Ignorance of law is no excuse. Here are answers to frequently asked queries regarding matters that affect us on a day to day basis
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.