by Aggarwals Associates | May 24, 2023 | Civil Law, Corporate Law, General
Introduction
With developments in education, employment, and the industrial sector, an increasing number of women are entering the country’s workforce today. The 21st-century world has evolved the roles of women and made great progress towards achieving gender equality in comparison to the older and conservative times. They have emerged as significant leaders and successful and diligent workers. But unfortunately, women are unsafe and are subjugated to sexual harassment at the workplace which has a major impact on their mental as well as physical health and which also hinders their performance. According to the latest statistic, a large percentage of 54%-81% of women experience sexual harassment at their workplace and 58%-72% of victims do not even report the wrongdoings of workplace sexual harassment due to fear of retribution or feeling like it would not be taken seriously by supervisors. In addition, a lack of understanding of one’s rights and the redressal process may also be a factor in the decision not to report. Women have a legal right to a safe workplace, which is acknowledged in the Indian Constitution and to be protected from being subjected to any form of discrimination, to enjoy life and personal freedom to the fullest.
What is Sexual harassment?
The sexual harassment of women in the workplace violates their dignity, self-respect as well as fundamental constitutional rights. Sexual harassment is defined as an unwanted sexually determined activity, which can involve physical contact, demands for sexual favours, the display of pornography, and other verbal or nonverbal behaviours. To combat these practices and protect women, the Parliament passed the Prevention of Sexual Harassment of Women at Workplace Act, 2013 (the “PoSH Act”) in 2013. This act deals with the Prevention, Prohibition, and Redressal of sexual harassment in any institution.
Prevention of Sexual Harassment Act 2013 (PoSH Act,2013)
In 1992, a social worker named Bhanwari Devi who was appointed with the Women’s Development project of the Rajasthan government was brutally gang raped by five men while she was trying to anticipate child marriage in that area. Whilst the absence of law relating to sexual harassment of women in the workplace Supreme Court laid down some guidelines in 1997, numerous women’s rights activists and attorneys had filed a Public Interest Litigation (PIL) before the Supreme Court of India under the name of Vishakha. The Vishakha Guidelines were developed in response to a petition brought by Vishakha and four other Rajasthan-based women’s organizations against the state of Rajasthan and the Union of India. It was seen as a big stepping stone in legal success for women’s organizations in India. Consequently, sexual harassment was recognized in India in 1997, and the action was the product of a collaborative effort by non-governmental organizations, feminists, and attorneys. All the organizations were bound to meet three obligations: – Prevention, Prohibition and Redressal.
Prevention of Sexual Harassment Act 2013 (PoSH Act, 2013) provides guidelines and procedures for a safe and secure working environment with proper implementations of PoSH policy. Under this PoSH Act, every organization is required to set up an Internal complaint committee (ICC) to investigate and keep a check on activities relating to sexual harassment of women at the workplace. It also requires employers to create awareness and training programs on sexual harassment for all employees so that they get educated and can communicate for redressal of complaints regarding any sexual harassment they face while working. The ICC also lays down the procedure for the investigation and resolution of complaints and protects women who file complaints from further retaliation and harassment.
Procedure for Complaints and Punishments
Constituting a PoSH policy at work provides a definite mechanism to address complaints of the aggrieved. It states the consequences and punishments given to the wrongdoers and safeguards women’s interests.
The complaint files should be handwritten, mailed, or typed only, along with the names of the complainant and the respondent. The important thing to be kept in mind is that the complaint should be filed within a period of 3 months from the date of the last incident of sexual harassment and in some cases, this time can be extended with justification given to the committee.
Once the investigation and inquiry have been completed and the allegations are proven to be true then the ICC advances actions or punishments that can be termination, stopping from increments or promotions, warning, suspension, providing compensation for the psychological or physical loss, loss of career opportunities, employee’s pain and sufferings, etc.
Conclusion
Every organization should abide by the regulations and directions laid by the judgment of the Supreme Court under the PoSH Act, to safeguard women who are working to earn their living and ensure them a safe working environment.
“If the authorities/managements/employers cannot assure them a safe and secure workplace, they will fear stepping out of their homes to make a dignified living and exploit their talent and skills to the hilt,” Justice Kohli wrote in the judgment.
Applicability of this Act will only be valid when employers protect the interest of their female workers by addressing their complaints timely and providing them redressal. The ICC should take measures to ensure a sexual harassment-free work environment for every employee.
-Kashish Rastogi
Associate Intern at Aggarwals & Associates, Mohali
by Aggarwals Associates | May 19, 2023 | General
INTRODUCTION
Foreign portfolio investment regulations are a set of rules and guidelines put in place by a country’s government or regulatory authority to govern the investment of foreign individuals or entities in the country’s financial markets. These regulations are designed to protect the
interests of both the foreign investors and the host country’s economy. The primary objective of foreign portfolio investment regulations is to encourage foreign investment in a country’s financial markets while ensuring that such investments do not pose a threat to the stability and security of the country’s economy. The regulations typically cover areas such as the types of securities that foreign investors are allowed to invest in, the amount of investment allowed, the reporting and disclosure requirements, and the taxation of foreign portfolio investments.
FOREIGN PORTFOLIO INVESTMENT
Foreign Portfolio Investment (FPI) refers to investments made by non-resident entities or individuals in the securities market of a foreign country. FPI typically involves investing in financial instruments such as stocks, bonds, and other debt securities. Foreign portfolio investors can be institutional investors such as mutual funds, pension funds, hedge funds, and sovereign wealth funds, or individual investors. These investors are not interested in taking a controlling stake in the company but are primarily focused on earning returns on their investments through capital gains and dividends. However, FPI can also pose some risks, such as currency risk, market volatility, and sudden capital outflows, which can cause significant disruptions to the economy. Therefore, governments typically regulate FPI to ensure that it is properly monitored and regulated to promote economic stability and growth.
FOREIGN PORTFOLIO INVESTMENT IN INDIA
Foreign Portfolio Investment refers to the holding of Financial Assets and Securities by investors in other country outside of the investor’s own country. It is the investment by non-residents in India by the way of securities including:
– Shares
– Government bonds
– Convertible securities etc.
Group of investors who invest in these securities are known a Foreign Portfolio Investors they include:
– Asset management companies
– Bankers
– Mutual funds
REGULATORY FRAMEWORK FOR FOREIGN PORTFOLIO INVESTMENT IN INDIA
1. Securities and Exchange Board of India and Reserve Bank of India
– Foreign Portfolio Investment (FPI) regulations in India are governed by both the Securities and Exchange Board of India (SEBI) and the Reserve Bank of India (RBI). While SEBI regulates the entry and operation of FPIs in Indian securities markets, the RBI regulates the inflow and outflow of foreign exchange related to FPIs. Here are some of the key FPI regulations by RBI in India.
– Eligible Investors:
• To invest in Indian financial markets, foreign investors need to be registered with the SEBI as a Foreign Portfolio Investor.
• As of March 2021, there were around 11,000 registered Foreign Portfolio Investors (FPIs) in India.
• The total number of registered Non-Resident Indians (NRIs) investing in the Indian markets was around 3 million as of 2020.
• Non-resident entities such as foreign companies, foreign institutional investors, and foreign individuals are eligible to invest in Indian securities markets as FPIs.
• Non-resident Indians (NRIs) are eligible to invest in Indian securities markets as per the regulations prescribed by the RBI.
– Investment Limits:
• Investors are restricted from investing in sectors like real estate and agriculture,unless they have obtained specific permission from the government.
• There are certain limits on the amount of investment that foreign investors can makein Indian companies. These limits are periodically revised by the government.
• The overall foreign investment limit in Indian companies is currently set at 74%,subject to certain sectoral limits.
• FPIs are allowed to invest up to 100% of the paid-up capital of an Indian company,subject to sectoral limits.
• The total investment by FPIs in Indian equity and debt markets was around $22.6 billion as of April 2021.
– Investment Instruments:
• As of April 2021, FPIs held around 23% of the total market capitalization of the Indian stock market.
• FPIs are allowed to invest in Indian equity shares subject to a ceiling of 24% of the paid-up capital of the company.
• NRIs can invest up to 5% of the total paid-up capital in Indian companies.
– KYC Requirements:
• Investors need to follow the “know your customer” (KYC) norms, which require them to provide identification documents, bank account details, and other information to SEBI.
• FPIs are required to comply with Know Your Customer (KYC) and Anti-Money Laundering (AML) norms prescribed by the RBI.
• FPIs are required to register with the designated depository participant (DDP) before investing in Indian securities.
• SEBI requires foreign investors to undergo KYC procedures to ensure their authenticity and prevent fraudulent activities.
• The KYC process involves collecting information about the investor’s identity, residence, and source of funds. SEBI also mandates regular updates to the KYC information.
Compliance Requirements:
• FPIs are required to appoint a designated custodian for their investments in India.
• FPIs must submit a monthly report on their investments in Indian securities to the designated depository participant, while NRIs and QFIs must report theirinvestments on a quarterly basis.
• As of March 2021, SEBI had cancelled the registration of around 2,000 FPIs for noncompliance with regulations.
– Taxation:
• Foreign investors are subject to various taxes on their investments in India, such as capital gains tax and withholding tax. The government periodically revises tax regulations to attract foreign investment.
• The withholding tax on equity investments by FPIs was reduced from 20% to 10%in 2020.
• The tax rate for FPIs investing in corporate bonds and government securities ranges from 5% to 20%.
– Monitoring and Enforcement:
• They are required to monitor and report their investments and transactions to SEBI.
• The RBI can take enforcement actions against FPIs for non-compliance with regulations, including imposing fines and cancellation of registration.
• SEBI regularly monitors foreign portfolio investments in India to ensure compliance with the regulations and prevent fraudulent activities.
• SEBI has the power to impose penalties and take other enforcement actions against non-compliant investors.
• SEBI’s Market Surveillance System (MSS) is used to monitor market activities and take action against fraudulent activities.
In summary, SEBI regulations on foreign portfolio investment in India have resulted in significant foreign investment in the Indian financial markets. The regulations ensure compliance with legal and regulatory requirements while promoting transparency and
preventing fraudulent activities.
2. Foreign Exchange Management Act, 1999
– The FEMA regulates all foreign exchange transactions, including foreign portfolio investment in India. The regulations are aimed at facilitating foreign investments in the Indian economy while ensuring transparency and preventing money laundering and other illicit activities.
– Eligibility:
• Any non-resident entity or individual, including foreign institutional investors (FIIs), foreign portfolio investors (FPIs), and qualified foreign investors (QFIs), can invest in Indian securities subject to certain eligibility criteria.
• The entities must be registered with the Securities and Exchange Board of India (SEBI) to invest in the Indian securities market.
– Investment Limits:
• The overall limit for foreign portfolio investment in Indian companies is currently set at 74% of the paid-up capital, subject to certain sectoral limits.
• The foreign portfolio investment limit in Indian debt securities is currently set at $30 billion for FPIs, subject to certain conditions.
– Investment Instruments:
• Non-resident entities can invest in Indian securities, including equity shares,debentures, and warrants, subject to certain limits.
• FPIs can invest in Indian mutual funds, subject to certain limits and guidelines issued by SEBI.
– Reporting and Compliance Requirements:
• Non-resident investors must comply with KYC and other regulatory requirements to invest in Indian securities.
• The non-resident entities are required to obtain a unique identification number (UIN) from the designated depository participant (DDP) to invest in Indian securities.
• The non-resident entities must also report their investments to the DDP and SEBI in a prescribed format and time frame.
– Enforcement:
• FEMA provides for penal provisions for non-compliance with the regulations, including fines and imprisonment.
• The Reserve Bank of India (RBI) is the regulatory authority for enforcing FEMA regulations related to foreign portfolio investment.
In summary, the FEMA regulations related to foreign portfolio investment aim to facilitate foreign investments in the Indian economy while ensuring compliance with regulatory and legal requirements. The regulations provide for eligibility criteria, investment limits, reporting and compliance requirements, and enforcement provisions to promote transparency and prevent money laundering and other illicit activities.
CONCLUSION
In conclusion, foreign portfolio investment (FPI) regulations in India are an essential aspect of the country’s economic policy framework. The Securities and Exchange Board of India (SEBI) and the Reserve Bank of India (RBI) have put in place a comprehensive regulatory framework that aims to promote transparency, prevent money laundering, and ensure compliance with legal and regulatory requirements.
The FPI regulations provide for investment limits, reporting and compliance requirements, and enforcement provisions, which promote transparency and prevent illicit activities in the financial markets. The regulations have been updated periodically to address emerging
challenges and opportunities in the global economic landscape.
-Rossel Aggarwal
Associate Intern at Aggarwals & Associates, Mohali
by Aggarwals Associates | May 12, 2023 | Contract Law
Privity of contract is a fundamental concept in the law of contracts, and it is an
essential principle of contract law in India. Privity of contract refers to the
relationship that exists between the parties to a contract, which creates rights
and obligations that are enforceable by law. The Indian Contract Act, 1872,
(hereinafter referred to as Indian Contract Act) defines the rules and principles
related to the privity of a contract, and it is essential for anyone entering into a
contract to understand its implications.
The Indian Contract Act defines a contract as an agreement between two or
more parties that creates legally enforceable obligations. The parties to a
contract are known as the “parties to the contract” and they must have a
contractual relationship to enforce their rights and obligations. The principle of
privity of contract means that only the parties to the contract can enforce their
rights and obligations under the contract. This means that a third party cannot
sue or be sued under the contract, except in certain limited circumstances.
The doctrine of privity of contract is based on the principle that a contract is a
private agreement between two or more parties, and it is not the business of
any third party. Therefore, a third party cannot acquire any rights under the
contract, nor can it be held liable for any breach of the contract. The doctrine
of privity of contract has been developed over the years by courts in India and
other common law countries to protect the interests of parties to the contract.
The Hon’ble Supreme Court in the case MC Chacko V. State of Travancore AIR
1970 SC 504 held that a person not a party to a contract cannot subject to
certain well-recognized exceptions, enforce the terms of the contract.
For example, A makes a promise to deliver the car to B’s place at a particular
time. A fails to deliver the car. In this case, only B can sue A and no third has
the right to sue.
Essentials of Privity of Contract:
1. Valid Contract: The first and foremost essential requirement is a valid
contract. The parties entering into the contract must be competent and there
must be a valid consideration in the contract as defined under Indian Contract
Act.
2. Breach of Contract: There must be a breach of contract by either party.
3. Only parties can sue each other: In the privity of the contract only parties to
the contract can sue each other and no third party has the right to sue parties
in the contract unless they fall in the exceptional area mentioned in the later
part of article.
What are the different exceptions to the doctrine of privity of contract?
There are certain exceptions to the principle of privity of contract under Indian
law. These exceptions have been developed by courts over the years to
address situations where the strict application of the principle of privity of
contract would lead to an unfair or unjust outcome.
Tortious Interference: Under this doctrine, a third party may be held liable for
interfering with the contractual rights of one of the parties to the contract. For
example, if C persuades A not to sell the car to B, C may be held liable for
tortiously interfering with B’s contractual rights.
Beneficiary rights: Under this concept, a third party may acquire certain rights
under a contract if it is clear from the terms of the contract that the parties
intended to confer those rights on the third party. For example, if A agrees to
pay B a sum of money to be held in trust for C, then C may acquire rights under
the contract as a beneficiary. In Pandurang V. Vishwanath AIR 1939 Nag 20,
the court held that the person beneficially entitled under the contract can sue
even though not a party to the contract itself.
In conclusion, the privity of contract is a fundamental principle of contract law
in India, and it is essential for anyone entering into a contract to understand its
implications. The principle of privity of contract means that only parties to a
contract can enforce their rights and obligations under the contract. However,
there are certain exceptions to this principle, which have been developed by
courts over the years to address situations where the strict application of the
principle of privity of contract would lead to an unfair or unjust outcome.
Surbhi Singla
Associate at Aggarwals & Associates,
S.A.S Nagar Mohali
by Aggarwals Associates | May 8, 2023 | Tort Law
Corporate tort liability is a complex legal issue that arises when a corporation is held responsible for harm caused by its actions or inactions. Corporations can be held liable for torts committed by their employees, agents, and even independent contractors.
Vicarious Liability
One of the most important concepts in corporate tort liability is vicarious liability, which is the legal doctrine that holds employers liable for the torts committed by their employees during the course of their employment. This means that if an employee commits a tort while performing their job duties, the employer can be held responsible for the harm caused by the tort.
Vicarious liability is based on the principle of agency, which is the legal relationship between a principal (the employer) and an agent (the employee). Under agency law, the actions of the agent are attributed to the principal, and the principal is responsible for the consequences of those actions.
However, there are limitations to vicarious liability. Employers can only be held liable for torts that are committed within the scope of the employee’s employment. If an employee commits a tort outside the scope of their employment, the employer cannot be held responsible.
Joint and Several Liability
Another important concept in corporate tort liability is joint and several liability. This is the legal doctrine that holds multiple defendants jointly and severally liable for the same harm. This means that each defendant is responsible for the full amount of the damages, regardless of their individual degree of fault.
In the context of corporate tort liability, joint and several liability can be particularly important because it means that multiple defendants (such as the corporation and the individual employee) can be held responsible for the same harm. This can make it easier for the plaintiff to recover damages since they can pursue all responsible parties.
However, joint and several liability can also be problematic for defendants, particularly when one defendant (such as the corporation) has significantly greater financial resources than the other defendants. In these cases, the corporation may end up paying a disproportionate share of the damages, even if it was only partially responsible for the harm.
The Corporate Veil
Finally, one of the most controversial issues in corporate tort liability is the concept of the corporate veil. The corporate veil is the legal principle that separates the liabilities of the corporation from those of its shareholders or owners. This means that in most cases, the shareholders or owners of a corporation cannot be held personally responsible for the corporation’s torts.
However, there are exceptions to the corporate veil. For example, if the corporation was formed for an illegal or fraudulent purpose, or if the shareholders or owners engaged in wrongdoing themselves, the court may pierce the corporate veil and hold them personally liable.
Piercing the corporate veil can be difficult since courts are generally reluctant to disregard the legal separateness of the corporation and its owners. However, in cases where the corporation has engaged in egregious conduct or the shareholders or owners have abused the corporate form, it may be necessary to pierce the veil in order to hold all responsible parties accountable for the harm caused.
Conclusion
Corporate tort liability is a complex and nuanced legal issue that requires a careful analysis of the facts and the law. Understanding the legal concepts of vicarious liability, joint and several liability, and the corporate veil is essential for any corporation or individual facing a potential tort claim. By working with experienced legal counsel and taking appropriate steps to mitigate the risks of tort liability, corporations can protect themselves and their stakeholders from potentially costly and damaging litigation.
-Surbhi Singla
Associate at Aggarwals & Associates
by Aggarwals Associates | May 1, 2023 | Civil Law, Contract Law
Tort Law and Contract Law are two distinct branches of civil law that deal with different types of legal issues. Contract Law is concerned with the rights and obligations arising from agreements between parties whereas Tort Law deals with civil wrongs that cause harm to individuals voluntarily or involuntarily. Some of the key differences between Tort Law and Contract Law:
- Nature of the Relationship: Contract Law involves a consensual relationship between parties, where one party promises to perform a certain obligation in exchange for something from the other party. On the other hand, Tort Law deals with an unconsented relationship where a party’s actions or omissions result in harm to another person.
- Basis of Liability: In Contract Law, the parties are liable for the breach of the terms of the agreement. On the other hand, in Tort Law, the liability is based on the breach of a legal duty towards others.
- Damages: In Contract Law, the damages are generally limited to the losses suffered as a direct result of the breach of the agreement. In Tort Law, the damages can include compensation for various types of losses, such as physical and emotional harm, damage to property, loss of income, and more.
- Standard of Care: In Contract Law, the standard of care is usually defined by the terms of the agreement. In Tort Law, the standard of care is usually based on what a reasonable person would do in similar circumstances.
- Remedies: In Contract Law, the remedies are usually limited to specific performance of the agreement, damages, or termination of the agreement. In Tort Law, the remedies can include compensation for the harm caused, injunctions to prevent further harm, and more.
In conclusion, while Tort Law and Contract Law are both branches of civil law, they differ in terms of the nature of the relationship, basis of liability, damages, standard of care, and remedies available. It is important to understand these differences when dealing with legal issues related to contracts or civil wrongs to ensure that the appropriate legal remedies are sought.
…Surbhi Singla
Advocate at Aggarwals & Associates, Mohali
by Aggarwals Associates | Apr 18, 2023 | General
The Punjab Regional and Town Planning and Development Act (PRTD Act) was introduced to regulate land development and planning in Punjab, aiming to ensure orderly and planned growth of urban areas. The Act empowers the Punjab government to create development plans for various regions and to impose development charges on developers who wish to undertake construction in these areas.
What does Section 45 (4) of PRTD Act implies?
Section 45 (4) states “After considering the cause if any, shown by the transferee in pursuance of a notice under sub-section (3), and any evidence that he may produce in respect of the same and after giving him a reasonable opportunity of being heard in the matter, the Estate Officer may, for reasons to be recorded, in writing, make an order resuming the land or building or both, as the case may be, and direct the forfeiture as provided in subsection (3) of the whole or any part of the money paid in respect of such transfer”. Section 45(4) of the PRTD Act is an important provision that outlines the guidelines for the recovery of development charges from developers. It ensures that the development charges are recovered promptly and efficiently.
What are the projects that are recently resumed under section 45(4) of the Act?
The two mega projects are resumed by the GMADA under sec 45(4) of the Act.
The official notice by the authoritarian state that the allotment of two projects named as “Beverly Golf Avenue” situated near Mohali Golf Range and “World Trade Centre Chandigarh” has been cancelled as per the provisions of Section 45(4) of the Punjab Regional and Town Planning And Development Act, 1995.
What is the implication of this recent cancellation on buyers?
The recent notice by the authorities at this stage when the buyers has already acquired the space has created animosity among the buyers as there hard-earned money is invested in this project. Here are some major implications of this step taken by GMADA:
- Uncertainty about project completion: The resumption of a project due to non-payment can create uncertainty about whether the project will be completed at all, leaving consumers unsure about the future of the project and their investments in it.
- Financial loss: Consumers may face financial loss as they have already invested a significant amount of money in the project and are unable to get their money back due to the project being stalled or discontinued.
- Legal issues: Resumption of a project due to non-payment can lead to legal issues between consumers and developers, which can cause further delay and uncertainty.
- Quality issues: Resumption of a project due to non-payment can lead to developers cutting corners in order to complete the project quickly, resulting in poor quality of construction and substandard products or services.
In conclusion, Section 45(4) of the PRTD Act plays a crucial role in regulating land development and planning in the state of Punjab. The provision ensures that the development charges are collected in a timely and efficient manner, which helps to promote the planned growth of urban areas. The provision also helps to ensure that the burden of paying for infrastructure development is shared by all stakeholders, including the developers who benefit from the development.
Surbhi Singla
Associate at Aggarwals & Associates
by Aggarwals Associates | Mar 31, 2023 | Criminal Lawyers, General
Before going into details, one must need to understand these basic terms i.e. Media and Contempt of Court. Media are the communication outlets or tools used to store and deliver information or data. The term refers to components of the mass media communications industry, such as print media, publishing, news media, photography, cinema, broadcasting, digital media, and advertising. Media is essential to our society, serving as a watchdog and holding those in power accountable for their actions. However, the freedom of the press is not absolute and can be restricted in certain circumstances, such as contempt of court.
Contempt of court refers to any act that obstructs or interferes with the administration of justice.
Media and Contempt of Court: What is it?
Contempt of court can be divided into two categories: civil contempt and criminal contempt. Civil contempt refers to disobedience of court orders, while criminal contempt is any act that tends to interfere with the administration of justice. Media can be held in contempt of court if they publish or broadcast anything that tends to prejudice the administration of justice or interfere with the due process of law.
Examples of contempt of court by the media can include publishing details of a defendant’s criminal history or previous convictions before the trial or revealing the identity of a victim or a witness in a sexual assault case. In such cases, the media may not have intended to interfere with the administration of justice, but the impact of their actions can be severe.
Implications of Contempt of Court by the Media
The implications of contempt of court by the media are significant. It can undermine the fairness of a trial, resulting in a mistrial or the acquittal of a guilty defendant. Moreover, it can jeopardize the safety of victims, witnesses, and even judges, who may be targeted for reprisal or intimidation.
Contempt of court by the media can also erode public confidence in the justice system. If the public perceives that the media is influencing the outcome of a trial, they may lose faith in the impartiality and integrity of the courts, which can have long-term consequences for the rule of law.
How to Avoid Contempt of Court
Avoiding contempt of court requires a nuanced understanding of the law and a commitment to ethical journalism. The media should refrain from publishing or broadcasting anything that can prejudice the administration of justice, such as details of a defendant’s criminal history or previous convictions before the trial, or the identity of a victim or a witness in a sexual assault case.
Moreover, the media should respect court orders, such as suppression orders or publication bans, and seek legal advice before publishing or broadcasting anything that may breach these orders. They should also ensure that their reporting is fair, accurate, and balanced and that they give equal weight to the prosecution and the defence.
Conclusion
Media plays a crucial role in our democracy, but that role comes with certain responsibilities. Contempt of court by the media can have severe implications, and journalists must be mindful of the impact of their reporting on the administration of justice. By adhering to ethical standards and the law, the media can ensure that their reporting is fair, accurate, and does not prejudice the outcome of a trial.
-Surbhi Singla
Associate at Aggarwals and Associates, SAS Nagar, Mohali
by Aggarwals Associates | Mar 28, 2023 | Criminal Lawyers, Divorce Lawyer, General
Article 142 of the Indian Constitution grants the Supreme Court the power to pass any order necessary for doing “complete justice” in any case or matter pending before it. This provision is often seen as a powerful tool in the hands of the judiciary to provide justice in situations where the law is inadequate or insufficient. However, the use of this provision has also been a subject of much debate, with some arguing that it undermines the principle of separation of powers and can lead to judicial overreach. In this blog, we will discuss the need for judicial restraint while exercising the powers granted under Article 142. The bare language of Article 142 is as follows: “ Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc ( 1 ) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe
- Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself”
The principle of separation of powers is a cornerstone of democracy, which ensures that no branch of the government becomes too powerful. The legislature makes laws, the executive implements them, and the judiciary interprets and applies them. However, in some cases, the law may not be able to provide a remedy for a particular situation. In such cases, the judiciary may have to step in and provide a solution using its inherent powers. Article 142 grants the Supreme Court the power to do just that. However, this power must be exercised with caution and restraint.
One of the main arguments against the use of Article 142 is that it can lead to judicial overreach. The Supreme Court is not meant to legislate or make policy decisions. Its role is to interpret and apply the law. When it uses Article 142 to pass orders that go beyond what is provided in the law, it can be seen as encroaching on the powers of the legislature and the executive. This can be particularly problematic when the orders passed under Article 142 have far-reaching implications that affect the rights and freedoms of citizens.
Another concern with the use of Article 142 is that it can undermine the rule of law. The rule of law requires that all actions of the government, including the judiciary, are subject to the law. When the Supreme Court passes orders under Article 142 that are not based on any legal provisions, it can be seen as arbitrary and unfair. This can erode public trust in the judiciary and the rule of law.
Therefore, it is essential that the Supreme Court exercises restraint while using the powers granted under Article 142. The court must ensure that its orders are based on established legal principles and are not arbitrary or unfair. It should also ensure that its orders do not encroach on the powers of the other branches of the government. This requires a careful balancing of the interests of justice with the principles of democracy and the rule of law.
In conclusion, Article 142 is a necessary provision that allows the Supreme Court to provide justice in situations where the law is inadequate or insufficient. However, its use must be tempered with caution and restraint. The Supreme Court must ensure that its orders are based on established legal principles and do not undermine the principles of democracy and the rule of law. By doing so, it can uphold its role as the guardian of the Constitution and the protector of the rights and freedoms of citizens.
–Surbhi Singla
Associate at Aggarwals & Asssociates, Mohali
by Aggarwals Associates | Mar 13, 2023 | General
The Supreme Court recently said that the Members of the House have to comply with the directions of the whip and if any section of MLA within the political party refuses to do so or goes against the direction, then the MLA will attract disqualification. However, the whip is not applicable in the case of presidential election.
The Whip in Parliament:
The concept of the whip in India is inherited from the U.K. In India, the whip is an official of the political party responsible for ensuring that members of the party vote in a particular way on a bill or issue in parliament. The whip’s role is to persuade and convince members of the party to vote in favour of the party’s position. Whips are also responsible for ensuring that party members attend parliament and vote on important bills.
The whip’s authority in parliament is based on the principle of party discipline, which requires all members of the party to vote in a particular way on a bill or issue. Party discipline is essential for maintaining a stable government and ensuring that the party’s legislative agenda is implemented. In India’s parliamentary system, where coalition governments are common, whips play a vital role in ensuring that the coalition partners vote together on important bills.
The Role of the Chief Whip:
In India, each political party has a chief whip, who is responsible for overseeing the party’s members in parliament. The chief whip’s role is to communicate the party’s position on a particular issue to its members and persuade them to vote accordingly. The chief whip also ensures that party members attend parliament and vote on important bills.
The chief whip is also responsible for coordinating with the other parties’ whips to ensure that there is no conflict between the parties on a particular issue. The chief whip plays a crucial role in maintaining party discipline and ensuring that the party’s legislative agenda is implemented.
The Whip System in India:
The whip system in India is governed by the Rules of Procedure and Conduct of Business in Lok Sabha and Rajya Sabha. The rules specify that any member of a political party who violates the party’s whip will be liable to disciplinary action by the party.
The rules also specify that a whip can be issued for any bill, motion, resolution, or any other matter on which the party wishes to convey its view to its members. The whip can be issued in three forms – a one-line whip, a two-line whip, or a three-line whip – depending on the importance of the issue and the party’s stance on it.
Conclusion:
The whip plays a crucial role in maintaining party discipline and ensuring that the party’s legislative agenda is implemented in parliament. In India’s parliamentary system, where coalition governments are common, whips play an even more critical role in ensuring that the coalition partners vote together on important bills. While the whip system has its critics who argue that it restricts the freedom of individual MPs, it remains an essential tool for ensuring stable government and effective legislative action in parliament.
by Aggarwals Associates | Feb 7, 2023 | RERA- Real Estate
What is RERA?
RERA stands for Real Estate Regulation and Development Act, (hereinafter referred to as Act) a law passed by the Indian government in 2016, aimed at regulating and promoting the Indian real estate sector by protecting the interests of consumers and boosting investment in the industry. The Act ensures transparency of work and for the upliftment of the real estate industry with time.
What are the benefits of RERA?
- Consumer protection:
RERA ensures that the interests of consumers are protected by setting clear guidelines for fair and transparent real estate transactions. The act mandates that developers must complete projects within a specified timeline and imposes penalties for delays. If the buyer finds that the tile is not correct even after the possession then also the buyer can claim the compensation from builder.
- Transparency in pricing and approvals:
Developers are required to disclose all information about a project, including pricing and approvals, to potential buyers. By creating a more transparent and regulated real estate sector, RERA aims to increase investment in the industry, leading to more housing options and job creation. Before the Act, the amount calculated was never fixed. The builder always used to give different prices for same flats / property. But, now cause of the RERA authority’s defined carpet area, the price is fixed for all the same carpet areas. RERA provides a platform for a single-window clearance system, making it easier for developers to obtain the necessary approvals and permits.
The Act defines carpet area as follows: “carpet area” means the net usable floor area of an apartment, excluding the area covered by the external walls, areas under services shafts, exclusive balcony or verandah area and exclusive open terrace area, but includes the area covered by the internal partition walls of the apartment.
- Dispute resolution mechanism:
The act provides a fast-track dispute resolution mechanism to resolve any disputes between developers, buyers, and other stakeholders in a timely and cost-effective manner. The dispute can be resolved by following ADR (Alternative dispute resolution) mechanism i.e., Arbitration, mediation and conciliation. The ADR mechanism is a cost-effective and easy procedure to resolve disputes among parties.
- Rate of interest same:
If the buyer has not completed the payment on time or the builder has not completed the building then both buyer and builder are liable to pay the same rate of interest to the Authority.
- Grievance Redressal:
The buyer, promoter or agent has any issues with respect to the project then they can file a case in the RERA authority and still if they are not satisfied with the RERA order they can go to Appellate Tribunals. No civil court of the jurisdiction has the right to hear the case only the Appellate Tribunals can only do so.
What is the objective of establishing the RERA Authority?
- Protect the interests of consumers in the real estate sector by setting clear guidelines for fair and transparent real estate transactions.
- Promote the growth of the real estate sector by boosting investment and increasing the supply of housing.
- Ensure timely delivery of real estate projects by mandating that developers complete projects within a specified timeline and imposing penalties for delays.
- Enhance transparency in the real estate sector by requiring developers to disclose all information about a project, including pricing and approvals, to potential buyers.
- Provide a fast-track dispute resolution mechanism to resolve disputes between developers, buyers, and other stakeholders in a timely and cost-effective manner.
- Regulate the unorganised sector of real estate by bringing in a higher degree of accountability and professionalism.
- Enhance consumer confidence in the real estate sector by establishing a regulatory framework that promotes transparency, accountability, and fairness.
Surbhi Singla
Associate at Aggarwals & Associates, S.A.S Nagar Mohali.
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