BAN ON JALLIKATTU

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Jallikattu (or sallikkattu), also known as eru thazhuvuthal and manju virattu, is a traditional spectacle in which a bull is released into a crowd of people and multiple human participants attempt to grab the large hump of the bull with both arms and hang on to it while the bull attempts to escape. Participants hold the hump for as long as possible, attempting to bring the bull to a stop. In some cases, participants must ride long enough to remove flags on the bull’s horns.

Jallikattu is typically practiced in the Indian state of Tamil Nadu as a part of Pongal celebrations on Mattu Pongal day.

Animal welfare concerns are related to the handling of the bulls before they are released and also during competitor’s attempts to subdue the bull.

Practices before the bull is released include prodding the bull with sharp sticks, extreme bending of the tail which can fracture the vertebrae and biting of the bull’s tail. There are also reports of the bulls being forced to drink alcohol to disorient them, or chilly peppers being rubbed in their eyes to aggravate the bull.

During attempts to subdue the bull, they are stabbed by various implements such as knives or sticks, punched, jumped on and dragged to the ground. Protestors claim that Jallikattu is promoted as bull taming. Along with human injuries and fatalities, bulls themselves sometimes sustain injuries or die, which people may interpret as a bad omen for the village.

An investigation by the Animal Welfare Board of India concluded that Jallikattu is inherently cruel to animals.

Animal welfare Organizations, the Federation of Indian Animal Protection Organizations (FIAPO) and PETA India have protested against the practice and filed a case in the Supreme Court of India for an outright ban on Jallikattu because of the cruelty to animals and the threat to public safety involved. The Supreme Court held AWBI to be right in its stand that Jallikattu, Bullock-cart Race and such events per se violate Prevention of Cruelty to Animals Act and held that Bulls cannot be used as performing animals, either for the Jallikattu events or Bullock-cart Races in the State of Tamil Nadu, Maharashtra or elsewhere in the country.

 

Sanchayeeta Das

Legal Associate

The Indian Lawyer

 

 

 

 

BANK LOANS TO LOW NET WORTH PERSONS: A PUNISHABLE OFFENCE

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The Indian banking system lays down certain norms and guidelines for sanctioning credit facilities to an individual or a company. As per the Reserve Bank of India (RBI) circular number DBOD. No. Dir. BC.16/13.03.00/2014-15, a company (including its promoters) to which a bank may lend money should have adequate net worth and an excellent track record of servicing loans availed from the banking system. Moreover, the amount of bank finance to be provided should be reasonable in terms of the bank’s size, its net worth, business and risk profile. According to the RBI circular number DBOD No.Dir.BC. 14/13.03.00/ 2010-11, net worth comprises of Paid-up capital plus Free Reserves including Share Premium (but excluding Revaluation Reserves), Investment Fluctuation Reserve and credit balance in Profit & Loss account, less debit balance in Profit and Loss account, Accumulated Losses and Intangible Assets.

The laws that govern the issue of banks lending funds to companies having low net worth and credit rating are the Banking Regulation Act (the “BR Act”) 1949 and the Prevention of Corruption Act (the “PC Act”) 1988.

  • (i) The BR Act, which was enacted to govern the law related to banking, provided under section 46A that every chairman, managing-director, manager, etc of a banking company shall be deemed to be a public servant for the purposes of Chapter IX of IPC. Subsequent to the enactment of PC Act, Chapter IX of IPC was repealed.
  • (ii) The PC Act, which was enacted to combat corruption among public servants in India, provided under section 2 (c) (viii) that a public servant is a person who is authorized or required to perform any public duty by virtue of the office he holds, and under sections 7 to 12 that a public servant shall be penalized with imprisonment and fine for any offence committed under the Act.

 

But there was a lot of confusion as to whether the scope of the term ‘public servant’ would extend only to the public sector and government employees. This issue was settled by the Supreme Court of India in the case of Ramesh Galli vs. CBI through Superintendent of Police, Bank Securities & Fraud Cell & Anr 2013, where it had held that the term ‘public servant’ as defined in the PC Act has a wider scope and includes bankers working in a private bank, who are required by law to perform a public duty, in the discharge of which the State, the public or the community at large has an interest. Herein, it was held that by virtue of the relevant provisions of the PC Act read with BR Act, the Chairman and the Executive Director of the Global Trust Bank had misused their official position to illegally sanction higher credit limits to a private company, thereby causing wrongful loss to the bank.

Recently in the Vijay Mallya-Kingfisher Airlines case, the C.B.I. had conducted an investigation in the and discovered that the officials of the government-owned financial service company, i.e. Industrial Development Bank of India (IDBI) including ex-IDBI Bank chairman Yogesh Agarwal and former deputy managing directors were involved in the alleged sanction of loans to Kingfisher Airlines despite its negative net worth and low credit rating in the market. This action of the Bank officials had caused a wrongful loss of over Rs 900 crore to the Bank. The C.B.I. had filed a charge-sheet invoking section 120B (criminal conspiracy: imprisonment for a maximum of six months or fine or both), section 420 (cheating: imprisonment for seven years and fine) of the Indian Penal Code (IPC) 1960; and section 13(1) (d) and 13(2) (criminal misconduct by a public servant: imprisonment for a minimum term of one year extendable to seven years and fine) of the PC Act.

The aforesaid laws strictly govern the conduct of public servants who abuse their official position for any pecuniary advantage, etc and also penalize them for their criminal misconduct.

 

Harini Daliparthy

Legal Associate

The Indian Lawyer

HELP AN ACCIDENT VICTIM WITHOUT BEING HARASSED

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In the last ten years, road crashes have killed over 13 lakh people in India. According to the Law Commission of India, 50% of these victims died of preventable injuries and could have been saved if they had received care on time.

According to the World Health Organisation (WHO), in the absence of established emergency medical services, bystanders can play a game changing role in saving lives. They can call for help, provide first-aid to the injured and even rush them to the nearest hospital, if an ambulance does not arrive in time.

The role of the bystander is critical in providing emergency care to the victim. Yet, in India, bystanders have been hesitant to help the injured for fear of legal repercussions and procedural hassles.

With regard to this problem, in 2012, SaveLIFE Foundation had filed a Public Interest Litigation (PIL) in the Supreme Court of India, requesting the Hon’ble court to safeguard Good Samaritans who come forward to help the injured. On March 30, 2016, the Supreme Court of India gave “force of law” to the guidelines for the protection of Good Samaritans issued by the Ministry of Road Transport and Highways. The purpose of a Good Samaritan law is to provide legal protection to bystanders who come to the aid and rescue of victims of road accidents.

As per the Notification dated 21 January 2016 of the Ministry of Road Transport and Highways, the Central Government considered it necessary to issue Standard Operating Procedure for the examination of Good Samaritans by the Police or during trial and here by issue the following standard operating procedure, namely:—

  • The Good Samaritan shall be treated respectfully and without any discrimination on the grounds of gender, religion, nationality, caste or any other grounds.
  • Any person who makes a phone call to the Police control room or Police station to give information about any accidental injury or death, except an eyewitness may not reveal personal details such as full name, address, phone number, etc.
  • Any Police official, on arrival at the scene, shall not compel the Good Samaritan to disclose his / her name, identity, address and other such details in the Record Form or Log Register.
  • Any Police official or any other person shall not force any Good Samaritan who helps an injured person to become a witness in the matter. The option of becoming a witness in the matter shall solely rest with the Good Samaritan.
  • The concerned Police official(s) shall allow the Good Samaritan to leave after having informed the Police about an injured person on the road, and no further questions shall be asked if the Good Samaritan does not desire to be a witness in the matter.

 

Examination of Good Samaritan by the Police

  • In case a Good Samaritan so chooses to be a witness, he shall be examined with utmost care and respect and without any discrimination on the grounds of gender, religion, nationality, caste or any other grounds.
  • In case a Good Samaritan chooses to be a witness, his examination by the investigating officer shall, as far as possible, be conducted at a time and place of his convenience such as his place of residence or business, and the investigation officer shall be dressed in plain clothes, unless the Good Samaritan chooses to visit the police station.
  • Where the examination of the Good Samaritan is not possible to be conducted at a time and place of his convenience and the Good Samaritan is required by the Investigation Officer to visit the police station, the reasons for the same shall be recorded by such officer in writing.
  • In case a Good Samaritan so chooses to visit the Police Station, he shall be examined in a single examination in a reasonable and time-bound manner, without causing any undue delay.
  • In case the Good Samaritan speaks a language other than the language of the Investigating Officer or the local language of the respective jurisdiction, the Investigating Officer shall arrange for an interpreter.
  • The complete statement or affidavit of such Good Samaritan shall be recorded by the Police official while conducting the investigation in a single examination.

 

This decision of the Supreme Court has made it easier for the common man to save an injured accident victim without the fear of being harassed by a police.

 

Sanchayeeta Das

Legal Associate

The Indian Lawyer

CONSUMER PROTECTION LAW AND SERVICE CHARGE CONCEPT IN INDIA

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The Consumer Protection Act 1986 has been enacted to protect the rights and interests of the consumers against unfair or restrictive trade practices of any trader or service provider. Aggrieved consumers may file a complaint against such unfair trade practices to the appropriate District/State/National Consumer Disputes Redressal Agency established under the Act for redressal of grievances.

The Consumer Disputes Redressal Agencies have been receiving a number of complaints from consumers regarding arbitrary levy of service charges in hotels and restaurants irrespective of the kind of service provided to them. The Finance Act, 1994 only mandates payment of service tax but a general practice of levying service charges against the wishes of the consumers has been adopted by hotels and restaurants.

With regard to this issue, the Ministry of Consumer Affairs, Food & Public Distribution has clarified on 2nd January 2017 that the practice of adding service charges of about 5 to 20 percent by hotels and restaurants isn’t mandatory and in the event that the consumers are not satisfied with the service provided by the hotels and restaurants they can choose to waive it. The Department of Consumer Affairs has held that such a trade practice adopted by the hotels and restaurants is to be treated as an unfair trade practice and that a consumer may make a complaint to the appropriate Consumer Disputes Redressal Agency against such unfair or deceptive trade practices.

The Department of Consumer Affairs has also sought clarification from the Hotel Association of India about levy of service charges to which they replied that payment of service charge is the discretion of a consumer and if a consumer is dissatisfied with the dining experience he/she may choose not to pay it.

The Department of Consumer Affairs has asked the State Governments to create awareness among the hotels and restaurants in the states regarding the relevant provisions of the Consumer Protection Act, 1986 and also to direct them to spread or publish the information through display at the appropriate place in the hotels/restaurants that payment of service charges is discretionary/ voluntary and a consumer not satisfied with the services can have it waived off. The Union Consumer Affairs Minister, Ram Vilas Paswan has mentioned in an official statement that the hotel menu cards should reflect all costs, including service charge, and such service charge should be given to poor waiters.

The confusion as to payment of service charge and service tax has been finally put to rest by the Ministry of Consumer Affairs, Food & Public Distribution and any violation of this decision will attract legal action before the Consumer Disputes Redressal Agencies.

Harini Daliparthy

Legal Associate

The Indian Lawyer

HIGH COURTS CAN INTERFERE WITH FLAWED DISCIPLINARY INQUIRY

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The aim of the Rule of Natural Justice is to secure justice. The principles of natural justice are the rules laid down by the courts for minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial or quasi-judicial authority.

Disciplinary inquiry is clearly based on the principles of Natural Justice and fair play. However, the Apex Court said that in a case where the disciplinary authority arrives at a finding that is unsupported by evidence or records a finding which no reasonable person could have arrived at, then the writ court is justified in examining the matter.

Where the disciplinary authority records a finding that is unsupported by evidence or a finding which no reasonable person could have arrived at, the writ court would be justified, if not duty bound, to examine the matter and grant relief in appropriate cases.

Non-application of mind by the inquiry officer or authority, non-recording of reasons in support of the conclusion arrived at by them are also grounds on which the writ courts are justified in interfering with the orders of punishment.

The Supreme Court has said in Allahabad Bank vs. Krishna Narayan Tewari 2017 SCC 2 that a High Court can interfere with disciplinary inquiry or orders passed by the competent authority if the investigation itself is corrupted on account of violation of principles of natural justice.

This decision of the Supreme Court shall act as a boon for the society at large.

 

Sanchayeeta Das

Legal Associate

The Indian Lawyer