MORE FORCED PATRIOTISM IN CINEMA HALLS

At a time when fundamentalists are shoving patriotism down people’s throats, which is no less than anarchy camouflaged as nationalism, the Supreme Court has reined in a part of it by stating that there is no need to stand up at cinemas while playing the National Anthem. In the Court’s own terms, an Indian need not “wear his patriotism on his sleeve". The Court criticized in severe terms the moral policing being unleashed in the society, expressing concern over the situation stating that one day this could come to “people should not wear t-shirts and shorts to movies because it will amount to disrespect to the National Anthem”. The Court’s liberal stand is laudable in the context of branding anyone with a difference of opinion as “anti-national” and requiring them to “go to Pakistan”.

The Supreme Court had held in November 2016 that national Anthem must be played in all cinema halls prior to the show, which was now challenged before the Court in a petition filed by Kodungalloor Film Society in Kerala. The Govt. supported the Order stating that it promotes unity among the people of diverse cultures, citing that it would encourage the audience to feel they are “all Indians”.

The liberal stand was adopted vehemently by J. Chandrachud, who countered every aspect of the Govt.’s pleas that suggested that the Court enforce force patriotism in the garb of Art.51-A (a) of the Constitution, requiring citizens to respect the National Flag and the National Anthem. The Court stated that it is for the Govt. which also had the power, to take the call to enforce such duties, and not that of the Court. J. Chandrachud referred to the Flag Code and observed that there was no mandate requiring people to stand up at the National Anthem being sung at a cinema hall.

The Govt. finally decided to take the call and the Court left it to the Govt.’s discretion to bring out a Notification stating whether or not it is mandatory to play the National Anthem at cinema halls. The case was heard by Hon’ble CJ Dipak Misra, J. Chandrachud and J. Khanwilkar, and has been posted for next hearing in January 2018.

Such a decision comes as a bold reinstatement of the Constitutional provisions that profess freedom of the citizens rather than a forced sense of patriotism, which is today widely used to promote political agenda of bringing out communal divisions, while making it look like the opinionated citizen is betraying the Country. 

SUPREME COURT ON AADHAAR AND PRIVACY SCUFFFLE

The Supreme Court’s 9-Judge Bench on Wednesday began hearing the matter on Aadhaar and its alleged invasion into privacy of people. While the decision bears considerable weightage owing to the strength of the Bench pronouncing the decision, the Court seems to be considering possibilities of putting State Powers and Citizen’s Rights on a reasonable balance.

Hon’ble Chief Justice Mr. K S Khehar had stated that “We have to first determine whether right to privacy is a fundamental right or not before going into the issue [on the constitutionality of the Aadhaar scheme],” while placing the matter before a 9-Judge Bench a few days ago. The Petitions arose from the several complaints and concerns raised by the public over the level of surveillance (though virtual) that the state would be empowered to exercise over the mass population of our people through Aadhaar (the UID or Unique Identification) since it is now being integrated with other documents like the PAN, Mobile Number, Social Welfare Schemes, etc. The UID database consists of all social and biometric data related to a person including fingerprints and iris scans; while it gives the Govt an effective mechanism to maintain a reliable ID on all people with the UID, the risks attached with such mass amount of personal data being accumulated in a single place is also alarming. The matter was challenged in various Courts of the Country by many people, and eventually the Supreme Court has now decided to settle the matter once and for all. The verdict of the Bench will put in place a binding precedent, as the strength of the Bench is high.

While the decision is yet to be pronounced on the matter, the Supreme Court did make some observations on the first day of hearing after listening to the averments put forth by the parties. “An exhaustive cataloguing by the court of what all constitutes privacy may limit the right itself”, Justice Chandrachud observed, implying that while the term “privacy” needs to be explained unambiguously before deciding what constitutes an ingression into the same, it is also dangerous to put narrow limits on the Right. While the State (represented by Attorney-General K.K. Venugopal) contends that the right to privacy is only a common-law right [not a Fundamental Right] and it was deliberately excluded (“consciously avoided”) by the framers of the Constitution from making it a part of the Fundamental Rights; the Petitioners contended that “a person should have the right to ‘informational self-determination”.

The Court, though Justice Chandrachud, observed that right to privacy cannot be linked to data protection. He instead observed that focus must be placed on statutory recognition of data protection instead of linking it with concerns of privacy. The final decision on the question is pivotal to the definition and limitation of privacy of people, and it will have far-reaching consequences further than just the current concern of Aadhaar. 

THE DEPOSITORIES ACT 1996

WHAT A DEPOSITORY IS:

A “Depository” is an institution that receives deposits and holds them in trust for the public, with the condition that it exercises reasonable care and restores it to the person on demand. It holds securities of investors in an electronic form, and it is of paramount importance in the current market scenario where is has been held mandatory to hold securities in demat form. Demat (Dematerialized) format of securities means that these are held in electronic form, and without any actual paper document involved, and the details of trading are all entered on the electronic document. The Depositories Act was passed by the SEBI in 1996, and it deals with the regulation of d\Depositories and incidental matters.

KEY FEATURES OF THE ACT:

·         The Depository must be a company registered under the Companies Act, and a Certificate of Registration by SEBI.

·         Commencement of business only after obtaining Certificate from SEBI

·         Requires “Participants” registered under the SEBI Act

·         Depository and Participant must enter into an Agreement, and a person wising to avail Depository services must enter into the necessary agreement through a Participant

·         Certificate of Security to be surrendered to Issuer, and the same to be cancelled; and the Depository to be substituted as the registered owner, in records; the person will become Beneficial Owner in the Depository’s records

·         Transfer of securities to be registered with the Depository

·         Every subscriber to a security has an option to receive the Certificate or maintain it with Depository

·         Rights and liabilities of demat securities also lie with the Beneficial Owner

·         Securities held in Depository can be pledged or hypothecated

·         Information of transfer of securities, to be communicated between the Depository and Issuer

·         Beneficial Owner has option to opt out of depository

·         Liability to indemnify loss to Beneficial Owner, by negligence of Depository

·         SEBI has power of enquiry over securities held in Depositories, to give directions.

·         Specifies Penalties to persons or companies contravening provisions of the Act

·         Central Govt has the power to grant immunity from prosecution to any person, for violation of provisions of the Act

·         Provision to appeal to the Central Govt and the Securities Appellate Tribunal, and to the Supreme Court

·         Depositories can make their own bye-laws with the previous approval of the Board

BENEFITS OF DEPOSITORIES                                                                                                                          

·         Less risk of loss or wear and tear

·         Easier for safekeeping

·         Easier transfer

·         Better monitoring by SEBI

·         Reduced transaction costs, etc.

MAJOR CASE LAWS (INDIAN KANOON)

·         Probir Kumar Misra v. Ramani Ramaswamy

·         Northern Projects Ltd. v. Blue Coast Hotels and Resorts Ltd

ADDHAR CARD AND MARRIAGE-THE PROPOSAL TO LINK AND ITS IMPLICATIONS

Aadhaar and Marriage Registration: The New Development

With Aadhaar or the Unique Identification Number (UID) slowly but eventually taking over the domain of as a repository for all information on a person, the latest development is the recommendation by the Law Commission to the Govt that registration of marriages be linked with Aadhaar No as well, to ensure that false particulars are not submitted in lieu of marriage, and so that universal tracking of records would be possible. If the same is implemented by the Govt, Aadhaar would also become linked to marriage records, making the privacy risk ambit of the 12-digit number wider, with added information falling in its purview apart from the already included details of Bank Account No, Mobile No, PAN Card, etc. Other documents that can be linked to Aadhaar include Pension Account, Scholarship Account, Ration Card, Voter ID Card, LPG Connection, etc. In the absence of stringent and fool proof cyber security, the privacy of every citizen is at peril, since all relevant social, financial, and biometric information regarding the person is contained in a single repository.

The Law Commission Report: An Overview

The 270^th Report (“Compulsory Registration of Marriages”) of the Law Commission headed by retired Supreme Court judge Justice B S Chauhan was submitted to the Govt of India on 4^th July 2017, in response to a query put forth by the Legislative Department on 16^th February 2017, asking the Commission to submit a Report with regard to various issues relating to the compulsory registration of marriages in India. One of the questions probed by the Department was whether it is enough to pursue amendments in the Registration of Births and Deaths Act, 1969 as per the Registration of Births and Deaths (Amendment) Bill, 2015 or it must go ahead to frame a ‘separate standalone legislation to provide for compulsory registration of marriages, in order to bring uniformity in all laws, including the Central and State Personal Laws’[i]. The Commission in turn proposes to amend the Registration of Births and Deaths Act, 1969 to include the compulsory registration of marriages within its purview[ii]. The Report clarifies that its aim is to eliminate practices like early/forced marriages, and is not aimed at eliminating diversity of personal laws; on the other hand accepts prevailing customs/ or personal laws concerning solemnization of marriage; provided that these marriages are registered under the Compulsory Registration of Births Deaths and Marriages Registration Act or any other law for the time being in force in the State[iii]. The Report upholds the validity of unregistered marriages solemnized through religious ceremonies, but recommends that an unregistered marriage is not to be treated as ‘void’ but small penalties may be attached to non-registration in an attempt to encourage registration[iv].

The Report examines in detail global practices regarding registration of marriages across the world, various Personal laws in India relating to the registration of marriages (The Indian Christian Marriage Act, 1872, The Kazis Act 1880, The Anand Marriage Act, 1909, The Special Marriage Act, 1954, The Hindu Marriage Act, 1955, etc.). It also examines the Acts and Rules enacted in various States and Union Territories in India to compulsorily register marriages. The major judicial decision on the subject came in Seema v Ashwani Kumar[v] when the Supreme Court directed that the States and the Central Governments to take steps to make marriages of all persons who are citizens of India belonging to various religions compulsorily registrable in their respective States. The Registration of Births and Death Acts, 1969, provides for Registration establishments consisting of Registrar-General, Chief Registrar and Registration Division and Registrars in each State and Union territory[vi]. The Report therefore recommended that the above Act be amended to include Registration of marriage as well within its scope so that existing administrative machinery is able to carry out registration of marriages in accordance with the specified procedures[vii].

The IT aspect and the recommendation regarding Aadhaar Integration

The Report clearly stated that the central purpose of the proposal of amendment is to create a central civil registration portal that consists of records of birth, marriage and death and to provide convenient access to the documents. It explicitly stated that “… if registration of marriage is linked to the unique identification number (UID), it would be possible to achieve universal tracing of records.”[viii] In the Chapter on conclusions and Recommendations, the Report maintains that compulsory registration of marriages is a necessary reform[ix] and that complete automation process may be adopted for facilitating paperless documentation to the greatest extent possible.

Reading from the recommendations, and in light of the Govt.’s move of integrating major social information relating to citizens with their respective UIDs, it is possible that the Law Ministry may choose to accept the LC’s Recommendation, in which case it would soon become mandatory to link Marriage Certificates with Aadhaar Cards.

It would have major implications on the privacy of all citizens, since it would mean that now the matrimonial details would also be added to the central repository which already has been linked with PAN, Mobile No, etc.

·         The most important implication is that of the impending risk of privacy infringement, considering that the cyber security laws and technologies are not always foolproof.

·         A positive aspect is that it will reduce the risk and chances of marriages under false identities and forced marriages.

·         The Govt will have solid and conclusive evidence regarding marriage disputes on the question whether such a marriage did indeed take place.

·         However, for this to come into practical application of linking Marriage Certificates to Aadhaar, first the Govt will have to ensure 100% enrollment of our population in Aadhaar, since the uniform application of the marriage law would depend on that too.

·         It is important to note that non-registration will not render marriages void, even if the compulsory provision comes into being. The Commission recommended[x] “retention of the provisions in the Registration of Birth and Death (Amendment) Bill, 2015 regarding (i) penalty of rupees five per day in case of non-registration of marriage without a reasonable cause..” but the penalty is not to exceed a maximum of Rs.100.

---

INDIAN KANOON

[i] Para 1.16, Page 5 of the 270^th Report of the Law Commission of India, available at http://lawcommissionofindia.nic.in/reports/Report270.pdf

[ii] Para 1.17, ibid

[iii] Para 1.18, ibid

[iv] Para 3.2, Page 10, ibid

[v] 2006 (2) SCC 578

[vi] Para 6.5, Page 27, Supra Note iv

[vii] Para 6.6, ibid

[viii] Para 7.5, Page 33, ibid

[ix] Para 8.11, Page 37, ibid

[x] Para 8.12, ibid

EXTENT OF LIABILITY OF DOCTORS AND LAWYERS REGARDING ADVICE TO CLIENTS

Lawyers and Doctors: Liability for Wrong Advice

Doctors and Lawyers are two classes of people whose services are indispensible to social life, and every person, at some point of time, depends on them for assistance. This leads at to the question to what extent doctors and lawyers must be held liable for any wrong opinion or advice tendered without any express malice. If every bit of their advice were to be regarded as conclusive, it would lead to a plethora of claims and cases against them, which in turn would contribute adversely to the practice of these professions. For the same, the law affords certain level of immunity to these professionals in respect of the correctness of the advices rendered.

CBI, Hyderabad v Narayana Rao[i]

The CBI had registered a case under Sections 120-B, 419, 420 of IPC against the Branch manager and Asst. Manager of Vijaya Bank at Hyderabad for abusing their official position and defrauding the bank by sanctioning housing loans to 22 borrowers in violation of the Bank’s rules and guidelines and thereby causing wrongful loss of Rs. 1.27 Crores to the Bank, and also included the Respondent (who was a Panel Advocate of the Bank) in the Charge-sheet submitted to the Court. The allegation against him is that he gave false legal opinion in respect of 10 housing loans. He subsequently filed a petition under Section 482 of the Code before the High Court of AndhraPradesh at Hyderabad for quashing of the criminal proceedings. The High Court granted the same, and the CBI appealed to the Supreme Court. The Supreme Court observed that the only allegation against him is that he submitted false legal opinion about the genuineness of the properties in question.  The Supreme Court upheld the HC decision, and the Respondent was absolved of the liability. The case also laid dawn certain principles of immunity to lawyers and doctors, which provide some advantage to professionals in respect of the advice rendered to clients in good faith.

The Decision of the Court

The Court stated that “A lawyer does not tell his client that he shall win the case in all circumstances. Likewise a physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him, he would be exercising his skill with reasonable competence.”

Under these circumstances, the Court went on to state that “ A professional may be held liable for negligence on one of the two findings, viz., either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess.”

The Court elaborated that “merely because his opinion may not be acceptable, he cannot be mulcted with the criminal prosecution, particularly, in the absence of tangible evidence that he associated with other conspirators.”

However, the Court also pointed out that a lawyer owes an “unremitting loyalty” to the interests of the client and it is the lawyer’s responsibility to act in a manner that would best advance the interest of the client.

---

INDIAN KANOON

[i] CRIMINAL APPEAL NO.  1460  OF 2012, Supreme Court of India