To start with, this brief, brilliant and balanced judgment authored by a single Judge Bench of the Karnataka High Court comprising of Justice Sachin Shankar Magadum sets the ball rolling by first and foremost putting forth in para 1 that, “The captioned writ petition is filed by the defendant No.2 questioning the order dated 30.05.2022 passed on memo filed by the petitioner/defendant No.2. Under the impugned order, the learned Judge has declined permission sought by the counsel appearing for the present petitioner/defendant No.2 to be present at the remote point while recording evidence of defendant No.2.”

              To put things in perspective, the Bench then envisages in para 2 that, “The present petitioner is a resident of Michigan, USA and is aged about 87 years and is suffering from various health issues. Therefore, the petitioner filed applications in I.A.Nos.27 and 28 under Rule 6 of the Video Conferencing Rules and also application in I.A.No.36 under Order 18 Rule 16 of CPC to examine the petitioner immediately. The said applications were allowed by the Trial Court thereby permitting the present petitioner/defendant No.2 and defendant No.5 to record their evidence through Video Conference. The Trial Court accordingly with the consent of parties to the suit, fixed the date of recording evidence through video conferencing on 06.06.2022. The petitioner filed memo on 25.05.2022 requesting the Court to make further e-mail correspondence towards logistic support and to inform the remote point coordinator to issue 5 entry passes to enable the petitioner to have assistance of his Advocate and also attendants.”

     While stating the precise reason behind filing of petition, the Bench then specifies in para 3 that, “The contesting defendants filed statement of objections to the said memo. The learned Judge vide impugned order at Annexure-A has refused to permit the petitioner’s Advocate to be present at the remote point while recording evidence of defendant No.2. It is this order which is under challenge.”

                            To be sure, the Bench then states in para 14 that, “Before I advert to the controversy involved between the parties, it would be useful for this Court to refer to the relevant Rules framed by this Court which is titled as “Rules for Video Conferencing for Courts”. The relevant definitions are culled out as under:

“2(v) ‘Court Point’ means the Courtroom or one or more places where the Court is physically convened, or the place where a Commissioner or an inquiring officer holds proceedings pursuant to the directions of the Court.

2(x) ‘Remote Point’ is a place where any person or persons are required to be present or appear through a video link. 2(xii) ‘Required Person’ includes:

1. the person who is to be examined; or
2. the person in whose presence certain proceedings are to be recorded or conducted; or
3. an advocate or a party in person who intends to examine a witness; or
4. any person who is required to make submission before the Court; or
5. any other person who is permitted by the Court to appear through video conferencing.””

                            Needless to say, the Bench then mentions in para 21 that, “The respondents are objecting the presence of counsel at the remote point. The moot question that has to be examined before this Court is, as to whether the Court is vested with discretion to permit the counsel on record to be present at the remote point along with his client?”

                               It would be instructive to note that the Bench then enunciates in para 22 that, “Rule 14 refers to ‘Conduct of proceedings’. It would be useful for this Court to refer to Rules 14.1 and 14.7 which reads as under:

“14.1 All Advocates, Required Persons, the party in person and/or any other person permitted by the Court to remain physically or virtually present (hereinafter collectively referred to as participants) shall abide by the requirements set out in Schedule I.

14.7 The Court shall satisfy itself that the Advocate, Required Person or any other participant that the Court deems necessary at the Remote Point or the Court Point can be seen and heard clearly and can clearly see and hear the Court.””

                                 For sake of clarity, the Bench then clarifies in para 23 that, “On perusal of Rule 14.1, it is clearly evident that the said Rule clearly contemplates and enables all Advocates, required persons, party-in-person either to remain physically or virtually present who are collectively referred to as participants. The only rider to the said sub-rule is that the participants are required to abide by the requirement set out in Schedule-I to the Rules. Therefore, the “Required Person” as defined under Rule 2(xii) would not necessarily mean that it is only the witness, who has to be examined, has to be physically present at the remote point. This Court is unable to understand as to how the counsel on record can be denied a right of audience at the remote point. Rule 14 clearly contemplates and permits all Advocates including required persons or party-in-person to be physically present at the remote point. Further, Rule 14.7 also gives discretion to the Court in a given case to permit the Advocate or any other participants that Court deems necessary at the remote point or Court point.”

                 Frankly speaking, the Bench then observes in para 24 that, “The definition “Required Person” and further persons who can be permitted to be present at the remote point as contemplated under Rule 8.11 cannot be so narrowly construed and interpreted so as to exclude a counsel. If such a proposition is accepted, that would take away the valuable rights of a client who is entitled for apt assistance by his counsel on record. It is an established tradition that a trusting relationship between a client and Advocate is necessary for effective representation. Therefore, legal assistance before a witness is examined or cross-examined plays a vital role. The counsel appearing for either of the parties are the most important actors of most court room interactions. The Advocates on record are the central influence in the court room. Therefore, personal contact between a counsel and his client stand together in Court and therefore, is deemed very important in establishing trust which would ultimately result in establishing a litigants’ faith in the legal system overall and this trust is often built by the Advocates on record who are also officers of the Court. Mere presence of Counsel of a deponent under cross-examination at remote point would result in either prompting or tutoring the witness.”

   Most forthrightly, the Bench then states in para 25 that, “The definition “Required Person” under Rule 2(xii) coupled with Rule 8.11 authorizing a coordinator at the remote point to ensure that no person is present at the remote point cannot be read in isolation. The above said relevant rules have to be conjointly read along with Rules 14.1 and 14.7. A witness is entitled for legal assistance even when he is cross-examined. However, at the time of cross-examination, his counsel cannot prompt or tutor him. Based on mere apprehension, the above said rules cannot be narrowly interpreted so as to exclude the counsel on record who is an integral part of legal system and plays a vital role in dispensation of justice. The Advocates admittedly play a role as an Officer of the Court. His presence at the time of cross- examination of his witness is further more essential. It is a common fact that cross-examination often involves a battle of wits between cross-examiner and witness. At times, Advocates cross-examining the witness may have to use guile to expose the unreliability of the witness, as when the latter is lulled into a false sense of security and does not realise that he is being trapped or set up for questions which will effectively challenge him. Advocates often adopt such an approach which are essential to break the effect created by the witness in examination-in-chief or in his affidavit of the evidence in chief. Therefore, it is the counsel appearing for the witness who is subjected to cross-examination can object to the questions posed to the witness which are found to be contrary to ethical rules. In such circumstances, it is the Advocate who has to meticulously watch the proceedings of cross-examination and has to be vigilant to see that Advocate who is cross-examining does not lie or put untruths to the witness. The essence of the principle here is that the cross- examiner must not act dishonestly. He must not mislead the Court as well as the witness who is being cross-examined. Therefore, the presence of Advocate also plays a vital role when his witness is being cross-examined at the remote point. The presence of Advocate at the remote point would create a sense of security and would help him to face test of cross-examination. That cannot be misconstrued to such an extent that it would amount to prompting or tutoring. His mere presence at the remote point will not violate the Rules.”

          Quite commendably, the Bench then holds in para 26 that, “Therefore, in the present case on hand, defendant No.2 is entitled to seek legal assistance even when he is being cross-examined by way of video conferencing. Using video conferencing, the defendant’s rights cannot be sacrificed in the name of procedural efficiency. The adversarial model which is adopted for several decades cannot be abandoned under the garb that the Rules relating to video conferencing does not permit. Adversarialism is a cornerstone of the legal process; the system is predicated on this tenet. Denial of legal assistance while recording ocular evidence of a witness through video conferencing violates fundamental fairness.”

                            In the present context, the Bench then also makes it clear in para 27 that, “Looking to the recent trend, video conferencing does have a place in the legal system. The challenge is not to exclude it but to use it responsibly. The video conferencing can produce better results, but at the same time, certain highlighted issues which may prop up down the line have to be addressed effectively. The client is entitled to seek assistance and therefore, the clients interaction with his counsel on record is quite essential to a fair trial and a person who is supposed to be cross-examined is entitled to meet his counsel ahead of time to discuss every anticipated questions, concept or a piece of evidence. The Rules that are framed by this Court governing recording of evidence through video conferencing require all participants to follow the Rules in terms of Schedule-I which is annexed to the Rules.”

                               As a corollary, the Bench then observes in para 28 that, “It is in this background, the proposition floated by the counsel appearing for the contesting respondents cannot be acceded to. An Advocate should always be with his client. The Rules framed by this Court do not intend to support plaintiffs team or a defence team. The counsel appearing for respective clients are entitled to stand together and the same is necessary for an attorney-client relationship to function properly. A medium that interferes with the court’s main mission should be eliminated.”

         Quite forthrightly, the Bench then also clearly states in para 29 that, “The contesting parties are entitled to have a discussion with their Advocates on record as they need to discuss important decisions concerning vital documents, basic legal strategy prior to appearing in Court. Personal meetings are better for hastening out case strategies, fact gatherings and basic legal tactics. Therefore, it is in this context, if the proposition of respondents is accepted and if counsel appearing for a witness who is supposed to be cross-examined is denied a right of audience at a remote point, the apprehension that the ocular evidence recorded through video conferencing will not satisfy the prescribed requirements of a fair trial and the same would create a doubt in regard to legitimacy of a legal process may turn out to be a hard reality. Therefore, denial of right of audience to a counsel on record has its own ramifications and may result in violation of fundamental fairness and may also have impact on due process of law.”

     Furthermore, the Bench then states in para 30 that, “By introducing technology and by bringing in recording of ocular evidence through video conferencing, an attempt is made in all good faith to meet the standards of face-to-face trial. By bringing in new Rules, the Courts have to meet the established standards and traditions in recording evidence physically in the open Court. The dignity and ritual of physical presence in the Court was found to be absolutely necessary for public perception of justice. A very ceremony of trial and presence of fact finder may exert a powerful force for truth telling. The opportunity to judge the demeanor of a witness face-to-face is accorded great value in our tradition. Now in a given case, where parties consent to record ocular evidence through video conferencing has to meet the above said standards. There is an apprehension that non-verbal cues are unavailable or harder to read when associated with video conferencing. Therefore, the presence of counsel of a witness to be cross-examined at a remote point becomes further more essential.”

                               What’s more, the Bench then stipulates in para 31 that, “In the light of the discussions made supra, now let me see whether the Court is vested with discretion to permit the counsel appearing for a witness who is supposed to be cross-examined to be present at the remote point. The remote point has to be considered as an extended court room. A Court includes a physical court and a virtual court and if a Court can have court point at one or more place, then the Rules clearly prescribe that the counsel on record can be present at all point either in the Court physically or through a video link or at a remote point physically. Rule 14.1 clearly contemplates persons who are entitled to participate in court proceedings. Rule 14.1 clearly indicates that all Advocates and required persons are entitled to remain physically or virtually present. A discretion is also vested with the Court under Rule 14.7 and it is well within the discretion of the Court in a given set of facts to permit Advocate, required person or any other participants that court deems necessary at the remote point or at the court point. If at all any mischief is played during the course of recording evidence, the Court is better placed to hold an enquiry in regard to any mischief that would be complained.”

         Of course, the Bench then rightly points out in para 32 that, “Unlike face-to-face hearing, a Judge has a privilege of replaying the recording and find out as to whether the witness is hoaxed or tutored. The court can also examine whether counsel on record has interfered and assisted the witness under cross-examination. The guidelines set out in Schedule-I coupled with Rule 5.6.4 clearly provides adequate protection. It is in this background, this Court would find that the apprehension of the respondents and objections raised in regard to entitlement of counsel on record to be physically present at remote point appears to be misconceived.”

                               Most significantly, the Bench then lays down in para 33 that, “If the order under challenge is tested in the light of the above said discussions made supra, this Court is of the view that the order under challenge is not at all sustainable. Mere bald allegations that if the counsel is permitted to be physically present at remote point, then every possibility of petitioner getting prompted, tutored or coaxed cannot be acceded to and such an objection is not at all sustainable. In fact, Rule 14 which lays down guidelines for conducting proceedings through video conferencing clearly contemplates and authorizes all Advocates to be present physically at remote point. A discretion is also vested with the Court in a given set of facts to permit the counsel or any other unconnected participants to be physically present at the remote point. It is in this background, this Court would find that the learned Judge erred in not exercising discretion judiciously. Therefore, the finding of the learned Judge that counsel appearing for the present petitioner/defendant No.2 is already present at the remote point and he can join recording of evidence by joining the link does not satisfy the requirements of a fair trial. The learned Judge erred in not exercising judicial discretion by permitting the counsel appearing for defendant No.2 to be physically present at the remote point.”

                                 In addition, the Bench then also most commendably notes in para 34 that, “If a coordinator at the remote point is already available and if the entire ocular evidence is video recorded, any slight mischief can be easily taken notice of and the consequences would follow if the counsel contravenes any of the courtesies and protocols applicable to a physical Court. Therefore, I am of the view that the counsel appearing for the defendant No.2 is entitled to be physically present at the remote point.”

                                     Finally, the Bench then concludes by holding in para 35 that, “For the reasons stated, supra, I pass the following:

                            ORDER

(i)    The writ petition is allowed;

(ii)  The impugned order dated 30.05.2022 passed in O.S.No.66/2016 on the file of the III Additional City Civil & Sessions Judge, Bengaluru is set aside. Consequently, the memo dated 25.05.2022 filed by the petitioner/defendant No.2 is allowed;

(iii) The coordinator at the remote point shall ensure that while recording evidence of the petitioner/defendant No.2, the persons who are permitted to be present at the remote point will not indulge in interfering with his cross-examination;

(iv)  Before commencing with the recording of evidence of petitioner/defendant No.2, the Court shall satisfy itself that the counsel appearing on behalf of petitioner/defendant No.2 can be seen and heard clearly at the remote point;

(v) The Court shall also monitor and take all necessary precautions that recording of ocular evidence of petitioner/defendant No.2 is conducted by strictly following the Rules.”

                                           In essence, the Karnataka High Court has thus made the entire picture pretty clear in this notable judgment about counsel being entitled to physically accompany a party to remote point while giving evidence via video conferencing. We have already discussed it in detail. It merits no reiteration that all the courts must definitely pay heed to what the Karnataka High Court has held so very explicitly in this leading case!

The post Counsel Entitled To Physically Accompany Party To Remote Point While Giving Evidence Via Video Conferencing: Karnataka HC appeared first on Legal Desire Media and Insights.

The key highlights of the budget are as follows:

PART A

• India’s economic growth estimated at 9.2% to be the highest among all large economies.
• 60 lakh new jobs to be created under the productivity linked incentive scheme in 14 sectors.
• PLI Schemes have the potential to create an additional production of Rs 30 lakh crore.
• Entering Amrit Kaal, the 25 year long lead up to India @100, the budget provides impetus for growth along four priorities:
  1. PM GatiShakti
  2. Inclusive Development
  3. Productivity Enhancement & Investment, Sunrise opportunities, Energy Transition, and Climate Action.
  4. Financing of investments

PM GatiShakti

• The seven engines that drive PM GatiShakti are Roads, Railways, Airports, Ports, Mass Transport, Waterways and Logistics Infrastructure.

PM GatiShkati National Master Plan

• The scope of PM GatiShakti National Master Plan will encompass the seven engines for economic transformation, seamless multimodal connectivity and logistics efficiency.
• The projects pertaining to these 7 engines in the National Infrastructure Pipeline will be aligned with PM GatiShakti framework.

Road Transport

• National Highways Network to be expanded by 25000 Km in 2022-23.
• Rs 20000 Crore to be mobilized for National Highways Network expansion.

Multimodal Logistics Parks

• Contracts to be awarded through PPP mode in 2022-23 for implementation of Multimodal Logistics Parks at four locations.

Railways

• One Station One Product concept to help local businesses & supply chains.
• 2000 Km of railway network to be brought under Kavach, the indigenous world class technology and capacity augmentation in 2022-23.
• 400 new generation Vande Bharat Trains to be manufactured during the next three years.
• 100 PM GatiShakti Cargo terminals for multimodal logistics to be developed during the next three years.

Parvatmala

• National Ropeways Development Program, Parvatmala to be taken up on PPP mode.
• Contracts to be awarded in 2022-23 for 8 ropeway projects of 60 Km length.

Inclusive Development

Agriculture

• Rs. 2.37 lakh crore direct payment to 1.63 crore farmers for procurement of wheat and paddy.
• Chemical free Natural farming to be promoted throughout the county. Initial focus is on farmer’s lands in 5 Km wide corridors along river Ganga.
• NABARD to facilitate fund with blended capital to finance startups for agriculture & rural enterprise.
• ‘Kisan Drones’ for crop assessment, digitization of land records, spraying of insecticides and nutrients.

Ken Betwa project

• 1400 crore outlay for implementation of the Ken – Betwa link project.
• 9.08 lakh hectares of farmers’ lands to receive irrigation benefits by Ken-Betwa link project.

MSME

• Udyam, e-shram, NCS and ASEEM portals to be interlinked.
• 130 lakh MSMEs provided additional credit under Emergency Credit Linked Guarantee Scheme (ECLGS)
• ECLGS to be extended up to March 2023.
• Guarantee cover under ECLGS to be expanded by Rs 50000 Crore to total cover of Rs 5 Lakh Crore.
• Rs 2 lakh Crore additional credit for Micro and Small Enterprises to be facilitated under the Credit Guarantee Trust for Micro and Small Enterprises (CGTMSE).
• Raising and Accelerating MSME performance (RAMP) programme with outlay of Rs 6000 Crore to be rolled out.

Skill Development

• Digital Ecosystem for Skilling and Livelihood (DESH-Stack e-portal) will be launched to empower citizens to skill, reskill or upskill through on-line training.

· Startups will be promoted to facilitate ‘Drone Shakti’ and for Drone-As-A-Service (DrAAS).

Education

• ‘One class-One TV channel’ programme of PM eVIDYA to be expanded to 200 TV channels.

· Virtual labs and skilling e-labs to be set up to promote critical thinking skills and simulated learning environment.

· High-quality e-content will be developed for delivery through Digital Teachers.

· Digital University for world-class quality universal education with personalised learning experience to be established.

Health

• An open platform for National Digital Health Ecosystem to be rolled out.

· ‘National Tele Mental Health Programme’ for quality mental health counselling and care services to be launched.

• A network of 23 tele-mental health centres of excellence will be set up, with NIMHANS being the nodal centre and International Institute of Information Technology-Bangalore (IIITB) providing technology support.

Saksham Anganwadi

• Integrated benefits to women and children through Mission Shakti, Mission Vatsalya, Saksham Anganwadi and Poshan 2.0.
• Two lakh anganwadis to be upgraded to Saksham Anganwadis.

Har Ghar, Nal Se Jal

• Rs. 60,000 crore allocated to cover 3.8 crore households in 2022-23 under Har Ghar, Nal se Jal.

Housing for All

• Rs. 48,000 crore allocated for completion of 80 lakh houses in 2022-23 under PM Awas Yojana.

Prime Minister’s Development Initiative for North-East Region (PM-DevINE)

•  New scheme PM-DevINE launched to fund infrastructure and social development projects in the North-East.
• An initial allocation of Rs. 1,500 crore made to enable livelihood activities for youth and women under the scheme.

Vibrant Villages Programme

• Vibrant Villages Programme for development of Border villages with sparse population, limited connectivity and infrastructure on the northern border.

Banking

• 100 per cent of 1.5 lakh post offices to come on the core banking system.
• Scheduled Commercial Banks to set up 75 Digital Banking Units (DBUs) in 75 districts.

e-Passport

• e-Passports with embedded chip and futuristic technology to be rolled out.

Urban Planning

• Modernization of building byelaws, Town Planning Schemes (TPS), and Transit Oriented Development (TOD) will be implemented.
• Battery swapping policy to be brought out for setting up charging stations at scale in urban areas.

Land Records Management

• Unique Land Parcel Identification Number for IT-based management of land records.

Accelerated Corporate Exit

• Centre for Processing Accelerated Corporate Exit (C-PACE) to be established for speedy winding-up of companies.

AVGC Promotion Task Force

• An animation, visual effects, gaming, and comic (AVGC) promotion task force to be set-up to realize the potential of this sector.

Telecom Sector

• Scheme for design-led manufacturing to be launched to build a strong ecosystem for 5G as part of the Production Linked Incentive Scheme.

Export Promotion

• Special Economic Zones Act to be replaced with a new legislation to enable States to become partners in ‘Development of Enterprise and Service Hubs’.

AtmaNirbharta in Defence:

• 68% of capital procurement budget earmarked for domestic industry in 2022-23, up from 58% in 2021-22.

· Defence R&D to be opened up for industry, startups and academia with 25% of defence R&D budget earmarked.

· Independent nodal umbrella body to be set up for meeting testing and certification requirements.

Sunrise Opportunities

• Government contribution to be provided for R&D in Sunrise Opportunities like Artificial Intelligence, Geospatial Systems and Drones, Semiconductor and its eco-system, Space Economy, Genomics and Pharmaceuticals, Green Energy, and Clean Mobility Systems.

Energy Transition and Climate Action:

• Additional allocation of Rs. 19,500 crore for Production Linked Incentive for manufacture of high efficiency solar modules to meet the goal of 280 GW of installed solar power by 2030.

· Five to seven per cent biomass pellets to be co-fired in thermal power plants:

• • CO₂ savings of 38 MMT annually,
  • Extra income to farmers and job opportunities to locals,
  • Help avoid stubble burning in agriculture fields.

· Four pilot projects to be set up for coal gasification and conversion of coal into chemicals for the industry

· Financial support to farmers belonging to Scheduled Castes and Scheduled Tribes, who want to take up agro-forestry.

Public Capital Investment:

• Public investment to continue to pump-prime private investment and demand in 2022-23.

· Outlay for capital expenditure stepped up sharply by 35.4% to Rs. 7.50 lakh crore in 2022-23 from Rs. 5.54 lakh crore in the current year.

· Outlay in 2022-23 to be 2.9% of GDP.

• ‘Effective Capital Expenditure’ of Central Government estimated at Rs. 10.68 lakh crore in 2022-23, which is about 4.1% of GDP.

GIFT-IFSC

• World-class foreign universities and institutions to be allowed in the GIFT City.
• An International Arbitration Centre to be set up for timely settlement of disputes under international jurisprudence.

Mobilising Resources

• Data Centres and Energy Storage Systems to be given infrastructure status.

· Venture Capital and Private Equity invested more than Rs. 5.5 lakh crore last year facilitating one of the largest start-up and growth ecosystem. Measures to be taken to help scale up this investment.

· Blended funds to be promoted for sunrise sectors.

· Sovereign Green Bonds to be issued for mobilizing resources for green infrastructure.

Digital Rupee

• Introduction of Digital Rupee by the Reserve Bank of India starting 2022-23.

Providing Greater Fiscal Space to States

• Enhanced outlay for ‘Scheme for Financial Assistance to States for Capital Investment’:
  • From Rs. 10,000 crore in Budget Estimates to Rs. 15,000 crore in Revised Estimates for current year

· Allocation of  Rs. 1 lakh crore in 2022-23 to assist the states in catalysing overall investments in the economy: fifty-year interest free loans, over and above normal borrowings

• In 2022-23, States will be allowed a fiscal deficit of 4% of GSDP, of which 0.5% will be tied to power sector reforms

Fiscal Management

• Budget Estimates 2021-22: Rs. 34.83 lakh crore

· Revised Estimates 2021-22: Rs. 37.70 lakh crore

· Total expenditure in 2022-23 estimated at Rs. 39.45 lakh crore

· Total receipts other than borrowings in 2022-23 estimated at Rs. 22.84 lakh crore

· Fiscal deficit in current year: 6.9% of GDP (against 6.8% in Budget Estimates)

• Fiscal deficit in 2022-23 estimated at 6.4% of GDP

PART B

DIRECT TAXES

To take forward the policy of stable and predictable tax regime:

• Vision to establish a trustworthy tax regime.
• To further simplify tax system and reduce litigation.

Introducing new ‘Updated return’

• Provision to file an Updated Return on payment of additional tax.
• Will enable the assessee to declare income missed out earlier.
• Can be filed within two years from the end of the relevant assessment year.

Cooperative societies

• Alternate Minimum Tax paid by cooperatives brought down from 18.5 per cent to 15 per cent.

• To provide a level playing field between cooperative societies and companies.
• Surcharge on cooperative societies reduced from 12 per cent to 7 per cent for those having total income of more than Rs 1 crore and up to Rs 10 crores.

Tax relief to persons with disability

• Payment of annuity and lump sum amount from insurance scheme to be allowed to differently abled dependent during the lifetime of parents/guardians, i.e., on parents/ guardian attaining the age of 60 years.

Parity in National Pension Scheme Contribution

• Tax deduction limit increased from 10 per cent to 14 per cent on employer’s contribution to the NPS account of State Government employees.
• Brings them at par with central government employees.
• Would help in enhancing social security benefits.

Incentives for Start-ups

• Period of incorporation extended by one year, up to 31.03.2023 for eligible start-ups to avail tax benefit.
• Previously the period of incorporation valid up to 31.03.2022.

Incentives under concessional tax regime

• Last date for commencement of manufacturing or production under section 115BAB extended by one year i.e. from 31^st March, 2023 to 31^st March, 2024.

Scheme for taxation of virtual digital assets

• Specific tax regime for virtual digital assets introduced.
• Any income from transfer of any virtual digital asset to be taxed at the rate of 30 per cent.
• No deduction in respect of any expenditure or allowance to be allowed while computing such income except cost of acquisition.
• Loss from transfer of virtual digital asset cannot be set off against any other income.
• To capture the transaction details, TDS to be provided on payment made in relation to transfer of virtual digital asset at the rate of 1 per cent of such consideration above a monetary threshold.
• Gift of virtual digital asset also to be taxed in the hands of the recipient.

Litigation Management

• In cases where question of law is identical to the one pending in High Court or Supreme Court, the filing of appeal by the department shall be deferred till such question of law is decided by the court.
• To greatly help in reducing repeated litigation between taxpayers and the department.

Tax incentives to IFSC

• Subject to specified conditions, the following to be exempt from tax
  • Income of a non-resident from offshore derivative instruments.
  • Income from over the counter derivatives issued by an offshore banking unit.
  • Income from royalty and interest on account of lease of ship.
  • Income received from portfolio management services in IFSC.

Rationalization of Surcharge

• Surcharge on AOPs (consortium formed to execute a contract) capped at 15 per cent.
• Done to reduce the disparity in surcharge between individual companies and AOPs.
• Surcharge on long term capital gains arising on transfer of any type of assets capped at 15 per cent.
• To give a boost to the start up community.

Health and Education Cess

• Any surcharge or cess on income and profits not allowable as business expenditure.

Deterrence against tax-evasion

• No set off, of any loss to be allowed against undisclosed income detected during search and survey operations.

Rationalizing TDS Provisions

• Benefits passed on to agents as business promotion strategy taxable in hands of agents.
• Tax deduction provided to person giving benefits, if the aggregate value of such benefits exceeds Rs 20,000 during the financial year.

INDIRECT TAXES

Remarkable progress in GST 

• GST revenues are buoyant despite the pandemic – Taxpayers deserve applause for this growth.

Special Economic Zones

• Customs Administration of SEZs to be fully IT driven and function on the Customs National Portal – shall be implemented by 30^th September 2022.

Customs Reforms and duty rate changes

• Faceless Customs has been fully established. During Covid-19 pandemic, Customs formations have done exceptional frontline work against all odds displaying agility and purpose.

Project imports and capital goods

• Gradually phasing out of the concessional rates in capital goods and project imports; and applying a moderate tariff of 7.5 percent   – conducive to the growth of domestic sector and ‘Make in India’.
• Certain exemptions for advanced machineries that are not manufactured within the country shall continue.
• A few exemptions introduced on inputs, like specialised castings, ball screw and linear motion guide – to encourage domestic manufacturing of capital goods.

Review of customs exemptions and tariff simplification

• More than 350 exemption entries proposed to be gradually phased out, like exemption on certain agricultural produce, chemicals, fabrics, medical devices, & drugs and medicines for which sufficient domestic capacity exists.
• Simplifying the Customs rate and tariff structure particularly for sectors like chemicals, textiles and metals and minimise disputes; Removal of exemption on items which are or can be manufactured in India and providing concessional duties on raw material that go into manufacturing of intermediate products – in line with the objective of ‘Make in India’ and ‘Atmanirbhar Bharat’.

Sector specific proposals

Electronics

• Customs duty rates to be calibrated to provide a graded rate structure – to facilitate domestic manufacturing of wearable devices, hearable devices and electronic smart meters.
•  Duty concessions to parts of transformer of mobile phone chargers and camera lens of mobile camera module and certain other items – To enable domestic manufacturing of high growth electronic items.

Gems and Jewellery

• Customs duty on cut and polished diamonds and gemstones being reduced to 5 per cent; Nil customs duty to simply sawn diamond – To give a boost to the Gems and Jewellery sector.
• A simplified regulatory framework to be implemented by June this year – To facilitate export of jewellery through e-commerce.
• Customs duty of at least Rs 400 per Kg to be paid on imitation jewellery import – To disincentivise import of undervalued imitation jewellery.

Chemicals

• Customs duty on certain critical chemicals namely methanol, acetic acid and heavy feed stocks for petroleum refining being reduced; Duty is being raised on sodium cyanide for which adequate domestic capacity exists – This will help in enhancing domestic value addition.

MSME

• Customs duty on umbrellas being raised to 20 per cent. Exemption to parts of umbrellas being withdrawn.
• Exemption being rationalised on implements and tools for agri-sector which are manufactured in India
• Customs duty exemption given to steel scrap last year extended for another year to provide relief to MSME secondary steel producers
• Certain Anti- dumping and CVD on stainless steel and coated steel flat products, bars of alloy steel and high-speed steel are being revoked – to tackle prevailing high prices of metal in larger public interest.

Exports

• To incentivise exports, exemptions being provided on items such as embellishment, trimming, fasteners, buttons, zipper, lining material, specified leather, furniture fittings and packaging boxes.
• Duty being reduced on certain inputs required for shrimp aquaculture – to promote its exports.

Tariff measure to encourage blending of fuel

• Unblended fuel to attract an additional differential excise duty of Rs 2/ litre from the 1^st of October 2022 – to encourage blending of fuel.

Viewpoints by Legal Industry leaders

Mr. Cyril Shroff, Managing Partner, Cyril Amarchand Mangaldas on Budget’2022:

“This is a good sequel to last year’s pathbreaking budget.

The biggest point is the capex spending, and it comes from a position of confidence. The other aspects are the focus on ESG, and the promotion of domestic industry. The growth aspiration of 9.2% is exciting.

Announcements around private equity investments are interesting, and should help removing regulatory cholesterol.

Announcements on GIFT City should provide additional impetus to the existing initiatives.”

Mr. Viswanathan, Partner & Chair- Finance &Projects underneath.

“The proposal to facilitate voluntary winding up of companies in less than six months is ambitious and laudable. It reinforces the path taken by the Government that digital initiatives can usher better Governance and can simplify processes in a timely manner without compromising on the necessary safeguards. It is expected that the process engineering will ensure that voluntary winding up is completed in a short time frame. This will be an important step towards giving confidence to entrepreneurs that exit would be a smooth process and would also improve in ease of doing business. Lot of capital and energy can be unlocked by faster liquidation which can be recycled for new and sustainable business. The ECLGS Scheme has been extended till March, 2023 with an additional amount earmarked for the hospitality and related enterprises. Enterprises in the hospitality industry have borne the brunt of the pandemic. The scheme include facilities with a cap on interest and moratorium period and waiver of certain charges. It is expected that this facility will help businesses in the hospitality sector that have been affected by the pandemic to come back to normalcy through access to credit provided by the Scheme.”

Prem Rajani, Managing Partner, Rajani Associates

“Although we are still facing the challenges that the Omicron virus brings in, we are also seeing the easing of the ramifications of the COVID-19 pandemic. Businesses, despite numerous challenges, are rising to the occasion to adapt and cater to the rise in consumer demand.

Based on Budget 2022, the Government has reaffirmed its focus on areas such as climate change, skilling, infrastructure, agriculture, governance, telecom, technology, the proliferation of emerging technology, sustained growth among corporates, SMEs, and MSMEs.

From a sectoral focus, the Budget lays emphasis on:

1. Corporate: Budget 2022 has introduced interesting measures for businesses. The Ease Of Doing Business 2.0 will be launched to improve the productive efficiency of capital and human resources. The proposed Centre for Processing Accelerated Corporate Exit (C-PACE) will not only help regulate the registration of new companies but also help decrease the time of voluntary winding up of companies from 2 years to less than 6 months.

The reduction on corporate surcharge from 12% to 7%; and the capping of surcharge of LTCG on listed equity share units will be welcomed by businesses. Businesses that have seen delayed growth due to the pandemic now have an additional year to start operations with the concessional 15%income tax for new manufacturing companies, with manufacturing to start before March 31, 2023. The budget has also proved to be beneficial to businesses specializing in gaming and gems/jewelry.

2. MSMEs:To help ease the complications faced by MSMEs brought in by the pandemic, the extension of the Emergency Credit Line Guarantee Scheme (ECLGS) will certainly serve as a sigh of relief to MSMEs, particularly to companies within travel, tourism, and hospitality. This scheme also will serve as a lifeboat to companies that are close to being graded as NPAs. To increase the competitiveness and efficiency of MSMEs, the Raising and Accelerating MSME Performance (RAMP) program will help in the skilling and development of businesses.

3. Start-ups: The reduction of surcharge on unlisted shares from 28.5% to 23% will be important for start-ups that are looking at new funding avenues or even exit options. Tax incentives and extended tax benefits will certainly encourage and boost the start-up’s confidence. With the focus areas as mentioned by the Government, we can see the further mushrooming of start-ups focusing on fintech, defense, drones, agriculture, EVs, semiconductors, and rural development. We would recommend for start-ups to read the fine print to avail the benefits as introduced by the Government.

4. Litigation and arbitration:The Budget stated that arbitration and conciliation will be promoted under the modernized rules of Government procurement for dispute resolution. An international arbitration center will be established in GIFT City to ensure the fast disposal of disputes in international jurisprudence. The Government has aimed at ensuring fast disposal of cases and avoiding repetitive appeals. This is bound to attract more investors and companies. These are positive steps towards decreasing the burden on the courts.

5. Investments:The Finance Minister has rightly mentioned that to bolster businesses, public investments will have to complement private investments. Over the years, foreign investors have expressed worries about paying a higher tax rate and not being able to directly list their portfolio firms abroad. To scale investments, the Government has proposed to set up an expert committee to examine and suggest appropriate measures and regulations. The formation of the expert committee is a step in the right direction to institutionalize and regularise investments through PE and VC avenues.  This committee will help not only to increase investments but also provide a legal framework for streamlining these investments. This will offer much-needed clarity on how businesses can look at raising funds and how investors can make private investments.

6. Banking:Banking serves as the backbone of the country and to further strengthen this sector, the Government has proposed to set up 75 digital banking units in 75 districts by scheduled commercial banks. The introduction of these banks will lead to an increase in the adoption of digital payments and thus more focus on fintech. These proposed changes throw light on the importance of financial inclusion, supporting online payments platforms, and digital banking. However, perhaps further initiatives to address the numerous challenges that existing banks face could have been helpful.

7. IBC:Necessary amendments in the Insolvency Code will be carried out to enhance the efficacy of the resolution process and facilitate cross-border insolvency resolution. In the coming days, we might see a robust and comprehensive cross-border framework in place. This will help the Insolvency Code in further improving the ease of doing business. Finance and legal professionals can then assess the Indian Model with the UNICITRAL Model.

8. Real estate and housing:Affordable housing continues to be a strong focus as it plays a pivotal role in the growth and development of the economy. We can expect several businesses focusing on mergers and acquisitions to help tap into the opportunity the affordable housing segment offers.

9. Instructure:Infrastructure has been of the most pillars of this budget. The PM Gati Shakti Incentive will lead to a lot of activities within areas such as roads; railways; airports; ports; mass transport; waterways and logistics infrastructure. These areas also support innovations around clean energy. There will be a great impetus on existing and new environmental regulations that will help drive development within the sector.

10. Emerging tech – Blockchain and crypto:The announcements made towards emerging technology such as blockchain and crypto testify to the Government’s steadfast attempts to regulate a highly volatile sector. The proposed initiatives of introducing the Digital Rupee issued by the RBI with underlying blockchain technology will definitely boost the digital economy. This technology and the newly introduced digital currency will give rise to smart contracts. It will be interesting to see how these contracts will be legally enforceable, and if they will comply with the existing Indian Contract Act. However, what needs to be further clarified is the grey areas that surround taxation, legal and regulatory governance, and most importantly data privacy. It will also be interesting to see the unique solutions adopted to mitigate the misuse of data.  Another interesting initiative made by the Government is the taxing of virtual assets at 30%. The hefty tax slab may induce mixed reviews from different stakeholders. However, this draws the importance to the details and the introduction of the proposed Cryptocurrency Regulation Bill.

The Budget 2022 announced by the Hon’ble Finance Minister is a testament to the fact that the Government is committed to regaining the lost momentum as witnessed in the past 2 years with a slew of proposed measures that could lead us to strong economic growth and development.

All in all, the Budget offers several new initiatives though we would urge a closer look at the fine print to understand how businesses can avail benefits and incentives. “

The post Key Highlights of Union Budget 2022-23 appeared first on Legal Desire Media and Insights.

Funny enough, there are a lot of myths as to what actually happens in an eviction. Since it’s not common to get served with an eviction notice, many people are unsure what to do when it happens. 

In this post, we’ll go over five common eviction myths you should know about. 

Myth 1: No room to negotiate

First of all, let’s talk about one of the most common myths out there. Many people have this belief that evictions are an automatic process with little to no room for negotiation. This is completely false. An eviction may be difficult to carry out, especially if you have a good case on your hands, and it’s never a foregone conclusion. 

The first thing you should know about this whole process is there are several types of eviction notices, and not all of them require immediate action on your part. For example, in some cases, a landlord may serve you with a “Notice to Quit.” This is not an eviction notice per see, but merely a warning that the tenant has a certain number of days to fix the issue at hand, such as violating the conditions stated on their lease. 

If you’re sent one of these forms, you have room to negotiate a more favorable solution for yourself. You can see if you could do something to immediately fix the problem or have an extended amount of time to address the issue.

Myth 2: If rent is late, my landlord can kick me out right away.

This is another big eviction myth. It’s so common for rent to be late, and many people make the mistake of thinking this right away means they will get evicted. In fact, you can’t be forced out until your landlord files a case in court against you. This is when it becomes an official eviction, and the law gets involved.

So what does happen if you’re a few days late with your rent? A lot of the time, it depends on what is stated in your rental agreement. Many landlords allow tenants anywhere from 3 to 10 days before they file an eviction notice if the tenant is late on their rent. 

Myth 3: I’ll immediately get kicked out

It is very rare for a tenant to actually get evicted on an emergency basis, which is when you have a 24-hour period to vacate the premises. In fact, this only occurs when your landlord gives you an “eviction writ” before the court.

Your landlord will probably give you a warning before they actually evict you. This, of course, is assuming you’re not doing something inherently illegal like selling drugs or committing human trafficking. 

Myth 4: I’ll lose everything I own.

Just because you’re getting evicted doesn’t mean you will lose everything. Yes, you will have to leave the property, but this doesn’t mean your landlord can take everything from you.

So what does happen? No matter what is said in your lease, you are still entitled to all of your belongings. If you are evicted, your landlord is legally obligated to leave all of your stuff behind for you to claim. 

There is probably a certain time window where it’s okay for your landlord to toss out your stuff, though, so be aware of what that time limit is. 

Myth 5: You won’t receive a judgment until the end of the case.

Many people assume you won’t get a judgment served against you until the very end of your case.

However, this is not true. An eviction can be immediately processed if your landlord has evidence you intentionally broke the terms of your lease or you have been a negligent tenant.

This can be done immediately, during your court date, and even before the judge hears both sides of the case. If the landlord has evidence that you broke a serious clause in your lease or acted negligently, they can file for immediate eviction without going through an entire hearing process.

Conclusion

There are many different types of eviction myths out there that can be easily debunked. 

It’s important for tenants and landlords to realize what they can and cannot get away with in terms of evictions so they know when the law is being broken or bent. Even minor misconceptions regarding eviction laws can be very costly, and you don’t want to end up paying the price for your or your landlord’s mistakes.

The post 5 Common Eviction Myths You Should Know About appeared first on Legal Desire Media and Insights.

Unorganised Sector has been, in entirety, defined in “Report on Conditions of Work and Promotion of Livelihoods in the Unorganised Sector, September 2007”^[1] by the National Commission for Enterprises in the Unorganised Sector (NCEUS) as, “the unorganised sector consists of all unincorporated private enterprises owned by individuals or households engaged in the sale and production of goods and services operated on a proprietary or partnership basis and with less than ten total workers”.

Generally, the terms “unorganised sector” and “informal sector” are used interchangeably.

There has been the absence of reliable statistics on the size, distribution or contribution to the economy, the unorganized sector has always remained a poorly understood and grossly neglected area. According to the report of the Economic Survey released in 2019, the unorganized sector accounts for 93% of the total workforce of the country.^[2]

The ‘Report of the Committee on Unorganised Sector Statistics’ of the National Statistical Commission (NSC), 2012 states that the informal sector constitutes 93% of the overall workforce and contributes 50% towards the Gross National Product (GNP)^[3].

It is a well-known fact that the unorganized sector has a big hand in running the country’s economy, yet there has not been concrete provision to protect it from time immemorial and yet, such a large workforce lacks clear legal protections.

In pursuance of the necessity, the legislation came up with the Social Security Code with an objective of consolidating all social security laws (which are already implemented) with a view to providing social security to all employees and workers, either in organised or unorganised sectors, gig workers and platform workers.

The research aims to analyse the provisions and rules of maternity benefits as guaranteed under the Social Security Code, 2020 in India.

Need Due to the Disruption

The necessity to protect the maternity rights of female workers was recognised by the legislation a long time back. The laws related to maternity benefits have been introduced with the aim to regulate the employment of women at certain periods (before and after childbirth).

It was first introduced in 1961; the Maternity Benefit Act, 1961. The objective of the Act was: “to regulate the employment of women in certain establishments for certain periods before and after child-birth and to provide for maternity benefit and certain other benefits.”

Stand of Protection of Maternity Benefits recognised in International Customary Law and Convention

Article 23 of the Universal Declaration of Human Rights, 1948^[4] states that

1. “Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
2. Everyone, without any discrimination, has the right to equal pay for equal work.
3. Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
4. Everyone has the right to form and to join trade unions for the protection of his interests.”

The said customary law indirectly infers the necessity of providing such benefits and thereto protecting them further.

On the Global front, the standardised regulations regarding maternity benefits have been established under the Maternity Protection Convention, 2000 (No. 183) after the replacement of its first Maternity Protection Convention in 1919 (No. 3) and Maternity Protection at the Workplace, 1952 (No. 103) and also the adoption of Maternity Protection Recommendation, 2000 (No. 191). Also, during the 92nd International Labour Conference in 2004, International Labour Organisation member states adopted resolutions relevant to extending maternity protection access and promoting work-life balance in its entirety. India is a founding member of ILO.

Stand under the Constitution of India

Article 42 of the Constitution of India contains the directive that the State shall make provision for securing just and humane conditions of work and maternity benefits.

Furthermore, on comparative lines, in order to regulate the employment of women in certain establishments for specific periods before and after childbirth and to accommodate for maternity benefits and certain other benefits, the Indian Parliament enacted the Maternity Benefit Act, 1961. The Maternity Benefit Act, 1961 was enacted keeping in view not only all those legislations related to maternity that existed from the pre-Constitution days, but also ILO’s mandate regarding maternity protection (ILO Maternity Protection Convention, 1952- No. 103).

Is Objective getting Fulfilled?

The Code on Social Security, 2020 has been passed by both Houses and has already received Presidential assent on September 28, 2020, but it is yet to be implemented.

As we have known, the main objective of the introduction of the Social Security Code, 2020 was to consolidate laws to all employees, but the major question which arises is whether the maternity interests of the female workers are getting protected or not.

Hence, for the same let’s analyse the provisions of the Code related to Maternity Benefits.

Chapter VI of the Code 2020 recognises the aspect of Maternity Benefits.

The Code has been proposed with an intention to subsume a few of the Central Labour Law Acts under the garb of ‘simplifying and rationalising’ the said provisions.

The very well intention behind the consolidation of laws into the self-contained and exhaustive Code on Social Security is extending the ambit and expansion of welfare to the workers fraternity.

But when examining the provisions set under the Code related to maternity benefits set out under Chapter VI of the Code, the intention cannot be wholly covered.

Maternity Benefits- Not mere a Legal Responsibility but a Social Responsibility

Providing maternity benefits to every woman worker is the paramount social responsibility of the government and the employer. But it is quite evident in India that the generous maternity benefits grant benefits to just 1% of the women workers as a whole. Ensuring maternity benefits is a universal cry. This is essential to ensure the upliftment and empowerment of women and gender equality. The 98th International Labour Conference held in June 2009 even acknowledged that the strengthening of maternity protection is the key to gender equality at workplace, whilst keeping in mind the application of ILO Convention on Maternity Protection (No. 183) which promotes and gives utmost priority to equality of all women in the workforce and the health and safety of the mother and child.

The Missing Aspects: Analysis of Chapter VI of the Code and in furtherance Recommendations

The government seems to have overlooked the recommendation of the Sixth Central Pay Commission^[5] and has left out a majority of the workforce that works in the unorganized sector; including labourers from the agriculture sector, seasonal workers, domestic workers or construction workers.

With over 90% of working women class in the informal sector, only few of them are even within the purview of the Act. While the Unorganised Workers’ Social Security Act, passed in 2008, includes maternity benefits as one of the entitlements for the unorganised, no wage-linked scheme for such purpose has yet been notified by the Government. The Janani Suraksha Yojana has been notified under this Act, but the same is a mere incentive for institutional delivery and nothing more.

The only entitlement currently available for all women is specified under the National Food Security Act, which promises a benefit of drawing Rs. 6,000 to all pregnant and lactating women. In the Code, there is no such mentioning of the sufferings of the informal sector women faces due to an implicit high workload, resulting in an increase of cases of illness and chances of miscarriage.

The Code even fails to universalise the ambit of payment of maternity benefit. Until and unless maternity benefits are universalized by way of the appropriate provision in the Code, a majority of women who work in the informal sector would be excluded from its purview. Hence, it is recommended that requisite amendments should be made to give universal coverage of maternity benefits to all women workers including those working in the unorganised/informal sector.

Payment of maternity benefits to every woman worker should be ensured. The existing Maternity Benefit Act is quite a generous one. This may be amended to incorporate all the women workers including the agricultural workers. But subsuming the Act in the Code, the Code does not spell out anything clearly. The Code should incorporate infrastructure, institutional mechanism and budgetary allocation to ensure the fulfilment of social commitment.

The Code also seems to miss out the opportunity to introduce paternity leave and possibly a chance to spread the message that the responsibility of running a family should be of both the parents.

Clause 22 of the European Union (Directive of European Parliament, 2019) specifies the need for maternity, paternity and parental benefits in case of a social security system opted by the establishments.^[6]

Countries such as the United Kingdom, Singapore, Sweden and Australia have realised the need of the hour and thereby introduced various other categories of leaves relating to childbirth, like parental leave, family leave etc. in order to provide the leave benefits to both parents, and thereby helping them to have a balance between their careers and personal life and also ensuring that the child’s proper care and attention from both the parents in his/her initial years of development. Although the steps taken by the government are commendable, the government has missed out this opportunity to catch up with such requirements. Hence, under Clause 60 of the Code, it is recommended that paternity leave as per the guidelines should also be included in the provision.

Appropriate provisions should be incorporated in the Code to ensure six months paid leave to every woman worker for childbirth. For the women of the unorganised sector where there are multiple employers; the government, central or state, as the case may be, should make payments equal to such wage rate in the respective industry through the unorganised sector welfare board. And in States, where there are no boards, the payment should be made through the Ministry of Labour.

In most of countries, the cost related to providing such benefits is entirely borne by the government and/or shared by both government and employer as per the social security schemes provided. But it is not the case in India, where the wages during the maternity leaves are borne by the employer only (with a mere exception under the ESI Act). There is also a requirement of having a crèche facility, etc., which would, in turn, require employers to establish adequate infrastructure thus prompting more inquiries and more expenses. Hence, there is need of an explicit provision citing the regulations regarding the bearer of such expenses, shared by both government and employer. Or explicitly mention the allowance of shared crèche with other establishments, where maintaining a separate crèche would not be practicable or economically feasible for the employer.

The Code under Clause 59 (3) does prohibit “work of arduous nature” done by any woman during the prescribed period before the date of expected delivery. But the same has not been defined, as to what is considered under the ambit of “work of arduous nature”.

Hence, there is a need for a specific and unambiguous definition of “work of arduous nature” in order to establish “arduousness” so that employers can be held accountable for risk work as women workers especially in the informal sector are often engaged in hazardous and risky forms of work and also in order to ensure its proper and uniform interpretation in the Code.

Conclusion

Definitely, adoption of such benefits is a boon to society.

But any Law enforceable has become meaningful only through its effective enforcement and particularly, in case of labour laws, periodic inspection and/or inspection on receipt of complaint is the life line of enforcement. The effective application of the relevant provision through the system of labour inspection has been surpassed in this Code. Hence, the entire approach is to make the law efficiently enforceable in order to protect the workers’ interests.

References: 

^[1] https://msme.gov.in/sites/default/files/Condition_of_workers_sep_2007.pdf

^[2] https://pib.gov.in/newsite/PrintRelease.aspx?relid=191213

^[3]http://14.139.60.153/bitstream/123456789/2848/1/Report%20of%20the%20Committee%20on%20Unorganised%20Sector%20Satatistics.pdf

^[4] https://www.un.org/en/about-us/universal-declaration-of-human-rights

^[5] https://doe.gov.in/sites/default/files/6cpchighlights%281%29%281%29.pdf

^[6] https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32019L1152&rid=3

The post A Step in the Right Direction?: Critical Analysis of Maternity Benefits as guaranteed under the Social Security Code, 2020 in India appeared first on Legal Desire Media and Insights.

We may now readily find web adverts for 1000+ legal drafts. These businesses entice individuals with their appealing pricing schemes. Many people assume that the company and the drafts are reputable and fall into the pit far too easily because these online draft services mention that lawyers created the documents so that they can maintain their veracity. As a result, many people assume that the company and the drafts are reputable and hence rely upon such templates. To the untrained eye, most business transactions can seem redundantly identical — just a matter of pushing the right papers in front of the right eyes. But it’s misguided to assume that one legal form can fit the wide scope of diversity that exists within all companies. Every business is guided by unique goals, leaders, and circumstances that have different needs and characteristics.

The issue associated with such drafts available online is the rigidity and inflexibility of an online template. These online legal drafts are deceiving, and they may not be accepted in all places. This is due to the fact that each state’s interpretation of various law texts differs. Another prevalent problem is that some provisions can be applied in one state but not in another. It’s possible that a lawyer who has never done any drafting has generated a series of similar drafts in order to attract clients. Another disadvantage of such online drafts is that they nearly never handle a variety of potential concerns that may arise properly and explicitly.

“Communication is the key.” In this case the keys are aplenty without knowing the mechanics  of the lock. Imagine trying to open a door being locked out with ready made samples from the market, based on assumption. 

Moreso, it’s penny wise pound foolish. Without understanding specific needs, in the long run disputes invariably arise, leaving the ‘saver’ with bundled legal cost. Business is a marathon. Unfortunately usually people looking at a short-term profit, tend to end up in a 100-meter sprint. 

Ashish Bhakta – Founding Partner, ANB Legal

Another issue is that these templates do not take into account the particular and circumstances of your scenario. There are no two persons or businesses that are exactly alike. If one of the drafts does not fit the situation, the court can easily dismiss it. Some of these documents are ambiguous and unsuitable for legal advice. For example, a divorce petition can be filed in a variety of ways, including mutual divorce or divorce for various reasons under Hindu or Muslim law.

These contracts are not in any way tailored to the facts of your deal. Rather, they are usually legal gibberish garnished with glitter that laypeople interpret as meaningful. The present tendency in all legal drafts is to write clearly and unambiguously according to the facts and circumstances of the case and how they demand it.

In the digitalised era, readymade contracts and agreement templates are accessible at a finger click. However, a crucial point to consider before opting to use the same would be whether it fits the requirement of one’s need as contracts are a list of terms and conditions that are to be adhered to by both the parties signing it. Moreover, each agreement and negotiated deal has ingredients that are unique to its own, thereby the same should be drafted upon consulting a lawyer instead of using a readymade contract which would fail to take into consideration the essence of the negotiated deal. The bottom line is that the key to avoid any legal tussles is to ensure that a contract is sealed at every probable loophole and consulting a lawyer would not only avoid unnecessary litigation but provide a tailor-made contract that would ensure that businesses are smooth sailing.

Sonam Chandwani – Managing Partner at KS Legal & Associates

If you’re a client, you should appreciate the value of a legal draft and the skill of a lawyer in drafting a legal document. You should not be fooled into purchasing a legal gibberish package that can be found simply online. The drafts are only a starting point; you’ll need to consult a lawyer because you’ll need to insert deal-specific words and provisions that aren’t available elsewhere. Those are the crucial provisions that help you win a case. Moreover, if you’re a lawyer who wants to develop his or her drafting skills, the ideal option is to either get a good book with major guidelines for the subject material it covers, or practice more and more, choosing a senior or mentor under whose supervision you may improve your skills.

The author here addresses a very important topic, realizing the importance of details or unique elements of a case/business in creating a legal document emphasizing the same is the difference between a good strong legal draft and a generic one.

While the availability of generic draft has come as a legal aide for the people who can’t afford to pay lawyers for the drafts but the lack of professional touch in the same has definitely lead to some grievances being encountered by the users who may end up spending their money in litigation for the lack of legal advice. I would strongly pitch that when it comes to contract/agreement drafting for any nature, professional legal help should always be sought, to avoid any future legal ramifications.

Kangan Roda – Partner, illuminIP

 

It’s difficult to replace the human factor. Despite the fact that the internet has played a significant part in revolutionizing, it cannot replace the legal professional’s understanding. Legal documents must be prepared or tailored to the demands and conditions of the contracting parties. The lawyer is aware of the client’s opportunities, needs, and threats, and works with them to develop legal documents that are appropriate. Just remember not to be deceived by these generic internet-drafts. 

Contributing Authors: Shivani Singh, Muskan Mahajan, and Mannat Sardana (Editorial Team)

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In this case the Hon’ble Supreme Court of India addressed the issue of professional misconduct of the Advocates and set out certain parameters on which the Bar Council can weigh upon while deciding the quantum of punishment. The Court also opined that embezzlement of client’s money by an advocate is regarded as the severest and there is no justification in reducing the quantum of punishment as it is a clear breach of trust of the client and thereby maligning the reputation of the noble profession of advocacy.

Parties

1.     The Appellant, Harish Chandra Tiwari is a practicing Advocate and is enrolled with the Bar Council of UP since May 1982 and has been practicing in the courts at Lakhimpur Kheri District in U.P.

2.     The Respondent, Baiju is the client of Adv. Harish Chandra Tiwari and has engaged Mr. Harish in a land acquisition case in which the Respondent was the Claimant for compensation. 

Facts

1.     In this case Mr. Baiju hired Mr. Harish Chandra Tiwari for a land acquisition case who was an enrolled as an Advocate with the Bar Council of UP since 1982 and has been practicing in the District Courts of UP mainly in Lakimpur Keri District.

2.     Mr. Baiju was the claimant for the compensation in the case for which after he won, the State deposited a compensation of Rs. 8118/- in the Court. Mr. Baiju was an old, helpless, and poor illiterate person.

3.     Mr. Harish Chandra Tiwari on behalf of his client withdrew the said amount from the Court on 02.09.1987 and did not informed and did not retuned that amount to his client Mr. Baiju to whom the amount was payable.

4.    Mr. Baiju after a long time came to know about this and after failing to recover the amount from his lawyer, he filed a complaint with the Bar Council of UP to look into this matter and take suitable disciplinary action against the Appellant.

5.     On 12.07.1988, the Appellant admitted that he was engaged as the counsel for the Respondent in a land acquisition case and he withdrew the amount from the Court, but he returned it to the Respondent after deducting the appropriate legal fees and expenses.

6.   On 03.08.1988, the appellant filed an affidavit on behalf of the respondent without his knowledge before the Bar Council of UP in which it was clearly stated that a compromise has been entered between the Appellant and the Respondent and there is no need take any further action on the complaint filed by the Respondent. Not being convinced, the State Bar Council summoned the Respondent for the verification of the said Affidavit, where the Respondent denied the contents of the affidavit and told that there was no such compromise between the Appellant and the Respondent and disclaimed that he received any compensation amount.

7.     After the said incident, the case was transferred to the Bar Council of India under Section 36B (2) of the Advocates Act 1961 to start the disciplinary proceedings against the Appellant.

8.   The Disciplinary Committee after having viewed the contents of the case concluded that affidavit filed by the Appellant was a forged one and was fabricated. Therefore, the conduct of Mr. Harish Chandra Tiwari and his elusive imprecise testimony duly makes out that after taking the cheque from the Land Acquisition Officer in his own name, Mr. Harish failed to make the compensation to Mr. Baiju who is uneducated, poor person and his money has been misappropriated by the delinquent Advocate. 

9.     The Appellant was not able to prove that he has paid the amount to the Respondent and the factual position remains against him. The Appellant withdrew the amount and failed to deliver it to his client for more than 11 years and therefore is guilty of professional misconduct and has smeared the reputation of the entire moral vocation and has committed a breach of trust.

10.  After the decision of the Disciplinary Committee which held Mr. Harish guilty of breach of trust for misappropriating the assets of the client and imposed a punishment of suspending him from practice for a period of 3 years. Aggrieved by the decision of the Disciplinary Committee, the Appellant hereby preferred appeal to the Supreme Court of India under Section 38 of the Advocates Act 1961.    

Issues

1.     Whether the punishment shall be enhanced to the removal of the name of the Advocate from the Roll of the Bar Council of UP or not?

2.     What all factors needs to be determined while awarding a punishment by the Disciplinary Committee on proved misconduct?

3.     Does Supreme Court have the power to vary or alter the punishment awarded by the Disciplinary Committee of the Bar Council of India?

Applicable Laws

1.     Section 38 of the Advocates Act 1961– Appeal to the Supreme Court.

2.     Section 36B (2) of the Advocates Act 1961– Disposal of Disciplinary Proceedings.

3.     Section 35 of the Advocates Act 1961– Punishment of Advocates for Misconduct.

Arguments advanced by the Parties

·       The Appellant contended that he is not liable to be punished at all and on the other hand pleaded that he has returned the money to his client.

·       The Appellant also contended that he withdrew the amount out of the court in order to return it to the client after deducting his legal fees and expenses and also filed an affidavit stating that there has been a compromise between him and his client.

·       The Appellant also cited two citations in his favor in which the punishment awarded has not been escalated to the removal of the Advocate from the Roll itself. The Appellant cited Prahlad Saran Gupta vs Bar Council of India and Another, where the crook advocate retained a sun of Rs 1500 without sufficient justification for a period of 4 years and then submitted the said amount in the court without dispersing the amount to his client. Therefore, it was held that this act of the Advocate was not in harmoniousness with the professional standards and the court imposed a punishment of reprimanding the advocate concerned[1]. 

·       Another case cited by the Appellant is BR Mahalkari vs YB Zurange, in which the advocate retained the sum of Rs 1176/- which was returned by him to the client before the proceedings by disciplinary committee were initiated. Therefore, the committee found the advocate guilty of professional misconduct and disbarred him from practicing for a period of 3 years. [2]

Decision/Ratio Decidendi 

In the following case the Supreme Court opined that the cases cited by the Appellant are of no help as the facts of the case in different are totally different and speak for themselves. Therefore, Supreme Court held that the misconduct of the Appellant is of a far pointrel breadth. The Supreme Court imposed the punishment of removal of the name of the Appellant from the roll of the Advocates and was held debarred from practicing in any court of law or before any authority or person in India.

The Supreme Court said that the cases cited by the Appellant will not help in extenuating the quantum of punishment.   

Case Analysis

In this particular case, the Supreme Court while examining the facts and circumstances of the case also preached and decided the above issues. The Appellant in its appeal contended that he is not liable to be punished and had returned the money to the client. But in the opinion of the Supreme Court the Appellant was not able to prove and could not show a single piece of evidence to prove his innocence. On the other hand, the Appellant held the amount of Rs 8118/- in his possession for a period of more than 11 years and is thus guilty of professional misconduct and has also slandered the status of the noble profession of advocacy and also committed a criminal breach of trust.

Addition to the above circumstances, the Appellant also filed a forged affidavit on behalf of his client that there is a settlement arrived between him and his client in front of the Disciplinary Committee in order to quash the disciplinary proceedings going against the Appellant. This amounts to a grave offence and also disrupt the carriage of justice. Therefore, the Hon’ble Supreme Court was precise in enhancing the punishment of the Appellant thereby removing him from his name from the roll of the Bar Council of UP and restrained him from practicing in front of any court of law or in front of any person in India.

            Referring to the second issue, the Hon’ble Supreme Court of India laid down certain criteria for deciding the quantum of punishment, which was to be awarded to the aberrant advocate, since the punishment awarded by the Disciplinary Committee of the Bar Council of India was not proportional to the seriousness of felony committed. While deciding the punishment the Bar Council must weigh various factors such as:

·       Acute need to purify the legal profession from those advocates who are disposed to embezzling money of the clients. Deterrence is thus a protruding deliberation. This option is practically necessary when the legal profession has become overcrowded, without there being any active sieving process at the time of admittance.

·       To keep up the professional standards it becomes essential that nobody should form the imprint that once a person is admitted to the legal profession, he would be immune to any punitive measures and is free to indulge in despicable or detectable activities. Therefore, only the Bar Council of India or of the State is the only appropriate authority which can efficiently maintain this probity of the legal profession.    

·       The proper message should be conveyed to all the members of the legal fraternity that they are being watched, regarding their professional activities, through the lenses by the Bar Council and that its Disciplinary Committee would not acquiesce any professional incapacity with escape piece penalty.

With regards to various types of professional misconduct, embezzlement with client’s money is regarded as one of the severest. There is a fiduciary relationship between a layer and his client, and it is the duty of the lawyer to keep his client’s money safe. If an advocate embezzles money of his client, then there is no reason in reducing the seriousness of the offence. But if such breach of trust remained only for a temporary period of time, then the penalty can be mitigated to a certain extent. But there must be a proper justification as to the award of lesser punishment where the crook advocate returned the money before instigation of the disciplinary proceedings.

            Referring to the third issue, as per Section 38 of the Advocates Act 1961, the Hon’ble Supreme Court of India has the power to pass such order including an order varying the punishment awarded by the Disciplinary Committee of the Bar Council of India or of the State as it deems fit, provided that there must a reasonable opportunity give by the court to the Advocate of being heard if such order will prejudicially effect the appellant by varying his punishment. Therefore, in the present appeal a notice was given to the learned counsel for the appellant to show cause why the punishment should not be enhanced to removal of the name of the Appellant from the roll of the Bar Council of the State[3].

Section 35 of the Advocates Act, 1961 envisions three different punishments such as:

·       Reprimand the Advocates

·       Suspend the Advocate from practice for such period as it may deem fit

·       Remove the name of the Advocates from the State roll of advocates[4]

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However, regular cigarettes, namely Virginia Slims, were also marketed as a safe product for women in the 1960s, the same way in which electronic cigarettes and vaping devices are marketed nowadays toward millennials and gen Z. With slogans such as “You’ve Come A Long Way, Baby”, tobacco manufacturers such as the Philip Morris Company made smoking look like a sophisticated and glamorous habit back in the day. Smoking cigarettes was associated with modernity, youth, and sex appeal, just as vaping is now seen as a cool habit among adolescents.

According to the World Health Organization, there are approximately 55 million users of electronic cigarettes around the world, whereas in the United States, over 3% of adults and nearly 20% of high school students vape. Undoubtedly, vaping is currently all the rage among teenagers. Just as smoking slim cigarettes was during the last century among women from the silent generation and the baby boomer generation, who were made to think by tobacco manufacturers that smoking was a way to be seen as liberated. Nowadays, vaping is marketed as being safer than using regular cigarettes. But could this be the truth?

The Nicotine and Other Harmful Substances in Electronic Cigarettes

Unfortunately, the majority of electronic cigarettes contain nicotine, which is a highly addictive substance found in tobacco. It gives the user a pleasant and relaxing sensation, but at the same time, it increases their blood pressure and adrenaline, thus placing them at a higher risk of having a heart attack. Nicotine is extremely addictive, making the users of electronic cigarettes have a very difficult time quitting, just as is the case with regular cigarettes. Furthermore, according to medical researchers, it increases their risk of heart and lung disease, namely:

●       chronic lung disease

●       asthma

●       cardiovascular disease.

Electronic cigarettes, also known as JUULs and vape pens, use a battery to heat a liquid, turning it into the aerosol that the vaper inhales. However, this liquid is made of a concoction of toxic chemicals, some of which are carcinogenic to humans. There are numerous shocking ingredients in electronic cigarettes, such as propylene glycol, formaldehyde, and heavy metals.

Surprisingly, people who use electronic cigarettes may inhale even more nicotine than regular smokers, as they can buy extra-strength cartridges that have a high concentration of nicotine. Another way in which users may inhale more nicotine is when they increase the voltage of the device to obtain a greater hit of the substance. Therefore, while they may contain fewer harmful chemicals than regular cigarettes, vaping devices are not safer and do not actually help people quit smoking, since they still contain nicotine.

The Vaping Epidemic in Teenagers

From 1968 onward, when Virginia Slims were first introduced on the market, we have seen these cigarettes, which often contained as much nicotine as regular cigarettes, marketed toward women as part of the women liberation movement. Slim cigarettes were advertised specifically toward women due to their design, as they were made to look more graceful in their hands than a regular cigarette. With their thin design, it was not long before slim cigarettes were associated with independent, confident, and successful women.

Alarmingly, vaping is considered to be one of the coolest habits among teenagers at the moment, as the use of electronic cigarettes among this demographic had increased by 900% in 2015. There are multiple reasons for which young people find vaping devices so appealing, such as:

●       the fact that they are marketed as being safer than regular cigarettes

●       the cost, which is lower than that of regular cigarettes

●       the overwhelming number of flavors in which they come, such as watermelon

●       the fact that they release no smoke, as opposed to regular cigarettes.

According to medical studies, exposure to nicotine from a young age can inhibit normal brain development, as well as lead to serious diseases affecting the lungs, such as popcorn lung.

Medically known as bronchiolitis obliterans, popcorn lung is a condition in which the small airways are damaged by the aerosol inhaled from vaping devices. Some of the most common symptoms of popcorn lung are shortness of breath and a dry cough, which become particularly bothersome when exercising or doing heavy labor.

In 2018, approximately 37% of students in the twelfth grade vaped, according to the annual survey of drug, alcohol, and cigarette use, which is a 9% higher number than the one reported in the previous year. The liquids high school students used in vaping devices ranged from nicotine to hash oil.

Author bio: 

Miguel Leyva helps people whose health was affected by tobacco use obtain the damages they deserve for the terrible diagnoses they received. Miguel works alongside the team of experts at Atraxia Law, benefitting from over 35 years of experience in evaluating product liability claims throughout the country.

The post Vaping and E-Cigs – We Have Seen It All Before Throughout Smoking History appeared first on Legal Desire Media and Insights.

One of the biggest concerns that clients have, however, is cost. As a lawyer is the highest-paying social services job, many clients are fearful that they may be unable to hire a lawyer when they most need one.

It’s true that certain attorney fees can quickly add up so it’s always important to read your lawyer’s written fee agreement and have an understanding of the different types of fees your attorney might charge.

Here are six different types of attorney fees you might encounter when working with a lawyer.

1. Contingency Fees

One of the most common types of attorney fees is the contingency fee. With a contingency fee, the attorney is paid a percentage of the money that is awarded during a judgment or settlement.

This type of fee is popular among clients, as they take on little financial burden when hiring an attorney and only pay the contingency fee if their case is won. If the client loses the case, the attorney doesn’t collect the contingency fee.

The lawyer can also benefit, as they often negotiate a relatively high percentage of the amount that will be awarded—typically, between 25% and 40%.

Contingency fees are more prevalent on large injury or accident cases rather than on small cases, as the percentage earned on a small case may end up being disproportionate to the amount of time, energy, and money that the firm exhausts during the process.

2. Consultation Fees

An attorney may charge a consultation fee for an initial meeting with you, prior to both parties agreeing to work together. The consultation fee is typically a flat fee and is relatively inexpensive overall.

It’s also worth noting that not all attorneys charge consultation fees. In fact, many lawyers will offer a free consultation before you ever enter an agreement with them. Before scheduling a consultation, confirm whether or not your lawyer will be charging a consultation fee.

3. Flat Fees

While an attorney is unlikely to charge you a flat fee on a complicated or complex case, there are certain circumstances that may call for this type of fee.

Flat fees are primarily used for simple or routine cases that the attorney handles regularly. Because these cases are fairly predictable and require standard practices, lawyers generally know what to expect in terms of cost. These types of cases may include will preparations, mortgage foreclosures, or uncontested divorces.

4. Hourly Fees

An hourly fee is another one of the most common types of attorney fees, as it allows the lawyer to tailor the final cost of the work to reflect the amount of time, money, and energy that is spent on the case. The lawyer will usually track his or her time by the hour or by fractions of an hour.

Be mindful that hourly rates ultimately depend on the firm, the type of case, and the attorney’s experience. The average firm charges $100 – $300 per hour for their legal services. The top end of law firms may charge as much as $1,000 or more per hour.

Rates even vary from task to task. Paralegal fees, contract preparation fees, and litigation fees may all have very different hourly rates, so it’s important to get a full breakdown of these rates from your attorney in your agreement.

Particularly as payment will not be dependent on whether or not is won or settled (as is the case with contingency fees), it’s wise to request at least a rough cost estimate for all legal services upfront.

5. Statutory Fees

The amount a lawyer can charge a client for legal services is sometimes set by a court or regulated by a local, state, or federal statute. While not limited to bankruptcy and probate cases, statutory fees are most often seen with these types of cases.

These attorney fees are not required upfront or during the case but are instead billed for a later date.

6. Retainer Fees

A retainer fee is not a different type of attorney fee, per se. Rather, it’s an amount of money that is paid to the attorney upfront. As the job progresses and costs are accrued, the attorney will pull from this funded account—typically, using their hourly rate.

A retainer can be a convenient method of managing payment, particularly when a client has worked with a law firm repeatedly, has established a level of trust, and understands the lawyer’s fee structure.

The post How do you pay a Lawyer? 6 Different types of Attorney Fees appeared first on Legal Desire Media and Insights.

Marriage is a personal affair between two people standing on pillars of trust. Breach of trust is immoral and unethical but should not be a crime. Before 2018, India considered extra marital affairs as a crime. Section 497 of Indian Penal Code talks about Adultery meaning having a sexual relationship while being married, with someone else. The provision states-

“Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.”

 It means that Only a man who had consensual sexual intercourse with the wife of another man without his consent could have been punished under this offence. Woman, in this case, is a victim and she cannot be prosecuted for the same. This law was challenged by Joseph Shine back in 2017 and it was struck down by the Supreme Court of India.

Manusmriti, an ancient Hindu text, says in its literature that “If men persist in seeking intimate contact with other men’s wives, the king should brand them with punishments that inspire terror and banish them” at the same time f we go back to Indian folklore and other historic epics each of them mention extra-marital love. Infact, Most love poems in Sanskrit are “about illicit love” according to scholar J Moussaief Masson.

People were divided in two parts having opinions on this law. One part did not want this law to be struck down, arguing that it will destroy the sanctity or marriage and that it will result in adulterous relations having more free play. The central government also had the same opinion and was not in favor of decriminalizing this law. The other set of people opined that this is a very skewed and sexist law making it a discriminatory provision towards women. This does not protect the sanctity of marriage. The 158 years old, archaic, Victorian morals based law is more about treating women as property of their husbands rather than saving the institution of marriage. Act of adultery is definitely unethical and it breaches the trust of a person and a marriage too but how does putting someone behind the bars for a private act justified in the name of morals. Malimath Committee had given certain recommendations back in 2003, suggesting reforms for Indian Criminal Justice System. The committee had also pointed out that law of Adultery should be gender neutral.[1]

There are various questions and open ends to this law that will be further discussed in this paper. It briefly talks about the mindset behind the archaic law and its absurdity in the current times.

Law of Adultery: History

Section 497 was a pre-constitutional law which was enacted in 1860. At that point in time, women had no rights independent of their husbands and were treated as chattel or “property” of their husbands. Hence, the offence of adultery was treated as an injury to the husband, since it was considered to be a “theft” of his property, for which he could proceed to prosecute the offender. The first draft of the IPC released by the Law Commission of India in 1837 did not include “adultery” as an offence. Lord Macaulay was of the view that adultery or marital infidelity was a private wrong between the parties and not a criminal offence[2]. This was an archaic law based on the mindset that women can be treated at chattels.

Section 497 was first challenged in Yusuf Aziz v. State of Bombay[3], where it was contended by the petitioner that the section violated Articles 14 and 15 of the Constitution. The court held that women could only be a victim of adultery and not a perpetrator[4]. In V. Revathi v. UOI[5], it was held that adultery law was a shield rather than a sword[6]. This law had been criticized for treating women as property owned by men. The law was often misused by husbands during matrimonial disputes. 

The Supreme Court decriminalized the section in Joseph Shine v. UOI[7]. The court held that the offence is unconstitutional and it violates Article 14, 15, 21 and the dignity of a woman and her right to privacy and denudes her sexual autonomy. Section 198 CrPC was held to be violative of Article 14. Which will be further discussed in following sections of the paper.

Since adultery is prohibited in Islamic law, it is a crime in quite a few Islamic countries. To name a few, Iran, Saudi Arabia, Afghanistan, Pakistan, Bangladesh and Somalia[8].South Korea struck down a similar law and said that the law violated self-determination and privacy in 2015. International trends worldwide indicate that very few nations continue to treat adultery as a criminal offence. Adultery is still a ground for any kind of civil wrong including dissolution of marriage in India[9]

Joseph Shine case

The historical judgment that changed the perspective of adultery as a crime in India dated on July 27th, 2018, Joseph Shine v Union of India[10] decriminalized the act of adultery. It was a five- judge bench, namely Justice Deepak Misra, Justice A.M. Khanwilkar, Justice D.Y Chandrachud, Justice Indu Malhotra, and Justice R.F. Nariman. A PIL under Article 32 of the Indian Constitution was filed by Joseph Shine, a non- resident of Kerala. The petition challenged the constitutionality of adultery as an offence under Section 497 of the IPC read with Section 198(2) of the CrPC that talks about offences regarding marriage. The main purpose behind that petition was to protect Indian men from being punished by vengeful women or their husbands for extra marital relationships. A close friend of Petitioner’s in Kerala committed suicide after a woman co-worker charged him with malicious rape. Further section 497 is a gross occurrence of unfair sexuality, authoritative imperialism and male patriotism. The issues were

1)     whether section 497 of IPC is unconstitutional?

2)     There is no legal provision that a woman can file a complaint of adultery against her husband, this should be addressed.

3)     Whether Sec 198(2) of the Code of Criminal Procedure, 1973 is unconstitutional being unjust, illegal and violative of fundamental rights.

Petitioner also wanted to point out that if the husband gives his consent for such an act then such act is no more considered as a crime. Therefore, women are treated as an object under adultery law. Intervenor Vimochana was represented by Advocate Jayna Kothari, Executive Director of CLPR. She assailed the provision which categorised adultery as an offence by invoking the fundamental right to privacy, as recognised by the Supreme Court in Puttaswamy case. She argued that the right to intimate association is a facet of privacy which is protected under the Constitution.

A three-judge bench led by former Chief Justice of India Dipak Misra had referred this case to a five- judge bench. The court observed that husband cannot be master of wife and that this law was based on Social Presumption. The Supreme Court of India struck down this law and declared that “The notion that a woman is ‘submissive’, or worse still ‘naive’ has no legitimacy in the discourse of a liberal constitution. It is deeply offensive to equality and destructive of the dignity of the woman”

Adultery was earlier punishable by Five years of imprisonment, maximum, or fine or both. 

Imposing Morals: Hart and Delvin

From the perspective of the Hart Devlin debate started in 1960’s, deciding whether law should enforce morality. Professor Hart and Lord Devlin debated about what the law ‘ought’ to be and whether morality should be enforced by law to form a good society[11].Jurisprudence analyses what would be the best form of law in order to form a civil society where both individual liberty and normative goals are practiced. Should the aim of law be primarily focused on the protection of individual liberty or, instead, the normative goals aimed at the good of civil society? The laws in any society should not only be focused on normative goals it should also protect individual liberty. Professor Hart discussed the connection between crime and sin and to what extend should the law be concerned with the enforcement of morals and the punishment for immorality. According to Devlin there are certain moral principles aimed at the good of civil society and a breach of those morals is a social offence. Regarding these issues Lord Devlin put forward three questions.

First ‘Does the society have the right to pass judgement regarding morality? Ought there, to be a public morality, or are morals always a matter for private judgement?’[12]In Devlin’s view public morality exists. A civil society does have the right to pass moral judgments and morality is not always a matter of private judgement.

Devlin’s second question was that if society has the right to pass judgement does it also use the law as a weapon to enforce it? Devlin said society does have a right and a civil society uses the law to preserve morality in order to safeguarding social morals[13]. A civil society has an indefinable right to legislate against internal or external damages.  Further Devlin thought how moral judgement in civil society should be considered. To consider public morals the law is not looking for true belief but what is commonly believed by individuals in a civil society as a whole.

The third question is whether the weapon of law should be used in all cases or in some cases? If not in all cases what should be in mind? Devlin realizes that citizens cannot be expected to social judgement on every aspect of their lives. Therefore, there must be a balance between normative goals in civil social and individual interest. It is difficult to suggest how the balance ought to be struck. However, Devlin believes there are certain principles that legislators should bear in mind which enacting law and enforcing morals. Before a civil society does thing beyond the limits of tolerance judgement has to be purposeful where any act is dangerous. The legislature should also remember that the limits of tolerance often shift but that does not always mean that the standard of morals will also shift but the extent to what society will tolerate may be limited.  Devlin explained moral standard change from generation to generation so the law should intervene slowly striking a balance between individual liberty and the normative goals aimed at the good of civil society baring in mind as to what morality changes with time.

In context to Adultery and the Supreme Court striking down The Adultery Law in India, we understand that Delvin’s theory of law, that certain breaches of morals are a social offence and not a criminal one and do not deserve a certain level of penalization has clearly be upheld by the bench that delivered the judgement on Joseph Shive V/s UOI[14] , hence it can be understood that while Professor Hart’s approach is more idealistic and belonged to a different time, due to the level of rigidity attached to it’s theory, Professor Devlin’s approach is more futuristic and flexible with the changing times and scenarios.

Absurdity of section 497 IPC

There were many stands against striking down the law of adultery. People believed that decriminalization will result in more adulterous relations and being more in free play. It Is against Indian Ethos and keeping it a punishable offense protects, supports and safeguards the institution of marriage. The Union Govt. had given a statement that striking down this law will only weaken the institution of marriage. In their opinion, diluting this law on Adultery will affect the Sanctity of marriage. But, does criminalizing this act actually helps the marriage sustain?

There are various questions and grey areas left in the provision. The Language of the Section 497 is not very clear and in my sense very absurd. The arguments are threefold here.

1)     Right to Privacy.

How putting a consenting adult behind the bars for having sexual relations with another consenting adult save the sanctity of marriage? Going back to the science of law, jurisprudence, particularly the debate of Hart and Delvin it very well explains that doing something immoral and unethical is one thing and imposing morals, making private acts between two consenting adults a crime, another. This act is surely unethical and immoral but criminalizing it is nowhere helping the marriage to sustain.  J. Chandrachud stated “Act of Adultery is symptomatic of a broken marriage and not a cause of broken marriage. And if we start criminalizing the symptoms of a problem, you are actually heading towards a disastrous situation.” 

This situation is between two people and their marriage, the constitution gives them the right to privacy which should be maintained. Criminalising adultery also denies an individual bodily autonomy by placing a penal restriction on choosing a sexual partner, which is considered the most intimate of decisions a person can make. It, thus, violates a fundamental right by undermining the concept of privacy.

Going back to the LGBTQ case[15] Supreme Court had pointed out a very beautiful fact of life “Life is precious in itself. But life is worth living because of the freedoms which enable each individual to live life as it should be lived. The best decisions on how life should be lived are entrusted to the individual. They are continuously shaped by the social milieu in which individuals exist. The duty of the state is to safeguard the ability to take decisions – the autonomy of the individual – and not to dictate those decisions.”  It is baseless to invoke tradition to justify such restrictions, fouls the fundamental tenets of constitutional interpretation, under which constitutional morality supersedes popular morality. To attach criminality to something happening in the four walls of privacy is wrong. The act of adultery involves breach of trust in the institution of marriage and making it a criminal offense does not protect the sanctity of marriage in any possible way. It in turns only forces the woman, emotionally abuses and punishes her which will be dealt with in the next section.

2)   Gender Neutrality

The law looks like it is a pro woman provision but is an anti- woman law in totality. Women are treated as chattels and enforces a construct of marriage where one partner is to cede her sexual autonomy to the other. Being antithetical to the constitutional guarantees of liberty, dignity and equality, section 497 does not pass constitutional muster. In this case, woman cannot complain against an adulterous husband or prosecute him where as the man has complete right to file a complaint against his wife’s sexual partner. This archaic law had the purpose to ensure the husband’s control over the sexuality of his wife and manifest arbitrariness as it was founded on a notion that a woman, by entering into marriage, loses her voice, autonomy and agency. J. Chandrachud stated in his arguments that Section 497 disregards the sexual autonomy which every woman possesses as a necessary condition of her existence. Far from being an equal partner in an equal relationship, she is subjugated entirely to the will of her spouse.

In Sowmithri Vishnu v. UOI[16], the Supreme Court held that men are not allowed to prosecute wives in order to protect the sanctity of the marriage and for the same reason, women are also not allowed to prosecute their husbands[17]. The three-judge bench, led by former CJI Dipak Misra had a view that its time to bring focus on the rights of women. Before Josheph Shine judgemnet, Section 198 of the Code of Criminal Procedure, 1973, stated only the husband of the married woman, who had sexual intercourse with another man, could file a case against the male who indulged in the act with her. This petition had also challenged this section of CrPC. In India, adultery is still a ground for divorce under Section 13 (1) of Hindu Marriage Act, 1956. It means that a woman can have sexual intercourse with many men and the husband can file a complaint against all those men and not the woman where as, if the husband has sexual intercourse with many women, the wife cannot file a complaint against anyone on the ground of adultery.

We also see that this provision offends article 21 of the Indian Constitution. Section 497 of IPC, provisionally curtails a woman’s dignity and equality which creates a gap between men and women as well as dents their identity by creating ill gender distinctions and stereotypes. Also, the element of husband’s consent tantamounts to the subordination of the female partner or wife.

It is also important to point out that Centre’s view stating that decriminalizing this section will lead to destruction of the sanctity of marriage has a very illogical thought behind it. By criminalizing this act, the women are all the more burdened with the compulsion of upholding that family, keeping it together. This is indirectly forcing the wife to stay in the marriage. As stated by Justice Indu Malhotra during the hearings of the case, “A law which deprives women of the right to prosecute, is not gender-neutral. Under Section 497, the wife of the adulterous male, cannot prosecute her husband for marital infidelity. This provision is therefore ex facie discriminatory against women, and violative of Article 14. Section 497 as it stands today, cannot hide in the shadows against the discerning light of Article 14 which irradiates anything which is unreasonable, discriminatory, and arbitrary.” The last line of the provision mentions that ‘in such case the wife shall not be punishable as an abettor, this hints towards making the wife neither a seducer nor an abettor but only a victim. This cannot be held true and practical in today’s world. It is very wrong, rather immoral to think of a woman being her husband’s subordinate.

3)     Absurdity of law

Firstly, As explained in the above section, a woman cannot complain against an adulterous husband or prosecute him, only the husband can file a complaint. Section 497 is very absurd in many ways. It leaves a lot of open ends and language that cannot be held true in the 21st century. We cannot make this a gender biased law. Only allowing male to be able to complain or be prosecuted is a throwback to the Victorian morality. In a democratic society, one cannot impose morals in the name of laws and make private affairs a crime. Making only men prosecutable or for that matter only men having the power to complain can in no way preserve the sanctity of marriage. What about a wife who find out about the adulterous relationship her husband is involved in, she can’t do anything except for filing for a divorce?

Secondly, the law states that a sexual affair with a sex worker, widow or an unmarried woman shall not be considered adultery. The question remains, what is the law trying to protect? Marriage? Men having sex with anyone except a married woman? Or just giving them a leeway to indulge into anything but not with a married woman? This imposes that a married woman is her husband’s property and no other man shall trespass the property. There are specifications in the law that men can indulge in a sexual relationship with anyone while being married but not with a married woman. Does this protect the sanctity or marriage or gives men a way to do what the want with a clean chit?

Thirdly, if husband consents to his wife having an extramarital affair, its not adultery. All these points boil down to only one conclusion: Men have rights over their wife and they are supposed to be their husband’s subordinate. Only thing happening here is objectification woman and subjecting them to a forced marriage. It only proves that women cannot be given personal autonomy and they are seen as their husband’s property that shouldn’t pe trespassed. The law also mentions that without the consent or connivance of that man which means that this is a crime only if you don’t have the “permission” of your husband.  This penal provision was based on gender stereotypes about the role of woman. It’s illogical to say sexual act is not an offence if it’s done with his (husband’s) consent

This law was enacted around 158 years ago, the mentality and theories behind the provisions of this law is not at all a practical approach in this century. When the court had decided to strike this section down by decriminalizing adultery, the bench proved that India has progressed and such absurd laws have no space in Indian law anymore. It shows that women are unequal participants to the marriage. 

 Conclusion

Marriage is a private affair between two people and If we start subjecting laws to our personal rationale, it would lead to chaos, as a counter narrative would always exist. Adultery is not always the cause of an unhappy marriage it is also a result of the same. By making it a criminal offence, there is an unnecessary burden on the wife to uphold the unhappy marriage. There were arguments that Adultery not only jeopardizes the marriage between the two consenting adults, but the act also affects the growth and moral fibre of children. Hence the State has a legitimate public interest in making it a criminal offence. But again, an unhappy marriage will lead to the same conclusion. This is immoral and unethical, it should be a ground for divorce, making it a civil crime but no one should be sent to jail for the same. In joseph Shine case, the Supreme Court decided to strike down this law as a crime and continued it as a civil crime, a ground for divorce only. Former CJI Dipak Misra summarized the issue in a few words:

 “Adultery, in certain situations, may not be the cause of an unhappy marriage. It can be the result. It is difficult to conceive of such situations in absolute terms. The issue that requires to be determined is whether the said act should be made a criminal offence especially when on certain occasions, it can be the cause and in certain situations, it can be the result. If the act is treated as an offence and punishment is provided, it would tantamount to punishing people who are unhappy in marital relationships and any law that would make adultery a crime would have to punish indiscriminately both the persons whose marriages have been broken down as well as those persons whose marriages are not. A law punishing adultery as a crime cannot make distinction between these two types of marriages. It is bound to become a law which would fall within the sphere of manifest arbitrariness.”

This case proved that India has progressed and moved ahead from the centuries old Victorian morals and has stood up for the people of this country by making it a gender- neutral concern. They have upheld the privacy of a marriage and kept this law as a ground for divorce. Women have their sexual autonomy and can no more be treated as their husband’s property.  

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Brief Essence

This Indian case has briefly described the Concept of Domicile of Origin and the Domicile of Choice and the difference between the two. The Case specifically defines as to how a person has to prove or fulfill certain conditions in order to get a Domicile of Choice of a new country and how and when the Domicile of Origin stays in abeyance. This concept of Domicile holds a relatively higher pedestal in the realm of Private International Law. Many Courts in different jurisdictions, especially the English Courts have helped in evolving the jurisprudence behind the concept of Domicile of Origin and Domicile of Choice.

The two main conditions which needs to be fulfilled for proving the Domicile of Choice are Physical Residency and animus manendi (intention to reside permanently in the Country of Domicile of Choice with your family with the aim of settling their indefinitely).

In this case the Supreme Court has dealt with the complexity of issues and held that an existing domicile is presumed to be in existence until proved that a new domicile has been acquired, because a person cannot be without a Domicile. Hence, the burden of proving a change in Domicile is variably upon the person who alleges that there has been a change in the status of his Domicile. If the evidence is not conclusive in nature, then the court generally decided in the favor of the existing Domicile which is the Domicile of Origin.

Parties

1. The Appellant, Kedar Pandey is a contesting candidate from Congress Party for competing the 1962 election for Bihar Legislative Assembly from Ramnagar Constituency in the District of Champaran.
2. The Respondent, Narain Bikram Shahis a contesting candidate from Swatantra Party for competing the 1962 elections for Bihar Legislative Assembly from Ramnagar Constituency in the District of Champaran.

Facts

1. Appellant and the Respondent are the contesting candidates for Bihar Legislative Assembly Elections in 1962 from Ramnagar constituency in the district of Champaran.
2. After the election was conducted, Narain Bikram Shah (respondent) in the present case was declared as the elected member of the Bihar Legislative Assembly from Ramnagar Constituency in the District of Champaran.
3. On April 11, 1962 Kedar Pandey filed a petition challenging the validity of the Respondent elected as a member of the Bihar Legislative Assembly. It was alleged by the Appellant that the Respondent is not duly qualified under Article 173 of the Indian Constitution, to be a member of the Assembly as he is not a citizen of India. The parents and grandparents of the Respondent were born in Nepal and therefore on the date of the election Respondent was not qualified to be a member.
4. The Respondent in its petition contested that he was an Indian Citizen at the time of election as he lived in India since his birth and was a resident of Ramnagar in the district of Champaran and was not born in Barewa, Nepal. The Respondent contended that he was born in Banaras.
5. After due consideration of the contentions of both the parties, the Election Tribunal held that the Respondent was not a citizen of India at the time of election and therefore not qualified under Article 173 of the Indian Constitution to fill in the seat of a member of the legislative assembly.
6. The Tribunal refused to pass a decree entitling the Appellant to be elected as a member of the Legislative Assembly for Ramnagar constituency. Both the Appellant and the Respondent appealed separately in the High Court of Patna against the Judgment of the Tribunal.
7. The High Court of Patna upon examining the contentions found that as the Respondent was born in the city of Banaras in 1918 and was living in India since 1939 up to 1949 and even thereafter. The High Court opined that before the year 1949 the Respondent acquired the Domicile of Choice in the Indian Territory, and therefore acquired the status of an Indian Citizen under Article 5(a) and Article 5(c) of the Indian Constitution. Therefore, the High Court took a view that the Respondent was an Indian Citizen and was duly qualified under to be a member of the Bihar legislative assembly.
8. Aggrieved by the decision of the High Court, the Appellant has filed an appeal before the Supreme Court of India to address the below issues[1].

Issues

1. Whether the High Court was right in its conclusion that the Respondent Narain Raja was a citizen of India under Article 5 of the Constitution of India on the material date?
2. Whether Narain Raja had his domicile in the Territory of India at the material date?
3. Whether Narain Raja had acquired the Domicile of Choice in India?

Applicable Laws

1. Artcle 5[2] of the Indian Constitution: Citizenship at the Commencement of the Constitution.

2. Article 173 of the Indian Constitution: Qualification for membership of the State Legislature[3].

Decision

The Supreme Court after examining the above issues was of the opinion that Narain Bikram Shah, long time before 1949 which is the material time prescribed under Article 5 of the Constitution, had acquired a domicile of Choice in India. It is to be noted by the acts of Narain Raja that he formed a deliberate intention of making his home with the intention of permanently residing establishing himself and his family in India. In the opinion of the Supreme Court, the requisite animus manendi has been proved and the finding of the High Court deems fit and appropriate.

Therefore, as Narain Raja was ordinarily resident in India for 5 years immediately preceding that time mentioned in Article 5 of the Constitution came into force, and requirements under Article 5 (c) were satisfied, it is to put on record that Narain Raja was a citizen if India at that relevant time.

The Supreme Court observed the decisions passed in the English Cases of Udny vs Udny [4]and Doucet vs Geoghegan [5]and observed that the only intention which is required for a proof of change of domicile is an intention of permanent residence. In other words, what is required to be established is that the person who alleges to have changes the domicile of origin and had acquired a domicile of choice has voluntarily fixed the habitation of himself and his family in the new country, not for a special or temporary purpose but with the intention of residing there permanently.

Case Analysis

The present case deals with the concept of Domicile in the realm of Private International Law. The Concept of Domicile of Origin and Domicile of Choice are two different concepts, and both the concepts need to be understood in order to determine a person’s residential status.

The law is well established but it becomes difficult to implement the concepts of the underlying law depending upon the circumstances of each case. The person at birth gets conferred by law the right to Domicile of Origin. The person gets the Domicile of Origin of the country in which he/she is born. If they want to change the status of that Domicile to a Domicile of a new country, then that Domicile is called the Domicile of Choice. These two domiciles differ from each other in every aspect.

A person continues to retain the Domicile of Origin as long as he or she does not acquire a new Domicile of Choice. The moment a person gives up his Domicile of Choice, his Domicile of Origin revives which remained in abeyance. So, the Domicile of Origin remains with the person till his last breath.

The Domicile of Choice is acquired by a person by the actual removal of the Domicile of Origin accompanied by his animus manendi (intention). A legitimate child born out of a legal marriage gets the Domicile of his father at the time of the Birth, whereas a posthumous child receives the Domicile of his Mother at the time of birth.

A person in order to get a Domicile of Choice has to fulfil certain conditions such as:

1. Residence in the Country of Domicile of Choice
2. Intention to live in the country of Domicile of Choice permanently

As per Section 10 of the Indian Succession Act 1925, “a man is deemed to acquire a Domicile of Choice by taking up his fixed habitation in a country which he supposes to be his Domicile of Choice[6]”. In other words, factum et animus must be present. The Residence along with the intention must co-exist. If Residence and Intention co-exists, then neither the character nor its duration of stay is in any way material.

The residence of a person is regarded as the tangible facts and not more than a physical presence in the locality from which intention of a person can be inferred, while the intention of a person is regarded as an intangible fact which can be collected from certain tangible acts in which it is established. [7]

It is animus manendi which is required when the person whose domicile is the object of inquiry and he or she must have formed a fixed and settled purpose of making his principle or permanent home in the Country of Domicile of Choice. Therefore, the onus of proving the intention to reside in the Country of Domicile is upon the person who asserts that his Domicile of Origin has been lost and substituted with the Domicile of Choice. So, as per the case of Winans vs Attorney General [1904] AC 287, the Domicile of Origin continues until and unless a fixed and deliberate intention of abandoning the first domicile and acquiring the new domicile is clearly shown[8].

The Supreme Court also analyzed various other English landmark judgments where the intention of the party to reside permanently in the Domicile of Choice has to be established. In the case of House of Lords in Moorhouse vs Lord [10 HL Cas. 272], it was held that in order to lose the Domicile of Origin, and to acquire a Domicile of Choice, a man must change his/her nationality and must also intend quatenus in illo exuere patriam, which forms a part of natural commitment. Therefore, it is not enough to buy a new house in the country with the possibility of belief that he may remain there for rest of his life[9].

Also, in the case of Udny vs Udny, LR 1 HL 441, it was held that the only intention required for a proof of change of Domicile is an intention of permanent residence. Therefore, a person must prove that he is willing to stay with his permanently in the Country of Domicile of Choice with his clear intention and not residing there for temporary or special purpose for a short period of time. So, this test was applied in analyzing whether Narain Raja formed an intention to permanently reside in India with the intention of establishing himself and his family in India[10].

In the present case, SC decided the above issues after observing the relevant acts of Narain Raja which clearly depicted his intention to permanently reside in the territory of India and to acquire a Domicile of Choice. Narain Raja was educated from the University of Calcutta in 1938 after 4 years of graduation, and after that he lived in Ramnagar. After the Death of Rama Raja, the father of Narain Raja in 1947, lived in Ramnagar and possessed the properties of his father which his father received from his father Mohan Raja and held them in the territory of India since 1937.

Narain Raja also contended that his father between 1934 and 1941 built a palace in Ramnagar where Narain Raja used to live before he made up his own house in Ramnagar. He also provided the exhibits which clearly shows that a partition suit is also going on between him and his brothers since 1942 with regards to ancestral property. Narain Raja also contended that after the partition, Narain Raja was solely looking after the properties which were left joint and was the manager thereof. The forests of their Ramnagar estate were not partitioned and were held jointly by all the brothers. Narain Raja also contended that he holds various properties in the cities of Bettiah, Chapra, Patna and Benaras. It is also to be noted that Narain Raja obtained an Indian Passport issued by the Governor General of India at Lucknow stating that Narain Raja was an Indian Citizen and his residence being at Ramnagar.

The High Court while deciding this case took into view the facts and circumstances and the course of conduct of a person before and after the relevant time for deciding the question of Domicile of Choice. The High Court took the view of Chancery Court in the case of Grove Vaucher vs The Solicitor to the Treasury (1889) 40 Ch. 216, where it was held that “the domicile of a person is constituted by the factum of residence in a country and the animus manendi that is the intention to reside in a country for an indefinite period of time. Therefore, in order to determine an intention of the person at any particular time, you may not only give regard to conduct and acts before and at that time, but also the acts and conduct after the relevant time, which are relative and have proper weight of cogency[11]”.

Therefore, the conduct and acts of Narain Raja after 1949 were relevant in deciding the question of his domicile in the light of his conduct and activities prior to 1949. It has to be noted that Narain Raja married in 950 and his wife belonged to Darkoti in Himachal Pradesh and it took place in Benaras. Narain Raja had a son and a daughter from this wedlock. In 1950, Narain Raja had established a Sanskrit Vidalya in Ramnagar in the name of his mother. There was also a Union Board in Ramnagar before Gram Panchayats had come into existence of which Narain Raja was the Chairman. Narain Raja was also elected as the Vice-President of the Union called CDCM Union of Ramnagar and was also a voter from Ramnagar Constituency. In the general election of 1957, Narain Raja stood as an opposing candidate in front of Kedar Pandey, and he became the president of the Bettiah Sub-Divisional Swatantra Party and the Vice-President of Champaran District Swatantra Party.

So, after taking all the facts and circumstances in view, the Supreme Court decided that Narain Raja had acquired a Domicile of Choice in India and satisfies the material conditions under Article 5 of the Indian Constitution and was an ordinarily resident in India for 5 years immediately preceding the time under Article 5 of the Indian Constitution. Narain Raja formed a deliberate intention of making a permanent home in India and establishing his family here. Therefore, the requisite animus manendi has been proved and it upheld the decision passed by the High Court of Patna[12].

[1] Kedar Pandey vs Narain Bikram Shah, Civil Appeal No. 976 and 977 of 1964.

[2] Indian Constitution, Art.5

[3] Indian Constitution, Art. 173

[4] Udny vs Udny, LR. 1 HL 44.

[5] Doucet vs Geoghegan, 1978 9 Ch. D 441.

[6] Section 10, Hindu Succession Act 1925.

[7] Paras Diwan, Private International Law, 155, 158 (4^th Edition, 1998).

[8] Winans vs Attorney General [1904] AC 287.

[9] House of Lords in Moorhouse vs Lord 10 HL Cas. 272].

[10] Supra 4.

[11] Grove Vaucher vs The Solicitor to the Treasury (1889) 40 Ch. 216.

[12] Supra 1.

Author: Shrey Mohan
Shrey Mohan is a 4th Year BBA.LLB Student at Bennett University. He has a keen interest in Intellectual Property Laws, Mergers and Acquisitions, Competition and Commercial Laws.

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