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.

 

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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.

 

498-A: Recent Supreme Court Judgment

2nd Aug - 498-A Recent Supreme Court JudgmentThe Indian legal system is faced by the contradictory duality of victims fighting desperately for justice on one side, while innocent persons are trapped in the shackles of law by frivolous litigations; and striking the right balance of stringency of law at a level where the innocent are not put in turmoil, while at the same time the wrongdoers do not escape the clutches of law, is a task in itself. In a recent decision, the Supreme Court gave a landmark verdict in relation to S. 498-A IPC which may easily pass off as one of the most misused provisions of our criminal law system, to the effect that now arrest can be made under the section only after obtaining some incriminating evidence against the accused.

Title: Rajesh Sharma and Ors v State of UP and Anr.

Case No.: CRIMINAL APPEAL NO. 1265 OF 2017

Coram:

  • Adarsh Kumar Goel
  • Uday Umesh Lalit

 

Matter:

The Court addressed the issue of prevalent misuse of S.498-A IPC (Cruelty by husband and family), and examined whether any directions are called for to prevent the same. The amicus curie appointed by the Court conducted a study on the matter, and the Court considered it in addition to the factual circumstance at hand. The appeal was filed by the family of the husband against the Order of the HC to rope in all the family members in the case of dowry and domestic abuse filed against the husband by his wife. The wife had accused the parents, brother and sister of the husband in addition to the husband himself.

 

Decision of the Court:

The Court ruled that allegations against all family members cannot be taken in face value when in normal course it may only be the husband or his parents who perpetrated the cruelty. The Court observed that misuse of the provision often led to harassment and arrest of even innocent family members including grandparents, minor children, siblings, etc.

The Court passed Directions to:

  • Set up Family Welfare Boards under DLSAs in every Distt.
  • The Committee is to look into every complaint filed u/s 498-A IPC,
  • Report must be submitted by them to the Authority;
  • No arrest must be made prior to the Report being received;
  • The parties may reach a settlement
  • Investigation under the Section be made by a designated Investigating Officer of the area
  • But these directions will not apply to the offences involving tangible physical injuries or death.
  • Consider bail to the accused on the same day if Notice sent to opposite party at least a day prior, etc.

 

Relevant portions of the Judgment:

“….accepted that there is a growing tendency to abuse the said provision to rope in all the relatives…on the strength of vague and exaggerated allegations without there being any verifiable evidence of physical or mental harm or injury….”

“…..this results in harassment and even arrest of innocent family members, including women and senior citizens…”

Dr. Manjula Krippendorf v Union of India [POCSO Decision 2017 Supreme Court]

With sexual crimes becoming a common story and those against children particularly on the rise, the case becomes more relevant in terms of deciding who to bring within the purview of ‘child’ under the Act. The case attempted to convince the Court to widen the ambit of the term so as to include mentally retarded adults who have attained adulthood only in respect of biological growth, while having mental growth of a child.

Title: Ms. Eera, through Dr. Manjula Krippendorf v Union of India and Anr.

Register No.: CRIMINAL APPEAL NOS.1217­-1219 OF 2017

Coram:

  • Dipak Misra J.
  • R F Nariman J.

 

Matter:

The petitioner who is 38 years of age suffers from Cerebral Palsy and has attained only 6-8 years of mental growth was raped by the Resp-2, and case was registered under the IPC and proceedings were made under the CrPC. Since the prosecutrix is a child in terms of her mental capacity, when it came to trial at the Sessions Court of Saket, issues relating to camera trial, videography, absence of congenial atmosphere, etc. emerged. The mother of the victim filed a petition before the Delhi HC u/s 482 of CrPC praying that the matter be transferred to Special Court under POCSO Act. The HC directed videography of the proceedings as the victim mainly communicates through gestures, but did not transfer the case under POCSA. The High Court directed that the case should be assigned to a trial court presided over by a lady Judge in Saket Court. The Petition before the Supreme Court purports to widen the scope of the term “child” under the POCSO Act to consider the functional age of the subject, rather than the biological age. The case also pertained to payment of compensation under the Act to the victim, since the accused had died during the pendency of the case.

 

Decision of the Court:

The court ruled that the term “child” under the Act cannot be interpreted widely to include the mental age of the person, and directed that the State Legal Services Authority, Delhi shall award the compensation keeping   in   view   the   Scheme   framed   by   the   Delhi Government. The Court considered the mechanism of interpretation (literal or purposive) adopted by the Courts in various precedents and concluded that the distinction between adjudication and law-making must be maintained. Earlier decisions were examined, which ruled that judges must not proclaim that they are playing the role of law-makers merely for an exhibition of judicial valor.

 

Relevant Portions of the Judgment

“…….the only conclusion that can be arrived at is that definition in Section   2(d)   defining   the   term   “age”   cannot   include mental age…”

“….this is a fit case where the victim should be granted the maximum compensation envisaged under the scheme….”

“…..under our constitutional scheme, Judges only declare the law; it is for the legislatures to make the law.”

“…..A legislative judgment is anathema….”

5 CONTROVERSIAL CASES THAT ALTERED THE INDIAN LEGAL SYSTEM

Controversies have a power of shaping the outcome of an incident, altering the course of an event, and sometimes even setting right what could otherwise have gone wrong; while on the other side of the coin, it also sometimes ruins the true essence of the subject matter. India has had a series of controversial Court cases that led to the amendment of laws or shaped new legislations altogether. Here we analyze a list of top 5 controversial Court cases that altered the Indian legal system in some way.

  1. The Shah Bano Begum Case (Mohd. Ahmed Khan v. Shah Bano Begum)

The case played a major role in shaping the law on maintenance to wife, as it upheld the provision under CrPC as non-violative of the Islamic personal law on maintenance, and directed the husband to pay maintenance to his first wife who he had divorced by way of Talaq a few years after taking a second wife of younger age. It led to severe protests from the Islamic religious factions, and in turn the Government passed the Muslim Women (Protection of Rights on Divorce) Act, 1986 nullifying the effect of the judgment and lay down that the maintenance only needed to be paid upto 90 days after divorce or during the iddat period. However, the Supreme Court again in cases of Daniel Latifi and Shahima Farooqi, upheld the earlier decision of the Court to ensure adequate protection and equal rights to Muslim women after divorce.

  1. The Nanavati Case (K.M. Nanavati v State of Maharashtra)

That is one name Bollywood popularized among the masses by the movie starring Akshay Kumar and Ileana DCruze, but their real story is no less than a movie tale. The change brought by the case in the Indian system was that it was the last case where jury trial was held in India. The plot is no less than a crime-romance drama that unfolded in 1959 where Mr. Nanavati who was a Naval Commandant shot dead a business tycoon Mr.Prem Ahuja who was in an illicit relationship with his English wife Sylvia. There was major public support for Mr. Nanavati as he was an honorable man of values, and was intimidated by the ‘playboyish’ attitude of the businessman who indeed had no interest in marrying Sylvia even if she sought divorce from Nanavati. In a series of twists and turns, Nanavati was acquitted by the Jury, then re-tried and convicted by the HC, and eventually pardoned by the Governor and released from prison after 3 years.

  1. Mathura rape Case (Tukaram and Anr v State of Maharashtra)

The rape case that rocked India from its roots, both in terms of public conscience and in terms of law. In 1972, the 14-16 year old girl Mathura who had to visit the Police Station in her small village to give a statement about a complaint of abduction that had been filed by her brother (but she was not abducted; she was only in love with a village boy and was with his family by free will) was raped by two policemen inside the Police Station. The case created much public uproar and social chaos as several women rights activists took to streets to seek justice for her after the accused were acquitted by the Court for lack of incriminating evidence. Though the offenders were not punished, the case created a tremor in the system that spoke volumes for women who were victimized. Under the present system, a woman should not be arrested after sunset and before sunrise unless there is permission from the Judicial Magistrate and at least one woman Police Officer is present at the time.

  1. Vishakha Case (Vishakha and Ors v State of Rajasthan)

The case was a landmark decision in terms of setting stringent rules to tackle sexual harassment at workplace. The decision came in a Petition filed by Vishakha and some other activists against the Govt of Rajasthan and the Union of India, after which the Vishakha Guidelines were adopted to protect women from sexual assault and harassment at their workplace. It came after public outrage broke out upon the acquittal of a few upper class men who had been alleged of raping a poor lower caste woman who spoke up against child marriage in the village.

  1. Kesavananda Bharati case (Kesavananda Bharati v State of Kerala)

After a series of cases in which the Legislature and Court seemed to be at a war in respect to the former’s power to amend the Constitution, this case finally set an end to the tug of war and upheld the Fundamental Rights as supreme “Basic Structure” of the Constitution. Though the case was in respect of the acquisition of the Petitioner’s land by the Govt., the judgment had an impact that went farther into limiting the power of the Govt to alter the provisions of the Constitution. In addition, the strength of the Bench (13) made sure that the verdict would be a strong precedent.