Lex Resonance: New Round Up 2017

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A. CONSTITUTIONAL LAW UPDATE

indian-constitution1. Power to Punish Contempt: The power to punish for contempt vested in a Court of Record under Article 215 does not, however, extend to punishing for the contempt of a superior court. Such a power has never been recognised as an attribute of a court of record nor has the same been specifically conferred upon the High Courts under Article 215. If Supreme Court does not, despite the availability of the power vested in it, invoke the same to punish for its contempt, there is no question of a Court subordinate to the Supreme Court doing so.

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B. CIVIL LAW UPDATE

1. indian-passport-renewal-or-re-issue-documents-listNo need to change the name in Passport for women on Marriage and Divorce: The Prime Minister Narendra Modi has said that there was no need for a woman to change her name on the passport after marriage or divorce and that she could get the travel document by giving the names of either of her parents. There has been an important change in passport rules.  It will be up to her to have either the name of her father or mother on the passport.

2. 03Supreme Court declined urgent hearing in a request for a SIT Probe in Saharanpur Case (May 26, 2017): The Supreme Court on Friday refused an urgent hearing on a plea seeking a probe by a Special Investigation Team (SIT) into the recent incidents of caste violence in Uttar Pradesh’s Saharanpur district. A vacation bench comprising Justices L. Nageswara Rao and Navin Sinha said there was no urgency and the petition may be heard after the court’s summer break.

C. CRIMINAL LAW UPDATE

downloadNirbhyay Case: The Supreme Court upheld the death sentences of four convicts of the brutal gang-rape and murder of 23-year-old physiotherapy student. Terming the crime as brutal, barbaric and diabolic, the court said the incident shook the conscience of humanity and they deserved the extreme punishment. A bench headed by Justice Dipak Misra, while upholding the death sentence awarded to the four convicts—Pawan Kumar Gupta, Vinay Sharma, Mukesh and Akshay Kumar Singh—observed that the DNA profile developed from the blood stains obtained from the iron rods was consistent with the DNA of the victim.

2. article-2146026-13252D5E000005DC-541_224x423Three men to be sentenced for an attempt to murder charge against the Judges of Delhi Higher Judiciary: The three men were found guilty by a Delhi Court of attempting to murder three judges by hurling bricks at them in an alleged incident of road rage in 2012. The court observed that the judges while testifying, had remained unchallenged. Testimony of material witnesses of the prosecution shows that the accused became angry after seeing the sticker of ‘judge. On May 17, 2012, around 5 pm, three judges, Inderjeet Singh, Manoj Nagpal and Ajay Garg, were traveling in an official car. Two men on a bike hit it and fell, and when the driver of the car tried to talk, they got into a scuffle with him and abused him. The two men were identified as Anil Raj and Rohit, who were accused of passing threats and asking two more men to join them. The four men, it was further alleged, picked up bricks from a nearby pile and started hurling at the car, breaking its windshield. The three judges supported the testimony of the driver. While one of the judges, Garg, was hurt on his head and bled in the melee, Singh was “dragged” out of the car.  While one accused is on the run, Anil, Rohit, and Prashant were convicted on charges of attempt to murder. Anil and Rohit were also charged with offenses such as assault and causing hurt to a public servant. The court is yet to decide on the quantum of their punishment.

 

D. FAMILY & PROPERTY LAW UPDATE

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1.  Commercial Surrogacy: Commercial surrogacy has been legal in India since 2002. In 2008, the Supreme Court of India in the Manji’s case (Japanese Baby) has held that commercial surrogacy is permitted in India with a direction to the Legislature to pass an appropriate Law governing Surrogacy in India. At present, the Surrogacy Contract between the parties and the Assisted Reproductive Technique (ART) Clinics guidelines are the guiding force. The Law Commission of India has specifically reviewed the Surrogacy Law keeping in mind that in India that India is an International Surrogacy destination.

International Surrogacy involves bilateral issues, where the laws of both the nations have to be at par/uniformity else the concerns and interests of parties involved will remain unresolved and thus, give due regard to the concerns and in order to prevent the commercialization of the Human Reproductive system, exploitation of women and the commodification of Children, the law commission has submitted its report with the relevant suggestion.

The Law Commission of India has submitted the 228th Report on “NEED FOR LEGISLATION TO REGULATE ASSISTED REPRODUCTIVE TECHNOLOGY CLINICS AS WELL AS RIGHTS AND OBLIGATIONS OF PARTIES TO A SURROGACY. The following observations had been made by the Law Commission: –

(a)  Surrogacy arrangement will continue to be governed by contract amongst parties, which will contain all the terms requiring consent of surrogate mother to bear child, agreement of her husband and other family members for the same, medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying child to full term, willingness to hand over the child born to the commissioning parent(s), etc. But such an arrangement should not be for commercial purposes.

(b) A surrogacy arrangement should provide for financial support for a surrogate child in the event of the death of the commissioning couple or individual before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child.

(c)  A surrogacy contract should necessarily take care of life insurance cover for a surrogate mother.

(d) One of the intended parents should be a donor as well because the bond of love and affection with a child primarily emanates from the biological relationship. Also, the chances of various kinds of child abuse, which have been noticed in cases of adoptions, will be reduced. In case the intended parent is single, he or she should be a donor to be able to have a surrogate child. Otherwise, adoption is the way to have a child which is resorted to if biological (natural) parents and adoptive parents are different.

(e) The legislation itself should recognise a surrogate child to be the legitimate child of the commissioning parent(s) without there being any need for adoption or even declaration of guardian.

(f) The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.

(g)  The right to privacy of donor as well as a surrogate mother should be protected.

(h) Sex-selective surrogacy should be prohibited.

(i)  Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971 only.

The Law Commission has strongly recommended against Commercial Surrogacy. However, this is a great step forward to the present situation.  Israel the first country in the world to implement a form of state-controlled surrogacy in which each and every contract must be approved directly by the state.

Present Law Related to Surrogacy surrogacy-law

There is a proposed legislation that aims at proper regulation and supervision of ART clinics and banks in the country. Some of the important developments include:

The government has proposed that surrogacy for foreigners in India shall not be allowed but surrogacy shall only be permissible to overseas citizens of India (OCIs), people of Indian origin (PIOs), non-resident Indians (NRIs) and any foreigner married to an Indian citizen. The eligible couple will have to produce a duly notarized agreement with the prospective Indian surrogate mother. Further, they have to produce an undertaking that they would take care of the child/children born through surrogacy.

For foreigners married to an Indian because there are other conditions to do so. The Bill makes it mandatory for the couple to be married with the marriage sustaining for at least two years. They will further need to submit a certificate, attested by the appropriate government authority of that country, conveying that the woman is unable to conceive.

The government has also said that the child born to a foreigner married to an Indian citizen by sperm or egg donation, or surrogacy in India, then the child will not be an Indian citizen, despite being born in India, and will be entitled to Overseas Citizenship of India under Section 7A of the Citizenship Act, 1955.

The ART Bill also has stern rules for surrogates. It says that any woman agreeing to act as a surrogate shall be duty-bound not to engage in any act, including unprotected sex that may harm the foetus during pregnancy and the child after birth, until the time the child is handed over to the designated commissioning couple.

E. BANKING & FINANCE LAW UPDATE

finance1. Privacy Issue on Mobile Payments: There’s been a surge in transactions through the mobile payment channel. But are mobile payments secure? A study by the Centre for Software and IT Management (CSITM) at IIM Bangalore (IIM-B) raises significant questions on the risks associated with mobile phone-based payment systems.

The study evaluated the apps on the following six key security principles for electronic banking transactions: the potential for confidentiality breaches; the management of the transactions for subsequent repudiation; the strength of the authentication process; the data and transaction integrity procedures; the extent of access and availability of services; and the procedures for maintaining privacy of customer information.

CONCERNS

The study found serious privacy concerns with all the services. For instance, while in many apps like Freecharge, the wallets are not directly linked to third-party vendors (such as Uber or BigBasket), apps such as Paytm allow for automatic linkage with the vendors and they can deduct amounts without the explicit consent of the user. Potential for confidentiality breaches was a problem observed in all the mobile payment methods, except USSD. A recurring security concern was that many of the apps do not automatically log the users out, and anyone having access to the phone can make financial transactions through these apps. This risk is highest if the user loses or misplaces her/his mobile phone, and higher still if the phone is unlocked or unprotected. However, apps such as iMobile, BHIM have auto-logout/session time-out features.

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2. Whistleblower’s Identity: Barclays has reprimanded Chief Executive Jes Staley and will cut his bonus for attempting to uncover a whistleblower’s identity, the British bank said on Monday, dealing a blow to a man who has been in the role little over 15 months.  Barclays grants whistleblowers anonymity to prevent any retribution for their actions — in keeping with normal UK practice.  The board, which said it accepted Staley’s explanation that he was trying to protect a colleague from what he believed to be an unfair attack, will back his reappointment at the annual shareholder meeting on May 10.  Barclays’ board first heard of Staley’s attempt to identify the author of the letter in early 2017, after the issue was raised by an employee, Barclays said.

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3. Insurance cover for Mental Illness: The Mental Healthcare Bill 2016, which got Lok Sabha’s nod last week, will become law once it receives Presidential assent. The Bill makes it mandatory for insurers to provide insurance to the mentally ill. Health insurers are gearing up to bring mental illness, such as depression and anxiety, under insurance cover. The progressive provision, however, may result in more expensive insurance products. While estimate shows that 5-6 percent of the population suffers from some mental health concern, a recent survey conducted by the National Institute of Mental Health and Neuro Sciences (NIMHANS) puts the figure at a much higher 13.7 percent of the adult population, of which, at least 150 million need immediate medical intervention. This vast number is likely to put pressure on the health insurance providers.

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3. FDI Policy in Multi Brand:  The government today said there is no proposal under its consideration to review the foreign direct investment (FDI) policy in the multi-brand retail sector. The current foreign direct investment policy permits overseas players to hold 51 percent stake in an Indian retail company. So far, only one foreign player, Tesco, has received approval for opening stores under the multi-brand retail policy.

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4. Income Tax Declaration for loan and credit card bills: All cash payments of over Rs 2 lakh for paying loans and credit card bills during the 50-day period post demonetization will have to be disclosed in the new one-page Income Tax return form. The tax department a few days back notified new Income Tax Return (ITR) forms for filing of returns for the Assessment Year 2017-18 (the financial year 2016-17). Besides providing for declaring income, exemption claimed and tax paid, the forms have a new column providing for declaration for any deposit of over Rs 2 lakh in bank accounts made during 9 November and 30 December 2016 after the old 500 and 1,000 rupee notes were demonetized. This column is also to be used for declaring cash payments in excess of Rs 2 lakh for repayment of any loan or settlement of credit card bills during this 50-day period. “The column is an attempt to match the cash deposits made post demonetisation with the annual income,” he said. While all credit cards are linked to permanent account number (PAN) of the holder, almost all loans by scheduled banks are also provided on furnishing of PAN.

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5. rcomLenders to Reliance Communications (RCom) has placed telecom company under a strategic debt restructuring exercise (SDR). An SDR is a debt-recovery programme under which lenders convert debt to equity and sell the business to new owners. Reserve Bank of India (RBI) rules require that banks get control of at least 51% shares in the company through debt conversion and sell the business within 18 months of initiation of SDR. However, RCom’s lenders have agreed to wait until seven months before they convert debt to equity. RCom has debts of over Rs 45,700 crore on its books and it intends to reduce this by Rs 25,000 crore through a merger of its mobile services unit with Aircel and a sale of its interest in the telecom tower business to Canada’s Brookfield. The company’s current market capitalisation is Rs 5,139 crore. This will be the largest-ever debt reduction by a company in the history of India.

F. INTERNATIONAL LAW UPDATE

globe1. WTO Negotiations on E-commerce: India has joined forces with Cuba to resist pressure from other members of the World Trade Organization to start negotiations on e-commerce rules. Australia, the EU, Norway, and China have stepped up their campaign to include e-commerce in the agenda for the year-end Ministerial meeting in Buenos Aires, and New Delhi is reaching out to countries that share its opposition to the move. At a recent meeting of the WTO’s goods council, India and Cuba took the stand that it was premature to discuss multilateral rule-making in e-commerce, given the digital divide among members. Several other members such as Australia, Switzerland, Norway, Brazil and Argentina, however, said that an agreement on e-commerce was necessary for the WTO to demonstrate its continued relevance.

Enormous pressure

“There is a pressure from both developed and developing countries to bring e-commerce formally on the agenda of the WTO negotiations,” the official said. “India opposes it because once discussions begin, members could try to include a lot of aspects into it, including market access. It, therefore, has to work together with like-minded countries like Cuba.” Cuba particularly took issue with suggestions to negotiate liberalization and market access in e-commerce and emphasized that there was no basis for doing so, he added. Electronic commerce was made a part of the WTO in 1998 but in a limited way. Members had agreed to give a temporary moratorium on import duties on digital transmissions. This moratorium is extended every two years. It was also decided to hold discussions on various aspects of e-commerce, but there was no understanding on negotiating rules.

The stakes in India

The e-commerce sector is extremely sensitive in India as the move to allow foreign investment into the e-retail sector has, so far, been strongly resisted by the owners of small stores who argue that it will disrupt their livelihoods. Allowing multilateral rule-making in the area could lead to political destabilization. The African countries and the least developed countries (LDCs) have not opposed discussions on e-commerce, but they insist that the focus is on the development dimension. Uganda, on behalf of the LDC Group, said that most of the proposals on the table fall outside the scope of the work program on e-commerce and that development should be the focus of e-commerce talks. South Africa, speaking on behalf of the African Group, similarly said it would like the Goods Council to take up issues that place the needs of developing countries and LDCs at its core.

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2. israel-woman-judgeIsrael has appointed the first-ever female judge to serve in the country’s sharia court system. The unanimous appointment of Hana Khatib, hailed by some Arab lawmakers as “historic,” was carried out by the Committee to Elect sharia judges, known as qadis, which is headed by Justice Minister Ayelet Shaked. Sharia courts in Israel deal with personal status issues for the Muslim community, such as marriage, divorce, conversion, inheritance and prevention of domestic violence. They have existed in what is now Israel since early Ottoman times and through the British Mandate and were recognized by the State of Israel upon its founding in 1948.

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3. rodrigo-duterte_F688F305FEF44CDD81AFD75A733335EDFilipino lawyer Jude Sabio filed a complaint against Filipino President Rodrigo Duterte accusing him of extrajudicial killings during his nationwide anti-drugs crackdown. The complaint was filed before the International Criminal Court (ICC) and asks the court to prosecute Duterte over his involvement in the Davao Death Squad. In an accompanying statement, Sabio accused the Duterte of “repeatedly, unchangingly and continuously” committing extrajudicial executions from his term as Mayor of Davao City through to his current presidency. Sabio is asking the ICC to charge Duterte and 11 senior government officials with crimes against humanity and to issue an arrest warrant for them. Over 8,000 people have been killed since Duterte took office last year over drug-related offenses.

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271767851  4. Roman Seleznev, the son of a member of the Russian Parliament, was sentenced for hacking into more than 500 US businesses, stealing then selling millions of credit card numbers. Seleznev was sentenced to 27 years, the longest-ever sentence for such a crime, and ordered to pay nearly $170 million in restitution. US District Judge Richard Jones took no leniency on Seleznev, despite Seleznev’s pleas for mercy.

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5.Screen Shot 2017-04-30 at 9.15.11 PM The Alabama Supreme Court upheld the September 2016 Court of the Judiciary decision to suspend Chief Justice Roy Moore for violation of the Cannons of Judicial Ethics by issuing orders contradicting the US Supreme Court’s recognition of same-sex marriage.


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6. 30BAIL-master768 A federal judge in Houston has overturned the county’s bail system for people charged with low-level crimes after finding that it disproportionately affected indigent residents and violated the Constitution. The judge, Lee H. Rosenthal of Federal District Court, ordered Harris County to stop keeping people who have been arrested on misdemeanor charges in jail because they cannot pay bail

7.1-aV9VrlcyFIbKFXGVA_T46w H1 B Visa: U.S. President Donald Trump signed an executive order for tightening the rules of the H-1B visa program to stop “visa abuses.” The executive order also called upon the Departments of Labour, Justice, Homeland Security, and State to take action “against fraud and abuse of our visa programs. H1 B Visa is a non-immigrant visa in the USA under the Immigration and Nationality Act Section 101 (a) 17 (H). A bill has now been re-introduced in the House of Representatives that seeks an exemption for foreign-born persons with an American Ph.D. in science, technology, engineering or mathematics from the limits on the number of employment-based green cards and H-1B visas awarded annually.

G. TRANSPORT & INFRASTRUCTURE LAW UPDATE

cars-india_story_647_040617022230_0410170410231. Proposed Motor Vehicle Amendment Bill doubles penalty: Lok Sabha has approved a bill for radical reforms in transport sector that will usher in multi-fold hike in fine for traffic violations, compensation of Rs. 5 lakh for grave injuries, and check bogus licences and vehicle theft. The bill, which seeks to amend nearly 30-year-old Motor Vehicle Act 1988, also calls for 100

a) The bill calls for 100 percent e-governance and will cap maximum liability for third party insurance at Rs. 10 lakh in case of death in a motor accident. The bill proposes a compensation of Rs. 5 lakh. This is not the upper limit. After getting this amount (the affected family) can withdraw the case or appeal. This (Rs 5 lakh) is being done to ensure that there are fewer court cases and immediate compensation is given. The minister also said that it would not be possible to increase the compensation in case of death to Rs.20 lakh as it would entail substantial hike in insurance premium. In the case of death in hit-and-run accidents, the bill provides for an eight-fold increase in compensation to Rs. 2 lakh.

b) The bill seeks to make services like issuance of licenses totally transparent and online and provides for punitive action against officials in case of delay in issuance of the document to eligible applicants. Under the new system, everyone will have to go to the licence issuing authority under a uniform procedure and if the licence is not issued in three days, the RTO will have to face action. A learner’s licence can be availed online sitting at home.

c) The government, he said, has already 786 black spots across the country, which are accident prone.

d) There is a provision in the bill under which if holes are found on roads, DPR designer and contractor would be held accountable.

e) The minister said that the proposal is on strengthening the network of trauma centres has also been received.

f) Euro VI emission norms, Gadkari added, would be made mandatory from April 1, 2020.

g)The bill provides for linking of driving licence and vehicle registration with Adhaar—based platform and heavy penalties for traffic violations.

h) The bill also provides for Aadhaar-based verification for grant of online services including learner’s licence. This would ensure integration of online services and also stop the creation of duplicate licences.

i) Stricter penalties have been proposed for high-risk offenses such as drunken driving, dangerous driving, overloading, non-adherence to safety norms by drivers (such as the use of seat belt, helmets).

j) The bill aims to provide for a national database of vehicles and driving licences that would help in safety and security and avoid malpractices.

k) It also provides specific timelines for processing of insurance claims. A ten-fold increase has been made in the amount of compensation awarded under a simplified process of claims disbursal wherein the family of an accident victim would get compensation of Rs. 5 lakh as a settlement within four months of the accident. Presently it takes at least four to five years for an award.

I. ENVIRONMENTAL LAW UPDATE

1. 451046-cowStringent Rules for Purchase of Cattle from the market for Slaughter: The Ministry of Environment, Forest, and Climate Change has notified the stringent ’Prevention of Cruelty to Animals (Regulation of Livestock Markets) Rules, 2017’ under the Prevention of Cruelty to Animals Act. The Centre’s decision to ban the sale and purchase of cattle from animal markets for slaughter. According to the notification, the member secretary of an animal market committee will have to ensure that no person brings a young animal to the animal market. “No person shall bring cattle to an animal market unless upon arrival he has furnished a written declaration signed by the owner of the cattle – stating the name and address of the owner of the cattle, with a copy of the photo identification proof. Giving details of the identification of the cattle and stating that the cattle has not been brought to market for sale for slaughter,” the notification said.

 J. CONSUMER FORUM UPDATE

1. jagologo (1)Compensation for Unscientifically designed Road Hump: In a landmark judgment, Karnataka’s State Commission has directed the city civic authority, Bengaluru Traffic Police and the Urban Development Department (UDD) to compensate Rs 22 lakh for an unscientifically-designed road hump that caused the death of a software professional nine years ago. 2-year-old Surya Prakash G Chavan died on February 23, 2008, after hitting a road hump near the BTM Layout bus stop. The Microland employee was riding a motorcycle back home from his office at midnight. He died on the way to the National Institue of Mental Health and Neurosciences (NIMHANS). Surya Prakash’s father, GM Chavan, filed a complaint with the police about the unscientific road hump and also for not providing the required indication that it exists. A principal bench of the Karnataka State Consumer Disputes Redressal Commission (KSCDRC), headed by its President Justice B S Indrakala, passed an order holding all the three respondents equally responsible for the accident. The bench directed the three government entities to jointly pay a compensation of Rs 12.7 lakh with an 8% interest (which comes to Rs 9.14 lakh) within eight weeks to Surya Prakash’s parents. [Curtsey: Times of India. June 4, 2017]

1. 10353648_800799473273412_1637951778603513749_nDelhi State Legal Services Authority (DSLSA) inviting all such survivors in the city for jobs. This is the first time that such jobs opportunities have been created and applications have been invited from acid attack survivors. The authority is offering 12 clerical positions with salaries from Rs 19,900 to Rs 63,200, according to the Seventh Pay Commission. However, it points out, “The recruitment against these posts is restricted to acid attack victims relating to such offences committed within the NCT of Delhi”. Published on May 20, the advertisement says that candidates between the age of 18 and 40 can apply within 30 days from the date of notice.

DSLSA acted on a letter written by the Delhi government’s department of women and child development that asked if acid attack survivors could be given jobs by relaxing rules for better participation. “These vacancies for lower divisional clerks are created for rehabilitation of acid attack victims and for their empowerment. Those survivors who have passed Class XII or equivalent exams are being preferred. However, candidates with a certificate of Class X or equivalent can also apply on the condition that they would complete Class XII within five years of their service. While 255 cases of acid attack were registered in 2014, it went up to 268 in 2015, according to official data. No official data was recorded before 2014.

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REFERENCES

This page is capturing news text from various newspapers. The source newspaper is available on our Facebook page. The source of images are:

  1. http://media.indiatimes.in/media/content/2015/Apr/indian_constitution_1430203320.jpg (Constitution of India)
  2. Langenberg Law Website (Papercraft on Family Law)
  3. India Today  (Symbolic Image of Cars)
  4. Fordham Law News (Globe)
Published :
April 29, 2017
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