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November 6, 2017October 17, 2018

5 Employee Rights You Should Know

Ask some of the greatest entrepreneurs of today or some of the biggest brands of the world about employees and they all would have one unanimous voice that employees are their biggest assets. It is a fact that people power drives a brand northward. At present many companies offer their employees different benefits and incentives when it comes to employee care. Having said that, there are firms who might not be as concerned about employee rights and might not even follow the rules and regulation around employee hiring, retention, termination or more. But, not all of us are aware of our rights. So, let us take a quick glance through five of the most important rights an employee should be aware off.

1. Minimum Wages Act – All of us might just not be aware of the minimum wages act that is applicable to employees of different categories in India including unskilled and skilled ones and varies across the country. The wage deciding factors are region, type of work, working hours, cost of living and the employer capacity to pay. You can get detailed information by checking the employee wages act.

2. Sexual Harassment Protection – We are not new to sexual harassment cases that have time and again become topics of discussion. For those who are not aware, there is already a sexual harassment act in place for women for prevention, prohibition and redressal brought into effect since 2013. It is a punishable offense and carries imprisonment of upto 3 year and might include fine too. The offenses listed under it include Passing Sexual comments, showing porn, demanding sexual favors, physical advances or contact and other verbal, non verbal or physical and unwelcome conduct or sexual nature.

3. Public Holiday List – The government of India has declared Independence Day, Republic Day and Gandhi Jayanti as the mandatory three national holidays. For any working on this day, prior permission from authorities needs to be taken. The employer needs to provide a compensatory leave or double wages to the employee if made to work on these days.

4. Pregnancy & Parental Leave

5. Probation rights – The probation period for an employee is kept as 6 months. It could be extended to 3 months more as well but cannot extend more than 2 years. Employers can terminate the employee if the work is found unsatisfactory. In cases otherwise the employee has the right to request an enquiry into the matter of termination.

There are many more laws for employees and its always advisable that you are aware of all of them, so that when the need be you know what your rights are and can use them to the optimum.

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October 31, 2017

Pregnancy Termination Law For Women

Pregnancy is the herald of new birth and new life but it is not always a good news for the mother or parents. Sometimes it is unplanned or unwanted. Sometimes it is wrapped up in complications that could be life threatening. So, the Indian Government has listed out some laws related to pregnancy decisions that benefit women because they are the ones who carry the fetus for nine long months and give birth as well.

Child birth is associated with many aspects be it social or financial and an unwanted pregnancy could lead to repercussions of still more serious kind. So, as per section 3(2)b(i) the law mentions these words with respect to pregnancy of a women – ‘grave injury to mental health’. A women owns her body and she has right over it. It emerges from the fundamental rights under article 21 of the Indian Constitution where a woman has every right to live with dignity in the society as a human being. She can terminate her pregnancy under the Pregnancy termination act of 1971. Hence, even a practitioner has to ensure that there is no injury possibility physically or mentally to the pregnant women when terminating the pregnancy.

Termination of pregnancy is a difficult situation for the women and could be the result of considering the growing financial requirements and limitations to sustain the needs of the new born. Also, as per the law, human rights are applicable only on birth and not before that, hence, an unborn fetus does not have the rights to take any decision and only the mother can do so as the pregnancy takes place within her.

The law also indicates the all pregnant women need to be given equal treatment even if they are prisoners. As for prisoner women, they have to be kept under observation as well even if under prison by the medical officer of the prison. Termination of pregnancy by women could be a result of a lot of reasons like working mother, complications, financial issues to name a few. A prisoner needs to be sent to the civil hospital for termination in case she wants to on an immediate basis.

October 30, 2017

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.

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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September 19, 2017

Applicability Of Foreign Judgment in India – Review

With globalization at its peak, India is emerging as a global player internationally. So, getting a hang of laws related to enforcing foreign judgments in India is a good idea. Before we move on, let’s define some of the associated legal terms for clarity purpose. While decree means judgment a foreign court is a court that is located outside of India and not established or under the control of Central Government of India. Foreign judgments thus refer to judgments that are made in foreign courts viz courts outside India.

The recognition of a foreign judgment in India is based on certain agreements between countries, bilateral or multilateral understandings or unilaterally at times as well. The decision is said to be recognized only if a country’s jurisdiction accepts the decree/ judgment of another country’s court and passes the judgment on the same lines without asking for a re-hearing of the original lawsuit substance.

There are two ways in which a foreign judgment can be enforced in India.
1. File a petition for execution under section 44A of the CPC
2. File a suit upon the foreign decree/ judgment

Point 1 is only valid for reciprocating countries or territories as per the section 44A of CPC.
As per CPC section 44A, explanation 1, reciprocating territory is defines as any territory or country outside India, declared as a reciprocating territory by a notification in the official gazette.
Some of the countries that fall under the list of reciprocating territories are UK, Bangladesh, UAE, New Zealand, Hong Kong, to name a few. In all there are 12 territories under the category.

Point 2 is valid for non reciprocating territories like USA, where in a law suit has to be filed in an Indian court within a time limit of 3 years of the foreign judgment. The Indian judiciary considers the judgment as evidential.

Decree Execution for Reciprocating Territories
1. If a certified copy of the judgment from a reciprocating territory is provided to the court in India, the judgment is executed in India similar to any other judgment passed by Indian District Court.
2. A certificate from the superior court stating the extent to which the decree can be adjusted or satisfied as a conclusive proof for the same.
3. While executing a decree the proceedings of the district court will be subject to provisions of section 47 and if such a decree falls under any of the exceptions stated under its clauses (a) to (f) and satisfies the court, then the court would reject or refuse execution of the same.

Decree for Execution of Non Reciprocating Territories
If a decree does not pertain to the supreme court of a reciprocating country or a reciprocating territory for that matter, the decree cannot be executed in India directly and a fresh suit needs to be filed in the Indian court on the basis of the foreign courts decree. This decree would then be considered as evidential for the case.

Having said that, it is mandatory under both cases for the decree to clear the test of IPC section 13, which covers certain exceptions with regard to the conclusiveness of a foreign judgment.