should be followed by the HC while using its inherentpowers, thereby bringing about certainty in the law. This judgment is extraordinary for two reasons. Firstly, it explicitly enhances the power of the court to quash proceedings even if the offence falls in the non-compoundable category. Secondly, it enumerates a list of guidelines that explains how the three abstract conditions stated in section 482 of Criminal procedure Code could be met. The three conditions being: to give effect to any order under the Code, to prevent the abuse of the process of any court and to secure the ends of justice.

At the very outset, it is quintessential tounderstand the meaning of the terms ‘compoundable offences’ and ‘non compoundable offences’. ‘Compoundable offences’ are those kinds of offences, which do not require a court’s permission to quash the proceeding if compromise has been reached between the parties. However, ‘non-compoundable offences’ require the permission of the court to allow such a compromise between parties, whichinturn would lead to the acquittal of the accused. The very distinction is made on the ground that offences that are heinous and serious in nature are regarded as offences against the society at large and therefore acquittal in such cases has to be scrutinized before being granted. While the offences, which were not so heinous,are allowed sincethey are regarded as offences against an individual and if the aggrieved individual has agreed to compromise, it would be wise for the court to quash the proceedings.

The highlighting aspect of this case was that a non-compoundable offence was allowed to be quashed under the discretionary powers given to the HC (section 482 of Code of Criminal Procedure, 1973). We should take note that offences, which are considered to be compoundable, are given under section 320 of the Code and clause 9 of the same states that no offence shall be compounded except as provided by this section. In this case it was witnessed that the offence committed by the accused was outside the ambit of section 320. So, then the question arises, should the discretionary powers given to the HC be allowed to quash the proceeding of a non-compoundable offence under section 482? Does it not go against the letter of the law? Does this not infringe section 320 (9) of the Code?

To answer these questions it is essential to examine the guidelines laid down in this case. These guidelines enumerate principles that would direct the HC in using its discretionary powers. The very first guideline explains that there is a distinction between the powers of compounding of offences given to the court under section 320 and quashing the criminal proceedings by the HC in exercise of its inherent jurisdiction conferred upon it under section 482 of the Code. The distinction lies in its application. In case of the former, the court just checks if compounding in permissible under section 320, and if it is, the court is solely guided by the compromise between parties. However, in case of the latter, the court is guided by materials on record and not just the compromise being met, It checks whether the ends of justice would justify the exercise of power.Although the ultimate consequence of the two maybe the same. But the means to reach the end is different and therefore should be appreciated.

The second guiding principle reiterates the section itself giving out the two important objectives of such usage of power by the HC. First, being to secure the ends of justice and second to prevent the abuse of power of any court. The third guiding principles identifies when such powers should not used by the HC. Firstly, when the offence is not private in nature and has serious impact on society and secondly, when the offence involves serious and heinous offence. And lastly, even when offences are alleged to have been committed under special status it should not be quashed by the HC merely on the basis that compromise has been attained between parties.

While listing out the areas under which the HC should refrain from usingits discretionary powers, the forth-guiding principle expounds the core idea of this section. It states that the HC also has to check whether the possibility of conviction is remote or bleak and if the criminal proceeding is allowed to continue great oppression and extreme injustice would be caused to the accused. If the HC feels in consideration of the facts and circumstances of the case, that such would be the case then it should quash the proceeding. So, it can be inferred from this principle that even if the offence is considered to be serious, the court may quash the proceedings if it is of the opinion that grave injustice would be caused by its continuance.. This principle gives of the taste of inherent powers. The power that court would decide according to its own discretion to avoid injustice. In my opinion, this principle super powers all the other principle asit makes it explicit that the discretion lies on the HC. And at the periphery it has coated it with conditions, which the court has to fulfill if a decision has to emerge.

The sixth guiding principle takes note of a very vital factor in such cases. The essentiality of time has been enumerated. It has elaborately explained at what stage such discretion should be used by the HC. There are foursituations given out: – firstly, when settlement is arrived immediately after the alleged commission of the offence and the matter is still under investigation. In such a case, the HC will be liberal in accepting the settlement and quashing the proceeding. The next situation is when the charges are framed, but evidence is still at the infancy stage, the HC should show considerable benevolence only after the prima facie assessment of material circumstances. Thirdly, when prosecution evidence is almost complete, and after the conclusion of the evidence, the matter is at the argument stage, the HC should refrain from exercising such powers. Lastly, when the conviction is already recorded at the trail court and the matter is at the appellate stage before the HC, mere compromise would not be a ground to accept.

These guiding principles try to give certainty to the law relating to the usage of inherent powers. It exhibits a core where the real essence of this section is upheld- the factor of it being discretionary in nature, which is seen in guiding principle no. 4. This core has layers of principles at the outer end. These principles are the guiding factors elaborately explained above. So, if the HC has to use its discretionary powers it has to fulfill the conditions of the layers at the outer end. Therefore, in my opinion this judgment is one-step forward and making law more reasonable to understand.

******

[1](2014) 6 SCC 466 [1]Prevention of Corruption Act or Offence committed by public servants while working in that capacity

By Dipti Srivastava

Law of Evidence in India

Evidence is the material on the basis of which the Court can decide the case. Such evidence must be produced before the Court so that it can establish or disprove the point of contention between the parties. The Law of evidence is a very crucial piece of legislation which helps and guides the court in arriving at a conclusion with regard to the existence or non-existence of facts. The rules of evidence are necessary to bring out the truth in every case and the Court should stick to such rules. Basically, the rules of evidence are required to draw a line between relevant and irrelevant facts. There will be great uncertainty with regard to relevant matters, if the court started depending upon the discretion of the Judge in such matters in every case.

In contrast to the substantive laws, which deal with rights and liabilities, law of evidence is a procedural law which provides rules with regard to introduction of evidence to support the case and covers the fundamental principles of proof of facts, its type, quality and quantum etc in a legal proceeding. The Law of evidence is said to be the law of the forum or the lex fori.

The concept of burden of proof is also essential in the law of evidence. The concept is differently applied in civil and criminal cases. Burden of proof broadly means that whoever wants the Court to give a judgement as to any right or liability which is dependent on certain facts must prove existence of such facts. When a person is bound to prove certain existence of facts, it is said that “the burden of proof lies on that person”.

For deciding a civil case, preponderance of probability is sufficient. Preponderance of probability means existence of a greater weight of evidence which is valuable to determine the offence and sufficient enough to incline a fair and impartial mind to one side of the issue. The Judge generally takes into consideration that evidence which is persuasive and outweighs the other side. On the other hand in a criminal case, the burden of proof is on the prosecution which should be proven beyond reasonable doubt. The highest standard of proof which must be met in a trial court is that of beyond reasonable doubt. This means that the judge has no doubt of the defendant’s guilt.

Section 3 of The Indian Evidence Act, 1872 defines oral evidence and documentary evidence. The Act says that all those documents which are presented in the court for inspection are documentary evidence.

 Section 60 of the Act provides for the recording of oral evidence. The most fundamental principle of oral evidence is that it must be direct. All facts except the contents of documents or electronic records may be proved by oral evidence.

Evidence can also be classified into primary and secondary evidence. Primary evidence means that the document itself is produced for inspection. It is the best form of evidence. The evidence which is produced in the absence of primary evidence is known as secondary evidence. Secondary evidence is not admissible unless the primary evidence is proved to be lost or destroyed. Existence of facts needs to be proved by primary or secondary evidence, if there is no such evidence then the document cannot be said to be proved.

Primary evidence speaks for itself and it does not need corroboration. In case of secondary evidence, supplementary evidence needs to be provided so as to strengthen and confirm existence of facts. The Supreme Court has given a vivid description of corroborative evidence in the case of Rameshwar v/s State of Rajasthan (AIR 1952 SC 54). Corroborative evidence refers to an additional evidence from an independent source  which connects the accused with the crime and confirms/substantiates the complainant’s testimony. The corroboration need not be direct evidence.

Direct evidence of a fact means which can be perceived by the senses and it is always primary in nature. It is the strongest form of evidence. On the other hand, hearsay evidence is no evidence.

Hearsay evidence is that evidence which is based on information given by a third person. Hearsay evidence is inadmissible in Court because information given by a third person cannot be trusted upon. In the case of Saktar Singh v/s State of Haryana (AIR 2004 SC 2570), The Supreme Court held that hearsay evidence means the statement of a witness not based on his personal knowledge but on what he heard from others and such evidence is not admissible.

However, there are few exceptionional circumstances under which hearsay evidence is admissible. Statement of a person may be proved by a witness if the fact stated by such person surrounds the relevant facts. This is called doctrine of res-gestae (section 6). An admission of liability or a confession of guilt which is outside the Court can be proved by the testimony of the person to whom such confession was made. Statement in public documents, such as official books and registers, Acts of Parliament are not needed to be proved by the draftsman of such document. Evidence given by a witness in proceeding can be used in a subsequent proceeding between the same parties, provided that, the witness has died or is unavailable for some other reason. Hearsay evidence is also admissible in case of dying declaration. Statement of a dead person becomes relevant when it relates to his cause of death. Expert evidence of a third person is required when the Court has to form an opinion about some foreign law, science, art, and identification of handwriting or hand impression. An expert must have special training and experience on the subject matter upon which his opinion is asked for.

Evidence needs to be proved before the court admits such documents. Once the evidence is admitted, it cannot be further challenged. The general notion is that, any dispute regarding the admissibility of any document should be made by the opposite party at the trial level only. In contrast, there are various landmark judgments where admissibility of evidence has been challenged at an appellate level. In the case of R.V.E Venkatachala Gounder v/s Arulmigu Viswesaraswami and V.P. Temple and Anr(2003 8 SCC 752), the admissibility of document was challenged at the appellate level. As per the case, the objection as to admissibility of evidence can be classified in two ways – (i) an objection that, the document which is to be proved was inadmissible; and (ii) an objection to the insufficient mode of proof of that document. In the first case, even if a document has been marked as ‘an exhibit’, an objection as to its admissibility can be raised even at a later stage or even in appeal or revision. In the second case, when the objection is regarding mode of proof of the document, it should be raised before the evidence is admitted. Once a document is admitted, objection to its mode of proof can’t be raised at a subsequent stage. It is fair play rule.

The Indian evidence Act, 1872 is dynamic in nature and has evolved with time.  Two of the recent developments in the Act came with the Information Technology Act, 2000 and Criminal Law (Amendment) Act, 2013.

 The Information Technology Act, 2000 broadened the definition of “evidence” by substituting the words “all documents produced for the inspection of the Court“, with “all document including electronic records produced for the inspection of the Court“. After section 65, sections 65A & 65B were inserted. Section 65A has special provisions as to evidence relating to electronic records such as telephone conversation, CCTV footage, computer output etc. and section 65B deals with the admissibility of such electronic records. The Information Technology Act basically enhanced the Evidence Act by elaborating the scope of evidence (electronic records, digital signature etc.)

The most recent development in Evidence Act was in 2013 after the infamous Delhi rape case. Section 53A was inserted which says that evidence of character of the victim or any person with prior sexual experience is not relevant on the issue of consent or the quality of consent . Quality of consent means likelihood or probability of the victim to give consent. It is a scale of character where a woman is judged based on her sexual experience. If the woman is a virgin then it is very unlikely of her to give consent and as it is often generalized, women with prior sexual experience with different partners are more likely to give consent to any subsequent sexual act. Section 114A when the sexual intercourse of the victim is proved and the question is whether the victim consented or not, if she states in her statement that she did not consent, the court shall presume that she did not consent.  The Amendment to section 146 made it clear that it is not permissible to introduce evidence or put questions in the cross examination of the victim as to her immoral character or her prior sexual experience for proving consent or quality of consent.

The procedural laws are as important as the substantive laws. Sometimes simple procedures are neglected which cause problem in the later stages of the trial or also in the appellate stage. Small loopholes can change the entire scenario of the case. In conclusion, procedural law is required for carving the path for proper functioning of the substantive laws. The law of evidence establishes a working structure for the courts from the grass root level.  In some cases it is just a set of technical hurdles to buy time for the parties and delay justice but these laws are framed for the sole purpose of filtering out the truth and serving justice to the people of the country.

By Srija Choudhury

OVERVIEW OF MEDIA AND ENTERTAINMENT LAW STATUTES IN INDIA

The Media and Entertainment Industry (M&E) in India has grown in importance during the last few years. It is estimated to generate more than USD 35 million in revenue. In the M&E industry, suppliers and consumers are increasingly leveraging the internet, resulting in new technical advances.

M&E has a significant risk of being abused because it is such a broad field. Several laws have been adopted to ensure effective regulation, each with its unique set of objectives. The Cinematograph Act of 1952, the Cable Television Network Regulation Act of 1995, and the Information Technology Act of 2000 all control content in mediums of display such as cinemas, television, and the internet.

For the protection of intellectual properties such as trademarks and copyrights, legislation such as the Copyright Act of 1957 and the Trademarks Act of 1999 were adopted. The penalty for offences committed in this industry, such as defamation, hurting religious sensibilities, and so on, is governed by the Indian Penal Code, 1860.

In the M&E industry, the principal source of concern is the right to free speech and censorship. Freedom of speech and expression through sources such as electronic media and written writings is a core right under Article 19 of the Indian Constitution. Article 19 ensures freedom of expression as a fundamental component of everyone’s right to self-development.

The court concluded in Brij Bhushan & others vs. State of Delhi that censorship will clearly impair freedom of speech and expression.

Various censorship authorities, such as the CBFC and the I&B Ministry, are placing constraints on creative freedom of speech and expression by regulating films. Udta Punjab, Lipstick beneath My Bhurkha, and other restricted films are examples. Because democracy is the most important element today, and a functioning democracy necessitates freedom of expression.

Copyright infringement and trademark protection are the second area of concern in the M&E sector. The Copyright Act of 1957 protects and registers literary, dramatic, musical, sound recording, and creative works. The main purpose of the act is to avoid the misuse of copyright monopolies and to achieve a fair balance between individual rights and the public interest. Names, titles, words, letters, visual artwork, product shapes, terminologies, and color combinations are all protected by the Trademarks Act of 1999. In the event of trademark infringement, this statute provides for remedies.

Piracy is the third source of concern. Online piracy is defined as the theft of a licensed owner’s property from the internet, resulting in damage and loss. Every year, piracy costs the film industry $2.8 billion in revenue, according to the M&E Industry. The advent of digital downloads and the availability of low-cost rental choices have contributed to the downfall of the movie theatre sector. Filming in theatres and the distribution of films in other countries a day before they are released in the United States are the main sources of piracy. Before they are released in theatres, some films are made available online.

Producers and filmmakers must obtain John Doe orders from the court to combat film piracy. The court concluded in Shreya Singhal v/s Union of India[4] that online content should only be removed if an adjudicatory body obtains an order ordering intermediary to do so. The Supreme Court ruling shields the intermediaries from accountability when the parties concerned fail to comply with the order to remove illegal content.

Sections 54 to 62 of the Copyrights Act of 1957 deal with the civil remedies that are available in civil courts for copyright protection. The regulations for criminal punishment when someone intentionally infringes on a work’s copyright, other rights granted by the act, or knowingly aids and abets the infringement are covered in sections 63 to 70.

Anyone found guilty faces a penalty of up to 3 years in prison, but no less than 6 months, a fine of not less than 50,000 rupees but not more than 2 lakhs, the search and seizure of infringing things, and the transfer of infringed goods to the owner. The number of criminal prosecutions filed for offending religious sensitivities, defamation, and selling obscene goods has risen. Most complaints are submitted with the purpose of gaining publicity and media attention. The inconvenience created by such incidents is a significant barrier in the industry.

The M&E sector is a constantly evolving industry controlled by a plethora of rules. The right to free expression and censorship, trademark infringement, and piracy are driving forces in ensuring the protection of rights and establishing fair market standards. In these sectors, legislation lays the path for the industry’s expansion.

By: – Pragati Sengar