DEFAMATION

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Defamation is an injury to the reputation of a person. A defamatory statement is a statement calculated to expose a person to hatred, contempt or ridicule, or to injure him in his trade, business, profession, calling or office, or to cause him to be shunned or avoided in society.

The offence of defamation consists of three essential ingredients:-

  1. Making or publishing any imputation concerning any person.
  2. Such imputation must have been made by words either spoken or intended to be read, or by signs, or by visible representations.
  3. Such imputation must have been made with the intent to harm, or with knowledge or belief that it will harm the reputation of the person concerned.

 

The wrong of defamation may be committed either by way of writing, or its equivalent, or by way of speech. The term ‘libel’ is used for the former kind of utterances, ‘slander’ for the latter. Libel is a written, and slander is a spoken defamation.

A libel is a publication of a false and defamatory statement tending to injure the reputation of another person without lawful justification or excuse. The statement must be expressed in some permanent form, e.g., writing, printing, pictures, statue, waxwork effigy, etc.

A slander is a false and defamatory statement by spoken words or gestures tending to injure the reputation of another.

In order to find an action for libel, it must be proved that the statement complained of is:-

  1. False
  2. In writing
  3. Defamatory
  4. Published

 

Both libel and slander are criminal offences under The Indian Penal Code, 1860 and both are actionable in Civil Court without proof of special damage.

The offence of defamation consists in the injury offered to reputation not in any breach of the peace or other consequence that may result from it. The essence of the offence consists in its tendency to cause that description of pain, which is felt by a person who knows himself to be the object of the unfavorable sentiments of his fellow creatures, and those inconveniences to which a person who is the object of such unfavorable sentiments is exposed.

Though there is no universal rule that to hold the accused guilty of defamation the actual words used by the accused must be proved; it is nonetheless essential to prove the exact words used in as much as the question whether certain words used are defamatory or not depends solely on the shade of their meaning in the context in which they are used. It thus boils down that the prosecution will be required to prove not only the exact words used but also the context in which they were spoken.

Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years or with fine or both under The Indian Penal Code, 1860.

Following are some of the defenses available under Defamation:-

  1. Imputation of truth which public good requires to be making or publishing.
  2. Public conduct of public servants.
  3. Conduct of any person touching any public question.
  4. Publication of reports of proceedings of courts.
  5. Merits of case decided in Court or conduct of witnesses and others concerned.
  6. Merits of public performance.
  7. Censure passed in good faith by person having lawful authority over another.
  8. Accusation preferred in good faith to authorized person.
  9. Imputation made in good faith by person for protection of his or other’s interests.
  10. Caution intended for good of person to whom conveyed or for public good.

 

Sanchayeeta Das

Legal Associate

The Indian Lawyer

AARUSHI MURDER CASE: ALLAHABAD HIGH COURT ACQUITS TALWAR COUPLE FOR INSUFFICIENT EVIDENCE

There is a strong possibility that (the) incident was caused by some outsider,” a bench comprising justices BK Narayana and AK Mishra said, upholding the Talwars’ appeal against the CBI court verdict.

RAJESH

The Allahabad High Court on Thursday, 12th October, 2017 in its 263-page verdict ends, at least for now, the nine-year ordeal of the Noida couple who were sentenced to life by a Ghaziabad CBI court on November 28, 2013 for the double murder that shook the nation with its element of filicide.

The Court acquitted Rajesh and Nupur Talwar of the murder of their teenage daughter Aarushi and their domestic help Hemraj in 2008. The Court give Talwars the “benefit of doubt,” subsequently the Court ordered that the two be immediately released, saying that circumstantial evidence against them was found to be inconclusive and evidence supplied by the prosecution counsel was not sufficient.

The fourteen-year-old Aarushi was found dead inside her room in the Talwars’ Noida residence with her throat slit in May 2008. The needle of suspicion had initially moved towards 45- year-old Hemraj later he was discovered dead the next day on the terrace of the apartment building in Noida.

On November 26, 2013, a Division Bench of Justice B K Narayana and Justice A K Mishra of the Allahabad High Court admitted the appeals by the Talwars against the Ghaziabad CBI Court order sentencing them to life imprisonment. The CBI Court sentenced them to rigorous imprisonment for life, a fine of Rs 10,000 each for murder, rigorous imprisonment for five years and a fine of Rs 5,000 each for destruction of evidence, a one-year sentence of simple imprisonment for Rajesh Talwar and an additional fine of Rs 2,000 for filing a misleading FIR. All sentences were to run concurrently.

The verdict ends a nine-year ordeal of the parents who were found guilty by a CBI court of murdering 14-year-old Aarushi in a fit of rage as they suspected her of having an affair with Hemraj

The Court said, “The chain of evidence stood snapped the moment the prosecution failed to provide evidence that the Talwars’ flat was locked from the inside and the evidence suggests there is strong possibility of outsiders having access to the flat and having left the same after committing the double murders. We do not find any reason to fasten the guilt of double murders on the Talwars merely on the proof of the deceased being last seen in their flat on the night of 15.5.2008, especially in the view of the alternate hypothesis of the double murder by the prosecution.”

Justice Narayana further said, “Suspicion, however great, cannot take the place of proof.

A.N. Mulla, the Additional Government Advocate for the State in the case said, “We will most probably appeal this case in the Supreme Court. But only the CBI can say what the next step will be.

It is shameful that the real killers are still unknown.

 

Taruna Verma

Senior Associate

GOODS AND SERVICES TAX: THE NEW RATES

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After the 23rd GST Council meeting in Guwahati, the tax rates on over 200 items, including beauty products, chewing gums, chocolates, coffee, and custard powder, among others, were slashed from 28 per cent to 18 per cent. Only luxury goods are now only in the highest tax bracket and items of daily use are shifted to 18 per cent.

All restaurants will be levied the GST at 5 per cent, without input tax credit (ITC) benefits. However five-star restaurants within starred-hotels with room rent above Rs. 7,500 will attract 18 per cent and can still avail ITC benefits. Outdoor catering will attract 18 per cent GST with input tax credit benefits.

The top tax rate of 28 per cent will now be levied on goods like pan masala, aerated water and beverages, cigars and cigarettes, tobacco products, cement, paints, perfumes, ACs, dish washing machine, washing machine, refrigerators, vacuum cleaners, cars and two-wheelers, aircraft and yachts.


Items on which GST was cut from 28 per cent to 18 per cent:

  • Wire, cables, insulated conductors, electrical insulators, electrical plugs, switches, sockets, fuses, relays, electrical connectors
  • Electrical boards, panels, consoles, cabinets etc for electric control or distribution
  • Particle/fibre boards and ply wood. Article of wood, wooden frame, paving block
  • Furniture, mattress, bedding and similar furnishing
  • Trunk, suitcase, vanity cases, brief cases, travelling bags and other hand bags, cases
  • Detergents, washing and cleaning preparations
  • Liquid or cream for washing the skin
  • Shampoos; Hair cream, Hair dyes (natural, herbal or synthetic) and similar other goods; henna powder or paste, not mixed with any other ingredient;
  • Pre-shave, shaving or after-shave preparations, personal deodorants, bath preparations, perfumery, cosmetic or toilet preparations, room deodorizer
  • Perfumes and toilet waters
  • Beauty or make-up preparations
  • Fans, pumps, compressors
  • Lamp and light fitting
  • Primary cell and primary batteries
  • Sanitary ware and parts thereof of all kind
  • Articles of plastic, floor covering, baths, shower, sinks, washbasins, seats, sanitary ware of plastic
  • Slabs of marbles and granite
  • Goods of marble and granite such as tiles
  • Ceramic tiles of all kinds
  • Miscellaneous articles such as vacuum flasks, lighters,
  • Wrist watches, clocks, watch movement, watch cases, straps, parts
  • Article of apparel & clothing accessories of leather, guts, fur skin, artificial fur and other articles such as saddlery and harness for any animal
  • Articles of cutlery, stoves, cookers and similar non electric domestic appliances
  • Razor and razor blades
  • Multi-functional printers, cartridges
  • Office or desk equipment
  • Door, windows and frames of aluminum
  • Articles of plaster such as board, sheet,
  • Articles of cement or concrete or stone and artificial stone,
  • Articles of asphalt or slate,
  • Articles of mica
  • Ceramic flooring blocks, pipes, conduit, pipe fitting
  • Wall paper and wall covering
  • Glass of all kinds and articles thereof such as mirror, safety glass, sheets, glassware
  • Electrical, electronic weighing machinery
  • Fire extinguishers and fire extinguishing charge
  • Fork lifts, lifting and handling equipment,
  • Bull dozers, excavators, loaders, road rollers,
  • Earth moving and leveling machinery,
  • Escalators,
  • Cooling towers, pressure vessels, reactors
  • Crankshaft for sewing machine, tailor’s dummies, bearing housings, gears and gearing; ball or roller screws; gaskets
  • Electrical apparatus for radio and television broadcasting
  • Sound recording or reproducing apparatus
  • Signalling, safety or traffic control equipment for transports
  • Physical exercise equipment, festival and carnival equipment, swings, shooting galleries, roundabouts, gymnastic and athletic equipment
  • All musical instruments and their parts
  • Artificial flowers, foliage and artificial fruits
  • Explosive, anti-knocking preparation, fireworks
  • Cocoa butter, fat, oil powder,
  • Extract, essence ad concentrates of coffee, miscellaneous food preparations, Chocolates, Chewing gum / bubble gum
  • Malt extract and food preparations of flour, starch or malt extract
  • Waffles and wafers coated with chocolate or containing chocolate
  • Rubber tubes and miscellaneous articles of rubber, goggles, binoculars, telescope, cinematographic cameras and projectors, image projector, microscope, specified laboratory equipment, specified scientific equipment such as for meteorology, hydrology, oceanography, geology Solvent, thinners, hydraulic fluids, anti-freezing preparation

 

Items on which GST was cut from 28 per cent to 12 per cent 

  • Wet grinders consisting of stone as grinder
  • Tanks and other armored fighting vehicles

 

Items on which GST was cut from 18 per cent to 12 per cent:

  • Condensed milk
  • Refined sugar and sugar cubes
  • Pasta
  • Curry paste, mayonnaise and salad dressings, mixed condiments and mixed seasoning
  • Diabetic food
  • Medicinal grade oxygen
  • Printing ink
  • Hand bags and shopping bags of jute and cotton
  • Hats (knitted or crocheted)
  • Parts of specified agricultural, horticultural, forestry, harvesting or threshing machinery
  • Specified parts of sewing machine
  • Spectacles frames
  • Furniture wholly made of bamboo or cane

 

Items on which GST was cut from 18 per cent to 5 per cent 

  • Puffed rice chikki, peanut chikki, sesame chikki, revdi, tilrevdi, khaza, kazuali, groundnut sweets gatta, kuliya
  • Flour of potatoes put up in unit container bearing a brand name
  • Chutney powder
  • Fly ash
  • Sulphur recovered in refining of crude
  • Fly ash aggregate with 90% or more fly ash content

 

Items on which GST was cut from 12 per cent to 5 per cent:

  • Desiccated coconut
  • Narrow woven fabric including cotton newar [with no refund of unutilised input tax credit]
  • Idli, dosa batter
  • Finished leather, chamois and composition leather
  • Coir cordage and ropes, jute twine, coir products
  • Fishing net and fishing hooks
  • Worn clothing
  • Fly ash brick

 

Items on which GST was cut from 5 per cent to nil 

  • Guar meal
  • Hop cone (other than grounded, powdered or in pellet form)
  • Certain dried vegetables such as sweet potatoes, maniac
  • Unworked coconut shell
  • Fish frozen or dried (not put up in unit container bearing a brand name)
  • Khandsari sugar

 

GST rates on aircraft engines was cut from 28 per cent/18 per cent to 5 per cent, aircraft tyres from 28 per cent to 5 per cent and aircraft seats from 28 per cent to 5 per cent. Also GST rate on bangles of lac/shellac from 3 per cent GST rate to Nil.

Exports of services to Nepal and Bhutan have been exempted from GST. It has now been decided that such exporters will also be eligible for claiming Input Tax Credit in respect of goods or services used for effecting such exempt supply of services to Nepal and Bhutan.

The outcome of 23rd GST Council to reduce GST on AC restaurants from 18% to 5% is a very progressive step which will make eating out and ordering food at home much more affordable for consumers and will lead to a significant growth in the organized restaurant segment.

Sanchayeeta Das

Legal Associate

The Indian Lawyer

POSITION REGARDING APPLICABILITY OF GOODS AND SERVICES TAX ON LEGAL SERVICES

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According to the Goods and Services tax (GST) Laws, legal services have been made taxable based on reverse charge mechanism. Reverse charge has been defined to mean the liability to pay tax is on the recipient of supply of goods or services or both instead of the supplier of such goods or services, in respect of certain categories of intra-state supply of goods and services under the Central GST (CGST) Act 2017 or inter-state supply of goods and services under the Integrated GST (IGST) Act 2017, whichever applicable.

The Ministry of Finance had issued a Notification, No. 13/2017-Central Tax (Rate) dated 28.6.2017, which provided that the central tax leviable under section 9 of the CGST Act on certain categories of supply of services supplied by a person, shall be paid on reverse charge basis by the recipient of such services. One of such categories of supply of services included legal services provided by an individual advocate including a senior advocate or firm of advocates (supplier of service) to any business entity located in the taxable territory (recipient of service):

Services supplied by an individual advocate including a senior advocate by way of representational services before any court, tribunal or authority, directly or indirectly, to any business entity located in the taxable territory, including where contract for provision of such service has been entered through another advocate or a firm of advocates, or by a firm of advocates, by way of legal services, to a business entity.

 

The Central Board of Excise and Customs (CBEC) has clarified regarding certain compliances in respect of supplies under reverse charge mechanism:

  1. As per Section 24 (iii) of the CGST Act, 2017, every person who is required to pay tax under reverse charge has to register under the CGST Act, 2017.
  2. As per CGST Act and Rules, the following documents have to mention whether the tax in respect of supply in the invoice is payable on reverse charge:
  3. i) Every tax invoice, which is issued where the value of goods or services is more than two hundred rupees,
  4. ii) Every receipt voucher, which is issued against receipt of advance payment and
  • iii) Every refund voucher, which is issued in case, after issuance of receipt voucher, no supply is made and no tax invoice is issued.
  1. Any person making advance payment for supplies has also to pay tax on reverse charge basis.
  2. Upon supply of goods or services or both, the person liable to pay tax under Section 9 sub-section (3) or (4), has to issue a payment voucher at the time of making payment to the supplier.
  3. The electronic cash ledger, maintained on the Common GST Electronic Portal by a registered person liable to pay tax, has to be debited to pay an amount under reverse charge.
  4. Every registered person has to maintain records of all supplies attracting payment of tax on reverse charge basis.
  5. The information about all supplies that attract reverse charge has to be furnished separately, rate wise, in the Table 4B of GSTR-1.

Therefore, as per the GST Laws and the CBEC, the legal services, which include representational services, provided by an advocate or firm of advocates are liable for payment of GST under reverse charge by the business entity or the recipient.

DELHI HIGH COURT: REMOVAL OF LOUDSPEAKERS FROM RELIGIOUS PLACES

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The Delhi High Court in a Bench comprising of Acting Chief Justice Gita Mittal and Justice C Hari Shankar issued notice to the Union of India, Government of NCT of Delhi and Delhi Police Commissioner on a public interest litigation (PIL) filed by social activist Sanjjiiv Kkumaar, for removal of loudspeakers from all religious structures on the ground that their use is an encroachment on a person’s “right to be left alone and spatial control” and thus violates the newly recognised fundamental right to privacy.

The Petitioner traced the advent of all religions in India and quoted that the loudspeakers were never part of any religion as they came into existence only in 1924, “Hinduism is 4,000 years old, Jainism is 2,600 years old, Buddhism is 2,500 years old, Christianity is 2,000 years old, Islam is 400 years old, Sikhism is 500 years old and on another hand, Moving coil current loudspeakers are not even 100 years old. Thus, it’s beyond doubt, and as facts and truth speaks for itself per se, loudspeakers were never a part of any religion

As loudspeakers is not part of/or intrinsic to any of the religions as all religions are 4,000 to 500 years old whereas loudspeaker came into existence in 1924, that is less than 100 years and hence, banning them will not violate Article 25 or 26 of the Constitution of India, 1949”.

This observation of Hon’ble Apex Court is of utmost importance as what Supreme Court says, Loudspeakers do exactly opposite of the same and hence violate fundamental rights of citizens of India,” this plea referred to the landmark judgement of the Supreme Court in Forum, Prevention of Environment and Sound Pollution which declared the Right to Privacy as a Fundamental Right quoted as, “No religion ever says to force the unwilling to listen to expressions of religious beliefs.

It also quoted an observation made by Justice DY Chandrachud in the privacy judgment that “one’s house is like a castle to him. If loudspeakers are encroaching one’s right of spatial control (one’s home), one’s right to left alone, then what’s the meaning of fundamental rights? It will be just on paper. Hence to protect and uphold the fundamental rights of one’s “left alone”, “personhood (physical and mental peace), spatial control – Loudspeakers need to go”.

The Petitioner in his PIL said that use of loudspeakers certainly takes away the right of the citizens to speak with others, their right to read or think or the right to sleep, “Every democratic country sanctifies domestic life; it is expected to give him rest, physical happiness, peace of mind and security. In the last resort, a person’s house, where he lives with his family, is his “castle”; it is his rampart against encroachment on his personal liberty”.

The Petitioner also made his point by saying that, “There may be heart patients or patients suffering from nervous disorder may be compelled to bear this serious impact of sound pollution which has had an adverse effect on them. Toddlers, kids are equally affected,”.

The matter is further listed for hearing on 29th January 2018.

 

TARUNA VERMA

SENIOR ASSOCIATE

THE EASE OF DOING BUSINESS IN INDIA RANKING 2018 BY THE WORLD BANK

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Recently, the World Bank has published the rankings for 190 economies in terms of their ease of doing business (EODB) at http://www.doingbusiness.org/rankings which are taken upto to June 2017. India has been ranked at 100 in terms of its EODB, thereby moving into the top 100 of the World Bank’s EODB global rankings from its 130th position last year.

The overall ranking of the economies in terms of their EODB as well as category-wise ranking ranges from 1–190. A high ease of doing business ranking implies that the regulatory environment is more favorable and beneficial to the starting and operation of a local entity.

The following table indicates the overall as well as category-wise Doing Business (DB) Ranking of India by the World Bank for 2018:

SN TOPICS DB 2018 RANK
1. Overall 100

 

2. Starting a Business 156
3. Dealing with Construction Permits 181
4. Getting Electricity 29
5. Registering Property 154
6. Getting Credit 29
7. Protecting Minority Investors 4
8. Paying Taxes 119
9. Trading across Borders 146
10. Enforcing Contracts 164
11. Resolving Insolvency 103

 

Note: = Doing Business reform making it easier to do business.

These rankings are determined by sorting the aggregate distance to frontier (DTF) scores on 10 topics. An economy’s DTF is reflected on a scale from 0 to 100, where 0 represents the lowest performance and 100 represents the frontier. These DTF scores are taken as a basis to determine the overall ranking of an economy in terms of its ease of doing business.

The following are the DTF scores for Doing Business in India in 2018 as compared to that of in 2017 in various categories:

 

SN TOPICS DB 2018 DTF DB 2017 DTF Change in DTF (% points)
1. Overall 60.76

 

56.05

 

4.71
2. Starting a Business 75.40 73.69 1.71
3. Dealing with Construction Permits 38.80 36.17 2.63
4. Getting Electricity 85.21 85.17 0.04
5. Registering Property 47.08 46.83 0.25
6. Getting Credit 75.00 65.00 10.00
7. Protecting Minority Investors 80.00 76.67 3.33
8. Paying Taxes 66.06 47.67 18.39
9. Trading across Borders 58.56 57.61 0.95
10. Enforcing Contracts 40.76 38.90 1.86
11. Resolving Insolvency 40.75 32.75 8.00

 

According to the World Bank, the Government of India has initiated the following reforms under each category to make it easier to do business in India:

  • Starting a Business:

India has facilitated fast business set up by improving the online application system and allowing a common online application form for the Permanent Account Number (PAN) and the Tax Account Number (TAN).

  • Dealing with Construction Permits

India has implemented an online system of dealing with construction permits which may reduce the instances of lengthy and time taking procedures to obtain a building permit and has also streamlined the process at the Municipality of New Delhi and Municipality of Greater Mumbai.

  • Getting Electricity

The Government of India had in 2016 introduced an online application system for obtaining new commercial electricity connections, the Central Electricity Authority (CEA) has waived off the Electrical Inspector’s approval for internal wiring and installation, has made available to public the data pertaining to supply of electricity connections across Delhi and Mumbai, which may make it easier and faster to get electricity. The cities of Delhi and Mumbai have incorporated these reforms.

  • Getting Credit and Resolving Insolvency

India had introduced a new law, namely, the Insolvency and Bankruptcy Code 2016, which continues to focus on creditor driven insolvency resolution process. The creditors have the power to decide whether the debtor’s business is feasible to continue and the options for its revival, etc. Moreover, after the payment of the insolvency resolution process costs and the liquidation costs, the claims of secured creditors and the workmen dues stand as a priority to all other claims. These reforms may strengthen the access to credit in India.

Moreover, the Code has provided for time bound settlement of insolvency (180 days) by the National Company law Tribunal (NCLT), easier revival process or liquidation, participation of creditor in insolvency proceedings, etc which makes it easier for creditors, financial institutions and banks to deal with non-performing assets (NPAs) and to be aware of serial defaulters.

  • Protecting Minority Investors

The Companies Act 2013 has taken into consideration the importance of protection of minority investors. The independent directors are responsible for safeguard the interests of minority shareholders, for balancing the conflict of interests of all stakeholders, etc. If the investors are protected, the company may be able to raise the capital needed to grow, innovate, diversify and compete, otherwise, banks may become the only source of finance.

  • Paying Taxes

India has eased the tax compliance on businesses by providing an online platform for electronic payment of the Employees’ Provident Fund (EPF) and has introduced certain other measures to ease corporate income tax compliance.

  • Trading across Borders

The reduced cross border trade compliance costs in Delhi and Mumbai achieved by eliminating merchant overtime fees (which were to be paid by an assessee for availing the services of Central Excise Officers after the official hours) and the increased use of electronic platforms may help in reducing the time taken to comply with the import and export regulations.

  • Enforcing Contracts

The ‘Enforcing Contracts’ indicator measures the time and cost to resolve a standardized commercial dispute which can be determined from a comprehensive database of pending and disposed cases in the district courts of the country available at http://njdg.ecourts.gov.in. The computerization of court records across various states of the country has made it possible to collect and organize such data online.

Therefore, the Government of India has been introducing and improving several measures to attract foreign investments and facilitate ease of doing business in India.

 

Harini Daliparthy

Legal Associate

COMPULSORY REGISTRATION OF DOCUMENTS UNDER REGISTRATION ACT, 1908

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Introduction

The Registration Act, 1908 serves the purpose of proper recording and registration of documents/instruments, which give them more authenticity. Registration means recording of the contents of a document with a Registering Officer and preservation of copies of original document. Documents are registered for the purpose of conservation of evidence, assurance of title, publicity of documents and prevention of fraud.

Object of Registration Act

The object of Registration and inter-alia Registration Act is elaborately discussed by Hon’ble Supreme Court in case of Suraj Lamp and Industries Pvt. Ltd. versus State of Haryana and Another AIR 2012 SC 206, as under:

“The Registration Act, 1908, was enacted with the intention of providing orderliness, discipline and public notice in regard to transactions relating to immovable property and protection from fraud and forgery of documents of transfer.”

Registration of Document

The documents registrable under the Act fall under three categories.

In the first category, documents relating to transactions which according to the substantive law, can be affected only by registered documents. In order for a transaction to be valid must be effected by a registered instrument only. What it provides is that when there is a written instrument evidencing a transaction, it must, in certain cases, be registered. Under section 17 of the Registration Act, the compulsorily registrable documents are given.

In the second category, certain transactions can be effected without writing, i.e. partitions, releases, settlements etc. But, if the transaction is evidenced by a writing and relates to immovable property, the Registration Act steps in and clauses (b) and (c) of Section 17(1) of said Act require registration of such documents, subject to the exception specified in sub-section 2 of that section. If an authority to adopt is conferred in writing, other than a Will, it is also required to be registered vide section 17(3).

In the third category, it is open to the parties, if they so choose, to get certain documents registered at their option and this is permitted by section 18. ‘Will’ need not be registered but it is open to the parties to get it registered under the third category.

Under the Registration Act, the following documents are compulsorily registrable.

  1. Instruments of gift of immovable property.
  2. Other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property.
  3. Non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest.
  4. Leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent.
  5. Non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property.

 

Limitation for registration of a document

Limitation for registration of a document under Section 23 of the Act, subject to certain exceptions, any document other than a Will has to be presented for registration within four months from the date of its execution. The term ‘execution’ means signing of the agreement.

Section 17 deals with documents of which registration is compulsory. Whereas, sub-Section (2) of section 17 provides a dozen of exceptions to clause (b) and (c) of section 17(1).

Section 18 of Registration Act pertains to documents of which registration is optional. Word ‘may’ is used in textual of section 18.

The Registration Act strikes only at documents, and not at transactions. All that it enacts is that when a document is employed to effectuate any of the transaction specified in s.17 of the Registration Act, such document must be registered.

 

Sanchayeeta Das

Legal Associate

The Indian Lawyer

OPTIONAL REGISTRATION OF DOCUMENTS UNDER THE REGISTRATION ACT, 1908

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The real purpose of the Registration Act, 1908 (the Act) is to provide a method of public registration of documents so as to give information to people regarding legal rights and obligations arising or affecting a particular property, and to perpetuate documents which may afterwards be of legal importance, and to secure every person dealing with any property against fraud. The scheme of the Act is to consolidate the law relating to registration.

Registration lends inviolability and importance to certain types of documents. At the time of registration, it is very essential to see that the officer is duly competent to register a document and that the document is not presented to unqualified or a wrong registration circle, as otherwise such registration would be of no use or validity. If the language in the document is not understood by the registering officer, he shall refuse to register the document. Also, no non-testamentary deed relating to immovable property would be accepted for registration, unless it contains a description of such property sufficient to identify the same.

If an instrument is compulsorily registrable, it should be presented for registration before an officer who is competent to register such document which can be read under Section 17 of the Act. However, in case of an instrument which is not compulsorily registrable, it is complete without registration.

At this juncture, it is very essential to refer Section 18 of the Act, 1908 which deals with “Documents of which registration is optional”.

Section 18 of the Registration Act, 1908- Documents of which registration is optional

Any of the following documents may be registered under this Act, namely:

(a) instruments (other than instruments of gift and wills) which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of a value less then one hundred rupees, to or in immovable property;

(b) instruments acknowledging the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest;

(c) leases of immovable property for any term not exceeding one year, and leases exempted under Section 17;

(cc) instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of a value less than one hundred rupees, to or in immovable property;]

(d) instruments (other than wills) which purport or operate to create, declare, assign, limit or extinguish any right, title or interest to or in movable property;

(e) wills; and

(f) all other documents not required by Section 17 to be registered.

 

TARUNA VERMA

SENIOR ASSOCIATE

THE SUPREME COURT OF INDIA: SEX WITH MINOR WIFE AMOUNTS TO RAPE

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The Supreme Court held on Wednesday, 11th October, 2017 that sex with one’s minor wife will amount to rape. A Bench comprising of Justice Madan Lokur and Justice Deepak Gupta watered down an exception to Section 375 of the Indian Penal Code (IPC) which said sexual intercourse by a man with his wife not under the age of 15 would not amount to rape whereas the age of consent was 18 years.

The order came on a PIL by NGO ‘Independent Thought’ filed in 2013, demanding that clause (2) in Section 375 of the IPC be declared unconstitutional as it violated Articles 14 (right to equality),15 (right to non-discrimination) and 21 (right to live with human dignity) of the Constitution. The Petitioners argued that the exception clause went against the objectives of the Prohibition of Child Marriage Act, 2006.

 

The Petitioner challenged the exception on the ground that it permitted sexual intercourse with a girl child aged between 15 and 18 only on the grounds that she was married. The age of consent for sexual relationship should be treated as 18, irrespective of the marital status of the girl child, the petitioner contended.

The Apex Court held that, “In our opinion, sexual intercourse with a girl below 18 years of age is rape, regardless of whether she is married or not” and “Merely because child marriages have been performed in different parts of the country as a part of a tradition or custom does not necessarily mean that the tradition is an acceptable one, nor should it be sanctified as such. Times change and what was acceptable a few decades ago may not necessarily be acceptable today,”. Further held that “The exception in rape law under the IPC is contrary to other statutes, violates bodily integrity of girl child,” The Court also said that an exception in the rape law is discriminatory, capricious and arbitrary.

The Supreme Court ruling harmonises the definition of rape under the IPC with the Protection of Children from Sexual Offences Act (POCSO Act), 2012 that fixed the age of consent of the girl at 18 and also treats sex with a minor as crime, irrespective of her consent. It was also held by the Bench that “The exception carved out in the IPC creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child and has no rational nexus with any unclear objective sought to be achieved. The artificial distinction is discriminatory and is definitely not in the interest of the girl child,..”

Taruna Verma

Senior Advocate

RISK OF MANDATORY AADHAAR-LINKING TO ANY DATABASE

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Recently, there has been a huge uproar against the mandate of the Government of India for every person to link his/her Aadhaar Card to various services of the banks, mobile service providers, Income Tax Department, etc and to avail benefits of various Government Social Welfare Schemes such as midday meals, disability pension, rehabilitation for Bhopal gas tragedy victims, etc. Although the Government may have passed this mandate with a view to keep a track of an individual’s financial transactions, a transparency in his/her property dealings and filing of tax returns, and to prevent any instances of money laundering, etc, but consequently, the public may have to bear a huge risk associated with mandatory linking of Aadhaar to the various databases.

There may be instances after an Aadhaar is linked with any of the databases, where the individual’s activities may get disclosed and monitored by the Government. For instance, if a person’s bank account is linked with his Aadhaar and he books a railway ticket online or does shopping online, that particular booking transaction, indirectly, may store the particular travel/shopping details, as the case may be. Moreover, when someone’s mobile number is linked with his Aadhaar, all the details about his calls, messages, etc may get monitored. As a result, it may pose to be a threat to the privacy of a person whose Aadhaar has been linked to the various databases.

The general public reportedly has opposed the mandatory Aadhaar-linking on the grounds of issues of surveillance and privacy, risk of identity theft and of information being stolen, replicated, faked or misused by third parties, including the enrollment agencies, who may gain access to the entire demographic and biometric database along with the allotted Aadhaar numbers. Moreover, when any unscrupulous and/or deceitful parties gain access to the biometric database of a person, such data may be put to wrong and illegal use by terrorists, anti-nationals, or illegal immigrants to finance terrorism, or execute organized crime in the country, it may render the objectives of mandatory linking of Aadhaar ineffective and counter-productive. It is generally believed that the hazards of Aadhaar-linking with the databases may outweigh the benefits that the Government may reap out of it.

The Supreme Court in a case of Justice K.S. Puttaswamy vs. Union of India 2017 SCC OnLine SC 996 on 24.08.2017 has held that the right to privacy is a fundamental right under Article 21 of the Constitution of India. Currently, a number of public interest litigations (PILs) have also been filed in the Supreme Court challenging the Government’s mandate of Aadhaar-linking to various such services on the grounds of issues of privacy, etc. But the Government has sought time from the Apex Court as they are in the process of drafting a data protection legislation.

Therefore, the Government has extended the deadlines for mandatory Aadhaar-linking in the following cases until the Supreme Court pronounces the verdict on this issue:

  • Permanent account number (PAN): 31.12.2017,
  • Mobile numbers: 06.02.2018,
  • Bank accounts: 31.03.2018,
  • Various Government Social Welfare Schemes: 31.03.2018, etc.

 

Harini Daliparthy

Legal Associate