Thursday, 11 August 2016

Acid Attacks – A blot on humanity and Indian Society; Legal Provisions, Role of Police and Hospitals, and Compensation to victims

Acid Attack or vitriolage have emerged as the contemporary form of violence which is generally targeted against women. Acid attack is a form of violence, where the perpetrator splashes a person or object with acid with the intention to disfigure, maim, torture, or kill. It is one of the gruesome forms of attack on the human body. Acid attacks have a catastrophic effect on human flesh and vital organs of a person as it damages the vital organs permanently. As a result of disfigurement and disability, the victims are permanently debilitated and are forced to give up their public lives, work and education. It devastates the sufferer’s life mentally, morally, physically and financially.

Main causes are of acid attacks are:
1.  Family disputes; domestic violence; relationship conflicts
2.  Refusal of indecent proposals or unacceptable propositions
3.  Land or money disputes; business conflicts
4.  Vengefulness and status jealousy
5.  Suspicion of infidelity
6.  Theft or robbery
7.  Mistaken identity; accidental; collateral
8.  Sex crimes, rape, and sodomy

Laws in India relating to acid attacks
Earlier there was no law that specifically dealt with the cases of acid attacks. There was no special section in the Indian Penal Code dealing with acid attacks. The law relating to acid attacks was inserted in Indian Penal Code, 1860 (IPC) and Code of CriminalProcedure, 1973 (CrPC) by the Criminal Law (Amendment) Act, 2013. Section 326 A in the IPC lays down the punishment for acid throwing whereas Section 326 B in the IPC lays down the punishment for attempted acid throwing. Section 357C of the Code of Criminal Procedure mandates all the hospitals, public or private, to provide free treatment to the acid attack treatments.

Right of the acid attack victim during attack
As per the seventh clause to section 100 of Indian Penal Code the right of private defense of the body extends to the voluntary causing of death or of any other harm to the assailant in case of an act of throwing or administering acid or an attempt to throw or administer acid which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such act.

Role of Police in registering of FIR and investigating Acid Attacks
Whenever any matter of acid attack comes to the knowledge of the police, it shall immediately register a First Information Report under section 326A or 326B, whichever is applicable, of the IPC. Section 326A of the IPC deals with the voluntarily causing of grievous hurt by use of acid, etc. and that provides punishment for a term which shall not be less than ten years but which may extend to imprisonment for life, and with fine. Section 326B of the IPC deals with the voluntarily throwing or attempting to throw acid and that provides punishment for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine.
It is the duty and the responsibility of the police to register a FIR as failure to register FIR on receipt of information will invite prosecution of the duty police officer under section 166A of IPC (government official disobeying law) which provides rigorous punishment for a term which shall not be less than six months but which may extend to two years, and shall also be liable to fine.
The policemen should be sensitized to respond to complaints of female victims, and must apprehend the accused immediately after the complaint, as it adversely impacts the victim and there is tendency of persons committing crimes to slip away when there is delay on extraneous grounds like jurisdiction. The policemen must be sensitive in dealing with acid attack victims and must not aggravate the pain and suffering of the victim.

Role of Hospitals in dealing with Acid Attacks victims
It is the duty of every hospital to attend the acid attack victim without any procedural formalities and to provide proper treatment to the victim. The victims should be provided good counseling support by the hospitals as the long course of treatment, pain, social stigma has a very detrimental effect on their self esteem. Section 357C of the Code of Criminal Procedure says that all hospitals, public or private, whether run by the Central Government, the State Government, local bodies or any other person, shall immediately, provide the first-aid or medical treatment, free of cost, to the victims of any offence covered under section 326A, 376, 376A, 376B, 376C, 376D or section 376E of the Indian Penal Code. So the hospitals must immediately provide the free of cost first-aid to the acid attack victim. It is also the duty of the hospital to immediately inform the police of any such incident.
Non-treatment of victim - Section 166B of the IPC says that if the in-charge of the hospital, public or private contravenes the provisions of the section 357C of the CrPC, then he shall be punishable with imprisonment for a term which may extend to one year or with fine or with both.

Compensation to the Acid Attack victims
Prior to the enactment of the Criminal Law (Amendment) Act, 2013, in most of the cases no compensation was awarded to the acid attack victims. Also in cases in which compensation was awarded there the sum was minimal and was totally inadequate to meet even the medical expenses of the victim. Normally the courts just levy fines without even giving these to the victims.
Section 326A of the IPC provides for imposing of fine on the accused and further provides that the fine shall be just and reasonable to meet the medical expenses of the treatment of the victim. Further Section 357B of Code of Criminal Procedure provides that the compensation payable by the State Government under section 357A shall be in addition to the payment of fine to the victim under section 326A or section 376D of the Indian Penal Code.

The compensation payable to the acid attack victim can be awarded under the following heads –
a) Expenses actually and reasonably incurred or to be incurred as a result of the victims injury or death;
b) Pecuniary loss or damages incurred by the victim as a result of total or partial disability affecting the victim’s capacity for work;
c) Pecuniary loss or damages incurred by the dependants as a result of the victim’s death;
d) Pain and suffering.

Can the acid attack victims be considered in disability list?
Supreme Court in the case of ParivartanKendra v. Union of India and others, decided on 7-12-2015, directed all the States and Union Territories to consider the plight of acid attack victims and take appropriate steps with regard to inclusion of their names under the disability list.

The victims of acid attacks face the struggle of expensive surgeries, which hinders their appropriate and speedy treatment. So, the government must take the responsibility of their treatment. The physical and psychological trauma following an acid attack makes life very difficult for the victims. The government must take steps to rehabilitate acid attack survivors with counselling and other provisions. Moreover, acid attack victims must be given complete legal support and the government must ensure they do not have to struggle a lot to get justice. The government must fix a time frame of probe and trial of acid attack cases. As far as the society is concerned, the incidents of the acid attacks are a curse on the Indian society. It’s common for the acid attack victims to lose social life. Our society needs mature and progressive people who look and think beyond the mere physical appearance of these victims. The people must not ignore these unfortunate victims rather they should help them by socializing with them.

Friday, 5 August 2016

Free and Compulsory Education: A Right of Every Child

Education is a fundamental human right, essential for the empowerment and development of an individual and the society as a whole. Education is a fundamental right of every child. But due to the prevalence of poverty and child labor, the literacy rate in India is not so good and many of the children are denied of their valuable right.

The right to education is reflected in international law in Article 26 of the Universal Declaration of Human Rights and Articles 13 and 14 of the International Covenant on Economic, Social and Cultural Rights that includes the right to free, compulsory primary education for all, an obligation to develop secondary education accessible to all, in particular by the progressive introduction of free secondary education.

Legal Status of ‘Right to Education’ in India
The Constitution (Eighty-sixth Amendment) Act, 2002 inserted Article 21-A in the Constitution of India to provide free and compulsory education of all children in the age group of six to fourteen years as a Fundamental Right in such a manner as the State may, by law, determine.
The Right of Children to Free and Compulsory Education (RTE) Act, 2009, which represents the consequential legislation envisaged under Article 21-A, means that every child has a right to full time elementary education of satisfactory and equitable quality in a formal school which satisfies certain essential norms and standards. The RTE Act came into force from April 1, 2010.

Constitutional Validity
The Constitutional Bench of the SupremeCourt in the case of Pramati Educational& Cultural Trust & Ors. v. Union of India & Ors., upheld the constitutional validity of Article 21-A of the Constitution of India and also of RTE Act, 2009. It also held that the RTE Act is not applicable to aided or unaided minority schools.
Right to Education Act provides for:

Fundamental Right
The Act makes education a fundamental right of every child between the ages of 6 and 14 and specifies minimum norms in elementary schools. So it casts an obligation on the Government to provide free and compulsory elementary education, up to Class 8th to every child.

Compulsory Education
The Act casts an obligation on the appropriate government to provide free elementary education and ensure compulsory admission, attendance and completion of elementary education to every child in the six to fourteen age group. ‘Free’ means that no child shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing elementary education.

Admission for All
The Act mandates that an out of school child is admitted to an age appropriate class and provided with special training to enable the child to come up to age appropriate learning level.

Minimum Standards are Set
The Act lays down norms and standards relating to Pupil-Teacher-Ratios (number of children per teacher), classrooms, separate toilets for girls and boys, drinking water facility, number of school-working days, working hours of teachers, etc. Each and every elementary school (Primary school + Middle School) in India has to comply with these minimum standards set by the RTE Act.

No Discrimination and No Harassment
RTE Act prohibits physical punishment and mental harassment; discrimination based on gender, caste, class and religion

No Detention
The Act mandates that no child can be held back or expelled from school until Class 8th. The Act has mandated the Continuous Comprehensive Evaluation (CCE) method to ensure grade appropriate learning outcomes.

No Screening Procedure for Admission
The Act provides that no school or person shall, while admitting a child, subject the child or his or her parents or guardian to any screening procedure. The contravention of this provision shall be punishable with fine which may extend to twenty-five thousand rupees for the first contravention and fifty thousand rupees for each subsequent contravention.

No Capitation Fee
The Act provides that no school or person shall, while admitting a child, collect any capitation fee. The contravention of this provision shall be punishable with fine which may extend to ten times the capitation fee charged.

Prohibition of private tuition by teacher
The Act provides that no teacher shall engage himself or herself in private tuition or private teaching activity.

Rational Deployment of Teachers
The Act provides for rational deployment of teachers by ensuring that the specified pupil teacher ratio is maintained for each school, rather than just as an average for the State or District or Block, thus ensuring that there is no urban-rural imbalance in teacher postings. It also provides for prohibition of deployment of teachers for non-educational work, other than decennial census, elections to local authority, state legislatures and parliament, and disaster relief.

Private Schools Included
RTE Act mandates all the private schools to reserve 25 per cent of the seats for children belonging to socially disadvantaged and economically weaker sections. This provision of the Act is aimed at furthering social inclusion for a better India.

So, the Right to Education Act is an essential step towards improving each child's accessibility to secondary and higher education. The Act also contains specific provisions for disadvantaged groups, such as child laborers, migrant children, children with special needs, or those who have a disadvantage owing to social, cultural, economical, geographical, linguistic, gender or any such factor. With the implementation of this Act, it is also expected that issues of school dropout, out-of-school children, and quality of education and availability of trained teachers would be addressed in the short to medium term plans. The enforcement of the Right to Education Act brings the country closer to achieving the objectives and mission of the Millennium Development Goals and Education for All and hence is a historic step taken by the Government of India.

Friday, 29 July 2016

Rights of a Good Samaritan and Procedure to be followed if they choose to become a witness

Samaritans are the bystanders and passers-by who render the help to the victims of road accidents.

Every year thousands of people die in India due to road accidents. The Law Commission of India in its 201st report observes that 50% of those killed in road accidents could have been saved had timely assistance been rendered to them.[1] The WHO in its ‘World Report on Road Traffic Injury Prevention, 2004’ has projected that by 2020, road accidents will be one of the biggest killers in India.[2] It also emphasized that in low income countries, the most common desisting factor restraining the public from coming forward to help victims, is the apparent fear of being involved in police cases.

Accident cases require fastest care and rescue which could be provided by those closest to the scene of the accident. Bystander’s clear support is essential to enhance the chances of survival of victim in the ‘Golden Hour’ i.e. the first hour of the injury. As per the WHO India Recommendations, 50% of the victims die in the first 15 minutes due to serious cardiovascular or nervous system injuries and the rest can be saved through by providing basic life support during the ‘Golden Hour’.

It is usually seen that people are hesitant to render immediate help to the road accident victims. The victims lay wounded on the road for some time till the arrival of police. The delay in rendering medical help can be fatal. Good Samaritans have the fear of legal consequences, involvement in litigation and repeated visits to police station. There is urgent need to tackle these issues. The Supreme Court in the case of Savelife Foundation & Anr v. Union ofIndia & Anr approved the guidelines issued by the Centre for the protection of Good Samaritans. These guidelines will remain in force till there is an appropriate law.

The guidelines give the following Rights to the Good Samaritans:

1. The Good Samaritan will be treated respectfully and without any discrimination on the grounds of gender, religion, nationality and caste.
2. Any individual, except an eyewitness, who calls the police to inform them of an accidental injury or death need not reveal his or her personal details such as full name, address or phone number.
3. The police will not compel the Good Samaritan to disclose his or her name, identity, address and other such details in the police record form or log register.
4. The police will not force any Good Samaritan to become a witness in the matter. The option of becoming a witness in the matter shall solely rest with the Good Samaritan.
5. The police will allow the Good Samaritan to leave after having provided the information available to him or her, and no further questions will be asked of him or her if he or she does not desire to be a witness.

In case Good Samaritans chooses to become witnesses, the guidelines accord them protection and comfort. Procedure to be followed in case they choose to become a witness:

1. If a Good Samaritan chooses to be a witness, he or she will be examined with utmost care and respect and without any discrimination on the grounds of gender, religion, nationality, caste or any other grounds.
2. The examination will be conducted at a time and place of the Good Samaritan’s convenience and the investigation officer will be dressed in plain clothes. 
3. If the Good Samaritan is required by the investigation officer to visit the police station, the reasons for the requirement shall be recorded by the officer in writing.
4. In case the Good Samaritan speaks a language other than the language of the Investigating Officer or the local language of the respective jurisdiction, the Investigating Officer shall arrange for an interpreter.
5. In a police station, the Good Samaritan will be examined in a single examination in a reasonable and time-bound manner, without causing any undue delay.
 6. If a Good Samaritan declares himself to be an eyewitness, he or she will be allowed to give his or her evidence in the form of an affidavit.
7. In case the attendance of the Good Samaritan cannot be procured without delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable, or his examination is unable to take place at a time and place of his convenience, the Court of Magistrate may appoint a commission for the examination of the Good Samaritan in accordance with section 284 of the Code of Criminal Procedure, 1973 on an application by the concerned.

These will offer legal protection to people who give reasonable assistance to those who are injured in the road accidents. The protection is intended to reduce bystanders' hesitation to assist, for fear of being sued or prosecuted for unintentional injury or wrongful death. A good deed without hesitation can save a precious life of someone.

Monday, 25 July 2016

Procedure of filing a Right to Information application (RTI) Offline and Online

The basic object of the Right to Information Act, 2005 is to empower the citizens, promote transparency and accountability in the working of the Government.

Essential requirements of an application filed under the RTI Act are:
(a) The applicant should be a citizen of India.
(b) The application should contain the particulars of information sought.
(c) The evidence of payment of application fee should be enclosed.
(d) The address of the applicant should be available for sending a reply.

Procedure of applying RTI application Offline
Firstly, you have to identify the department from which you want the information. After that you have to write the application by hand, or type it, in English, Hindi or the official language of the area.
Secondly, address the application to the State/Central Public Information Officer. Write the name of the office from which applicant seeks information, and the complete, correct address. Clearly mention ‘Seeking information under the RTI Act, 2005’ in the subject line.
Thirdly, state the request in the form of specific, detailed questions, and mention the period/year your request falls into. Ask for documents or extracts of documents, if required.
Fourthly, provide your full name and address, contact details, email address and sign the application clearly.
Fifthly, take a photocopy of the application and keep one with you for future reference. Send your application by post or hand it in personally to the department concerned.

Procedure of applying RTI application Online
The RTI application can also be made online. The link of the portal to file RTI applications/first appeals online along with payment gateway is:
Any citizen can make a request through the RTI Online Portal to the Central Ministries/Departments and other Central Public Authorities mentioned in ONLINE RTI request form. RTI application for state public authorities cannot be filed through the online portal. It is not mandatory for the Applicant to create a user account and he can directly file the RTI on 'Submit Request' tab. On submission of an application, a unique registration number will be issued, which may be referred by the applicant for any future reference.

Cost of RTI application
The applicant has to pay Rs. 10 to file a RTI plea. To obtain documents, the applicant has to make a payment of Rs. 2 per page

Exemption of payment for BPL applicant
Applicants below the poverty line (BPL) are exempted from making the payment. However, they have to attach a copy of the BPL certificate along with the application.

Reason for seeking information
The information seeker is not required to give reasons for seeking information.

Requirement of a lawyer in filing RTI
A person in not required to engage a lawyer to file a RTI as he can himself file a RTI, appeal and second appeal.

Exemption from Disclosure of Information
Section 8(1) and 9 of the RTI Act enumerate the types of information which are exempted from disclosure. Section 8(2), however, provides that information exempted under section 8(1) or exempted under the Official Secrets Act, 1923 can be disclosed if public interest in disclosure overweighs the harm to the protected interest.

Time Period for Supply of Information
In normal course, information to an applicant shall be supplied within 30 days from the receipt of application by the public authority. If information sought concerns the life or liberty of a person, it shall be supplied within 48 hours. In case the application is sent through the Assistant Public Information Officer or it is sent to a wrong public authority, 5 days shall be added to the period of 30 days or 48 hours, as the case may be.

Appeal under the RTI Act
If an applicant is not supplied information within the prescribed time of 30 days or 48 hours, as the
case may be, or is not satisfied with the information furnished to him, he may prefer an appeal to the first appellate authority who is an officer senior in rank to the Public Information Officer. Such an appeal should be filed within a period of 30 days from the date on which the limit of 30 days of supply of information is expired or from the date on which the information or decision of the Public Information Officer is received. The appellate authority of the public authority shall dispose of the appeal within a period of 30 days or in exceptional cases within 45 days of the receipt of the appeal.

Second appeal under the RTI Act

If the first appellate authority fails to pass an order on the appeal within the prescribed period or if the appellant is not satisfied with the order of the first appellate authority, he may prefer a second appeal with the Central Information Commission within 90 days from the date on which the decision should have been made by the first appellate authority or was actually received by the appellant.

Tuesday, 19 July 2016

Procedure of filing a First Information Report (FIR)

FIR means First Information Report, made to police, about commission of a cognizable offence. It amounts to putting law in to motion by giving information relating to the commission of a cognizable offence to an officer in charge of a police station, (which shall be reduced into writing and read over to the informant ) and shall be signed by the person giving such information.

Who can lodge an F.I.R?

An FIR can be lodged by:
Ø  An aggrieved person.
Ø  A person who is aware about the facts of the crime.
Ø  A person who has seen a crime being committed.

Place of lodging the FIR

To file an F.I.R, one has to go to the police station within the jurisdiction of which the cause of action arose or the offence took place.

Crimes for which an FIR can be lodged

The police can register FIRs only for cognizable offences — where the police have the power to arrest without a warrant. Examples of cognizable offences include murder, rape, theft, attack, etc. For non-cognizable offences, such as bigamy or defamation, the police cannot arrest without a warrant and thus cannot register an FIR. In such cases the complaint is sent to the Judicial Magistrate for action.

How to lodge FIR?

The informant/complainant should go to the Police Station having jurisdiction over the area (where the offence is committed) and report to Officer in-charge /station house officer about commission of a cognizable offence.

In case information is given on telephone, the informant/complainant should subsequently go to the police station for registration of FIR.

Every piece of information relating to the commission of offence is to be given to the officer in-charge of the police station. If it is given orally to the officer, he shall reduce it to writing and read it over to the informant to confirm and verify the details.

Every such information has to be signed by the informant after which it is required to be recorded by the officer in a book maintained for this purpose as prescribed by the State Government.

What if the Officer in charge of the police station refuses to lodge an FIR?

If the officer in-charge of the police station refuses to record the information, one can send the substance of such information, in writing to the Superintendent of Police concerned. The Superintendent of Police can start the investigation himself or direct any other officer subordinate to him to start the investigation. In case of refusal of lodging of FIR one can also file a complaint directly to the Judicial Magistrate by himself or through his lawyer. In this case the Judicial Magistrate orders the police to lodge the FIR under section 156(3) of the Code of Criminal Procedure.

Cost of copy of FIR

The copy of FIR must be given free of cost to the informant.

Wednesday, 25 May 2016

Procedure of Legal Recourse in Cheque Bounce Cases in India

A cheque is a negotiable instrument and is used in almost all the transactions such as re-payment of loan, payment of salary, fees, bills, etc. Cheque is considered as one of the reliable methods of the payment of money. The person who issues the cheque is known as the ‘drawer’, the person in whose favour, the cheque is drawn is called ‘payee’, and the bank who is directed to pay the amount to the payee is known as ‘drawee’.

Whenever a cheque is issued in favour of a person, i.e., the payee, then he has to present that cheque in his bank within three months of the issue of the cheque or within the period of its validity, whichever is earlier. In case the cheque is dishonored, the drawee bank immediately issues a ‘Cheque Return Memo’ mentioning the reason for non-payment. However, the payee can again present that cheque in the bank any number of times within the period of its validity. If the cheque is still not honored then the payee can prosecute the drawer for the dishonor of the cheque.

The Negotiable Instruments Act, 1881 is applicable law for the cases of dishonor of cheque. Before prosecuting the drawer for the dishonor of the cheque, a proper procedure has to be followed by the payee. The payee has to send a registered notice to the drawer within 30 days from the date of receiving “Cheque Return Memo” from the bank. The notice should mention that the cheque has been dishonored by the bank for the reason mentioned in the Cheque Return Memo and that the cheque amount has to be paid to the payee within 15 days from the date of receipt of the notice by the drawer. If the drawer fails to make a fresh payment within 15 days of receiving the notice, the payee has the right to file a criminal complaint under Section 138 of the Negotiable Instruments Act.

The complaint has to be filed in the court of Judicial Magistrate within 30 days of the expiry of the notice period. If the issuer of the cheque is found guilty then he can be sentenced to imprisonment for a term which may be extended to two years or with fine which may extend to twice the amount of the cheque, or with both.

The cases of cheque bounce are common these days and there is a significant rise in the number of cheque bounces cases. It is for this reason that in many metropolitan cities there are separate courts for handling the cheque bounce cases. It is essential to consult a lawyer who is well versed and experienced in the cheque bounce matters. So there is a need of the cheque bounce lawyers as the scope of this field is very wide.

Tuesday, 26 April 2016

Role of Personal Injury Lawyers in Negligence Cases

A personal injury lawyer is a person who provides legal representation to those who claim to have been injured, physically or mentally, as a result of the negligence or wrongdoing of another person, company, government agency, or any other entity. ‘Personal injury’ is the term used to describe physical and mental injuries to a person that occur because of someone else's negligence, intentional actions, or strict liability. Personal injury law refers to the legal remedies and defenses involved in civil lawsuits brought as a result of wrongful conduct. So, the law defines personal injury as an injury to the body, mind, or emotions.

Negligence in Personal Injury cases

Negligence means the other party failed to act with reasonable care. Every person is required to act responsibly to the other members of the society and to avoid putting other persons to risk. Most of the personal injury cases are based on the doctrine of negligence. The type of cases in which personal injury occurs include car accidents, bike accidents, railroad accidents, dog bites, medical malpractice and negligence, slip and fall accidents, work related accidents, wrongful death, defamation, etc. In order to establish liability in a negligence case, the plaintiff must show that a reasonably prudent person in the defendant’s position would have acted differently under the same circumstances. Once negligence has been established by the plaintiff in a personal injury case, the defendant must pay to the plaintiff for all the injuries and loss caused by the defendant's action. However, there are defenses that are available to the defendant in personal injury cases. The defendant may argue that the plaintiff did not use due care, and is partially or wholly responsible for his or her own injury. The defendant may also claim that the plaintiff assumed the risk by voluntarily participating in a dangerous sport or activity.     

Role of Personal Injury Lawyers

From road accident cases to medical negligence cases, to a dog bite or intentional tort, every person has a legal right to recover compensation when they are injured as a result of someone else's careless action. The personal injury lawyers generally handle the cases that fall under the tort law. He has to prove that there was a duty to take care, breach of that duty and injury has been caused due to it. A personal injury lawyer files legal complaints, offers legal advice, prepares legal documents and represents his client in court. His primary purpose is to see that justice and compensation has been served to the injured party. Normally, a personal injury lawyer will settle out of court on behalf of his client. However, if no agreement is reached between the plaintiff and the defendant, then he must take the case to the court to be decided by it.

Tuesday, 5 April 2016

Law on Acid Attacks in India

Acid attack is a form of violence against women, where the perpetrator splashes a person or object with acid in order to deface or kill them. It is one of the gruesome forms of attack on the human body. Earlier there was no law which specifically deals with the cases of acid attacks. There was no special section in the Indian Penal Code dealing with acid attacks. Section 326 of the Indian Penal Code, which deals with causing grievous hurt by throwing of a corrosive substance etc. is insufficient/ inadequate to deal with the issue. So, the section 326 of the Indian Penal Code was not so effective in dealing with this heinous form of crime.

The Law Commission of India in its 226th report submitted in 2008 recommended for the inclusion of acid attacks as specific offences in the Indian Penal Code and a law for compensation for victims of crime. The Criminal Law (Amendment) Act, 2013 made grievous hurt by throwing acid and its attempt punishable by inserting new sections 326 A and 326 B.

Section 326 A of Indian Penal Code reads, “Whoever causes permanent or partial damage or deformity to, or bums or maims or disfigures or disables, any part or parts of the body of a person or causes grievous hurt by throwing acid on or by administering acid to that person, or by using any other means with the intention of causing or with the knowledge that he is likely to cause such injury or hurt, shall be punished with imprisonment of either description for a term which shall not be less than ten years but which may extend to imprisonment for life, and with fine; Provided that such fine shall be just and reasonable to meet the medical expenses of the treatment of the victim; Provided further that any fine imposed under this section shall be paid to the victim.”

The first explanation to section 326 B says that, “For the purposes of section 326A and section 326B, “acid” includes any substance which has acidic or corrosive character or burning nature, that is capable of causing bodily injury leading to scars or disfigurement or temporary or permanent disability.

So, the Section 326 A in the Indian Penal Code lays down the punishment for acid throwing. The minimum punishment is 10 years imprisonment. It can extend up to life imprisonment with fine. The Section 326 B in the Indian Penal Code lays down the punishment for attempted acid throwing. The minimum punishment is 5 years imprisonment. It can extend up to 7 years imprisonment with fine.

Compensation for the Victim

In Delhi Domestic Working Women’s Forum vs. Union of India (1995) I SCC 14, the Supreme Court had pronounced upon the need by the government to setup a Criminal Injuries Compensation Board for rape victims within 6 months. The Supreme Court had suggested that this board should give compensation whether or not a conviction takes place. The Supreme Court explained the justification for this proposal as -

“It is necessary, having regard to the Directive Principles contained under Article 38(I) of the Constitution of India to setup Criminal Injuries Compensation Board. Rape victims frequently incur substantial financial loss. Some, for example are too traumatized to continue in employment.

Compensation for victims should be awarded by the court on conviction of the offender and by the Criminal Injuries Compensation Board whether or not a conviction takes place. The board will take into account pain, suffering and shocks as well as loss of earnings due to pregnancy and the expenses of the child but if this occurred as a result of the rape.”

Monday, 15 February 2016

De-facto and De-jure Authority

The word ‘authority’ is derived from the Latin word ‘auctoritas’ which means the right to exercise power given by the State (in the form of government, judges, police officers, etc.). Authority is the power or admitted right to command or act. Authority is the power to do something. Authority means the institutionalized exercise of legitimate power which is backed by law or constitution and common consent.

Weber defines ‘authority’ as a legitimate form of domination, that is, forms of domination which followers or subordinates consider to be legitimate.

The dictionary meaning of the word ‘authority’ is the power to determine, adjudicate, or otherwise settle issues or disputes; jurisdiction; the right to control, command, or determine.

Authority can be original or delegated. It can be de facto authority or it can be de jure authority too.
De facto is a Latin expression that means "in fact, in reality, in actual existence, force, or possession, as a matter of fact". De jure is an expression that means "of right, by right, according to law"

The ability to get one’s proposals, commands, and pronouncements accepted and thus determine other people’s behaviour is to have authority de facto, whereas to have the right to make pronouncements, issue commands of certain kinds and get others to obey them is to have authority de jure.
So, the difference between the two is mainly with the way the word ‘authority’ is used. De jure authority can be viewed as a set of rules whereby certain people are authorized to do some things but not others. De jure stresses that the extent of authority depends not on whether he can authorize others to act but on what actions are open to him/her within the rules. De facto authority exists whenever a human recognizes another as entitled to command him. To have de facto authority is to stand out as having a certain relation to other people; that one can make them do what they command, because they are "convinced" to do so. The relationship of de facto authority arises from de jure, whereby some principles of legitimacy gives a ruler the right to command.

Sunday, 14 February 2016

Industrial Property

Industrial property is part of the wider body of law known as intellectual property. Intellectual
property refers to the product emerging out of the intellectual labour of a human being. So, in simple terms intellectual property refers to the creations of the human mind. The importance of intellectual property was first recognized in the Paris Convention for the Protection of Industrial Property in 1883 and the Berne Convention for the protection of Literary and Artistic Works in 1886.
Intellectual property is divided into two branches, namely industrial property and copyright.

Copyright includes literary works such as novels, poems and plays, films, musical works, artistic works such as drawings, paintings, photographs and sculptures and architectural designs.

Industrial property
Industrial Property includes patent for inventions, trademarks, industrial designs and geographical indications. The broad application of the term “industrial” is clearly set out in the Paris Convention for the Protection of Industrial Property as “Industrial property shall be understood in the broadest sense and shall apply not only to industry and commerce proper, but likewise to agricultural and extractive Understanding Industrial Property industries and to all manufactured or natural products, for example, wines, grain, tobacco leaf, fruit, cattle, minerals, mineral waters, beer, flowers, and flour.”

Industrial property can usefully be divided into 2 main areas:
The first area can be characterized as the protection of distinctive signs, in particular trademarks (which distinguish the goods or services of one undertaking from those of other undertakings) and geographical indications (which identify a good as originating in a place where a given characteristic of the good is essentially attributable to its geographical origin).

The other types of industrial property are protected primarily to stimulate innovation, design and the creation of technology. In this category fall inventions (protected by patents), industrial designs and trade secrets.

So, industrial property includes inventions (process, products and apparatus); Industrial designs (shapes and ornamentation); and Marks and Trade-names to distinguish goods. Recently the scope of industrial property has been expanded to include 'among others, the protection of distinctive geographical indications, plant varieties, and the layout designs (topographies) of integrated circuits, as well as the repression of unfair competition, including the protection of trade secrets.'

Friday, 12 February 2016

Assignment and Transmission of Trademark

Trademarks like any asset or property can be transferred from one owner to another. Assignment or transmission of a trade mark is the process by which ownership of a registered trade mark or a trade mark application may be passed from one party to another. In other words, it is transferring of proprietary rights in the property of the proprietor.

A registered or unregistered trademark is a corporal property and it is assignable and transmissible under the law. Chapter V of the Trade Marks Act, 1999 deals with the assignment and transmission of the trade marks.

A trademark or a logo may be assigned or transferred to another business entity in any of the following manners:

1.      Complete Assignment to another company - In a complete assignment, the owner of the trademark transfers all the rights with respect to the trademark, including the transfer of the rights such as right to further transfer, earn royalties, etc., to another entity.

2.      Partial assignment of trademarks - In a partial assignment, the transfer of ownership is restricted to specific product or service only.

3.      Assignment with goodwill - Assignment with goodwill means an assignment where the owner transfers the rights and value of the trademark as associated with the product it sells.

4.      Assignment without goodwill - Assignment without goodwill means an assignment where the owner restricts the assignee to use trademark for the products he uses it for.

Assignment of a registered trademark

According to section 38 of the Trade Marks Act, 1999, a registered trade mark can be assigned with or without the goodwill of the business concerned and in respect either of all the goods or services in respect of which the trade mark is registered or of some only of those goods of services.

Assignment of an unregistered trademark

According to section 39 of the Trade Marks Act, 1999, an unregistered trade mark may be assigned or transmitted with or without the goodwill of the business concerned.

Thursday, 11 February 2016

Hon'ble Mr. Justice M. Y. EQBAL

M. Y. Eqbal is a Justice in the Supreme Court of India from 24-12-2012 to 12-2-2016.
Justice Eqbal was born on 13th February, 1951. He completed his initial education from Ranchi Zila School in the year 1967. After obtaining his bachelor degree in Science from Ranchi University, he pursued his Degree in Law and obtained degree with 1st Class Distinction (Gold Medalist) in the year 1974.

He started practice in the year 1975 in Civil Court. He was appointed as a Government Pleader in the year 1990, and was later appointed as Government Advocate in Ranchi Bench of Patna High Court in 1993.

Due to his profound knowledge of law, he was elevated to the Bench and he became Judge of Patna High Court on 9-5-1996. Later he became Judge of Jharkhand High Court on 15-11-2000. On 11-6-2010 he was elevated as Chief Justice of the Madras High Court and he served there till 21-12-2012. On 24-12-2012 he became a Judge of the Supreme Court of India.

Landmark Judgments of Justice M. Y. Eqbal

Tekan alias Tekram v. State of Madhya Pradesh (Now Chhattisgarh) [11-2-2016] - Supreme Court directed all the States and Union Territories to formulate a uniform victim compensation scheme for victims of sexual assaults

Kerala Public Service Commission & Ors. v. The State Information Commission & Anr. [4-2-2016] – Supreme Court held that Public Service Commission shall provide Information about answer sheets and Marks under the RTI Act.

Reserve Bank of India v. Jayantilal N. Mistry [16-12-2015] - Supreme Court held that there is no fiduciary relationship between RBI & Financial Institutions; and that RBI is bound to disclose information under the RTI Act

Parivartan Kendra v. Union of India and others [7-12-2015] - Supreme Court directed all the States and Union Territories to consider the inclusion of the names of Acid Attack victims under the disability list.

Bhim Singh & Anr. v. State of Uttrakhand [11-2-2015] - Supreme Court held that demand for dowry can be made at any time and not necessarily before marriage

Archana Girish Sabnis v. Bar Council of India and others [26-11-2014] - Supreme Court observed Pursuing law and practicing law are two different things. One can pursue law but for the purpose of obtaining license to practice, he or she must fulfill all the requirements and conditions prescribed by the Bar Council of India.

National Commission for Women

National Commission for Women is a statutory body set up in January 1992 under the National Commission for Women Act, 1990 (NCW Act) to review the Constitutional and legal safeguards for women; recommend remedial legislative measures, facilitate redressal of grievances and advise the Government on all policy matters affecting women. The first Chairperson of the Commission was Jayanti Patnaik (3-2-1992 to 30-1-1995). The present Chairperson of the Commission is Lalitha Kumaramangalam since 29-9-2014.

Constitution of the Commission
The Constitution of the National Commission for Women has been provided under section 3 of the NCW Act. According to it the Commission shall consist of
a.      A Chairperson, committed to the cause of women - To be nominated by the Central Government.
b.      5 Members - To be nominated by the Central Government from amongst persons of ability, integrity and standing who have had experience in law or legislation, trade unionism, management of an industry potential of women, women's voluntary organisations (including women activist), administration, economic development, health, education or social welfare;       Provided that at least 1 Member each shall be from amongst persons belonging to the Scheduled Castes and Scheduled Tribes respectively;

c.       a Member-Secretary - To be nominated by the Central Government who shall be :-
i.              an expert in the field of management, organisational structure or sociological movement, or
ii.            an officer who is a member of a civil service of the Union or of an all-India service or holds a 
         civil post under the Union with appropriate experience

Functions of the Commission
Some of the important functions of the NCW are:

1. To investigate and examine all matters relating to the safeguards provided for women under the Constitution and other laws.

2. To take up cases of violation of the provisions relating to women with the appropriate authorities.

3. To look into complaints and take suo moto notice of matters relating to deprivation of women's rights and non-implementation of laws and policies relating to the women.

4. To participate and advice on the planning process of socio-economic development of women.

5. To make periodical reports to the Government on any matter pertaining to women.

The Commission also publishes a monthly newsletter Rashtra Mahila both in Hindi and English.

Tuesday, 9 February 2016

Burden of proof and Onus of proof

The Court can decide a case only by considering the truth and value of the several facts alleged and proved by the parties as the facts are unknown to the Court. They must be established by evidence by the parties. Now the question that arises is which party must adduce evidence? The responsibility for adducing such evidence as will establish any fact and prove the case is called the Burden of Proof. So in simple terms, the responsibility to prove a thing is called burden of proof.

Section 101 of the Indian Evidence Act, 1872 defines burden of proof as, “whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.”

When a person is required to prove the existence or truthfulness of a fact, he is said to have the burden of proving that fact. In a case, many facts are alleged by the parties and they need to be proved by the party alleging the fact before the court so that the court can base its judgment on such facts. The burden of proof is the obligation on a party to establish such facts in issue or relevant facts in a case to the required degree of certainty in order to prove its case. In general, every party has to prove a fact that goes in his favor or against his opponent; this obligation is nothing but burden of proof.

Now the question that arises is that who has the onus of proof
Section 101 of the Indian Evidence Act, 1872 deals with “On whom burden of proof lies - The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”

Burden of Proof and Onus of Proof
There is difference between burden of proof and onus of proof. The ‘Burden of Proof’ is the burden to prove the main contention of party requesting the action of the court, while the ‘Onus of Proof’ is the burden to produce actual evidence. The Burden of Proof is constant and is always upon the claimant but the Onus of Proof shifts to the other party as and when one party successfully produces evidence supporting its case.

The Supreme Court in the case of Addagada Raghavamma & Anr. v. Addagada Chenchamma & Anr. (1963) held that there is an essential distinction between burden of proof and onus of proof; burden of proof lies upon the person who has to prove a fact and it never shifts but the onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence.