Thursday, 28 May 2015

AMENDEMNTS PROPOSED TO PREVENTION OF CORRUPTION ACT


The Prevention of Corruption Act, 1988 (No. 49 of 1988) is an Act of the Parliament of India enacted to combat corruption in government agencies and public sector businesses in India.

Taking a cue from US' Foreign Corrupt Practices Act, 1977, and the UK's Bribery Act, 2010, the government plans to come out with anti-bribery guidelines for companies and their employees while dealing with public servants. The government also proposes to hold commercial organisations responsible in case persons associated with them bribe public servants. These are part of a bigger move to have stricter anti-corruption laws in India - enhanced punishment for bribe givers and bribe takers; speedier completion of trails on corruption cases; extending protection from prosecution to public servants who cease to hold office following retirement, resignation, etc. Also later developments, such as, India ratifying the United Nations Convention Against Corruption “UNCAC”, international practice on treatment of the offence of bribery and corruption, etc. necessitated a review of the existing provisions of the Act, so as to bring it in line with current international practice and also to meet, more effectively, the country's obligations under the UNCAC.

The Prevention of Corruption (Amendment) Bill, 2013 was introduced in the Rajya Sabha for the purpose on 19.08.2013. The Department Related Parliamentary Standing Committee submitted its report on the Bill to the Rajya Sabha on 06.02.2014 but the Bill could not be passed. As the Bill contemplates an important paradigm shift in defining offences relating to bribery, the views of the Law Commission of India were also sought on the proposed amendments. Further amendments are proposed in the Bill as recommended by the Law Commission of India in its 254th Report

The Union Cabinet approved amendments to the Prevention of Corruption Act, 1988, that provide for classifying corruption as a heinous crime and longer prison terms for both bribe-giver and bribe- taker. The proposed amendment act will also ensure speedy trial, limited to two years, for corruption cases.

It is expected that the proposed amendments would fill in perceived gaps in the domestic anti-corruption law and also help in meeting the country's obligations under the United Nations Convention Against Corruption more effectively. The measures approved include penal provisions being enhanced from minimum 6 months to 3 years and from maximum five years to seven years. However, all is not well with the amendment and the biggest challenge has been to the proposed Section 17A which is being opposed by intellectuals across the country lead by Dr. Jayprakash Narayan of Lok Satta. However, before proceeding to the said attempt to dilute the anti graft law let us first understand the other aspect of the said amendment.

1.     7-year prison term brings it to the heinous crime category
The amendments to the Prevention of Corruption Act, 1988, approved by the Union Cabinet include enhancing punishment from the minimum 6 months to 3 years and from the maximum five years to seven years.
The seven-year imprisonment brings corruption to the heinous crime category. The ambit of the existing Act will be enhanced to make commercial entities liable for inducement of public servants. Under the present law, only individuals are liable. The proposed amendment bill also provides for issue of guidelines to commercial organisations to prevent persons associated with them from bribing a public servant.
2.     Non-monetary gratification
Non-monetary gratification will also be covered within the definition of the word gratification in the PCA 1988.
3.     Nature of Proposed Amendments
The Prevention of Corruption (Amendment) Bill, 2013 proposes following changes in aforesaid Acts/Ordinance to widen the description and coverage of offence of bribery in the line with current international practice.

Prevention of Corruption Act, 1988
Prevention of Corruption (Amendment) Bill, 2013
Taking a bribe by a current or prospective public servant

 Section (8)
Accepting or attempting to obtain any reward, other than a salary. This reward must be for doing or intending to do any official act.
 Accepting a reward for official acts that favour or disfavour any person.
 Accepting a reward from another person to exercise personal influence over a public servant.

 Accepting or attempting to obtain a reward for performing a public function in an improper manner.
 Inducing another public servant to perform his public function in an improper manner, in exchange for a reward.
 Public function is defined as one that is: i) of public nature, ii) in the course of employment, iii) to be performed impartially and in good faith.
 Improper performance includes: i) breach of a relevant expectation, ii) failure to perform a function that is a breach of an expectation.
 Relevant expectation is defined as i) a function performed in good faith, or ii) in a position of trust.
Taking a bribe by any person to influence a public servant
Section (9)
Accepting any reward from a person to induce a public servant, illegally, to favour or disfavour someone.
 Accepting a reward to exercise personal influence over a public servant to favour or disfavour someone.
Not provided in the Bill.
Giving a bribe to a public servant
 No specific provision.
 Covered under the provision of abetment.

Offering or promising a reward to a person for making a public official perform his public duty improperly.
 Offering a reward to a public official, knowing that such acceptance would qualify as performing his public duty improperly.
Giving a bribe by a commercial organisation to a public servant
No specific provision.
 Covered under the provision of abetment.

Offering a reward in return of obtaining or retaining any advantage in business.
 The person acting for the organisation and the head of the organisation are also made liable.
 The organisation and its head will not be held liable if  it is proven that the organisation took adequate precautions, and the head had no knowledge of the act.
Abetment
 A public servant abetting an offence related to influencing another public servant is covered.
 Any person abetting offences related to i) taking a bribe and ii) obtaining a valuable thing from a person engaged with in a business transaction is covered.

Covers abetment by any person for all offences under the Act.

Criminal Misconduct by a public servant

 Habitually taking a bribe or a valuable thing for free.
 Fraudulent misappropriation of property in his control.
 Obtaining a valuable thing or reward by illegal means.
 Abuse of position to obtain a valuable thing or monetary reward.
 Obtaining valuable thing or monetary reward without public interest.
 Possession of monetary resources or property disproportionate to known sources of income.


 Fraudulent misappropriation of property entrusted to a public servant.
 Intentional enrichment by illicit means and being in possession of property or resources disproportionate to known sources of income.

Habitual Offender
Habitually taking a reward to either influence a public servant or abet in the taking of a bribe.
The committing of any offence under the Act by a person who has previously been convicted.
Attachment and forfeiture of property
Not provided by the Act.
If an authorised investigating police officer believes that a public official has committed an offence, he may approach Special Judge for attachment of the property.
Prior sanction for prosecution
The prior sanction from the appropriate authority is required for prosecution of public officials.
Extends the requirement of prior sanction to former public officials, if the act was committed in their official capacity.
Protection to bribe giver from prosecution
Any statement made by a bribe giver, in a corruption trial of a public servant, would not subject him to prosecution for the offence of abetment.
Not provided by the Bill.
Penalties*:
 Habitual offender
 Criminal Misconduct
 Others (taking a bribe, abetment)


 Imprisonment of five years-10 years and a fine.

 Imprisonment of four years-10 years and a fine.

 Imprisonment of three years-seven years and a fine.


 Imprisonment of three years-10 years and a fine.

 Remains unchanged in the Bill.

 Imprisonment of three years-seven years and a fine.


An effort to bring the anti-corruption laws in India in parity with global best practices and the judicial pronouncements seems plagued with “hurried drafting and mechanical lifting” of certain provisions of the foreign law.
Though a much-needed endeavour in light of India’s ratification of the United Nations Convention Against Corruption (UNCAC) in May 2011, the 2013 Bill—which is an amendment to the Prevention of Corruption Act 1988; Delhi Special Police Establishment Act 1946; and Criminal Law (Amendment) Ordinance 1944—has come under severe criticism by the Law Commission, which feels that the approach “to transplant certain provisions from the UK Bribery Act, while well intended, is misconceived and will serve to create further confusion and ambiguity.”
With the aim to bring in clarity with regard to payment of bribery to public servants, Law Commission chairman AP Shah, in his report submitted to law minister Sadananda Gowda, has proposed some significant amendments in the Prevention of Corruption (Amendment) Act.
The suggestions were made after carrying out a detailed study of the UNCAC and other relevant statutes and case laws of India and the UK.
As of now, the Prevention of Corruption Act only covers public servants and does not bring in its fold companies and private individuals. It is for the first time that the government is proposing amending the Act to hold “a commercial organisation liable for failure to prevent persons associated with it from bribing a public servant.” It also laid down necessary norms for commercial organisations to set their house in order to tackle any form of corruption perpetrated by their employees or associates in the course of business to further the interests of the organisations.
The 54-page report describes as “overbroad” the provision which ascribes criminal liability “to every person who is in charge of and responsible to the organisation for the conduct of its business” if the offence is proved to have been committed with the consent or connivance of the company, since it exposes the entire top brass to a jail term of 3-7 years.
Suggesting a better solution, the law panel has asked the legislature to drop the phrase ‘undue financial or other advantage’ from the entire Bill and substitute it with ‘undue advantage’ throughout. “The clause ‘financial or other advantage’ (as proposed in the 2013 Bill) does not seem to cover sexual favours in return for the public servant’s acts or omissions. Thus, the proposed amendment is actually narrowing the scope of corruption, instead of the stated intent of expanding it,” the panel added.
The rationale given by Justice Shah is that the ‘undue advantage’ would cover any gratification whatsoever, other than legal remuneration, and that the word ‘gratification’ is not limited to pecuniary gratifications or to gratifications estimable in money. The Law Commission report says that only that official must be held liable whose consent or connivance is proved, without any harassment caused to other officials of the company. The report also criticises a provision which says that a company would have to pay a fine if it is unable to prevent acts of corruption.
While the proposed Section 8 targets commercial organisations for indulging in bribery of a public servant to obtain an undue advantage in business, the proposed Section 9 talks about the vicarious liability of the commercial organisations in failing to exercise due diligence to prevent persons associated with it from bribing a public servant.
Unlike the UK’s Bribery Act, the proposed amendment to Section 9 does not envisage the publication of any sort of guidance or any obligation on the government, and it places the entire burden of proof on commercial organisation to prove their innocence. The Commission has recommended that a new clause should be inserted making it mandatory for the government to publish guidelines for “adequate procedures” after due consultation with the public.
“This provision will lead to an immediate and significant impact on the conduct of business by corporations, especially in light of the fact that they will not have any clarity on what is expected of them and will not even know if the procedures and processes they adopt are in compliance or in possible breach,” Shah said.
Even separate procedures for attachment and forfeiture introduced in the 2013 Bill in cases of corruption by public servants are bound to create confusion. Thus, Shah has recommended replacement of the proposed sections 18A-18N with a single provision to ensure compliance with the UNCAC.
Though the Law Commission has managed to correct the inordinate errors, what remains to be seen is whether Parliament will check its faults by accepting the suggestions. If accepted, the Bill may have far-reaching implications on understanding corruption in public life and efforts to counter it. The amendment Bill is likely to be brought before Parliament in this Budget session.
There must be a senior officer in an investigating agency to decide whether or not a decision was taken in good faith. It should not be left to a junior official to decide on a particular case.
"One should not judge a civil servant on the basis of whether a decision is right or wrong, but on the basis of the documents or the information available to him as he took that decision
"It is a welcome a step. But it has to be seen that these provisions, after they become part of law, are implemented in letter and spirit," said former Central Vigilance Commissioner (CVC), PJ Thomas. Legal experts also said they feel that the proposed changes will help in checking corruption in the country.

GIVING BRIBE IS ALSO AN OFFENCE: There is also a need to distinguish between collusive corruption and extortionist corruption where the first is when both/all the parties involved indulge in corruption to do something which is not legal. On the other hand extortionist bribery is something which is out of compulsion and thus a person is forced to give some money to get his legal dues done. Thus both kind of corruption can not be dealt with the same yardstick and it requires different understanding and protection. 

Amendments Proposed in Section 17
  • In 2003, Section 6A was incorporated in the Delhi Special Police Establishment Act, 1946 (DSPE Act, 1946) dealing with CBI. This section mandated prior approval of government before CBI took up investigation of cases of corruption under Prevention of Corruption Act, 1988 (PC Act, 1988) relating to officers of the rank of Joint Secretary and above.
In 2014, in the case of Dr. Subramanian Swami vs Director, CBI and others (writ petition (civil) number 21 of 2004 of Centre for Public Interest Litigation vs Union of India) the Supreme Court struck down Section 6A as unconstitutional and violative of rule of law.
 
  • PC Act, 1988 gives full freedom to investigative agencies to conduct enquiry into allegations against any public servant. No prior permission was envisaged in law for investigation. However, Section 19(1) of the PC Act, 1988 as well as Section 197 of CrPC envisage prior sanction of prosecution of a public servant.
     
  • Now the Union government is introducing an official amendment in the pending legislation The Prevention of Corruption (Amendment) Bill, 2013 (PC Amendment Bill, 2013). Under the proposed Section 8B of the Amendment Bill, a new Section 17A is sought to be inserted in the Principal Act as follows:

“17A (1) No police officer shall conduct any investigation into any offence alleged to have been committed by a public servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in the discharge of his official functions or duties, without the previous approval-
(a) of the Lokpal, in the case of a public servant who is employed, or as the case may be, was at the time of commission of the alleged offence employed in connection with the affairs of the Union, and is a person referred to in clauses (a) to (h) of sub-section (1) of section 14 of the Lokpal and Lokayuktas Act, 2013;
(b) of the Lokayukta of the State or such authority established by law in that State under whose jurisdiction the public servant falls, in the case of a person who is employed, or as the case may be, was at the time of commission of the alleged offence employed in connection with the affairs of a State,
Conveyed by an order issued by the Lokpal in accordance with the provisions contained in Chapter VII of the Lokpal and Lokayuktas Act, 2013 or the Lokayukta of the State or such authority referred to in clause (b) for processing of investigation against the public servant:
Provided that no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or for any other person.
(2) Any information received or any complaint which is made to a police officer or any agency (including the Delhi Special Police Establishment) in respect of an alleged offence relatable to any recommendation made or decision taken by a public servant in discharge of his official functions or duties shall, first, be referred by such police officer or agency-
(i) in respect of a public servant referred to in clause (a) of sub-section (1), to the Lokpal;
(ii) in respect of a public servant referred to in clause (b) of sub-section (1), to the Lokayukta of the State or such authority referred to in that clause.
(3) Any information or complaint referred by a police officer or the agency under the subsection (2), shall be deemed to be a complaint made to-
(a) the Lokpal under clause(e) of sub-section (1) of section (2) of the Lokpal and Lokayuktas, Act, 2013 and all the provisions of the said Act shall apply accordingly to such complaint;
(b )the Lokayukta of a State or such authority established by law in a State, as the case may be, and all the provisions of the law under which the Lokayukta or such authority has been established shall apply accordingly to such complaint”.
Implications of the proposed Section 17A:
  1. This covers all recommendations and decisions of all public servants in the discharge of their official functions or duties. That means, except in cases of successful trap, every allegation of corruption must first be forwarded to Lokpal/Lokayukta for prior approval of investigation. The police, who have the duty to investigate any and every crime, including murder, rape, misappropriation, are prevented from investigating corruption on their own.
     
  2. Given the way Lokpal/Lokayukta institutions are structured, we can have every confidence that each case will be decided on merits. But there are about 60 lakh public servants of Union government (including public undertakings and departments), and in many major states there are over 10 lakh public servants. Overall, there are about 200 lakh or 2 crore public servants in India. If the CBI and State Anti-Corruption Bureau (ACB) have to forward each case to Lokpal/Lokayukta before even commencing investigation, the whole anti-corruption institutional framework will be jammed and paralysed.

  1. The proposed Section17A does not even allow a summary, instant decision by Lokpal/Lokayukta. The amendment specifies that the Lokpal/Lokayukta must give prior approval conveyed by an order issued in accordance with the provisions contained in Chapter 7 of the Lokpal and Lokayuktas Act, 2013. Chapter 7 of the Lokpal and Lokayuktas Act, 2013 envisages an elaborate procedure even for preliminary enquiry. In case of Lokpal, it may again involve CVC, CBI or Lokpal’s own investigative wing. Also, even at preliminary stage, the public servant must be given an opportunity of being heard. The preliminary enquiry may take 90 days or longer. Only after such an elaborate procedure can Lokpal/Lokayukta accord approval for investigation.

  1. This provision ultimately creates enormous hurdles to the investigation of any corruption offence even in the preliminary stage. What is needed is speedy sanction of prosecution under Section 19(1) of the PC Act, 1988 and Section 197 of CrPC, and to ensure that such sanction power vests in an independent, impartial authority like Lokpal/Lokayukta. Instead, even powers of investigation are taken away from CBI and ACBs by the new Section 17A.

  1. The net result will be tremendous weakening of investigative agencies, and dilution of Lokpal and Lokayuktas. The Lokpal/Lokayuktas are intended to be high ombudsmen to hold senior civil servants and highly placed public servants to account. By bringing every case of corruption before them even at the allegation stage prior to investigation, the Lokpal/Lokayuktas lose all relevance as high ombudsmen, and will become ineffective, overburdened, dysfunctional, slow-moving bureaucracies, defeating the very purpose of Lokpal legislation.

This provision may not hold its ground in the court of law with supreme court of india very likely to declare it as unconstitutional. In fact it is illogical in extending the discredited single directive to all classes of government employees, retrogressive as it weakens investigative agencies, burdensome on the institutions of Lokpal/Lokayuktas, and ultimately counter-productive in combating corruption.

THUS 2 Major concern of the amendment is Section 17A and non distinction of compulsive corruption with collusive corruption. The PCA, even after the amendment, is expected to suffer from a few pragmatic difficulties. As mentioned above, not only prosecution but also investigation requires prior sanction, which is seldom forthcoming and plagued with procedural barriers and red-tapism. This may result in abysmally low prosecution rates as in the past. 


PRE – NUPTIAL AGREEMENT: - FROM RELIGIOUS SANCTITY TO CONTRACT

A pre-nuptial agreement or prenup, as it is commonly called, is a contract entered into by people who are planning to get married. Its content can vary widely, but commonly includes provisions for the division of property and assets should the couple divorce and any rights to spousal support during or after the dissolution of marriage.
While this concept is more prevalent in Western countries it is still not very popular in India because marriage as an institution is considered a pious and sacred bond and getting into an agreement prior to marriage does not goes well with the Indian society. Also, opting for such agreements invites social stigma that the couple shares low commitment, and anticipation of divorce even before marriage is both, bad omen and unromantic. Nevertheless, the global publicity about celebrity prenuptial agreements is encouraging people to consider the idea in India. It is therefore essential to understand that while prenuptial agreements might be a valuable way for parties to express their intention concerning the nature of their financial relationship; it is not possible to assure or even to expect that such agreed terms will be upheld in an Indian court in its entirety. But then, is it not a necessity in post modern society where marriage as an institution has received a major jolt in the light of acceptance of living relationship by a section of Society and also by judiciary?
There appears to be no concluding case law in India on the topic of prenups or postnups and it will not be incorrect to say that Apex court of law is yet to give its final word on it. Let us make an effort to understand the views of various High Courts as far as the legal standing of prenups is concerned. The Hon’ble High Court of Calcutta in the case of Tekait Mon Mohini Jemadai vs. Basanta Kumar Singh had held that though marriage under the Hindu Law is a contract, it is also a sacrament, it is more religious than secular in character; the union is indissoluble, for it is a “union of flesh with flesh, bone with bone.” The Hon’ble Court went to the extent of stating in details that ‘prenup is opposed to public policy’. According to the Hon’ble Court, such contract seems to be not only inconsistent with the theory of the relation between husband and wife according to the Hindu Law, but against public policy. Similar view was also taken by the Hon’ble High Court of Orissa and High Court of Madras. Hon’ble High Court of Orissa in the case of Sirbataha Barik v. Musamat Padma held that prenup is opposed to Hindu law and also opposed to public policy and thus, it is not a valid contract. Similarly, the Hon’ble High Court of Madras in the case of A.E. Thirumal Naidu v. Rajammal held that under the pre-nupital agreement between husband and wife to live separately from each other was invalid even if there is an agreement to that effect because as per the Hon’ble Court, it is forbidden under the Hindu law. The Hon’ble Court went to the extent of declaring prenup as opposed to public as held by Calcutta High Court and Orissa High Court. However, in certain aspects of personal law and in some cases Hon’ble Court has taken a lenient view whereby the Hon’ble court has not dismissed prenup totally and thus, the Hon’ble Court of Calcutta in the case of Sm. Sandhya Chatterjee vs. Salil Chandra Chatterjee has held “ it is just and desirable that they should live separately and comply with terms of agreement entered into between them – that will be beneficial to their interest as also their son living with mother – agreement not opposed to public policy and enforceable.” However, the Hon’ble Court in this case was dealing with the agreement entered into by the married couple and not strictly speaking between the couple before entering into marriage. However, in one of the cases dealing with Income Tax, the Hon’ble High Court of Calcutta had the occasion to deal with the prenup and in that case, the Hon’ble Court allowed the appeal on the basis of prenup and thus, held the prenup to be valid and legal. In this particular case between Commissioner of Income Tax v. Mansukhrai More, the Income Tax Tribunal upheld the assessee’s contention and directed exclusion of income from assessee’s property’s total income on the ground that it was transfer of property not out of love or natural affection but in fulfillment of obligations undertaken under pre-nupital agreement and it conveyed property in trust for benefit of minor children. The Hon’ble High court held that “Tribunal was justified in accepting existence and genuineness of pre-nupital agreement”. In another case, Hon’ble High Court of Jammu & Kashmir had an occasion to deal with prenup in the case of Mohd. Khan v. Mst. Shahmali. In this particular case, pre-nupital agreement was executed between the groom and bride’s father. In this case, the first appeal court held that “the agreement was not in any way opposed to the Muslim Law and was not in any way unconscionable. The violation of the condition by husband entitled the wife to seek divorce from the husband.” In this particular case, the issue that came up for hearing was that ‘if in the pre-nupital agreement the son-in-law binds himself to pay a specified sum as token money, spent by his father in law on the marriage on his running away from the house and deserting his wife, then on the happening of this contingency, if the father calls to pay the specified money, then in that case it would not constitute a doctrine opposed to Muslim law’. The Hon’ble Court upheld that position of Appeal Court and further held that “an anti-nupital agreement by a Muslim husband that he would pay separate maintenance to his wife in case of disagreement, and that the wife would have power to get herself divorced, in case of the failure of husband to pay the amount was not opposed to the public policy and was enforceable under the Muslim law.”
However, as stated before, the issues are still not clear and the issues need further churning before we reach to some conclusion. Thus, it will not be entirely incorrect to say that the court has not yet finalized its opinion as far as prenup is concerned and the issue is still wide open. Critically, the Supreme Court of India which is vested with extremely broad power to do justice between the parties and which has been quite active in matters concerning the grounds for divorce has taken no final stand on the matter of prenuptial agreements. However, it is to be noted that Laws like Protection of Woman from Domestic Violence Act and its interpretation by the Court across India has given an acceptance to the fact of ‘living relationships’ of couples without marriage and relationship which is ‘akin to marriage’. With Courts granting reliefs in the cases of living relationships and to relationship without marriage the concept of prenups has acquired an altogether new dimension. How do you deal with a couple, with regard to their rights and liabilities, who are residing together on the basis of prenuptial agreement?
As every concept has its own pros and cons this concept too have some advantages as well. The prenuptial agreement is characterized by great flexibility and can be tailor-made to the specific needs of the couple. It is of great interest to note that sometime back there was a news item, stating that the Karnataka state women's varsity Vice- Chancellor, Dr. Syeda Akhtar has called upon Muslim girls to sign prenuptial agreements. Dr. Akhtar said this (prenuptial agreement) is the crucial first step which will guarantee a Muslim woman's rights throughout her marriage. So, a prenuptial agreement can be an important document to enable a woman to assert her rights and ensure that she is not done out of her just dues. A prenup can be successful ONLY if both the couple are scrupulously honest about their assets. Hiding information about assets can defeat the purpose of a prenup – a harmonious division of assets upon a divorce.
There are many other benefits of a prenup: it can protect a person from his/her partner's debt loads; prevent one’s business/estate from getting divided; ensure spousal support in terms of monthly maintenance or alimony; guarantee remarriage rights and take care of child support and custody issues. All it requires is free consent and an honest declaration of individual assets and liabilities. But the crux of the matter lies elsewhere. Unlike most countries where a valid prenup is legal and binding when a couple separates, the Indian legal system does not fully recognize this pre-marital agreement. In fact, the concept is gaining some acceptance, especially in urban area, over the past few years but till date, it is not a completely legally valid pact as per the laws of our country.
Although all matrimonial laws in India have provisions for a wife's maintenance and alimony (under the Hindu Marriage Act, however, either party can claim it), the amount payable always depends on the partners' income, property and other circumstances. So it might have helped the couples who are fighting legal battle, had they declared their assets in the very beginning, reviewed their financial positions and agreed to a mutually acceptable division of wealth. This is the primary reason behind drawing up a prenup – so that a person may have a fair idea about what to give and what to receive if marriage goes kaput. In spite of lacking legal sanctity under Indian marital laws, a prenup can still be treated as a valid contract if a person and his/ her spouse consent to go by its terms and conditions. But then it will be more like divorce based on consent.
Another positive side of prenuptial agreement is that it may at least check some false prosecutions by unscrupulous Women, who are misusing Section 498A of IPC or Domestic Violence Act for blackmail and Extortion of money. That means, if both the parties are genuine, transparent and do not have any pre-planned ill mind, they will accept the same before marriage itself. The Prenuptials agreement stands a good chance of enforcement in India if the prenuptial agreement is certified by the court and this is probably possible under the "Special Marriage Act" where in the magistrate goes through all the documents and then declares the marriage based on those documents to be valid. It is therefore essential to understand that while prenuptial agreements might be a valuable way for parties in India to express their intention concerning the nature of their financial relationship; it is not possible to assure or even to expect that such agreed terms will be upheld in an Indian court.
Though divorce is quite common in India now, it is still not considered a possibility before the marriage and hence there is no thought of a pre-nuptial agreement. There is no talk of a pre-nuptial agreement at all as a way of a by-plan as far as the legislation is concerned. There may be a few people talking about the pre-nuptial agreement, but India is far from including it in it's law and legislation plans. Even though we still have a long way to go before pre-nuptial agreements are implemented in India it is a way by which couples can protect their assets in case of a divorce. A pre-nuptial agreement helps resolve and simplify a lot of financial and property issues. Since the division of assets are already done before the marriage, implementing what has been decided before the marriage makes life simpler. It just comes down to dividing the assets as mutually decided by the couple and will save nasty arguments later. But a person could get a pre-nuptial agreement drafted abroad, marry in India according to Indian tradition but the agreement will be valid in that particular country only and not in india.
While the debate about its legal validity and advantages continues, it is better to look at the emotional and social feasibility of a prenup, which is often seen as a mark of mistrust or lack of commitment among couples even before marriage. One can't change the society overnight but prenups are certainly getting popular in India, especially in the metro cities where about 10-15 per cent couples opt for some kind of pre-marriage Agreement as it gives them great peace of mind and makes them feel strong enough to handle all unforeseen circumstances. Although a very practical agreement, there are many who do not see the need for such a document. It, essentially, is an acceptance of the fact that marriage may not last. In other words, a person is giving up on his/her marriage before one even gets started. In fact, the couple, who are madly in love and who will soon vow that they will be together ‘always’, are expected to negotiate their own divorce settlement.
In conclusion it is perhaps wiser to go in for a prenuptial agreement that clearly states on a fair division of property, personal possessions and financial assets than fight over one’s favourite piece of furniture and crystal ware, later in the marriage. A well-drafted prenup can facilitate fairness, certainty and transparency in the treatment of marital or non-marital assets at a time when mutual anger may lead to misguided decisions. The law makers and the law regulators have to rise to the occasion and take in their stride the changing scenario. But then the issue arises as to how to handle the sacred ‘bandhan’ of seven lives sprinkled with ‘Teej’ and ‘Karva Chauth’!
Rakesh k. Singh.
This article is an unedited article written by me and which was also published in Bureaucracy today

Tuesday, 26 May 2015

The Tribals of India

Lawrence King, a reader at department of sociology at the UK's Cambridge University in a research, funded by UK Economic and Social Research Council, criticized the Government of India for continuing with the Sedition Laws introduced by the British in 1870. The Report further states that The tribals of India suffered first at the hands of the British Raj and more recently through exploitation by the Indian Ruling elites and Big Business. The Report then delves deep into the health issues and submits that the health of one group, i.e. Scheduled Tribes (broadly speaking indigenous people), is significantly worse than that of any other—including Scheduled Castes (untouchables). In 2005—06, the under-5 mortality rate was 74·3 per 1000 for the general population, 88·1 per 1000 for untouchables, and 95·7 per 1000 for tribal people; Similarly the proportions of undernourished children were 42·5%, 47·9%, and 54·5%, respectively for the said set of people for the said period. Further, for the same period the proportions of women with anaemia was 55·3%, 58·3%, and 68·5%, respectively for General, S.C's and S.T's.  

MY VIEWS ON TRANSFER OF ACP DHOBLE as on 13 January 2013

ACP DHOBLE TRANSFERRED AGAIN: Assistant Commissioner of Police Vasant Dhoble is transferred again in four months……the reason…..he tries to implement the law as it is…..Because he tries to uphold the dignity of the constitution…..
He was shunted from Social service branch because he tried to enforce law and regulate the working of late night pubs and lounges so they operate as per law……He cleared the tight scrutiny of Bombay High Court and there was not a single instance of officer doing anything in breach of law……Being transferred to Vakola Division in September 2012 he tried to do again for what he is “paid” for…..implement the law as it is….having my personal office in this Vakola division I had personal experience of the impact of the working of this officer…..the roads were broader, since the encroachment were not allowed…. There was a regular vigil and thus encroachers were not ready to put up their ghettos again….if you see the vile parle east area opposite the station, the road has all of a sudden become broader and beautiful….the unauthorized chaas walas, vegetable and fruit vendors, paaanwalas, etc all have disappeared or are doing their work from the building area and away from the road…. The shops were getting closed on time and there was relaxation for peace loving and law abiding citizens….
He tried to implement the same in santacruz and out of fear of law one encroacher died (the medical reason is brain hemorrhage)…How on planet EARTH CAN YOU BLAME THE OFFICER FOR HIS DEATH….What really happened?? The officer and his team were leading the eviction of unauthorized hawkers and unlike other eviction drive this was not known to the hawkers in advance… Thus when the team arrived, the unauthorized hawkers began to run and it was during this course this hawker died of brain hemorrhage….Full sympathy for the death of the hawker and am really saddened by the same…..However, to punish the officer for the natural death of a person is not only arbitrary but it amounts to victimization…..
….Two transfers in five months when a term of three years is prescribed is certainly a transfer of punitive nature and can not be granted without due notice and enquiry….The contention of the Hon’ble Chief minister that the probe of death of the Hawker by CID has to be impartial and thus the officer was transferred to non executive post is without any merit…..How does the CM shaeb explain this when CID is entirely independent from an officer posted in Vakola division…If this argument is taken then officer should be suspended and why transferred. Further, if this yardstick is taken then 1/3rd of CM saheb’s Council of Ministers should be shunted out as there are enquiry against them under various charges including corruption while in government…..Day in day out we complain sitting in our bedroom that police is not doing their job….but when a police officer does his job we want him to do as per out convenience….…
CONCLUSIONS:
Fools were the people who paid lakhs or rather crores for their stalls….fools are the ones who pay their taxes for better and broader roads……we should construct our houses on public places …we should carry our business from public spaces by constructing our offices on the public land….after all we are the public… we can gather in hundreds and we can compel our MLA and Our MP and finally the CM saheb to remove the officer…
Does the officer deserve this??? Yes of course…. he is going by the rule book… “how can he do that”…he is non corrupt “how can he be”…There is not a single instance of Corruption against ACP Dhoble in spite of him being in police of years……. “how can he be allowed” ….Look at the “wrongs” he has done in the past….He raided Amar Juice centre (JVPD) which is operating on public land and beyond the hours and above the gutter…..wait for some time the things will become “normal and regular”…. there will be congestion ..There will be encroachment …….there will be complaints….there will be corruption and there will be no “anti encroachment drive” and there will be no ACP Dhoble …..Jai Hind
Mera Bharat Mahan….Sau me se Ninayave Beimaan…….

DELHI HIGH COURT STRUCK DOWN COURT FEES: 2013

DELHI HIGH COURT HAS RECENTLY STRUCK DOWN THE HIKE IN COURT FEES
Noting that the “exorbitant” hike in court fee violated the fundamental right of access to justice and discriminated against poor litigants, the Delhi High Court struck down the Court Fee (Delhi Amendment) Act 2012.
“We have held that the Delhi legislative Assembly did not have the legislative competence to amend the Court Fee Act, 1870. We have also held that the Court Fees (Delhi Amendment) Act, 2012, adversely impacts the Part – III rights and results in violation of Article 38 and 39A of the Constitution of India. For thesereasons…the Court Fee (Delhi Amendment) Act, 2012, is hereby declared as invalid and ultra vires the Constitution and, therefore, struck down,” the bench of Justice Gita Mittal and Justice J R Midha had said.
The bench also ordered the government to refund the court fee collected from litigants based on prescriptions contained in the Act. The court held that it was the “constitutional duty of the state …to provide adequate finances to the institution to ensure the independence and impartiality of the judiciary” and that the “burden of bearing the cost….cannot ideally be transferred to the citizens”.
The Delhi government had passed the amendment in the budget session of the Assembly, stating that court fee had not been revised since 1958. The hike was meant to raise the revenue through court fee from Rs 50 crore to over Rs.450 crore.
The amendment had increased the fee for filing a writ petition before the Delhi High Court from Rs.5 to Rs.100.To file a bail application, the fee was hiked from Rs.1 to Rs.100 for district courts and from Rs.3 to Rs.250 for the High Court.
The amendment, which came into force from 1st August, 2012, had been greeted with protests by lawyers. The order has been passed on the petition filed by the Delhi High Court Bar Association.

AAP IS HERE TO STAY

Aam aadmi party is here to stay: in spite of the near blank and the drubbing, as perceived by many, AAP is here to stay. The recent election results are interesting for more than one reason. The results are beyond imagination and is an eye opener for pokitical pundits. Simply talking of aap, it is clear that you can not ignore them. Politics, more than anything else, is a game of perception. The perception about aap among its leaders and supporters including media was very high after the delhi election and what I call delhi experiment. Therefore all the talk of aap being over is like criticising sachin tendulkar for only making 40 runs and not a century. The decision of the party to contest on all india basis has only strengthened the base of the party. The party today can boast of all india presence and support base. There are number of political parties with ideologies like that of aap but the success of aap is more than that. With 4 MP's from punjab alone and decent share of votes all around the country the party has hit the mind and heart of the nation. With bjp lead NDA in power and gradual decline of communist parties in india the aap is here to fill the space left over by communist party. With the rising globalisation combined with liberalisation and privatisation one section of society with its anti capitalist stand is bound to be the support base for aap. Aap is here to stay.

Monday, 25 May 2015

NEW INSIDERS TRADING NORMS, NEW LISTING REGULATIONS and AMENDMENT IN DELISTING NORMS

NEW INSIDERS TRADING NORMS:
The SEBI has recently replaced almost two decade old SEBI (Prohibition of Insider Trading) Regulations, 1992 with a new regulation in place of existing regulation.
The new regulations put in place and strengthen the legal and enforcement framework, align Indian regime with international practices, provide clarity with respect to the definitions and concepts, and facilitate legitimate business transactions. The details are available on the website of SEBI.
NEW LISTING REGULATIONS:
On 19th November 2014, SEBI has come out SEBI (Listing Obligations & Disclosure Requirements) Regulations 2014, with comprehensive listing regulations to consolidate listing obligations and disclosure requirements for listed entities across all the below mentioned securities at one place. This would also facilitate better compliance and investor protection.
This Regulation would consolidate and streamline the provisions of existing listing agreements thereby ensuring better enforceability.
AMENDMENT IN DELISTING NORMS:
The following changes have been made to SEBI (Delisting of Equity Shares) Regulations, 2009:
1. The delisting shall be considered successful only when
a. the shareholding of the acquirer together with the shares tendered by public shareholders reaches 90% of the total share capital of the company and
b. if atleast 25% of the number of public shareholders, holding shares in dematerialised mode as on the date of the Board meeting which approves the delisting proposal, tender in the reverse book building process.
2. The offer price determined through Reverse Book Building shall be the price at which the shareholding of the promoter, after including the shareholding of the public shareholders who have tendered their shares, reaches the threshold limit of 90%.

SEBI Regulations

SEBI regulations 2014 comes in to force from today: SEBI (Research Analysts) Regulations, 2014 (“RA Regulations”) were notified in September 2014 and have come into effect from 1st December 2014. These regulations have been introduced to root out any foul play by the research entities analysts or individuals arising out of any conflict of interests.
As per these norms, no person shall act as research analyst or research entity or hold itself out as research analyst unless he has obtained a certificate of registration from SEBI under these regulations unless an exemption specifically applies. Proxy advisory firms, which do not provide buy and sell recommendations, are also required to register with the regulator.
This regulation not only requires registration of qualified individuals, but also prescribes the code of conduct of research analysts and entities. Strict requirements have been put in place for the minimum educational qualifications of the research analysts as well as the minimum capital adequacy requirement. The research analyst also needs to ensure that they obtain a NISM certification for research analysts as specified by the Board or other certification recognized by the Board from time to time.
Besides personal trading under these norms shall be monitored and has to be recorded as per the provisions and wherever required needs formal approval process. The research entity shall not pay any bonus, salary or compensation to the research analysts that are based on merchant banking, investment banking or brokerage service transactions.
Any person who makes public appearance or makes a recommendation or offers an opinion concerning securities or public offers through public media has to disclose his name, registration status and details of financial interest in the subject company and he shall comply with the provisions of the regulations. The regulations also provide for penal actions that SEBI can take against erring research analysts. Such actions would include cancellation of registration, debarment, or penalties similar to any other market intermediary.
However, registered Investment Advisers, Credit Rating Agencies, Portfolio Managers, Asset Management Companies, fund managers of Alternative Investment Funds or Venture Capital Funds would not be required to be registered under these regulations.
With regard to foreign entities, SEBI has decided that they have to enter into an arrangement with registered research analysts.