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TRIPLE TALAQ BANNED, “HISTORIC JUSTICE DAY, 30 JULY 2019”
“Is it fair for a man to say “Talaq” thrice over the phone and a Muslim woman’s life gets ruined? This issue shouldn’t be politicized.” - NARENDRA MODI Introduction Is it right to punish women with words who didn’t commit a crime? 30 July 2019, is a historic day for Muslim women because the Triple Talaq Bill was successfully passed by the Indian Parliament as a Law to abolish the practice of Triple Talaq in India. It should have been passed by Parliament in 2002 When its first case came up in India. But then no one raised much voice against it, and in 2017, two Muslim feminist groups raised their voice for the abolition of Triple Talaq. One was Bebaak Collective, a prominent women’s campaign led by Hasina Khan. The other one was the Bhartiya Muslim Mahila Andolan (BMMA). Both demanded the abolition of the practice of Triple Talaq, so it was finally banned in 2019. I have discussed in this article why it was banned and what was it? In my opinion, everyone should know about it. In India, all religions have certain rules and regulations which are followed by individuals. Muslims also have such rules and regulations and one of them was Triple Talaq. Now the first question arises in mind that, What is a Triple Talaq? Triple Talaq is a ‘Divorce system’ that is used by Indian Muslims and folks from varied nations who believe in Islam. This divorce system provides the liberty to husband out of the affair of the wedding eventually or forthwith. In this divorce system, the husband ends his marriage simply by uttering the word Talaq 3 times to his wife. Talaq is an associate Muslim term that means the dissolution of a marriage. Once being it’s spoken by the husband the marriage stands to void. Triple Talaq permits a Muslim man to wrongfully divorce his married wife by using the word talaq. And the husband doesn't have to be compelled to cite a reason for divorce. It is applicable in each sort, verbal and written. This type of instant divorce is additionally known as Talaq-E-BIDDAT. There are different types of Talaqs in the Muslim community which they use for the dissolution of a marriage. Types of Talaq: 1) Talaq-E-BIDDAT 2) Talaq-E-SUNNAT, it is sub-divided into (a) Talaq-E-HASAN (b) Talaq-E-AHSAN Talaq-E-HASAN: Most of the Indian Muslims prefer to use Talaq-E-HASAN, in this type of talaq the word talaq is pronounced three times after the menstrual cycle. The husband has to make a declaration of talaq, and then wait for the menstrual cycle to pronounce another pronouncement. The first and second pronunciation may be canceled by the husband if he cancels, either explicitly or by resuming conjugated relations, the talaq becomes ineffective. But if no repeal is made after the first or second declaration, then the husband must make the third declaration in the third term so that the talaq becomes irreversible and the marriage is dissolved. Talaq-E-AHSAN: In this type of Talaq, once the Talaq has been pronounced by the husband, then there is an iddat period of three months to factor in the woman's three menstrual cycles. This time is for reconciliation and mediation. During this period, if there is any type of coitus between husband and wife, the talaq is considered to be void. Talaq-E-BIDDAT: It is completely different. It allows men to pronounce talaq three times in one sitting, it is applicable in each sort, verbal and written. Thereafter even if the husband is in a hurry to consider his own decision, the divorce remains irreversible. There is no time given for mutual settlement. And a divorced woman could not remarry her divorced husband unless she first married to another man, this practice called Nikah Halala. Triple Talaq Bill In 2017 Muslim women, Bebaak Collective a prominent women’s campaign, and Bhartiya Muslim Mahila Andolan raised their voices in front of the Central Government and demanded to abolish the practice of Triple Talaq immediately. I think they were all inspired by Robert Tew’s quote “The struggle you're in today is developing the strength you need for tomorrow. Don't give up.” And from then on, the central government began to find a solution to the problem. The Government formulated a bill and introduced the bill in the Parliament after the 100 cases of Triple Talaq in India. On, 17 August 2017 in the case of Shayara Bano Vs Union of India & Ors. The Supreme Court of India described Triple Talaq as unconstitutional and many social, religious, and legal observations were also brought against the practice of Triple Talaq. This was the first victory of Muslim women and all support groups. The male population of Islamic culture had made much noise against the Supreme court’s order. Even after the Order of the Supreme court, it was being used by Indian Muslims. Indian women are facing persecution from the olden times and after the judgment was given by the Supreme Court, they faced more persecution. And based on this, Triple Talaq Bill had been immediately introduced in the Indian parliament to void the practices of Triple Talaq. The bill was passed by Lok Sabha on 28 Dec 2018 and after getting the presidential assent the Bill declared the practice of Triple Talaq as a cognizable and non-bailable offense and maximum three years sentence and fine. A husband declaring talaq thrice will be imprisoned for up to three years along with a fine. This was the second victory, But the bill was only passed by the Lok Sabha and no one took it seriously and to make it in law, the bill replaced an ordinance promulgated on February 21, 2019, and the Rajya Sabha passed the Bill, with 99 votes in its favor and 84 against it. And it was finally passed by the Indian parliament as a law on 30th July 2019. That’s why 30 July 2019 is now a historic day for Indian Muslim women, and they finally achieved what they want. And from 01st august 2019, it had become a law, and Clause 3 in Chapter 2 of the Bill declares that Triple Talaq given in the form of verbal, written and digital or any form, deems to be void and it is illegal to practice. And Clause 6 in Chapter 3 of the Bill states that a married Muslim woman shall be entitled to custody of her minor children in the event of pronouncement of talaq by her husband, in such manner as may be determined by the Magistrate. Consistent with the census 2011 Triple Talaq divorce procedure affected around 8% of Indian ladies, particularly ladies over the age of sixty years. Triple talaq does not follow the basic Rule of Gender Equality and Human Rights. As a result of this, questions are always arising in the dignity of Muslim ladies. Triple Talaq has no mention in the Quran however it's legal in Sunni Islamic jurisprudence, albeit the practice has existed for decades. A Landmark case in which Triple Talaq declared as Unconstitutional Shayara Bano Vs Union of India & Ors Case Description: A Constitution Bench of 5 Judges has declared the practice of instantaneous Triple Talaq as unconstitutional with a majority of 3:2. Issues Involved as follow: 1. Does the practice of Triple Talaq (Talaq-e-biddat) is an essential practice of Islam? 2. Does the practice of Triple Talaq violate any fundamental right? Background of the Case: On 22nd August 2017, the Bench of 5 Judges from different religions- Justice UU Lalit, a Hindu and Justice Abdul Nazeer, a Muslim, Chief Justice Khehar, a Sikh and Justice Kurian Joseph, a Catholic, Justice RF Nariman, a Parsi of the Supreme Court pronounced its decision in the Triple Talaq Case. Bench declared the practice of instant Triple Talaq as unconstitutional with a majority of 3:2. Rizwan Ahmed has married to Shayara Bano 15 years ago. In 2016, Rizwan Ahmed divorced Shayara Bano through the instant Triple Talaq (Talaq-e-biddat). She filed a Writ Petition (C) No. 118 in the Supreme Court of three practices- Nikah-Halala, Talaq-e-biddat, and Polygamy as unconstitutional as these practices violate the Article 14, 15(1), 21, 25 of the Constitution. Talaq-e-Biddat is a practice that gives a man the right to divorce his wife by pronouncing Talaq thrice at a time without the consent of his wife. Polygamy is a practice that allows Muslim men to have more than one wife. And Nikah halala is a practice in which a divorced woman who wishes to remarry her divorced husband must marry and divorce a second husband before returning to her first husband. On 16th February 2017, the Supreme Court asked Shayara Bano, Union of India and various women’s rights bodies and the All India Muslim Personal Law Board (AIMPLB) to give the written submissions on the issues of Talaq-e- biddat, Nikah-Halala, and Polygamy. The Union of India and the Women’s rights organizations supported Ms. Bano’s plea. The All India Muslim Personal Law Board has argued that these are essential practices of the Islamic religion and protected under Article 25 of the Constitution. After accepting Shayara Bano’s petition, the Supreme Court formed a constitutional bench of 5-judge from different religions on 30th March 2017. On 11th May 2017, the first hearing was held. On 22nd August 2017, the 5 Judge Bench declared the practice of Triple Talaq as unconstitutional with a majority of 3:2. The Supreme Court had mentioned herein that the Muslim Personal Law (Shariat) Application Act, 1937 was enacted to awaken associate finish all the unholy, oppressive, and discriminatory customs and usages within the Muslim community. What Muslim personal law says? Indian Muslims have been following the Muslim Personal Law (Shariat) Application Act, 1937 from decades. This law deals with Marriage, Succession, Inheritance, and Charities among Muslims. Section 5 of the Shariat Act, 1937 concerns Muslim women seeking a divorce. Later, Section 5 was repealed and replaced by the Dissolution of Muslim Marriages Act 1939. Now Muslim women can ask for a divorce in a court of law. The Dissolution of Muslim Marriages Act, 1939 deals with the circumstances in which a Muslim woman can obtain a divorce. A woman can seek divorce under the following circumstances: - · If a husband has more than one wife, or he does not treat her equally according to the Quran, · or bears any other grounds valid for the dissolution of marriages under Muslim law. So, what has Shamim Ara vs State of U.P. & Ors case given us on 1 October 2002? Shamim Ara Judgement is the first case that wants to ban the practice of Triple Talaq. But this case failed to make that happen but Shayara Bano Vs Union of India & Ors did that. But Shamim Ara vs State of U.P & Ors makes it clear that Talaq giving by a letter, WhatsApp, skype, phone and text messages or email or through the Qazi, etc. isn't valid. The judgment also laid down the subsequent procedure for a Muslim husband to divorce his wife: · Talaq has to be pronounced before witnesses. It cannot be pronounced in a single sitting and must be preceded by efforts of arbitration and reconciliation by mediators appointed by both sides, who must explore the possibility of reconciliation by resolving the issues.
Only if these cannot be resolved, then talaq should be recited as a last resort. · The talaq is to be pronounced on three sittings over three months. These months are meant to allow the couple to reflect on their relationship and not come to a hasty conclusion. During this period, the woman has the right to residence and maintenance from the husband. · While reciting the talaq, the husband must be in his senses i.e. He should not be drunk nor in an angry mental state, because during that time he loses his sense of right and wrong. · A woman should not be menstruating or pregnant while pronouncing talaq. Before pronouncing the talaq, the husband must fulfill his obligations to his wife, such as returning the Mehr and goods, paying her maintenance for the iddat period (three months), and lumping her in for her future needs. · In terms of allowance, a Muslim woman is entitled to seek allowance from her husband for herself and her dependent children. In case there is cohabitation during this time, the Talaq would be invalid. If the husband fails to comply with his economic obligations, the wife can file for relief under the extent of the Muslim Women (Protection of Rights on Divorce) Act 1986 (MWA). After Ban on Triple Talaq In India, cases have appeared in courts against Triple Talaq, in which Muslim husbands have divorced their wives by giving a letter, WhatsApp, skype, phone, and text messages of ‘Talaq’ thrice to their wives. These types of cases made their ways to the courts. Under section 4 of The Muslim Women (Protection of Rights on Marriage) Act 2019 these cases were registered. We tend to cheer the Supreme Court’s judgment in Shayara Bano Vs Union of India & Ors in which the practice of Triple Talaq declared as unconstitutional. However, in Gujarat one woman attempted suicide, her husband divorced her by uttering Triple Talaq even after the bill was passed in the Parliament, she was admitted to a hospital in Ahmedabad. She survived; this incident happened a day after when the Rajya Sabha passed the historic Muslim women (Protection of Rights on Marriage), Bill. I do not understand from where these guys get this type of guts to punish some innocent and ruin their life. The triple talaq in the Muslim community is now a criminal offense that will invite 3 years of imprisonment. The radicals used a nationwide campaign to whitewash non-public law issues - to protect Shariat, not women's dignity. The All Republic of India Muslim Personal Law Board (AIMPLB) had also secured a social boycott of men, who were resorting to triple talaq and contemporary Nikahnama, though none have so far supported it, On the other hand, the government tried to increase the support of Muslim women against the criminalization of Muslim men. Public campaigns such as Beti Bachao have been used to protect girls and women, especially the oppressed Muslim women from persecutions. Conclusion Oscar Wilde said, “Women have a much better time than men in this world; there are far more things forbidden to them.” Getting respect is the fundamental right of every person. The abolition of the triple talaq means that in the future no Muslim woman will face discrimination and injustice in their lives. The practice of triple talaq has always been seen by the entire world as an argument, the dignity of Muslim women is always questioned. It had been seen the dominance of men over women. There are some countries like Pakistan, Indonesia, Turkey which have stopped the practice of triple talaq. Even in progressive circles, there is a belief that a Muslim man can divorce his wife and after that, she is free from any right. Some women were brutalized in their marriages and are happy to accept Talaq to be free from an oppressive marriage. The whole home is relying on women, she is someone’s mother, sister, and wife in the family. She puts the house together, takes care of everyone within the family, but that does not mean she is a maid of the house. Is it right to treat her in a discriminative way? I realize that the majority of women are reluctant to approach the police and Media. They seek a life free of violence and want to secure their right to maintenance and support. Authored by Suraj Vithal Parit
Feminism- A Befuddled Guise
By Feminism, we mean ‘Equality.’ Equality for both men and women. Feminism doesn't mean Men hatred. It never means this. According to me, the most appropriate word that can be used is Equalitarianism instead of Feminism. As we all know, we live in a society where there is existence of preference is given to son instead of daughter. As one of the very recent examples I want to give is in our id cards, Aadhaar card, etc.. in each of these aforementioned, before marriage our father's name is written and after marriage husband’s name is written, why??? A BIG QUESTION. It’s about the man privilege. As second example is that at night while walking how many men looks behind to check?? I talked to many of men and boys and you know what I get that some of them looks behind not for the fear of being get raped but for kidnapped for any other reason... whereas at night if a girl is walking she gets the fear of being get raped.... this is a drastic difference that is evident. Uneducated women get more domestic violence as compared to educated women in our society so there is a big role of education in one's life.... Education is the very good tool for over this violation prevailing in society. As one's gets to know about her rights and duties and can make them more vigilant citizen which can be very helpful to women. By education women can stand against any cruelty done with them and knows where to go and what to do in such cases. This all can be possible by ''EDUCATION''. Education really gives confidence and independence to anyone out there. In some of the areas, still today education is a taboo for girls as some of the family opinion is that if they make their daughters educated it’s not beneficial for them because later on fruit will be eaten by their in-laws and not by them so families thought to not to educate girls and instead of sending girls to schools and colleges they send them to earn the money by doing household work or wants to help their mothers in home. This is the main problem exists.... I would like to tell about some of the superheroes which made big changes in our society for women: * JYOTIPA PULE: She is the first who opened the school in India for girls and fought for women's education in India. * BHAVRI DEVI: She is Dalit social worker in Rajasthan. She is the first woman who was behind the enactment of law of sexual harassment at workplace. Then through Vishakha case, we get the guidelines in sexual harassment at workplace. It gives the voice to women stand against it. There was more number of cases highlighted of DOWRY in backward areas. As women are harassed by her in-laws for dowry and if some of women fail to bring dowry, then they face domestic violence. This type of practice not only prevails in rural region, or among uneducated people but this also prevails in urban cities and among educated people also. I belong to Muzaffarnagar being an urban area where recently I have seen in my colony in one of the family where in-laws demanded for dowry and then that woman failed to bring and after that her in-laws torture her daily and thereafter sometime we got to know about the whole circumstance and know about that woman commits suicide. This is happening in 21st century itself.... what a shame to humanity. ME TOO MOVEMENT: It is a movement against sexual harassment and sexual abuse where people publicize their allegations of sex crimes by powerful and prominent men. As many women suffers from sexual harassment at workplace so this movement started. In October, 2018, in the entertainment industry of Bollywood, centered in Mumbai, when actress Tanushree Dutta accused Nana Patekar of sexual harassment. Sexual harassment is a common problem affecting all women in this world irrespective of the profession that they are in, but legal system is sleeping and so they fail in providing them security. It about the male dominance over females and it is used to remind women that they are weaker than men. There are many developed countries like USA, Sweden, etc. in which women are still facing discrimination. And in today’s arena, domestic violence still exists in world. We should collectively raise our hands towards this cruelty and take our initiatives to change our society. ALWAYS REMEMBER NEVER TOLERATE THE VIOLENCE AND ALWAYS STAND AGAINST IT………. I want to end up by quote of an African American Author called Chimananda ngozi adichie who says: WE MUST RAISE OUR DAUGHTERS DIFFERENTLY, WE MUST ALSO RAISE OUR SONS DIFFERENTLY. -Riya Goel
India’s Three New Agricultural Ordinances
India’s Three New Agricultural Ordinances - Historic and Liberal or another pathway to exploitation of farmers? Introduction On 3rd June, 2020, three new ordinances on agriculture were approved in the cabinet meeting which came into immediate effect on 5th June, 2020, namely — Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Ordinance; Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Ordinance; and the Essential Commodities (Amendment) Ordinance. Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Ordinance, 2020 As per the GOI, this ordinance has been introduced to minimise the role of the Agricultural Produce Market Committee (APMC) markets, created by state governments to regulate inter and intra-state trades, and instead, give the farmers freedom to trade anywhere outside the established APMC market yards. Issues - The defects in the APMCs, such as lack of infrastructure, exploitation of poor farmers, malpractices of trades, etc., have always been in discussion and on basis of them, it seemed to the Central Government that replacing the system of buyer purchasing farmers’ produce from regulated markets with freedom to purchase from anywhere outside these markets will solve the problem, however, the same is not true. Many small-scale farmers depend on this system. Their voice will be ignored in the noise of big companies and well-settled farmers. Moreover, the already-existing problem of not being able to determine fair prices of crops due to government intervention cannot be done away with contract farming. There is a huge possibility that a huge proportion of farmers will continue being exploited under the new system as well. Doing away with the APMCs will also cause the states to lose vital revenue and as many government job posts of these committees will be extinguished, it will further create more unemployment. Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Ordinance This ordinance mainly deals with contract farming. The provisions of this ordinance will override all state APMC laws. Further, it also provides from exemption from all existing state laws, which regulated sale and purchase of the farming produce. For dispute settlement, a provision for settlement by conciliation has been provided. Issues - Giving a legal sanction to contract farming gives a direct license to corporate companies to enter into the field of agriculture. This might flourish the agriculture sector but at the same time, exploit the farmers. The farmers will have to depend on the big corporate companies for everything, from seeds and fertilisers to selling these crops. Contractual procedures are long and the big companies can in no way focus on each farmer as a priority, whereas farmers, at times, require money in hand. Since most of the farmers of India are not very educated and aware, will these big corporate companies go door to door to contract with the farmers, especially the poor ones who do not have necessary resources? Who will be responsible to ensure that these farmers are not being exploited? Moreover, based on the already-rising prices of everything in India, input cost will be more and hence, the farmers will require more capital. Furthermore, since corporate companies solely focus on profit-making, the wellbeing of these farmers will be ignored. The Essential Commodities(Amendment) Ordinance, 2020 The original agriculture laws were enacted with the problem of food scarcity in mind and have proven to be extremely helpful to India for building food stocks. As per the June 2020 report of the Food Corporation of India - 832.69 Lakh tonnes of rice and wheat were calculated in stock. However, this amendment might protect the prices of the crops from falling, but also might lead to the problem of over-storing and black marketing of food. Only stockists and traders will benefit from it. Other Issues It has been argued that none of the Farmers Welfare Organisations that actively work in this field were consulted before issuing these ordinances, and many of them are blatantly against them. In fact, none of the states had a say in them. It is also being seen as a Constitutional overreach by some political leaders since it threatens the federal structure of the Constitution. Ordinance-making power is subject to judicial review and there is a strong possibility that the constitutional validity of these Ordinances might be challenged. There is no debate on the point that the already-existing laws that governed the agriculture sector were outdated and required a review. However, the urgency to pass these laws through the mode of ordinances, without waiting for Parliament to resume in matter of a few months is still unclear. The argument in this regard that so was necessary to deal with the pandemic is baseless as nothing in these ordinances refer, either directly or indirectly to the COVID-related issues. Conclusion It is pertinent to note that in order to become an Act, these Ordinances will have to be approved by the Parliament within 6 weeks from the date of the first session, after the house reassembles. However, on studying these ordinances with its practical aspects as per present-day conditions, it can be concluded that these reforms do not help the farmer-class in any way, as the problems faced by them in the previous system are still persistent in the new system. However, it might help with increasing productivity. But yet, these reforms are more beneficial to the Corporate sector than to the farmer-class. References 1. https://apps.fas.usda.gov/newgainapi/api/Report/DownloadReportByFileName?fileName=Government%20of%20India%20Issues%20Three%20Ordinances%20Ushering%20in%20Major%20Agricultural%20Market%20Reforms_New%20Delhi_India_06-27-2020 2. http://www.agricoop.nic.in/sites/default/files/219745.pdf 3. http://www.agricoop.nic.in/sites/default/files/219750.pdf 4. https://www.thehindu.com/news/national/other-states/centres-agriculture-ordinance-undermines-federal-structure/article31762066.ece 5. http://fci.gov.in/stocks.php?view=46 Authored by- Harnoordeep Kaur College - Rayat College of Law, Ropar, Punjab
Legislative Drafting- A Legal Salience
Introduction to legal practice Most cultivated countries are well cultivated within the legislative drafting era. However, there is not much theoretical writing about this. As a result, individuals outside the profession of draftsman are not alert to the miseries and miseries that result from this discipline, thrill and rejection, prejudices, and such tactics. Benefits of legislative drafting 1. Saves time for Parliament There are many heavy activities that the government does. Should worry Therefore the power of the managing branch has to be delegated to resolve the complexity and volume of the house of the legislature. The reason for this may be that it lacks or lacks the ability to legislate for regulation. Therefore, the creation of delegated legislation should be necessary to avoid getting bogged down in the burden of details. 2. Enables flexibility Toughness in administration is created by law, but manager law is more suited to changing circumstances. Thus, it will sometimes be useful within the branches of administration for changes and where technological developments are taking place on a day to day basis. 3. Dealing with emergencies Manager agencies should be better at dealing with potential contingencies with the necessary discretion. Such contingency may result from the instrumentation of laws because the legislature has been unable to anticipate or allocate for all. 4. Consultation with affected interests ended To make the law effective, it is important to have prior consultation with respect to the interests affected. This may be because the rules can be drafted and often a convention is not allowed between vested interests and thus the government. This may be affected and will end within the agreement for voluntary compliance. 5. Daily MLA Since a legislator is not aware of the difficulties of stylish legislation, it is important to note that this legislator passes the bill in basic form and leaves the details to be completed by the manager branch. 6. Impact of Science and Technology The effects of science and technology have multiplied the functions of the stylish state. Thus, the power of the legislature has increased considerably. Because it is not capable of handling powers on escalation, delegation of power in law making has been delegated to the manager. 7. Establishes new standard Growth within delegated legislation can likewise be attributed to the need to set new standards in the social interest. Thus, expert brains are needed to ensure that the minimum nationality in respect of health education, housing and sanitation is due to everyone. 8. Manager Law Specialist provides for the law The rules are being drafted by experts with appropriate conditions in the appropriate departments. With this practice, they are prepared to do a better job than the members of the legislature. Disadvantages of legislative drafting 1. Undemocratic Procedures Legislation arises because of undemocratic processes and procedures. In the context of by-laws, it is logical to consider those who are created by elected bodies. Thus, they will make byelaws only in accordance with the current law because they are empowered to support a law of the government and do so. 2. Apparent lack of debate The apparent lack of debate and publicity that should be associated with the dissemination of secondary legislation is also worth noting. The law should also be an additional subject of some oral presentation, as the law is delegated by legislation with a much clearer and more complex meaning, which is not in a position that is not easy to understand or accessible by the people. 3. Sub-delegation problem The provocation of sub-delegation can occur when the bodies responsible for the creation of the law have not agreed to directly house it. Thus, the creation of a sub-delegation would give the task to other parties. Consequently, this can create problems because the opposite parties will not be held accountable in the same manner as the lawmakers. 4. Dictionary of Delegated Legislation Another problem when it involves representative legislation, a term that is capable of being vague and technical in nature, should be difficult to understand. This was a property shared with the Acts of Parliament. 5. Dependence of persons claiming to have reviewed the law Another limitation about delegated legislation is that it renders courts unable to review such laws. Thus, it would become dependent on those who claimed and drew the attention of the courts. Since the courts have no general authority to review such legislation, this is a problem. The reason for this may be that the strategy will be time consuming and expensive. More so, this case can be reviewed only when there is money specified in individual claims. As a result, the effectiveness of the review for measuring this condition must be severely limited. 6. Effect of court Compared to primary law, the term delegated legislation is influenced by the court. Therefore, they will repeal the said law as it is done by those who are not directly elected. Thus, it may limit the control of their power. Nevertheless, it is up to the people who make the claims that they take the cases to the consideration of the courts. PURPOSE OF THIS DOCUMENT The purpose of this document is to describe the writing style and conventions used by the central office of the legislative attorney to facilitate communication and collaboration between the attorney for the office and its clients. FORMS OF LITIGATION There are 4 different styles of legislation. Two of them (bills and joint resolutions) are used to make laws, while the two opposites (simple resolutions and concurrent resolutions) are used for matters of administration of Congress and precise considerations of non-binding policies. There are no joint resolutions to propose constitutional amendments for the ratification of the states. To declare a bill or legislation, Section 7 of Article I of the Constitution requires that both houses of Congress approve it and present it to the President. If the President signs it, it will become law, if the President repeals it and Congress overcomes the veto by two-thirds of the votes, or if ten days pass if the President does not take action (while Congress is in session). Simple resolutions and concurrent resolutions are not presented to the President because they are not becoming law. Joint resolutions proposing constitutional amendments are governed by Article V of the Constitution, which does not require a presentation to the President. There is no legal difference between a law that arises as an invoice and a law that arises as a declaration. Congress chooses between bills and joint resolutions using conventions that have evolved over time for the issue. Bills are more common than joint resolutions, but a good example of a statement may be the resolution to make continuous assignments beyond the top of a perennial when the regular appropriation bill for the year is not followed. next ("Continuing Resolution") "CR") Another difference between the bill and the joint proposals is stylistic. When a bill is passed in a House of Congress, its designation changes from "Bill A" to "in action," while it has not yet become law. A "joint resolution" has the same designation even after its approval by both houses and its enactment. -Aman kumar Team Lawtsapp
A NATION WHO CANNOT SPEAK FOR HERSELF IS RAISING ITS VOICE FOR ANOTHER NATION- HYPOCRISY IN INDIA
The enforcement of the Constitution of India in 1950 marked the end of the era of discrimination. After the report of Mandal Commission, reservations were introduced for educational institution, government jobs and government bodies. Despite these measures inequalities are still prevalent in modern India. Caste system is one of the deepest roots of India’s cultural, social, political etc., foundation. The entire political machinery is fuelled by the caste system. The fate of a party is decided by the policy made by them for a particular caste. In India various political parties represent the interest of certain caste groups. Discrimination on the basis of caste is perennial in India. Recently, an incident occurred in Nainital, Uttarakhand, wherein a young man, aged 23 years, refused to consume the food and water which were touched by a Dalit woman(1). Besides this, there are various cases of violence powered by the all consuming fire of discriminating against certain castes. For instance, an incident took place on April 20, 2020 a female doctor based out of AIIMS attempted to commit suicide due to the harassment that she had to encounter on the basis of caste(2). In 2018, some Dalits protested against the so called upper class, in retaliation people who considered themselves of being of the upper cast raided and laid siege to a village of Dalits, thereby killing three Dalits and injuring six more(3). According to a study(4) conducted by Dalberg Advisors (2017) & supported by the Gates Foundation it found that 96% of five million people involved in sanitation work belong to the lower caste communities. Regardless of the 2013 law which prohibited the employment of ‘manual scavengers’, a survey conducted by the government identified 54,130 people engaged in this job as of July, 2019. These are the very people who have been subjected to the evils of untouchability and have been segregated and ostracised in the name of caste and community. Regardless of the existence of Article 15 and 17 of the Constitution of India, 1950 which talk about prohibition of discrimination on certain grounds and abolishment of the practice of untouchability, the evil practice remains de rigueur in India. It can be easily traced in our surroundings where servants who usually belong to lower castes are not allowed to sit on the same furniture and not to eat in the same utensils as other members of the house. Even during this pandemic, dalits are also being denied access to food rations and are being beaten up on raising their voices. In a recent video that went viral, a group of poor lower caste people were seen begging for food and rations and one of them had stated that to die would be better than what they have been facing in these testing times. Not just the caste system, discrimination has also casted its evil eye towards the criteria of gender, race, creed, religion and has led to the steady rise of sexism, racial discrimination etc. For instance, recently, the citizens from all over the world have arisen in an uproar against the death of George Floyd, who was brutally killed by a cop as a consequence of racial discrimination. “I can’t breathe” was what he uttered and what has become a “war-cry” for the protestors all over the world. According to an NGO and a study by the Karnataka State Women's University conducted in 2018, it has been found that there are more than 80,000 Devdasi(5) women in all. During this novel COVID-19 spread, it is reported that the North-Eastern students of ‘Delhi University’ (DU) are being addressed as Corona-virus, because they resemble the Chinese people in physical features. Recently, such North Eastern students have also ‘alleged’ that they have been victims of facing racial slurs like “chinki”, “momo”, “Chinese”(6) as well. When India, as a nation is silent towards local and “causal” discrimination, on what grounds and authority is it protesting or raising its voice in the favour of the “Black Lives Matter” (BLM) campaign which has caught wind after the death of George Floyd as aforementioned. On hearing the news of the murder of a man of colour in a country like America, the entire social media was flooded with innumerable hashtags, countless movements and protests raising voice against racism were led by the citizens all over the world. Be it a person of the upper caste or lower caste, be it a person of high status or a middle class person, everyone has raised their voice in unison against such an evil practice as Racial discrimination. How hypocritical is this? Our beloved celebrities endorse fairness creams and contribute to unrealistic beauty standards openly and on the other hand criticize racism in the west and funnily enough on the topic of discrimination based on the colour of a human’s skin. Is such pseudo anti racist propaganda acceptable? If yes, then why? Why we are crying about racism in US, when we were silent when minorities were being killed in the name of race and religion in our own country? Where were we when riots were taking place during communal violence 2020? We take the pledge that “India is my country, all Indians are my brothers and sisters”, but where are we when one of our sisters are subjected to evils like domestic violence rape, sexual harassment at workplace, discrimination on the grounds of sex, unequal pay? Where are we when our brothers are killed in anti Muslim or anti Hindu riots in the name of religion? The day these questions are answered, is the day India will rise from the ashes, anew. -Simran Chauhan Delhi Metropolitan Education 3rd year (6th semester)
“Need of Transformation in Education”
Education plays a vital role in one's life. It makes the person more confident, knowledgeable and well informed. From birth and till death we all humans learn different things from our family, school, friends, colleges, workplace etc. Learning is a never ending process. We can't learn everything in the four walls of the classroom as we have to go beyond that for exploring more things. I want to make you aware of one of Gandhi ji's quotes: "Knowledge gained through experience is far superior and many times more useful than bookish knowledge." Knowledge is having the right answer but Intelligence is having the right question. Present Scenario of Education is more grounded on Bookish knowledge than Practical knowledge. As per my opinion that is one of the worst sides of our Education system. Most of the students just mug up the things instead of learning them in a true sense. Cramming things exists for a very short period of time however, if we learn the things it exists long. Students are learning the lessons from the books and not learning anything in practical life. As schools must prefer more on Practical Study rather than Bookish study as practical knowledge provides you experience and offers you new opportunities, makes you more confident and provides you different skills to the students to the end. In most of the schools what I feel is as a student we always used to do bookish study and we never paid our attention on things such as Debates, Club activities, Speeches, many different competitions, mock trials, MUN and the most important thing is our communication skills. These things are really very important in a student life. As personally, I never was taught these things in my school and besides that I never gave attention to these important things in my school time. In school time, we are never asked to pay attention towards our communication skills and vocabulary which later become an obstacle for most of the students like us. When we enter the college, most of the students find it difficult to cope with the new atmosphere because there are students from different backgrounds and possess quite excellent communication skills and are more experienced by exploring different fields. So what we can learn from that: ∙ There should be more focus on practical aspects and learning. ∙ Students should work more on communication skill sets. ∙ Participate more in co-curriculum activities like debates, moots, speeches etc as it gives you more experience in real life. ∙ Schools should organize Extempore (it means without preparation just speak on a particular given topic). This is really worth it. ∙ Schools should organize one class lecture in a week in which social issues should be discussed and students should be given a chance to speak on social issues. Secondly, the main thing which I would like to convey is “CAREER COUNSELLING”. Career counselling is very important for students. Till now, this does not prevail in our schools for lower classes. Here career counselling stands for when students complete their class 12th, they have to decide what they will pursue further only then career counselling is a must affair, in which there are perfectionist counsellors who aware the students about what different courses exist. This helps the student to know about the different courses that exist and then the student can choose the right and best course for herself or himself. Basically in India most of the students and parents are aware about only some particular and traditional courses like engineering, medical, Law, and teaching, BBA, CA etc and have very less knowledge about some other new courses like Media, Bachelors in economics, Event management etc. and due to lack of knowledge parents prefer their children some particular courses which they know. By which students find it hard to explore more and new courses. That is why, career counselling is one of the most important things that every student should go through. As it knocks new opportunities. Finally, I want to end by saying please focus more on Practical study than Bookish study, it will help you to explore more new things opportunities. Rather than mug up things just try to understand the concept. This helps one to live a life in a different way. As theoretical study may help to succeed in a test paper but isn't able to succeed in the paper of your life. Authored by RIYA GOEL
ONLINE PRIVACY LAW- A Prime Concern
WHAT IS THE DEFINITION OF ONLINE PRIVACY? The definition of online data protection is the level of data protection for a person who is connected to the Internet. It covers the level of online security available for personal and financial information, communication and preferences. Internet users often try to improve online privacy with antivirus software, choose secure passwords, disable tracking, check website security, and choose more stringent privacy policies. Online privacy risks range from phishing scams to malware, while website security issues can lead to identity theft. WHAT DOES DATA PROTECTION MEAN ON A COMPUTER? THE INTERNET? The complex problem of data protection of computers concerns the use, collection, transfer and storage of your personal data on your personal devices and on the Internet. Personal information about your habits, purchases, and location can be collected from your phone, GPS, and other devices and possibly shared with the third parties as well. Internet and device users have the right to request the use of the information and to view online privacy policies. What can be done with my data? A complete record of a person can legally earn a nice penny. There are now companies known as "data brokers" that collect and store data from millions of people, regardless of whether they analyze, pack and sell it without the user's knowledge or without their permission. Data brokers collect and sell information to other companies for a variety of reasons, including targeted advertising, credit risk assessment, and direct marketing. Fortunately, this data is generally anonymized and does not contain any personal data. INTERNET PRIVACY LAWS Cyber threats come from many sources, each of which tries to obtain personal information (IP) for profit or use. With the increasing complexity of the interventions, the necessary regulatory and internal protective measures are increasingly required. Data protection on the Internet is a subset of the larger world of data protection, which usually includes the collection, use and secure storage of IP addresses. Data protection on the Internet mainly concerns the threat to intellectual property on the Internet through tracking, data collection, data exchange and cyber security threats. A study by the Pew Research Institute found that Internet intellectual property control is "very important" for 74% of Americans. According to another Pew study, 86% of Americans have taken steps to protect their privacy - delete cookies, encrypt emails, and protect their IP addresses. Digital fingerprints are everywhere. Whether you visit a website, enter your credit or debit card information, open an account, enter your email address, fill out online forms, post them on social media, save photos or documents in The cloud storage and share personal information in cyberspace. The question arises who gets the intended recipient or has access to the information that you provide? Will it be shared with other parties? Your POI may be published unexpectedly or unknown. Your information can be compromised because even the best information security programs are not 100% guaranteed. The risk of privacy breach on the Internet has increased considerably over the years. There is no single law to protect online privacy. Instead, a number of federal and state laws apply. Some important federal laws on online data protection are: 1.The Federal Trade Commission Act (FTC)  - regulates unfair or misleading trading practices. The FTC is the most important federal regulatory authority in the area of privacy and takes coercive measures against companies. This includes non-compliance with published data protection guidelines and inadequate protection of personal data. 2.Electronic Communications Privacy Act (ECPA)  - protects certain wired, oral and electronic communications from unauthorized interception, access, use, and disclosure. 3.Computer Fraud & Abuse Act (CFAA)  - makes certain computer activities illegal, which include unauthorized access to a computer to obtain certain information, to defraud or receive something valuable, to transmit harmful material or to manipulate words. The law was changed six times till now. 4.The Children's Online Privacy Protection Act (COPPA) -requires certain websites and online service providers to obtain verifiable parental consent before collecting, using, or disclosing personal information from minors under the age of 13. In addition, websites need to collect online privacy policies, collect only the necessary personal information, and establish and maintain adequate security measures. 5.Control of Attack on Unsolicited Pornography and Marketing (CAN-SPAM Act)  - regulates the sending of unsolicited commercial emails and prohibits misleading header information and misleading subject lines. Senders must also disclose certain information, include a valid opt-out mechanism, and impose civil and criminal penalties for violations. 6.Financial Services Modernization Act (GLBA)  - regulates the collection, use and disclosure of personal data collected or stored by financial institutions, and requires customer communications and a written information security program. 7.Fair and Accurate Credit Transactions Act (FACTA)  - requires financial institutions and creditors to maintain written identity theft prevention programs. Here are five of the most significant online threats to data privacy coming from the web and best practices to handle them: 1.Unsafe practices when surfing the Internet Most of the time users don't check the websites they visit that are secured or not. There are often signs that the websites you visit are malicious and request your IP address: free offers, shortened URLs, pages that are socially designed to trick users into creating an account and downloading malware from them. What you can do? Keep your anti-virus software up to date. Use the safest internet browser - Google Chrome or Microsoft Edge are the two best options available in the market. Scan the files with your antivirus software before downloading them. Do not use the same passwords for multiple websites. Activate the pop-up blocker in your browser. 2.Cookies and web tracking Cookies are files that are downloaded from a website to your browser and contain unique, identifying information about the website. However, they do not contain any personal information or software codes. When a website "sees" the data set in a cookie, it knows that the browser has already contacted you. They can be useful, for example, to store your site credentials so you don't have to re-enter them. Cookies can also be used to track your activity and record your shopping habits. They can then be passed on to unwanted third parties who are connected to the website. What you can do? Configure your browser so that cookies are deleted every time you are finished browsing, or set the cookies to deactivate your browser so that cookies are not permitted in your browser at all. 3.IP address tracking COPPA law expressly states that IP addresses are personal information because they are information about an identifiable person associated with them. An Internet Protocol (IP) address is a numerical designation behind the well-known web addresses we see every day. It identifies a device on the Internet. Hackers often encounter IP addresses as the first point of attack. Unwanted parties can track your IP address by finding your website address if it is listed in WHOIS, the central database of all web addresses on the Internet. Information on the properties can be found here. What you can do? While setting up a website, you can request a private WHOIS list from the Network Solutions database manager. Your name, address and other property information will appear in place of yours. If you are working on your PC, you can use a VPN (Virtual Private Network) tool. One good thing is IP Vanish. You connect to the VPN as an intermediary. Your IP address is then encrypted and sent to the Internet via the VPN provider. Employees or home customers have “leased” IP addresses with their cable modem and ISP accounts. Your IP address does not change until you turn off your modem. Turn it off as often as you like. 4.Use HTTP instead of HTTPS encrypted web server connections Personal information that flows between a user's computer and a website using a simple HTTP protocol can be monitored by other companies, or possibly intercepted and stolen by malicious hackers (often called " the middle man "). This is where Secure Sockets Layer (SSL) comes in. What you can do? HTTPS or SSL (Secure Sockets Layer) encrypts information sent between a website and a user's computer. When buying or entering personal information from websites, always look for an "https: //" icon or a padlock in your browser's URL bar to make sure a website is secure before entering personal information. If you see HTTPS instead of HTTP in the address bar of your browser, you know that it is a secure site! When hosting a website, you must implement SSL on your web server to ensure data protection between you and the client. It will also help mitigate threats of direct hacking. You should find a digital certification authority (CA) like Verisign for easy configuration. 5.The threat of the cloud Cloud computing is the latest and greatest technology wave that poses new problems for data protection. This is particularly true if you entrust administrative and technological controls to an external third party. This in itself is a major threat. A cloud provider may lack security processes, security practices, employee controls, application interfaces, and APIs to name a few. You also never know who has the "Kingdom Keys" to display all your data. Creepy, quite enough! What you can do? You and the cloud provider are responsible for security, not just the cloud. When storing data in cloud storage or hosting a website through a cloud platform, keep the following in mind: 1. Ask the provider who is responsible for each cloud security check. 2. Train someone to use the provider's identity and access tools so you can control who has access to your data and applications. 3. Make sure that all of your data is stored in encrypted form at the provider 4. All major cloud providers offer logging tools. Use them to enable logging and automatic security monitoring and to monitor unauthorized access attempts and other issues. 5. A combination of government regulations and responsible individual practices can only thwart and not eliminate potential cyber threats. Your compliance and legal departments can do their part by implementing comprehensive threat analysis and response measures. -VAIBHAV SRIVASTAVA Lloyd Law College Registration link for Social webinar and international essay writing competition-https://www.lawtsapp.com/event-oppurtunities
The struggle of a Transgender in Indian society
We all see the world through a Lenexa filtered gender lenses, that has always helped us differentiate between a man and a women and for this very reason what we cannot see is the beauty of unfiltered skin; the beauty of a Trans. So as we can’t see a differently blooming flower we don’t accept it as a part of our garden. there begins the struggle of a Transgender specially in Indian society. There have been myths and rumours about them since ages. There was discrimination which has shared their souls by each passing day. There has been harassment for over 3000 years which a normal human can’t bear for even a day. There has been gender violation and most importantly there has been suppression and rejection by the society, there has been no law until the transgender person (protection of rights) act came in 2019. lack of access to education and no job opportunities has forced the community to take up begging and prostitution as a means of livelihood. Poverty, malnutrition, bad companionship, HIV/AIDS, hormonal disorder, homelessness, isolation from the community, illiteracy, unawareness of their rights, all this and much more but ironically they still appear at your special occasions to take away all the pain and sufferings from your family, to bless them for a happy life. late back when India got independence the nation celebrated a life of dignity, equality and fraternity; these were the ones left on the margins without any attention. They have always been harassed because of the deep routed patriarchal mind-set of this society. Even today they feel depressed about their identities and choose to stay silent about it because they fear the judgemental eyes of the society, because today when they walk across us we distance ourselves from them. acceptance has always been the key and it goes both ways. People often say “trans community is pretty angry” the community to which admits; “well yes, we are. Because when we live in a society that doesn’t like our existence, we can’t really stay happy.” so it is for us to understand as rational people, ‘there is no us versus them’ it is just that they experience something that we don’t and this establishes no ground to discriminate them, harass them or make them less acceptable in any way. But Gladly Amidst all the darkness and battles we can still see healthy reforms around us, such as- · a transgender rights activist and Bharatanatyam dancer in Mumbai, Laxmi Narayan Tripathi is the first transgender person to represent Asia Pacific in the UN in 2008 and · Nitasha Biswas became India's first transgender beauty queen in 2017. · Sathyasri Sharmila was India's first transgender lawyer, appointed in June 2018. There are a few more countable ones . a small ratio of them doing well shows improvement in their community but does not guarantee accomplishment of all of them. A long and lonely passage still wait for them. This issue can be drifted with 2 simple solutions: Firstly, we must start looking at them as just another human. Equality needs to come out of textbooks now. It is time to break stereotypes. this will help them feel confident about themselves And secondly, gender sensitization should go parallel with legal reforms. The transgender person (protection of rights) act 2019 has not done enough justice. social, economic and educational empowerment still lacks a discussion. Their rights differ a lot from that of a common man. For instance, the penalty of rape of a trans is just 6 months-2years. Crimes against them are still regarded as “petty” in nature. This law requires some major reforms.Transgender have fought a long battle for over a century now when government is looking out for them, their development must be holistic and now is the time to do so. Authored by Riddhi Rahi
Walky Talky : First Generation Lawyer
Being a first-generation lawyer and even no legal background remotely too, it was very difficult for me to start a practice in a small town like Bharuch in the State of Gujarat in the last phase of the year-1989. Though, it was a District place, but some known lawyers of the District have already established their very good practice on Civil and Criminal side. I joined the chambers of very well known Advocate on a Criminal side, who is also a first-generation lawyer and struggled a lot to succeed in the field at the District Court level. I encountered the first hurdle of the language barrier, as my entire study up to Three Years LL.B Course was in Gujarati Medium. Although, before the lower courts, recording of evidence and even arguments are allowed in vernacular and many advocates used to address the Court in vernacular (today also), however, without getting a grip over the English Language, one cannot succeed completely and satisfactorily, as all the Acts and Laws are in English and interpretation of the law as well as the construction of documents is found more suitable in English (for the purpose of explaining to the court), barring few examples. Hence, it takes almost 5 to 7 years to cross this hurdle, as I realized that merely legal English would not be sufficient, but one has to understand the full language perspective by a holistic approach. Apart from the language barrier, another difficulty I found – how to deal with clients. Though in the initial years one may hardly get one or two clients in a month, but many would come to you to take your free advice/opinion, as they know, you would be very enthusiastic to give them freely. Some also come to test your knowledge. But one has to entertain them to make a repo. Besides, in the initial years, one has to accept the case on any subject, if s/he wants to occupy in litigation. More particularly, in most of the District Places, there are no opportunities of specialization, as you don’t get sufficient work, if you choose to practice only on a particular subject. In Metros, you may find much more expertise and specialized lawyers of a particular field or subject, but in smaller places, everyone is doing everything. Even, I have seen this at the High Court level too, especially in Gujarat High Court, when I shifted to Ahmedabad after practicing at the District Court up to 15 years, I found that in the High Court too, the specialized lawyers in a particular subject is hardly one percent. Most of the Advocates used to take all kinds of cases, which come to them. Specialization would be limited to the field of Taxation or Company matters, otherwise, all are doing multifaceted practice. The moral is: one has to be all-rounder, if he begins his/her practice at smaller cities/towns other than metros. And the reality is: we being a litigation lawyer cannot decide: on which side we will practice, but clients would decide, as they come with the cases and they determine your fate. Because, ultimately the cases, which you conduct in your earlier days and if you are successful or even if your performance is good initially, then, that will shape your career on a particular side. No doubt, again, if you are in Metros, you can very well choose your specialized subject and can work on it with a specified chamber, but if you are not in Metros, one has to take up a brief/case, which naturally comes to him on any day at any time and one has to work on it with his/her full potentiality. Additionally, in litigation, one is required to engage himself/herself in courts, even though, one may not have any cash on hand, because court craft is such that one can learn and re-learn only after attending the courts. To get success in courts, one has to understand, how courts work, more importantly, how judges see the case and what is their opinions on different aspects of the case. Everybody in this profession knows Law, but facts always vary from case to case and so, each court primarily more interested in facts of the case then application of law. Hence, one is required to learn – how to master the facts and then, how to present it in a lucid manner. In law schools, now, they teach storytelling – in moot courts that train the students/mooters that how to begin, because the judge must get interested, when you start saying/addressing him/her. Litigation, thus, has many facets, and sometimes, the first thing that comes to the mind of a new entrant is: Which Court would be ideal to start practice? Answers are not easy, but I am trying, according to my experience. If we look at the lower courts [though, now the use of ‘lower’ courts is not found favor with the Karnataka High Court, which said: no court is a lower or subordinate court, each court is a court in their own way, so, we should not address it as ‘lower’ or subordinate court, but here I have referred it lower courts is only to understand the hierarchy and not in any other way] i.e. up to District Court level, they are having original jurisdiction and so, normally they are known as courts of facts, where evidence is to be led or adduced. The strategy is required to be chocked up at the courts of this original jurisdiction. Whereas the higher courts are more concerned with law, interpretation of law and so, they work on principles. High Courts and Supreme Court do also have large writ jurisdiction powers and constitutional matters directly addressed to them in addition to appellate and supervisory jurisdiction. However, my experience says: if in the initial stage of practice, if one starts practice at the High Court by keeping eye on the lower courts, s/he will have double advantages. Understanding the analysis of the facts and learning of interpretation of law. However, begin with High Court practice does not mean not to go to the lower courts at all, as one is required to take up the case at the lower court too, if it comes to him/her, as it is very much necessary to learn the drafting of pleadings before the civil and criminal courts and also to understand the filing procedure at the lower courts and then, production of documents and cross-examination, etc., as and when one gets the opportunity. Hence, my suggestion would be: keep your feet at the High Court and keep an eye on the subordinate courts with a view to learn both – how to construe documents and how to interpret the law. Then, in the future, even if one wishes to go to Supreme Court, by then, fundamentals would be clear, and then it would be smooth sailing rather directly begin practice at the Supreme Court without any roots. - Kashyap Joshi (https://in.linkedin.com/in/kashyap-joshi-9a585263) [Advocate practicing at the High Court of Gujarat and Visiting Faculty at the Institute of Law, Nirma University, Ahmedabad]
Law And Society
There is an inseparable relationship with Law and the Society from time immemorial. The primitive Homo sapiens even before originating any type of language might have had some sort of social relationship among their own living community (probably caves) and had set their own customs to follow. Can we call it the beginning of a primitive rule of Law? Probably yes, that triggered the need for some sort of Law. Over a period of time, the modern man had acquired the skill of communication with each other and had then developed language as a tool for such conveyance of ideas from human to human. They started living together in an area where they could find food and rear their animals. It might be on the bank of a river or a valley where they could find their comfort. They slowly started to follow certain customs and habits which regulated their behavior in the group or society and accepted one of them as their leader. They also started worshiping some kind of power which we call as a god. The fear of God had instilled a submissive behavior in humans to follow the customs and habits set by their community. As time passed by, they started distinguishing what is right and what is wrong for them in their own society. They started framing their own rules which best suited them. Another community or society living in a faraway place had their own set of rules which might be different from other community. Each community had its own set of rules and their own right and wrong as they practice. In essence, what is right in one society may be wrong in another society and vice versa. Then the society had gradually evolved to learn human behavior in their group and brought out new concepts of ethics and morality to ascertain what is right and what is wrong. As the primitive societies emerged from smaller groups to larger communities and then to civilizations, the customs, habits, practice, and norms were adopted as the laws of such communities or civilizations. The top ten civilizations right from Mesopotamian Civilization to the latest Incan Civilization evolved many sets of laws suited for them. With the advent of such civilizations, the laws followed by them were codified and more robust jurisprudence based on legal reasoning, legal systems and institutions for delivery of justice were created. The English Law or what is called the common law system in England and Wales had been developed over a longer period from the 11th century. The English Law had borrowed many ideas from Roman Laws and Canon laws. The English Judges played a pivotal role in gradually evolving the common law system when legislations were scarce and they used equity, good conscience and natural justice to arrive at the judgments based on the circumstances of each case. The Indian legal system dates back to the Vedic period. Manusmruti is an ancient legal text among many other Dharmasastras of Hinduism. The Edicts of Ashoka of Buddhist Law was also practiced among believers of Buddha. Sharia Law was also brought to India by the Mughals. After the Mughals, the British had ruled India for 200 years through East India Company and most of the present-day Indian Laws were codified then. The British Empire had to leave India in the hands of Indians and we had adopted our present Constitution, which is the supreme law of India. As the Society grew from smaller groups to larger communities, more stringent laws were required to be made to regulate the society and individuals. Law gives an order in society, a kind of fear in the minds of individuals so that their behavior will be in tandem with the societal norms. The Law also acts as a deterrent against crimes being committed by the individuals in the society or against another individual. Such domestic laws which served exclusively for a particular community started branching out when commercial transactions started between two communities, countries, civilizations and continents. Any law whether it was ancient or modern had an impact on the society it applied. Every law has a purpose to serve, and enforce ability part and the strength to withstand the test of judicial scrutiny. A law that does not serve the society well is a liability on the State, hence, the legislature takes utmost care in drafting laws. All the laws drafted and enacted have to be within the framework of our Constitution and any part which is inconsistent with the Constitution will be ultra vires and will be liable to be struck down by the Supreme Court of India. The Law is ever-evolving and changing according to the needs of the society and the world as a whole. The Law is deeply ingrained in the Society and no modern society can survive without a vibrant legal system. Lawyering is a noble profession and the Lawyers have a social responsibility to be torchbearers of the societal norms and help the State in maintaining the rhythm of the Society by judiciously practicing Law for the benefit of the society and its people. -Adv. M.S. Lalkumar (Admin Manager | In-House Legal Counsel at Wade Adams)
Intellectual Property Rights -At Glance
Introduction The term intellectual property rights circumscribe various types of creations of mind of human intellect like industrial model, trademarks, literature, music, movies, art, compositions, works, paintings, names and symbol. Such inventions are intangible or are non-monetary assets with a commercial value. The inventors of such non-monetary assets are accorded some exclusive rights over their creations for which there are laws to protect their inventions. Intellectual property rights are no way different from other property rights which prevents and obstructs others from using the unique invention without prior permission from him/her and if still done by someone you can legally sue them and stop them or compensate for damages. These rights are mentioned in article 27 of the Universal declaration of Human Rights. The importance of intellectual property was first acknowledged in Paris convention for the protection of Industrial Property (1883)and the Berne Convention for the Protection of Literary and Artistic Works(1886). Both the treaties are managed by World Intellectual Property Organization (WIPO). Need for Intellectual Property Rights It encourages innovation because the legal protection of new innovations favors the commitment of additional resources for future innovation. The stimulation and protection of intellectual property induces economic growth, creates new jobs and enhances the quality and standard of living of an individual life. Intellectual Property Rights is required to protect and safeguard inventors and other producers of their intellectual commodity, goods and services by according certain restricted rights to manage the use made of the manufactured goods. It also ensures ease of doing a business also facilitates the transfer of technology. National IPR Policy The National Intellectual Property Rights (IPR) Policy 2016 was adopted in May 2016 as a vision document to MENTOR future evolution of Intellectual Property Rights in the country. It collaborates and brings all Intellectual Property Rights under a single roof,taking into account all inter-connects and thus points to create and disturbs the cooperation between all forms of intellectual property (IP), along with statutes and agencies. It sets in place an institutional mechanism for accomplishing, supervising and evaluating. It aims to engulf and restyle global best practices to the Indian framework. Department of Industrial Policy & Promotion (DIPP), Ministry of Commerce, Government of India, has been registered as the nodal department to harmonize, mentor and supervise the implementation and execute the future development of Intellectual Property Rights in India. The Cell for IPR Promotion & Management (CIPAM) was setup under the aegis of DIPP, which was to be the single point of citation for enactment of the goals and objectives of the National Intellectual Property Policy. India’s IPR domain is in compliance with the World Trade Organization's consensus on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Achievements under new IPR policy Strengthening of institutional mechanism regarding IP protection and promotion. To ClearBacklogs and Reduce Pendency in the applications of intellectual Property: lengthening of technical manpower by the government and as a result there has been a drastic reduction in pendency of IP applications.There has been an introduction of trademark certificates and electronic generated patents are automatically issued.Increase in Patent and trademark Filings: Patent filings have increased by nearly 7% in the first 8 months of 2018-19 vis-à-vis the corresponding period of 2017-18. Trademark filings have increased by nearly 28% in this time period. IP Process Re-engineering Patent Rules, 2003 have been amended to smoothen the process and make them more familiar and user friendly andrefurbished Trade Marks Rules have been reported and noted in 2017. Creating IPR Awareness has become an important and a necessary action. IPR Awareness programs have been conducted in academic institutions, including rural schools through satellite communication, and for industry, police, customs and judiciary etc. Technology and Innovation Support Centres (TISCs): In accordance with WIPO, TISCs have been established in various institutions across different states. Section 3(d) of the Indian Patent Act 1970 (as amended in 2005) does not permit the patent to be accorded to inventions circumscribing new forms of a known substance unless it is different in properties and nature that are concerned to efficacy which means that the Indian Patent Act does not give consent to the evergreening of patents. This has been a cause of concern to the pharma companies. Section 3(d) was instrumental in the Indian Patent Office (IPO) for rejecting the patent for Novartis’ drug Glivec (imatinib mesylate). Issue of Compulsory Licensing (CL): CL is problematic and a matter of concern for foreign investors who introduces technology as they are concerned about the misuse of CL to replicate their inventions. Which has been impacting India-EU FTA negotiations.
CL is the permission granted by the government to entities to use, build, manufacture, import or sell a patented invention without the consent of the owner of the patent. Patents Act in India also deals with CL. CL has been permitted under the WTO’s TRIPS (IPR) Agreement provided certain conditions such as ‘national emergencies, other instances and situation of extreme urgency and anti-competitive practices’ that are fulfilled. India also continues to be there on the United States Trade Representative's (USTR’s) ‘Priority Watch List’ for alleged violations of intellectual property rights (IPR).
In the latest Special 301 report that was released by the United States Trade Representative (USTR), in which India was termed as “one of the world’s most challenging major economies" by the United States with respect to protection, enforcement and execution of IP. Data Exclusivity: Foreign investors and MNCs allege that Indian law does not give protection against unfair and misuse of commercial use of test data or anyother data given to the government during the application process for market approval of pharmaceutical or agro-chemical products. And hence they demanded for the Data Exclusivity law. But the problem arises that the enforcement of the Copyright act is very fragile, and piracy and act of replica of copyrighted materials is extensive. More awareness is needed about the creation, protection and enforcement of IPRs to encourage the Indian industry not only to innovate but also to protect, enforce and execute their innovations. India and IPR India is a member of the World Trade Organization and committed to the Agreement on Trade Related Aspects of Intellectual Property (TRIPS Agreement). India is also a member of World Intellectual Property Organization, a body responsible for the work of promotion of the protection of intellectual property rights throughout the globe. India is also a member of the following important WIPO-administered International Treaties and Conventions relating to IPRs.
Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure. Paris Convention was also done for the Protection and providing security to the Industrial Property. Convention establishes the World Intellectual Property Organization. Berne Convention considers for the Protection and security of Literary and Artistic Works Patent Cooperation Treaty Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks- Madrid Protocol. Washington Treaty was on Intellectual Property in respect of desegregated Circuits. Nairobi Treaty on the Protection and security of the Olympic SymbolConvention for the Protection of Producers of Phonograms Against Unauthorized and illegal Duplication of Their Phonograms Last but not the least Marrakesh Treaty was to facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities and difficulties. Conclusion. New Inventions are not an easy job and to protect them from others is even a tougher task but not impossible. It has become possible through an emerging and the most attractive area which is artificial intelligence which gives an assurance to the inventors of protection and security of their inventions by adopting various rules and regulation. Companies and business have a lot of data that are to be kept confidential and not shared to anyone but it would have been a difficult task if there would have been no intellectual property rights. It is sad to say that crimes are at its peak and to control these crimes there are various IP laws. intellectual property rights are the rights that are monopoly in nature which grant their holders a temporary advantage for the exclusive exploitation of the income rights from cultural, technological expressions and inventions. The law’s governed by Patent and Artificial Intelligence together becomes a deadly combination to bring about changes as in new inventions in every field with proper protection of rights guaranteed to the inventor to suffer no harm or loss which can deeply impact our economy be it on a large or small scale, both in positive as well as negative way. To always bring about a positive and radical change it is important to discuss some important issues related to copyright, patent, trademarks and the most important Artificial Intelligence which supervises an keep a check on intellectual property. AI has infringed the patency rights what actions should be taken. When all these will be taken into consideration, only then we can truly depend that now technology can pave its way in a right way without harming or infringing anyone’s rights. - Yash Srivastava (Team Lawtsapp)
Glimpses of Right to Information Act
Great things require a lot of struggle to convert them into reality particularly when it’s directly related to the common man. Well, it all started with a commitment in 1977 as the Janta Party in their election manifesto promised “an open government‘’. The struggle of RTI is almost thirty years long which involved lawyers, students and activists along with common people which resulted in the passage of Right to Information Act, 2005. The Preamble of RTI ACT, 2005 acknowledges information as an important tool for citizens, and guarantees access to information under the control of public authorities. India is a democratic Republic and democracy surely requires informed citizens to keep checks and balances on the Government. In fact, the Supreme Court in a landmark case of MR. Kulwal v/s Jaipur Municipal Corporation held that Right to Information comes under the ambit of Freedom of Speech and Expression under Article 19 of the Constitution. Since then RTI became an important tool for citizens for acquiring information from public authorities and keeping an eye on public spending. Scams and corruption at a large scale in the system was in public including Adarsh and Commonwealth Games Scam due to application of a RTI. In June 2013, Central Information commission brought six political parties of India under the ambit of public authority to make the system more transparent. The following political parties didn’t accept the decision and brought a bill to amend this decision of the Information Commission, by stating the ongoing provisions in Representation of People’s Act, 1951 and Income Tax Act, 1961. Statement of Objects and Reasons of bill said the ongoing provision already dealt with financial aspects of political parties and their candidates. The bill was lapsed in the Parliament but till now, political parties don't comply with the ruling of the Central Information Commission. Now, analyze the scenario that if you could access the information related to the funding of political parties and other benefits that they get. But almost every political party was on the same line and declared themselves out of the definition of “political authority’’. This was a classic example of how government institutions are diluted and along with curtailing the right of citizens. A similar successful attempt was made in 2019, by amending the RTI and questioning the independence of the Information Commission. To be more blunt, a classic example of centralization of power can be seen in the amendment. Now, the Central Government will decide the term, tenure and salaries of Information Commissioners both at the centre and state level. The amended Act has changed Sections 13 and 16 of the RTI ACT, 2005. Section 13 of the original Act sets the term of the Central Chief Information Commissioner and Information Commissioners for five years (or until the age of 65, whichever is easier). It has been replaced now with “for such term’’ as may be prescribed by the Central government. RECOMMENDATIONS Hence, in my opinion many attempts have already been made to dilute such a progressive law which was formulated on the core principles of democracy. Democracy which requires informed citizens, so that they choose the right representatives to govern and represent them in the legislatures. For this, RTI has to be strengthened with some changes like the Information Commission should be granted Constitutional Status from the present Statutory Authority. Cooperative Federalism is an important element of democracy, so States should have a say on the formation of State Information Commissions. Political Parties should appoint Public Information Officers in order to grant information under right to information. Information Commissions should be treated as an independent institution so as to maintain the flow of information without any prejudice and pressure. https://indiankanoon.org/doc/778875/ https://www.orfonline.org/expert-speak/amended-rti-act-what-at-stake-53573/ -Aditya Dubey Lloyd Law College