The After-Effects of Amending Article 370

President Ram Nath Kovind on Monday issued Constitution (Application to Jammu and Kashmir) Order, 2019, which called for provisions of the Indian Constitution be applicable in the state “at once”. Notably, the President’s Order will supersede the Constitution (Application to Jammu and Kashmir) Order, 1954.


Despite tension, fears, and huge anticipation of a big move in the valley, the BJP Government has finally dropped the big Kashmir bomb today. The Home Minister, Mr Amit Shah said in Parliament that Article 370 of the Constitution, which grants special status to Jammu and Kashmir, has been amended. The Home Minister added, Jammu and Kashmir will be a separate Union Territory with a legislative assembly and Ladakh will be a separate Union Territory (UT) without an assembly. Jammu and Kashmir being a UT with the assembly will have a partial statehood status with an elected assembly and LG whereas Ladakh will be ruled directly by the Union Government through LG. Article 370 of the Constitution was a ‘temporary provision’ which promised to grant autonomous status to Jammu and Kashmir and limit the Parliament’s powers to make laws for the State. Constitutional provisions that were applicable to other Indian states are not applicable to J&K. Under Part XXI of the Constitution titled “Temporary, transitional and special provisions”, Article 370 is categorised as a “temporary provision with respect to the State of Jammu and Kashmir”.


Before the amendment, the Centre needed the State Government’s concurrence to apply laws — except in defence, foreign affairs, finance and communications. It meant the State’s Residents lived under a separate set of laws, including those related to citizenship, ownership
of property, and fundamental rights, as compared to other Indians.

What will happen to J&K now?
After’s Kashmir special status is gone, people from anywhere in India will be able to buy land, property or permanently settle in the State.
The BJP has fulfilled their promise as quoted in their manifestos. The BJP manifesto stated:
“In the last five years, we have made all necessary efforts to ensure peace in Jammu and Kashmir through decisive actions and a firm policy. We are committed to overcoming all obstacles that come in the way of development and providing adequate financial resources to all the regions of the state. We reiterate our position since the time of the Jan Sangh to the abrogation of Article 370,”.
It is now left to see the real after-math of such a historical event.

President Ram Nath Kovind on Monday issued Constitution (Application to Jammu and Kashmir) Order, 2019, which called for provisions of the Indian Constitution be applicable in the state “at once”. Notably, the President’s order will supersede the Constitution (Application to Jammu and Kashmir) Order, 1954.

Amid tension, fears, and huge anticipation of a big movein the valley, BJP Government has finally dropped the big Kashmir bomb today, Home minister, Amit Shah said in Parliament today that Article 370 of the Constitution, which grants special status to Jammu and Kashmir, has been amended. The home minister added, Jammu and Kashmir will also be reorganised, Jammu and Kashmir being a separate Union territory with a Legislative assembly and Ladakh a separate Union territory without the assembly. Jammu and Kashmir being the UT with the assembly will have a partial statehood status with an elected assembly and LG whereas Ladakh will be ruled directly by Union Government through the LG.

Article 370 of the Constitution was a ‘temporary provision’ which promises to grant autonomous status to Jammu and Kashmir and limits parliament’s powers to make laws for the state. Constitutional provisions that are applicable to other Indian states are not applicable to J&K. Under Part XXI of the Constitution titled “Temporary, transitional and special provisions”, Article 370 is categorised as a “temporary provision with respect to the state of Jammu and Kashmir”.

Under this Article, the Centre needs the State Government’s concurrence to apply laws — except in defence, foreign affairs, finance and communications. It means the state’s residents live under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to other Indians.

After being re-elected in national polls this year, BJP as quoted in their manifestos have tried to fulfil that promise, it is now left to seen the real after-math of such a historical event.”In the last five years, we have made all necessary efforts to ensure peace in Jammu and Kashmir through decisive actions and a firm policy. We are committed to overcoming all obstacles that come in the way of development and providing adequate financial resources to all the regions of the state. We reiterate our position since the time of the Jan Sangh to the abrogation of Article 370,” the BJP manifesto for the national polls read.

Saurabh Yadav

Intern, The Indian Lawyer

GOVERNMENT OF INDIA’S MOVE TO REMOVE SPECIAL STATUS OF JAMMU AND KASHMIR AND BIFURCATE IT INTO SEPARATE UNION TERRITORIES

In one of the historic and unprecedented moves, the Government of India has amended and revoked Article 370 and Article 35A of the Constitution of India 1950 as amended thereof (the Constitution) respectively, vide promulgation of the Constitution (Application to Jammu & Kashmir) Order, 2019 (the Order) on 05-08-2019, thereby removing the special autonomous status that was earlier granted to Jammu and Kashmir (J&K).

Reportedly, the special status was earlier granted to J&K in order to refrain influx or invasion of J&K by outsiders, especially, from Hindu community, so that the Muslim-majority population in Kashmir valley was not diluted. The said special status enabled J&K to have their own constitution, criminal laws, national flag, non-applicability of orders of the Supreme Court of India and Indian laws in J&K, non-acquisition of land and non-employment of Indians in J&K.

But there has been a need to remove the special status and move beyond the regressive idea of living solo at a place and allow people from other states and countries to settle and/or set up businesses in J&K, bring more global investments, allow students and professionals from outside J&K to study and work in J&K, improve the quality of faculty, education, etc in J&K, and develop J&K economically, politically and socially.

Thus, the Government of India has annulled the special status of State of J&K and further announced to bifurcate the State of J&K into two Union Territories (UTs), namely, Union Territory of Ladakh (without Legislature) and Union Territory of J&K (with Legislature) for better and proper administration. Ladakh is said to be a scarcely populated region with a difficult terrain, whereas, J&K is said to be vulnerable to internal security and cross-border terrorism issues.

As a result of the promulgation of Order dated 05-08-2019, J&K would now be treated at par with other states of India. Although there have been mixed reactions from various people and politicians across the country in response to this Government move, but the Government continues to remain positive about its decision, as it would help in growth and development of J&K.

It seems the present Government has finally found a solution to the beleaguered problem of Kashmir. This move will now make the netizens of J & K at par with the rest of India. Mr Modi’s Government may have with one fell stroke crushed the chronic problem of Kashmir that was bleeding the National Exchequer.

Though currently there is a mixed reaction it is hoped that all will settle down and India will send strong signals to all that dare to upset the peace of the country.

SUPREME COURT OF INDIA HAS UPHELD DEATH SENTENCE OF ACCUSED FOR COMMITTING RAPE AND MURDER OF MINOR CHILDREN

The Supreme Court has in a recent case of Manoharan vs. State by Inspector of Police, Variety Hall Police Station, Coimbatore, passed a judgment dated 01-08-2019 whereby the Court held the Appellant-Accused guilty of commission of offence of rape and murder of minor children and thus, confirmed the death sentence awarded to the Accused-Appellant.

The Appellant-Accused along with another person were accused of brutally raping a 10-year-old girl and thereafter, murdering the minor girl and her younger brother. The other accused person was later on shot dead in a police encounter, leaving only the Appellant to be tried as an accused. The Trial Court of Madras had held the Appellant guilty of criminal conspiracy, kidnapping, rape, murder, causing disappearance of evidence, etc, and awarded death sentence to him. The High Court of Madras also confirmed the death sentence awarded to the Appellant-Accused.

The Supreme Court upheld the death penalty awarded to the Appellant-Accused based on the following circumstances:

  1. As per the Apex Court’s judgment in Machhi Singh v. State of Punjab 1983, a death sentence may be awarded by a court when:
  • The murder is committed in an extremely brutal, barbaric or outrageous manner so as to shock the collective conscience of the community or arouse intense and extreme indignation amongst them.
  • The murder is committed for a motive which displays total immorality and meanness.
  • The murder is committed not for personal reasons but for political reasons or to terrorize the people living in a particular society, caste or community, etc.
  • When multiple murders are committed of a particular section of a society.
  • When the victim is an innocent child who could not have provoked the person to cause his/her murder.

Having regard to the nature and circumstances of the crime, if the court feels that the life imprisonment appears to be an inadequate punishment, and the aggravating circumstances weigh more than the mitigating circumstances, only then the court may award death penalty to an accused person.

2. In view of the significant amendments to the Protection of Children from Sexual Offences Act, 2012, vide the Protection of Children from Sexual Offences (Amendment) Bill, 2019 (the Law) that have been recently passed by the Parliament of India on 01-08-2019, the Supreme Court herein stated that the minimum punishment for commission of an offence of aggravated penetrative sexual assault, has been increased to imprisonment of 20 years, extendable to life imprisonment or death.

Applying the aforesaid principles and amendments, the Apex Court herein held that the Appellant-Accused along with the deceased person had committed aggravated penetrative sexual assault on the 10-year-old girl and cold-blooded murder of both the minor children in a most heinous manner possible. Thus, the Supreme Court upheld and confirmed the death penalty awarded to the Appellant-Accused.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

THE SUPREME COURT OF INDIA RULES ON ISSUE OF RETROSPECITIVITY OF SECTION 143A AND SECTION 148 OF NEGOTIABLE INSTRUMENT ACT,1881

The Supreme Court of India in the matter of G.J.Raja vs. Tejraj Surana dated 30.07.2019, while deciding the retrospective applicability of the certain Sections of Negotiable Instrument Act, 1881 (Act), has ruled that Section 143A of the Act which basically states that the court can order interim compensation to the complainant during the pendency of the case, does not have retrospective application. However it held that Section 148 of the Act, shall apply retrospectively. Section 148 allows the Appellate Court to direct the Accused to deposit a minimum of twenty per cent of the awarded amount (of the fine or compensation) decided by the trial Court.

The Bench comprising of Justice Uday Umesh Lalit and Justice Vineet Saran pronounced the Judgment in an appeal against a decision of the Madras High Court. The Bench categorically held that Section 143A is prospective in operation and the provisions can be applied or invoked only in cases where the offence under Section 138 of the Act was committed after the amendment and introduction of the said Section in the statute book.

In this Judgment the Supreme Court of India upheld the Punjab and Haryana High Court’s view, wherein Justice Rajbir Sehrawat, previously, held that Section 143A of the Act has no retrospective effect whereas Section 148 of the Act will apply to the pending appeals on date of enforcement of this provision.

Negotiable Instrument Act, Amendment 2018

The amendment to the Act in year 2018 introduced two new Sections i.e. Section 143A and Section 148. Section 143A gives power to the Trial Court to direct the accused to ‘pay’ an interim compensation which cannot be more than 20% of the ‘cheque amount’. A period of sixty days, after the Order is passed, is given to pay the interim compensation. It can be recovered in the manner of recovery of fine as provided in Section 421 of the Code of Criminal Procedure. The provision also stated that the interim compensation so received has to be returned by the complainant along with interest at bank rates as prescribed by Reserve Bank of India, if the accused is acquitted after the trial. Section 148 of the Act empowers the Appellate Court to direct the accused /Appellant to deposit minimum of 20% of fine or compensation awarded by the Trial Court.

Sourabh Kumar Mishra

Senior Legal Associate

The Indian Lawyer

COMPETITION COMMISSION OF INDIA HAS HELD MULTIPLEX OWNERS NOT LIABLE FOR ANTI-COMPETITIVE PRACTICES

Recently, the Competition Commission of India (C.C.I) has dismissed a case filed in Unilazer Ventures Private Limited v. P.V.R. Ltd. and others 24-07-2019 in which the Informant made the following main allegations:

  1. That lavish multiplexes colluded charge higher virtual print fee (V.P.F) from Indian film producers/distributor than Hollywood producers/distributors
  2. That multiplexes play longer duration advertisements to make profits, as a result of which the efforts of the producer in curtailing the length of the film are disrupted
  3. That the multiplex owners being in a position of strength unilaterally prescribed terms of revenue sharing with the producers/distributors.

But the CCI dismissed the aforesaid allegations on the following grounds:

  1. That there was no evidence of any anti-competitive agreement amongst the multiplex owners leading to imposition of common V.P.F on Indian producers. 
  2. That the allegation pertaining to longer duration of advertisements does not fall under the ambit of the Competition Act 2002 as amended thereof (the Act).
  3. That the revenue sharing arrangement between producers and multiplex owners was made with mutual consent and due deliberations.

Thus, the C.C.I held that the multiplex owners were not liable for carrying out any anti-competitive practices in contravention of the provisions of the Act.

Govind Gupta

Associate

The Indian Lawyer

PARLIAMENT PASSES RIGHT TO INFORMATION (AMENDMENT) BILL, 2019

The Rajya Sabha on Thursday passed Right to Information (Amendment) Bill 2019, which was cleared by Lok Sabha on Monday. This caused a stir not only in the political houses but also across the nation, as the Amendment received mixed reactions.

The Bill has basically amended two sections i.e . Section 16 and Section 27 of the Right To Information Act 2005 (Act), but its implications are said to be highly political. Bill proposes to change the fixed term of the Information Commissioner, and make their pay and service conditions subject to the executive rules to be made by the Government.  As per the current Act the Chief Information Commissioner and Information Commissioners have fixed term of five years, but the new Bill changes that and instead, states “ for such term as may be prescribed by the Central Government”. Even the term of State Information Commissioner is curtailed by the Amendment.

Other Section, which has been amended i.e. Section 27, will now give rule-making power to the Central Government to determine the pay, allowances and service conditions of Information Commissioner. The present Act states that the salary and allowances of Chief Information Commissioner and Chief Election Commissioner will be same, which are fixed as per the provisions of the Constitution. It is assumed that the RTI Act has consciously given similar status to both in order to ensure that they function independently and autonomously.

Although while introducing the Bill, Jitendra Singh, Minister of State of Ministry of Personnel, Public Grievances and Pension, said that Information Commission was a statutory body and it was an anomaly to equate it to a constitutional body like Election Commission. Making Information Commissioners equal to the status of Election Commissioners means that they are at par with Supreme Court judges. However, the orders of Information Commissioners can be challenged in the High Court. Therefore, there is an apparent anomaly in the status of Information Commissioners, which needs to be rectified, explained the Minister. The attempt of the government is not to undermine the autonomy of Information Commissioners, but to bring in uniformity in services, said the Minister. He also pointed out that the Sections 12(4) of the Act, which ensures the autonomy of Information Commissioners, has been left untouched by the amendment. The process of appointment of Information Commissioners as specified in Section 12(3) has also been kept the same, the Minister added.

The political parties along with former Information Commissioner have assailed the Bill, as they said that this Bill will weaken the whole structure and will make them subservient to the political executive and will defy the whole purpose of the Act itself.

Sourabh Kumar Mishra

Senior Legal Associate

The Indian Lawyer

IMPROVED RANKING OF INDIA IN THE GLOBAL INNOVATION INDEX 2019

The Global Innovation Index (GII) has recently released its innovation rankings of various economies, in New Delhi on 24-07-2019. India has shot-up five places to improve its position from 57th in 2018 to 52nd in 2019, whereas, Switzerland has bagged the first place in the GII Index.

GII is said to be a leading reference on innovation, as over the years, it has been indicating the innovation capabilities and results of developed and emerging economies across the world. The GII determines the rankings based on various criteria such as (1) institutions, (2) human capital and research, (3) infrastructure, (4) market sophistication, and (5) business sophistication (6) knowledge and technology outputs and (7) creative outputs.

Various knowledge partners have collaborated with GII including the Confederation of Indian Industry (CII), believing in the role of innovation in increasing the competitiveness of nations, economic growth, etc.

The Union Minister of Commerce and Industry and Railways, Shri Piyush Goyal, congratulated all those who were involved in the process of innovation and further stated that India aims at positioning itself among the top 25 countries of the GII Index. Thus, he has urged the research and development (R&D) institutions, universities, private sector and the World Intellectual Property Organization (WIPO) to provide innovative solutions to tackle various issues such as pollution, water crisis, depleting natural resources, climate change, food wastage, healthcare, etc that are prevalent in the country.

These continued and innovative efforts to resolve various issues predominant in the country would help to improve the quality and standard of living of people of the country and also help in transformation of the country into a hub of innovation.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

Apostille and Hague Convention

One might wonder when there is attestation, why the need for apostille? Well, both the terms basically mean the legalization of documents. The major difference is the countries. There are countries that accept certificate attestation of documents, while some countries mandate document apostille. And the countries for which apostille of documents is compulsory, have signed the petition for the Hague Convention.

This article is two-parter, the first part is about apostille as an individual term and its role and significance in the process of document legalization. Secondly, the Hague Convention or Apostille Hague Convention is explained in detail with its history and importance.

What is Apostille?

Apostille, pronounced as ‘ ah-poh-steel ’, is a French word that means certification of something. The term has a different meaning in the formal context. Certificate apostille is a process that is carried out for the legal documents of three types – personal, educational and commercial. It is done at the time when there is a requirement for particular documents by the concerned authorities. It is simply the process of obtaining an apostille sticker and stamp on the public documents. The documents are authenticated by the department of central government that attends to the foreign affairs of the country. It varies from country to country.

Why is it required?

In certain cases, an attestation simply is not sufficient. Not every country approves an attestation, and as a result, in cases where the documents have to be used in countries belonging to the Hague Convention, an apostille is required. This can include documents used for several purposes such as applying for a visa or permanent residency, performing business-related work, and so on. By doing an apostille, the document possesses a higher value and becomes valid in all those countries.

Apostille procedure

With the documents, the procedures for the same vary too. Personal and educational documents are generally legalized by a government department, while the commercial documents are authenticated by a non-governmental organization named Chamber of Commerce. The general apostille procedure is as follows:

  • Regional Level: It is the beginning stage of the certificate legalization procedure. This stage of verification can be done by the notary or the board or University from where the documents were issued, as per the requirement or from the Chamber of commerce in the case of commercial documents. This is generally the same for all the countries.
  • State Level: The verification of certificates from the state is carried out by different departments as per the requirement of the document type. Secretariats or the Desk Officers at the State Government perform this procedure. For instance, apostille in India is done by the Home Department or HRD Department. On the other hand, in the USA, the Secretary will attest your documents. There are respective officials and departments in different countries.
  • Central Level: In this step, the central government department provides a sticker which contains the name and other details of the applicant. It is the final step of apostille attestation and is performed by the central government. The Ministry of External Affairs in India and the US Department of State in the USA are the government organizations that apostille the documents. The departments vary from country to country.

Depending on the type of document, the classification of the procedure is given below:

Personal document apostille

The documents that contain personal information of an individual are classified as personal documents. These documents are certified for the issuance of resident, student visa and at times employment visa as well. The step-by-step procedure is as follows:

Educational document apostille

Educational documents are those that contain details of your academic performance like mark sheets or grade sheets, your curriculum and formal documents like school-leaving certificate, migration certificate or the degree certificate. The procedure for the apostille of educational documents differs as per the specific requirement of the country and the institute and state of issuance. The processes are as follows:

Commercial document apostille

Business-related documents that witness the already settled business like the Memorandum of Association, Trademark, Company Profile, and others, are all categorized as commercial documents. The procedure for the apostille of commercial documents is as follows:

When the processes are done on the documents, they are ready to be submitted to the respect Apostille documented authorities. Unlike the attestation process, embassy attestation is not required for the apostilled document. The process is completed by the officials at the Ministry of External Affairs (MEA) by providing a stamp and an apostille sticker on the document.

What is the Hague Convention?

The Hague Convention is a treaty that was passed in order to abolish the necessity for the authentication of documents and promote liberalization. The treaty was signed on 5th of October, 1961 in the Netherlands. Effective from January 14th, 1965, the convention now has 117 country members. When one obtains an apostille on documents once, there is no need for the same documents again for another signatory country. Due to the introduction of the Hague Convention, barriers in trading and other areas have been reduced and there is better accessibility through the nations.

The Apostille Convention was drafted under the Private International Law which is an organization that functions to resolve legal conflicts that occur when one crosses international boundaries. The Hague Conference was the party that drafted the convention.

Apostille in India

Apostille in India is being carried out for 14 years now since it has been a recognized member of the convention. India has been a member of the Apostille Hague Convention since 2005, being accepted in almost all the Hague countries. The Ministry of External Affairs (MEA) is the central government department that carries out the apostille procedure. It is the department that deals with all the foreign matters. In India, the validity of the apostille sticker is six months. The procedure is an indirect course of action that involves attestation readily from the regional and the state government before approaching the MEA.

Generally, the document apostille is done with the assistance of professionals. It is so because the documents that need to be legalized are sensitive and must be handled properly. Apostille services provide facilities in order to make the process convenient for the customer. With the chain of vendors, getting apostille becomes facile.

Article contributed by Ms. Nilam Bhong,

Director, PEC Attestation, Apostille & Translation  Pvt Ltd

THE INTERNATIONAL COURT OF JUSTICE HAS HELD THAT ESPIONAGE IS NOT AN EXCEPTION TO RIGHT TO CONSULAR ACCESS UNDER VIENNA CONVENTION

Recently, the International Court of Justice (ICJ), at The Hague, Netherlands, has directed the Pakistan Government to allow consular access to Mr. Kulbhushan Jadhav and for India to arrange for Mr. Jadhav’s legal representation. It further held Pakistan liable for the violation of Vienna Convention on Consular Relations 1963 (the Convention) by not informing Mr. Jadhav about his rights to consular access under Article 36 (1) (b) of the said Convention.

The said Convention lays down the framework for consular relations between various countries with the object of protecting the interests of their countrymen in the host country, and also, for furthering the commercial and economic relations between the two states.

In the present case, Mr. Jadhav was earlier arrested by the Pakistani forces in Baluchistan Province of Pakistan alleging that he was a spy and that he posed a threat to the sovereignty of Pakistan. Later on, he was charged with the offences of espionage and was sentenced to death penalty by the Military Court of Pakistan. Throughout this period, India had been requesting the Pakistan Government for consular access for Mr. Jadhav under the said Convention, but it had been denied to him. Thereafter, the Military Court of Pakistan sentenced him to death, without granting consular access to him and without informing the Indian Government about his arrest/detention.

To this, the Pakistan Government primarily argued that under customary international law, consular access cannot be allowed to a spy and that the Convention is also not applicable in espionage cases.

But the ICJ had rejected these contentions of Pakistan and held that after the codification of consular rights in the form of Vienna Convention, there has been no scope left for applicability of customary international law. Further, that the Convention does not distinguish espionage cases with other cases, and therefore, the Convention is equally applicable to espionage cases. Thus, the ICJ stayed the death penalty awarded to Mr. Jadhav by the Military Court of Pakistan and allowed consular access to Mr. Kulbhushan Jadhav and the Indian Government.

This decision finds significance with regard to international criminal law as it strengthens the applicability of Vienna Convention and at the same time its enforceability among its member states.

Sourabh Kumar Mishra

Senior Associate

The Indian Lawyer

GOVERNMENT PROPOSES KEY AMENDMENTS TO INSOLVENCY AND BANKRUPTCY CODE 2016

Recently, the Government of India had proposed certain changes in the Insolvency and Bankruptcy Code 2016 as amended thereof (the Code) which have been passed by the Union Cabinet on 17-07-2019.

The said proposed amendments to the Code are as follows:

  1. That a time limit of 330 days has been fixed for bankruptcy resolution of a debtor company. Once the time limit expires, the corporate debtor would be liquidated.
  2. That the bankruptcy resolution or the liquidation of a corporate debtor, as the case may be, would have a binding effect on authorities including the central, state and local governments, to whom the bankrupt firm may owe dues.
  3. That there may be a clarity with regard to the position of financial and operational creditors in the order of priority for the purpose of distribution of sale proceeds after liquidation of debtor’s assets. Although the proposed amendments indicate primacy of secured financial creditors over operational creditors and unsecured financial creditors.
  4. That in cases where there are a large number of creditors such as homebuyers and bondholders, etc, if more than half of these creditors, present and voting in the CoC meeting, approve a resolution plan, it would be considered that the entire class of creditors has approved it. The said voting threshold of 50% has been brought down from the earlier 66% voting threshold.

In this way, these proposed amendments are aimed at facilitating decision-making in the case of bankrupt entities such as property developers, which have a large number of creditors, including homebuyers, and also, in ensuring a speedy resolution of insolvency and bankruptcy process.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer