Top 8 Powers of Prime Minister of India

Powers of Prime Minister

Introduction

The Indian government has been divided into three important organs, namely the Executive, The Legislature, and the Judiciary. The head of the Executive is the Prime Minister of the Country, the power vested with the President is advisory with the Union Council of Minister. The PM is also known as “Keystone of the Cabinet Arch.” The Prime Minister can be a member of either the Lok Sabha or the Rajya Sabha. He is the leader of the party who is in power and also the political head of the services. President is the head of the State, and Prime Minister is the head of the Government.

How is the Prime Minister Appointed?

Prime Minister is not elected directly by the People but by the President as per the provision of Article 75 of our Constitution. The leader of the political party which secures an absolute majority in the Lok Sabha shall be appointed as the Prime Minister. The tenure of the Prime Minister is for 5 years, but the person can stay in power as long as it holds a majority in the Lok Sabha, the tenure is not fixed by Constitution of India.

10 Powers of Prime Minister of India

  1. Council of Ministers:

a) Council of ministers is a body of the government comprising of 60 to 70 ministers which includes cabinet ministers, ministers of state and deputy ministers. The functions of the council of ministers are decided by the cabinet chaired by Prime Minister.

b) The President often seeks advice from the Prime Minister with respect to the appointment of the Council of ministers. The president has no selective jurisdiction to drop off a name chosen by the Prime Minister.

c) As per Article 74(i) of the Indian Constitution, Prime Minister is the head of the Council of Ministers. No other council of ministers can function when the Prime Minister resigns or dies.

d) Prime Minister acts as a medium or connecting link between the Council of Ministers and the President as per the duty assigned under Article 78 of the Constitution which includes communication of all decision of the council of ministers to the President. and to provide any information which the president may call for the administration of such matters, etc.

e) Prime Minister has the power to ask a person to resign or ask the president to do so, in case of difference of opinion.

2. Cabinet meetings:

a) It is a smaller body of the government which has 15 to 20 members and is a part of the council of ministers. This body meets, exercises, transacts and directs the policy decisions and the functioning of the council of ministers.

b) The cabinet meetings and its proceedings are conducted by the Prime Minister. The business to be transacted is also decided by the PM, i.e., the PM is the chairman of the Cabinet.

3. Assignment of Portfolios:

a) The power to appoint and distribute portfolios is vested with the Prime Minister. It can also modify departments chosen to the ministers at any time.

b) The Prime Minister plays a supervisory role for the working and coordination among various departments.

c) Certain portfolios are generally not assigned, and the Prime Minister remains in charge of the same as Ministry of Planning, Department of Space, Department of Atomic Energy, Ministry of Personnel, Public grievances and Pensions.

4. Policy statement:

a) The Prime Minister plays a significant role in making all the policy statements. And has the power of both advisory and directory in nature.

b) In shaping, designing, and executing the foreign policy, a significant role is played by the PM.

c) In preparing the annual budget, the PM plays a pivotal role.

5. Advisory powers:

a) Amongst the advisory power, the Prime Minister can recommend and suggest to the president for the appointment of the following personnel: Chief Election Commissioner of India, Comptroller and Auditor General of India, Chief Information Commissioner, information commissioner of India, Attorney General of India, solicitor general of India.

b) The PM has the power to decide the chief posts of the military personnel’s like Chief of Army Staff, Chief of Air Staff and Chief of Naval Staff.

c) The PM is the chairperson of Appointments Committee of the Cabinet (ACC) also advice the Cabinet Secretary of India, however, such advise is non-binding in nature.

6. Leader of the Parliament:

a) The dates of the parliamentary meetings are decided by the PM.

b) The meetings are programmed by him.

c) Whether the houses will continue or dissolve will be decided by the PM.

d) Being in a special position having a special advantage, announcements of government policies and answers to the queries on departmental lines is done by the PM.

7. Foreign Relations:

Chief spokesperson of foreign relation is the Prime Minister. He is the key person in handling international relations. He is the speaker of the nation in all international conferences. For anything spoken by him outside the nation, are statements of policy for the nation.

8. Chairman of the planning commission:

a) The planning commission is a body whose chairman is the Prime Minister, which is an extra-constitutional body whose role is advising the center and the state on all activities. The economic policy decisions are majorly taken by the PM, and all the important decision is taken under the leadership of the PM.

b) The Prime Minister also heads, i.e., the de facto chairman of the National Development Council, NITI Aayog, Nuclear Command Authority, National Integration Council, National water resources council and inter-state council.

c) He is the head for disaster management team during the emergency at the political level.

Conclusion

The prime minister is the head of the government, the executive body and plays a crucial role in the functioning of government, the appointment of ministers, and formulating policies. It is vested with various powers like advisory, supervisory, etc. The effort of good governance and corruption-free ministers lies in the hands of the Prime Minister.

Rejection of Plaint

rejection of plaint cpc

Introduction

The Civil Procedure Code (CPC) deals with the procedure and dealing of the civil suits. Under the CPC nowhere has it been defined that what is ‘rejection of plaint’ but grounds on which a plaint is rejected are mentioned under Order 7 Rule XI. It mentions four grounds on which a plaint can be rejected.

Rejection of plaint- the section specifies the grounds under which the plaint can be rejected:—

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law. [1]

Grounds on which Plaint is Rejected

  1. Where it does not disclose the cause of action- if the plaintiff fails to mention the facts which give him right to seek relief against the defendant and the necessary facts that are required to prove wrong done by a defendant against the plaintiff, then in such cases the plaint can be rejected. [2]
  2. Where the relief claimed by the plaintiff is undervalued, or fails to correct the same on the direction of the court within a given period.
  3. Where plaint is properly valued and relief under it but the plaint gets rejected on the ground of insufficient papers or papers not properly attested or stamped, where the plaintiff does not present the plaint in accordance to the Court-fees Act.
  4. Where the suit is time-barred.
  5. In every suit, a duplicate file of the plaint needs to be filed by the plaintiff. If this requirement is not fulfilled, the plaint is rejected.
  6. Where the plaintiff fails to act in accordance with Rule 7 and Rule 9, the plaint can be rejected.

Provision of Rejection of Plaint under the CPC

  1. Procedure for rejection of plaint- “for rejection of plaint the judge shall record order with valid reasons for the passing of such order. Recording reasons is very important when the judge rejects any plaint.”[3]

Therefore, an order needs to be recorded by the judge in case of rejection of the plaint. Reasons for such rejection should also be noted by the judge.

  1. Where rejection of plaint does not preclude the presentation of fresh plaint— “The rejection of the plaint on any of the grounds hereinbefore mentioned shall not of its force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action.” [4]

If the plaint is rejected on any of the grounds mentioned under Order 7 Rule XI shall not preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action.

Modes of Rejection of Plaint

  1. At any stage of the proceeding, the defendant can file an application which can be in the form of an interlocutory application.
  2. Under Order VII Rule 1, Suo Moto rejection can be done. A Suo Moto rejection means that if the conditions above stated are fulfilled, the court can by its own motion try a suit.

Important points to be noted

  1. The plaint cannot be partly rejected and partly accepted. It is rejected as a whole. [5]
  2. Where an application under Order 7 Rule XI is filled with a mala fide intention to cause delay to the proceeding, it is rejected. [6]
  3. The order rejecting a plaint is a decree by a court and hence is appealable. [7]

Conclusion

Civil Procedure Code, 1908 is one of the most important document. It provides a detailed procedure of the civil suits. Comprehensive understanding of each and every provision is an important element. Rejection of plaint is done under certain grounds which are enumerated under Order 7 Rule XI. In the provision, the word ‘shall’ makes it mandatory for the court to reject the plaint when any of the points are satisfied. It is also very essential for the court to record the reasons for any order that it passes in order to reject the plaint. Moreover, if a plaint of the plaintiff is rejected by the court, it doesn’t imply that it cannot bring a suit on the same subject matter again. He is not barred from bringing a subsequent suit on the same subject-matter.

Citation-

[1] Order 7 Rule XI, Civil Procedure Code, 1908.

[2] S.M.P. Shipping Services Pvt. Ltd. V. World Tanker Carrier Corporation (2000) Bom 34.

[3] Civil Procedure Code, 1908, Order 7, Rule 12.

[4] Civil Procedure Code, 1908, Order 7, Rule 13.

[5] Kalepur Pala Subrahmanyam v. Tiguti Venkata. (1971) AP 313.

[6] Sopan Sukhdeo Sable V. Asstt. Charity Commr. (2004) SC 569.

[7] Bibhas Mohan Mukherjee v. Hari Charan Banerjee (1961) Cal 491 (FB).

GST on Car Lease

gst on leased cars india

GST On Car Lease in India

Car lease in India is the flash in the Indian pan, with sudden success following a dead-end. Interestingly, the Central government in general and the GST Council in specific rob all the credits. Keeping this in mind, the article talks about the repercussions of the decision taken by the Central government to make GST applicable even to the lease of cars.

 

What is a car lease?

To briefly introduce the concept of car leasing, it is a mechanism which allows you to drive a car, without buying it or paying a huge sum. In other words, the lessee can avail every service of the car by paying monthly payments for the same. Such installments shall be inclusive of the monthly rent of the car, insurance, maintenance, etc. Notably, there are two types of leasing models: operating lease and finance lease. In the former mechanism, the ownership of the car is transferred to the person taking it, while in the latter no ownership is transferred.

 

The current market for a car lease

In India, the market is juvenile yet constantly growing. It currently stands at the worth of Rs.1,500 crores and is estimated to progress at the progressive rate of 15-20 percent. The important factor for the demand of car leases over car loans is the tax benefits and exemptions which the people get from the former. For instance: for a person purchasing a new car, around 20% of an additional cost of the car has to be paid towards GST along with a 15% cess charge. This swells the overall cost of any car, making it out of reaches of the masses. Contrarily, with the modern-day leasing system, a person can easily choose any car of his/her desire, pay merely a monthly rent and then again switch cars at a regular period to enjoy the fruits of versatility. Therefore, it can be safely concluded that a significant factor in the growth of this market is the exemptions in taxes which the individuals receive.

 

The GST Regime

With the recent decision by the GST Council to absorb this industry within its ambit has brought the industry and its tensed members at the crossroads yet again. This situation was encountered when the government administration suddenly decided to treat the lease as a good rather than a service. Coming to the numbers, the current market position is such that a monthly car lease would cost Rs.25,000. Additionally, a 12.5% VAT would bulge the cost to Rs.28,125. However, complexities arise when GST is imposed. This is more so because, with 28% GST and 15% Cess, the base price swells incredibly to Rs.33,750.

Read Also: Input Tax Credit under Goods and Services Tax

Consequences

Coming to the technical aspects, this would indirectly result in double taxation of the same good. This is more so because once a car is purchased, the central excise is already included and paid by the buyer. Now, with this recent change, the lessee will have to pay GST for leasing the same car on which the excise was paid (at time of purchase). Thereby burdening the buyer with the same tax twice.

 

Returning to figures again, Service agents such as Ola have stated that they are currently paying 14.5% VAT. When the GST is applied, these companies will have to pay the double amount, that is, around 29% to 43% on the already leased cars. This would increase not only the cost for the driving partners but would also result in them increasing the price of their services. This will follow a reduction in revenue, difficulty in the sustenance of business, and mass unemployment. Interestingly, the impact of this section will also negatively influence related sectors, such as the vehicle sector. This is so because a growing number of companies purchase vehicles with the sole purpose of leasing them, thereby acting agents. All in all, an economic slowdown must be expected for the leasing industry in specific and automobile industry in general.

 

The Aftermath and Conclusion

The consequences are manifold. To start with, the car leasing rentals are assuming a rise by approximately 25%-30% due to the new tax regime. This is likely and primarily to affect car rental giants like Ola and Uber, which have combined leased approximately 30,000 cars. Fearing such consequences, several lease companies such as Orix, Clix, LeasePlan, Ola Fleet Technologies, TranzLease, Uber, ALD, Tata Capital, Arval, and Tractor Manufacturers have filed a petition off late before the Central government seeking exemption from this double taxation mechanism which marks the death knell for the industry. The most recent development after the submission has been the statement by a government official that they are considering the proposal with utmost sincerity and will release their decision soon.

 

The road ahead shall be mostly dependent on what the GST council decides. Since revising the GST rates is not a viable option, the direct and precise question remains if the Council would reconsider its decision and remove the recently added GST over the lease on cars.

Famous lawyers in India

top 10 lawyers of india

Being a lawyer is considered as one of the most respectable and highly- paid profession all over the world. The profession carries with itself respect, prestige, and fame. There are a number of lawyers all around our country, but only a few of them have managed to earn great name and fame by their hard work and legal knowledge. Therefore, we bring you Top 10 famous lawyers of India.

  1. Ram Jethmalani

With an age of 93 years old, Ram Jethmalani is one of the oldest lawyers of India. Throughout his career, he has gained great name and fame. He has served as the law minister as well as the chairman of the Bar Council of India. He has appeared in some of the famous cases, like the Hawala scam, Rajiv Gandhi Assassination case, 2G Scam, Asaram Bapu’s case, Delhi’s Uphaar Cinema case, Sahara- SEBI case and many more. He is also one of the highest-paid lawyers in India and charges 25 lac rupees for a single appearance of a case. Ram Jethmalani has been ranked number one by India TV News and Legally India.

  1. Fali Nariman

Another senior lawyer, which is well-known for his legal expertise and excellent knowledge is Fali Nariman. His vast experience has made him win some of the highest awards of the nations. He has been awarded Padma Vibhushan, Padma Bhushan, and the Prize for Justice for his contribution to the field of law and judicial system. He charges a good amount of 8-15 Lac rupees for his case. Further, Fali Nariman has been recognized as one of the most famous lawyers of India by Business Toady and legally India.

  1. KK Venugopal

He is the one who has fought many cases free of cost and always stands for justice. Being one of the most renowned lawyers, KK Venugopal was also appointed by the Bhutan Government for consultation while drafting their law of the land. He has also been honored with Padma Bhushan and Padma Vibhushan by the Government of India. He charges 5-8 lac per case.

  1. Gopal Subramanium

Being a senior advocate, Gopal Subramanium practices in the Delhi High Court and the Supreme Court of India. During the period of two years between 2009-201, he has also served as the Solicitor General of India and has also served as the chairman of the Bar Council of India. He has appeared in the famous case relating to OBC quota in educational institutions. His fees are usually from 5-15 lac rupees.

  1. Chidambaram

Also served as the Finance minister of India, p. Chidambaram is a well-known corporate lawyer. He practices in the Supreme Court of India and also in some of the High Courts. He charges 6-7 lac rupees.

  1. Mukul Rahtogi

He was the 14th Attorney- General of India. He started his career by practicing in the High Court under the guidance of Yogesh Kumar Sabharwal. He is one of the well-known and renowned lawyers in India.

  1. KTS Tulsi

Practicing in the Supreme Court of India, KTS Tulsi is one of the most famous lawyers in India. He is serving as the President of Criminal Justice Society of India since 1994. He charges a fee of 5-7 lac per appearance.

  1. Abhishek Manu Singhvi

With great legal knowledge and experience, Abhishek Manu Singhvi is one of the most renowned lawyers of India. He has served as the Additional Solicitor General at the age of thirty-seven which makes him the youngest Additional Solicitor General of India. His fees generally range from 6-11 lac rupees.

  1. Aryama Sundaram

Designated as a senior lawyer, Aryama Sundaram is primarily a corporate lawyer but also deals with cases pertaining to constitutional law and media law. Time and again he is seen representing the Board of Control for Cricket in India. He has many high- profile clients like Anil Ambani and judicial forums. He usually charges a fee which ranges from 5-17 lac rupees and is also one of the highest-paid lawyers of India.

  1. Salman Khurshid

Being a law teacher, Salman Khurshid is designated as a senior advocate of India. He has served as the former Minister of External Affairs and charges a fee of 5-7 lac rupees.

Conclusion

India has produced a number of good lawyers who not only helped our nation step forward but also evolved the legal practice in a positive manner. Although there are many more lawyers who have done great work in the field, it is grateful that the legal system is enhancing and prospering day by day with the help of these great personalities.

Promotion of Hindi Language – Article 351

hindi in constitution

The article 351 which we are about to deal with has a very important relationship with the union or public at large. Also, the present article is related with lots of controversies, many legal fraternities and other renowned personalities who were of the opinion that the Article 351  is against the fundamental right and the ethos of the country where more than 15000 languages and dialects exist so promoting one language is not justified at all. Though Hindi is the mother tongue of the majority population in India and also the official language of India, Hindi cannot be considered as the mother tongue of every state in India. For example, In Maharastra for regional people, Marathi is their mother tongue, and they accept this very proudly. If we see other states in India like Tamilnadu, Karnataka, West Bengal, Andhra Pradesh, Kerala they have their regional languages which are the mother tongue of their citizens.

Therefore, as per the principle of Unity in Diversity, the promotion of a single language to all over the nation is not a good idea. Although if we see the number of percentages who speaks Hindi in the country, according to the census of 2001 is near about 52% of the Indian population and it also means that near about 48 percent of the total population in India do not speak Hindi. So, in the country where more than 40 % of the population is speaking other languages, then how can a single language be promoted.

Article 351 definition-

For further discussion under this, first, we need to see what defined in Article 351 of the constitution of India. So, the present article is defined under Chapter IV (comprises of 3 articles, i.e., 350A, 350B and 351) of part XVII titled Directive for development of the Hindi language.” It states that-

 

” It shall be the duty of the Union to promote the spread of the Hindi language, to develop it so that it may serve as a medium of expression for all the elements of the composite culture of India and to secure its enrichment by assimilating without interfering with its genius, the forms, style and expressions used in Hindustani and in the other languages of India specified in the Eighth Schedule, and by drawing, wherever necessary or desirable, for its vocabulary, primarily on Sanskrit and secondarily on other languages ”

 

So, in a nutshell, It would appear that all languages in the Eighth Schedule were completely intended to be promoted. It is also important to see the whole list (22 languages) mentioned int the 8th schedule which are,

(1) Assamese, (2) Bengali, (3) Gujarati, (4) Hindi, (5) Kannada, (6) Kashmiri, (7) Konkani, (8) Malayalam, (9) Manipuri, (10) Marathi, (11) Nepali, (12) Oriya, (13) Punjabi, (14) Sanskrit, (15) Sindhi, (16) Tamil, (17) Telugu, (18) Urdu (19) Bodo, (20) Santhali, (21) Maithili and (22) Dogri.

Of these languages mentioned above, 14 languages were included initially in the Indian Constitution. The Sindhi language was added in the year of 1967. After, three more languages viz., Konkani, Manipuri, and Nepali were added in the year 1992. Lastly, Bodo, Dogri, Maithili, and Santhali were included in the year 2004 as the official language of India. Along with that, 38 more languages were demanded to add in the 8th schedule.

The main objective of Article 351 is to the promotion of Language Hindi as link language between Indians which are crystal clear by the wording of lawmakers, but there is nothing specific about this in the definition of Article 351. And It is the duty on the Union part to promote the Hindi language which is subject to the acceptance by the other language representative necessarily, i.e., by all the language mentioned in Eighth Schedule. It is also to be taken into consideration that It can not blindly implement or spread all over the Nation in favor of the one language that is Hindi.

Many of the people in the legal fraternity has criticized Article 351 defined in the Indian Constitution for its biases towards other languages. Their reasoning is that the provision mentions under Article 351 was adopted when the States were organized in the form of Provinces  (in British India time when some of the states were run by kings or Nawab’s under the British govt.) but at present Situation is different and we are a free country.

Caught Drunken Driving? All you need to know

Introduction

Alcoholic beverages have been increasingly used in the societies which are creating positive and negative; short-term long term, social, medical, and cultural impact. Like other western countries, the laws in India also make driving and drinking a punishable offense. The only exception can be having BAC (Blood Alcohol Content) within the permissible limit.

It is a well-known fact of the number of road accidents which occur everywhere due to reasons like drunkenness, driver’s fault, rash, and negligent driving, etc. In the case of The State of Tamil Nadu v K. Balu and Anr[1], the judgment highlighted the number of road accidents due to the influence of alcohol/drugs is 16, 298 for the year 2015, i.e., 3.3 percent of the total number of road accidents for the year.

Unquestionably, the statistics documented under the category of drunk driving is under-reported so as not to tamper the right of the victim to receive compensation. So, the figure recorded, and the figure on record has a significant difference.[2]

Permissible limit

It is pertinent to know what amounts to drunken driving and what is the permissible limit. The BAC permissible in India is 0.03%, i.e., 30 mg per 100 ml of blood. The BAC permissible varies from country to country. For example, in countries like Pakistan Alcohol is completely banned, China has BAC as 0.02%, and the UK and Canada have permissible BAS as 0.08%

In the case of Alister Anthony Pareira v State of Maharashtra[3], the accused was charged with causing the death of seven people and injuries to eight people who were asleep on the footpath of Carter Road, Bandra (West).  Upon Medical examination of the accused, the content of alcohol was 0.1125 w/v of Ethyl Alcohol. The High Court convicted the accused of Maharashtra, the basis of a conviction being his drunken state. But nobody cross-examined that drunken state which was stoutly argued upon on behalf of the accused at the stage of appeal. But the High Court ultimately dismissed the appeal because the BAC was higher than permissible, and no examination or cross-examination can render the fact void.

All the cases of Drunk Driving are registered under Driving under Influence (DUI) cases. On the eve of the new year 2019, Hyderabad itself registered as high as 2499 cases of DUI during checking on the occasion, and 873 cases were recorded by the Pune Police Stations, Mumbai 455 cases and Delhi 509 cases.[4]

How to identify intoxication

The case of Bachubhai Hassanalli Karyani v State of Maharashtra[5] is an important highlight because it places reliance on medical evidence and not on mere physical examination. The accused charged with rash and negligent driving under the state of alcohol. His state of alcohol contended only based on the opinion of the Doctor who conducted the examination. His breath was smelling of alcohol, gait unsteady incoherent speech, and dilated pupils. The accused was not subjected to the urine test. The blood samples were collected, but its report was never produced before the prosecution. The notion of accused being in a drunken state was denied by the court to meet the ends of justice. Thus the intoxication should be identified through breath analyzer, blood test, and urine test.

Is breath analyzer the only way to prove that a person is drunk?

As per Section 185 of the Motor Vehicle Act, 1988, which indicates a permissible limit BAC of 30 mg%, “in a test by a breath analyzer.” The wording of the section is clear the necessity of the test by breath analyzer. The police officer may also take the person to a nearby place to conduct breath and blood tests.

In the case of State Tr.P.S Lodhi Colony, New Delhi v Sanjeev Nanda[6], where the accused was held guilty under Section 85 of Indian penal Code and Section 185(1) of the M.V Act, 1988 to show intoxication. It was contended on behalf of the Accused that since breath analyzer test is the test statutorily recognized for drunken driving, which was not conducted for the Accused, no reliance can be placed on the state of intoxication of the accused.

Punishment and fine: Section 185 and 188 of the MV Act

If the BAC is 30 mg per 100 ml of Blood, then does not amount to any offense. If BAC is within 30mg-60mg per 100 ml of blood, it shall attract imprisonment up to 6 months or fine up to Rs. 2000 or both.

If BAC is ranging from 60mg-150mg per 100 ml of Blood, imprisonment for 1 year or fine of Rs. 4000 or both can be imposed. Repeating of offense within a period of three years will be punishable with imprisonment, which can extend up to 3 years and/or fine Rs. 8000.

If the BAC is above 150 mg per 100 ml of blood, then it attracts imprisonment of 2 years and/or fine of Rs. 5000. Repeating this offense will attract a penalty of Rs. 10000, cancellation of license and jail term.

Way Forward

The State and center have been working progressively towards reducing the number of causalities caused due to drunkenness. The polices implemented by the union government of ban of Alcohol within 500 meters of the National Highways, is a measure to curtail down the number of road accidents.

In action taken by Hyderabad in 2016, where it is required by the bar authorities to make sure a pool of cabs is available near the bar to take home drunken people. This action was initiated after Kolkata took stern action when a fatal accident of an actress was reported.[7]

As per the recommendation of the World Health organization, all member governments should reduce the per capita consumption, which can be done by reducing the availability of such alcoholic beverages. This action can be taken in lieu of Article 47 of the Constitution of India.[8]

Conclusion

A zero-tolerance policy must be devised and enforced for the proper clarification of the intent of the parliament. Identifying the places most vulnerable and setting up proper checkpoints have help to reduce the number of accidents, but the problem is yet to be solved from its very roots. The permissible limit remains 0.03% and should be abided by not to get caught by the police.

[1] Civil appeal Nos .12164-12166 of 2016

[2] R.N. Mathur v State (Finance Department)

[3] Criminal Appeal Nos. 1318-20 of 2007

[4] https://www.business-standard.com/article/current-affairs/drunk-driving-cases-huge-drop-on-new-year-s-eve-2000-booked-pan-india-119010300133_1.html

[5] Criminal Appeal No. 183 of 1970

[6] S.L.P. (Crl.) No.3292 of 2010

[7] https://www.thebetterindia.com/100812/india-drunk-driving-efforts-initiatives-world-lessons/

[8] https://www.alcoholwebindia.in/content/regulation-legislation

5 Expert tactics about patent law in India

Indian Patent Act

Introduction To Patent Law in India

The law of patents, governed under the Indian Patent Act, 1970, is a very complex piece of legislation. In addition to governing among the more technical branches of intellectual property, patents, patent law also boasts a complex administrative structure for implementation which you will see hereinbelow.

As you will see, protection of patents does not end with the grant of the patent, it continues till the end of maximum term – with post-grant, revocation and compulsory licensing provisions ensuring that the patentee does not get lax in the working of the patent at any point of time. For this article, we shall discuss some of the peculiarities about the patent law in India, of which there are many.

Expert tactics about the Patent Law in India

  • Supplementary protection certificates

The maximum term for protection of the patent under the Indian Patent Act, 1970 is 20 years. This term has been agreed upon within the scope of the Trade-Related Aspects of Intellectual Property Rights (“TRIPS”). The provisions for Supplementary Protection certificates is, as the term reveals, for the extension of such protection beyond this maximum period of protection. India presently does not have any provision under the patent law, including of supplementary protection certificates that allow for protection of technical intellectual property rights beyond their maximum terms.

  • Pre-grant opposition proceedings

An expert tactic in expediting patent grant proceedings is to file for pre-grant proceedings under patent law, section 25. Pre-grant proceedings are done about after the filing for a ‘request for examination’ by “any person.” The Controller of Patents will discern whether such a request must be entertained. If s/he is of the opinion that it should, then a notice is given to the applicant to produce the necessary evidence within 3 months of the notice. The Controller’s decision is given upon appropriate opportunity of a hearing. If such a decision is adverse to the applicant, an appeal can be filed with the Intellectual Property Appellate Board. However, if no such opposition is filed, then the patent shall be granted within 2 months within the date of publication.

  • Renewal Fees

Even after the grant of the patent, the patentee still has to regularly renew the patent rights by paying renewal fees in order to enjoy the patent rights under the patent law. The patentee shall pay the fees within the prescribed time, or the allowable extension.
The allowable extension is 18 months from the date of cessation upon non-renewal under the patent law. Notably, an expert tactic is that if you pay the fees within the first 6 months you can avoid stating reasons as to the delay, so you just file for restoration and pay the fees, however, if you pay in the next 12 months then you have to file for restoration, pay the fees, and state the reasons as to the delay. Only if reasons are justified, the fact of restoration is published.

  • Commercial Suits Act

Important expert tactics lie in the way you remedy infringement of the patentee rights. Under patent law, the patentee only has civil remedies, not criminal. Civil remedies are as mandated under the TRIPS Agreement: Damages; injunction; seizure, forfeiture, destruction of infringing products. Civil remedies also include payment of costs, such as lawyer’s fees and costs incurred by winning party during adjudication. Remedies are sought for in the first instance under the District Court.
However, the Commercial Courts, Commercial Division and Commercial Appellate Division of High Court Act, 2015 was enacted to expedite judicial processes with regards to suits valued above USD 4200. The term ‘commercial suits’ include intellectual property matters. This is a very interesting development with regards to the judicial machinery governing intellectual property rights. Additionally, the High Courts of Delhi, Bombay, Madras, and Calcutta can entertain intellectual property matters under original jurisdiction. Otherwise, in cases of infringement proceedings if the defendant files a counterclaim challenging the validity of the patent, then the matter is transferred to the High Court for further adjudication. The Intellectual Property Appellate Board entertains appeals from decisions of Controller of Patents.

Caveat petition
can also be filed under section 148(A) of the Code of Civil Procedure to stop the potential infringement of patent rights. It states that no hearing or order should be passed without giving notice to the party. This is also used to prevent ex-parte ad interim injunction in intellectual property matters.

  • Gillette defense

Finally, an interesting defense was incorporated into patent law as part of the decision in Hindustan Lever Ltd. v. Godrej Soaps Ltd.: incorporation of the ‘Gillette defense.’ It states that the act of the defendant was merely one disclosed in a prior publication. This puts the plaintiff in a difficult position as it gives him/her two choices, either to continue with infringement proceedings implying that the prior publication discloses the patented invention, i.e., there is no substantial or patentable variation thereby bringing to question the prima facie validity of the patent or to claim non-infringement. This is also another important expert tactic about patent law.

Conclusion

Parallel proceedings and claim construction tactics as laid down in Merck Sharpe & Dohme Corp. v. Glenmark, where it has been held that claims should be read literally and in cases of ambiguity the complete specifications are to be referred to, are also important in the scheme of patent law. Therefore, it is also clear to see that there are plenty of new aspects of patent law in India that makes it incredibly organic in its growth.

 

Article 226 of Indian Constitution

Introduction To Article 26

As per the powers conferred under Article 226 of Indian Constitution, High Courts have the power to issue directions, orders, writs to any person or authority or any governmental authorities (in appropriate cases).

Fundamental Rights frame the rampart of The Constitution of India. Each of these rights is sacrosanct.  It would be trivial if there exists no instrument to authorize them. Article 32 and 226 gives us the component of Right to Constitutional Remedies.

The power conferred under Article 226(1) and Article 226(2)

As per the provision, notwithstanding anything contained under Article 32, High courts have the authority in the territory where their jurisdiction is exercised to issue directions order or writs in the nature of Mandamus, Habeas Corpus, certiorari, quo warranto, prohibitions.

In legal terms, a writ is a formal written order issued by a government entity in the name of sovereign authority. In modern parlance, this government entity is a court.

Types of Writs issued under Article 226(1)

1. Habeas Corpus ( you may have the body)

This is in the nature of an order calling upon the person who has detained another to produce the latter before the court, in order to let the court know on what ground he has been detained and to release the person from the detention if there is no legal justification for the confinement.

2. Mandamus (the order)

It is used to compel the lower court or a governmental officer or any other body to discharge their duty on time. It is used to impart justice when there is any wrongful exercise of a power or a refusal to perform duties. Writ of Mandamus strictly follows the rule of Locus Standai.  In India, writ of mandamus can be issued against the government also as article 226 and 331 embodies the principle that appropriate proceedings can be brought against the government concerned. However, the courts have been unwilling to issue the writ of mandamus against high dignitaries like the president and Governor.

3. Prohibition (Stay order)

A writ of prohibition is issued to a lower court or a body to stop acting beyond its powers. It is preventive in nature. The main essence is to secure that the jurisdiction of an inferior court or tribunal is exercised and it does not act beyond its jurisdiction. Thus, this writ is available during the ongoing proceeding and before the order is made.

4. Certiorari (We command)

It is issued against the acts or proceedings of a judicial or quasi-judicial body conferred with power to determine the question affecting the rights of subjects and obliged to act judicially. It is both curative and preventive in nature. With the issuance of this writ decision given by a lower court which affects the rights of subjects and quashes this order.

5. Quo Warranto (What is your authority)

It is issued to inquire about the legality of a claim by a person or authority to act in a public office when he/she is not entitled to. In this case, proceedings review the actions of the administrative authority. The principle of Locus Standai is flexible here, a writ of Quo Warranto can be filed by any person, though not being an aggrieved party.

Powers conferred under Article 226(3)

This clause was brought by the 44th constitutional law amendment act, 1978. Wherein it has been introduced that in a case concerning ex parte interim order by way of injunction or stay or any order furnished by the court, without furnishing to such party copies of such petition and all documents in support of the plea for the interim orders and without giving such party an opportunity of being heard.

The main object of the insertion of clause (3) to Art. 226 of the Constitution provide an opportunity to the respondents and the matter to be brought before the notice of the Hon’ble judge. An application for vacating the ex-parte interim orders are to be filed in the registry as per the Court Norms.  After registering the cases, the Advocates do not get it listed down in the court or either of the advocates seeks an adjournment. As a result, the court is not able to take cognizance of such ex-parte interim orders. Hence to avoid such circumstances, Article 226(3) was issued.  Two weeks from the time this application is registered or from the time it is issued, whichever is later, High Court is supposed to dispose of such applications.

Legal prerequisites for moving an application under Article 226(3)-

  1. A writ petition filed against the respondent party.
  2.  Interim order by way of injunction or stay has been passed against respondents party without (a) furnishing to such party, copies of the petition and all documents in support thereof  (b) giving such party an opportunity of being heard.
  3. If the respondent party files an application for disposal of an interim order and furnish a copy of such application asking for the disposal to the petitioner. After bringing the matter in the notice of the petitioner, the court is supposed to adjudicate the matter within 2 weeks.

Powers conferred under Article 226(4)

Not considering the powers conferred under  Article 32, every high court shall have the authority to issue writs.  This power conferred on a High Court is not in derogation of the power conferred on the Supreme Court under article 32(2). This implies that if a person not satisfied with the judgment of the Hon’ble High Court can appeal to the Supreme Court under article 32 of the Constitution of India.

Conclusion

While acting under Article 226, the High Court doesn’t sit or act as an appellate authority over the orders/actions of the subordinate authority. This jurisdiction is supervisory in nature. One of the essential reason for this jurisdiction is to keep the government and tribunals within bounds of their respective jurisdiction. High Courts must ensure that while performing this function it does not overstep the well-recognized bounds of its own jurisdiction.

 

The Apprentices Act, 1961

The Apprentices Act

Introduction

The National Apprenticeship Act was enforced in the year 1959 at first on the voluntary cause. The bill was presented before the parliament during 1961 and was enforced from 1st January 1963. The act was amended twice in 1973 and 1986.

There are 38 sections and one schedule. The schedule is in regard to the adjustments in Workmen’s Compensation Act, 1923 with reference to its application to students under the Apprentices Act, 1961.

For the administration of Apprentices Act, 1961 in relation to trade apprentices under Central Government and Department lies with the Central Apprenticeship Advisor/ Director of Apprenticeship Training in the DGE&T, Ministry of Labour and Employment with the help of six Regional Directorate of Apprenticeship Training (RDATs).

The objective of the Apprentices Act, 1961

The main objective of the Apprentices Act, 1961 was to meet the rising need for a proficient craftsman. To provide experimental training to the people whore specialized in their crafts is the main objective of the act. As per the announcement of the central government, any industry or any area these provisions are applicable. The act clarifies the connection between the various employers and apprentices. The apprentices are not dealt in the same way as employees. The act aims to make provisions for the health, protection welfare, and many others for apprentices. It also includes the dispute management arising out of the agreement between the employers and the apprentices.

Who are Apprentices?

Act explains apprentices to be the ones who receive apprenticeship or practical training under an apprenticeship scheme for a specified duration. The person undergoing the training must be of 14 years of age, and in case of special safety requirement, the minimum age requirement is 18 years. Other than the aforementioned qualification, extra qualifications may be prescribed for special trades and special categories of apprentices.

The phrases and conditions of an apprenticeship are mandated with the aid of the apprenticeship agreement. The terms and conditions of the contract must be mutually agreed between the parties. The terms and conditions of the contract must not be in contravention with the provisions of the act. This act applies to those categories of apprenticeship where practical education is necessary to the trade. The provisions of this act are not applicable to the internship.

Duties of Apprentice

  1. He is expected to master the opted trade with utmost attentiveness and awareness, and exceptionally qualify himself as a skilled person.
  2. He is expected to attend all the practical and instructional sessions given by the employer or on behalf of the employer.
  3. He must obey all the lawful orders of the employee.
  4. He must work for the duration specified, which the subject matter of the prescribed training period.
  5. He must shoulder the responsibilities mentioned in the agreement.

Responsibility of an Employer

  1. He must reserve training seats for the ST/SC/OBC apprentice agreement
  2. The apprentice must be given sufficient training in accordance with The Apprentice Act, and the terms of the agreement entered between the parties.
  3. In the case where the employer is not of the capacity to train the apprentice, there must be sufficient instructors capable of training the apprentices.
  4. An apprentice is entitled to be remunerated as per the prescribed minimum wages to every apprentice.
  5. An apprentice is entitled to get leave, vacations, and weekly holidays in line with the policies of the company.
  6. An apprentice is entitled to get compensation for every act suffered by the apprentice during the period of apprenticeship. The compensation should be paid as per the provisions of the Workmen’s Act 1923 as applicable.
  7. An apprentice cannot be compelled by an employer to work overtime until the same is prescribed by the Apprenticeship Advisor. The due permission granted by the Apprenticeship advisor must be subject to apprentice’s interest or public interest.

Legal Nuances of Apprentices

  1. An apprentice is not entitled to get statutory benefits like Bonus, PF, Gratuity, Industrial Dispute Act, because the apprentice is not a workman throughout the apprentice training program.
  2. However, provisions pertaining to fitness, safety, wealth embodied in Factories Act are applicable to the trainee.
  3. An employer is under no legal mandate to employ the apprentice after the completion of the apprenticeship.
  4. Any dispute which may arise during the period of apprenticeship must be raised before Apprenticeship Advisor for resolution.

Grant of certificate/ conclusion of the training

After the completion of the training, it is mandatory for the apprentices to undergo the exam conducted by the National Council for the evaluation of his capabilities and then to grant the certificate for the apprenticeship training which she had taken. After completion of the apprenticeship training, each graduate or technician/vocational apprentice will be awarded a proficiency certificate by the regional board.

Why must Apprenticeship be encouraged?

When a significant number of apprentices are engaging themselves in Apprenticeship, the number of skilled and trained individuals would eventually increase. As a result of which employers are getting skilled employers which prove out to be beneficial for the company with a minimum training cost incurred by the company. The cost incurred on training is minimized, and employee turnover is lessened. By encouraging participation in apprenticeship programs, the employer can make a concern regarding the standards of training being met and revamped.

Conclusion

The Apprenticeship Act helps in the settlement of disputes between the employer and apprentice, and the same is adjudicate by apprenticeship advisor is the judging authority. The employer will be penalized if his acts are not found to be in accordance with the provisions of the act. To safeguard the rights of both employer and apprentice, the Apprentice Act, 1961 can be treated as an extensive law. An apprentice can execute the provisions of the act and overcome the problems faced by him throughout the training period.

Top 10 Criminals of India

Criminals of India

India, the home of over 1 billion people. It’s a family where all the traditions, religions, ages are safe and sound together. But the terror of crime is still in the veins of people of their own country and criminal cases in India are increasing day by day. The crime rate of the capital of India is 974.9 per 100,000 persons. National Crime Records Bureau, Government of India published Crime in India Report in which it is termed as the highest crime rate of India. Kerala stands second in the list by 727.6 per 100,000 persons. It may look insignificant in terms of proportion but gives chills in the spine when we think how brutally people have been killed these days. Criminals are creating a void of terror in the human heart. Now it’s important for us to take criminal cases of India seriously.

Read Also: Criminal Law in India

Every day nearly hundreds of people die because of crime in India. They all go unnoticed, but some wounds never record and blooms like before.

Remember the blasts of 26/11. They still disturb the souls of the nation. How two terrorists entered our country and killed thousands of people just to reveal them how terror feels?

This incident endures a shame to humanity.

Over here is the list of Top 10 criminals in India who made it unsafe to walk alone

Top 10 Criminals of India:

Over here is the list of Top 10 criminals in India. Those who had played an important role in increasing the graph of criminal cases in India and made it unsafe to walk alone.

1.Dawood Ibrahim

The most wanted criminal in the world is Dawood Ibrahim and was also involved in many criminal cases in India. He was born in Bombay in 1955. Currently, he is an underworld don, terrorists, and drug dealer. He founded a D-Company in the 1970s in Mumbai. He is accused of murders, drug dealing, and terrorism.

He has been on the Third position on the World’s 10 Most Wanted Fugitives presented by FBI and Forbes. The D-Company is rumored to be in connection with Bollywood Industry and threaten them for money. It is believed that he has killed Gulshan Kumar and Javed Siddiqui. He is equally known for extortion and threats targeted towards Bollywood.

He is the mastermind behind March 1993 Bombay Bomb Blasts. It is rumored that he was in close contact with Osama Bin Laden. Rumors, besides, say that spot match-fixing in IPL  was a white-collar business for Dawood Ibrahim.

On May 2015, Times Now claimed that he is safe in Karachi, Pakistan.

2.Mashood Azhar

Mashood Azhar is the leader of Jaish-e-Mohammed. This group is currently situated in Pakistan occupied Kashmir. Mashood Azhar was responsible for the hijacked Indian Airplane Flight 814. The plane was hijacked for the demand to leave Mashood Azhar from India in exchange for the innocent passenger in the flight.

 

3.Ilyas Kashmiri

Ilyas Kashmiri is also known as Maulana Ilyas Kashmiri. He is a senior operative of Al-Qaeda and head of Harkat-ul-Jihad Islamic.

Ilyas Kashmiri is held responsible for German Bakery Blasts in Pune. The bomb blast occurred on 13 February 2010 and more minor criminal cases in India. Over 17 people were killed, and 60 were injured. Resources convey that Ilyas Kashmiri was also involved in the Soviet-Afghan War, Kashmir Conflicts, and other attacks in India. Along with these he is also held responsible for attacks in Ahmedabad, Delhi, Jaipur, and Bangalore in 2008. He himself declared that 26/11 was his plot.

The U.S officially designated him as a terrorist in 2010. The United States has also called him “A most dangerous man in the world.”

It is believed that he was shot dead by U.S militants in 2011.

4.Syed Salahuddin

Syed Salahuddin is the one who is managing an organization for uniting Kashmir with Pakistan. Syed Salahuddin is the chief of Hizbul Mujahideen. This organization is linked with ISI and the Pakistan army. Syed Salahuddin is responsible for all the blasts, fights, and attacks in Kashmir and most of the criminal cases in India. He is currently residing in Pakistan. He is also behind the Delhi High Court attacks occurred in 2011. He runs United Jihad Council. This council retains a deep connection with Al Qaeda.

The National Investigator Agency lists Syed Salahuddin as Most Wanted Criminal.

5.Anees Ibrahim

Anees Ibrahim is Dawood Ibrahim’s younger brother. He is moreover the most trusted man of Dawood Ibrahim. He is believed to be involved in all the accused criminal cases in India led by Dawood Ibrahim. Be it extortions, drug dealing, weapons trafficking, fake note banks many more. It is believed that he was chiefly involved in all of the grim business of D- Company. He was shot in 2009 by members of a rival gang in Karachi.

6.Sajid Mir

Sajid Mir came to India in 2005 as a cricket fan. He remains the commander of Lashkar-e-Tayyiba. He came to India in 2005 to work on the 26/11 project. He and David Headley were working on this project together. Sajid Mir was contacting with the terrorists invaded the country through a safe internet line from a safe house in Karachi. He was personally involved in accusing hostages of the terrorist. Sajid Mir is currently in a run with ISI Directorate. Rumors say he has been traveling to Delhi with former armed officer Abdur Rehman Hashim.

7.Abu Salem

Abu Salem was born in 1969 in Uttar Pradesh. He is believed to be involved in many criminal cases in India like murdering, extorting and exporting arms and drugs. It is furthermore stated that Abu Salem has invested in Bollywood Films and retains a connection with the Film industry as well. He is rumored to be responsible for murdering producer Gulshan Kumar and other Indian producers like Subhash Ghai, Rajiv Rai for money from them.

Abu Salem joined D-Company as a Driver to transport drugs and weapons. He remotely handles and indeed sends his men to Bollywood stars and producers. In January 2001, his men were rumored to shoot the personal secretary of Manisha Koirala. He is also believed to be part of the 1993 Bombay Bomb Blasts.

8.Major Iqbal

The mastermind of 26/11 attacks in Mumbai is Major Iqbal. He is a major in the Pakistan army and a serving ISI officer. He is held responsible for recruiting “David Headley.” David Headley is a spy and an American terrorist of Pakistan army. David Headley recently informed that Major Iqbal befall the mastermind behind plotting the whole 26/11 attacks. He mentioned that he is also recognized by the name of “Choudhry Khan.” David Headley communicated this information during his trial in Chicago. He added that Major Iqbal once informed him about some of the attackers from Pakistani Boat in September 2008. He said they lost the Pakistani boats while they were Heading towards India for blasts.

9.Reshma Memon

Reshma Memon remains the wife of Yakub Memon. She is accused of helping Yakub and Dawood in the Bombay blasts of 1993. It is believed that Reshma Memon, along with her sister, was involved in many attacks and currently residing in Pakistan.

10.Chota Shakeel

Chota Shakeel was born in Bombay. He was initially named as Mohammed Shakeel Babu Miyan Shaikh. He is the crime boss of the Dawood Company, frequently known as D-Company. He joined the D-Company when he used to stay in Dubai in 1988. He is held responsible for the 1993 Bombay Bomb Blasts. He was equally involved in all the criminal activities during his prior years of life. Chota Shakeel is responsible for remotely tracking everyday activity in D-Company. It is believed that he helped Abu Salem in linking him with Bollywood film industries. It is rumored that he had killed Chota Rajan in Bangkok.

Chota Shakeel is also declared “WANTED” by the U.S. government because of his involvement in drug trafficking.

Rumors say he died in 2017 in Tajikistan. This is one of the dangerous criminal cases in India.