Courts Decision on Ban on Firecrackers in Delhi

The Delhi court is soon going to rule out its decision on whether the ban on the sale of fire crackers in Delhi and NCR region will continue this Diwali or not. The kid petitioners who had filed the PIL are less than four years of age and have sought a complete ban on the purchase, sale as well as transportation of fire crackers. Their lawyer did present a lot of material on how children were the most affected amongst all because of the smoke that arises out of bursting the fire crackers.

Courts Decision on Ban on Firecrackers in Delhi

The highlight of the case was that the petitioners has got the chief of Lung Foundation Sri Arvind Kumar as well as Chairman of Centre for Chest Surgery and Lung Transplantation, to strengthen their case.
Both the doctors explained the jury about the ill effects that smoke causes on people and Dr. Kumar also shared his experiences as a Surgeon stating that indirectly everyone in Delhi is a smoker. Through pictures of lungs he showed how a spike in PM 2.5 during the Diwali season of fire crackers can prove to be fatal and have a major effect on the mortality rate even if there is a 10 micron rise.

LAW COLLEGES IN BANGALORE

The plea also included explanation on how kids were adversely affected by the smoke pollution of fire crackers as their lungs were not developed fully making them even more vulnerable to conditions like asthma, bronchitis, lung disease as well as cognitive impairment.

Last year the high court did suspend the sale of fire crackers in Delhi as well as NCR to measure the positive effect of fire cracker less festive celebrations for the period October 9 – November 1, 2017. The hearing bench of Justices do agree that children are affected adversely and the most due to the smoke pollution but they are still to come to a decision of whether to levy a ban on the same or to regulate the sale of fire crackers this Diwali.

While it is a known fact that fire crackers worth crores of Rupees are sold for Diwali celebrations, even the fog cover that Delhi has experienced recently does pose the need for strict rules and regulations to curb different types of pollutions and maintain healthy air standards in the capital and around.

*Source form the internet

What is privilege Motion – Indian Parliament

Recently, we saw Lok Sabha members move two different motions precisely the ‘no confidence motion’ and ‘privilege motion’. While we have discussed ‘no confidence motion’ in the earlier blog already, here’s all about privilege motion in India.

What does Privilege motion mean?
Unlike the no confidence motion, the privilege motion is applicable to both the Rajya-Sabha and the Lok Sabha. As MP’s of the Parliament, the members are granted certain privileges individually as well as collectively so that they can perform their duties properly. But, if any of the member disregards these immunities or rights, the act is known as breach of privilege and is liable to be punished under the same as per the Parliament laws.

When a MP sees a breach of privilege by another member/members, he or she can move the privilege motion against all those accused of the breach. Besides, the Rajya Sabha and the Lok Sabha both have the power to punish any contempt of the parliament other than breach of privilege considered against its dignity or authority.

privilege Motion - Indian Parliament

Rule 187 / 222
The privilege motion has a mention in Chapter 20 of rule 22 for the Lok Sabha and Chapter 16 Rule 187 for the Rajya Sabha. If any member wants to move the privilege motion he or she has to provide a notice to the Speaker before 10 am against any other member, committee or even the house. The first scrutiny level of the privilege motion in the Lok Sabha is through the Speaker and Rajya Sabha through the Chairperson. If the Speaker or Chairperson admits the motion than the accused or concerned is given a chance to explain themselves.

Referring a Motion
After listening to the member the Speaker/Chairperson can refer the motion to the parliamentary committee. It consists of 15 members in equal strength from various political parties. They prepare a report on the same and a debate of one and half hour is allowed on the report prior passing the final orders. The speaker may also suggest that the ordered be tabled and decision or resolution be passed on it in collectively. The procedure remains the same for the Rajya Sabha or the upper house as well. Only that in the Rajya Sabha the committee is made up of only 10 members against 15.

Examples
In the Past, many privilege motions have been passed in the Lok Sabha, but most of them have been rejected and only some have demanded action on the same. One of the most notable cases of the privilege motion was the one that was passed against Indira Gandhi in the year 1978. It was moved in by the then Home Minister Charan Singh. It was based on Justice Shah Commission observations while investigating excesses during Emergency. Even though Indira Gandhi had won the Lok Sabha elections then, was expelled from the house owing to the same. In another case, it was BJP MP Subramanian Swamy who was expelled by the Parliament for giving explosive interviews to foreign publications and thereby disgracing the house.

No Confidence Motion in India – All You Need to Know

Recently, the NDA government led by Rahul Gandhi as well as the YSR congress moved no confidence motions against the reigning BJP led government. Well, the results went in favor of the reigning government but for those are not aware of what a non-confidence motion in India means, here’s a sneak peek into the same.

No Confidence Motion - India

No Confidence Motion
As per the Indian constitution, a government can only function if it has majority support of the Lok Sabha members. If there is a non-confidence motion against a reigning party, they have to prove their majority to stay in power, failing which they have to resign. Any member of the Lok Sabha who feels that the reigning party does not possess the support of the majority, can move a non- confidence motion against the ruling party. Reason for moving the motion is not required.

The Procedure of No Confidence Motion
As mentioned before any member of the Lok Sabha can initiate a non-confidence motion. The procedure is specified in the rule 198 of the Rules of Procedure and conduct of the Lok Sabha and involves a written notice of motion to be given to the speaker/ Secretary General of the house before 10 am. The speaker then reads it out to the members. It has to be accepted by a minimum of 50 members of the house. The speaker then specifies a date within a period of 10 days from the acceptance of the motion, for discussion on the same. A time for voting is specified on the last day of the discussion of the motion and the voting procedure is taken up using Division of vote, voice vote or other means. If the specified date is not within 10 days, then the motion is termed as failed and the member who moves the motion is informed about it. Also, if the government in power is not able to prove its majority in the house, the reigning government has to resign. Alternatively, the Prime minister can move the ‘Confidence Motion’ to prove strength in the Lok Sabha as well.

As mentioned earlier, the recent no confidence motion was won by the reigning government with a majority of 325 votes against 126 of NDA. The majority minimum was 226 because 451 MPs were present and the reigning BJP government easily surpassed it with its numbers. This non confidence motion against the Narendra Modi led government has come after 15 long years. The earlier was passed way back in 2003 against the same party’s representative Atal Bihari Vajpayee.

Not Mandatory to reveal Fathers Name on the Birth certificate for single Mothers – Madras High court

The Madras high court passed the order against a petition filed by Ms. Mathumitha Ramesh, a mother of a year old child that was conceived through intrauterine fertility treatment. She was a divorcee and conceived using the semen of a donor through artificial insemination process. At the time of issuing the birth certificate the authorities compelled the mother to name the father in the child’s birth certificate.

SINGLE MOTHERS

She even made an application to rectify the birth certificate but that was also rejected by the Chief Health officer of Trichy Municipal Corporation. He was of the opinion that the law of rectification allows only change in the name of the father and not removal of his name altogether.

The advocate fighting her case brought forth the Section 15 act of registration of births and deaths of 1969 and Rule 11 from registration of births and death of 2000, Tamilnadu. This act empowers the birth and death registrar to allow error correction in birth certificates.

The court examined the case and noted that the birth certificate registration form did have space or column for entering the fathers name but nowhere was mentioned, by any act or rules that it was mandatory to do so. The court further conveyed that as the child bearing was done through intrauterine fertility treatment, the donor confidentiality needs to be protected. It ruled that disclosure of the fathers name for child birth registration authorities cannot make it mandatory for mother to disclose the fathers name for registration after child birth. An affidavit stating that the child was born from her womb would be enough a proof.

The authorities ruled the argument in favor or Ms Ramesh and that she need not mention the name of the child.

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Legal Reforms In India Post Nirbhaya Rape

While the statistics of rape cases in India are horrifying, the one case that completely shook the country and made one billion people rise in unison against this heinous crime was the Nirbhaya episode. A rape that left people numb and startled with its severity brought under the scanner not only the state of women safety in the country but even the law system which the people do not fear. Its five years past this incident that sparked off many legal reforms in the country. Here’s a run-down some of the major reformations around the rape crime in country.

Nirbhaya Rape

Criminal law amendment 2013 – This law brought about changes in the way to deal with juvenile offenders and the facility of medico-legal care to be given to victims/ survivors of sexual assaults. The major change was in the rape definition. As per the IPC rape was retained as different offence which not only included vagina penetration but also anus or mouth. Even a penetration without consent to be considered under rape.

Fast Track Courts to deal Rape Cases – A three-member committee was formed in December 2012 for speeding up the trial process through fast-track courts so the victims get the justice that too without undue delay.

Harsher Punishments – Other than the minimum of seven years of prison for rape, separate punishments for repeat offenders were also introduced with the provision of death sentence added to it.

Abolishment of Two Finger Test – The two-finger test which only added to victim shaming further was officially abolished because it never helped in telling anything about the heinous crime and was only to know the history which was of no relevance to the crime.

Marital Rape – The committee also suggested to bring non-consensual martial intercourse within the scope of rape.

Sexual Assault Considerations – The committee also recommended that even non-penetrative offenses be brought under the scanner of sexual assault.

Juvenile Justice Amendment 2015 – The Nirbhaya rape case involved a juvenile/minor as well who walked free post three years of living in the juvenile home. But, this did bring about a change in the law associated with juvenile justice. The main amendment made around it was trying a juvenile in the age bracket of 16-18 years committing heinous crimes like rape, murder, and robbery as an adult. The same would be done based on the judgment of the juvenile board members.

Not only amendment but the government has also been swift in creating awareness programs beginning at the grass-root levels and educate children about sex and literacy programs for women, in order to empower them.

Having said that, Delhi is still under the dark shadow of these crimes but it has definitely paved a way towards improving the state of safety of women and brought forth the fact that the society is determined to take action against such issues.

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Maternity Benefits for Women in India

With every passing year more and more, women in India are getting employed and working hand in hand with male members of the family. But, one event that is integral to the life of most of the married women is pregnancy and delivery. It’s a phase of life that involves living at home with the infant and caretaking. Hence, the maternity leaves benefit. Many of us aren’t much aware that the Government of India has already passed a Maternity bill in 2016 and about its details.

As per the bill, a woman employee is eligible to get fully paid leave in order to take care of the child and herself. It also protects the employment during the time and is applicable to all business organizations with a workforce of over 10 employees. Here is a rundown the bill features:

maternity benefits for women in India

  • The maternity leave for working women bearing the first or second child is set to 26 weeks. Earlier it was 12 weeks only.
  • For the 3rd child or more, the leave is only 12 weeks.
  • Maternity benefit of 12 weeks is also applicable to a woman who adopts a child below three months and commissioning mothers as well. Commissioning mothers are those who use their egg to create an embryo that is planted in another woman.
  • The bill also mentions working from home facility if the nature of work is such that the employee can work from home, in case the employer and the woman both agree.
  • The bill states that an organization with more than 50 employees need to provide crèche facilities for working mothers and even the facility to visit the child in the crèche four times a day for feeding and resting as well.
  • The maternity benefits need to be intimated to the woman employee in writing at the time of appointment.

The maternity benefit bill is passed by the Parliament in the Lok Sabha for the purpose of regulation of employment of woman in all areas of the working like circus, mines, shops or establishments with 10 or more employees.

Multinational companies have already included these benefits and many corporate giants are still jumping the bandwagon offering not only maternity leaves but flexi-hour working with full pay as well. One such company in Bangalore has even offered one-year career break without salary for maternity. MNC’s are even providing additional benefits that are not mentioned under the maternity benefits bill. In order to woo women employee companies making lucrative offers that include benefits like parental counseling, insurance benefits, maternity tie-ups with hospitals, transport reimbursement to name a few. Another well- known banking sector firm has offered a package of 1.32 lacs only for child care to women in addition to salary.

Well, there are many more corporate who are willing to adopt the flexible maternity policies in India because they are well aware that maternity is one such milestone in the lives of women when they decide to quit their jobs.

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Lawyers in India – Advertising Restriction

As of now, as per the Indian Law, Lawyers are not allowed to advertise. But, the founder president of the Indian Lawyers Association (ILA), a California based NRI advocate has a different opinion. Navneet Chug is also the founder of South Asian Bar Association of South California (SABA) and is of the opinion that the restriction on advertising in India for lawyers needs to be lifted. Other than that he is the founder of SABA North America (SABANA) with 27 chapters that represent over 10,000 Indian lawyers residing in Canada and USA besides Indian Bar Association.

He harped upon the issue of BCI not able to regulate the ‘black sheep’ amongst the lawyers in India and not even providing any freedom to them. He also mentioned that in the United States of America, the State controlled Bars are responsible for regulating advocates in an effective way. Furthermore, BCI is putting obstacles like age bar for law degrees as well which is in a way hindrance to the field of law. In the USA the laws that restricted lawyers from advertising were lifted in the year 1971 and today there are umpteen lawyers filling up the yellow pages with ads about their services and utilizing many other traditional mediums as well for showcasing their services.

advertising for lawyers

Having said that, the Indian law firms are also trying to find a creative way out of this problem. They are promoting their work by organizing seminars and conferences as well as by getting into partnerships with NGOs, to name a few. As per the president of the Society of Law (SILF), such promotional activities are not listed under the prohibition of advertising rule 36 of the Bar Council and hence it is not considered a promotion or violation of the rule. As per Bhasin, the world is becoming a smaller place after globalization and there is a dire need to change the existing norms around advertising in Law. In 2008, the government did ease the rule by allowing lawyers to create a website with little information, but it did not address the problem as such.

Many law experts feel that BCI is still following the norms that had been created in the stone age even when we are living in the Tesla age and thinking of creating colonies on Mars. Present day, there are many law firms that are already opening offices overseas with information online on their websites in those countries. They want to do the same in India but aren’t able to do so due to the prohibition here.

Well, it seems the experts and lawyers in India are looking to broaden their horizons utilizing the advertising tool thus making it inevitable for the BCI to think about bringing a reformation in their rules and ethics thus allowing the Indian lawyers to offer their services across borders and flourish in their profession.

Misconduct of Lawyers in India – A Few Case Examples

Even though there is no definition as such for misconduct in the advocate’s act of 1966 but it does mean a breach in the discipline, to say the least. Furthermore, it’s not possible to decide on what all would be included under misconduct and there is every possibility of addition or omission of something or the other intentionally or unintentionally.

The court has held the conduct that makes anyone unfit for his profession, embarrasses or damages the administration of justice’s reputation may be deemed as misconduct. The conduct that makes any advocate unworthy of continuing as the member of the legal profession or is not deemed fit for undertaking the responsibilities that have to be performed, he or she is chargeable of misconduct and is punishable under the same.

Misconduct of Lawyers in India1

 

Some of the important cases that did bring the lawyers under the scanner and punished them if found guilty include the following-
1. Deliberate delay in filing a suit
In one such case, the court found the lawyer guilty of deliberately delaying the suit filing procedure when the complainant accused the advocate of doing it in the connivance with the other side. The lawyer’s license was suspended for two years by the deciding committee.

2. Forged Document Handover
In one such case, the advocate was found guilty for handing over forged stay order while in reality no stay order was passed by the court. The committee after looking into the facts held the lawyer guilty for misconduct of serious nature and ordered for the removal of his name from the Bar Council Register of Delhi.

3. Defrauding illiterate clients
One of the cases of misconduct involved taking the signatures on blank watermarked paper for defrauding a client. The committee found the advocate guilty of the act.

4. Intentional delay in appearing in the court
A complainant had alleged that her lawyer took the money and still did not appear in the court for the proceedings due to which she lost the case. The committee held the advocates conduct deliberate and suspended his practice for the period of two years.

5. Advocate engaged in carrying out business actively
An advocate was found guilty by the committee in actively engaging in working as a printer, editor and publisher for the weekly ‘Aaj ki Janata’ in spite of being an advocate. The Committee found him guilty as per rule 47 of BCI, which prohibits an advocate from engaging in personal business.

Well, the committee decides on the punishment pertaining to professional misconduct after thorough cross-examination and it comes under the advocates’ act 1966. As for contempt of court, the punishment is different and not the same as professional misconduct.

 

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Artificial intelligence in India – Laws and the Road Ahead

Artificial Intelligence is the need of the hour, but their working, unlike human commands, is automated to an extent, in the sense that over a period of time they develop their own decision making on the basis of mechanically analyzing user data over time. Obviously, the objective is to have machines produce at least results that are similar to humans if not better in term of outcomes. After the major blunders related to data protection namely involving the social media giant Facebook with respect to Cambridge Analytica, the concerns have grown by leaps and bounds.AI

Particularly in India, the data protection system is not yet up to the mark and catching up with the pace at which AI is growing, it’s definitely a cause of concern. Additionally, if the artificial intelligence based system undertakes any actions that do not involve direct application of the human mind and leads to any sort of loss, who is to blame? Is the Artificial Intelligence system to be blamed?

Answers to these questions remain unanswered even though the supreme- court has already passed the decision about ‘right to privacy’ as a duly enforceable fundamental right. Dealing with these challenges in absence of the legislation only points towards the right being restricted to paper without being implemented.

So, is there a way ahead and if yes, how to go about it. Well, as per law pundits, there needs to be a law system in place that deals with issues relevant to artificial intelligence discrepancy besides that the AI system are subject to all the laws that a human apparently is. Furthermore, the government also needs to put a law in place to protect the data and also around intimation/ permission policy before using the data of individual users.

Perhaps, as we climb the ladder of innovation in terms of artificial intelligence and its capabilities, it’s equally critical to be aware of the simultaneous requirements of upgrade of the law and the framework interpretation in the country.

Honor Killing and Protection of Marriages in India

Almost a decade back, special law proposed by the National Commission for Women (NCW) has already been put in place to deal with honor killings. As per the Supreme Court adults are free to marry a person of choice and therefore it is illegal to hurt or punish such couples by the clan members ‘Khap’ or any group of community members.

Even though, honor killings have taken over 250 lives already since 2015 and the numbers are only going up rather than going down as the reputation of a family is stake. An honor killing, is killing or homicide that is carried out by the family member of the family due to their belief that their family member who has married outside the caste has brought shame and dishonor to the family and also has violated their caste or religion principles. The other reasons for honor killing include being a rape victim, dressing in a way that is cited as inappropriate, having sex outside marriage or being in a relationship against the will of the family.

Honor Killing and Protection or Marriages in India

Most often the victims of honor killing are women and not men.
Even after killing, most often the killers do not face any social stigma from the community because their community approves of it.

Honor killings are most common in northern part of India, more in Rajasthan, Haryana, Punjab and Uttar Pradesh. Even though even South India, Gujarat and Maharashtra do report such incidences and it is prevalent in these regions too.

Here are few reasons that are known to lead to honor killings –
Casteism – Even though we have advanced so much, the caste system is still prevalent in India and there is no denying about that. It is still rigid and a reason behind such heinous crimes.

Governance Issues – Even today there is no formal governance in villages and panchayats and khaps are still rampant.

Mentality – Due to the prevalent caste system in India even today a marriage outside caste is a taboo of some kind and the mentality hasn’t yet changed even after centuries and progress in various fields in the society.

Khap Panchayat – These used to be panchayats like parallel government of sorts created by upper caste and affluent people and communities in order to consolidate position and power. These Khap’s are more or less dominated by males and they possess a lot of illegal authorities like demanding payments from couples, boycotting certain families or people, harass a couple, intimidate or murder them or boycott them.

Well, still the road to success looks like a distant dream because honor killing is prevalent and is not decreased significantly even after the Supreme court passed the special law. Hence, there is more to be done, particularly spreading awareness in the regions most affected about the validity of the Khap Panchayats.

August 2018
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