Jurisdiction of Labour Court

Industrial Disputes Act, 1947

— Ss. 10 and 15 — Reference — Jurisdiction of Labour Court — Scope of interference with Labour Court’s award by High Court under Arts. 226 and 227 — Jurisdiction of Labour Court, held, emanates from the order of reference and does not extend beyond the terms thereof — An award passed by Labour Court in excess of its jurisdiction, held, is capable of correction by High Court in exercise of its power of judicial review — In the present case the only question referred at the instance of the retrenched workman was as to the legality of the appointment of another person in his place in violation of S. 25-H, Industrial Disputes Act, 1947 — Labour Court finding that S. 25-H was not violated — However, it framing an issue regarding the purported non-compliance with R. 77, ID Rules by omission to maintain seniority record as contemplated therein — Labour Court deciding that issue against the management and granting relief to the retrenched workman on that ground — The framing of such an issue by Labour Court, held, suffered from jurisdictional error and ought to have been interfered with by High Court, (2006) 5 SCC 123-A

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DOMAIN NAME DISPUTE AND CYBER SQUATTING

Cybersquatting, is a crime against the laws and regulations of cyber law. It can be defined as registering, trafficking in, or using a domain name with bad-faith i.e. mala fide intent to make profit from the goodwill of a trademark belonging to someone else. The cybersquatter then offers to sell the domain to the person or company who owns a trademark contained within the name at an inflated price.

The term is derived from “squatting”, which is the act of occupying an abandoned or unoccupied space or building that the squatter does not own, rent or otherwise have permission to use. Cybersquatting however, is a bit different in that the domain names that are being “squatted” are (sometimes but not always) being paid for through the registration process by the Cybersquatters. Cybersquatters usually ask for prices far greater than that at which they purchased it. Some cybersquatters put up derogatory or defamatory remarks about the person or company the domain is meant to represent in an effort to encourage the subject to buy the domain from them1. Some common examples of cyber squatting includes:

• The omission of the “dot” in the domain name: wwwexample.com;
• A common misspelling of the intended site: exemple.com
• A differently phrased domain name: examples.com
• A different top-level domain: example.org

The practice that’s come to be known as cyber-squatting originated at a time when most businesses were not savvy about the commercial opportunities on the Internet. Some entrepreneurial souls registered the names of well-known companies as domain names, with the intent of selling the names back to the companies when they finally woke up. Many multinational companies like Tata, Bennett & Coleman, Mc Donald’s etc were among the first victims of cybersquatting2.

 The clash of the new technology with preexisting trade mark rights resulted in several high profile decisions as the courts of many countries tried to coherently address the issue (and not always successfully) within the framework of existing trade mark law. As the website itself was not the product being purchased, there was no actual consumer confusion, and so initial interest confusion was a concept applied instead3.

Most courts particularly frowned on cyber squatting, and found that it was itself a sufficiently commercial use (i.e., “trafficking” in trade marks) to reach into the area of trademark infringement. Most jurisdictions have since amended their trademark laws to address domain names specifically, and to provide explicit remedies against cyber squatters.

This international legal change has also led to the creation of ICANN (International community for assigned names and numbers), Uniform Domain-Name Dispute-Resolution Policy (UDRP), which attempt to streamline the process of resolving who should own a domain. This is particularly desirable to trade mark owners when the domain name registrant may be in another country or even anonymous.

Registrants of domain names also sometimes wish to register the domain names themselves (e.g., “XYZ.COM”) as trade marks for perceived advantages, such as an extra bulwark against their domain being hijacked, and to avail themselves of such remedies as confusion or passing off against other domain holders with confusingly similar or intentionally misspelled domain names.

As with other trade marks, the domain name will not be subject to registration unless the proposed mark is actually used to identify the registrant’s goods or services to the public, rather than simply being the location on the Internet where the applicant’s web site appears. Amazon.com is a prime example of a protected trademark for a domain name central to the public’s identification of the company and its products4.

The World Intellectual Property Organisation (WIPO) Arbitration and Mediation Center deals with domain name disputes under the new Uniform Dispute Resolution Policy applicable to generic top-level domain names adopted by the Internet Corporation for Assigned Names and Numbers (ICANN) on August 26, 1999. The WIPO Center’s Domain Name Dispute Resolution service has been established specifically to administer domain name disputes with the availability of electronic case filing facilities and a well developed case administration system5.

Resolving Domain Name Disputes6:

Domain name dispute may be resolved in one of the following ways:

A. Court proceedings or litigation

Generally, courts all over the world have applied Trademark Laws in order to resolve domain name disputes. Normally the following factors are taken in account by the courts in case of an infringement and/or passing off action with respect to domain name dispute:

Whether the domain name in dispute is:-

i. Identical or deceptively similar with the already registered trademark;

ii. Identical or deceptively similar to a mark that has acquired reputation in the market;

iii. Deceptively similar to already existing domain name;

iv. Adopted in a bad faith;

v. causing confusion or likely to cause confusion in the mind of general public with respect to real owner

vi. Causing damage or likely to cause damage in terms of business and goodwill.

 

B. Administrative Proceeding

Uniform Domain Name Dispute Resolution Policy commonly known as UDRP provides the trademark owners an effective mechanism for resolving the disputes arising out of domain name registered and use in bad faith. UDRP is an international body, formed based on the recommendation of World Intellectual Property Organization (WIPO) that provides for resolving domain name dispute regardless of where the registrar, the domain name registrant or complaining trademark owner is located. Under UDRP trademark owner may submit dispute arising from alledge abusive registration of domain name by way of filing a complaint with the approved dispute resolution service provider requesting the resolution of domain name dispute.

In UDRP proceeding with respect to domain name dispute, complainant has to ensure the presence of all the three below mentioned elements:

• That the impugned Domain name is identical or confusingly similar to his trademark or service mark in which he has rights;

• That the claimant of impugned domain name has no rights or legitimate interests in it; and

• That the impugned domain name has been registered and is being used in bad faith.

For constituting that domain name has been registered and is being used in bad faith following elements may be taken as evidence:

a. circumstances indicating that impugned domain name has been registered or acquired primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the bona fide owner of the trademark or service mark or to a competitor of that owner, for valuable consideration in excess of documented out-of-pocket costs directly related to the domain name.

b. impugned domain name is registered in order to prevent the bona fide owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the allegee have engaged in a pattern of such conduct.

c. impugned domain have been registered primarily for the purpose of disrupting the business of the bona fide owner of the trademark or service mark.

d. by using the impugned domain name, allegee intentionally attempted to attract, for commercial gain, Internet users to his website or other online location, by creating a likelihood of confusion with the bona fide owner of the trademark or service mark as to the source, sponsorship, affiliation or endorsement of his website or location or of a product or service on his website or location.

It is recommended that while choosing and adopting a domain name proper availability searches should be conducted. It includes pre-launch trademark searches and domain name searches in order to avoid conflicts and legal hassles. Once a domain name is adopted and business is commenced under it one can incur losses with the onset of any such conflict.

First Cybersquatting Case (Word Wrestling Federation case)8:

The first cybersquatting case under the WIPO was decided on January 14, 2000.

The US based World Wrestling Federation (WWF) brought a suit against a California resident who registered the domain name worldwrestlingfederation.com and offered to sell it to WWF at a huge dividend a few days later. The WWF alleged that the domain name in question was registered in bad faith by the registrant in violation of WWF’s trademark.

It was held that the domain name registered by the respondent was ‘identical or confusingly similar’ to the trademark of WWF and the respondent had no legitimate rights or interests in the domain name. Therefore the respondent was ordered to transfer the registration of the domain name to the complainant, WWF.

Cybersquatting in India

As on date, domain names are not defined under any Indian law. Section 2(z) of the Trade Marks Act, 1999, defines trademarks as marks capable of being represented graphically, distinguishing goods or services of one person from those of others. Mark is defined to include a “name” and any abbreviation thereof. The Act has a wide definition for services extending the ambit in relation to business of any commercial or industrial activity. The short point which the Court had to decide is whether a domain name has the characteristics of a trade or service which is available to potential users of the internet.

The concept of a domain name is new to Indian legal thinking. As such, a domain name is nothing but the address of a website, easily identifiable and user friendly, to enable consumers to connect to the internet. There is an organisation, Internet Corporation for Assigned Names and Numbers (ICANN), which is an international registration authority with limited dispute resolution powers. However, an ICANN registration does not confer any intellectual property rights9.

India’s top level domain is “.in”. The sunrise period for the “.in” domains was from 1st January, 2005 to 21st January, 2005. During this period owners of registered Indian trademarks or service marks were given an opportunity to apply for “.in” domains.the booking was opened to the public from 16th February, 2005. INRegistry is the official ‘.in’ registry. INRegisty is operated under the authority of NIXI(National Internet eXchange of India). NIXI is a non-profitable company registered under section 25 of the Indian Companies Act. NIXI has been set up to facilitate improvement Internet services in India.

The disputes relating to “.in” domain name are resolved in accordance with the .INDispute Resolution Policy (INDRP) AND THE INDPR Rules of Procedure. THE “.in Domain Name Dispute Resolution Policy” (INDRP) set out the terms and conditions to resolve a dispute between the Registrant and the Complainant, arising out of the registration and use of an “.in” internet Domain Name10.

A complaint can be filed with the .IN Registry on the following ground:

1.      The Registrant’s domain name is identical or confusingly similar to a name , trademark or service mark in which the Complainant has rights,

2.      The Registrant has no rights or legitimate interests in respect of domain name.

3.      The Registrant’s domain name has been registered or is being used in bad faith.

Companies in India have faced the brunt of cybersquatting in the recent past. Besides, the courts in India have been extremely vigilant in protecting the trademark interest of the domain owners who have suffered from cybersquatters.

 The first case in India with regard to cybersquatting was Yahoo Inc. V. Aakash Arora & Anr.,1999 PTC(19) 201 where the defendant launched a website nearly identical to the plaintiff’s renowned website and also provided similar services. Here the court ruled in favour of trademark rights of U.S. based Yahoo. Inc (the Plaintiff) and against the defendant, that had registered itself as YahooIndia.com. The Court observed, “it was an effort to trade on the fame of yahoo’s trademark. A domain name registrant does not obtain any legal right to use that particular domain name simply because he has registered the domain name, he could still be liable for trademark infringement.”

The Bombay High Court in Rediff Communication v. Cyberbooth & Anr AIR 2000 Bom. 27=2000(1) RAJ 562(Bom.)observed that the value and importance of a domain name is like a corporate asset of a company. In this case the defendant had registered a domain nameradiff.com which was similar to rediff.com. The court gave a decision in favour of the plaintiff.

In another case the defendant registered a number of domain names bearing the name Tata. It was held by the court that domain names are not only addresses but trademarks of companies and that they are equally important. (Tata Sons Ltd v. Monu Kasuri & others 2001 PTC 432)

In Bennett Coleman & Co Ltd. v. Steven S Lalwani and Bennett Coleman & Co Ltd. v. Long Distance Telephone Company (Cases No D2000-0014 and 2000-0015, WIPO), the arbitration panel gave a decision in favour of the plaintiff. In this to the respondent had registered domain names www.theeconomictimes.com and the www.timesofindia.com with network solutions of the United States. These two names are similar to the names of the Plaintiff’s websites www.economictimes.com and www.timesoftimes.com. Another important fact was that the respondent’s websites using the domain names in contention redirect the users to a different website www.indiaheadlines.com which provided India related news.

In Satyam Infoway Ltd. v Sifynet Solutions 2004 (6) SCC 145, the Respondent had registered domain names www.siffynet.com and www.siffynet.net which were similar to the Plaintiff’s domain name www.sifynet.com. Satyam (Plaintiff) had an image in the market and had registered the name Sifynet and various other names with ICANN and WIPO. The word Sify was first coined by the plaintiff using elements from its corporate name Satyam Infoway and had a very wide reputation and goodwill in the market. The Supreme Court held that “domain names are business identifiers, serving to identify and distinguish the business itself or its goods and services and to specify its corresponding online location.” The court also observed that domain name has all the characteristics of a trademark and an action of Passing off can be found where domain names are involved. The decision was in favour of the plaintiff.

In 2009, Internet software company Google Inc. won a cyber squatting case against an Indian teenager who had registered a domain name googblog.com. The domain name, Google contended, was confusingly similar to its trademark. Experts felt that complaints regarding cyber squatting were on the rise and organizations such as the World Intellectual Property Organization (WIPO) were being approached by trademark holders to resolve such disputes. On May 15, 2009, the World Intellectual Property Organization (WIPO) ordered an Indian teenager, Herit Shah (Shah), who had been using the domain name ‘googblog.com’, to transfer the rights of the domain to Google Inc. (Google).(Google Inc.v.Herit Shah,Case No. D2009-0405)

In countries like India, where there was an absence of relevant cyber laws to prevent this practice, such cases were decided within the ambit of trademark laws. Passing off action is where the defendant is restrained from using the name of the complainant to pass off the goods or services to the public as that of the complainant. It is an action to preserve the goodwill of the complainant and also to safeguard the public. In India cybersquatting cases are decided through the principle of Passing off. India does not have a law for prohibition of cybersquatting. Therefore, courts interpret the principle of Passing off with regard to domain names11.

CONCLUSION:

The active involvement of WIPO in resolving disputes regarding domain names has played a vital role in evolving concrete principles in this field. It provides a streamlined, cost-effective and swift procedure to review the claims before it. Generally the cases are expected to be decided within 45 days after filing!The World Intellectual Property Organisation (WIPO) saw a 20 per cent increase in the number of cybersquatting(abusive registration of trademarks as domain names) cases filed in 2005 as compared to 2004. In 2005, a total of 1,456 cybersquatting cases were filed with WIPO’s Arbitration and Mediation Centre, according to a WIPO release. This is just one of the solutions to the many complexities concerning the Internet.

Looking at the current situation prevailing in the world, it is certain that cybersquatting is a menace. It is a menace which has no boundaries. Cybersquatters have robbed businesses of their fortune. Looking from the Indian perspective cybersquatting has been prevalent since internet came to the subcontinent. The courts in India have decided many cases related to cybersquatting. It is the imperitive for the parliament to enact a law which would deal with this menace. Cybersquatting has opened the eyes of governments across the world and has prompted them to look into this phenomenon in a serious manner. It is high time India and other countries come out with legislations to protect this virus from spreading.

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Happy Marital Life Depends on Couple

The Vedic Vivah or taking marriage vows as per the Vedas, most ancient scripture in the library of Mankind, lays the foundation of a happy married life. The bride and the groom take SEVEN steps together and take a vow with each step. The seventh and the last step vow is: Now after taking nuptial vows WE ARE FRIENDS. SAKHA is the word in Sanskrit language. Friendship is between the equals and when the husband and wife treat each other as Equals, they will never denigrate each other. 

When LOVE between the husband and wife recedes or takes a back seat in life, it is time for the THIRD PERSON; male or female to enter into the life of the wedded couple. That indeed is the beginning of the end of a happy married life. The mistress gains ground day by day in the husband’s love life. Or the wife’s young lover becomes supreme in the life of the woman. However, it is essential that the THIRD PERSON must be banished as early as possible lest the marriage is on the rocks. 

SCHOOL FOR WIFE

When I mentioned to my wife that in China new and expensive schools have been opened to train wives on” How to WIN HUSBAND BACK from the Mistress, oh! she lamented and opined; why not train Husbands how to keep the flame of Love alive in the wife. A husband needs training too. I think my wife has a point. A happy married life is lived by the couple, not by wife alone. Remember the VEDIC vow: we are FRIENDS or Sakha. 

Let the new enterpreneurs in China open training schools for husbands on HOW TO WIN WIFE BACK. The booming economy of China has put a lot of money into the hands of male entrepreneurs and among other hobbies and recreations that they pursue, having a mistress is becoming more popuar than what society can digest. It is a scandal that has REACHED A POINT BEYOND WHICH THE MARRIAGE BASED SOCIAL STRUCTURE CANNOT TAKE. The sociologists are keen on finding a solution within the present set up of the social order. It is, however, defying solutions at this point of time. 

It is the legacy of Chinese Emperors to have many pretty women in their Harem in the forbidden city. The male population of China that has become very rich with the economic boom now wish to have a Mistress in every city that they visit in connection with business. May I remind Males with Mistresses that history is also full of true stories of Empresses or Dowager Empresses who kept a Male Harem to pick and choose the man to sleep with. And the choice invariably fell on a new fellow to make the dowager empress happy and satisfied in bed. A failure to achieve the desired result cost the unfortunate male his head. The same situation may arise again. History repeats itself. 

SEX IN MARRIAGE

It is a matter of human nature that Sex is important in life. In the marital life Sex is more important. Some psychologists believe that marriages are made or unmade in bed. In other words, the husband and wife must keep each other sexually satisfied and happy. Let no partner ignore the other partner. 

Companionship heightens Love and Love demands togetherness. When the couple are together, they are bound to sleep in the same bed. Sex is a natural corollary thereafter. 

If the husband and wife look after each other and take care of needs mutually the marital life will succeed. Mistress will have no place in the life of a happy couple. 

SCRIPTURES ON MARITAL SEX

One may be wondering how deep will the religious injunctions penetrate in marital sex? Well, to fathom the depth, please dive deep and all pearls will be yours. Pearls of Wisdom are there for one who cares to see and find. Let me quote an example from the Satyarth Prakash, the Magnum Opus of the great and renowned socio-religious reformer of the 19th century India. He was so much concerned about the heath, happiness and moral conduct of his countrymen that he devoted all  his time and energy to the cause of the country and countrymen and even staked his life for it. Swami Dayanand Saraswati wished the Aryas(Noble men and women) to rise and grow in numbers, in health and in happiness that he prescribed the right way and method of having SAMBHOG or marital sex If the male died and the family wished to have an heir,  the Swami recommended the Vedic way to go about it, NIYOG. A good male with intelligence, knowledge and prowess was chosen to have a go at it with the consent of the widow and procreate successfully. This was for the Nation too, without malice or sexual pleasure for the sake of sex. Indeed the Niyog was not popular and invited criticism too. However, the same aim is achieved by many in the society, albeit surreptitiously.

The noble aim of Swami  Dayanand Saraswati in writing in depth on the art of copulation in the Satyarth Prakash was to wean away the youth, both boys and girls, from the influence of cheap, dirty and erroneous booklets on sex and lead them to the right path of procreation in a healthy environment. Sex is an important aspect of human life. However, thinking human beings sublimate it and rise above the animal passion and channelize it towards the right goal: to beget a son or a daughter. The great Reformer and inspirer of the Vedic Renaissance was very concerned about the quality of our future generations. He advised the husband and wife to have sex in a manner that the semen of Brahmacharya should be utilised to beget a child and must not be allowed to go waste. A child thus born will be asset to the family and to the Nation.”They (husband and wife) should never waste their reproductive elements perfected and preserved by the practice of Brahmcharya because the children born of the union of such reproductive elements are of a very superior order.” 

As discussed heretofore the happiness in marital life depends on the physical, mental and spiritual compatibility of the husband and wife both. The aim of begetting good and smart children cements the marital bond and never lets the couple separate or fall asunder. That is what a Vedic Vivah is all about. Let me wish the bride and the groom health and happiness in their marital life.

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498a, 406 – Weapons of Judicial Terrorism

“A happy marriage is a harbour in the tempest of life, an unhappy marriage is a tempest in the harbour of life“.

Dowry is one of the biggest social evils facing our country, and no civilized society should tolerate this, and every effort should be made to eradicate this evil,people giving and demanding dowry should be punished severely, But other side of the coin, often unlooked upon should not be ignored. And this side of the coin – is the misuse of these provisions by some unscrupulous wives to wreak havoc on husband and family.

In recent years the criminal law of the land have undergone radical changes to provide protection to women, more teeth have been provided to existing laws(DP Act, 498A, 406 IPC etc) and new enactments have been made (DV Act), but unfortunately the remedy is becoming worse than the ailment, which is now a well known fact as the stringent dowry laws have failed to stop the gruesome crimes for dowry/dowry deaths.

These laws which have been proved to be highly unsuccessful(as evident from the low conviction rate)and far from what the law makers desired it to be, are now being misused by some urban women for ulterior motives.

The henious nature of these laws(498-a, 406) does nothing but to help the unlawful implementation. As these laws are non compoundable & non bailable, the chances of reconciliation between the spouses after litigation are next to nil.

The biased nature of this laws is evident from that fact that unlike almost all laws in INDIA the burden to prove innocence lies on the accused……this means as soon as the complaint is made..whichever persons are named in the complaint are accused in the eyes of law, Isn’t this verdict before trial, now lets embark upon what Section 498 A is : SIMPLY PUT Section 498a of the IPC is a criminal law in which the wife and her parental family can charge any or all of the husband’s family of physical or mental cruelty.

This law is unique to India, it not only discriminates based on gender man Vs. woman),but also discriminates against women based on their relationship with the husband.

Typically, the charged family members in these cases include:

1. Mostly women of all ages(unmarried,married sisters of the husband,his mother and sisters-in-law,elderly grandmothers and aunts).

2.Other maternal and paternal relatives and even young children in the family.

For every complaint filed by a woman, there are at least twice as many or more women are accused although the married couple may have never lived with any of the people mentioned in the criminal complaint.

Characteristics of 498-a, Indian Penal Code.

IPC-498a is

1. Cognizable – The accused can be arrested and jailed without warrant or investigation.

2. Non-Compoundable – The complaint cannot be withdrawn by the petitioner(chances of living together again are lost).

3. Non-Bailable – The accused must appear in the court to request bail.

On a single complaint of the wife, the husband and his entire family can be packed off to behind the bars, with an estimated 40,000 such accusations per year and an average of 5 members of the husband’s family implicated in each of these 498-a cases, about 200,000/- people are directly affected by these cases.

Hon’ble Supreme Court and various High Courts have time & again showed concern over this growing menace by observing that “By misuse of the provision (IPC 498a – Dowry and Cruelty Law) a new legal terrorism can be unleashed. The provision is intended to be used a shield and not an assassin’s weapon… says the Hon’ble Supreme Court. Merely because the provision is declared constitutional, it does not give licence to unscrupulous persons to wreak personal vendetta

The judicial recognition of blatant misuse of these laws is not anew, way back in 1987, The Hon’ble Court In BALBIR SINGH VS. THE STATE OF PUNJAB [2] observed :

“Though the amendments introduced in the penal code are with the laudable object of eradicating the evil of Dowry, such provisions cannot be allowed to be misused by the parents and the relatives of a psychopath wife who may have chosen to end her life for reason which may be many other than cruelty. The glaring reality cannot be ignored that the ugly trend of false implications in view to harass and blackmail an innocent spouse and his relatives, i.e. fast emerging. IT IS THE TIME TO STOP THIS UNHEALTY TREND WHICH RESULTS IN UNNECCESARY MISERY AND TORTURE TO NUMEROUS EFFECTED PERSONS.”

Justice J.D.Kapoor (Delhi High Court) said in his order passed on 30th May, 2003 [3]

“ I feel constrained to comment upon the misuse of the provisions(of law) to such an extent that it is hitting at the foundation of marriage itself and has proved to be not so good for the health of the society at large.”

“There is a growing tendency to come out with inflated and exaggerated allegations, roping in each and every relation of the husband.

In Jasbir Kaur v/s State of Haryana[4] : the Punjab & Haryana high Court rightly observed that an estranged wife will go to any extent to rope in as many relatives of the husband as possible in a desperate effort to salvage whatever remains on an estranged marriage.

In Kanaraj vs. State of Punjab [5] the Hon’ble Apex Court observed:

“For the fault of the husband the in-laws or other relatives cannot in all cases be held to be involved. The acts attributed to such persons have to be proved beyond reasonable doubt and they cannot be held responsible by mere conjectures and implications. The tendency to rope in relatives of the husband as accused has to be curbed”

Karnataka High Court, in the case of State Vs. Srikanth [6] observed “Roping in of the whole of the family including brothers and sisters-in-law has to be depreciated unless there is a specific material against these persons, it is down right on the part of the police to include the whole of the family as accused”

The Hon’ble Supreme Court, In Mohd. Hoshan vs. State of A.P. [7], observed “Whether one spouse has been guilt of cruelty to the other is essentially a question of fact. The impact of complaints, accusation or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the victim concerned, the social background, the environment, education etc. Further, mental cruelty varies from person to person depending on the intensity of the sensitivity, degree of courage and endurance to withstand such cruelty. Each case has to be decided on its own facts whether mental cruelty is made out”

Delhi high Court, in Savitri Devi vs. Ramesh Chand [8], categorically stated “These provisions were though made with good intentions but the implementation has left a very bad taste and the move has been counter productive. There is a growing tendency amongst the women which is further perpetuated by their parents and relatives to rope in each and every relative including minors and even school going kids nearer or distant relatives and in some cases against every person of the family of the husband whether living away or in other town or abroad and married, unmarried sisters, sisters-in-law, unmarried brothers, married uncles and in some cases grand parents or as many as 10 o 15 or even more relatives of the husband.”

Punjab and Haryana High Court, in Bhupinder Kaur and others vs. State of Punjab and others[9], held:

“From the reading of the FIR, it is evident that there is no specific allegation of any act against petitioners Nos.2 and 3, which constitute offence under s.498-A I.P.C. I am satisfied that these two persons have been falsely implicated in the present case, who were minors at the time of marriage and even at the time of lodging the present FIR. Neither of these two persons was alleged to have been entrusted with any dowry article nor they alleged to have ever demanded any dowry article. No specific allegation of demand of dowry, harassment and beating given to the complainant by the two accused has been made. The allegations made are vague and general. Moreover, it cannot be ignored that every member of the family of the husband has been implicated in the case. The initiation of criminal proceedings against them in the present case is clearly an abuse of the process of law”

The Hon’ble Supreme Court, in a relatively recent case,Sushil Kumar Sharma vs.Union of India and others

“The object of the provision is prevention of the dowry menace.But as has been rightly contented by the petitioner that many instances have come to light where the complaints are not bonafide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires,does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing frame work.

But by misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used a shield and not an assassin’s weapon.If cry of “wolf” is made too often as a prank assistance and protection may not be available when the actual “wolf” appears.There is no question of investigating agency and Courts casually dealing with the allegations. They cannot follow any straitjacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight of that ultimate objective of every legal system is to arrive at truth, punish the guilty and protect the innocent. There is no scope for any pre-conceived notion or view. It is strenuously argued by the petitioner that the investigating agencies and the courts start with the presumptions that the accused persons are guilty and that the complainant is speaking the truth. This is too wide available and generalized statement. Certain statutory presumptions are drawn which again are rebuttable. It is to be noted that the role of the investigating agencies and the courts is that of watch dog and not of a bloodhound. It should be their effort to see that an innocent person is not made to suffer on account of unfounded, baseless and malicious allegations. It is equally undisputable that in many cases no direct evidence is available and the courts have to act on circumstantial evidence. While dealing with such cases, the law laid down relating to circumstantial evidence has to be kept in view.”

Justice Malimath Committee on Reforms of Criminal Justice System, Government of India, Ministry of Home Affairs, 2003 observed the following and gave the recommendation to amend the law immediately:

“16.4.4 In less tolerant impulsive woman may lodge an FIR even on a trivial act. The result is that the husband and his family may be immediately arrested and there may be a suspension or loss of job. The offence alleged being non-bailable, innocent persons languish in custody. There may be a claim for maintenance adding fuel to fire, if the husband cannot pay. She may change her mind and get into the mood to forget and forgive. The husband may realize the mistakes committed and come forward to turn a new leaf for a loving and cordial relationship. The woman may like to seek reconciliation. But this may not be possible due to the legal obstacles. Even if she wishes to make amends by withdrawing the complaint, she can not do so as the offence is non compoundable. The doors for returning to family life stand closed. She is thus left at the mercy of her natal family.

It Is pertinent to note here that, the real sufferers of the evil of dowry, the rural indian women are not even sensitized about their rights, and fail to make use of these laws.

But Some Indian Urban educated women have turned the tables and are using these laws as weapon to unleash personal vendetta on their husbands and innocent relatives.

Despite the various guidelines/recommendations of the Supreme Court of India and Justice Malimath Committee that the working of these laws should be reviewed and reformed with change in time, so that innocents are protected, and false complaints made with malafide intention are not registered, the suggested amendment to the law has been largely ignored. Unconstrained, this social evil is threatening the foundation of the Indian Family system. Feminists are now demanding even more teeth to the existing women laws, and more & more laws are being enacted for women. But the real sufferers are not sentisized enough to make use of these laws, and these laws are getting misused in the hands of some clever Indian wives.

The latest addition in a women’s legal artillery is The Protection of Women from Domestic Violence Act – This law is absolutely pro-women and anti-men, this law assumes every man as a virtual torturer” and considers only women as victims. This law is highly vague, and speaks of verbal/economical & emotional abuse, which are impossible to quantify & ascertain. Many husbands and their family members, falsely implicated in these cases have committed suicide after being jailed, unable to bear the social trauma.

Nearly 44.7% of the suicide victims were married males while only 25% were married females. This clearly shows the ratio of victims of domestic violence and gender abuse.

It is high time for law makers/law enforcing agencies/judges to pay heed and review these laws in public interest to check the growing misuse of these laws to ensure impartial justice and to protect the pious and sacred institution of marriage.

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Media Conglomerates and “Well Informed Electorate”

This draft is an attempt to draw the attention of the Law Scholars for a reasoned discourse on the obligations and responsibilities of the “PRESS” in this age of Media Conglomerates and its co-relation with a “Well Informed Electorate”. Under present scenario  I am trying to establish the legal rights of Indian citizens to compel  Mass Media to provide the Indian people with the information it needs to perpetuate the people’s government  created by constitution. In my view , the country is in danger of becoming aRegimented-Autocratic State, where the unrestrained power of private corporations led by un-elected persons is stronger than the combined power of the individual citizen in the country.

Under the constitution, India is a Democratic Republic and the Preamble of its constitution contains both Freedom of Expression and Freedom of Thought. The country is governed by a government elected by qualified electorate through parliamentary system.

The right of “Freedom of Expression” is synonymous to “Freedom of Speech”, though in practice “Freedom of Speech” is not absolute in any country and is subject to certain limitations.

The right of Freedom of Speech is recognized as a Human Right under Article 19 of the Universal Declaration of Human Rights and recognized in International Human Rights Law in the International Covenant on Civil and Political Rights ( ICCPR ) .

The constitution of India – Part III – Article 19 (i) guarantees “Freedom of Speech and Expression”. No doubt, the concept of democratic republic is that of Self-government by the people. For such a system to work an “Informed Electorate” is necessary. In order to be appropriately knowledgeable, there must be no constraints on the free flow of information and ideas. According to Meike John, democracy will not be true to its essential ideal if few persons are able to manipulate the electorate by withholding in-formations or imparting information and ideas of their own interest. It is important to note that the desire to manipulate opinion for personal reasons negates the democratic ideals.

Through this draft I want to spell out two important concepts of democracy i.e. “People’s Right to Know” and a “Well informed Electorate”. In a democratic country with an elected government, the ultimate decision –makers are the electorate. I repeat – The Electorate.

Through their sovereign power, which is delegated through the vote, they determine who the representatives of the people will be, and these representatives determine the current direction of the government. By determining the government’s current direction, these representatives determine the future of our government and future of our country.

The decision-making power of the Electorate is a fundamental aspect of the representative government. Take away the decision-making power of the electorate and you destroy the basis of a democratic government.

How it is possible to erode and degrade the decision-making power of the electorate?

Through regimentation of the minds of people by monopoly, mass media may be one of the possibilities. Look at the following:-

Today we live in a world, which is changing so rapidly that receiving the best information possible is indispensable. If we are not getting the “Entire” picture, if we are not getting unbiased information, then we are unable to make “Informed” decisions. I quote Bagdikian – “…Ignorance of Economic and Political change is destructive of democracy and fatal to intelligent decision making”.

More than at any time in our history, we depend on the Mass Media to inform us about what is occurring, about the “news”. It is the mass media, which decide what “Is” the news. The mass media become the authority at any given moment for what is true and what is false, what is reality and what is fantasy, what is important and what is trivial.

In fact the democratic consent of the governed is meaningless unless the consent is“informed consent”.

However, unfortunately, modern technology and rising Indian economics have quietly created a new kind of authority over information – the monopoly media groups. Few people who head these groups virtually constitute a new private Ministry of Information and Culture. While it is not possible for the media to tell the population what to think, they are now in a position to tell the public what to think about.

The First Press Commission of India had held ‘Journalism’ as a ‘Public Utility Service’, which by now has evolved as Market Oriented Corporate Business.   Newspapers have become big business. Chains of Newspapers, National Newspapers, Electronic Media and News services are the dominant features of a press that has become non-competitive and enormously powerful and influential in its capacity to manipulate popular opinion and change the course of events.

The elimination of competing newspapers in most of our states and large cities and concentration of control of media in the hands of corporate houses is an important component of present trend. Thus, few persons have control of ‘outlets’ to inform the public.

Just two decades back the number of small and medium newspapers registered with DAVP in our country was above 7,000, which in 2008 have come down below 3,000.

I came across a recently launched newspaper at Hyderabad providing 48 glazed paper prints for Rs. 2 only. I was told that the publisher, who happens to be a family member of senior local politician, has marked a sum of Rs. 6,000 / Crores for the newspaper. Such publisher sell their product (news-paper) for about 3/4th  less than they pay for them. What is the motive behind? Certainly- not the public utility service.

You pay money for your newspaper to get news, views, entertainment and hard news. However, publishers are not much interested in what type of paper you want, instead they submit to the demands of their advertisers and political mentors

Here I would like to draw your attention towards the constitutional guarantee of Freedom of Trade or Business, but while granting this freedom certain qualifications and conditions have been marked under the constitution of India – Part III – Article 19 (vi).

The above scenario is perplexing and might damage the very SOUL of our constitution – The Democratic Republic of India.

The Parliament has an obligation to ensure that a wide variety of views and hard news reach the public. Simultaneously steps should be taken that under the shadow of Indian constitution Part III , Article 19 (VI) “Freedom to Practice any Profession or to carry on any Occupation, Trade or Business ”is not  wittingly used to erode the decision-making power of the electorate converting him from “Well-Informed Electorate”  to “Regimented Electorate”.

The Government of India may constitute a high power competent committee for comprehensive study of the present trend in the ongoing situation and may also seek representatives of the government in such a committee (if it deems so) , so that the impending threat of regimentation of the thoughts of the electorate could be ruled out.

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Point to Consider Before Drafting of Tenancy Agreement

Point To Consider Before  Drafting of Tenancy Agreement

In day to day life, every one has to deal with tenancy agreement and people use to take the standard format of the tenancy agreement for accommodation available in various books and website without understanding the legalities. But actually, the tenancy agreement is not so easy thing as it appears from the surface. One has to be very careful while drafting the tenancy as it may effect both the parties of  the agreement. The dispute arises normally of eviction or wrongful eviction. At that time the agreement condition read with the applicable local accommodation control Act has to be in harmony so as to safeguard the mutual rights. 

Here, we are giving the points which may be beneficial for drafting a tenancy agreement. 

1)      Tenancy Period : Any tenancy period for more then Eleven months needs to be mandatorily registered. If the agreement  for two or three years of the tenancy is not registered then at the time of dispute the agreement will not be used as exhibit and it will work only as collateral proof of evidence and do not serve a better purpose.

2)      The Lease rent & security deposit : The amount of rent per month, escalation every year and date of payment of the rent and any interest payable on the late payment needs to be checked. It need to check as to How the refund of security deposit or adjustment will take place.

3)      Electricity meter installation, security deposit for electricity meter expense to be checked as to who will pay. Normally, it is the payable by lessor.

4)      Expenses of the repair: There may major repair and minor repairs. Normally, responsibility of major repair lies with lessor and the minor repair can be taken care of by lessor.

5)      Maintenance charges of the society : This is vital point to decide the responsibility of the payment of  charges of society.

6)      Point of Sublet : Other than the general condition of the use of accommodation, the point of sublet needs to be checked as the tenant shall not sublet the premises. It create great hardship for the lessor, if tenant sublet the premises to the stranger.

7)      Property Tax and Service Tax : The responsibility lies with the lessor.

8)      Sell & transfer and assignment of the lease rental : It the important point where it need to be discuss whether the lessor has right to sell and transfer of the premises or can he direct the lessee to pay the rental on so assigned entity.

9)      Stamp duty & registration : (if application) responsibility needs to be clarified as to whether lessor or lessee or both (50:50) will bear the cost of registration.

10)   Termination Clause :  The termination clause is important as to decide whether the agreement have lock-in period, or it is terminable by 30 days notice from either party.

11)   Effect of termination : If the tenant has invested some money in the premises then it needs to be discuss what will happen to the investment, interiors decoration, alteration, modification so done with the premises.  Any damage to the  property needs to be checked.

12)   Handover of possession : The Handover of the passion should be documented and key to given in presence  of witness so the handover of the possession can be prove in the event of dispute.

13)   Renewal of agreement : The point to check is whether the agreement can be automatically renewable or it require  the fresh agreement to renew.

14)   Jurisdiction, Notice, counterparts of the agreement : It is the routine sort of clause in the agreement.  

15) Applicable Laws : Before signing of the agreement one should get clarity over applicable local law because it is well settled principal of contract act that any contract contrary to the law shall remain void to the extent of the restriction of the law.

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Is It Clean Up or Witch-Hunting

Recent events have given rise to the necessity to visit the area of economic offences linked to politics. The Penal Code of the last century may not be adequate to meet the current situation.

In 1991 when Prime Minister P.V.Narasimha Rao and his Finance Minister, Dr.Manmohan Singh brought in the concept of Public-Private partnership as an avenue to revive the rural economy and thereby the economic health of the nation, the same was welcomed by people in India and outside, It was found that rural India was the most neglected in terms of infrastructure, education and employment opportunities. The new economic policy encouraged businessmen and industrialists to invest in rural India by establishing business and manufacturing units. These units led to better road, better infrastructure and employment opportunities in rural India.

In order to attract investment in rural India, the Governments of the day were obliged to offer attractive terms to the entrepreneurs so the terms included making land available at attractive prices, provide for supply of water and electricity at concessional rates and also offering tax rebates. Without these offers, no industrials or businessman would venture to invest in rural India and the Governments of the day were acclaimed and appreciated for bringing in capital investment into rural economy.

The policy if liberalisation was continued by successive Governments that led to a vast improvement in the infrastructure if rural India and if today sleepy towns like Eluru or Salem are vibrant cities thanks should go to the money invested by investors in rural India.

White collared crime generally denotes offences by persons who are not habitual offenders or those who commit offences out of necessity. Persons employed in Government or business establishments leading to a fairly comfortable life sometimes indulged in cries and these persons came to be designated as while collared criminals.

Of late every educated person is charged with a crime is sought to be labelled as white collared criminal. The tendency is more when transgressions are alleged in those in public or private employment.

In our culture, greeting friends and well-wishers on occasions like festivals or birthdays are common. One cannot find fault with a businessman if he offers a gift of flowers on a Diwali or new year day to his friends and well-wishers.

The concessions offered by the Governments for establishing industries and business in rural areas are considered as unethical practice indulged by those in power at that time. The development of rural India and the boost in rural economy cannot be lost sight of.

Successive Governments have taken up on themselves the task of probing through transactions of the past to fix a wrong doing on someone or other. Most of these times, the wrongs are notional. A businessman investing on the strength of the promise made by the Government of the day cannot be penalised by a successor

Government on the allegation that the earlier promises made were tainted. Such exercises have led to the launching of prosecution against businessman and administration and some politicians. An administrator who gives effect to the decision of the Government of the day does his duty and he cannot be faulted if the project fails or later appears to be tainted so long as the administrator performs his duty without offending the provisions of the Prevention of Corruption Act, that is to say not making a personal profit to himself. He should not be scandalised and prosecuted.

The definition of crime in the Penal Code does not appear to be apposite to the offences alleged against the administrators or businessmen. A businessman is under no obligation to question the motives of the Government which granted concessions for improvement of the economy. It is monstrous to accuse such businessmen of the offence of criminal breach of trust, the accusation and charge are relevant for the pre-trial stage. Invariably, the accused is arrested and bail denied for a fairly long period of time because of the gravity of the offence. It is no consolation to a businessman or administrator to be told that he would be ultimately acquitted if the charge is not proved. Invariably, before the case goes to trial, the person is put behind bars for more than 2 months or 2 years and his reputation is damaged by the media and the business and character ruined by adverse publicity. The law as of now does not provide  any remedy for such situation.

Therefore necessary to visit the area of social-political-economic offences, redefine the offences device means of effective and immediate trial and establish the truth.

The medical profession has now taken recourse to malpractice insurance scheme to save themselves from any claim by the patients for negligent treatment. There is no such insurance available to a businessman and even such insurance policy would not cover the period of his being behind bars.

The increase of corruption in politics and extreme coverage by media is leading to a situation of witch-hunting and judges who normally flow the rule of bail against jai prefer to led the person be in custody t avoid adverse publicity. When businessmen and administrators who are appreciated as best of their category at one time are painted in the darkest colors by a subsequent regime, the uncertainty in business and administration would seep in and course of time, the structure would collapse. It is time to think about means by which the businessmen and administrators would be saved from motivated prosecutions and incarcerations.

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