Consumers and their Rights
1. What is the meaning of "Consumer"with reference to Consumer Protection Act 1986?
The Act defines Consumer as:-
• One who buys goods or hires services for consideration.
• One who uses the goods or hired services with the approval of the buyer or hirer of the service.
• One who uses the goods/services to earn livelihood by self-employment.
2. What are the salient features of Consumer Protection Act?
• The Act applies to all goods and services unless specially expempted by the Union Government.
• It covers all sectors-public, private or cooperative.
• Provisions of the Act are compensatory in nature.
• It enshrines all consumer rights-to choose, to be heard, to be informed, to safety, education and redressal (CHISER).
• It empowers consumers seeking discontinuance of trader´s malpratices, defective goods, service deficiencies or withdrawal of hazardous goods from the market.
3. What does "Consumer Protection"refer to?
• It refers to protection of consumers against anti consumer trade practices by producers/traders.
• These anti trade practices include adulteration, sub-standard quality, overcharging, making misleading claims in advertisements, etc.
• The essence of consumer protection is curbing such practices through legislative and other measures.
4. Why is the Consumer Protection required ?
Business is a means of Human Welfare:
Business serves the customer and therefore it is a means and not an end in itself. Hence it is in the interest of both the consumer and the businessman to ensure that the business is run well because ignoring the interest of the consumer may be a sure death of the business.
Growth with Social Justice:
We are a secular country and growth with social justice is the cornerstone or our economic philosophy. Exploitation of consumers is against the Directive Principles of State Policy laid down in our Constitution.
Single versus multiple objectives:
Business works for all stakeholders-consumers, shareholders, employees, government, and the public. It is both a social and an economic institution. Therefore it cannot just make profit by ignoring the interest of the society. For the survival and growth of business, it must work for the interests of the stakeholders in general and consumers in particular.
Business has considerable influence over society and government. Therefore, it has to set standards regarding food, dress habits, living styles, etc which will not damage the cause of society and serve the interst of a few persons only.
• Due to liberalization and globalization, firms have to compete with multinationals. Unless they become customer oriented and provide right quality, quantity and price they cannot satisfy a customer and without customer satisfaction no business can survive for long and will be out beaten by competition from multinationals.
• Moreover, Government has enacted laws to protect the interest of the consumers. Hence if a firm violates the laws they are likely to lose their good will and clients permanently.
Firms that adapt ethical values, attain glories in the business world. Business without ethical values is nothing but a criminal activity and no civil society will tolerate a business without ethical values for long.
5. What are the rights of Consumers under the Consumer Protection Act, 1986?
The right to safety:
It refers to the right to be protected against products, production processes and services which are hazardous to health or life. It includes concern for consumer´s immediate and long term needs.
The right to be informed:
Consumers have a right to be informed about the quality, quantity, potency, purity, standard and price of goods or services so that they can make the right decision and protect themselves against malpractices.
The right of choice:
The consumer has the right to be assured of a choice of various goods and services of satisfactory quality and competitive price.
Right to representation (or right to be heard):
It is a right and the responsibility of civil society to ensure that consumer interest prevails while formulating and executing policies which affect the consumers, as well as right to be heard while developing or producing a product or service.
Right to seek redressal of grievances:
The consumer has the right to go to court if he has been unscrupulously exploited against unfair or restictive trade practices and receive compensation for supply of unsatisfactory or shoddy goods.
Right to Consumer Education:
It is the right to acquire knowledge and skills to be an informed consumer because it is easier for the literate to know their rights and to take actions to influence factors that affect consumer´s decisions. The Union and State Governments have accepted the introduction of consumer education in school curriculum.
Right to basic needs:
It is the right to receive the eight basic necessities that are required to survive and lead a dignified life. These eight basic necessities include food, clothing, shelter, health care, sanitation, education, energy and transportation.
Right to Healthy Environment:
It is the right to be protected against environmental pollution and environmental degradation so as to enhance the quality of life of both the present and future generation.
6. What are the responsibilities of a Consumer?
It is the responsibility of the Consumer to:
• Be aware of his rights and exercise them with regard to products purchased or services rendered.
• Be quality conscious and thoroughly examine the product before purchasing it.
° Check the quality mark i.e. AGMARK, ISI, PDS, BIS, etc.
° Ask for a guarantee card, if there is one.
• Insist on a cash memo which is required as proof of purchase in case of a complaint.
• File a complaint for redressal of grievance however small, to discourage malpractices.
• Do not get carried away by advertisements but check the actual use of the product with that given in the advertisement. If there is a discrepancy, it should be brought to the notice of the sponsor.
• Form Consumer Awareness Organizations, which can be represented at various committees formed by the Government for the Welfare of the Consumers.
7. Mr. ´X´ a consumer purchased medicines without noticing the date of expiry. He also did not obtain the cash memo. Do you think he will be able to protect himself by the loss caused due to expired medicine?
No, Mr. ´X´ cannot protect himself from the above loss due to the following reasons:
° ´X´should have been a cautious consumer and should have thoroughly examined the product including the expiry date of the medicine before purchasing it and not depended on the seller.
° ´X´should have insisted on a cash memo, which is required as proof that he has purchased the medicine from that particular trader, failing which he cannot sue for compensation.
8. What are the means of Consumer Protection followed in India?
The following are some of the ways and means of consumer protection followed in India:
• The Consumer can approach the Adalat with his grievance. The issue is discussed and decision is taken on the spot. This saves time and money.
• Lok Adalat has become a speedy, effective and economical redressal system.
• Indian Railways, Delhi Transport Corp, Delhi Development Authority, Delhi Vidhyut Board, etc hold Lok Adalat from time to time to sort out problems faced by users.
• 15th March is celebrated as World Consumer Rights Day all over the world every year.
• In 1995, this day was organized at Vigyan Bhawan, New Delhi.
• In addition, the Ministry with the help of D.A.V.P undertook a massive outdoor publicity program such as displaying hoardings, banners, bus panels, etc.
• Telecasting on Consumer Protection is also done by Doordarshan on a fortnightly basis.
Public Interest Litigation:
The Indian legal system does not provide legal services to large segments of the population such as the environmentalists, consumers, minorities as such. Thus the Public Interest Litigation legally represents such groups with the result that any individual or organization can approach the court for remedial action for effective implementation of the law, environmental protection or any other social evils like bonded labour.
Environmental Friendly Products:
• The Ministry of Environment and Forests has introduced an "Eco-Mark" Scheme. It is a label that has a symbol of an earthen pitcher. If this label appears on a product, it means that the manufacturer has satisfied the conditions laid down regarding the production processes and used environmental friendly materials.
• This scheme has been started with consumer items like soap, detergents, paints, food items, edible oil, etc.
• This scheme is consumer oriented so that people manufacture, use and dispose off products which are least harmful to the environment.
Redressal Fora & Consumer Protection Councils:
Under the Consumer Protection Act 1986, a judicial machinery such as the District Fora, State and National Commissions have been set up to provide speedy, effective and economical redressal of consumer grievances and disputes.
National Youth Award on Consumer Protection:
To encourage consumers and youth to participate in the field of consumer protection, every year the Union Ministry gives two National awards – National Award on Consumer Protection and National Youth Award on Consumer Protection. The Ministry also gives a National Woman Award to involve women in outstanding work in the field of consumer protection.
Consumer Welfare Fund:
The Revenue Department of the Union Ministry of Finance has passed the Central Excise and Customs Laws (Amendment) Act 1991. According to this Act, a Consumer Welfare Fund is created and the excess amount of excise/custom duties which is not refundable to manufacturers or importers is credited into this fund and used for:
• Promoting the Welfare of the Consumers.
• Community based rural awareness projects.
• Setting up a Consumer Guidance Bureau to handle complaints, counseling and guidance.
• Setting up Consumer Product Testing Laboratories.
9. When can a Consumer Complaint be filed?
A consumer can file a written complaint depicting therein dispute with respect to one or more of the following:-
• On receiving defective goods or deficient services.
• Against Restrictive Trade Practice. It includes any trade practice which requires a consumer to buy, hire or avail of any goods or, as the case may be, services as a condition precedent for buying, hiring or availing of other goods or services.
• Against Unfair Trade Practice. It includes a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely :-
° false or misleading representation
° bargain price
° offering of gifts, prize, contest, etc
° non compliance of product safety standards
° hoarding or destruction of goods.
° when goods hazardous to life & safety are being offered for sale to public in contravention of provisions of any law for the time being in force.
° when a trader charges excess of price
° Fixed by or under any law for the time being in force; or
° Displayed on goods;or
° Displayed on any packet containing such goods.
What constitutes a "defect"?
Defect means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or under any contract express or implied or as is claimed by the trader in any manner whatsoever in relation to any goods.
What constitutes a "deficiency"?
Deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.
10. How to file a Consumer Complaint?
• Three(3) copies of the complaint are required to be filed in addition to the number of copies of complaint meant for number of opposite parties.
• No stamp paper is required. It can be filed on plain paper.
• It can be hand-written or typed .
• It can be filed personally through authorized representative or by post.
11. What is the limitation for filling a Consumer Complaint?
A consumer complaint should be filed within two years from the date on which cause of action has arisen in respective District Forum/State Commission or National Commission.
The consumer has the right to file an appeal within 30 days with the next higher forum if he feels justice has not be done to him.
12. What is the Pecuniary Jurisdiction of various Foras and Commissions under the Act?
The Act provides that the consumer can approach the following Three(3) tier judicial machinery depending upon the amount of the loss involved:-
• District Forum If loss is upto Rs. 20 Lakhs.
• State Commission If loss is between Rs. 20 Lakhs to Rs. 1 Crore.
• National Commission If loss is more than Rs. 1 Crore.
• The complaint must be disposed off as speedily as possible within Three(3) months or within Five(5) months if testing or analysis of goods is required to be done.
13. What are the Fees prescribed for filing of a Complaint?
The prescribed fee to file a Complaint is as follows:-
• Upto Rs. 1,00,000/- Rs. 100/- by way of Postal Order or Demand Draft in favour of President, District Forum.
• Above Rs. 1,00,000/- to Rs. 5,00,000/- Rs. 200/- by way of Postal Order or Demand Draft in favour of President, District Forum.
• Above Rs. 5,00,000/- to Rs.10,00,000/- Rs. 400/- by way of Postal Order or Demand Draft in favour of President, District Forum.
• Above Rs. 10,00,000/- to Rs.20,00,000/- Rs. 500/- by way of Postal Order or Demand Draft in favour of President, District Forum.
• Above Rs. 20,00,000/- to Rs.50,00,000/- Rs. 2,000/- by way of Demand Draft in favour of Registrar, State Commission, Delhi.
• Above Rs. 50,00,000/- to Rs. 1 Crore Rs. 4,000/- by way of Demand Draft in favour of Registrar, State Commission, Delhi.
Fees prescribed for filing of an Appeal
The prescribed fee to file an appeal is as follows:
• State Commission - 50% of the amount payable or Rs.25,000/- whichever is less
• National Commission - 50% of the amount payable or 35% whichever is less
14. What is the role of Consumer Organizations/Non Govt. Organizations in the area of Consumer Protection?
• Bringing out journals, brochures, monographs.
• Arranging conferences, seminars, workshops on consumer problems and solutions.
• Supporting government agencies against malpractices, adulterated and hazardous goods.
• Investigating into the problems of consumers.
• Collecting data on different products and testing them.
• Filing suits and petitions in the court on behalf of the consumers.
• Organizing protests against price rigging, adulteration, underweight selling, etc.
• Encouraging consumers to boycott defective bad quality goods.
Right to Information Act, 2005
1. What is the object of the Act?
• To give information which is under the control of Public Authorities.
• To promote transparency and accountability in the working of every public authority.
• To contain corruption and to hold Governments and their instrumentalities accountable to the governed.
• To require every public authority to computerize their records for wide dissemination and to proactively make public certain categories of information so that the citizens need minimum recourse to make a formal request for information.
2. What kind of information can be sought under this act?
The Right to Information (RTI) includes right to:-
• Make request for any information (as defined).
• Obtain copies of the documents.
• Inspect documents, works and records.
• Take certified samples of materials of work.
• Obtain information in form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through print outs.
3. What is the procedure for seeking the information?
Under the Act, by paying the prevailing RTI Application Fee a written request for information can be made to Public Information Officer (PIO) or Assistant Public Information Officer (APIO) of the concerned public authority.
4. Is there any compulsion to disclose any reasons for seeking the information?
There is no compulsion to disclose the reasons for seeking the information.
5. What are the modes of depositing the RTI Application Fee?
The RTI Application Fee can be deposited by any of the following modes:-
• In person by paying cash (remember to take your receipt).
• Demand Draft.
• Indian Postal Order.
• Money Orders (only in some states).
• Affixing Court Fee Stamp (only in some states).
• Banker´s Cheque.
5. What is the time limit under which an RTI Application is to be dealt with?
• If the request pertains to another public authority (in whole or part) PIO is required to transfer/forward the request to the concerned other PIO within 5 days of receipt of request for supply of information.
• If the request has been made to the PIO, the reply is to be given within 30 days of receipt.
• If the request has been made to an APIO, the reply is to be given within 35 days of receipt.
• If the PIO transfers the request to another public authority (better concerned with the information requested), the time allowed to reply is 30 days but computed from the day after it is received by the PIO of the transferee authority.
• Information concerning corruption and Human Rights violations by scheduled Security Agencies (those listed in the Second Schedule to the Act) is to be provided within 45 days but with the prior approval of the Central Information Commission.
• However, if life or liberty of any person is involved, the PIO is expected to reply within 48 hours.
There are certain important points to be kept in mind:
• In case PIO has asked for deposit of fees/charges for supply of information by way of supplying copies of some documents then applicant/information seeker is required to deposit the further fees for information. That time is excluded from the time allowed.
• If information is not provided within stipulated period, it is treated as deemed refusal. Refusal with or without reasons may be ground for appeal or complaint.
• Further, information not provided in the time prescribed is to be provided free of charge.
6. What information is exempted from disclosure?
The information which is expressly exempted from disclosure under Section 8 of the RTI is as follows:-
• Information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the Security, "Strategic, Scientific or Economic" interests of the State, relation with foreign State of lead to incitement of an offense.
• Information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of Court.
• Information, the disclosure of which would cause a breach of privilege of Parliament of the State Legislature.
• Information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information.
• Information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information.
• Information, the disclosure of which would endanger the life or physical safety of any person or identity the source of information or assistance given in confidence for law enforcement or security purposes.
• Information which would impede the process of investigation or apprehension or prosecution of offenders.
• Information which relates to personal informaton the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual (but it is also provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied by this exemption).
• Not withstanding any of the exemptions listed above, a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. (NB: This provision is qualified by the provison to sub-section 11(1) of the Act which exempts disclosure of "trade or commercial secrets protected by law" under this clause when read along with 8(1)(d)).
7. Can an appeal be filed again the decision of CPIO?
Yes, a first appeal can be made before the First Appellate Authority of the concerned Public Authority in case:-
• No decision has been received from PIO within the specified time period.
• Decision of PIO is not acceptable.
The First Appellate Authority is required to dispose of the appeal within 30 to 45 days from the date of filing of appeal:-
• First Appeal is to be made within 30 days from the date of making of application (in case no decision is received from PIO).
• First Appeal is to be made within 30 days from the date of decision of CPIO (in case decision has been received from CPIO but is not acceptable).
8. Is there any provision for filing a Second Appeal?
Yes, a Second Appeal can be made before the concerned State or Central Information Commission constituted under the RTI Act in case:-
• No decision has been received from First Appellate Authority within the specified time period.
• Decision of First Appellate Authority is not acceptable.
9. What is the limitation period for making a Second Appeal?
• Within 90 days from the date of making of First Appeal (in case no decision is received from First Appellate Authority).
• Within 90 days from the date of decision of First Appellate Authority (in case decision has been received from First Appellate Authority but is not acceptable).
9. Is the applicant required to deposit the Fee for seeking information if he is a below Poverty Line Card Holder?
If the applicant is a below Poverty Line Card Holder, then he is not required to deposit any Fee. Such BPL Card Holders have to provide a copy of their BPL card along with their application to the Public Authority.
Adoption under Hindu Adoptions and Maintenance Act, 1956
1. Who can adopt?
For a valid adoption, the adopter must have the capacity and right to adopt:-
• Adoption by a Male Hindu:-
Any male Hindu who is of sound mind and is not a minor i.e. he has completed the age of 18 years has the capacity to take a son or a daughter in adoption. Adoption made in violation conditions is void ab initio. In case he has a wife living, he cannot adopt except with the consent of his wife.
• Adoption by a Female Hindu:-
A Female Hindu who is of sound mind, has completed the age of 18 years and is unmarried is competent to adopt a son or a daughter to herself in her own right.
2. Can the consent of a wife be dispensed with?
Yes, the consent of the wife may be dispensed with under three circumstance, namely:-
• She has completely and finally renounced the world,or
• She has ceased to ba a Hindu, or
• She has declared by a Court of competent jurisdiction to be of unsound mind.
3. What is the procedure if a Husband has more than one wife?
If a husband has more than one wife living at the time of adoption, the consent of all the wives is necessary, unless any of the wives is suffering from any of disqualifications aforementioned.
4. Can a married woman adopt a child?
Normally a married woman cannot adopt a child even with the consent of her husband.
But, in case of a married woman, whose marrige has been dissolved or whose husband is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a Court of competent jurisdiction to be unsound mind, has the capacity to take a son or daughter in adoption.
5. Who can give in adoption?
As per the Act, three persons who are competent to give in adoption are namely:-
• Guardian of the Child.
The expression ´Father´ does not include the adoptive Father or Step father. The primary or the preferential right to give the child in adoption is that of a Father. But his right is not absolute, it is not absolute, it is subject to the consent of the Mother.
The Mother´s consent can be excluded if she has completely and finally renounced the world or has ceased to be a Hindu or has been declared to be of unsound mind by a Court of competent jurisdiction.
The ´Mother´ does not mean and include the Step mother or adoptive mother. The mother has the right to give the child in adoption if the father is dead or has completely and finaly renounced the or has ceased to be a Hindu or has been declared by a Court of competent jurisdiction to be of unsound mind.
The Guardian is empowered to give the child in adoption where both the parents are dead or have completely and finally renounced the world or have abandoned the child or have been declared by a Court of competent jurisdiction to be of unsound mind or where the parentage of the child is not known.
6. Who may be adopted?
The following are essential conditions to be fulfilled before a child is taken in adoption:-
• Child is a Hindu:-
The Act permits adoption by a Hindu alone. Law does not recognize an adoption by a Hindu of person other than a Hindu.
• Child not already adopted:-
An adopted child can not be adopted again. The Act provides that an adoption once made not be cancelled. Neither adopted child can renounce his status nor the adoptive parents can give the child in adoption.
• Child must not be married:-
The child should not married unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption.
• Child has not completed the age of fifteen years:-
The child must not have completed the age of fifteen years at the time of adoption unless custom or usage governing the aprties permits them.
7. What are the other conditions for a valid adoption?
Some vital rules and conditions relating to adoption are as follows:-
• Adoption of a son can be only by a person who does not have a grandson or great grandson.
• Adoption of a daughter can be only by a person who does not have a daughter or grand daughter.
• The adopter who wants to adopt a child of different sex than his own, the difference of age between him/her and the adopted child must be at least of 21 years.
For Example:- A male Hindu wants to adopt a daughter. The age difference between the two must be at least 21 years.
SImilarly, if a female Hindu wants to adopt a son. The age difference of 21 years is mandatory.
8. Can the same child be adopted by two or more persons?
No, the Act prohibits the adoption of the same child by two or more persons simultaneously.
9. What are the ceremonies incidental to adoption?
The child to be adopted must be actually given and taken in adoption by the Parents or Guardian concerned or under their authority with intent to transfer the child from the family of his/her birth or in the case of an abandoned child or the child whose parentage is not known, from the place where his/her has been brought up to the family of his/her adoption.
10. Is there any particular mode of giving the child in Adoption?
No, there is no particular mode of giving the child in Adoption.
11. Is registration of adoption is essential?
No, the registration of adoption is not essential. However, it is always better to get the documents of adoption registered. Whenever there is a duly registered document of adoption, the court presumes that the adoption has been made according to law and is valid.
12. What is the effect of the adoption on the Child?
The adoption confers upon the adopted child the same rights and privileges in the adoptive family as the legitimate natural born child for all purposes with effect from the date of adoption.
13. Are there any restrictions on the child after adoption?
Yes, there certain restrictions on the child after adoption:-
• The child cannot marry any person whom he or she could not have married if he or she had continued in the family of his birth.
• The adopted child shall not divert any person of any estate which is vested in him or her before the adoption.
• Any property which vested in the adopted child before the adoption continues to vest in him.
Adoption by a Foreign National
1. What is Adoption?
Adoption is a process whereby a person assumes the parenting for another and, in so doing, permanently transfers all rights and responsibilities from the original parent or parents.
2. Are there some guidelines for adoption by a Foreign National?
In the matter of L.K. Pandey V/s Union of India (1984) 2 SCC244, the Hon´ble Supreme Court of India has laid down certain guidelines that have to be followed in the case of foreign adoption in an attempt to safeguard the interests of the children which are as follows:-
• A foreign national adopts an Indian child under the provisions of the Guardian and Wards Act, 1890.
• The Indian Court will appoint the foreigner as the child´s guardian.
• The foreign national will take the child to his own country and adopt him or her as per the laws of his country.
3. How to access the fitness of the applicant?
A Social or Child Welfare Agency licensed or recognized by the government of the country in which the foreigner resides must sponsor every application of a foreigner for adoption of an Indian child. Such agency will appoint a professional social worker to prepare a Home Study Report that will indicate the basis for the sponsorship fo the foreigner´s application.
4. What should the Home Study Report contain?
The Home Study Report will include the following details:-
• The applicant´s family background, marital status, his education and employment history.
• His financial status and dwelling conditions.
• His health profile.
• Information about other off springs, if any, and
The agency must access whether the applicant is fit and suitable and has the capacity to parent a child coming from a different racial and cultural milieu and whether the child will be able to fit into the environment of the adoptive family and the community in which he lives.
5. What documents are required alongwith his application for adoption?
The foreign national is required to submit supporting documents along with his applicaiton for adoption which include:-
• A recent family photograph.
• His marriage certificate.
• A declaration of the applicant´s physcial fitness duly certified by a medical doctor.
• A declaration of the applicant´s financial status with corroborating documents such as an Employment Certificate, Income Tax Returns, Bank References.
• Particulars of property owned by them.
• A declaration of willingness.
• He will also have to furnish an undertaking that he will adopt the child in accordance with the law of the country in which he resides at the earliest, but not later than two years from the date of the child´s arrival in his country.
• The applicant must also declare that he will maintain the child and provide him with necessary education and upbrining according to their status.
• The foreign national is also required to sign an undertaking stating that he will send the Indian Agency and the court a progress report and a photograph of the child monthly in the first year, quarterly in the second year, and half yearly up to five years.
• In addition, the foreigner is expected to sign a power of attorney in favour of an officer of the Social or Child Welfare Agency in India so that the officer can process the case.
All the certificates, declaration and documents that are attached to the foreigner´s application are required to be duly notarized by a Notary Public. The notary´s signature, in turn, will have to be duly attested either by an officer of the Ministry of External Affairs or Justice or Social Welfare of the country of which the foreigner is a resident. An officer of the Indian Embassy or High Commission or Consulate in that country can also attest the notary´s signature.
6. What is the role of a Social an Child Welfare Agency?
The Social and Child Welfare Agency sponsoring the application of the foreigner must:-
• Certify that the foreigner seeking to adopt a child is permitted to as per the laws of his country.
• The agency msut undertake to ensure the adoption of the child by the foreigner according to the law of his country within a period of two years.
• Once the adoption procedure is complete, it is the duty of the agency to send two certified copies of the adoption order to the Social and Child Welfare Agency in India through which the application for guardianship was processed.
One copy of the adoption order will have to be filed in court and the other will remain with the Indian agency for their records.
• The agency sponsoring the guardianship application must also agree to send progress reports of the child to the Indian agency.
• These reports will be sent quarterly in the first year and half yearly in the following years till the adoption has been effected.
• The foreign agency will also have to undertake that in the event of the disruption of the adopting family before the completion of the adoption procedure, it will take care of the child and find a suitable alternative placement for it with the approval of the Indian agency.
In the case of an alternative placement becoming necessary, this development will be reported to the court handling the guardianship proceedings and this information will be passed on by the court and the Indian agency to the Secretary, Ministry of Social Welfare, Government of India, New Delhi.
7. What is the procedure to be followed in the Court of Law?
The following is the procedure to be followed by the Court of Law:-
• The application for guardianship must be made before the court of the District Judge within whose jurisdiction the Social and Welfare Child Agency in India that is processing the application of the foreigner is located.
• The application will be filed by the Indian Welfare Agency or a person duly authorized by the agency in this regard.
• Next the court issues notices to the Indian Council for Child Welfare (ICCW) and the Indian Council for Social Welfare (ICSW) in order that they scrutinize the guardianship application.
• These organisations are expected to give their considered opinion whether they believe that adoption by the foreign national is in the child´s best interests.
• The ICCW or ICSW make their representation to the court after carefully studying the application with all the annexures, the Home Study Report, and the Child Study Report and making all necessary inquiries.
• The court will first hear all the concerned parties and examine all the documents.
• The court must be satisifed that the foreigner will be a suitable adoptive parent for the child and will provide the child a secure and loving home.
• The court must also be convinced that the child will be able to assimilate itself into the family and community of the foreigner.
• If the court is satisifed on all these counts, it will pass an order appointing the foreigner as the child´ guardian and the foreigner will be allowed to take the child back to his country with a view to eventual adoption.
• In some cases, the court may even put a condition that the foreign national make provision by way of deposit or bond for the repatriation of the child to India should such a situation arise. The photograph of the child is attached to the order and counter-signed by the judge.
8. Is there any time limit for diposal of the application?
The Hon´ble Supreme Court of India, in the matter of L.K.Pandey V/s Union of India, (supra) has fixed a maximum period of two months for the disposal by the courts of application made under the Guardians and Wards Act, 1890.
9. Is the personal appearance of a Foreign National (Applicant) before the Court is required?
In L.K. Pandey V/s Union of India (supra). The Hon´ble Supreme Court has categorically dispensed with the personal presence of the foreign national for the purpose of completing legal formalities.
10. Which is the nodal Central Body for adoption of children from India to foreign countries?
The Central Adoption Resource Authority (CARA) is the nodal Central body. It has its Head office in New Delhi.
1. What is a ´Will´?
´Will´ means the legal declaration of the intention or the desire of a person as to how he wants his property to be dealt with after his death.
2. Who can make a Will?
A person of sound mind not being a minor can make his Will.
3. How to Execute/Write a Will?
Will can be executed even on a plain paper. It can be hand written or typed. If the testator (the person who is executing the Will) is writing himself, he has to sign it. If somebody else has written/typed the Will, he should mention that it has been done so on the dictation of the testator. In that eventuality, the testator should also mention above his signatures that he has gone through the text and that it is as per his wish.
4. Whether a Will requires witnesses?
Yes, it is compulsory that execution of a Will is witnessed by atleast two persons (Endeavour should be to have witness from the locality/from amongst relations but none of them should be beneficiary.
5. Whether a Will requires registration?
A Will does not require compulsory registration. An un-registered Will is as good as a registered Will. However registration of Will has its own advantages.
6. Whether a testator can disinherit his family member?
Yes, but it will be proper if he gives reasons for that in the Will itself.
7. Can a Karta of a Joint Hindu Family execute will in respect of the entire property of joint family?
No, he can execute will only in respect of the share which he would have got if partition had taken place during his life time.
7. What happens if a person dies without executing a Will?
If a person dies without executing a will then the property will go to his heirs as per the Law of succession as applicable to him.
1. The testator (the maker of Will) should ensure that his signatures on the Will can easily be compared with his signatures elsewhere e.g. signatures in the bank records.
2. If the testator (the maker of Will) is not in perfect state of health, it should be ensured that he executes the Will in the presence of a reputed Doctor who certified on the Will itself that testator was in a position to understand and comprehend.
Registration of Marriage
1. Under which law, a Marriage is registered?
Marriage already solemnized is registered under the Hindu Marriage Act, 1955.
2. What are the Eligibility conditions for the Registration of Marriage?
The following are the eligibility conditions:-
• Either Bride or the Bridegroom must be a resident of the Tehsil in which the marriage is to be registered.
• At the time of Marriage, the Bridgegroom must have completed the age of 21 years and Bride the age of 18 years.
• Both must be Hindus.
3. What is the procedure of Registration of a Marriage?
At the time of Registration of Marriage:-
• The applicant submits an application in prescribed form stamped with requisite Court Fee.
• This marriage is registered under the Hindu Marriage Act, 1955 on the identification of village numberdar.
4. What are the documents required for Registration?
The following are the documents which are required for registration:-
• Application on the prescribed proforma.
• Proof of age of bride and the bridegroom.
• Statement of bride-bridegroom and their parents.
• Certificate in support of age.
• Marriage ceremony photographs.
• Marriage card or any other proof in support of marriage solemnized.
5. What is the prescribed time schedule for the registration of marriage?
No time limit is specified for marriage registration. Registration is possible immediately after the above formalities are completed.
6. Who is the sanctioning authority for the Registration of marriage?
Tehsildar-cum-Registrar of Marriages.
7. Where can the individual register his grievance?
He/She can go to the Deputy Commissioner-cum-Marriage Officer of the area concerned.
Public Interest Litigation
1. What is Public Interest Litigation (PIL)?
Public Interest Litigation (PIL) is actually litigation for Public Interest. PIL was started to protect the fundamental rights of people who are poor, ignorant or in socially/economically disadvantaged position. It is different from the ordinary litigation, in that it is not filed by one private person against another for the enforcement of a personal right.
The provision of free legal services to the poor through forums under Legal Services Authorities Act and some other Legislation have also contributed considerably in this field.
2. What are the guidelines to be followed while filing the PIL?
The Hon´ble Supreme Court of India issued many guidelines in 1998 describing the Public Interest to be followed for entertaining letters or petitions received in the Court as Public Interest Litigation and suggested that the following issues are regarded to be something in Public Interest:
• Bonded labour matters.
• Neglected children.
• Non-payment of minimum wages to workers and exploitation of casual workers and complaints of violation of labour laws (except in individual cases)
• Petitions from jails complaining of harassment for premature release and seeking release after having completed 14 years in jail, death in jail, transfer, release on personal bond, speedy trial as a fundamental right.
• Petitions against police for refusing to register a case, harassment by police and death in police custody.
• Petitions against atrocities on women, in particular harassment of bride, bride-burning, kidnapping etc.
• Petitions complaining of harassment or torture of villagers by co-villagers or by police from persons belonging to Scheduled Castes and Scheduled Tribes and Economically Backward Classes.
• Petitions pertaining to environmental pollution, disturbance of ecological balance, drugs, food, adulteration, maintenance of heritage and culture, antiques, forest and wildlife and other matters of public importance.
• Petitions from riot-victims.
• Family pension.
3. What are the conditions of filing a PIL?
A PIL can be filed when the following conditions are fulfilled:-
• The presence of ´Public Interest´ is important to file a PIL.
• There must be a public injury and public wrong caused by the wrongful act or omission of the state or public authority.
• It is for the enforcement of basic human rights of weaker sections of the community who are down trodden, ignorant and whose fundamental and constitutional rights have been infringed.
• It must not be frivolous litigation by persons having vested interests.
4. Who may file a PIL?
The Hon´ble Supreme Court of India (SC), through its successive judgments has relaxed the strict rule of ´Locus Standi´ applicable to private litigation.
Any person can file a PIL provided:-
• He is a member of the public acting bona fide and having sufficient interest in instituting an action for redressal of public wrong or public injury.
• He is not a mere busy body or meddlesome interloper.
• His action is not motivated by personal gain or any other oblique consideration.
5. How to file a PIL?
A PIL may be filed like a Civil Writ Petition. However, in the past the Hon´ble Supreme Court of India has treated even letters addressed to the court as PIL. In "Peopl´s Democratic Union V/s Union of Inidia", a letter addressed by the petitioner organization seeking a direction against the respondents for ensuring observance of the provisions of famous labour laws in relation to workmen employed in the construction work of projects connected with the Asian games was entertained as a PIL.
6. When can a Private Interest Litigation be taken as Public Interest Litigation or Social Interest Litigation (PIL/SIL)?
In an appropirate case, where the petitioner might have moved a court in her private interest and for redressal of the personal grievance, the court in furtherance of Public Interest may treat it a necessity to enquire into the state of affairs of the subject of litigation in the interest of justice. Thus a private interest case can also be treated as public interest case.
A new branch of proceedings known as ´Social Interest Litigation´ or ´Public Interest Litigation´ was evolved with a view to render complete justice to the aforementioned classes of personal. The courts exercising power of judicial review found to its dismay that the poorest of the poor, depraved, the illiterate, the urban and rural unorganized labour sector, women, children, handicapped by ´ignorance, indigence and illiteracy´ and other down trodden have either no access to justice or had been denied justice.
First Information Report
1. What is an F.I.R.?
F.I.R. is a short form of "First Information Report". It is information recorded by the police given by any person about the commission of an alleged cognizable offence. On the basis of F.I.R, the police commences its investigation. It is a report of information that reaches the police first in point of time and that is why it is called First Information Report.
2. Who can file an F.I.R.?
Any person who knows about the commission of a cognizable offence can file an F.I.R.. He need not be an aggrieved person or the victim of the crime. F.I.R. need not by the person who has first hand knowledge of the facts. However it is generally lodged with the police by the victim or by someone on his/her behalf. A police officer who comes to know about commission of a cognizable offence can file an F.I.R himself. Even accused person can file an F.I.R. You can file an F.I.R. if:-
• You are the victim against whom the offence has been committed.
• You know about commission of an offence against anybody.
• You have seen any offence being committed.
3. Where to file an F.I.R.?
An F.I.R. should be normally filed in the police station of the concerned area in whose jurisdiction the offence has been committed. It should be made to the officer-in-charge of the police station.
4. For which offences can an F.I.R. be filed?
An F.I.R. can be filed regarding Cognizable Offences only. A cognizable offence is one in which the police may arrest a person without warrant [Section 2(c), Criminal Procedure Code, 1973]. Police is authorized to start investigation into a cognizable case on its own and does not require any order from the court. F.I.R. cannot be filed regarding Non-Cognizable Offence. A non-cognizable offence is an offence in which a police officer has no authority to arrest without warrant [Section 2(1),Criminal Procedure Code, 1973 ]. The police cannot investigate such an offence without the orders of the court.
5. What should you mention in the F.I.R.?
Step by step in an orderly sequence narrate to the officer information relating to the commission of the offence. You should specifically mention:-
• Your name and address.
• Date, time and location of the incident you are reporting.
• The true facts of the incident as they occured
• Names and description of the accused/persons involved in the incident.
• Witnesses, if any.
6. How to lodge an F.I.R.?
The procedure of lodging an F.I.R. is precribed in Section 154 of the Criminal Procedure Code, 1973. F.I.R. is filed in the following manner:-
• Go to the police station and meet the officer-incharge/Station House Officer (S.H.O.).
• When information is given orally, the police must write it down.
• It is your right as a person filing F.I.R. to demand that the information recorded by the police is read over to you.
• The information given must be signed by you.
• The information given shall be entered in a book to be kept by the officer.
7. Can an F.I.R. be registered by a telephone?
F.I.R. can be also be registered on telephone provided the person giving the information is an ascertained one or is capable of being ascertained.
8. How to get a copy of an F.I.R.?
A copy of the F.I.R. has to be given free of cost to the informant. Always ask for a copy of the F.I.R.. It is your right to get a copy of F.I.R. free of cost.[Section 154(2), Cr.P.C.]
9. What if S.H.O. refuses to lodge the F.I.R.?
If the police/S.H.O. does not lodge the F.I.R., an aggrieved person can avail following remedies:-
• The information may be sent in writing and by post, to the Superintendent of Polie (S.P.) concerned who, if satisfied that such information discloses the Commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by an police officer subordinate to him.[Section 154(3), Cr.P.C.]
• You can seek directions from the Court to the police to lodge an F.I.R. [Section 156(3), Cr.P.C.]
• You can file a private complaint before the Court having jurisdiction.[Section 190, Cr.P.C.]
• You can also make a complaint to the State Human Rights Commission or the National or State Human Rights Commission if the police does nothing to enforce the law.
10. What happens after F.I.R.?
Once the F.I.R. has been registered, the investigation in the case shall begin.
11. When Police may not investigate an F.I.R.?
The police may not investigate a complaint even if you file an F.I.R., when:-
• The case is not serious in nature.
• The police feel that there is not enough ground to investigate.
However, the police must record the reasons for not conducting an investigation and in the latter case must also inform the informant.[Section 157, Cr.P.C.]
12. What should you remember while lodging an F.I.R.?
• Never lodge a false complaint or give wrong information to the police.
• You can be prosecuted under law for giving wrong information or for misleading the police.
• Never exaggerate or distort the facts.
• Never make vague or unclear statements.
You should sign the report only after verifying that the information recorded by the police is as per the details given by you.
13. Within what time should an F.I.R.be lodged?
F.I.R. should be lodged with the police at the earliest ooportunity after occurrence of the unreasonable delay in lodging F.I.R. may give rise to suspicion.
14. Why is F.I.R. an important document?
An F.I.R. is a very important document as it sets the process of criminal justice information. It is only after the F.I.R. is registered in the police station that the police takes up the investigation of the case.
1. What is meant by Arrest?
Arrest means apprehnsion of a person by Legal Authority resulting in deprivation of his liberty. A person can be arrested:-
• In pursuance of a warrant issued by a Magistrate.
• Without such warrant but in accordance with some legal provision permitting such arrest.
2. What is meant by Warrant of Arrest?
A warrant of arrest is a written order issued and signed by a Magistrate and addressed to a Public Officer or some other person specially named and directing him to arrest the accused person.
3. When can police officer arrest without a warrant?
A Police Officer may without an order from the Magistrate and without a warrant, arrest any person :-
• Who has been concerned in any cognizable office, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned; or
• Who has in his possession without lawful excuse, the burden of providing which excuse shall lie on such person, any implement of house-breaking; or
• Who has been proclaimed as an offender either under this code or by order of the State Government; or
• In whose possession anything is found which may reasonably be suspected to be a stolen property and who may reasonably be suspected of having committed an offence with reference to such a thing; or
• Who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from the lawful custody; or
• Who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or
• Who has been concerned in or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which it lie , under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or
• Who being a released convict, commits a breach of any rule.
• For whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.
4. Can a person be arrested if he does not discloses his name and residence?
When any person, who in the presence of a police officer, has committed or has been accused of committing a non-cognizable offence refuses, on demand of such officer, to give his name and residence or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer in order that his name or residence may be ascertained
5. Can a private person arrest any person?
Any private person may arrest or cause to be arrested any person who in his presence commits a non-bailable and cognizable offence, or any proclaimed offender, and, without unnecessary delay, shall make over or cause to be made over any person so arrested to a police officer, or, in the absence of a police officer, take such person or cause him to be taken in custody to the nearest police station.
6. Can a Magistrate arrest any person on his own?
Yes, when any offence is committed in the presence of a Magistrate, whether Executive or Judicial, within his local jurisdiction, he may himself arrest or order any person to arrest the offender, and may thereupon subject to the provisions herein contained as to bail, commit the offender to custody.
7. Can a Public Servant or Member of Armed Forces be arrested?
No Public Servant or Member of the Armed Forces of the Union can be arrested for anything done or purported to be done by him in the discharge of his official duties except after obtaining the consent of the State/Central Government. However, if the offence has been committed except in discharge of official duties he can be arrested.
8. How can the arrest be made?
In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be it submission to the custody by word or action.
If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.
9. What is the procedure for search of the arrested person?
The police officer making the arrests or, when the arrest is made by a private person, the police officer to whom he makes over the person arrested, may search such person, and place in safe Custody all articles, other than necessary wearing-apparel, found upon him and where any article is seized from the arrested person, a receipt showing the articles taken in possession by the police officer shall be given to such person.
10. What are the guidelines for the arrest of a woman?
The following are the guidelines for the arrest of a person:-
• No woman can be arrested after the sunset and before sunrise without special permission from the magistrate.
• At least one Female police officer should be present when a woman is being arrested.
• If in a situation a woman needs to be searched then it should be done by another female with strict regard to her decency and modesty.
• An arrested woman should be kept in a lock up exclusively for women which is separated from that of men. If such lock up is not available then they should be kept in a separate room.
• In case the woman is pregnant, physical restraints should be avoided and safety of the foetus should not be compromised in any case.
• If a woman has been arrested for a non-bailable offence of serious nature e.g. an offence punishable by death penalty, the court is empowered to grant her bail.
11. What is the time period of production of the arrested person before a Magistrate?
The police officer has to produce the arrested person before the nearest Magistrate at the earliest but definitely within 24 hours.
12. Are there any guidelines for the arrest of a person?
The judgment of the Hon´ble Supreme Court in the case of D.K. Basu V/s State of West Bengal lays down the manner in which a person can be detained or arrested, it says:-
• The personnel making the arrest have to bear accurate, visible and clear identification and nametag with their designations.
• The officer making the arrest has to prepare a memo of arrest at the time of taking an individual in police custody and get it attested by at lest one witness, who has to be either a member of the family of the arrested person or a respectable person of the locality from where the arrest is made.
• The memo also has to be counter-signed by the person arrested along with the time and date of arrest.
• A relative or friend of the arrested person has to be informed about the arrest as soon as possible.
• The arrested person has to be made aware of his right ot hve someone informed about his arrest or detention as soon as he is placed under arrest or detention.
• An entry has to made in the diary at the place of detention about the arrest and particulars of the relative or friend who ahs been informed.
• The arrested person has to be medically examined immediately after the arrest if he asks for it. Therefore he has to be examined by a doctor every 48 hours during his detention. The doctor should be on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory.
• The area Magistrate has to be informed with detils about the arrest.
• The accused has to be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
• A control room has to be set up at all District and State Headquarters to give information regarding the arrest and the place of custody of all arrested persons within 12 hours of the arrest.
• The use of handcuffs or leg chains should be avoided.
13. Are the guidelines mandatory and can their non-implementation be challenged in court?
Yes, since the Basu judgment still stands, these guidelines carry the weight of law. An aggrieved person can approach a court of law, either on his own or through somebody else, if the guidelines were flouted while arresting him. There have been cases of police personnel being punished for not following the guidelines while making the arrest.
14. Have the guidelines been given the shape of a law?
No, but the Union Government has been working on amendments to the Criminal Procedure Code to include the guidelines in the same.
1. What is a Bail?
Bail is the security for appearance of the accused person on giving which he is released pending trial of his case before court or investigation by police. Bail means release of accused person from custody on his undertaking that he shall appear at the time and place as directed by the Court and/or Police.
2. When is a person entitled to Bail as of Right?
An accussed person is entitled to Bail as of right in case of minor offences. In the following cases the Court or the Police can not refuse to release accused person on Bail if he is ready to furnish the requisite Bail bonds:-
• All cases of person accused of Bailable offences [Section 436, Cr.P.C.]
• Cases of persons though not accused of any offence but against whom security proceedings have been initiated.
• All others cases of arrest and detention which are not in respect of any non Bailable offence.
• Where the challan/charge sheet is not filed by the police within 90 days when the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of ten years or more or within 60 days when the investigation relates to any other offence. [Section 167(2), Cr.P.C.]
• When a person had during investigation, inquiry or trial for any offence except punishable with death has undergone detention for a period extending up to one half of the maximum period of imprisonment specified unless court for the reasons to be ordered in writing thinks otherwise. [Section 436A, Cr.P.C.]
• When a person had during investigation, inquiry or trial for any offence except punishable with death, undergone detention for the maximum period of imprisonment specified.[Section 436A, Cr.P.C.]
• If it appears to the Police or Court at any stage of investigation, inquiry or trial that there are no reasonable grounds for believing that the accused has committed a non bailable offence but that there are sufficent grounds for further inquiry into his guilt.[Section 169, Cr.P.C.]
3. What are Bailable and Non Bailable Offences?
• Bailable Offence means offence which is shown as Bailable in the First Schedule of Cr.P.C. or which is made bailable by any other law and Non Bailable Offence means any other offence which is not a Bailable office. [Section 2(a), Cr.P.C.]
• Generally all serious offences punishable with punishment of three years or more are non Bailable and all minor offences punishable with punishment less than three years are Bailable though there are certain exceptions.
• In case of Bailable offence the accused has a right to be released on Bail. But if the offence is non Bailable it does not mean that the accused person shall not be released on Bail. In such cases Bail is not a matter of right but only a privilege to be granted at the discretion of the court. The court mayor may not grant Bail in Non Bailable offence.
4. What are the factors considered by the Court while granting Bail in Non Bailable cases?
The court has the discretion in granting Bail in Non Bailable cases. However there are certain principles which guide the court in granting Bail. Court would look into following circumstances while granting Bail:-
• The health, age and sex of accused person.
• Whether the change is serious or minor.
• The punishment prescribed for alleged offence.
• Evidence available.
• Danger of accused running away.
• Danger to witness.
• Time required for trial.
• Circumstances in which offence has been committed.
• Position and Status of accused.
• Position and status of victim.
• Probability of accused committing more offence if released on Bail.
5. What should you remember while on Bail?
• Carefullly note the time, place and date you are required to appear as per the directions of the court. Your Bail may be cancelled if you do not appear before the court on date and time fixed.
• Always bring genuine surety for furnishing surety bonds.
• Do not leave the country without the permission of the Court if you have been released on Bail.
• Do not tamper with evidence.
• Do not try to contact, influence or pressurize the prosecution witnessess while you are on Bail.
6. Can a Bail be cancelled?
Yes, the court which released the person on Bail can cancel the Bail in appropriate cases like:-
• If he commits the same offence again.
• If he hampers the investigation.
• If he tampers with the evidence.
• If he commits acts of violence in revenge against prosecution witnessess.
7. Can court order to release a person on Bail even before the person is arrested?
Yes, Hon´ble High Court and Sessions Court can order a person to be released on Bail even before the person is arrested. Such type of Bail is called Anticipatory Bail. [Section 438, Cr.P.C.]
8. Can a person be released on Bail on his personal bond alone?
Yes, a person can be releaed on Bail on his personal bonds alone without furnishing surety in case of Bailable offences in following cases:-
• If the Police Officer or Court thinks it fit.
• If the accused person is indigent and unable to furnish surety. Where the person is unable to give Bail within a week of the date of his arrest it shall be sufficient ground for the officer or the Court to presume that he is an indigent person.
9. Is police required to inform you regarding your Right to Bail?
Yes, police is bound to inform you regarding your right to Bail at the time of arrest in case of offences other than Non Bailable Offences.[Section 50, Cr.P.C.]
10. Can you obtain legal aid for filing application for Bail?
Yes, you can obtain legal aid for filing the application for Bail.
1. What is Plea Bargaining?
It is an agreement reached in a criminal case where by the accused and the prosecutor work out a mutually satisfactory disposition of the case subject to court approval.
2. What are the types of Plea Bargaining?
They can be divided into three types:-
• Charge Bargaining:-
This is such bargain in which the defendant pleads guilty to reduced charges. It occurs when the defendant pleads guilty to necessarily included offences.
• Sentence Bargaining:-
It involves assurance of lighter or alternative sentences in return for a defendant´s pleading guilty. A sentence bargaining may allow the prosecutor to obtain a conviction to the most serious charge, while assuring the defendant an acceptable sentence.
• Fact Bargaining:-
It is least used negotiation involves an admission to certain facts (stipulating to the truth and existence of provable facts, thereby eliminating the need for the prosecutor to have to prove them) in return for an agreement not to introduce certain other facts.
3. Who can file an application for Plea Bargaining and when?
• Any accused person above the age of 18 years and against whom a trial is pending can file an applicaton for Plea Bargaining.
There are some exceptions to this general rule:
• The offences against the accused should carry a maximum sentence of less than 7 years.
• The offences should not have been committed by the accused against a women or a child below the age of 14 years.
• The accused should not have earlier been convicted for the same offence.
• The offence should not affect the socio-economic condition of the country.
Note:- Application for Plea Bargaining can be filed only after the Investigating Agency has filed the Charge sheet (popularly known as Challan) in the Court or in the case of a private complaint after the accused has been summoned.
4. What offences affect the Socio-Economic condition of the country?
No Plea Bargaining is permitted in respect of the following:-
• Dowry Prohibition Act, 1961.
• The Commission of Sati Prevention Act, 1987.
• The Indecent Representation of Women (Prohibition) Act, 1986.
• The Immoral Traffic (Prevention Act, 1956).
• Protection of Women from Domestic Violence Act, 2005.
• The Infant Milk Substitutes, Feeding Bottles and Infant foods (Regulation of Production, Supply and Distribution Act, 1992.
• Provisions of Fruit Prodcuts order, 1955 (issued under the Essential Commodities Act, 1955)
• Provisions of Meat Food Products Order, 1973 (issued under the Essential Commodities Act, 1955)
• Offences with respect to animals that find place in Schedule I and Part II of the Schedule II as well as offences related to altering of boundaries of protected areas under Wildlife (Protection) Act, 1972.
• The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
• Offences mentioned in the Protection of Civil Rights Act, 1955.
• Offences listed in Sections 23 to 28 of the Juvenile Justice (Care and Protection of Children) Act, 2000.
• The Army Act, 1950.
• The Air Force Act, 1950.
• The Navy Act, 1957.
• Offences specified in Sections 59 to 81 and 83 of the Delhi Metro Railway (Operation and Maintenance) Act, 2002.
• The Explosives Act, 1984.
• Offences specified in Sections 11 to 18 of the Cable Television Networks (Regulation) Act, 1955.
• Cinematograph Act, 1952.
5. What incentive does an accused get to enter into a Plea Bargaining?
The Principal benefit of Plea Bargaining, for most of the accused, is to receive a lighter sentence for a less severe charge than what might result from taking the case to trial and losing. Another fairly obvious benefit that accused can reap from Plea Bargaining is that they can save on advocates fees. Other benefits are:-
• Getting out of jail.
• Resolving the matter quickly.
• Having fewer or less serious offences on one´Record.
• Avoiding hassles.
• Avoiding publicity.
6. What is the benefit of the Plea Bargaining qua the Judge and Prosecutor? Why will the Court accept this plea?
• It helps Judges and Prosecutors to manage case loads.
• Speedy trials.
7. What is the benefit of Plea Bargaining for the Victims? How does a victim Plea Bargains?
• It provides greater respect and consideration towards victims and their rights.
• It does so by giving greater choices to them in satisfactory diposition of the case, and by providing a scheme for compulsory compensation.
• It mandates the Court to pay compensation to victims of crime once the Plea Bargaining process is complete and then hears the parties on quantum of punishment and possibility of probation.
• The rights of the vicitims are better upheld as they can bargain over courts decision.
• It also spares the victim from the anxiety of having to give evidence in the Court, and the unpleasantness of hearing all the details of the crime analysed at length in public.
Elections in India
India has a federal form of Government with Parliament at national level, legislative assemblies at State Level, Municipalities and Gram Panchayats at Local Level. The members of Parliament (Lok Sabha) State Legislative Assemblies, Gram Panchayats and Municipalities are elected directly by the people. In fact Parliament has two houses viz. Lok Sabha and Rajya Sabha. The members to Rajya Sabha are indirectly elected by the legislators.
At present the Lok Sabha has 555 members out of which 543 are elected for a five year term. Two members are appointed to represent the Anglo Indian Community.
Rajya Sabha has 245 members out of which 233 are elected for a six year term with one third retiring every two years. 12 members are nominated out of eminent Artists, Scientists, Businessmen and Jurists etc.
1. Who can Vote?
Any citizen of India who is 18 years or plus can vote in an election. The right to vote is irrespective of Caste, Creed, Religion or Gender.
2. Who cannot Vote?
A citizen is disqualified from exercising the right to vote in an Election if:
• He is of unsound mind.
• He is barred by any court of law.
• He has taken the citizenship of any other country.
3. Who cannot contest an Election?
Any citizen of India who is registered as a voter and is over 25 years of age is allowed to contest elections to the Lok Sabha or State Legislative Assemblies. For the Rajya Sabha the age limit is 30 years. Candidates for Rajya Sabha and State Assembly should be residents of the same State from which they wish to contest.
Every candidate has to make a deposit of Rs. 10,000/- for Lok Sabha Election and Rs. 5,000/- for Rajya Sabha and State Legislative Assemblies Elections, except for candidates from Scheduled Caste and Scheduled Tribes, who pay half the amount as the case may be. The deposit is forfeited if the candidate receives less than 1/6 of the total number of valid votes polled in the Constituency (this is popularly known as Zamanat Zabt). For contesting an election it is not necessary that the person should be a member of a political party. However if the contestant is sponsored by a registered political party, his nomination has to be sponsored by at least one registered voter of Constituency. In case of candidate is independent in the sense that he is not sponsored by a registered political party then his nomination must be supported by at least 10 registered voters from the Constituency.
4. Who conducts Election?
The Election Commission of India has power of Superintendence, Direction and Control of Election to Parliament, State Legislatures and of elections to the Office of President and Vice President. The following are the principle functions of the Election Commission of India.
• Demarcation of Constituencies.
• Preparation of Electoral Rolls.
• Recognition of Political parties and allotment of symbols.
• Scrutiny of nomination papers.
• Conduct of polls.
During elections vast powers are assigned to the Election Commission to the extent that it can function as a Civil Court, if needed. In case the Election Commission is of the view that the post of a particular Civil Servant in a particular Constituency is not conducive for the holding of fair and impartial elections it can recommend transfer of that official.
The Model Code of Conduct comes in force from the day the election dates are announced. Thereafter no party is allowed to use the Government resources for campaigning. The Code of Conduct stipulates that campaigning should be stop 48 hours prior to polling day.
Publishing of electoral rolls is a key process that happens before the elections. If a citizen who is otherwise eligible to cast vote does not find his name in the electoral rolls he can move the Election Commission. Normally voter registration is allowed latest one week prior to the last date of nomination of candidates.
The voting takes place at polling stations/booths (normally Schools and Colleges are chosen as polling stations). The Collector of each district is in-charge of polling there. Government Employees are deployed to the polling stations. Now a days electronic voting machines (EVMs) are being used instead of ballot boxes. This helps in containing Booth Capturing.
Indelible ink is applied usually on the left index finger of each voter as a proof that he has cast his vote. This is necessary to prevent bogus voting. To ensure that no bogus voting takes place every candidate is allowed to have polling agents in the polling stations/booths.
After polling the EVMs are stored in a strong room under heavy security. Generally elections are conducted in phases. After the different phases of the elections are over, a day is set to count the votes. Each candidate is allowed to deploy his polling agents at the time of counting. The candidate who gets the maximum votes is declared winner from the Constituency.
4. How the Government is formed after the Elections?
The party or coalition (combination of one or more parties) getting simple majority (minimum 50% of the total seats in the House) is invited by the President or the Governor, as the case may be, to form the new Government.
Taxes and Duties
1. What are Taxes and Duties?
For development of country and to fulfil its obligations towards citizens Government needs resources popularly known as revenue. Taxes and Duties are the major source of revenue of any Government.
2. On what items Taxes/Duties are levied?
Taxes and Duties are levied on income, goods and services.
3. How Taxes/Duties are levied?
Constitution of India allocates power to levy various taxes between Centre and State No tax/duty can be levied or collected except in accordance with law passed by Parliament or State Legislature.
4. How many types of Taxes are there?
There are two types of Taxes:-
(i) Direct Tax
(ii) Indirect Tax.
Direct Tax means the Tax which is paid by individuals or Corporations directly to the Government. An example is Income Tax.
Indirect Tax means the Tax which is paid by the Purchaser/Consumer of goods/services to the Government through the Seller/Service Provider. It means that the Seller/Service Provider collects the Tax on behalf of the Government and deposits it with the Government. An example of Indirect Tax is Value Added Tax (VAT).
5. What are the disadvantages of Tax Evasion?
Generally it is seen that to avoid to paying the tax we do not ask for bill. This may prove beneficial in the short term but in the long run this damages the economy of the nation thereby hurting each individual. Non payment of Taxes/Duties takes the nation backwards. Roads, Bridges, Schools, Hospitals etc. which are an integral part of our life cannot be built and maintained without revenues.
Tax evasion also generates black money which finds way into Anti-Social and Anti-National Activities.
If a person does not pay tax it increases burden on others because to meet the expenses the Government has to widen the net and increase the rates of taxes.
6. What are the consequences of Tax Evasion?
If anybody is caught evading Tax/Duty he is liable to pay interest and penalty which can render him virtually penniless. A Tax evader faces criminal prosecutions as well. Till one is caught, one enjoys with the evaded money but once caught in the net, everything is finished, be it money, status or respect. Therefore, tax evaders can be called "Penny wise pound foolish".