Passport Can Be Renewed Even If There Is A Criminal Case Going On If Court Permits – A Case Study

The chief general manager of state run PEC limited was denied the renewal of his past as he was charged by the CBI for offenses under the IPC section 420 as well as section 13 of the corruption act after the CBI had filed an FIR against him and his PSU under the ministry of Commerce and Industry for cheating of over 530 crores.

When the advocate of the client applied for an NOC for Passport renewal, the PEC limited refused it citing the office memorandum of Aug 28, 2018, that the Ministry of Public grievance and Pension, Personnel, Department of Personnel and Training, stating that in case of any pending disciplinary proceedings, the vigilance clearance as well as the NOC certificate required by a public servant for issuing or renewing passport can be withheld ordinarily.

Passport Can Be Renewed

The Advocate of the person in concern had challenged two office memorandums issued by PEC limited that declined his client’s passport renewal request. The report that the PEC as well as the passport office submitted for denial was under the Section (6) (2) (f) of the 1967 Passports Act. It states that the passport office can deny the renewal of passport to the applicant who is under-going court proceedings before a criminal court of India. The PEC limited counsel further contented on the order of the special judge which was conditional and did permit passport issuance only if it is allowed under the relevant passport rules.

The court noted that the PEC did not bring forth any other other rule other than Section (6)(2)(f) and 10 of Act that would prevent the applicant from getting his passport renewed and that the criminal court in concern did approve his passport renewal.

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Justice Bakhru further added “The reliance on Section 10 of the Act is ex facie misplaced, since it pertains only to impounding and revocation of passports and travel documents”. The court directed that if the petitioner submits an application for passport renewal, it would be processed for a period of two years but there is this condition where the petition submits an undertaking to respondent no 5 that he would appear before the court whenever required during the issued passports continuance.

*Sourced from the Internet

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Hindu Marriage Act 1995 – An Insight

The Hindu Marriage act has been created with the intention to secure the rights of the bride and groom who are Hindu by religion and are tied into a sacred bond through marriage ceremony. Though there is not definition for the ceremony as such. The act is applicable for people of Hindu, Sikh, Jain and Buddhist religions.

The components of the Hindu marriage law are spread across different sections of the act. Here’s a run-down some of the common and important sections under the Hindu marriage law 1955.

Hindu Marriage Act 1995

Section 5 of the Hindu Marriage act, 1955 – The marriage is considered lawful if the bride is 18 years or above and the groom is 21 years or above at the time of the marriage.
Section 6 of the Hindu Marriage act, 1955 – This sections has the provision for legitimacy of children born out of this alliance and can be later declared as void or voidable.
Section 8 of the Hindu marriage act, 1955 – The marriage can be registered under this act.
Section 9 of the Hindu Marriage act, 1955 – This has the provision for restitution of the conjugal rights of a husband as well as a wife who are bound together under the act.
Section 15 of the Hindu marriage act, 1955 – This act says that once divorced both of them are eligible to remarry.
Section 24 of the Hindu marriage act, 1955 – This act has the provision for maintenance pendent lite as well as for expenses of the divorce proceedings.
Section 25 of the Hindu marriage act, 1955 – The section 25 of the Hindu Marriage act is for provision of maintenance pendant lite as well as for the legal divorce proceedings expenditure.
Section 26 of the Hindu marriage act, 1955 – The section is about custody, maintenance as well as education of minor children during as well as after legal proceedings of divorce.

The Hindu marriage act is a provision made by the government of India to keep the sanctity of marriage in place and not let anyone take any undue disadvantage of the pious institution.

 

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Working with Law Firms – What you See vs what you Get

Most law graduates dream of getting placed in one of the top law firms in India for various reasons, the main being a big fat pay cheque. It is a big opportunity which enables you to work with big fishes like business tycoons, celebrities in the country and at times get media attention too. You get to have skyrocketing career and with that an elite lifestyle. On the flip side such law firms spread across the country come out with not more than 200 openings against the thousands that graduate every year from law firms. Furthermore, most of the jobs either go to the toppers from the best universities or relatives with contacts. So at the end of the day the idea of landing a high paying job in the top law firms in India is just like a mirage in the desert.

Top Law Firms in India

Reality Check
While students are curious and excited to work on big projects, with celebrities and head honchos in top law firms, the reality is quite different. As a beginner or an intern you don’t immediately get such big breaks. Initially it is only about doing filing work or proof reading documents or due diligence related tasks that you might land upon. Thus as a junior associate against your presumptions, what you do would be quite boring, actually.
Having said that, this is the case with most of the careers. The initial period is more of toiling. Also, as there is a lot of pressure after graduation to land a job into a top law firm and that tends to make students do stupid things.
So, are there really any pros there or only cons. Yes, off-course there are pros of getting to work with a top notch law firm and cons too. Here’s to list a few-

PROS

  • To be with the best, you need to give your best. So, here’s a place where you need to put your best to match their standards and class.
  • At such firms, you as a new graduate law students get to groom yourself, learn to dress, be on time and learn about communicating professionally which can be of great help in a later stage.
  • You get to work with the competent team and get to learn a lot about teamwork and from them as well.
  • Top law firms provide full service and hence you get a 360-degree learning experience on various fronts of law.

CONS

  • Work timings are one of the biggest cons in a law firm. There are no fixed timings and could land you home as late at past midnight. So, personal life might as well go for a toss when working with these firms.
  • Don’t always expect very well behaved seniors. Be ready for experiences where if you underperform as a young law associate, you are shown the door straight away. No wonder, attrition rates are so high in law firms.
  • Sitting for long hours in front of the computer can cause a lot of physical stress as a law firm job is a desk job.

Having said that, if you are competent enough with a willingness to work 24 x 7 then you could be the preferred one and climb the ladder of success faster in terms of roles and responsibilities as well as remuneration.

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*Sourced from 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.

 

*Source from the Internet

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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Justice System For Juvenile Offenders in India

Juvenile offenders are those Indian citizens who are not adults or are not above 18 years of Age. Many of them are subject of juvenile delinquency which is about committing crime on a regular basis or as a habit by these teenagers. Obviously, the law for adult criminals and those under 18 years of age is different in India and is governed by a lot of factors.

There is a juvenile justice board in India which looks into the juvenile offenders and decides on the course of action or punishment for them and there are certain protocols that need to be adhered to while dealing with cases that involve juvenile. Here’s a run down –

juvenile Offenders in India

1. When there is a police case or FIR filed or the police catch hold of a juvenile offender, he or she is to be kept under the charge of a special juvenile officer or child welfare officer, who is responsible for producing the child or teenager before the Juvenile justice Board.

2. To conclude on the course of action based on whether the offence or crime was petty or heinous one, an enquiry is carried out. The offense is petty or serious or heinous nature and the child is below 16 years of age, the board may decide on the following punishments considering the crime type –

a. Advice the child and let him or her go home
b. Ask the child to go through counselling
c. Fine the parents of the child
d. Ask the child to do community service
e. Release the child on probation subject to good conduct
f. Direct the child to live in special home for not more than three years

3. For crimes of heinous nature by children above 16 years the board can decide on a trial for the child as adult. But, the child cannot receive any life imprisonment or death sentence without any sort of release possibility.

There are observation or special homes for offenders where these offenders stay for a short time. But, the conditions in these homes are not as required according to many experts. There is a great need for this homes to provide educational activities and training to the kids living there, as the homes do not have any structured activity for them, it ultimately leads to no improvement. There’s this saying ‘an idle mind is a devils workshop’, so there is a dire need to carry out proper rehabilitation of juvenile offenders and building infrastructure where informal systems like voluntary organizations, families and communities are involved and the whole system is transparent enough, is when we can help the juvenile offenders learn a lesson and work towards living a better life once they are out.

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Crime and Its Concepts – A short Description

Before talking about the concepts of crime, lets just define crime first. Crime by definition means an act that is capable of being followed by criminal proceedings. Sir William Blackstone defines crime in two ways. One, as an act committed or omitted in violation of public law commanding or forbidding it. Though the definition is limited in the sense that it is only applicable to bulk of criminal law segment that covers political offenses and was modified later. Though the definition of concept of crimes showcases traceable difficulties with respect to the concept, it can still be defined or rather can make sense based on four different frame works.

concepts of crime

Social construction is one of them. As culture varies across the length and breadth of the country, it is difficult to create a standard definition of crime as it could vary from culture to culture.

Religious authority is another. Now, there is this huge conflict across religions when it comes to considering something as crime. While it may be a crime in one religion, it may not be in another. Example – women in middle east are not allowed to drive as per the Sharia law of Saudi Arabia. It is considered to be a crime even today, however absurd it may sound in other part of the world. Another example is honor killings and domestic violence which is allowed in certain religions while in certain it is considered as crime as per the basic state law.

Another example is holocaust of Germany wherein Hitler in Nazi Germany ordered a systematic slaughter of the Jewish race, which was not considered a crime then. But today when reviewed, the holocaust is known to be the greatest crime in history of Germany. Even when the trial was carried out only a few officers that were closed associated were held responsible. As for others they were not held responsible as they were only following orders of their seniors and did not commit crimes willingly. This again throws light on the definition of crime and its affects on not only the situation but people involved in the situation.

Thus, as we may see based on the four frameworks explained above including the examples of holocaust, Saudi Sharia law, domestic abuse and honor killings, it can be understood that the definition varies as per time and the ever changing needs of the society. There are more example which can prove that crime as an act is not the same everywhere. For example liquor sale and consumption is a crime in Gujarat but in many other states of India it is not.

Thus, we can clearly see that the definition and concept of crime ranges from individual and personal to historical and social circumstances and hence it is difficult to have one single definition for it.

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All About Courts in India

ALL ABOUT COURTS IN INDIA

Though if one has to wish for something related to court proceedings, one would rather wish of staying away from getting into the same, due to its time and money consuming repute. But, when you have to you have to, there is no way else where or out. So, why not be aware about the court and its hierarchy. The first step here begins at the judicial body, village courts, the district court, going up to the high and finally the supreme court.

Village Courts or Panchayats
Better known as gram, lok or nyay panchayats, these courts are set up at village level to resolve disputes arising in villages or rural areas.

District Courts
These courts are for the urban populace. People at town or city levels can knock their door to seek justice or resolve their dispute. It has a district judge and is supported by many subordinate courts. Every district does have separate courts for labour and families as well as special courts that deal with narcotic drugs, substances act falling under essential commodities.

High Courts
Every state has their own high court and its generally situated in the capital of the respective state. Many states also have bench courts which refers to high court branches. In the same way, union territories have high court benches of the nearby state. The high court comes into action only if the lower courts cannot hold a trial due to territorial and pecuniary jurisdiction issues.

Supreme Courts
This is the highest of all the courts in hierarchy and stands at the top. The powers it has form original advisory jurisdiction and appellate powers. There is also a facility for citizens to directly file a suit with the supreme court in case of fundamental rights violation. At times even the President of India asks advisory jurisdiction for advise on certain issues. Supreme court judgments and laws are to be abide by every court in the hierarchy of India.

Some of us aren’t aware about the difference between tribunals and courts. Tribunals and courts are totally different bodies though they work in parallel and tribunals are not a part of the court hierarchy. Apparently, the hierarchy is forms on the basis of the constitutional structure and the reason behind its formation is to ably handle the mammoth population of the country and its problems and issues in a streamlined manner.

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Marriage, Divorce and Name Change in India

While marriage is an auspicious and life changing event in one’s life, divorce is also life changing but heartbreaking. India is one country where most of the females change their surnames to that of their spouses post marriage. They even change it in their identity document like Voters ID, Pan card, Aadhar Card and more. Though, it is not mandatory to do so for a female and is done as a gesture of companionship, doing it and undoing it post a divorce is a matter of choice and involves a systematic legal procedure. Here is a sneak peek into the procedure to change name post a marriage and a divorce.

Name Change in India

Post Marriage
As a proof of your marriage you need to submit the marriage certificate along with the application to state government gazette office. You can get the form from the office or the online website of State government. It is chargeable and post verification of the proof attached, your name change appears in the published gazette. Copies of the same are couriered to you and you may use them as a legal proof. You also have to publish the name change news in the local newspapers, English and local language preferably.

Post Divorce
Post divorce if you want to retain your earlier identity, you will have to apply for the same with a divorce order copy.

Name Change
In India there is freedom of having any name of your choice and changing it while following legal procedures. You can not only change your name, surname, but a female can use two surnames as well one her maternal and one post marriage together as well. Furthermore, you can even change the surname of your child post divorce unless your husband approves of it.

Having said that, due care has to be taken to ensure the name change is applicable in all the legal and official documents.

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Dissolving of Intellectual Property Rights

Many brands and companies protect their products with copyright, trademark or other intellectual property rights, the recent one being the Taj Mahal hotels. It is now protected with Trademark under private construction category. But, many of us are not aware of the twist to the law wherein once the property is sold, wherein the rights that it had prior to the sale are nullified.

Intellectual Property Rights

Here is a simple example to explain the law. For example a well known company sells house paints. Once the cans of the paint are purchased by customers, used and discarded, there’s this other company that collects to cans, refills them with a low quality of paint and resells them at a much lower rate. Now, the inventor of the paint or the authentic owner faces competition and is likely to come up with attractive offers and discount to fight the competition back as he cannot do anything about it. There are no repercussion on what happens once the product is sold. The patent rights extends only through production, creation, manufacture to sale. Once someone purchases the product, the patent is exhausted.

There has been a lot of misconception or confusion with the law of intellectual property rights and due to the same a lot of infringement cases wherein the exhaustion principle applied to products once they were sold become invalid. The supreme court has even re-explained the whole exhaustion principle in a short format that clearly states that the exhaustion principle is applicable to products that are purchased and resold later. But, they have to get into a contract with the customer under refill to do the same and comes with restrictions like one time use and no resell of container or sharing of the ink container, but to name a few.

To combat this issue many companies have adopted various methods like return policy’s around used products. In case of ink as a product, some companies have gone to the extent of installing a chip to track the location of the refilled ink container.

To fight an infringement case in a way that the outcome is positive the company or person filing the infringement needs to keep the design or the item and prove to the court that the design or the process was stolen, copied or reproduced. A legal counsel needs to be hired to litigate. The claim only proceeds after the litigation is attempted through a legal counsel and shows signs of clear violation of intellectual rights. Otherwise if is against to what the Supreme court has explained and re-explained, the case is rejected.

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