• Can airlines ban a traveller for unruly behaviour?

    The national no-fly list is maintained by the Directorate General of Civil Aviation to check unruly and disruptive behaviour on an aircraft. Any behaviour, from verbal harassment to life-threatening acts, is supposed to be reported by the pilot in command of the aircraft, following which an internal committee of the airline concerned takes a call within 30 days on the gravity of the reported act and an appropriate duration of the ban. Level 1 offences attract up to three months on the no-fly list, Level 2 up to six months and Level 3 for at least two years or more. Other airlines may choose to follow suit.

  • Can a state government dissolve a legislative council?

    A state assembly decides to dissolve its lawmaker counterpart Legislative Council if the former perceives the latter as a constant hurdle in the legislative process, primarily due to rival parties dominating the two houses of the legislature.

    Under Article 169 of the constitution, a resolution passed by the state assembly has to go to the Union Cabinet, and then the Law Ministry prepares a draft Bill, which has to be passed by the Parliament. The Legislative Council is supposed to stay active until the President issues a notification. While Andhra wants its LC gone, Assam, Rajasthan and Odisha have sent their resolutions to the Parliament to create a Legislative Council.

  • Can a convicted rapist be refused free legal aid for seeking his available legal remedies?

    Article 39A in Part IV of the Constitution guarantees free legal aid to all citizens of the country, irrespective of economic and other barriers. The twin aims of the Directive Principles of State Policy enshrined in our Constitution are to secure welfare and justice to all, through social and economic democracy.

    Thus, despite the most heinous of offences committed, every Indian citizen is entitled to representation in court through legal aid. Although Part IV does not trigger enforceable rights, free legal aid has been upheld by the Supreme Court as a fundamental right under Article 21 of the Constitution.

  • What is my legal remedy if my employer does not pay my salary in India?

    In cases of unpaid salary, an employee can (i) approach the labour commissioner to reconcile the matter, or (ii) file a suit under Section 33(c) of Industrial Disputes Act, 1947 for recovery of money due from an employer, or (iii) file a case with the competent authority under Payment of Wages Act 1936.

    For executives and managers earning above Rs. 18,000/-, a summary suit under order 37 of the Code of Civil Procedure can be pursued, preferably following a legal notice to the company to clear unpaid salaries. A company may also be booked for fraud under Sec 447 of Companies Act 2013 or under the Indian Penal Code.

  • Does the electricity supply to a lawyer’s chamber within his residential premises qualify as domestic or commercial usage?

    The Calcutta High Court has recently held that electricity usage in a lawyer’s chamber in his residential property, though non-domestic, cannot be automatically categorized as commercial (urban) usage as the legal profession, which requires a certain amount of skill cannot be called a commercial activity where profit from a business is paramount. The activity undertaken in a lawyer’s chamber is only to earn a livelihood from a profession. A lawyer’s chamber is unlike a law firm, operating out of commercial spaces, dealing with both litigation and non-litigation work. Relying on apex court precedents, the department was directed to supply electricity to the chamber at domestic(urban) rates.

  • Can a non-lawyer appear in court on behalf of a litigant?

    Yes, subject to the prior approval of court, on a motion by the litigant, a non-lawyer may appear in court to argue a case. It is the court’s prerogative to grant or refuse permission to a non-lawyer to appear before itself. The apex court in a 1978 judgment held that a non-lawyer does not have a right to argue, but may be permitted to argue based on the antecedents, the relationship, the reasons for requisitioning the services of the private person and a variety of other circumstances as may be determined on a case to case basis.

  • What are the legal formalities to take care of when planning to start a restaurant business?

    Once the theme and style of a restaurant is decided, the business needs to be registered as a partnership or a private limited company.

    A host of licenses and permits are supposed to be obtained – (i) yearly health/trade license from the municipal corporation, renewable every March; (ii) FSSAI licence to operate a food business; (iii) GST registration; (iv) Professional Tax Registration; (v) Shop and Establishment Registration; (vi) Liquor licence; (vii) Eating Housing licence; (viii) Fire Safety NOC; (ix) Lift clearance from the electricity department; (x) Music Licence; (xi) Environmental Clearance; (xii) Signage License to advertise the restaurant through posters, paintings, graphics etc.

  • What is the procedure of changing one’s name in India?

    Besides women changing their surname after marriage, many others change their name/surname for varied reasons like astrology, better suitability, simplifying long names etc.

    The first step is to create an affidavit which may be sworn in before a Judicial Magistrate First Class or even a Notary public. The next step is to make public announcement. An advertisement must be published declaring change of name in one English and one Regional newspaper. The final step is the Gazette Notification. All the three steps are mandatory. After Central/State gazette notifies the change, the new name can be used for all purposes.

  • What is the procedure to evict a tenant before the expiry of a lease agreement?

    A tenant should ideally be served with an eviction notice terminating the lease agreement. The notice must accord reasonable time to the tenant to look for an alternate residence and then vacate the premises.

    If, however, the tenant refuses to vacate, the landlord may have to resort to filing an eviction suit in court. The rental laws in India lay down grounds of eviction – intentional non-payment of rent, subletting to third party, using premises for unlawful purposes, loss of property value due to acts of tenant, complaints of nuisance by neighbours, owner’s need of the property for own occupation, renovation, sale, demolition etc.

  • Explained: Mercy petition, presidential powers under Constitution to pardon

    As per the Constitutional framework in India, mercy petition to the President is the last constitutional resort a convict can take when he is sentenced by the court of law. A convict can present a mercy petition to the President of India under Article 72 of the Constitution of India.

    Similarly, the power to grant pardon is conferred upon the Governors of States under Article 161 of the Constitution of India.

    Article 72 provides:

    (1) The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence—
    (a) in all cases where the punishment or sentence is by a Court Martial;
    (b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;
    (c) in all cases where the sentence is a sentence of death.

    Thus, Article 72 empowers the President to grant pardons, etc., and to suspend, remit or commute sentences in certain cases.

    While Article 161 provides:

    Power of Governor to grant pardons, etc., and to suspend, remit or commute sentences in certain cases The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.

    Process of making a mercy petition:

    There is no statutory written procedure for dealing with mercy petitions, but in practice, after extinguishing all the reliefs in the court of law, either the convict in person or his relative on his behalf may submit a written petition to the President. The petitions are received by the President’s secretariat on behalf of the President, which is then forwarded to the Ministry of Home Affairs for their comments and recommendations.

    A convict under the sentence of death is allowed to make the petition within a period of seven days after the date on which the Superintendent of jail informs him about the dismissal of the appeal or special leave to appeal by the Supreme Court. The Home Ministry in consultation with the concerned State Government discusses the merits of the petition. After the consultation, recommendations are made by the Home Minister and then, the petition is sent back to the President for his decision.

    Note: Even though the President and Governor are the executive heads, but they cannot exercise their discretion with regard to their powers under Articles 72 and 161. Both the executive heads are required to act on the advice of the appropriate government–Central and State Government. The advice of the appropriate Government binds the Head of the state.

    The President can either accept or reject the mercy plea as per the advice by the council of ministers. However, the Constitution doesn’t provide for a specified time limit to accept/reject the mercy petition. He can keep the petition in abeyance for an indefinite period if he wishes to.

    What happens when a convict moves a mercy petition?

    In case, the petition is filed within seven days then it is the duty of the Jail Superintendent to stay the execution of the death sentence. However, this does not mean that after the expiry of seven days a convict cannot file a mercy petition. In such exceptional cases or intervening circumstances, it is the concerned state government that will decide the question of deferring the death sentence.

    Difference between pardoning powers of President and Governor:

    Though the President and Governor enjoy pardoning powers to the extent their executive power extends, however, the scope of the pardoning power of the President under Article 72 is wider than the pardoning power of the Governor under Article 161. Power differs in the following two ways:

    The President’s power to grant pardon extends to the cases where the sentence or punishment has been awarded by a Court Martial, but the Governor’s power prescribed under Article 161 doesn’t provide so.

    The President can grant pardon in all cases, including the death sentence, but the pardoning power of the Governor doesn’t extend to death sentence.

    What do the laws of other countries provide?

    USA:

    The Constitution of America gives the President the similar powers to grant reprieves or pardon for offences under Federal law, except in cases of impeachment. However, in cases of violation of state law, the power has been given to the concerned Governor of the state.

    UK: 

    In UK, the Constitutional monarch can pardon or reprieve for offences on ministerial advice.

    Canada:

    The National Parole Board under the Criminal Records Act is authorized to grant such reliefs.

  • What is curative petition?

    A curative petition is the last constitutional resort available for redressal of grievances in court after a review plea is dismissed or has been exhausted.

    The concept of curative petition originated from a landmark judgment in Rupa Ashok Hurra V. Ashok Hurra and Anr. The concept was evolved by the apex court to prevent the miscarriage of justice and to prevent abuse of process.

    In this case, a five-judge constitution bench of the Supreme Court unanimously held that in order to rectify gross miscarriage of justice, the court will allow the curative petition filed by the victim.

    The court had ruled that a curative petition can be allowed if the petitioner establishes there was a violation of the principles of natural justice, and there were some facts which were brought to the notice of the court but were ignored by the court before passing an order.

    The curative petition is normally decided by judges in-chamber, in rare and exceptional cases, it can be given an open-court hearing.

    A curative petition is a second-time review, but not a matter of right. The court will allow a curative petition only when certain requirements as laid down by it are fulfilled.

    The aggrieved parties have the statutory right to appeal. Once a decision is given by the Supreme Court of India, the same may be considered final and binding. However, in the interest of justice, Article 137 was incorporated into the constitution, which provided that the apex court subject to the provisions of any law made by Parliament, the Supreme Court has the power to review any judgment pronounced or order made by it.

  • What is a Constitution bench?

    Generally, most of the cases before the Supreme Court are heard by a division bench (2 or 3 judge members). An exception to this rule is a Constitution bench.

    A constitution bench consists of at least five or more judges of the court which is set up to decide substantial questions of law with regard to the interpretation of the constitution in a case.

    The provision for a Constitution bench has been provided in the Constitution of India under Article 143. It is the Chief Justice of India who is constitutionally authorized to constitute a constitution bench and refer cases to it.

    Constitution benches are set up when the following circumstances exist:

    1) When a case involves a substantial question of law pertaining to the interpretation of the Constitution [Article 145(3)]. Article 145(3) provides, “The minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under Article 143 shall be five.”

    2) When President of India has sought the Supreme Court’s opinion on a question of fact or law under Article 143 of the Constitution. Article 143 of the Constitution provides for Advisory jurisdiction to the Supreme Court of India. As per the provision, the President of India has the power to address questions to the Supreme Court, which he deems important for public welfare. The Supreme Court upon reference advises the President by answering the query. However, such referral advice by the apex court is not binding on the President, nor is it ‘law declared by the Supreme Court’.

    3) When two or more three-judge benches of the Supreme Court have delivered conflicting judgments on the same point of law, necessitating a definite understanding and interpretation of the law by a larger bench.

    The Constitution benches are set up on ad hoc basis as and when the above-mentioned conditions exist.

    Most of the landmark cases, such as AK Gopalan v. State of Madras, Kesavananda Bharati v. State of Kerala, etc., in which the court settled the law by some degree of finality were decided by the Constitution benches.

  • What is the Supreme Court’s take on West Bengal Madrasah Service Commission Act, 2008?

    The Supreme Court has upheld the constitutional validity of the West Bengal Madrasah Service Commission Act, 2008 which came into force for the purpose of recruitment of teachers including Headmasters/Headmistresses of recognised non-Government aided Madrasahs in West Bengal.

    The recruitment of non-teaching staff including librarians has been entrusted with the Commission by amendment of the Act. The Commission selects candidates for the appointment as teachers and will soon select non-teaching staff in madrasahs in West Bengal.

    A ‘teacher’ under the Act means either an Assistant Teacher or anyone holding a teaching post in a madrasah recognised by the Board of the Council.
    It also includes the Headmaster /Headmistress /Superintendent, but does not include the Assistant Headmaster or Assistant Headmistress or the teacher who is holding a post against short term vacancy.

    The Supreme Court verdict dated January 6, 2020 said that this law did not affect the right of minority institutions as it upheld national interests, ensuring quality education for the welfare of the students.

    It was held that if any regulations seek to ensure the standard of excellence of the institutions while preserving the right of the minorities to establish and administer their educational institutions, such regulations would not violate minority rights under Article 30(1).

  • What Supreme Court ruled in recovery of damages to property during protests

    In 2009, taking suo motu cognizance of various instances of destruction of public property and arson during demonstrations and agitations, the Supreme Court set up two committees which were headed by former apex court judge K T Thomas and senior advocate Fali S Nirman to suggest changes to the law to assess and recover the damages. The Supreme Court had suo motu laid down 10-point guidelines based on the recommendation of these two expert committees, in its judgment in Re: Destruction of Public and Private Properties Vs State of Andhra Pradesh and others.

    The Thomas Committee recommended restitution of the damages incurred by shifting the burden of proof from the prosecution to the protesters, once it is established by the prosecution that the property had been damaged in the direct action called by an organization, and the accused was part of such direct action. Once the burden of proof shifts to the protester, the accused is required to prove his innocence.

    The court also asked the legislature to amend the law to give the court the power to draw a presumption that the accused is guilty of destroying public property. Such reversal of the burden of proof is applicable in cases of sexual harassment, rape and other such cases of similar nature, an exception to the general law that presumes the accused is innocent until the prosecution proves its case.

    The Supreme Court bench also said that in the absence of legislation, the high court could take suo motu cognizance of any such instances of mass destruction to both public and private property due to protests and agitations. All the claims related to the damages are to be processed by the High Court.

    The High Court of each state is expected to set up investigative machinery to investigate the damaged caused and assess the amount of compensation to be awarded. In case, where the damage has taken place in more than one state, the action may be taken by the Supreme Court, instead.

    In every such case, the High Court or Supreme Court, whichever is the case, is required to appoint a sitting judge or district judge as a claims commissioner to fix the liability and award the damages. The Court can also appoint an assessor to assist the claims commissioner. The commissioner can rely on video recordings from private or public property to identify the perpetrators and examine the damage. The executive of state government cannot unilaterally decide exemplary damages without any judicial inquiry. The executive cannot be a judge in its own case and penalize a person who is just an accused. There must be an opportunity of hearing against whom the claim is filed.

    Liability can be fixed in a manner so as to proportionately divide the share of the damage between the perpetrators and organizers keeping in mind their roles in the damage.

  • All you need to know about preventive detention?

    What is preventive detention?

    Under Section 151 of The Criminal Procedure Code, 1973 (CrPC) preventive detention is action taken on grounds of suspicion that some wrong actions may be done by the person concerned.

    A police officer can arrest an individual without orders from a Magistrate and without any warrant if he gets any information that such an individual can commit any offense.

    Article 22 of the Indian Constitution provides protection against arrest and detention in certain cases.

    Does the constitution provide any safeguard against misuse of preventive detention?

    The Article 22 of the Indian Constitution provides safeguards against the misuse of police powers to make arrests and detentions.

    The clause(2) of Article 22 reads, “Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.”

    The clause (4) of the article states that no individual can be detained for more than 3 months unless a bench of High court judges or an Advisory board decides to extend the date.

    The clause (4) of Article 22, reads as, “No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention:

    The clause(5) of the Article 22 states that the detained individual should be made aware of the grounds he/she has been detained (in pursuance of the order) and should provide him/her with an opportunity of making a representation against the case.

    The clause(5) of Article 22 reads as, “When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.”

    Parliament may by law prescribe the circumstances under a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board.

    What is the difference between preventive detention and an arrest?

    An ‘arrest’ is done when a person is charged with a crime. An arrested person is produced before a magistrate within the next 24 hours.

    In case of preventive detention, a person is detained as he/she is  simply restricted from doing something that might deteriorate the law and order situation.

     

  • All you need to know about Foreigners’ Tribunals

    Foreigners’ Tribunals are quasi-judicial bodies established as per the Foreigners’ Tribunal Order, 1964 and the Foreigners’ Act, 1946. It is for those who have been left out in the final NRC list or have been marked as ‘D’ meaning ‘doubtful’. The ones falling under this category have the right to appeal to the Foreigners Tribunal.

    Under the provisions of Foreigners’ Act, 1946 and Foreigners Tribunal Order, 1964, only Foreigner Tribunals have the right to declare a person as a foreigner.

    Thus, non-inclusion of a person’s name in the NRC does not by itself amount to him/her being declared a foreigner.

    Appeal and Burden of Proof

    However, if declared a foreigner or placed under the doubtful category ‘the burden of proof lies with the accused’. Section 9 of the foreigners act reads, “If in any case not falling under section 8 any question arises with reference to this Act or any order made or direction given thereunder, whether any person is or is not a foreigner or is or is not a foreigner of a particular class- or description the onus of proving that such person is not a foreigner or is not a foreigner of such particular class or description, lie upon such person.”

    A person falling under such category will have the right to appeal at the Foreigners Tribunal.

    Following the NRC row in Assam, Government of India extended the time-limit for filing of appeals from 60 days to 120 days. Amendments in this regard were made in the Foreigners (Tribunals) Amendment Order, 2019.

    Powers of Tribunal

    In the Foreigners’ Tribunal Order, 1964 the powers of the Tribunal have been laid down:-

    • The Tribunal shall have the powers of a civil court while trying a suit under the Code of Civil Procedure, 1908.
    • The Tribunal can summon and ask for the attendance of any person and examine him/her on oath.
    • The Tribunal can ask anyone to produce the required documents,
    • The Tribunal can commission examining any witness, as and when required.

    Foreigners’ Tribunals in Assam

    As per the website of Government of Assam, there are 100 numbers of Foreigners Tribunals functioning in Assam. Before the foreigner tribunals came into existence Illegal Migrant Determination Tribunals (IMDT) existed. Following an Apex Court order IMDT Act was repealed.

  • Can the government be held liable under the Doctrine of Public Trust?

    The doctrine of public trust enjoins upon the government the trusteeship of seashore, forests, running water, air and ecologically fragile lands for free and unimpeded use by the public. The government is under a legal duty to protect all such natural resources and is accountable for any ineffective management. The Supreme Court, in November 2019, invoked this doctrine to direct the government to install air-purifying towers and invited further suggestions to curb pollution.

  • Can a religious place be considered a “juristic personality” as per law?

    Courts in India have held that Hindu idols are legal entities. An idol is the physical manifestation of a deity, and that’s why courts accept the premise of them being a legal person having specific rights and obligations. However, a birthplace or any holy land is not considered a legal entity. The apex court has held that a piece of land, in the absence of any physical manifestation of the religious deity it is supposedly tied to, cannot be considered a juristic person. The land can, however, be held by a trust for religious or other purposes and the rights and responsibilities accrue to that trust.

  • Can legal action be initiated against TV shows which joke in the name of, or scandalously portray, dark-skinned, fat and other categories of people?

    According to Article 19(1)(a), all citizens of India have the right to freedom of speech and expression but subject to Article 19(2) that puts restrictions regarding public morality, decency, contempt of court, defamation or incitement to an offence. There is some disclaimer shown before the show and it is a must if there are scurrilous comments. It reads: “All characters appearing in this work are fictitious. Any resemblance to real persons, living or dead, is purely coincidental.” The disclaimer may be worded differently depending on the show, and is issued as a bulwark against legal action.

  • What is the difference between the Doctrine of Adverse Possession and the Doctrine of Lost Grant?

    The Doctrine of Adverse Possession allows a person to claim ownership of a property in case he/she has been in possession of that property for a minimum of 12 years and there was no legal effort during that period from the real owner to oust him/her from the property.

    The Doctrine of Lost Grant implies that a long, continuous use or possession points to a legal presumption that the right to use was previously conveyed to the user and that the physical instrument of conveyance has been lost.

    While the Doctrine of Adverse Possession is applied in case of the title vesting in a separate person, the Doctrine of Lost Grant presumes the existence of the title with the user. Each doctrine prevents the other’s application on the disputed property. Recently, these two concepts were looked into by the Supreme Court while adjudicating on the Ram Janmabhoomi-Babri Masjid title dispute.

  • What is the difference between police custody and judicial custody?

    Police custody means that an accused stays in the lock-up of a police station or at least in the physical custody of the investigating agency probing the concerned matter. On the other hand, judicial custody implies that the accused is lodged in jail and is under the custody of a magistrate.

    Soon after the arrest, an accused can be kept in police custody for up to 24 hours. Beyond that, it is the magistrate who decides whether he/she should stay in police custody or be remanded to judicial custody.

    Police custody can be ex­tended for a maximum period of 15 days. Judicial custody can be extended to a maximum period of 90 days for offences punishable with more than 10 years of imprisonment, and 60 days for all other offences.

  • Can there be a “conflict of interest” issue between a lawyer and his client?

    An advocate is ethically bound to inform the client about factors that might be detrimental to the client’s interest. According to the Bar Council of India rules, “an Advocate shall at the commencement of his engagement and during the continuance thereof, make all such full and frank disclosures to his client relating to his connection with the parties and any interest in or about the controversy as are likely to affect his client’s judgment in either engaging him or continuing the engagement.”

  • Why is the Supreme Court located in New Delhi?

    Article 130 of the Constitution of India reads: “The Supreme Court shall sit in Delhi or in such other place or places, as the Chief Justice of India may, with the approval of the President, from time to time, appoint.” The law thus provides scope for setting up the Supreme Court in multiple places, subject to the concurrence of the Chief Justice of India and the President. Vice President M Venkaiah Naidu suggested bifurcation of the Supreme Court into four regional benches for speedy disposal of cases. However, the Supreme Court has maintained on previous occasions that there is no need for such benches outside Delhi.

  • What is a hung assembly? How is a government formed in case of a hung assembly?

    If no single party or pre-poll alliance gets a clear majority in any state election, it is called a hung assembly. This may lead to the formation of a coalition government in which parties enter into post-poll alliances. It may even lead to formation of a government with outside support of parties and independent MLAs.

    In case no government can be formed, then re-election may take place or President’s Rule could be imposed by the state governor under Article 356 of the Constitution.

  • How many times can the Parliament sit in a year?

    The parliament sits thrice in a year—Budget Session (February to May), Monsoon Session (July to September) and Winter Session (November to December). The period during which the House meets to transact its business is called a session.

    The Constitution of India requires the parliament to sit for a minimum of two sessions each year.

    Article 85(1) of the Constitution says: “The President shall from time to time summon each House of Parliament to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session.”

  • Why are Duty Free Shops exempted from GST?

    Duty free shops at airports are within the limits of customs area; they have not crossed the customs frontier. The goods stocked in the shops are imported from other countries and kept under valid warehouse licences under the Customs Act. And outbound passengers buying these goods technically constitute export. Once purchased, these items are carried as a passenger’s personal belonging, on which no tax can be levied at any stage of transport. As a result, under Section 16(1) of the Integrated Goods and Services Tax Act, 2017, it is termed as ‘zero rated supply’.

  • What are the implications of the new Land Acquisition Act?

    Under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, any person who has been dispossessed of his land can claim compensation, rehabilitation and resettlement under the said provisions of the Act. In case of land acquired from farm labourers, one member of the family is entitled to suitable employment.

    If a parcel of land acquired is un­utilised for five years, or for the period specified in the concerned pro­ject for which it was acquired—whichever is later—it shall be returned to owners or deposited in the land bank.

    In case a court stays a land acquisition order in a pending suit, the time­frame mentioned above shall not be applicable.

  • Is there any legal remedy if my builder has taken money from me for registration of my property under RERA but has failed to do so?

    Under the Real Estate (Regulation and Deve­lopment) Act, 2016 (RERA for short), it is compulsory for all builders to obtain app­rovals from government agencies before the housing project is thrown open to the public. All relevant information must be made available on the state RERA authority website.

    In this case, or for that matter in any default case, the buyer can file an online complaint against the builder/promoter on the respective state portal of RERA. Details about the builder/promoter and payment along with the type of relief sought must also be mentioned for clarity. A practising RERA advocate should be consulted to get the right and effective legal opinion.

  • Have the penalties introduced in the Motor Vehicles (Amendment) Act, 2019, brought discipline and accountability on Indian roads? Are there any other benefits?

    The heavy and enhanced penalties that make a gaping hole in the pockets of traffic violators have been imposed to act as a deterrent. The number of fatal accidents and injuries recorded have been alarming. People are now careful to ensure that traffic rules are not violated and thousands of challans have been issued for various offences.

    A Motor Vehicle Accident Fund is likely to be set up. This can be used for helping accident victims during emergencies and as compensation. The victim and his family will no longer have to wait endlessly for insurance claims in courts. The amount is deductible from the insurance settlement received.

  • What is a will? What are the basic points to keep in mind while making a will?

    Section 2(h) of the Indian Succession Act, 1925, defines a will as “the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death”. A testator is a person who makes a valid will while he is alive. Any adult who wants to distribute his assets can write a will, provided he is of sound mind.

    There is no hard and fast rule that a will has to be written only on stamp paper and that it must be registered. A will written on plain paper is perfectly valid as per the law. A will can, however, be also framed by a lawyer, especially in cases where the assets and ownerships are complex. A lawyer will also ensure that the will is in sync with the law.

    However, in both cases, the testator must be clearly identified by his signature, and attestation from at least two reliable witnesses, the assets must be listed clearly and there should be no ambiguity as to how these are to be distributed among the beneficiaries.

    A testator can also withdraw his will or change it whenever he deems fit and in any manner whatsoever.

  • Who qualifies for legal aid in India?

    Legal aid in India is governed by the Legal Services Authorities Act, 1987, and related regulations and laws framed by states. Article 39A directs the State to ensure that the operation of the legal system promotes justice on a basis of equal opportunity and shall, in particular, provide free legal aid by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen due to economic or other disabilities. Those eligible for free legal aid include members belonging to SC/ST categories, people affected by natural calamities, women and children, handicapped people, people in custody, those having an annual income of less than Rs. 1 lakh, victims of human trafficking, the mentally disabled and victims of ethnic violence and caste atrocities.

  • What happens if the authorities sit on an application for a permanent driving licence in Delhi?

    As per the Delhi (Right of Citizen to Time Bound Delivery of Services) Act, 2011, a person must receive a permanent driving licence within three days of applying. In case the deadline is missed, the official responsible for the delay shall pay Rs. 10 per day to such a person as a compensation. The amount may go up to a maximum of Rs.200. The Act, which ensures mandatory and automatic compensation, also enlists 116 other services that have a guarantee of delivery, ranging from one day to 120 days.

  • Is there any law against children begging at traffic signals and other places?

    Begging is defined in The Bombay Prevention of Begging Act, 1959, as: “(a) soliciting or receiving alms, in a public place whether or not under any pretence such as singing, dancing, fortune telling, performing or offering any article for sale; (b) entering on any private premises for the purpose of soliciting or receiving alms; (c) exposing or exhibiting, with the object of obtaining or extorting alms, any sore, injury, deformity of diseases whether of a human being or animal; (d) having no visible means of subsistence and wandering  about or remaining in any public place in such condition or manner, as makes it likely that the person doing so exists by soliciting or receiving alms; (e) allowing oneself to be used as an exhibit for the purpose of soliciting or receiving alms.”

    Kidnapping or maiming a minor for begging is an offence under Section 363A, IPC. It also defines begging and qualifies who is a minor.

    Although there is no central legislation on begging, many states and Union Territories have either enacted anti-beggary laws or adopted laws passed by other states. However, they are also responsible for taking preventive measures against begging and ensuring that beggars are rehabilitated.

  • Can a woman hire an advocate to argue on her behalf in a family court for any marital dispute?

    According to Section 13 of the Family Courts Act, 1984, no legal practitioner can appear in family courts. The provision, however, enables a family court judge to appoint a legal expert as amicus curiae for legal assistance to the court in the interests of justice.

    The constitutional validity of Section 13 has been challenged in the Rajasthan High Court on the grounds that it violates the fundamental right to practise any profession under Article 19(1)(g) and the Advocates Act, 1961. Section 30 of the Advocates Act guarantees an advocate the right to practise in any court, including the Supreme Court, or tribunal which is authorised to take note of evidence.

  • How are prison sentences calculated when a person is convicted for multiple crimes during a trial?

    Section 31 of the Code of Criminal Procedure states that a court, subject to Section 71 of the IPC, is competent to try multiple offences during a trial in a single case and can order jail terms as punishment after conviction, which could run either concurrently or consecutively, depending upon the gravity of the offences.

    In the case of concurrent sentences, a court orders multiple jail terms for a convicted person and these terms run at the same time. In consecutive sentences, the jail terms run one after the other.

    Courts are empowered to inflict a maximum punishment of 14 years or twice the amount of punishment which it can order for a single offence, whichever is lower.    

  • Can a person marry again without disclosing the marriage to his first wife who is alive?

    If a man or a woman marries again when the first spouse is still alive and that too without his/her knowledge, the said marriage is null and void as per the law and thus an offence. Section 494 of the IPC says: “Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” However, the Section also clarifies that such a marriage can be allowed under a few exceptions.

    Section 495 of the IPC deals with the same offence on the grounds that the first marriage was not disclosed to the second wife or husband. It says: “Whoever commits the offence defined in the last preceding Section having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

  • What is child pornography? What is the punishment for displaying such pornographic content?

    The changes made in the Protection of Children from Sexual Offences (POCSO) Act, 2012, by the centre have finally led to a proper definition of child pornography. According to the Ministry of Women and Child Development, child pornography is defined as “any visual depiction of sexually explicit conduct involving a child which includes photographs, videos, digital or computer generated image indistinguishable from an actual child and an image created, adapted or modified but appear to depict a child.” The punishment under the new amended Act is also more severe for depicting a child or children in any pornographic content. A minimum of five years’ jail, with a fine, is imposed after the first conviction. The amendment imposes a minimum of seven years’ imprisonment, with a fine for subsequent convictions.

  • What is the legal procedure for inter-faith marriages in India?

    When the boy and the girl intending to marry do not belong to the same religion, their marriage can be legally solemnised under the Special Marriage Act, 1954. The Act also applies to cases wherein the couple has already entered into wedlock by following religious rituals and wants to get the marriage registered.

    The marriage is solemnised in a court in the presence of a marriage officer and three witnesses. Any girl above 18 years can marry any boy above 21 years unless the marriage falls under the prohibited category as per law. After applying in court, the notice of the intended marriage is published and objections can be raised by anyone within 30 days. However, unreasonable objections can invite a fine up to Rs. 1,000. Once the marriage is solemnised on the specified date, the marriage registrar enters the details in the register and issues a marriage certificate. The entire process entails a fee (Rs. 500 – Rs. 1,000).

  • How is custody of a child decided when parents separate?

    A family court determines who is a fit parent to take complete care of the needs of the child — emotional, medical and educational. The earning capacity of a parent is not always the priority for the court as it can always order the working parent to provide for the child who is under the care of the unemployed parent.

    A mother is the preferred choice of courts if the child is below five years of age. A nine year-old and above child’s opinion is often taken for an intelligent preference. Christian laws adhere to the rule of joint physical custody. A Muslim mother is solely entitled to custody unless she is proved to be unfit. Parsi law mandates courts to settle custodianship disputes within 60 days.

  • Can a police officer seize any property in the course of an investigation?

    Section 102 of the Code of Criminal Procedure enables a police officer to seize any property. It says: “(1) Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence; (2) Such police officer, if subordinate to the officer in charge of a police station, shall forthwith report the seizure to that officer.”

    However, the Supreme Court has recently clarified that Section 102 does not allow the police to seize and attach immovable property of the accused during the probe.

  • How can a couple obtain divorce by mutual consent?

    Under Section 13B of the Hindu Marriage Act, 1955, and Section 28 of the Special Marriage Act, 1954, a divorce petition is jointly filed by a couple before the family court, declaring that the husband and wife are living separately for at least a year. The court must be satisfied that the parties have no interest in the marriage and agree that the marriage needs to be dissolved.

    However, in case the divorce petition is withdrawn by the parties within six months of the mandatory waiting period, the court will not pass a decree of divorce. Under Article 142 of the Constitution, the Supreme Court can use its discretionary powers to do away with the waiting period.