MTP ACT-THE NEED TO AMEND

12th Aug - MTP ACT-THE NEED TO AMENDAbortion laws in India are contained in the Medical Termination of Pregnancy Act, 1971, and the provisions in relation to the procedure are governed by the Act. The Act has been widely requested to be amended owing to the changed medical and social circumstances, but the Amendment Act has been pending since 2014, while many aggrieved women have been forced to approach the courts to seek remedies that are not available in the written laws.

THE MEDICAL TERMINATION OF PREGNANCY ACT

The Act lays down situations where a pregnancy may be terminated, and the conditions to be met thereunder. Termination is permitted if the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury physical or mental health; or if there is a substantial risk that if the child is born, it would suffer from such physical or mental abnormalities, but categorization of the level of medical judgment required is done on the basis of gestation period completed:

  • Up to 12 weeks – One Medical Practitioner
  • 12-20 weeks – Atleast two Medical Practitioners

The anguish caused by a pregnancy arising from rape is regarded as a grave injury to the mental health; and similarly a pregnancy arising from the failure of protection or contraceptives in a married couple will be regarded as grave mental injury.

In case of minors or lunatics, the written consent of guardian is essential to terminate the pregnancy; but the specific requirements relating to the length of pregnancy do not apply where the Medical Practitioner has formed an opinion in good faith that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman.

 

THE AMENDMENT BILL OF 2014

The Amendment Bill that has been pending for the past 3 years purports to introduce certain changes in the provisions of the Act:

  • To substitute “Registered Medical Practitioner” with “Registered Healthcare Provider’ in the long title of the Act.
  • The ambit is widened to include Homeopathic practitioners, Unani, Sidhha, and Ayurveda; or nurse or auxiliary nurse midwife who possesses an authorized registration under their respective category.
  • 3 pertaining to the conditions to terminate pregnancy to be modified in favor of women and their will; up to 12 weeks of gestation, MTP may be conducted upon request of the woman.
  • MTP allowed upto 24 weeks instead of 20.
  • 5A to be introduced, to protect privacy of the woman.

THE NEED OF THE HOUR

With the incidents of rape victims becoming pregnant, unwanted pregnancies and unprotected intercourse on the rise, it is expedient for the Govt to take up steps to ensure reproductive health of women. The data from the Sample Registration System (2001-03) under the Registrar General of India, unsafe abortions contribute to about 8% of the total abortions happening in the country. The reasons for this are multifold, with women attempting to gain some amount of autonomy in deciding whether or not they want the baby, and the law continuing with the shackles it has placed on the freedom to decide. Apart from affording women a rightful opportunity to decide on the same, the law also needs to consider rape victims and child sexual abuse victims, who may be left helpless after 20 weeks of pregnancy. The current scenario requires such aggrieved victims to approach the Courts of law to interpret the clauses in a wide manner so as to accommodate their anguish in the terms “grave injury to her physical and mental health”.

In May, the Rohtak Court had granted permission to a 10-year old child to terminate her 18-22 weeks old foetus; while a similar matter is currently under the consideration of the Supreme Court. (Refer News item posted on the same).

Relevant Case Laws (INDIAN KANOON)

  • X and Ors. v. Union of India and Ors.
  • Meera Santosh Pal v Union of India

COMPENSATION TO STATES UNDER GST

10th Aug - COMPENSATION TO STATES UNDER GSTThe implementation of GST as the sole indirect tax in place of the earlier multiple taxation legislations has reasonably raised a probability of States losing a part of their revenue from tax, in response to which the Centre has enacted the Compensation to States Act[i] along with the principal Acts of GST.[ii] Here we analyze the provisions relating to the said Act, to get a brief picture of how the scheme will be put to effect.

The Act intends to provide for compensation to the States for the loss of revenue arising on account of implementation of the goods and services tax. For the purposes of calculation and determination of the compensation amount, the Base year revenue of the State is calculated in accordance with the Act. The base year revenue for a State is the sum of the revenue collected by the State and the local bodies during the base year, on account of the taxes levied by the respective State or Union net of refunds with respect to the taxes subsumed into GST such as VAT, Sales tax, Purchase Tax, entry tax, octroi, local body tax, etc. The projected revenue for any year in a State is to be calculated by applying the projected growth rate over the base year revenue of that State, and the projected growth rate has been fixed at 14%.

Compensation under the Act is payable to any State during the transition period, and the calculation and release is to be done at the end of every two months, and an annual final calculation is made at the end of every financial year by the CAG. Any excess amount released to any State during a financial year will be adjusted against the compensation in the subsequent financial year.

The manner of calculation of the loss of revenue is also elaborated as:

  • The projected revenue that could have been earned by the State in absence of the goods and services tax till the end of the relevant two months period of the respective financial year shall be calculated on a pro-rata basis as a percentage of the total projected revenue for any financial year during the transition period[iii].
  • The actual revenue collected by a State till the end of relevant two months period in any financial year during the transition period will be the actual revenue from State tax collected by the State, net of refunds given by the State; the integrated goods and services tax apportioned to that State, as certified by the Principal Chief Controller of Accounts of the Central Board of Excise and Customs; and any collection of taxes levied by the said State, under the Acts specified in sub-section (4) of section 5, net of refund of such taxes[iv].
  • The provisional compensation payable to any State at the end of the relevant two months period in any financial year shall be the difference between the projected revenue till the end of the relevant period and the actual revenue collected by a State in the said period reduced by the provisional compensation paid to a State till the end of the previous two months period in the said financial year during the transition period[v].

In case no compensation is due to be released in any financial year, or any excess amount has been released to a State in the previous year, the State is bound to refund the same to the Centre. Every taxable person making a taxable supply of goods or services or both is bound the pay the Cess and furnish Returns to the Authorities as required. The Cess amounts collected under the Act is to be deposited into the Goods and Services Tax Compensation Fund, which is a part of the public account of India, and all the payments of compensations under s. 7 are to be made from this Fund.

INDIAN KANOON

 

[i] THE GOODS AND SERVICES TAX (COMPENSATION TO STATES) ACT, 2017 NO. 15 OF 2017

[ii] CGST Act (No. 12 of 2017), IGST Act (No.13 of 2017), Union Territory Goods and Services Tax Act 2017 (No. 14 of 2017)

[iii] Supra 1, S. 7 (4), (a)

[iv] Ibid, (b)

[v] Ibid, (c)

A MOVE TO CURB HONOUR KILLINGS

9th Aug - A MOVE TO CURB HONOUR KILLINGSIn a move that must set an example to the Govts in other States as well, the Madurai and Salem City Police have formed special cells to protect couples in inter-caste marriages and curb honour killings and hate crimes.

The move came as a response to a HC verdict that came over a year ago in relation to the case of B. Dilip Kumar v Secy. to Govt, Department of Home, wherein the death of the Petitioner’s wife was alleged to be an instance of honour killing and the same was ordered by the Court to be probed by the CBI. The Tamil Nadu Untouchability Eradication Front, an Organization working towards the eradication of caste-based atrocities, had filed a petition in the Madras High Court on the matter, and Directions were passed by the Court to take steps to curb honour killing instances. Though late, the Madurai and Salem City Police have set up a separate cell to deal with matters concerning honour killings, related atrocities, and to ensure protection to couples in inter-caste marriages from threats from their communities. Separate Officers from different Departments within the Police Force have been looped in to receive complaints from couples facing threats/issues and to oversee the supervision of the cell’s functioning.

NOW AADHAAR WILL FOLLOW YOU TO THE GRAVE!

8th Aug - NOW AADHAAR WILL FOLLOW YOU TO THE GRAVE!Brace your Aadhaar for your posthumous need! Yes, you read that right. Like the phrase goes about your karma following you everywhere, your Aadhaar or UID will be following you to the grave, as the Govt has now mandated that Aadhaar Number would be made mandatory for the Registration of Death in Govt records. The Notification has been published by the Registrar General of India, mandating that starting October 1st this year, Aadhaar Number would also need to be entered in the particulars furnished in Death Certificates. The purpose behind the move is to curb instances of identity falsification, obtain correct details of the relatives/dependents and acquaintances of the deceased; and avoid other people fraudulently claiming subsidies in the name of the deceased. Several subsidy/benefit distribution schemes have been integrated with Aadhaar, and linking it with Death Certificate will create an interconnected web of information regarding the beneficiaries.

However, notification also clarifies that non-availability of the detail will not result in a blatant refusal to provide Death Certificate. If the applicant is not aware of the Aadhaar details of the deceased, he could provide a certificate to the Authorities declaring that this is the case to the best of his/her knowledge. Furnishing false declarations to this effect would lead to a case of fraud, and the person would be liable under the Aadhaar Act and The Registration of Births and Deaths Act. It is also pertinent to note that Banks Accounts are also now largely linked with the holder’s Aadhaar Number, and it will enable them to close accounts easily and avoiding any chance of mistakes. The Authorities would also collect the Aadhaar numbers of the spouse/parents of the deceased, and that of the applicant as well.

The Ministry has exempted from the purview of the Notification, Meghalaya, Assam and Jammu & Kashmir; wherein Assam and Meghalaya are largely under a scheme of National Population Register and the majority population is not enrolled on the Aadhaar platform. Senior Citizens who are not yet enrolled on Aadhaar can do so by September 30th, and the State Departments of Birth and Death Registration are obligated to ensure compliance of the new provision from October 1st. The current position allows any document proving identity to be submitted to the Authorities for Registration purpose.

The move comes at a time when major controversies and protests are being raised by the public on the fear of privacy infringement, and the Supreme Court 9-Judge Bench ruling that privacy is not a Fundamental Right. Several other documents like PAN Card, Ration Card, Bank Account, Mobile Number, several etc. are presently linked to Aadhaar, and the Law Commission recently recommended linking Marriage Certificates with Aadhaar as well. The UID is now emerging into the quintessential identity document in India and is being made mandatory for availing a plethora of essential services; slowly shaping it into the center of all personal records of the holder.

So if you already do not possess Aadhaar, it is peak time to rush to your nearest Aadhaar Centre and get yourself enrolled.

 

NOW AADHAAR WILL FOLLOW YOU TO THE GRAVE!

Brace your Aadhaar for your posthumous need! Yes, you read that right. Like the phrase goes about your karma following you everywhere, your Aadhaar or UID will be following you to the grave, as the Govt has now mandated that Aadhaar Number would be made mandatory for the Registration of Death in Govt records. The Notification has been published by the Registrar General of India, mandating that starting October 1st this year, Aadhaar Number would also need to be entered in the particulars furnished in Death Certificates. The purpose behind the move is to curb instances of identity falsification, obtain correct details of the relatives/dependents and acquaintances of the deceased; and avoid other people fraudulently claiming subsidies in the name of the deceased. Several subsidy/benefit distribution schemes have been integrated with Aadhaar, and linking it with Death Certificate will create an interconnected web of information regarding the beneficiaries.

However, notification also clarifies that non-availability of the detail will not result in a blatant refusal to provide Death Certificate. If the applicant is not aware of the Aadhaar details of the deceased, he could provide a certificate to the Authorities declaring that this is the case to the best of his/her knowledge. Furnishing false declarations to this effect would lead to a case of fraud, and the person would be liable under the Aadhaar Act and The Registration of Births and Deaths Act. It is also pertinent to note that Banks Accounts are also now largely linked with the holder’s Aadhaar Number, and it will enable them to close accounts easily and avoiding any chance of mistakes. The Authorities would also collect the Aadhaar numbers of the spouse/parents of the deceased, and that of the applicant as well.

The Ministry has exempted from the purview of the Notification, Meghalaya, Assam and Jammu & Kashmir; wherein Assam and Meghalaya are largely under a scheme of National Population Register and the majority population is not enrolled on the Aadhaar platform. Senior Citizens who are not yet enrolled on Aadhaar can do so by September 30th, and the State Departments of Birth and Death Registration are obligated to ensure compliance of the new provision from October 1st. The current position allows any document proving identity to be submitted to the Authorities for Registration purpose.

The move comes at a time when major controversies and protests are being raised by the public on the fear of privacy infringement, and the Supreme Court 9-Judge Bench ruling that privacy is not a Fundamental Right. Several other documents like PAN Card, Ration Card, Bank Account, Mobile Number, several etc. are presently linked to Aadhaar, and the Law Commission recently recommended linking Marriage Certificates with Aadhaar as well. The UID is now emerging into the quintessential identity document in India and is being made mandatory for availing a plethora of essential services; slowly shaping it into the center of all personal records of the holder.

So if you already do not possess Aadhaar, it is peak time to rush to your nearest Aadhaar Centre and get yourself enrolled.

 

A RELIEF TO COMPANIES UNDER INSOLVENCY PROCEEDINGS

3rd Aug - A RELIEF TO COMPANIES UNDER INSOLVENCY PROCEEDINGSIn a decision that may aid corporate debtors under insolvency proceedings to reach mutual settlements, the Supreme Court used its extraordinary powers in a case that came before it to permit two companies to withdraw insolvency proceedings and settle their loan dispute amongst themselves. The Court used its extraordinary constitutional powers u/Art. 142 to grant the relief to the appellant companies since the matter was already under the consideration of NCLT (National Company Law Tribunal), and on appeal the NCLAT (National Company Law Appellate Tribunal) had passed a decision on 13th July 2017 to the effect that the proceedings under the Insolvency and Bankruptcy Code of 2016 cannot be withdrawn even if the parties decide to settle the dispute. The Court used the provision to do “complete justice” under Art. 142 to allow the parties to settle the matter in terms of the agreement arrived at between the parties, despite the matter being under consideration of the NCLT.

The Prologue

The matter came before the NCLT by way of an application filed by the financial creditor Nisus Finance & Investment Manager LLP (Respondent in the Appeals) against the debtor Lokhandwala Kataria Construction Pvt. Ltd. (Appellant before the NCLAT and the Supreme Court) under the Insolvency and Bankruptcy Code after the first cheque issued for redemption of the part of the debenture was dishonored. The NCLT admitted the application and ruled to initiate corporate insolvency proceedings if the debtor company failed to fulfill its obligations. But both the parties submitted later before the NCLAT that they had arrived at a settlement and part of the amount had already been paid. The NCLAT however observed that “even the Financial Creditor cannot be allowed to withdraw the application once admitted, and matter cannot be closed till claim of all the creditors are satisfied by the corporate debtor”. The NCLT laid emphasis of consideration on the claims of other creditors, even if a settlement has been arrived at between the parties of the present dispute, and refused to stall the insolvency application in view of the settlement between the parties, and dismissed the Appeal. The Debtor thereafter approached the Supreme Court under second Appeal to consider the matter, which is where the said decision has been passed by the Court.

The Decision and its possible Effects

The Supreme Court, while allowing the parties settle, did not question the law on which the NCLAT decided against the settlement, and clarified that prima facie the position taken by the Tribunal that withdrawal cannot be allowed is correct. However, the Court used its extraordinary powers to allow the parties to settle the dispute in terms of the agreement between them.

While the decision does not in any way alter the position of the law on insolvency or the provisions under the IBC 2016, it certainly comes as an auxiliary relief to insolvent companies. The Court may use its powers to do justice to the parties even when the stringent interpretations of the provisions of law are unfavorable to them. It gives the defaulters a second chance to amicably settle their financial disputes, and promotes a win-win scenario where the creditor receives the payment; while the debtor does not necessarily have to face insolvency proceedings despite the applicant (creditor) himself being willing to withdraw the application before NCLT.