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Supreme Court imposes ban on sale of liquor along National and State Highways

The year 2016 brought with it commendable regulations and initiatives, aimed towards providing and ensuring promotion of public interest and safety.

The Supreme Court of India, in one of its landmark judgments titled “The State of Tamilnadu Rep. by its Secretary Home, Prohibition & Excise Dept. &Ors. vs. K. Balu&Anr.”, passed in December,2016, imposed a ban on sale of liquor in and around the National and State Highways. Vide the said judgment, all existing liquor licenses shall cease to exist w.e.f. 01st April, 2017 and no new liquor licenses will be grantedin areas which fall within the ambit of “those stretches of the national or state highways which pass through the limits of any municipality corporation, city, town or local authority”.

Concerned with the safety of citizens and in order to avoid accidents being caused by consumption of alcohol, the apex Court even issued directions for introducing and implementing essentialmeasures to ensure that “liquor vends are not visible or directly accessible from the national and state highways, within a stipulated distance of 500 metres from the outer edge of the highway, or from a service lane along the highway”.

In the light of the evidence and statistical data produced before the court, it was observed that amongst other reasons, accidents occurring on highways and expressways,were also primarily attributable to consumption of liquor and other intoxicating substances.

It was further observed that drivers undertaking long journeys and otherwise, had easy access to liquor, which in a way leads to unnecessary temptation. Even though one could purchase liquor before the journey commences, however, such accessibility should not be available in the due course of the journey. This preventive action was taken in consideration of the fact that accidents being caused due to unforeseen circumstances cannot be controlled, however, factors like consumption of liquor can always be regulated, if not completely eliminated. Keeping utmost regard for security of citizens, the apex Court imposed precautionary measures in order to increase safety of citizens on roadways.

This measure was undertaken in light of the rights and duties enshrined in our Constitution and comes as a relief for certain public authorities as episodes of driving under the influence will substantially reduce.

Even though this restrictive measure will have an impact on the livelihood of all those who are running restaurant with liquor licenses, however, it is likely to save thousands of lives, which are at risk while driving on such highways and expressways.

 

Trishla Harish
Senior Associate
The Indian Lawyer

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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

 

 

 

 

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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

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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

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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

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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

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The Prime Minster Narendra Modi-led Government has claimed to have made detailed planning and preparations for demonetization in the economy and has taken into consideration all possible measures to diminish the negative effects of demonetization. But according to Manmohan Singh, a Member of the Parliamentary Standing Committee on Finance, the RBI was given only one day to take a decision on the scheme of demonetization by the Government. As a result, less time for planning is being sensed as the reason behind the increasing number of notifications and circulars issued by RBI since 8th November, 2016 to address the issue of cash crunch arising out of demonetization and to ensure disclosure of undisclosed income by the black money hoarders. The RBI and the Ministry of Finance together have put out 60 notifications and orders or more in about 45 days of demonetization.

In the present situation on one hand, people are trying to deal with the issue of cash crunch and on the other hand, the RBI and the Ministry of Finance have been issuing new/amended notifications, clarification, circulars, norms etc every other day. RBI’s frequent clarifications and notifications; and its inability to supply sufficient cash to public have been raising doubts in the minds of people that if the Government had anticipated these consequences of demonetization and had made proper planning to handle them then what could have been the reason behind RBI’s frequent modifications to these rules and conditions. Many experts are of the view that this has tarnished the image and affected the credibility of a key democratic institution that has remained autonomous.

Although the ban seems successful so far in bringing at least a few black money hoarders to the forefront and also sucking out Rs 15.44 lakh crore (approximately) worth of high value currency notes (500 and 1000 rupees) in circulation but the problem of cash shortage in the economy still persists. With regard to the detection of black money, over Rs. 3,185 crores of undisclosed income has been admitted/detected (as reported on 21st December, 2016) while Rs. 86 crores worth new notes, and cash and jewellery worth over Rs 428 crores have been seized by the Income Tax Department (as reported on 19th December 2016). With regard to cash shortage, according to a report by an RTI-activist Anil Ganguly on 20th November, 2016, the RBI says it had Rs 4.94 lakh crore worth of new 2000 rupee notes as on 8th November, 2016 but according to the RBI Deputy Governor R. Gandhi on 13th December, 2016 only Rs 4.61 lakh crore of 2000 rupee notes have been issued to public over their counters and through their ATMs between 10th November, 2016 and 10th December, 2016.

Therefore, as the demonetization scheme is seen to have resolving the black money problem in Indian economy; the cash crunch problem arising out of demonetization should also be resolved at the earliest by RBI so that it would be easier for the public to adapt to this situation.

 

Daliparthy Harini

Legal Associate

The Indian Lawyer

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“The Indian Lawyer & Allied Services” which is based in New Delhi, Mumbai and Hyderabad had the opportunity to participate and speak at the “VIII India-Russia Business Dialogue”(IRBD) and III Eurasian Economic Congress, held on December 6, 2016 at the International Multimedia Press Center MIA, a partner of which is the Indian Business Alliance (IBA) and Business Council for Cooperation with India (BCCI). Sushila Ram Varma, Chief Consultant of The Indian Lawyer & Allied Services discussed DOING BUSINESS IN INDIA where she had the opportunity to make foreign investors understand Government’s Foreign Investment Policies in India.

The Indian Lawyer and Allied Services also announces its participation in the “Annual International Arbitration Conference, Russia as a place for Dispute Resolution” organized by International Chamber of Commerce(ICC) Russia which was held on December 7, 2016. The ICC Conference was well attended by Partners and Directors of various International Law Firms. Also, Alexey Kostin Chairman and Vladimir Khvalei, Vice Chairman of the ICC International Court of Arbitration were present.

Mrs. Sushila Ram Varma gave a COMPREHENSIVE ANALYSIS ABOUT INDIA’S DISPUTE RESOLUTION laws that were amended recently with the view of making arbitration a speedy remedy of dispute resolution. Her paper was well received by the international audience.

ABOUT ICC INTERNATIONAL COURT OF ARBITRATION

The International Court of Arbitration is the world’s leading body for the resolution of international disputes by arbitration.

The universal scope of the International Court of Arbitration, commonly known as “the Court”, is evidenced by the fact that each year, numerous parties, arbitrators and lawyers from countries of every economic, political and social system are present in ICC Arbitrations.

The Court members’ diverse professional, legal and cultural background brings richness to the Court’s daily work and decision making process.

The Court is one of the worlds’ most experienced and renowned international arbitration institutions. Working closely with its Secretariat, the Court’s primary role is to administer ICC Arbitrations. It performs the functions entrusted to it under the ICC Rules of Arbitration and continually strives to assist parties and arbitrators to overcome any procedural obstacles that arise.

In performing its functions, the Court is mindful of its duty to make every effort to ensure that awards are enforceable by law.

Speakers from the major countries were present in the Conference discussing Arbitration in their jurisdiction. Arbitrations have become a recognized means of resolving disputes all over the world. It was an honour for The Indian Lawyer & Allied Services to represent India and discuss about how India has also recognized the importance of quick resolution of disputes thereby amending the Arbitration Laws.

 

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In the recent times it has been observed that the National Capital’s pollution index is elevating to toxic levels because of various factors such as increased vehicular emissions, major ongoing construction works, burning of rice straw and agricultural wastage by farmers of Haryana and Punjab, inter alia. The Government of NCT of Delhi has been in action to curb the rising levels of pollution in the National Capital by organizing public awareness campaigns about the health hazards and control measures of vehicular emissions; by deploying mobile enforcement teams on regular basis at road locations for prosecution of polluting vehicles and vehicles not having Pollution Under Control (PUC) Certificates; by banning more than 15 years old commercial/ transport vehicles, autos & taxis driven on conventional fuels and diesel driven city buses; by registering four wheelers petrol driven vehicles which have catalyst converters fitted into their system and which comply with Bharat Stage III/Euro-III emission norms; by registering two and three wheelers which comply with Bharat Stage II/Euro-II emission norms; by banning 50 major construction works ongoing in Delhi and National Capital Region (NCR) for a week on 8th November 2016; and by asking National Thermal Power Corporation (NTPC) to find all possible solutions, including generating power from farm waste and converting farm waste into briquettes which can be burnt as fuel to generate electricity in its existing power plants.

According to Mr. Gufran Beig, the Program Director of SAFAR (System of Air Quality and Weather Forecasting and Research), Government of India, the proportion of pollutants from crop fires in Delhi’s air has risen dramatically from almost zero on November 1 to a peak of 70% on November 6. SAFAR’s chemistry transport model shows that pollution load from crop fires in Punjab and Haryana rose steadily after November 1. The biomass burning in Punjab and Haryana has contributed to the air pollution levels in Delhi. According to Professor V K Vijay, Centre for Rural Development and Technology (CRDT), IIT-Delhi, burning rice straw biomass adds up to 30kg of particulate matter, 600kg of carbon monoxide, 14.6 tonnes of carbon dioxide along with 20kg of sulphur dioxide emissions that are very harmful to humans as well as the environment.  Such farm wastes if used as forage for livestock would reduce the environmental impact but mostly they are burnt by farmers and left on the field to be ploughed down into the soil because they act as a soil improver and this would prepare the fields for the next sowing cycle.

It was reported recently that the States of Punjab and Haryana collectively produce about 15 million tonnes of rice straw which can be used to generate about 1,000 MW of electricity. But for installation of biogas plants hardly any debt funding is received from financial institutions and in case they are installed, they have a high cost of power. As a result very few biogas plants have been installed in India.

On November 15th, a team from IIT Delhi had come forward to offer technical support for Asia’s first biogas-based power plant in Fazilka, Punjab, which will be using the agro biomass for production of bio-fertilizers for farmers as well as for generation of power. This will not only help enrich the soil but will also help in controlling pollution. Also, if the Governments of Delhi, Punjab, Haryana and Uttar Pradesh collectively make efforts to install or co-invest in such plants, the farm wastes would be used in a prudent manner which would result in controlling the rising levels of pollution in these regions.

 

Harini Daliparthy

Legal Associate

The Indian Lawyer

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Debit Card fraud occurs when a criminal gains access to a debit card number and the PIN to make unauthorized purchases and/or withdraw cash from your account.

In the 1st week of September, 2016 a few banks witnessed fraudulent exchanges in which debit cards were utilized in China and the US whereas card holders were in India. Cardholders also found this activities and many filed a complaint with their respective banks. The test by National Payments Corporation of India (NPCI) found a malware-prompted security break in the frameworks of Hitachi Payment Services, which gives ATMs, PoS (Point of Sale) and other different services in India.

After the test, it was found that ATMs’ security had been breached in May 2016 and all the three service suppliers Visa, MasterCard and RuPay asked banks to either tell their customers to change their PIN, or issue them new cards. Most banks requested their clients to change their ATM PIN, and in specific cases issue new cards by making the old ones null and void.

It is one of the greatest information breaches in the nation. As per NPCI, 90 ATMs have been compromised, and no less than 641 card holders of over 19 banks have lost Rs 1.3 crore as a consequence of deceitful transaction on their debit cards.

In order to alleviate this problem, RBI has set up a specialist board on IT Examination and Cyber Security to help the banks with cyber security activities, and proposes to cover, by 2017-18, all banks under a point by point IT examination program that it propelled in October 2015.

Here are some of the ways to avoid becoming the victim:

  1. Banking alerts: On signing up for banking alerts, your bank will contact you by email or text message when certain activity occurs on your account, such as a withdrawal exceeding an amount you specify or a change of address.
  2. Use a credit card: Instead of using a debit card for purchasing, use a credit card as it offers greater protection against fraud.
  3. Beware of phishing scams: Make sure you know who you’re interacting with, When checking your email or doing business online.
  4. Use a secured network: One should never do financial transactions online, while using the computer in a public place and/or over an unsecured network.

 

Sanchayeeta Das

Legal Associate

The Indian Lawyer

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