Tuesday 29 August 2017
Friday 25 August 2017
Tuesday 22 August 2017
Saturday 12 August 2017
MTP ACT-THE NEED TO AMEND
Abortion laws in India are
contained in the Medical Termination of Pregnancy Act, 1971, and the provisions
in relation to the procedure are governed by the Act. The Act has been widely
requested to be amended owing to the changed medical and social circumstances,
but the Amendment Act has been pending since 2014, while many aggrieved women
have been forced to approach the courts to seek remedies that are not available
in the written laws.
THE MEDICAL TERMINATION OF PREGNANCY ACT
The Act lays down situations
where a pregnancy may
be terminated, and the conditions to be met thereunder. Termination is
permitted if the continuance of the pregnancy would involve a risk to the life
of the pregnant woman or of grave injury physical or mental health; or if there
is a substantial risk that if the child is born, it would suffer from such
physical or mental abnormalities, but categorization of the level of medical
judgment required is done on the basis of gestation period completed:
·
Up to 12 weeks – One Medical Practitioner
·
12-20 weeks – Atleast two Medical Practitioners
The anguish caused by a pregnancy arising from rape is
regarded as a grave injury to the mental health; and similarly a pregnancy
arising from the failure of protection or contraceptives in a married couple
will be regarded as grave mental injury.
In case of minors or lunatics, the written consent of
guardian is essential to terminate the pregnancy; but the specific requirements
relating to the length of pregnancy do not apply where the Medical Practitioner
has formed an opinion in good faith that the termination of such pregnancy is
immediately necessary to save the life of the pregnant woman.
THE AMENDMENT BILL OF
2014
The Amendment Bill that has been pending for the past 3
years purports to introduce certain changes in the provisions of the Act:
·
To substitute “Registered Medical Practitioner”
with “Registered Healthcare Provider’ in the long title of the Act.
·
The ambit is widened to include Homeopathic
practitioners, Unani, Sidhha, and Ayurveda; or nurse or auxiliary nurse midwife who
possesses an authorized registration under their respective category.
·
S.3 pertaining to the conditions to terminate pregnancy
to be modified in favor of women and their will; up to 12 weeks of gestation, MTP
may be conducted upon request of the woman.
·
MTP allowed upto 24 weeks instead of 20.
·
S.5A to be introduced, to protect privacy of the
woman.
THE NEED OF THE
HOUR
With the
incidents of rape victims becoming pregnant, unwanted pregnancies and
unprotected intercourse on the rise, it is expedient for the Govt to take up
steps to ensure reproductive health of women. The data from the Sample
Registration System (2001-03) under the Registrar General of India, unsafe
abortions contribute to about 8% of the total abortions happening in the
country. The reasons for this are multifold, with women attempting to gain some
amount of autonomy in deciding whether or not they want the baby, and the law
continuing with the shackles it has placed on the freedom to decide. Apart from
affording women a rightful opportunity to decide on the same, the law also
needs to consider rape victims and child sexual abuse victims, who may be left helpless after 20 weeks of pregnancy.
The current scenario requires such aggrieved victims to approach the Courts of
law to interpret the clauses in a wide manner so as to accommodate their
anguish in the terms “grave injury to her
physical and mental health”.
In May, the Rohtak Court had granted permission to
a 10-year old child to terminate her 18-22 weeks old foetus; while a similar
matter is currently under the consideration of the Supreme Court.
Relevant Case Laws (INDIAN KANOON)
·
Mrs. X and Ors. v. Union of India and Ors.
·
Meera Santosh Pal v Union of India
Thursday 10 August 2017
COMPENSATION TO STATES UNDER GST
The
implementation of GST as the sole indirect tax in place of the earlier multiple
taxation legislations has reasonably raised a probability of States losing a part
of their revenue from tax, in response to which the Centre has enacted the
Compensation to States Act[i]
along with the principal Acts of GST.[ii]
Here we analyze the provisions relating to the said Act, to get a brief picture
of how the scheme will be put to effect.
The Act
intends to provide for compensation to the States for the loss of revenue
arising on account of implementation of the goods and services tax. For the
purposes of calculation and determination of the compensation amount, the Base
year revenue of the State is calculated in accordance with the Act. The base
year revenue for a State is the sum of the revenue collected by the State and
the local bodies during the base year, on account of the taxes levied by the
respective State or Union net of refunds with respect to the taxes subsumed
into GST such as VAT, Sales tax, Purchase Tax, entry tax, octroi, local body
tax, etc. The projected revenue for any year in a State is to be calculated by
applying the projected growth rate over the base year revenue of that State,
and the projected growth rate has been fixed at 14%.
Compensation
under the Act is payable to any State during the transition period, and the
calculation and release is to be done at the end of every two months, and an
annual final calculation is made at the end of every financial year by the CAG. Any excess amount released to any
State during a financial year will be adjusted against the compensation in the
subsequent financial year.
The manner of
calculation of the loss of revenue is also elaborated as:
·
The projected revenue that could have been
earned by the State in absence of the goods and services tax till the end of the relevant two
months period of the respective financial year shall be calculated on a
pro-rata basis as a percentage of the total projected revenue for any financial
year during the transition period[iii].
·
The actual revenue collected by a State till the end of relevant
two months period in any financial year during the transition period will be the
actual revenue from State tax collected by the State, net of refunds given by
the State; the integrated goods and services tax apportioned to that State, as
certified by the Principal Chief Controller of Accounts of the Central Board of
Excise and Customs;
and any collection of taxes levied by the said State, under the Acts specified
in sub-section (4) of section 5, net of refund of such taxes[iv].
·
The provisional compensation payable to any
State at the end of the relevant two months period in any financial year shall
be the difference between the projected revenue till the end of the relevant
period and the actual revenue collected by a State in the said period reduced
by the provisional compensation paid to a State till the end of the previous
two months period in the said financial year during the transition period[v].
In case no compensation is due to be released in any
financial year, or any excess amount has been released to a State in the
previous year, the State is bound to refund the same to the Centre. Every
taxable person making a taxable supply of goods or services or both is bound
the pay the Cess and furnish Returns to the Authorities as required. The Cess
amounts collected under the Act is to be deposited into the Goods and Services
Tax Compensation Fund, which is a part of the public account of India, and all
the payments of compensations under s. 7 are to be made from this Fund.
Wednesday 9 August 2017
A MOVE TO CURB HONOUR KILLINGS
In a move that
must set an example to the Govts in other States as well, the Madurai and Salem
City Police have formed special cells to protect couples in inter-caste
marriages and curb honour killings and hate crimes.
The move came
as a response to a HC verdict that came over a year ago in relation to the case
of B. Dilip Kumar v Secy. to Govt, Department
of Home, wherein the death of the Petitioner’s wife was alleged to be an
instance of honour killing and the same was ordered by
the Court to be probed by the CBI .
The Tamil Nadu Untouchability Eradication Front, an Organization working
towards the eradication of caste-based atrocities, had filed a petition in the Madras
High Court on the matter, and Directions were passed by the Court to take steps
to curb honour killing instances. Though late, the Madurai and Salem City
Police have set up a separate cell to deal with matters concerning honour
killings, related atrocities, and to ensure protection to couples in inter-caste marriages from threats from their
communities. Separate Officers from different Departments within the Police
Force have been looped in to receive complaints from couples facing threats/issues
and to oversee the supervision of the cell’s functioning.
Tuesday 8 August 2017
NOW AADHAAR WILL FOLLOW YOU TO THE GRAVE!
Brace your Aadhaar
for your posthumous need! Yes, you read that right. Like the phrase goes about your
karma following you everywhere, your
Aadhaar or UID will be following you to the grave, as the Govt has now mandated
that Aadhaar Number would be made mandatory for the Registration of Death in
Govt records. The Notification has been published by the Registrar General of
India, mandating that starting October 1st this year, Aadhaar Number
would also need to be entered in the particulars furnished in Death
Certificates. The purpose behind the move is to curb instances of identity
falsification, obtain correct details of the relatives/dependents and
acquaintances of the deceased; and avoid other people fraudulently claiming
subsidies in the name of the deceased. Several subsidy/benefit distribution schemes
have been integrated with Aadhaar, and linking it with Death Certificate will create
an interconnected web of information regarding the beneficiaries.
However, notification
also clarifies that non-availability of the detail will not result in a blatant
refusal to provide Death Certificate.
If the applicant is not aware of the Aadhaar details of the deceased, he could provide a
certificate to the Authorities declaring that this is the case to the best of
his/her knowledge. Furnishing false declarations to this effect would lead to a
case of fraud, and the person would be liable under the Aadhaar Act and The
Registration of Births and Deaths Act. It is also pertinent to note that Banks
Accounts are also now largely linked with the holder’s Aadhaar Number, and it
will enable them to close accounts easily and avoiding any chance of mistakes. The
Authorities would also collect the Aadhaar numbers of the spouse/parents of the
deceased, and that of the applicant as well.
The Ministry
has exempted from the purview of the Notification, Meghalaya, Assam and Jammu
& Kashmir; wherein Assam and Meghalaya are largely under a scheme of
National Population Register and the majority population is not enrolled on the
Aadhaar platform. Senior Citizens who are not yet enrolled on Aadhaar can do so
by September 30th, and the State Departments of Birth and Death
Registration are obligated to ensure compliance of the new provision from
October 1st. The current position allows any document proving
identity to be submitted to the Authorities for Registration purpose.
The move
comes at a time when major controversies and protests are being raised by the
public on the fear of privacy infringement, and the Supreme Court 9-Judge Bench
ruling that privacy is not a Fundamental Right. Several other documents like
PAN Card, Ration Card, Bank Account, Mobile Number, several etc. are presently
linked to Aadhaar, and the Law Commission recently recommended linking Marriage
Certificates with Aadhaar as well. The UID is now emerging into the
quintessential identity document in India and is being made mandatory for
availing a plethora of essential services; slowly shaping it into the center of
all personal records of the holder.
So if you
already do not possess Aadhaar, it is peak time to rush to your nearest Aadhaar
Centre and get yourself enrolled.
Friday 4 August 2017
THE ITR LAST DATE IS HERE – HOW TO DETERMINE IF YOU ARE LIABLE ?
The CBDT recently extended the deadline for filing Income Tax Returns
to August 5th from the original date that fell on July 31st,
providing some relief to those taxpayers who also happen to be procrastinators.
The move came from the Income Tax Dept., they tweeted and I quote, “in view of the difficulties faced by
taxpayers”. At the same time, a moment of understanding silence for those
who are still confused whether or not they are liable to file Income Tax
Returns, and the newly employed who are awaiting some enlightenment in respect
to their liability.
We go through a few key points in respect of the liability to file Income
Tax Return:
·
The limit varies w.r.t the age of the person; Rs.
2,50,000 for people aged upto 60 years; Rs. 3,00,000 for senior citizens (60-80
years age); Rs.5,00,000 for super senior citizens (above 80 years age).
·
“Income” is a term with wide spectrum; for
salaried personnel it denotes all that is received from an employer in cash,
kind or as a facility is considered as income; for a businessman, his net
profits will constitute income; income may also flow from investments in the
form of Interest, Dividend, and Commission etc.
·
Classification of all income earned by people are
made into income from salary, income
from house property, income from business or profession, income from capital
gains and income from other sources.
·
The liability arises on the basis of the income
amount before deducting any amount under the exemptions under the Act.
·
Even if the amount after statutory deductions come
under the limit cited above, you must file ITRs if the amount before the
deductions bring you within the purview.
·
The tax slab within which you fall depends on
the level of income you earn; it is 5% for income upto Rs.5 lakhs, 20% for
income falling between Rs. 5,00,001-Rs.10,0000; and 30% for income above Rs.
10,00,001.
·
For salaried personnel, Income Tax is deducted at source, but the liability to
file Returns to the IT Dept. is not absolved.
·
If you are eligible for any refund of the tax
amount that was deducted at source, after considering the exceptions that you
are entitled to avail, the same is also to be detailed in the IT Return;
following which if the Authority is satisfied that you have paid more tax than
you are supposed to, then the refund process will be initiated.
·
The deductions permitted on taxable income
include contribution towards PF, NPS, PPF; payment of School fee of children;
premium for life and health insurance; purchase of NSC; home loan repayment;
rent paid; interest on saving bank account, etc.
·
IT Returns can be filed online on the Govt
Portal http://incometaxindiaefiling.gov.in/
by following the simplified procedures.
Filing of IT Returns is not just a statutory duty,
but also a part of availing your rightful refund; so shed the procrastination
and go ahead to file your Returns if you haven’t already!
Thursday 3 August 2017
A RELIEF TO COMPANIES UNDER INSOLVENCY PROCEEDINGS
In a decision that may aid
corporate debtors under insolvency proceedings to reach mutual settlements, the
Supreme Court used its extraordinary powers in a case that came before it to
permit two companies to withdraw insolvency proceedings and settle their loan
dispute amongst themselves. The Court used its extraordinary constitutional
powers u/Art. 142 to grant the relief to the appellant companies since the
matter was already under the consideration of NCLT (National Company Law
Tribunal), and on appeal the NCLAT (National Company Law Appellate Tribunal) had
passed a decision on 13th July 2017 to the effect that the
proceedings under the Insolvency and Bankruptcy Code of 2016 cannot be
withdrawn even if the parties decide to settle the dispute. The Court used the
provision to do “complete justice” under Art. 142 to allow the parties to
settle the matter in terms of the agreement arrived at between the parties,
despite the matter being under consideration of the NCLT.
The Prologue
The matter came before the NCLT by way of an
application filed by the financial creditor Nisus Finance & Investment
Manager LLP (Respondent in the Appeals) against the debtor Lokhandwala Kataria
Construction Pvt. Ltd. (Appellant before the NCLAT and the Supreme Court) under
the Insolvency and Bankruptcy Code after the first cheque issued for redemption
of the part of the debenture was dishonored. The NCLT admitted the application
and ruled to initiate corporate insolvency proceedings if the debtor company
failed to fulfill its obligations. But both the parties submitted later before
the NCLAT that they had arrived at a settlement and part of the amount had
already been paid. The NCLAT however observed that “even the Financial Creditor cannot be allowed to withdraw the
application once admitted, and matter cannot be closed till claim of all the
creditors are satisfied by the corporate debtor”. The NCLT laid emphasis of
consideration on the claims of other creditors, even if a settlement has been
arrived at between the parties of the present dispute, and refused to stall the
insolvency application in view of the settlement between the parties, and dismissed
the Appeal. The Debtor thereafter approached the Supreme Court under second
Appeal to consider the matter, which is where the said decision has been passed
by the Court.
The Decision and its possible Effects
The Supreme Court, while allowing
the parties settle, did not question the law on which the NCLAT decided against
the settlement, and clarified that prima facie the position taken by the Tribunal
that withdrawal cannot be allowed is correct. However, the Court used its
extraordinary powers to allow the parties to settle the dispute in terms of the
agreement between them.
While the decision does not in
any way alter the position of the law on insolvency or the provisions under the
IBC 2016, it certainly comes as an auxiliary relief to insolvent companies. The
Court may use its powers to do justice to the parties even when the stringent
interpretations of the provisions of law are unfavorable to them. It gives the
defaulters a second chance to amicably settle their financial disputes, and
promotes a win-win scenario where the creditor receives the payment; while the
debtor does not necessarily have to face insolvency proceedings despite the
applicant (creditor) himself being willing to withdraw the application before
NCLT.
Wednesday 2 August 2017
498-A: Recent Supreme Court Judgment
The Indian
legal system is faced by the contradictory duality of victims fighting desperately
for justice on one side, while innocent persons are trapped in the shackles of
law by frivolous litigations; and striking the right balance of stringency of
law at a level where the innocent are not put in turmoil, while at the same
time the wrongdoers do not escape the clutches of law, is a task in itself. In
a recent decision, the Supreme Court gave a landmark verdict in relation to S.
498-A IPC which may easily pass off as one of the most misused provisions of
our criminal law system, to the effect that now arrest can be made under the
section only after obtaining some incriminating evidence against the accused.
Title: Rajesh Sharma and Ors v State of
UP and Anr.
Case No.: CRIMINAL APPEAL NO. 1265 OF
2017
Coram:
·
Adarsh Kumar Goel
·
Uday Umesh Lalit
Matter:
The Court addressed the issue of prevalent misuse of
S.498-A IPC (Cruelty by husband and family), and examined whether any
directions are called for to prevent the same. The amicus curie appointed by the Court conducted a study on the
matter, and the Court considered it in addition to the factual circumstance at
hand. The appeal was filed by the family of the husband against the Order of
the HC to rope in all the family members in the case of dowry and domestic
abuse filed against the husband by his wife. The wife had accused the parents,
brother and sister of the husband in addition to the husband himself.
Decision of the
Court:
The Court ruled that allegations against all family
members cannot be taken in face value when in normal course it may only be the
husband or his parents who perpetrated the cruelty. The Court observed that
misuse of the provision often led to harassment and arrest of even innocent
family members including grandparents, minor children, siblings, etc.
The Court passed Directions to:
·
The Committee is to look into every complaint
filed u/s 498-A IPC,
·
Report must be submitted by them to the
Authority;
·
No arrest must be made prior to the Report being
received;
·
The parties may reach a settlement
·
But these directions will not apply to the
offences involving tangible physical injuries or death.
·
Consider bail to the accused on the same day if
Notice sent to opposite party at least a day prior, etc.
Relevant
portions of the Judgment:
“….accepted that
there is a growing tendency to abuse the said provision to rope in all the
relatives…on the strength of vague and exaggerated allegations without there
being any verifiable evidence of physical or mental harm or injury….”
“…..this results in
harassment and even arrest of innocent family members, including women and
senior citizens…”
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